2018 QCCQ 1109, 2018 QCCQ 1109

Meir c. Mois de la photo à Montréal 2018 QCCQ 1109 COURT OF QUEBEC Small Claims Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Civil Division No: 500-32-152435-162 DATE: February 28, 2018 ______________________________________________________________________ BEFORE THE HONOURABLE ENRICO FORLINI, J.C.Q. ______________________________________________________________________ KATIA MEIR Plaintiff v.

LE MOIS DE LA PHOTO À MONTRÉAL Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] Katia Meir claims from Le Mois de la photo à Montréal (‘’MPM”) $15,000 for unpaid overtime wages and vacation pay. [ 2 ] MPM contests the claim and notably argues that (

i) the terms of her employment contract do not provide for the payment of overtime hours, (ii) since Mrs. Meir was employed as its executive director, she held a senior managerial position and therefore was not entitled to overtime pay under the Act Respecting Labour Standards (“ Labour Standards Act” ) [ R.S.Q., ch. N-1.1 ] and (iii) it never approved the overtime hours she claims to have worked. As for vacation pay, it argues that it paid all that was owed to Mrs. Meir. Questions in Issue

a) Did MPM commit a fault which deprived Mrs. Meir of the opportunity to take paid leave ( congés supplémentaires ) in lieu of overtime hours worked?

b) Did Mrs. Meir hold a senior managerial personnel position or a managerial personnel position within the meaning of the Labour Standards Act ?

c) Did MPM fail to pay Mrs. Meir vacation pay owed under the terms of the Employment Contract? Context [ 3 ] MPM is a non-profit organisation which holds a biannual international exhibition of contemporary photography and video. [ 4 ] On June 8, 2014, Mrs. Meir was hired as its executive director (‘’ directrice générale ’’) pursuant to an employment contract entered into between the parties. [1] The contract provides for an annual salary of $60,000 and is for a one year term. [ 5 ] Mrs.

Meir began working at MPM on June 9, 2014. [ 6 ] At all times relevant to these proceedings, MPM was overseen by a board of directors. It had approximately 10 employees, some of which were part time or seasonal employees, all of whom reported to Mrs. Meir. [2] [ 7 ] On November 11, 2015, MPM terminated Mrs. Meir’s Employment Contract for cause. [3] [ 8 ] On December 21, 2015, Mrs.

Meir sent MPM an email in which she claimed to have worked 316 overtime hours during the time she was employed at MPM and sought payment for these hours. [4] Based on her annual salary of $60,000, for a 35 hour work week, she claims she is entitled to $10,418.52 in overtime wages. [5] She also claims that she is entitled to $4,800 for unpaid vacation pay. [ 9 ] In total she claims she is owed $15,218.52 by MPM [6] but reduces her claim to $15,000 given the jurisdiction of the Court of Québec, Small Claims Division. Analysis and Decision

a) Did MPM commit a fault which deprived Mrs. Meir of the opportunity to take paid leave ( congés supplémentaires ) in lieu of overtime hours worked? [ 10 ] Subject to imperative rules of public order [7] , Mrs. Meir’s claim against MPM is based on the terms of her Employment Contract as well as articles 1458 and 2087 of the Civil Code of Québec (C.C.Q.) which read as follows: 1458. Every person has a duty to honour his contractual undertakings .

Where he fails in this duty, he is liable for any bodily, moral or material injury he causes to the other contracting party and is bound to make reparation for the injury; neither he nor the other party may in such a case avoid the rules governing contractual liability by opting for rules that would be more favourable to them. … 2087.

The employer is bound not only to allow the performance of the work agreed upon and to pay the remuneration fixed , but also to take any measures consistent with the nature of the work to protect the health, safety and dignity of the employee. [Underlining added.] [ 11 ] To succeed in her claim against MPM, Mrs. Meir has the burden of proving that MPM failed to honour its obligations relating to overtime pay and hours of work under the terms of the Employment Contract.

In other words, she had the burden of proving, on the balance of probabilities, that MPM committed a contractual fault. [8] [ 12 ] According to the terms of the Employment Contract, Mrs. Meir was not entitled to overtime pay in the event she performed such work. Rather, she was entitles to take paid leave ( congés supplémentaires ) in lieu of overtime work.

Section 3.2 of the contract clearly sets this out: 3.2 Temps supplémentaire Le temps supplémentaire n’est pas rémunéré, l’EMPLOYÉE pourra récupérer les heures de travail supplémentaires sur ses heures de travail régulières en acceptant des congés supplémentaires s’il y a lieu. [ 13 ] Mrs. Meir claims she worked 316 overtime hours during the 17 months she was employed as executive director of MPM. [9] She therefore claims $10,418.52 based on an hourly rate of $32.97. [ 14 ] For the reason that follow, Mrs. Meir has failed to discharge her burden of proof.

The evidence that she adduced does not establish that MPM failed to honour its obligations under the terms of the Employment Contract relating to overtime pay and hours of work. [ 15 ] Assuming that Mrs. Meir indeed worked the overtime hours which she claims to have worked, [10] she acknowledges that at no time during her period of employment did she ask her employer to provide her with paid leave for overtime hours worked.

She explains that her goal was to ask for paid leave ( congés supplémentaires ) only after January 1, 2016. [ 16 ] Ultimately, she never was able to avail herself of this opportunity because her employment was terminated in November 2015. [ 17 ] Is MPM nonetheless liable towards Mrs. Meir in that it deprived her of the opportunity to take paid leave ( congés supplémentaire

s) in lieu of overtime work when it terminated her employment? [ 18 ] Arguably, if Mrs. Meir had proved that she had been terminated without a serious reason, this may have formed the basis for a claim against MPM since in doing so, her employer would have committed a fault which deprived her of the opportunity of obtaining paid leave in lieu of overtime hours. [11] [ 19 ] This appears to have been the reasoning of the Superior Court in Orvieto v. Italy (Government of the Republic of ) [12] , a case Mrs. Meir relies on in support of her claim. In Orvieto , Mr.

Orvieto claimed he was constructively dismissed and sought damages in lieu of notice of termination plus unpaid overtime hours. [ 20 ] His employment contract stated that overtime hours were not paid but rather compensated in time, much as in the present case. [13] Mr. Orvieto argued that he never was able to take paid leave in lieu of overtime hours because he was unjustly forced to leave his employment. [ 21 ] Justice Roy of the Superior Court (as she then was), held that Mr.

Orvieto had been constructively dismissed and granted his claim for unpaid overtime hours on the following grounds: [90] L’employeur ne conteste pas que les heures ont été travaillées. C’est le comportement de l’employeur qui a forcé Orvieto à démissionner et qui l’a privé de la possibilité de compenser en temps les heures supplémentaires travaillées.

Le Tribunal estime qu’il s’agit d’un préjudice qui doit être compensé. [Underlining added] [ 22 ] The present case is easily distinguishable from Orvieto in that in Orvieto , the Superior Court concluded that the employer constructively dismissed the employee and thus committed a fault. As Justice Roy writes, this fault deprived Mr. Orvieto of the opportunity to take paid leave. [ 23 ] In the present case, Mrs. Meir has not proven that MPM committed a fault. There is no evidence to show that MPM forced Mrs.

Meir to quit or that it terminated her employment without serious reason, thereby committing a fault which caused her alleged loss, i.e .

being deprived of the opportunity to take paid leave. [ 24 ] Moreover, Mrs. Meir did not adduce evidence which contradicts MPM’s assertion that she was in fact terminated with for a serious reason and with cause. [14] [ 25 ] In conclusion, Mrs. Meir’s claim for paid overtime hours fails because she has not proven that her former employer breached its obligations under the Employment Contract.

b) Did Mrs. Meir hold a senior managerial personnel position or a managerial personnel position within the meaning of the Labour Standards Act ? [ 26 ] The Labour Standards Act is a public order statute. [15] An employee who is subject to the Act may not waive the benefits conferred on her by this statute. [16] [ 27 ] Although the Court has decided above that Mrs.

Meir has not proven her claim for unpaid overtime hours on the basis of her Employment Contract, the claim could nonetheless prevail based on the application of the Labour Standards Act . [ 28 ] Indeed, the courts have held in a few cases that a person holding a “managerial personnel” position may nonetheless be entitled to overtime pay, albeit not at rate increased by 50% as provided for in s. 55 of the Act. [17] [ 29 ] However, if the Court concludes that her position as executive director qualifies as “senior managerial personnel/ cadre supérieur ”, then Mrs.

Meir cannot rely on the Labour Standards Act as this statute does not apply to the subject matter of her claim. [ 30 ] The Labour Standards Act does not define the expression “senior managerial personnel” ( cadre supérieur ). [ 31 ] In Commission des normes du travail v. Beaulieu [18] , the Québec Court of Appeal defined as follows the notion of “senior managerial personnel”: [24] À mon avis, le cadre supérieur est celui qui participe à l’élaboration des politiques de gestion et à la planification stratégique de l’entreprise.

Il doit avoir un grand pouvoir décisionnel et non simplement coordonner les activités de l’entreprise ou appliquer les politiques de gestion élaborées par la haute direction. Les fonctions d’un cadre supérieur ne seront évidemment pas les mêmes dans une société d’assurance opérant à la grandeur du Canada et dans une petite ou moyenne entreprise, à caractère local, telle une boulangerie. C’est pourquoi il est aussi nécessaire d’examiner le contexte particulier de l’entreprise pour déterminer si une personne est ou non un cadre supérieur.

Voyons maintenant ce qu’il en est en l’espèce. [ 32 ] In the present case, Mrs. Meir was hired in June 2014 as executive director (“ directrice générale ”). According to the Employment Contract, she received a fixed annual salary of $60,000, subject to annual review. [19] According to

section 3.2 of the contract, she was not remunerated for overtime work. [ 33 ] Her job description was described as follows in the advertisement for the job opening: Tâches et responsabilités Le DG est sous la responsabilité du conseil d’administration, il travaille en conformité avec les orientations et les politiques générales du Mois de la Photo à Montréal. Le DG dirige l’ensemble des activités de l’organisation et de son événement, supervise le travail du personnel et du commissaire invité.

Le DG est responsable de la gestion administrative (planification, réalisation, opérations comptables, financières et budgétaires) et développe des projets de financement et de partenariat. Le DG supervise le développement, la mise en œuvre et le suivi d'un plan directeur et d’un plan marketing. Le DG assure la représentation du Mois de la Photo à Montréal auprès des partenaires financiers, culturels et des médias. Le DG assure le maintien et le développement des relations internationales, nationales et locales. [20] [ 34 ] Mrs.

Meir reported directly to the board of directors with whom she met on a regular basis.

Her responsibilities included supervising a staff of approximately 10 employees, of which a number of them were part time or seasonal employees. [ 35 ] She was also responsible for the following: • preparing and overseeing MPM’s annual budget, including obtaining donations and government grants and subsidies; • played a key role in defining the orientations of the organization; • oversaw all the employees, was responsible for hiring and supervising all employees, including their dismissal; • had authority to bind MPM in contracts with third parties; • was free to determine her own work schedule; • enjoyed a great deal of autonomy and had significant decision making power. [ 36 ] In the Court’s view, applying the criteria set forth by the Québec Court of Appeal in Commission des normes du travail v.

Beaulieu , and in light of the significant responsibilities held by Mrs. Meir in her position as executive director of MPM, the highest level positon in the organization, her position brought her within the notion of “senior managerial personnel”. [ 37 ] Accordingly, the Labour Standards Act does not apply to Mrs. Meir’s claim for overtime hours.

[ 38 ] In light of the Court’s conclusion, there is no need to address the issue of whether she may have qualified as managerial personnel for the purpose of the Act or whether the fact that she was paid on the basis of an annual salary precludes her from receiving pay for overtime hours.

c) Did MPM fail to pay Mrs. Meir vacation pay owed under the terms of the Employment Contract? [ 39 ] Mrs. Meir claims she is owed vacation pay of $4,800. [21] [ 40 ] The relevant portions of her Employment Contract pertaining to vacation pay are reproduced below: 3.3 Vacances annuelles L’EMPLOYÉE a droit à des vacances annuelles payées d’une durée de 4 semaines. Les dates de ce congé sont laissées à sa discrétion mais se prendront pendant l’année de référence qui se situe entre le 1 er juin et le 31 décembre.

Avant de fixer sa période de vacances, il devra, au préalable, obtenir l’accord du conseil d’administration. 3.4 Congés fériés L’EMPLOYÉE a droit aux congés fériés fixés par la Commission des normes du travail. 3.6 Congés de maladie L’EMPLOYÉE a droit à nombre 7 jours de congé de maladie non remboursables répartis sur l’année. 3.7 Congé sans solde Tout autre congé pris par l’EMPLOYÉE le sera à ses frais. Pour obtenir un tel congé, l’EMPLOYÉE soumet sa demande au conseil d’administration dans un délai d’un mois pour tout congé sans solde. [ 41 ] According to sections 3.3 and 3.4 of the Employment Contract, Mrs.

Meir is entitled to 4 weeks paid vacation in addition to the statutory 8 days of holidays. [ 42 ] Her claim for $4,800 is set out in detail in a March 22. [22] Mrs. Meir was employed by MPM from June 9, 2014 to November 11, 2015 date on which her employment was terminated with cause. [ 43 ] During her period of employment, Mrs. Meir took vacation during the 2014-2015 Christmas holiday (2 weeks less the 2 statutory holidays). [23] [ 44 ] She also was absent over a four day period in July 2015 to attend a relative’s funeral in Switzerland.

The Court is satisfied based on the evidence adduced at trial notably the witness statements of Amélie Aumont, Hugues Dugas and Yasmine Tremblay, that she did not work while away from work for this bereavement leave. [ 45 ] Mrs. Meir also took leave from work over a five day period in October 2015 when her father passed away. [ 46 ] These absences count towards the calculation of her vacation pay as the Employment Contract does not provide for time off from work to attend to deaths of relatives. [ 47 ] Based on the overall evidence, the Court is satisfied that MPM paid Mrs.

Meir all the vacation pay she was entitled to under the contract. Indeed, following the termination of her employment, she was remitted 2 cheques by MPM, firstly in the amount of $980.18 (net) [24] and a second cheque for $435.26 [25] . [ 48 ] Mrs. Meir never cashed these cheques as she claims that MPM erroneously calculated the vacation pay owed to her. The Court disagrees with her position. The Court will dismiss the portion of her claim for unpaid vacation pay.

FOR THESE REASONS, THE COURT: [ 49 ] DISMISSES Katia Meir’s application; [ 50 ] WITH COSTS of 300 $. __________________________________ ENRICO FORLINI, J.C.Q.

Dates of hearing: June 13 and October 30, 2017