Name Perry Costa Claimant Name Electec Engineering Incorporated Defendant Editorial Notice: Addresses v. phone numbers have been removed from this electronic version of the judgment., 2014 NSSM 16

IN THE SMALL CLAIMS COURT OF NOVA SCOTIA Cite as: Costa v. Electec Engineering Inc. 2014 NSSM 16 Claim No: SCCH 424595 BETWEEN: Name Perry Costa Claimant Name Electec Engineering Incorporated Defendant Editorial Notice: Addresses and phone numbers have been removed from this electronic version of the judgment. Leon S. Tovey appeared for the Claimant. Kevin A. MacDonald appeared for the Defendant. DECISION FOR STAY OF PROCEEDINGS The Claimant, Perry Costa, is suing the Defendant, Electec Engineering Incorporated, for wrongful dismissal following his termination in January, 2014.

His claim alleges among several things inadequate notice and unpaid vacation pay. During his testimony, Mr. Costa revealed that he had filed an application pursuant to the Labour Standards Code which is being investigated and has not been finally determined. At that point, Mr. MacDonald, on behalf of the Defendant, made an immediate motion for a stay of proceedings which I granted. The following are written reasons for this decision. It is important to note at the outset that a stay of proceedings is not a dismissal of the action.

It is a temporary suspension of the claim pending its determination under the Labour Standards Code . Furthermore, it is in no way an indication of either party’s chances of success. The Law Unlike some statutes, the Nova Scotia Labour Standards Code , R.S.N.S. 1989, c. 246, as am., does not specifically oust the jurisdiction of the courts to adjudicate matters determined under it. Rather, the decision to consider such matters is left to the courts and the

interpretation of the doctrine curial deference to certain specialized legislation. The application to cases heard under the Labour Standards Code was analyzed at length by Justice Duncan of the Supreme Court of Nova Scotia in Fredericks v. 2753014 Canada Inc. , 2008 NSSC 377 . His Lordship dealt extensively with the issue of matters commenced before the Director of Labour Standards and the Labour Standards Tribunal (as it was then called) and their interaction with those addressed through the courts. This decision is binding on the Small Claims Court. Thus, I have quoted from this decision extensively.

At paras. 12 – 28, Justice Duncan stated the following: [12] The first argument put forward by the defendant finds its roots in the policy expressed by the Justice Binnie in Vaughan v. Canada [2005] 1. S.C.R. 146:

“13 Labour relations has long been recognized as a field of specialized expertise. The courts have tended in recent years to adopt a hands-off (or deferential) position towards expert tribunals operating in the field, including arbitrators.” [13] Speaking in Adams v.

Cusack, 2006 NSCA 9, Cromwell J.A. summed it up in these terms: “Workplace disputes should generallynot go to court when there is a comprehensive statutory scheme for dealing with them”. (at paragraph 1). [14] The application of this principle is outlined in paragraph 13: This hands-off policy applies not only where there are clear legislative provisions which expressly oust court jurisdiction. It also applieswhere the scheme as a whole makes it clear that the courts were intended to have “...but a small role if any to play in determination ofdisputes covered by the statute.” : Gendron v.

Supply & Services Union of the Public Service Alliance of Canada, Local 50057, (SCC), [1990] 1 S.C.R. 1298 at 1321. [15] As to the extent of the application of the policy: 18 The final general point is this.

Deference may be due to a comprehensive dispute resolution scheme even if it does not address everyconceivable complaint or provide access to third-party neutral adjudication. [16] Justice Cromwell set out the two steps of the “required analysis” necessary to the application of the policy: The first is to examine the dispute resolution scheme in order to determine its intended ambit and the second is to examine the dispute todetermine whether it falls within that intended ambit.

At this second step, the court must look at the essential character of the dispute,determined according to its full factual context, not the legal characterization which the parties have chosen to place on it: see e.g.

Mortinat paras. 15-20; Vaughan at para. 11; Weber at para. 49. (at paragraph 15) Labour Standards Code [17] In my opinion, the Code has established a “dispute resolution scheme” to address workplace complaints as between employers andemployees in Nova Scotia, for a wide array of issues including, but not limited to, employee protection, holiday pay, industrial standards,minimum wages, equal pay, pregnancy and parental leaves and sick leave.

Relevant to this action, the Code includes provisions forresolution of complaints for dismissal without just cause (sections 71-72), vacation pay (sections 32-36) and unpaid wages (sections80-81). (Underlining mine) Effective Redress [18] Under the Code the employee has the right to make a complaint to the Director of Labour Standards pursuant to s. 21, who “shallinquire into the complaint.” [19] The Director has broad powers to issue orders to contravening employers to rectify the injury or to provide compensation, includingbut not limited to unpaid amounts as set out in s. 81. [20] The jurisdiction of the Director is limited to those matters which occurred within six months of receipt of the complaint or initiationof the Inquiry by the Director. (s. 21(3A)). [21] There is a right of appeal to the Labour Standards Tribunal. (s. 21(5)).

If the Director’s order is not appealed, then

(10) Subject to the rights under subsection (4) of

Section 90 of persons other than the employer, an order of the Director under thisSection is final and conclusive and not open to review by any court by certiorari or otherwise or to appeal except to the Tribunal asprovided by this Section. The order of the Director can be enforced as an order of the Supreme Court. (s. 90(2)) [22] If the Director fails to make an “order” then, under s. 21(7), the complainant retains a statutory right to file the complaint directly to

the Labour Standards Tribunal. ( s. 23(1) ). [23] Proceedings before the Tribunal are quasi judicial in nature. The members have the powers of commissioners appointed under the Public Inquiries Act, R.S.N.S. 1989, c. 372 . There are requirements for notice of hearing, receiving of evidence under oath, public hearings, and maintaining a record of proceedings. see s. 17 , and ss. 23 - 27 [24] The jurisdiction of the Tribunal to provide a remedy is very broad.

Like the Director it is limited to consideration of matters which occurred “within six months preceding” the receipt of the complaint by the Director or the initiation of the inquiry by the Director. (s. 23(4)) [25] Both the Director and the Tribunal are independent of the employer and the employee. [26] The court has a role, albeit a limited one.

The relevant provisions are: 6 This Act applies notwithstanding any other law or any custom, contract or arrangement, whether made before, on or after the first day of February, 1973, but nothing in this Act affects the rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to him than his rights or benefits under this Act. [27] This

section preserves the right of an aggrieved party to pursue their rights or benefits in an alternate forum, on conditions. This right is also impacted by the following, which effectively forces the employee to choose a forum for a dispute over unpaid pay: 82 Subject to

section 83A, where the Director has received a complaint from an employee and the Director is satisfied (

a) that the employee is proceeding with or has commenced or was successful in an action for the recovery of the unpaid pay; or (

b) that the employee is bound by a collective agreement, as defined in the Trade Union Act, and that the employee could file a grievance under that agreement for the recovery of unpaid pay, he shall not entertain the application. [28] The legislative intention to otherwise limit the role of the courts in reviewing the Tribunal’s decisions is set out: 20(1) If in any proceeding before the Tribunal a question arises under this Act as to whether (

a) a person is an employer or employee; (

b) an employer or other person is doing or has done anything prohibited by this Act, the Tribunal shall decide the question and the decision or order of the Tribunal is final and conclusive and not open to question or review except as provided by subsection (2).

(2) Any party to an order or decision of the Tribunal may, within thirty days of the mailing of the order or decision, appeal to the Nova Scotia Court of Appeal on a question of law or jurisdiction. In

summary, when a party has made an application pursuant to the Labour Standards Code , that matter is to be considered according to the regime created by that legislation before proceeding to the civil courts. It is arguable that this instant matter concerns “an action for unpaid pay” as prescribed by s. 82 of the Code. To that end, Justice Duncan stated the following at paras. 40-43: [40] In my view the legislature, in enacting

section 82, preserved the right of an employee to pursue a claim for unpaid pay in an alternative forum to that provided by the Code , but not in addition thereto. Once the employee elects his/ her forum they are obligated to exhaust that remedy. The right to seek court intervention then is determined by the process selected. [41] In this case, having chosen to initiate a complaint under the Code , the plaintiff was required to rely on the dispute mechanism provided therein. Judicial review would only be engaged in accordance with

section 20 of the Code . If the claim had been initiated in the court, then it could not also be pursued with Labour Standards.

[42] In such claims, there may be tactical or substantive advantages to the choice of forum made by an aggrieved employee. It is not inthe interests of an efficient and effective system for resolving disputes, nor do I believe the legislature intended, to provide claimants withthe right to pick a forum and when dissatisfied with that result, pursue the same claim again in another forum. [43] On the circumstances of this case I conclude that the court must defer to the mechanism selected by the plaintiff under the Code topursue his claims for unpaid pay.

It is not relevant to this conclusion that the plaintiff abandoned his pursuit of the claim after theDirector’s finding. There was a mechanism to resolve this aspect of the dispute and the role of the court would only be to act inaccordance with its review authority under

section 20. Justice Duncan’s comments allow for a party to assert issue estoppel for matters considered under s. 82 for unpaid pay. This differs fromthe consideration of other issues where issue estoppel has been denied. The authority for this proposition and the test can be found in theCourt of Appeal’s decision in Deagle v Shean Co-Operative Limited , 1996 NSCA 217 , [1996] N.S.J. 504. His Lordship alsodenied issue estoppel for the other issues considered in Fredericks.

Analysis and Stay of Proceedings Unlike the facts in Fredericks, this matter has not yet been considered by the Director of Labour Standards or the Labour Board. Thus, itis unclear if the Director considers his or her jurisdiction ousted by the provisions of s. 82. It is the Director who has the jurisdiction inthis instance. In my view, the Small Claims Court lacks jurisdiction to hear this matter until the Director of Labour Standards and, if necessary, theLabour Board have determined if it has jurisdiction and if so, once the matter has been heard.

If the determination has been made by theDirector that s. 82 applies or it lacks jurisdiction for whatever reason, the matter returns to Court returns and it is heard on its merits. In other words, this matter is not over as far as the Small Claims Court is concerned. As a result, it would be unjust to dismiss the case.Instead, it is appropriate to order the matter stayed pending the outcome of the application under the Labour Standards Code. If theproceedings return to this Court, they will begin anew. The proceedings in Small Claims Court are at an early stage with little evidence heard.

Thus, I am not inclined to consider myself seizedwith jurisdiction; likewise, I do not feel I have heard sufficient evidence that would require my recusal. Nevertheless, if either counsel hasan issue with my hearing or not hearing this matter, I will consider submissions before the matter is scheduled to resume. At the conclusion of the hearing, Mr. MacDonald reserved the right to make a motion for costs. That can be addressed at a later date. Forthe benefit of counsel, I note that costs awarded under the Small Claims Court Act are limited to those found in s. 15 of the regulationsmade pursuant to that act.

As might be expected, they are not as extensive as those prescribed under the Civil Procedure Rules.

Summary As noted, the matter is stayed pending determination of the Claimant’s application pursuant to the Labour Standards Code. Order accordingly. Dated at Halifax, NS, on April 24, 2014. ______________________________

Gregg W. Knudsen, Adjudicator Original: Court File Copy: Claimant(

s) Copy: Defendant(s)