2010 MBCA 49, 2010 MBCA 49

Citation: Kildonan Ventures Ltd. v. Brooker, Date: 20100505 2010 MBCA 49 Docket: AI 10-30-07301 IN THE COURT OF APPEAL OF MANITOBA B E T W E E N : KILDONAN VENTURES LTD. t/a ) D. Blayden KILDONAN AUTO & TRUCK PARTS ) on behalf of the Applicant ) (Employer) Applicant ) A. Brooker ) on his own behalf ) - and - ) D. G. Gu é nette ) for the Manitoba Labour Board ) ANDREW BROOKER ) S. D.

Boyd ) for the Director of the Employment (Employee) Respondent ) Standards Division ) ) Chambers motion heard: ) April 15, 2010 ) ) Decision pronounced: ) May 5, 2010 MacINNES J.A. 1 The applicant seeks leave to appeal an order of the Manitoba Labour Board dated December 9, 2009. 2 The respondent was an employee of the applicant who received a photo-radar speeding ticket while driving one of the applicant’s trucks in the course of his employment. Shortly thereafter, he left his employment.

When the applicant attempted to register another of its fleet vehicles, it could not do so because of the outstanding and unpaid speeding ticket. The applicant paid $297 in settlement of the ticket and then informed the respondent that it intended to deduct that amount from his unpaid wages. 3 The respondent advanced a claim to the Employment Standards Division for unpaid wages. The applicant paid $576.30 into trust. The Employment Standards Officer assigned to deal with the claim released $179.30 of that amount to the respondent as she did not consider it subject to dispute.

She then dealt with what she considered to be the amount in dispute, namely, the $297 for the traffic ticket, and by order dated December 3, 2008, ordered that the sum of $297, being wages owing by the applicant to the respondent, together with an administrative fee of $100, for a total of $397, be paid to the Director of the Employment Standards Division. 4 The applicant appealed this order to the Manitoba Labour Board. 5 The appeal was adjourned on several occasions at the request of one or other of the parties. It ultimately was heard on November 9, 2009.

One of the issues raised by the applicant was its desire to subpoena the Employment Standards Officer who had dealt with the matter. The applicant intended to call the officer as a witness on the appeal hearing pertaining to the issue of what it asserted was a wrongful pay-out to the respondent of the sum of $179.30, asserting that that amount was in dispute along with the amount of the speeding ticket. 6 The Board dealt with the compellability of the intended witness as a preliminary issue on the appeal hearing. The Board ruled that pursuant to s. 121 of The Employment Standards Code , C.C.S.M., c.

E110 , an Employment Standards Officer is not a compellable witness in the proceeding. 7 The Board then advised the parties that it would hear evidence on the merits of the applicant’s appeal. The applicant advised the Board that given its ruling on the non-compellability of the Employment Standards Officer, it did not intend to call any

evidence in support of its appeal. The Board confirmed with the applicant that it was aware that it carried the onus on the appeal and that in the absence of any evidence from the applicant, the Board would be issuing a final order dismissing the appeal. Still, the applicant called no evidence, and the Board dismissed the appeal. 8 It is from that decision that this application for leave to appeal comes before me. 9 An appeal from a decision of the Manitoba Labour Board made under The Employment Standards Code may be made to this court with leave under s. 130 of The Employment Standards Code .

However, leave can be granted only on questions of jurisdiction or law. Moreover, the decision whether to grant leave to appeal is in the court’s discretion, even if a question of law or jurisdiction is raised. See Nygard International Partnership Associates v. Michalowski , 2005 MBCA 96 , 195 Man.R. (2d) 301 at para. 3 . 10 Recently, in Manitoba Housing Authority v. Savage , 2009 MBCA 117 , Freedman J.A. explained that this court looks to three factors in deciding whether to grant leave to appeal (at para. 6): …. Three factors are considered by a judge in determining whether to grant leave. See Pelchat v.

Manitoba Public Insurance Corp. , 2006 MBCA 90 , 40 C.C.L.I. (4 th ) 46 (at para. 2 ): …. 1. The question must be truly one only of jurisdiction or of law, and not one which “involve[s] the court in an assessment or analysis of conflicting factual issues” ( Shersty v. Manitoba Public Insurance Corp. (2002), 43 C.C.L.I. (3d) 35 , 2002 MBCA 108 (Man. C.A. [In Chambers]), at para. 2, Fillion v. Manitoba Public Insurance Corp. (2004), 10 C.C.L.I. (4 th ) 182 , 2004 MBCA 61 (Man. C.A.) , and cases cited therein). 2.

The case must be one that warrants the attention of the court. “The issue must be one of importance; not just for the immediate case, but in determining other similar disputes which are apt to arise in [the] future” ( Wuziuk v. Manitoba (Director of Social Services) (No. 2) (1979), 1979 CanLII 3158 (MB CA) , 3 Man.R. (2d) 81 (Man. C.A.) , at para. 7 ). 3. There must be an arguable case of substance; i.e., one with a reasonable prospect of success (see Lejins v. Manitoba Public Insurance Corp. (2003), 50 C.C.L.I. (3d) 1 , 2003 MBCA 95 (Man.

C.A. [In Chambers])). 11 On its application for leave to appeal, the applicant raised three potential questions: (1) whether the amount paid into trust was the wrong amount; (2) whether the Board erred in not receiving the testimony of the Employment Standards Officer; and (3) whether the Board erred in finding that a photo-enforcement traffic ticket could not be deducted from employee wages. 12 I will address the second point first. As I have already stated, the applicant attempted to subpoena the Employment Standards Officer to testify as a witness at the hearing before the Manitoba Labour Board.

The Employment Standards Officer raised s. 121 of The Employment Standards Code : Officer not compellable in civil proceeding 121 An officer is not a compellable witness in a civil action or proceeding, including a proceeding before the board, with respect to information obtained, or an employment record or other document obtained or made, by the officer in carrying out a power, duty or function under this Code and may not be compelled to produce any such document. 13 After hearing argument on this issue, the Board ruled that the Employment Standards Officer was not a compellable witness. 14 While it may be said that a consideration of this issue raises a question of law, the applicant has failed on its application before me to establish that, in the circumstances of this case, there is any arguable case to be advanced on this issue, namely, the

interpretation of s. 121 of The Employment Standards Code .

Moreover, given that the applicant chose not to introduce any evidence before the Board on the appeal hearing, it has not identified any nexus between the compellability of the officer and the merits of the case for which the applicant seeks leave to appeal to this court. 15 As regards the other issues raised by the applicant in its application for leave, neither was raised nor argued before the Board as the applicant, as previously stated, chose not to proceed further with its appeal to the Board after being informed of the Board’s ruling on the issue of compellability.

Furthermore, neither raises a question of law alone or jurisdiction, nor does either issue merit the attention of the court. 16 Accordingly, the applicant has not met the burden of showing that there is here a question of jurisdiction or law, let alone such a question warranting the attention of the court. Its application for leave is therefore dismissed. I make no order as to costs.

____________________________ J.A.