Alex Garibay - v. -, 2014 SKPC 21

IN THE PROVINCIAL COURT OF SASKATCHEWAN CIVIL DIVISION Citation: 2014 SKPC 021 Date: February 3, 2014 File: 17/12 Location: Moose Jaw _____________________________________________________________________________ Between: Alex Garibay - and - Maris Properties Ltd. and St. Regis Group Inc. Mr. Robert Fielding For the Plaintiff Mr. Jordan Hogeweide For the Defendants _____________________________________________________________________________ JUDGMENT D.

KOVATCH , J _____________________________________________________________________________ BACKGROUND [ 1 ] The plaintiff is a citizen of the Philippines who was brought to Canada by the defendants under an agreement that the defendants executed with the Foreign Worker Recruitment Branch of the Government of Canada. The agreement was executed in August of 2007 in Edmonton, Alberta. The agreement expressly provides that employment is for 24 months, for eight hours per day and

forty hours per week. The agreement and approval also expressly provides: Pay not less than $17.00 per hour. The employer must maintain an employer/employee relationship meaning the employee may not be employed as a subcontractor. [ 2 ] It appears that Mr. Garibay was brought to Edmonton and upon his arrival there, was promptly moved to Moose Jaw, to manage certain properties within Moose Jaw. Effective February 1, 2009, the plaintiff was required to execute a further contract with the defendants.

This contract provided that he would be paid $12.00 per hour. [ 3 ] After the plaintiff terminated his employment with the defendants, he made application to the Saskatchewan Labour Standards Branch for a wage assessment against the defendants. A Saskatchewan Labour Standards officer conducted an audit and assessment. Under this audit and assessment, the plaintiff met with some but limited success against the defendants. Under the audit and assessment, the Saskatchewan Labour Standards Branch determined that the defendants owed the plaintiff $2,550.25 in back wages.

This assessment was based upon the Saskatchewan employment contract in the amount of $12.00 per hour and determined that these wages had been improperly withheld from the plaintiff pursuant to that employment contract. The Saskatchewan Labour Standards officer further stated that he could not enforce the original employment contract for $17.00 per hour, as that contract was made in the Province of Alberta.

He indicated that the $17.00 per hour contract would have to be enforced within the Province of Alberta. [ 4 ] The plaintiff subsequently made application to an Alberta Labour Standards officer to have the $17.00 per hour contract enforced.

The Alberta Employment Standards Branch wrote to him stating: This is to confirm as a follow up to our telephone conversation earlier this month that your complaint cannot be further investigated by Employment Standards Alberta, given that the work was performed in Saskatchewan and thereby is relevant to the employment legislation and enforcement in that province. [ 5 ] Meanwhile, the defendants paid the full amount of The Saskatchewan Labour Standards Act assessment, $2,550.25 to the Saskatchewan Labour Standards Branch in trust for the plaintiff. In due course, that sum was turned over to the plaintiff.

The plaintiff did not make any appeal of the assessment done by the Saskatchewan Labour Standards Branch. [ 6 ] After having approached the Government of Canada in an attempt to have them enforce the agreement pursuant to which the plaintiff was brought into the country, and having approached the Alberta and Saskatchewan Labour Standards Branches, all to no avail, the plaintiff then brought this action in the Saskatchewan Provincial Court.

The defendants now have a motion before this Court asking me to determine that the issues raised in this lawsuit are res judicata , and asking me to dismiss the plaintiff’s claim. DECISION AND ANALYSIS [ 7 ] Very unfortunately and with great reluctance, I am required to conclude that the subject matter of this lawsuit is res judicata , and required to dismiss the plaintiff’s claim. [ 8 ] In my view, this case is a microcosm of everything that is wrong with the Foreign Worker’s Program and all of the criticism of that program made by labour and immigration groups.

As I understand the situation, those groups were critical of the Foreign Worker’s Program because it allowed Canadian salaries to be undercut by bringing in foreign workers and employing them at a greatly reduced rate. In addition, it allowed for the abuse of the foreign workers by the unilateral reduction of their wages, once brought to this country, and the lack of any supervision and enforcement mechanism. All of these things have occurred in this case.

What’s more, matters have been grossly mishandled by the Saskatchewan Labour Standards Branch, where, in my view, the department made a number of legal errors and, in effect, justified and validated illegal and inappropriate actions taken by the employers. [ 9 ] It seems to me that it is a quite well-known fact of life that there are many large national and multinational corporations

[9] It seems to me that it is a quite well-known fact of life that there are many large national and multinational corporationscarrying on business across the country. These large employers frequently move their employees across the country and have them dowork in other provinces. When this happens, the employee’s employment contract isn’t terminated. The employer and employee do notstart anew and negotiate a completely new employment contract.

To the contrary, the existing employment contract remains in full forceand effect when the individual is moved to Saskatchewan, and is thereafter enforced under the laws of the Province of Saskatchewan. Itseems to me that this is expressly provided for in various provisions of the Act, including s. 45, s. 45.1 and s. 72. In short, in my view,Saskatchewan Labour Standards got it wrong and Alberta Employment Standards Branch got it right. The fact that the initialemployment contract was executed in Edmonton, and a subsequent contract executed in Saskatchewan are irrelevant.

The fact is that theplaintiff was employed in Saskatchewan pursuant to those employment contracts, and as a result those employment contracts shouldhave been interpreted and properly enforced here in Saskatchewan under Saskatchewan law. [10] In addition, agreements were made between the employers and the Government of Canada. Those agreements were executedpursuant to legislation enacted by the Parliament of Canada.

As a matter of constitutional law, it seems to me highly doubtful that theProvince of Saskatchewan could enact legislation or allow for the negotiation of an amended employment contract that is clearlycontrary to the provisions of the agreement reached under the federal jurisdiction. In my view, Saskatchewan should have interpretedand enforced the agreements reached by the Federal Government.

It seems to me that this is expressly provided for in provisions such ass. 72 and s. 78 of The Saskatchewan Labour Standards Act. [11] In summation and conclusion on this part, in my view, the Saskatchewan Labour Standards Branch was legally in error indeclining to enforce the $17.00 per hour agreement executed with federal authorities and enforcing a $12.00 per hour employmentagreement because that agreement was executed in the Province of Saskatchewan.

Unfortunately, it is also a fact however, that anadjudication of these matters was made by the Saskatchewan Labour Standards Branch, and that adjudication has never been appealed orset aside. As a result, that adjudication establishes the defendants’ plea of res judicata and bars this Court from further dealing with theplaintiff’s lawsuit. [12] In the case of Grandview v. Doering (1976), (SCC), 2 S.C.R. 621, the Court set out the requirements forcause of action estoppel.

It stated that in order for a matter to be determined to be res judicata and the cause of action stopped, thefollowing requirements must be met: (1) there must be a final decision by a competent jurisdiction; (2) the parties to the subsequent litigation must have been the same parties to or privy with the parties to the initial action; (3) the cause of action in the prior action must not be separate and distinct from the action in the subsequent litigation; and (4) the basis of the cause of action in the subsequent action must have been argued or such that it could have been argued in the prioraction if the parties had exercised reasonable diligence. [13] The Saskatchewan Labour Standards Act allows an employee to pursue a claim for wages through the Labour StandardsBranch or through the courts.

However, it does not allow pursuit of wages through both the Labour Standards Branch and the courts. [14] In this case, there was no appeal of the assessment done by the Labour Standards Branch. Under s. 62.4, the director couldthen file a certificate with the Court of Queen’s Bench, and that certificate would become enforceable as a judgment of the Court ofQueen’s Bench. If there was an appeal of that wage assessment, an adjudicator would be appointed.

The adjudicator’s decision, if notappealed, could then be filed with the Court of Queen’s Bench and would be enforceable as a judgment of the Court of Queen’s Bench. Alternatively, there could be an appeal of the adjudicator’s decision to the Court of Queen’s Bench and subsequently to the Court ofAppeal. [15] All of this says to me that the Saskatchewan Labour Standards Branch is a competent authority and has reached a judicialdetermination of this matter.

It cannot be the case that a decision reached under The Labour Standards Act would be filed by the Courtof Queen’s Bench, and become a judgment of the Court of Queen’s Bench, and this Court could then hear a lawsuit and issue a judgmentthat might be then in conflict with a registered judgment in the Court of Queen’s Bench. As a result, in this case there has been a finaldetermination by a competent judicial authority. [16] The parties to the dispute or litigation before the Labour Standards Branch were the same. They are the plaintiff and

defendants in this matter. [ 17 ] The cause of action as raised with Saskatchewan Labour Standards and this Court are the same. The cause of action is based upon the employment relationship and alleges unpaid wages or salary. [ 18 ] The basis of the cause of action was the same as well. The argument raised before the Labour Standards Branch was that the agreements reached with the Federal Government authorities ought to be enforced. When the Labour Standards officer reached the wrong conclusion, that decision should have been appealed.

It was not open to the plaintiff to allow that decision to stand, and then to commence this new action in this Court. [ 19 ] As a result, while I completely disapprove of the defendants’ actions, I have no alternative but to determine that the issues raised in this lawsuit are res judicata . In my view, the essence of the determination of res judicata is this. The Court determines that because a matter is res judicata , it is without jurisdiction to further deal with the lawsuit or to provide relief requested in that lawsuit.

The plaintiff’s action must be dismissed. [ 20 ] In most cases, where I was allowing a defendant’s motion for dismissal of action, I would be inclined to make a significant order for costs. However, because I so dislike the defendants’ conduct in this matter, I decline to do so. The plaintiff’s action is dismissed without costs. [ 21 ] Dated at the City of Moose Jaw, in the Province of Saskatchewan this 3 rd day of February, 2014. D. Kovatch, J