Fancy Field Service (2007) Ltd. - v - Robert Dewey v. Director of Employment Standards, 2016 SKPC 074

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2016 SKPC 074 Date: June 18, 2016 File: 590/2014 Location: Saskatoon _____________________________________________________________________________ Between: Fancy Field Service

(2007) Ltd. - v - Robert Dewey and Director of Employment Standards Self Represented For the Plaintiff Stuart Busse, Q.C. Defendant Lee Anne Schienbien Intervener _____________________________________________________________________________ JUDGMENT K. BAZIN , J _____________________________________________________________________________ [ 1 ] This matter involves an allegation that an employee improperly used his fuel card for the unauthorized purchase of gasoline for personal use.

The plaintiff also alleges that there was a verbal agreement reached between the plaintiff and defendant that the defendant owed the plaintiff money for these purchases and the plaintiff could deduct from the defendant’s wages reimbursement for the personal gasoline purchases from the third-party Co-op.

[ 2 ] The director of employment standards applied for, and obtained intervenor status to address the claim by the plaintiff that it is entitled to claim and be awarded damages for the following:

a) Administrative certificate fee of $500.00 for filing the decision of the adjudicator with the Queen’s Bench court.

b) Legal fees paid by the plaintiff for the employment standards appeal.

c) To deduct from the defendant employee’s wage, monies owing to the plaintiff employer, on the basis that there was a binding agreement to the effect between the plaintiff and defendant. Facts [ 3 ] The plaintiff’s claim is that the defendant purchased, gasoline for his personal use, on a company fuel card, without the authorization of the plaintiff. The defendant rejects this assertion and states that any purchases were authorized by the plaintiff and were used for fuel in his truck when his truck was being used for the benefit of the employer.

This would be for either transporting the defendant, or the defendant and others to work sites or the use of the truck for the benefit of the employer. [ 4 ] Mr. Douglas Long, the president of the plaintiff corporation, testified that in January 2011, the company had a slow period, so Mr. Long reviewed the gasoline purchases of the defendant from November 27, 2008 to December 31, 2010. When asked why he did not go through the records earlier Mr.

Long stated “business was good, no need to tighten their belt". [ 5 ] There is no evidence of any other employee’s records being reviewed and there is no evidence regarding whether any other employee had gasoline purchases on their fuel cards The plaintiff corporation only had diesel fueled equipment. [ 6 ] Douglas Long testified that he discussed these purchases with the defendant in January 2011, and the defendant stated "if you don't think I am entitled to it, take it off my pay cheque". [ 7 ] The documentation showing the Co-op gasoline purchases, in 2011, submitted as exhibits by the Plaintiff, add up to the amounts deducted from the defendant Mr.

Dewey’s wages. Although in the February 28, 2011 Co-op statement, there are two diesel fuel amounts included. Gasoline purchases by Mr. Dewey for February to May 2011 are deducted from Mr. Dewey’s wages for months ending March to June 2011. Although we do not have the gasoline statement from the Co-op for January 2011, I infer that the sum of $647.00 deducted from Mr. Dewey’s cheque is for January gasoline purchases, as indicated on the cheque stub. [ 8 ] Mr. Long stated that no further deductions for gasoline were made after June 30 th 2011, as no further cheques were issued for wages.

The defendant still worked for the plaintiff from July 2011 to 2013, however the defendant worked for the corporation under the table, and no cheques were issued. As Mr. Dewey submitted a claim for wages to Mr. Long in November of 2013, I find that he worked for the Plaintiff until October 2013. [ 9 ] In July 2013 the plaintiff corporation was winding down. [ 10 ] The plaintiff submitted a

summary of the gasoline purchases from November 27, 2008 to December 30, 2010. These totaled $8,068.11. However Mr. Long testified that this amount was actually never calculated until the Labour Board adjudication. The appeal was dated October 24, 2014. At the time of the alleged agreements in January 2011 or November 2013, this number was not known.

The plaintiff stated that when they made the agreement in November 2013 he used a rounded number of $5000.00 and that neither he nor the defendant had any actual calculations as to what the plaintiff said was owed for gas purchases and what the defendant claimed was owed for wages. Mr. Long stated they rounded it off to $5,000.00 each and called it even. As to the actual claim for gasoline Mr. Long stated that the amount of $8,068.11 includes an estimate for three missing months. He took an average and came up with $1,254.93, which he included in the $8,068.11 amount.

I find there is no basis for this claim and as such the documented claim for gas prior to January 2011 is $6,813.18. [ 11 ] The issues to be determined are as follows: 1. Are there any amounts of the receipted gasoline purchases on the fuel card held by the Defendant, owed to the Plaintiff? 2. Was there an agreement between the Plaintiff employer and the Defendant employee that the Defendant agreed with the Plaintiff to have deducted from his wages monies owing to the Plaintiff for the purchase of gasoline? 3.

If there was an agreement, what effect, if any, does The Saskatchewan Employment Act have on the agreement? 4. Is the Plaintiff’s claim barred by The Limitations Act

Chapter L-16.1? Issue 1 Are there any amounts of the receipted gasoline purchases on the fuel card held by the defendant, owed to the Plaintiff?

[ 12 ] I find that there were some personal gasoline purchases by the defendant which was charged to the Plaintiff’s card. The defendant admitted that there might be some, but not very much, in cross-examination. I do not accept the defendant’s evidence that it was all for work purposes, nor his inference by his testimony that some unknown third party could have made the purchases as the card was sometimes left in his unlocked truck. The gasoline purchases were over a three year period, and they were made monthly.

Although it is only an estimate, I find that personal use of gasoline would amount to 10% of the gasoline purchased by Mr. Dewey, being $680.00. [ 13 ] I accept the Defendant’s evidence that the majority of the purchases were for the benefit of the Plaintiff, in that he was using his truck to drive himself and other employees to various job sites from time to time. I find that the majority of gasoline purchases prior to January 2011 were part of the employment benefits given by the Plaintiff to Mr.

Dewey in that he could charge to the company gasoline used in his vehicles when they were being used to go to job sites and attend to company business. [ 14 ] I make this finding on the evidence of Mr. Robert Long. He testified that he had not reviewed the records for personal fuel use for over three years, and the only reason he did was that things were slower and that the company had to tighten its belt. Since the company never had any gasoline fueled vehicles it would have been instantly obvious to the plaintiff that any gasoline purchases on its fuel cards were not for their equipment.

From this I infer that there were benefits that the employees had, including fuel paid by the company for Mr. Dewey to get to the job sites, that had to be scaled back. [ 15 ] The fact that Mr. Long did not even add up the gasoline purchases by Mr. Dewey until the Labour Board applications in 2014, is further support that the Plaintiff, as a benefit given to Mr. Dewey prior to January 2011, allowed gasoline purchases for work related use of Mr. Dewey’s truck. [ 16 ] Mr. Long also testified that when asked about the gasoline purchases Mr.

Dewey stated “well if you do not think I am entitled to it you can deduct it from my cheque”. From this I infer that Mr. Dewey felt he was entitled, as part of his employment, to the gasoline purchases and I find that the defendant agreed to a change in his employment benefits as to the gasoline purchases going forward. Gasoline purchases for Mr. Dewey’s vehicle in the future would be paid back and they reached an agreement that the Plaintiff could deduct from Mr. Dewey’s wages any gasoline purchases from his wages. I find that the amount that was eventually deducted from Mr.

Dewey’s wages for the gasoline going forward was $1,553.01, as testified to by Mr. Long. I do not accept the evidence of Mr. Dewey that he never knew about these deductions, as they are shown on his pay stubs and I find it difficult to accept that he did not know that his pay cheques were reduced by the amounts for his gasoline purchases. [ 17 ] I find that when Mr. Dewey and Mr. Long talked about gasoline purchases in January of 2011, they were talking about going forward, not retroactive pay for past gasoline purchases. This is based on Mr.

Long’s testimony that the company was tightening its belt in January of 2011 and reviewing expenses. It is also based on the facts as outlined in this judgment that the gasoline purchases after January 2011 match the deductions for gasoline taken off Mr. Dewey’s cheques. In addition Mr. Long and the Plaintiff never knew what the gasoline purchases prior to January 2011 added up to until the Labour Board hearings in 2014. The plaintiff did not take away the fuel card from Mr. Dewey, but continued to let him use it even for gasoline purchases. However, after January 2011Mr.

Dewey did not receive this benefit and had to reimburse the Plaintiff. [ 18 ] I find that the amount of gasoline purchases agreed to, by Mr. Dewey as to the funds being deducted from his wages, is $1,553.01, as this was the amount deducted from Mr. Dewey’s wages. This is stopped when he formally stops working for the company. No further deductions are made when he is working under the table for the corporation for the period between July 2011 until approximately November 2013. As there are no records provided for this period it is unclear if Mr.

Dewey continued to use his fuel card and had amounts deducted when working under the table for the Plaintiff. Mr. Long testified that no further amounts were deducted. I infer he was referring to any amounts owing for the amounts of gasoline purchases for the period before January 2011. In his testimony when he referred to partial payment of about $1,500 towards gasoline purchases he implied this was for gas before January 2011. In argument he relied on these payments as part payment to extend the limitation period on the pre January 2011 gasoline purchases.

This is not supported by the fuel records and it is clear that any payment by way of deductions from the Defendant’s wages is for purchasers after January 2011. [ 19 ] As to a second agreement or an acknowledgment of any debt owed to the Plaintiff by the Defendant, the issue of any monies owing for gasoline purchases came up again in November 2013 when Mr. Dewey submits his wage book requesting to be paid. I find that this was when Mr. Long raised the issue of payment for personal use gasoline prior to January 2011, or that they had a previous agreement that Mr.

Dewey would reimburse the Plaintiff for this gasoline. [ 20 ] Sharon Long’s evidence is not helpful as to a second agreement or an acknowledgment of a debt as she was unable to identify a year or month as to when she alleges she heard Mr. Dewey say he would have to get a loan to pay back the gasoline debt. She also says no dollar amounts were discussed at this time. [ 21 ] I find that there is no second agreement reached, nor an acknowledgement of debt in November 2013, that Mr. Dewey would pay anything to the plaintiff. I find that when Mr. Dewey presented his hours for wages, Mr.

Long again mentioned repayment for gasoline, and that Mr. Dewey owed him money. I accept the evidence of Mr. Dewey and Janice Dewey, that at the November meeting Mr. Dewey presented his wages and when Mr. Long talked about Mr. Dewey owing him money, Mr. and Mrs. Dewey simply walked out. They did not discuss or agree to anything being owed to the Plaintiff. Mr. Dewey was upset with Mr. Long for making this claim and not agreeing to pay him his wages. They did not acknowledge any previous agreement. As to any debt owing by Mr.

Dewey to the Plaintiff, the fact that there was no discussion is supported by the Plaintiff’s witness Bradley Long who said there was no discussion, and in cross-examination stated he only recalled a discussion about wages. He said Mr. Dewey basically turned and walked out the door. [ 22 ] I find that the only agreement to deduct monies from Mr. Dewey’s wages was in January 2011 and it ended with the last deduction from Mr. Dewey’s wages as indicated on the pay stub dated June 2011. This agreement was for gasoline purchases going forward.

Issue 2 Was there an agreement between the Plaintiff employer and the Defendant employee that the Defendant agreed with the Plaintiff

to have deducted from his wages monies owing to the Plaintiff for the purchase of gasoline? [ 23 ] For the reasons outlined in Issue #1, I find that there was an agreement in January 2011 for the Plaintiff to deduct from the Defendant’s wages the cost of gasoline purchased on the Plaintiff’s fuel card. This was an agreement as to gasoline purchases from 2011 onward. [ 24 ] There was no further agreement, nor any further acknowledgement by the Defendant that any funds were owing to the Plaintiff. There were no further payments to the Plaintiff by the Defendant as to any gasoline debt.

Issue 3 If there was an agreement, what effect, if any does The Saskatchewan Employment Act have on the agreement? [ 25 ] The intervener, the Director of Employment Standards, argues that any agreement to deduct a debt owing by the employee to the employer, pursuant to s. 2-6 of The Saskatchewan Employment Act is of no force and effect if it deprives an employee of a benefit of the Act . They refer to s. 2-6 and s. 2-36 as follows; Agreements not to deprive employees of benefits of

Part 2 - 6 No provision of any agreement has any force or effect if it deprives an employee of any right, power, privilege or other benefit provided by this Part. Deductions and special clothing 2-36

(1) Except as permitted or required pursuant to this Act , any other Act of the Parliament of Canada, an employer shall not, directly or indirectly: (

a) make any deductions from the wages that would be otherwise payable to the employee; (

b) require that any portion of the wages be spent in a particular manner; or (

c) require an employee to return to the employer the whole or any part of any wages paid. 2) In addition to deductions permitted or required pursuant to law, an employer may deduct from an employee’s wages: (

a) employee contributions to pension plans or registered retirement savings plans; (

b) employee contributions to other benefit plans; (

c) charitable donations voluntarily made by the employee; (

d) voluntary contributions by the employee to savings plans or the purchase of bonds; (

e) initiation fees, dues and assessments to a union that is the bargaining agent for the employee; (

f) voluntary employee purchases from the employer of any goods, services or merchandise; and (

g) deductions for purposes or categories of purposes that are specified pursuant to subsection (3). [ 26 ] The argument is that any agreement to deduct for gasoline purchased from the Co-op on the Plaintiff’s fuel card is not allowed and such agreement is of no force and effect. They argue that s.2-36(

f) does not apply as an exemption as the fuel is not being purchased from the employer.

[ 27 ] Applying the law as set out in The Saskatchewan Employment Act , I find that the agreement for the Plaintiff to deduct from the defendant’s wages the gasoline fuel that the defendant purchased from the Co-op, from January 2011 forward, is of no force and effect pursuant to s.2-6. The agreement deprived the defendant of his wages and the deduction was not allowed pursuant to s. 2-36. Specifically s.2-36(

f) does not apply as the purchases were from a third party Co-op Fuel Card Lock Station and not the Plaintiff. [ 28 ] Although I found that there was no agreement between the parties as to repaying any fuel purchases prior to January 2011, and no agreement that they were to be deducted from Mr. Dewey’s wages he claimed owing in November of 2013, such an agreement to deduct funds from Mr. Dewey’s wages, for gasoline purchased before January 2011 would equally be of no force and effect pursuant to The Saskatchewan Employment Act . Issue #4 Is the Plaintiff’s claim barred by The Limitations Act

Chapter L-16.1? [ 29 ] The limitation period applicable to this action is that the action must commence two years from the date of the discovery of the claim, pursuant to s.5 and s.6 of The Limitations Act

Chapter L-16.1. Extension of time by part payment or acknowledgement is set out in s.11. The sections are as follows; Basic Limitation Period 5 Unless otherwise provided in this Act , no proceedings shall be commenced with respect to a claim after two years from the day on which the claim is discovered. 2004, c. L-16.1, s.5 . Discovery of claim 6

(1) Unless otherwise provided in this Act and subject to subsection (2), a claim is discovered on the day on which the claimant first knew or in the circumstances ought to have known: (

a) that the injury, loss or damage had occurred; (

b) that the injury, loss or damage appeared to have been caused by or contributed to by

an act or omission that is the subject of the claim; (

c) that the act or omission that is the subject of the claim appeared to be that of the person against whom the claim is made; and (

d) that, having regard to the nature of the injury, loss or damage, a proceeding would be an appropriate means to seek to remedy it.

(2) A claimant is presumed to have known of the matters mentioned in clauses (1)(

a) to (

d) on the day on which the act or omission on which the claim is based took place, unless the contrary is proved. 2004, c. L-16.1, s. 6 Acknowledgments and part payments 11

(1) If a person acknowledges the existence of a claim for payment of a debt, for the recovery of property, for the enforcement of a charge on property or for relief from enforcement of a charge on property, the act or omission on which the claim is based is deemed to have taken place on the day on which the acknowledgment was made.

(2) For the purposes of subsection (1), an acknowledgment: (a)subject to subsections (3), (7) and (8), must be in writing and must be signed by the person making it or the person’s agent; and (b)must be made, before the expiry of the limitation period applicable to the claim, to the claimant, the claimant’s agent, a receiver, a receiver-manager or an official receiver or trustee acting pursuant to the Bankruptcy and Insolvency Act (Canada).

(3) In the case of a claim for payment of a debt, part payment of the debt by the person against whom the claim is made or by the person’s agent is deemed for the purposes of subsection (1) to be an acknowledgment. (4) Subsection (1) applies to an acknowledgment of the existence of a claim for payment of a debt even though the person making the acknowledgment refuses or does not promise to pay the debt or the balance of the debt still owing.

(5) An acknowledgment of the existence of a claim for interest is deemed for the purposes of subsection (1) to be an acknowledgment of a claim for the principal and for interest falling due after the acknowledgment is made.

(6) An acknowledgment of the existence of a claim to realize on or redeem collateral pursuant to a security agreement or to recover money with respect to the collateral is deemed for the purposes of subsection (1) to be an acknowledgment by any other person who later comes into possession of the collateral.

(7) A debtor’s performance of an obligation pursuant to a security agreement is deemed for the purposes of subsection (1) to be an acknowledgment by the debtor of the existence of a claim by the creditor for realization on the collateral pursuant to the agreement.

(8) A creditor’s acceptance of a debtor’s payment or performance of an obligation pursuant to a security agreement is deemed for the purposes of subsection (1) to be an acknowledgment by the creditor of the existence of a claim by the debtor for redemption of the collateral pursuant to the agreement.

(9) An acknowledgment by a trustee is deemed for the purpose of subsection (1) to be an acknowledgment by any other person who is or who later becomes a trustee of the same trust.

(10) An acknowledgment of the existence of a claim to recover or enforce an equitable interest in property by a person in possession of it is deemed for the purposes of subsection (1) to be an acknowledgment by any other person who later comes into possession of it. [ 30 ] The Plaintiff discovered that Mr. Dewey had charged some personal gasoline on the Plaintiff’s fuel card in January of 2011. No date is given but it could be no later than January 31, 2011. The amount I allocated to personal use is $680.00. [ 31 ] The plaintiff’s claim was commenced on December 22 nd 2014. This is over the two year limit.

I found that there was no agreement to pay anything as to any funds claimed by the Plaintiff prior to January 2011, nor were any of the payments of $1,553.01, made in 2011 related to any debt claimed by the Plaintiff for pre January 2011 gasoline purchases. [ 32 ] As such I find that there were no acknowledgments of debt in writing, or inferred by the legislation or part payment under s. 11 that would extend the limitation period for a claim against the Defendant for the personal use of gasoline prior to January 2011, which I had found to be $680.00. [ 33 ] Although I found that there was no agreement in November of 2014 to pay any funds to the Plaintiff, if there was such a verbal agreement as alleged by the Plaintiff, the agreement would be outside of the two year limitation period and such an agreement would not extend the limitation period as it was not in writing, and it would run afoul of s. 11(2)(b).

Conclusion [ 34 ] From the forgoing analysis the Plaintiff has not proven its claim other than the sum of $680.00 owing for personal gasoline usage by the defendant prior to January 2011. This claim however is barred by The Limitations Act . [ 35 ] The Plaintiff claimed damages for the costs he paid for the Employment Standards appeal of the adjudicator’s award of wages to the defendant, under The Saskatchewan Employment Act and legal fees he paid for that appeal. These items are not claimable items in this action and would be the subject of costs awarded in the employment standards decisions.

Those actions have their own appeal mechanisms, under s.4-9 of The Saskatchewan Employment Act , which is an appeal to the Court of Appeal and this Court has no jurisdiction to overturn those decisions, or award costs related to those decisions. [ 36 ] The Plaintiff’s claim is dismissed. [ 37 ] Dated this 18th day of June, A.D. 2016. ___________________________ K. Bazin, J ((2)