BRENDA GRIFFITHS, Plaintiff - v. -, 2003 ABPC 66

Griffiths v. Bhalla, 2003 ABPC 66 Date: 2003 04 02 Docket: P0290306023 IN THE PROVINCIAL COURT OF ALBERTA BETWEEN: BRENDA GRIFFITHS, Plaintiff - and - RAJIV BHALLA OPERATING AS BHALLA LAW OFFICES, Defendant JUDGMENT OF THE HONOURABLE JUDGE D.G. INGRAM COUNSEL : Juliana Topolniski, Q.C., for the Plaintiff Robert D. Gillespie, Esq., for the Defendant [ 1 ] The Plaintiff was employed by the Defendant, a solicitor, as a legal assistant, from 1 February to June 15, 2002.

The dispute is for alleged overtime pay. [ 2 ] The Plaintiff was hired by the Defendant at a meeting between them and Barinder Pannu in January 2002, at an agreed remuneration of $2,300.00 salary per month. It was discussed that the “ office hours ” were 8:30.m. to 5 p.m. with one hour off for lunch. It was discussed that the Plaintiff could be available to work additional time if required as her children were “ older ” and she drove her own vehicle. “ Overtime ” in the sense of additional compensation for additional time was neither discussed nor contemplated at the time of hiring.

The Defendant was a sole practitioner who sublet offices together with the services of a receptionist to other professionals. The Plaintiff worked only for the Defendant doing real estate conveyancing, primarily residential. [ 3 ] There was no contract to pay overtime, express or implied. The Plaintiff says that she worked beyond the prescribed office hours and that she kept a record of her hours while in the Defendant ’ s employ. The Defendant was not aware the Plaintiff was keeping

any such record. The Plaintiff says that during her employment she approached the Defendant and raised the subject of overtime with him but was always “ put off ” ; the only agreement she was able to secure was that she could take time off in lieu of compensation for additional time worked. The Defendant ’ s evidence was that the subject of pay for overtime “ never came up ” but the Defendant agreed that the Plaintiff would be compensated for any additional hours by time off. At one stage the Plaintiff approached Pannu, who shared office space with the Defendant on a part time basis.

Pannu recalled that the Plaintiff had complained of having to work overtime. Pannu said that he told the Plaintiff she should make a record of any such time and submit it to the Plaintiff regularly every “ two weeks or so ” . The Plaintiff did not follow Pannu ’ s advice. [ 4 ] The relationship between the parties started out happily but deteriorated with the passage of the weeks to the point where each of the parties called as witnesses a number of the other persons in the office, each seeking to use the evidence against the other party.

It appears that during the relevant period there was a breakdown to the point of hostility. Pannu and Stephen Seto, both lawyers who shared office space in the Bhalla law office, corroborated that the Plaintiff worked after 5 p.m. on some occasions. Neither was happy about being involved in this dispute, but gave their evidence fairly and objectively. This was an unfortunate case marked by bitterness and acrimony on both sides. The Plaintiff attacked not only the Defendant ’ s credibility but also his character, calling evidence to show “ spiteful behaviour ” .

The Defendant, somewhat more kindly, suggested the Plaintiff ’ s story lacked credibility or at least was “ embellished ” . [ 5 ] The Plaintiff considered that she was being overworked and found her position very stressful. Communication between the parties virtually ceased and the Plaintiff resigned on June 14, at which time she gave the Defendant a detailed letter setting out the claims in this action. The demand for overtime pay came as a complete surprise to the Defendant who immediately rejected the Plaintiff ’ s demand.

Subject to minor items relating to unpaid vacation pay, a small balance owing by the Defendant to the Plaintiff for software and a small balance relating to outstanding pay, the issue between the parties relates entirely to alleged overtime. [ 6 ] The Plaintiff ’ s argument was that this is a very simple case. The Plaintiff worked for the Defendant, kept track of her hours, and, regardless of whether she quit or was fired, was entitled to be paid for all of the hours that she worked.

The Plaintiff says the overtime work was authorized when she was asked if she could work extra hours, and the Defendant acknowledged his liability later when approached about overtime by agreeing that the Plaintiff could take days off in lieu of overtime compensation. The Plaintiff points to the evidence of a number of witnesses who corroborated her presence on the premises after 5 p.m. on a number of occasions. [ 7 ] The Plaintiff referred the court to the decision of Mr. Justice M.E. Shannon in Neville Hircock v.

HFP Acoustical Consultants Ltd . et al 1998 ABQB 1045 , in support of her argument that an agreement for time-off in lieu demonstrates an agreement to compensate for overtime. In Hircock , the plaintiff employee was a management employee to whom the Employment Standards Code did not apply with respect to overtime. The court held that there was an agreement to compensate for overtime in the form of time-off.

The employment terminated at a time when there was accrued overtime and the employee was entitled to be compensated for the additional time the employee had provided to the employer as the employee could no longer take the time-off he was entitled to.

The judgment in Hircock was not based on a right to overtime pay under the Code: the compensation was based on the employee ’ s regular pay - not the 1.5 times regular pay prescribed by the Code; and, the amount of overtime was based on the hours worked in excess of the employee ’ s regular hours - not the hours in excess of 8 hours per day and 44 hours per week prescribed under the Code. The Plaintiff in this case did not seek compensation on the basis used in the Hircock case. [ 8 ] The Plaintiff also refered to the decisions of Madam Justice S.J. Greckol in Beaulne v.

Kaverit Steel 2002 ABQB 787 and Madam Justice C.L. Kenny in Gordon v. Cam Distributors Ltd. 2002 ABQB 828 ., where, on findings that the employers promised to compensate the employees for overtime, terms which became part of the employment contracts, the court held that the employees should be paid overtime calculated in accordance with the provisions of the Employment Standards Code. [ 9 ] These cases noted that prior to the addition of

section 83 to the Code in 1997, the courts in Alberta had held that the procedure set out in the Code was the only means by which rights which arose under the Code could be enforced and no action could be brought in the civil court. See Kenney vs. Browning-Ferris (1989) 1988 CanLII 3548 (AB KB) , 91 A.R. 218 and Calgary v. Cupe (1992) 1992 CanLII 6127 (AB KB) , 130 A.R. 107 . Kenny, J., held that, since the introduction of

section 83 of the Code, the Plaintiff had several options open, preferring Ostashuk v. Dental Esthetics Ltd. 1998 ABQB 544 (CanLII) , 1998 224 A.R. 28 and Kolodziejsky v. Auto Electric Service Ltd. (1999) 1999 CanLII 12264 (SK CA) , 174 D.L.R. (4th) 525 . which held that rights arising under the Code may be enforced in the civil courts, to the pre-1997 decisions. [ 10 ] The evidence in this case did not support a claim for contractual overtime and during argument it became evident that the Plaintiff was relying upon the Employment Standards Code to establish the claim.

I am not called upon in this case to decide whether a Plaintiff may pursue a claim for overtime pay in a civil court in reliance on the Code in the absence of an agreement that the Plaintiff will be paid overtime. The Defendant did not raise that as a defence and specifically declined to argue for dismissal on that basis.

Although Bealne and Gordon may be distinguishable on their facts, the Defendant does not ask that this court hold that this Plaintiff is without remedy in this court. I must therefore deal with this matter on the basis that the Plaintiff has her contractual rights against the Defendant and may enforce in this court any rights which might be conferred upon her by the Employment Standards Code and which could be enforced by proceedings under that Code. [ 11 ] The Defendant says that he neither authorized nor requested any extra or overtime work from the Plaintiff.

The subsequent employee doing the same job with the same workload was able to do all of the work without any overtime hours being required. The Defendant also points out that while the Plaintiff says she was recording overtime hours she was at the same time making loans from the Defendant. She in fact borrowed $1,000.00 on March 21 and a further $800.00 on April 2. It was also common ground that she repaid $600.00 on these outstanding loans. The Defendant points to the incongruity of an employee with overtime “ in the bank ” borrowing money and repaying it.

While these matters might be relevant and even a complete answer to a claim for overtime on a contractual basis, they are no answer to a claim under the Code, under which there is no requirement that the employer request, authorize or even be aware of the hours actually worked; “ overtime hours ” are simply hours of work in excess of the prescribed number on a daily or weekly basis. [ 12 ] The Plaintiff ’ s evidence was that she recorded her hours of work on a daily basis in a diary, the original of which was produced and a copy of which was entered as Exhibit 1.

The diary contains penciled notes of striking consistency of appearance which appear on the pages for almost every day the Plaintiff worked for the Defendant; e.g., “ 8:30 a.m. - 6 p.m., no lunch 2 hours O.T. ” (April 2). The only other entries in the diary related to “ closings ” which are simply two or three line entries showing the name (apparently of the client), an address, and file number, each entered on some specific day. The diary records nothing else.

The “ O.T. ” thus recorded is simply the excess over the “ office hours ” of 8:30 a.m. to 5 p.m. with one hour off for lunch as discussed when she was hired. The Plaintiff ’ s records indicate she worked 17.5 hours fewer than the office hours on March 14, March 22, April 18, May 3, May 31 and June 1. The defence says that the Plaintiff has to prove the case and has to show, on a balance of probabilities, that the time claimed was actually worked. The fact of additional hours of work was corroborated; the amount was not.

The Plaintiff ’ s complaint to Pannu corroborates her evidence that she worked additional hours; but it also indicates that she did not advise the Defendant as to what hours she alleged she had worked even when told to do so. It also suggests that the Plaintiff was contemplating making a claim during the period of growing tension and stress. I find that the Plaintiff worked hours in excess of the scheduled office hours.

While I confess to considerable doubt as to the accuracy of the Plaintiff ’ s records, I find, on a balance of probabilities, that she worked the hours alleged. [ 13 ] Under the Code overtime hours are hours of work in excess of 8 on each work day or in excess of 44 hours in the work week whichever is greater and, if the hours are the same, the overtime hours are those common hours. (Section 21) The Plaintiff has consistently calculated the amount of overtime as being all hours in excess of 7.5 hours per day, no doubt considering “ overtime ” to be any hours in excess of the agreed upon office hours.

The Plaintiff has also calculated all of the claim for overtime at the statutory rate of 1.5 times her wage rate, in accordance with

section 22 of the Code. If her claim were contractual, it would appear to be reasonable that “ overtime ” would be all hours in excess of 7.5 hours per day but there would not be any reason why it would be calculated at 1.5 times her wage rate. The Plaintiff understandably prefers the Code provisions to the Hircock approach.

As there was an agreement that the Plaintiff could, and did, take time off in lieu of compensation for overtime, the hours which she did not work during this period should be deducted. [ 14 ] In the result, I find that the Plaintiff is entitled to compensation for overtime pay at $23.00 per hour for a total of 63.25 hours; being the recorded 118.75 hours, less the one-half hour per day difference between Code “ overtime hours ” and regular office hours [38 hours], and the amount of time taken off for which the Plaintiff was paid as part of her salary [17.5 hours].

It was admitted that the Plaintiff was owed $310.00 for vacation pay and $317.40 due to a previous calculation error. The Plaintiff ’ s outstanding earnings total $2,082.15 and there will be judgment on the claim for that amount. I have segregated earnings from any other claims to ensure compliance with

Section 12 of the Code. [ 15 ] It was admitted that the Plaintiff had a loan balance of $1,200.00 owing to the Defendant and that the Defendant had overpaid the Plaintiff $95.00 on June 14, 2002. Against these amounts, there is a setoff of $107.00 owing by the Defendant to the Plaintiff in respect of some computer software program. As a result, the counterclaim is allowed in the amount of $1,188.00. However, under

Section 43 of the Provincial Court Act, the established counterclaim is applied in (partial) satisfaction of the claim and judgment shall therefore be entered for the Plaintiff against the Defendant in the amount of the difference, $894.15. [ 16 ] The above calculations take into account all of the matters claimed and all of the matters referred to in the counterclaim and there will therefore be judgment for the Plaintiff for $894.15 and the counterclaim will be dismissed. I invite the parties to speak to me with respect to costs if they wish.

This may be done by arranging for a telephone conference call by contacting the clerk of this court. If I am not advised that arrangements are being made for such telephone conference, I will deal with the costs of this matter in 14 days from the date of this judgment. Dated at the City of Edmonton , in the Province of Alberta this 2nd day of April , 2003.

Judge D.G. Ingram