Scheffler v Mourits Trucking Ltd., 2023 ABKB 139

Court of King’s Bench of Alberta Citation: Scheffler v Mourits Trucking Ltd., 2023 ABKB 139 Date: 20230310 Docket: 2003 05886 Registry: Edmonton Between: Roger Scheffler Plaintiff / Respondent - and - Mourits Trucking Ltd. Defendant / Appellant Corrected judgment: A corrigendum was issued on September 29, 2023; the corrections have been made to the text and the corrigendum is appended to this judgment. _______________________________________________________ Endorsement of the Honourable Justice J.S. Little _______________________________________________________ I. Introduction

[ 1 ] Mourits Trucking Ltd. ("Mourits") appeals the Jan 11/22 decision of Applications Judge Schlosser granting

summary judgment in favour of Mr. Scheffler for $ 22,648.50 plus costs. [ 2 ] Mr. Scheffler was a truck driver for Mourits and sued for overtime. Judge Schlosser’s reasons are brief, but from the transcript, it is clear that he accepted the following facts: (

a) Mr. Scheffler’s hourly wage rate was $21. (

b) He worked 719 overtime hours calculated in accordance with the Employment Standards Code (the Code). (

c) The Code prescribes an overtime rate of time and half. At $31.50 per hour for 719 hours, the math worked out to $22,648.50. (

d) There was no written agreement respecting overtime that might have taken the matter outside of what is otherwise prescribed by the Code. [ 3 ] It is also clear that he rejected the argument that the Code did not apply because Mr. Scheffler’s work occasionally took him out of province. [ 4 ] It is also clear that he rejected the argument by Mourits that there was some kind of set off of a bonus against what would otherwise be overtime.

He notes at page 9 of the transcript that the employer cannot be heard to say both that it does not pay overtime and that the bonus takes care of overtime. [ 5 ] The standard of review on an appeal from an applications judge is correctness. On the information that Judge Schlosser had before him, this standard would require that I dismiss the appeal. [ 6 ] But an appeal from an Applications Judge is a hearing de novo . In this application, counsel brought further evidence and different arguments from those raised before Judge Schlosser. II. Analysis A.

Issue One: Should the supplemental affidavit of Hans Mourits filed April 7/22 be admitted? [ 7 ] The respondent argues that this affidavit brings into question the credibility of the appellant. I did not find that to be the case on first reading, but during oral argument it became clear from Mr. Mourits’s affidavit that Mr. Scheffler had been paid for his 719 hours. He was, however, paid only straight time at $21 per hour as opposed to his claimed time and a half overtime rate of $31.50.

Therefore, without more, his claim would be reduced to $7,549.50 (719 hours x $10.50 = $7,549.50). [ 8 ] On the basis that this information is clearly material to the claim, it was admitted. [ 9 ] Accepting that the bar for admission of new evidence on this type of application is low, I will admit the supplemental affidavit. B. Issue Two: Is this an appropriate case for

summary judgment? [ 10 ] The answer can only be yes. [ 11 ] The respondent argues that the new affidavit shows a conflict in the evidence about the termination date of Mr. Scheffler’s employment. Mr. Mourits, however, is vague on that issue. He states that he “is confident that Mr. Scheffler was terminated at the start of the new year in 2020. To the best of my recollection, the date on which Mr. Scheffler was terminated was January 2, 2020.” [ 12 ] Mr. Scheffler, on the other hand, deposes that his employment ceased on December 23/19.

There is no vagueness there. [ 13 ] I find no conflict in the evidence, just a difference between certainty and uncertainty. Given the inconsequential nature of any discrepancy, I accept the certainty of Mr. Scheffler’s evidence. In any event, for the reasons that follow, the limit in the Code to overtime pay for six months preceding termination does not apply here. [ 14 ] There are no facts that could be better dealt with by oral evidence, and the legal issues are straightforward. The dollar value of the claim is low, and a just and expedient decision can be made in a

summary judgment application. The Weir-Jones test is met. C. Issue Three: Is Mr. Scheffler’s claim limited to overtime claimed within the six months preceding termination of his employment? [ 15 ] This issue was not raised before Applications Judge Schlosser. [ 16 ] The authority cited by Mr. Maxton is that, because the Code limits a claim of overtime pay to six months preceding termination of employment, that, too, is the case if the claim is made in a civil action as opposed to a claim made to the Director under the Code. [ 17 ] On this point, I have to differ with several of my colleagues.

[18] Beginning with Kenney v Browning-Ferris Industries Ltd., (ABQB), a case where an employee sued forovertime pay, Justice Conrad, as she then was, held that an employee “is limited to his rights under the Employment Standards Act andcannot enforce his statutory rights in the courts.” (para 59). She did so on the basis that, while the statute preserved existing civilremedies, such as the right to severance pay on termination without cause, overtime was a creation of statute only. [19] Justice Lee in Riviera Hotel

(1991) Corporation v Samborsky, 2006 ABQB 222, followed Kenney in part. He, too, found thatthere was no common law entitlement to overtime but held that an employee who successfully sued for overtime in Provincial Court wasentitled only to six months overtime as a result of there being a six month maximum in the Employment Standards Code. [20] More recently in Walker v Alberta Communication Cable Services Inc., 2018 ABPC 46, Judge Haymour, in obiter, followedRawlins, J’s reasons in Fedor that the Code was the only source of entitlement to overtime pay, unlike notice or pay in lieu which arecommon law remedies.

He therefore found that the six month limitation in the Code applied whether the remedy was sought within orwithout the Code, though that determination had no bearing on the issue he needed to decide. [21] I conclude, however, that while the Code establishes the right to overtime, it would be inequitable to constrain an employee’srecovery to the six month limit under the Code when an employee uses conventional litigation instead of the Code.

In my view, theremedies and their restrictions prescribed under the Code apply only when an employee engages the resources and collection mechanismavailable under the Code. [22] Section 90(3) of the Code restricts an employee's claim for overtime to six months, but section 90(1) states that that relates to"[a]n order made under this Division". Mr. Scheffler has not made this claim under that Division and therefore has not employed theresources and collection mechanism under the Code. D. Issue Four: Should Mr.

Scheffler’s overtime entitlement be reduced by a $2288.00set-off? [23] Independent of his overtime entitlement, Mr. Scheffler received a bonus. The amount of one of those bonuses was reduced by$2288.00 which represented an invoice the employer paid on Mr. Scheffler’s behalf. Accordingly, the employer has been compensatedfor that amount and a further adjustment would be double compensation. III. Conclusion [24] The judgment of Applications Judge Schlosser is varied from $22,648.50 to $7,549.50. Heard on the 11th day of January, 2023. Written submissions received on the 24th day of February, 2023.

Dated at Edmonton, Alberta this 10th day of March, 2023. J.S. Little J.C.K.B.A. Appearances: Rostyk Sadownik Wheatley Sadownik Law Office for the Plaintiff/Respondent Taylor Maxton Stillman LLP for the Defendant/Appellant

_______________________________________________________ Corrigendum of the Endorsement of The Honourable Justice J.S. Little _______________________________________________________ Changed Paragraph 24 from $2,2648.50 to $22,648.50.