Houston Recruiting Services Ltd. v. Date:, 2011 MBCA 16

Citation: Houston Recruiting Services Ltd. v. Date: 20110204 Green, 2011 MBCA 16 Docket: AI 10-30-07390 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : HOUSTON RECRUITING ) K. Branch SERVICES LTD. ) on behalf of the Respondent ) (Employer) Respondent ) M. Green ) on his own behalf ) ) D. G. Guénette ) for the Manitoba ) Labour Board ) ) S. D. Boyd - and - ) for the Director of ) Employment Standards ) ) A. J. Ladyka ) for Manitoba Housing ) ) Chambers motion heard: ) October 7, 2010 MARTY GREEN ) ) Decision pronounced: (Employee) Applicant ) February 4, 2011 BEARD J.A. I.

THE ISSUE 1 The employee has applied for leave to appeal a decision of the Manitoba Labour Board (the Board) made pursuant to The Employment Standards Code , C.C.S.M., c. E110 (the Code ), and dated June 15, 2010. The four issues that he raises on this leave application as errors on the part of the Board are: (

i) whether the Board erred in concluding that the employer was Houston Recruiting Services Ltd. (Houston) and not Manitoba Housing (formerly known as Manitoba Housing Authority (MH)); (ii) whether the Board erred in finding that Houston was the sole employer when it should have applied s. 134 of the Code to find that Houston and MH were engaged in the joint operation of the business and declared them to be a single employer; (iii) whether the Board erred in ascribing significance to the waiver signed by the employee, given the provisions of s. 4 of the Code ; and (iv) whether the Board erred in its

interpretation of ss. 62(1) (

a) and (

e) of the Code . 2 I have concluded that the first issue raises a question of mixed fact and law and the employee is not entitled to appeal this finding. The second issue was not raised before the Board and requires that findings of fact be made before the issue can be considered. As the required evidence was not called before the Board and the findings were not made, the issue cannot be raised for the first time on appeal.

The arguments of the employee regarding the findings of the Board on the third and fourth issues do not raise an arguable case of substance and, further, there is no reasonable prospect of success on appeal. Thus, the application for leave is dismissed in its entirety, for the reasons set out below. II. FACTS AND BACKGROUND 3 Many of the facts are not in dispute. Houston is in the business of providing temporary and permanent recruitment/placement services, and one of its clients is MH.

MH had used Houston’s services on numerous occasions to obtain temporary staff on an “as needed” basis prior to Houston sending this employee, Mr. Green, to MH.

4 In June 2009, the employee was hired by Houston for a temporary assignment as a building supervisor/caretaker at MH. At the time that he was hired, he signed a waiver form which stated as follows: Houston Recruiting Services Ltd. is a staffing service offering temporary employment assignments. Due to the nature of temporary employment, I understand that I will have complete discretion to elect to work or not to work when requested to do so, and that I may exercise this discretion without suffering any negative consequence or penalty.

I further understand that in having this right, I am exempt from the notice of termination provisions laid out in s. 61(2) of the Manitoba Employment Standards Code. I fully understand the above information, and am signing voluntarily, as certified by my signature below. 5 Despite this waiver, it is clear that, at the time that the employee was hired by Houston to work as a temporary building supervisor at MH, he was told that the MH assignment may constitute a path to get on as a permanent employee at MH.

Further, it was accepted that a number of other individuals who had been referred by Houston to MH on other occasions had been able, under MH processes, to obtain full-time employment with MH. 6 The employee started work at MH on or about June 18 or 19, 2009, with the understanding that he would work 8 hours per day, 40 hours per week, Monday to Friday. He underwent two days of training at the facility at which he was to be working.

He was issued a pager and keys to all of the suites in the facility, had an office, was provided with a list of daily rounds and, on occasion, called contractors regarding work orders. 7 The employee reported for work directly to this facility for approximately four weeks, until he injured his hand on July 8, 2009, after which he was off work for one day. Houston paid the employee for that day and made a claim to Worker’s Compensation, for which he received payment. The employee returned to work for one further week.

The parties agreed that his last day of work was July 20, 2009, and he was not paid any wages after that. 8 While he was employed, the employee was paid by Houston via direct deposit to his bank account. From the wages, Houston deducted the usual statutory deductions for income tax, Employment Insurance, and Canada Pension Plan and made the remissions to the appropriate authorities. Further, it was Houston that issued a T4 slip and a record of employment. 9 The employee attempted to return to work at MH on August 10, 2009, but was told to call Houston .

When he called Houston that day to enquire about severance pay, he was told that he was not entitled to receive any severance because he was an employee of Houston and not of MH. He was also advised that Houston did not have any other suitable assignments for him at that time. 10 The employee made a complaint to the Employment Standards Division on September 2, 2009, where his claim for one week’s wages in lieu of notice was disallowed on the basis that the exemptions in s. 62(1) (

e) of the Code applied. He appealed that decision to the Board, which conducted a hearing on June 2, 2010, at which time both parties appeared and called evidence. By order dated June 15, 2010, the Board dismissed the employee’s claim and upheld the decision of the Employment Standards Officer. It is from that decision that the employee now applies for leave to appeal to this court. III.

THE APPLICATION FOR LEAVE 11 An appeal from a decision of the Board made under the Code lies to the Court of Appeal, with leave, under s. 130, which states as follows: Appeal of board order re unpaid wages 130(1) A person who is a party to a final order of the board made under this Code in respect of a matter referred to the board under

section 110 may appeal the order to The Court of Appeal. Leave to appeal required 130(2) An appeal may be taken only on a question of law or jurisdiction and by leave of a judge of The Court of Appeal. . . . . . 12 Thus, leave to appeal can be granted only on questions of law or jurisdiction. 13 MacInnes J.A., in Kildonan Ventures Ltd. v.

Brooker , 2010 MBCA 49 , recently set out the law governing the granting of leave to appeal a decision of the Board under the Code as follows (at paras. 9-10): …. ... [T]he 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 . 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): . . . . . 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. (4th) 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 immediatecase, but in determining other similar disputes which are apt to arise in [the] future” (Wuziuk v. Manitoba (Director of Social Services)(No. 2) (1979), (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 PublicInsurance Corp. (2003), 50 C.C.L.I. (3d) 1, 2003 MBCA 95 (Man. C.A. [In Chambers])). [emphasis added] See also, Whitemouth (Rural Municipality) v.

Garowey, 2010 MBCA 94 at para. 30, and Plaha v. The Taxicab Board, 2010 MBCA 99 atpara. 14. IV. WHETHER THE BOARD ERRED IN CONCLUDING THAT THE EMPLOYER WAS HOUSTON AND NOT MH 14 The finding by the Board that the actual employer was Houston and not MH required the Board to look at all of thecircumstances of the employment, including: the circumstances under which the employee was hired, including the waiver that hesigned; the type of work that he was performing; who was supervising his work; who was responsible for the administration related tohis employment; and the length of employment.

The Board referred to all of these facts and came to the conclusion that the employerwas Houston and not MH. This was a finding of mixed fact and law and there is no right to appeal such a finding. V. WHETHER THE BOARD ERRED IN FINDING THAT HOUSTON WAS THE SOLE EMPLOYER WHEN ITSHOULD HAVE APPLIED

SECTION 134 OF THE CODE TO FIND THAT HOUSTON AND MH WERE ENGAGED IN THEJOINT OPERATION OF THE BUSINESS AND DECLARED THEM TO BE A SINGLE EMPLOYER 15 The employee acknowledged that the question of the application of s. 134 of the Code in this case was raised for the firsttime in his brief for leave to appeal.

The Board was opposed to the court considering this ground for leave to appeal on the basis that thecourt has refused leave to appeal if the matter was not raised before the Board. 16 A proper determination of the issue would require that factual findings be made as to the relationship between the twocorporations, and would require that evidence be called on that relationship. The proper forum to raise this issue was before the Board,when that evidence could have been called and those arguments made. (See Dorge v. Cummine et al., 2004 MBCA 86, at para. 9, andLukács v.

United Airlines Inc. et al., 2009 MBCA 111, 245 Man.R. (2d) 292 at para. 8.) 17 Leave to appeal should not be granted on this issue because it was not raised before the Board and because there is no factualbasis on which to make the determination. VI. WHETHER THE BOARD ERRED IN ASCRIBING SIGNIFICANCE TO THE WAIVER SIGNED BY THEEMPLOYEE, GIVEN THE PROVISIONS OF

SECTION 4 OF THE CODE 18 The employee argued, as part of his leave application, that the Board ascribed significance to the waiver that he was requiredto sign, and that to do so was an error given the provisions of s. 4(1) of the Code, which states as follows: Agreement to work for lower standard is no defence 4(1) An agreement to work for less than the applicable minimum wage, or under any term or condition that is contrary to this Codeor less beneficial to the employee than what is required by this Code, is not a defence in a proceeding or prosecution under this Code,even if the terms and conditions of the agreement, as a whole, are better for the employee than what is required by this Code. 19 He argued that to permit this use of the waiver would have a significant impact on the legitimate rights of workers because itwould encourage employers to compel workers to sign away their rights as a condition of accepting employment. 20 Counsel for the Board argued that the Board referred to the waiver as setting out the terms of employment, in order to showthat they were within s. 62(1)(e), and that reference by the Board to the waiver shows that it weighed all of the evidence in coming to itsconclusions. 21 The Board did not commit an error in referring to the waiver for two reasons.

First, the Board did not base its findings or itsdecision on the fact that the employee had signed a waiver of his right to notice or wages in lieu of notice. It used the document asevidence of the employee’s knowledge of the nature of his employment, including the temporary nature of that employment, and that theobligation to give notice, either way, did not apply.

The Board looked at all of the evidence regarding the relationship between Houstonand MH, the functions carried out by each, the terms of the employment, and the employee’s understanding of the terms of hisemployment, including as set out in the waiver and as testified to by the employee, as well as the length of employment, in coming to theconclusion that the exemption in s. 62(1)(

e) applied in this case. 22 Second, s. 4 does not prevent an employer from relying on every agreement, only on those terms of an agreement that arecontrary to the Code or are less beneficial to the employee than what is required by the Code. An impermissible use would occur, forexample, if the Board had relied on a waiver that set out terms of employment that did not correspond with either s. 61 or any of theexemptions in s. 62(1). In referring to the waiver, along with other evidence, to conclude that s. 62(1)(

e) applied, the Board found thatone provision of the Code applied to exempt another. While the exemption in s. 62(1)(

e) is less beneficial to the employee than s. 61, it

is specifically permitted by the Code , so the use of the waiver to determine which provision in the legislation applies is neither contrary to nor less beneficial to the employee than what is permitted in the Code .

Section 4 does not require that the provision of the Code that is most beneficial to the employee must be applied, only that the terms of the Code must be applied. That is what occurred here. 23 Put another way, there is a difference between signing a waiver of the minimum conditions that are protected by the Code and clarifying which of two permitted conditions will apply. In this case, the Code provided certain rights in s. 61 and set out permitted exemptions in s. 62(1).

Any document that clarified the terms of employment such that it would come within the exemptions is not a waiver of the minimum conditions, as the exemption is, itself, permitted by the Code . 24 There is no difference between this document and an employment contract for a fixed term of employment, to which s. 62(1) (

b) would apply, or one for a specific task that was to end within 12 months, to which s. 62(1) (

c) would apply, both of which would exempt the employer from the notice provisions of s. 61. In those cases, as in the current case, the document would be evidence of terms of employment that were specifically permitted under the Code . 25 Thus, there is no arguable case of substance arising from the Board’s reference to and use of the waiver that was signed by the employee, and no reasonable prospect that the argument would succeed if it proceeded to appeal. VII. THE

INTERPRETATION OF SECTION 62(1)(e) (

i) The Issue 26

Section 61 of the Code provides that an employer who terminates an employee’s employment must give a specified minimum period of notice of the termination or pay him or her wages in lieu of that notice, while s. 62(1) sets out a number of circumstances under which the employer is exempted from giving any notice or paying any wages in lieu of notice. In this case, we are dealing with the

interpretation of ss. 62(1) (

a) and (

e) of the Code , and, in particular, whether there is a 30-day limit to the period of employment referred to in clause (

e) due to the wording of clause (a), such that the exemption in clause (

e) only applies if the employment is terminated within 30 days. This is a question of law. 27 The standard of review to be applied on appeal is a factor to be considered on the leave application, as it has relevance when considering whether the applicant’s argument raises an arguable case of substance or one with a reasonable prospect of success. While the standard of review on a question of law is often that of correctness, that is not always the case. The issue of the standard of review of decisions of an administrative tribunal was recently considered by the Supreme Court of Canada in Dunsmuir v.

New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 , in which Bastarache and LeBel JJ., for the majority, stated as follows (at para. 54): Guidance with regard to the questions that will be reviewed on a reasonableness standard can be found in the existing case law. Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity ....

Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context .... .... 28 In this case, the Board is an experienced tribunal that was interpreting the provisions of the Code , which is its own statute. The decision for the Board was one that it was required to decide in the course of its ordinary responsibility; that is, it fell squarely within the area of its expertise.

I have, therefore, concluded that the standard of review is that of reasonableness. 29 The standard of reasonableness was explained by the majority in Dunsmuir as follows (at paras. 47, 49 ): …. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Deference in the context of the reasonableness standard therefore implies that courts will give due consideration to the determinations of decision makers.

As Mullan explains, a policy of deference “recognizes the reality that, in many instances, those working day to day in the implementation of frequently complex administrative schemes have or will develop a considerable degree of expertise or field sensitivity to the imperatives and nuances of the legislative regime”: D.J. Mullan, “Establishing the Standard of Review: The Struggle for Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. .... (ii) The Legislation 30 The relevant portions of ss. 61 and 62(1) of the Code state as follows: Termination by employer – notice or wage in lieu of notice 61(1) Subject to

section 62, an employer who terminates an employee’s employment must (

a) give the employee notice of the termination . . . . . (ii) in any other case, in accordance with the applicable notice period in subsection (2); or

(

b) pay the employee a wage in lieu of notice, in accordance with sections 77 (amount of wage in lieu of notice) and 86 (wages to be paid within certain time). Notice period – termination by employer 61(2) For the purpose of subclause (1)(a)(ii), the notice period for terminating the employment of an employee is the applicable notice period set out in the following table for the employee’s period of employment with the employer. Period of employment Notice period less than one year 1 week . . . . . Exceptions to notice requirements 62(1)

Section 61 does not apply in any of the following circumstances: (

a) the employee’s period of employment with the employer is less than (

i) the probationary period specified in a collective agreement that applies to the employee, if that period is one year or less, or (ii) in any other case, 30 days; (

b) the employment is for a fixed term and terminates at the end of the term; (

c) the employee is employed for a specific task and for a period not exceeding 12 months, on completion of which the employment terminates; (

d) the employee is employed in construction; (

e) the employee is employed under an arrangement by which the employee may choose to work or not to work for a temporary period when requested to work by the employer, . . . . . (iii) The Board’s Decision 31 In its decision, the Board set out the position taken by the employee before it on this issue as follows (at pp. 9-10): It was submitted that the basis for the exemption in Section 61(2) (

e) of the Code was to address situations where temporary placement is done on a day-to-day basis or only for limited periods of a day or two. The exemption, as noted in his appeal to the Board ..., only covers situations where a string of short term temporary assignments happens to exceed 30 continuous days. The Employee stated that the exemption was never intended to apply to assignments of the nature he undertook for the MH. This, as the Employee put it, would make a mockery of the Code and would afford both Houston and MH the opportunity to avoid responsibility for severance pay. There was opportunity for abuse. …. In the Employee’s view, the term “temporary” employment in Section 62(1) (

e) of the Code must be interpreted in the context that no notice need be given by either party during the first 30 days of employment. This arises from the reference to 30 days in Section 62(1)(

a) of the Code . The Employee said his position depends on this 30 day argument. The signing of the waiver ... is of no legal effect because one cannot sign away statutory rights. 32 In its analysis, the Board stated (at pp. 11-14): - In the normal course, an employee is entitled to either notice of termination or pay in lieu of notice under s. 61 of the Code , which, for an employee working less than one year, would be one-week’s pay, with exceptions to the normal requirement to comply with s. 61 being found in s. 62(1). The Employment Standards Division dismissed the employee’s claim for wages in lieu of notice on the basis of s. 62(1) (e).

- The Board acknowledged the underlying theme of the employee’s submission, and responded to it, as follows (at p. 12): An underlying theme of the Employee’s submission was his contention that sub-clause (

e) may lead to abuse and allow a temporary payroll or employment agency to act as an “interloper” between the real employer and an employee, meaning that notice of termination or wages in lieu thereof need never be given.

Quite frankly, the Board is not immune to this potential problem and arrangements which, on the evidence in a given case , disclose either “bad faith” or the existence of a “colorable device” which is designed to circumvent the minimum obligations prescribed by the Code may well lead the Board to find that the true nature of a particular relationship is not reflected in the temporary assignments made by an agency. From this perspective, the Employee’s “global concern” (the Board’s words) is acknowledged but, equally important , is the fact that the Board has an obligation to assess each case on its own facts.

Circumstances of a hypothetical nature which are not before the Board cannot be the fulcrum upon which the Board decides an individual appeal brought before it. [emphasis in original] - The Board stated that one of the two basic contentions underlying the employee’s appeal was that the reference to a “temporary period” in clause (

e) must, of necessity, be limited to a period of less than thirty days because this ties in with the 30-day exception in clause (a). The Board responded to this argument as follows (at pp. 12-13): …. The key distinction between a period of employment that may be “temporary” and one of “indefinite hire” (whether casual, part-time or full-time) is not defined by reference to a stipulated time period. This is also true of the other exceptions found in sub-clauses (

b) and (

c) of Section 62(1) where there is no obligation to give notice or wages in lieu of notice prior to the end of a fixed term or the completion of a specific task which takes less than 12 months to complete. Neither of these exceptions are limited in any way, by the 30 day period in sub-clause (a), and in the Board’s view, neither is sub-clause (e). Each of the exceptions in Section 62(1) stands independently. The exception in sub-clause (

a) is in the nature of a “probationary” period where an employer is given the opportunity to assess the merits, aptitude or worthiness of a new employee during an initial period of trial and/or assessment. That this is the purpose of sub- clause (

a) is reinforced by the reference to a longer probationary period which may be specified in a collective agreement. For individuals not hired into a job covered by a collective bargaining regime, the employer is given a period of 30 days to make this initial “probationary” assessment and is given the right to terminate the employment relationship without notice. Accordingly, to the extent that the Employee is asserting that the “30 days” referred to in sub-clause (

a) ought to be read as a temporal limitation, either expressly or by implication, on the words “ … temporary period” in sub-clause (

e) cannot be accepted, for to do so would be to add words of limitation which the Legislature did not use. [emphasis in original] - The Board noted that the employee signed a waiver in which he acknowledged the nature of the arrangement and that the obligation to give notice, either way, did not apply. It also found that the employee understood the nature of the waiver and he acknowledged that the rationale for the exemption for temporary employment was understandable and legitimate.

He disagreed with the rationale in relation to his work with MH because it was more of a regular nature and exceeded 30 days. - The Board found that the employee’s assignment to MH was not unlike other employee assignments that Houston had made to MH. In relation to this employee’s work assignment, the Board found as follows (at p. 14): After assessing the evidence in its totality, the Board was satisfied that the MHA [now known as MH], for bona fide business reasons, availed itself of Houston ’s services and requested a temporary employee from Houston .

This was done and there was no evidence that the assignment was for any improper purpose or was it, in any way a “colorable device”, designed to avoid obligations under the Code . Rather, in the Board’s view, the assignment of the Employee to the MHA [now known as MH] reflected an arrangement which fell within the exception contained in sub-clause (

e) of Section 62(1) . …. Based on the evidence before it, there is no basis for the Board to find that the arrangement in question was a subterfuge or what one might characterize a “probationary period” in disguise. The fact that one may be able to envisage different factual situations which may lead to a different analysis or conclusion will be addressed by the Board, if and when necessary. [emphasis in original] (iv) The Employee’s Position on the Granting of Leave 33 The employee’s position on the issue of the

interpretation of s. 62(1)(e), as it is contained in his brief, is as follows: - The Board erred in finding that the employment was intended to be temporary based only on the length of the period of employment, being 32 days, and in the face of the evidence that an individual hired by Houston and assigned to MH may use that temporary assignment to seek full-time employment. - Section 62(1)(

e) does not grant employers an exemption from the requirement to give notice based on the duration of the employment – the clear wording of the subsection states that, in order for that clause to be effective, there must exist an arrangement whereby the employee is free to accept or not accept work assignments for a temporary period when requested to work by the employer . The word “temporary” does not apply to the duration of the employee’s service, but rather to the hypothetical period when the employee may choose to decline an assignment from the employer.

There was no evidence in this case that any such optional assignments were ever offered to the employee by either Houston or MH. - In order to find that s. 62(1) (e), exclusively, applies in this case, the Board had to find that s. 62(1) (

a) applies only to cases where

the employee is on probation with an implied promise of permanent employment pending the successful conclusion of the probationary period. The Board had to reconcile this

interpretation with the words of the provision, which state that the 30-day period applies “in all other cases,” and to do this, it had to invent notions that are not found in the Code , such as “indefinite hire,” which is part of its finding that, “[t]he key distinction between a period of employment that may be “temporary” from one of “indefinite hire” (whether casual, part- time or full-time) (at p. 12). Given that this concept is not found in the Code , it cannot be a “key distinction” that supports the Board’s

interpretation of s. 62(1)(a). (

v) The Responding Parties’ Positions on the Granting of Leave 34 The Board’s brief was filed prior to that of the employee and counsel for the Board replied to the arguments made by the employee in his notice for leave to appeal and affidavit rather than addressing the points raised in his brief. The Board took the position, both in its brief and in argument, that the Board did not err in coming to the conclusion that clauses (

a) and (

e) are to be read separately. Counsel for the Board argued that this is the

interpretation that comes from reading the opening words of s. 62(1), being “Section 61 does not apply in any of the following circumstances” (emphasis added). He argued that the use of the word “any” indicates that the listed circumstances are to be read separately and are not to be linked. Thus, it was argued that the Board rightly rejected the employee’s

interpretation that clauses (

a) and (

e) were linked because it has no foundation in the actual wording of s. 62(1). He took the position that it is not an arguable point and, therefore, fails to meet the three-factor test for the granting of leave to appeal. 35 The director, who also filed his brief before the employee had filed his, started from the position that the employee was arguing that clause (

e) does not apply if a temporary period of work lasts longer than 30 days because the wording of clause (

a) provides that notice is not required if a person is dismissed within the first 30 days of employment but is required if the dismissal takes place after 30 days. In response, the Board found that each clause is to be read separately, so that the exemption provisions of clause (

e) are not limited by the 30-day period referred to in clause (a). The director took the position that the Board’s

interpretation of the legislation followed the principles of statutory

interpretation in that it attributed the plain, ordinary and natural meaning to s. 62(1)(

e) and did not read in words of limitation that the Legislature did not use. He argued that, had the Legislature intended clause (

e) to be limited to employment of no longer than 30 days, it could have added wording to that effect. It argued that the employee had not demonstrated that he has an arguable case of substance, and that the application for leave should be dismissed. 36 MH did not address this issue in its brief or in its argument. 37 In reply, the employee stated, for the first time, that he was not arguing that clauses (

a) and (

e) should be linked. He stated that he was arguing that clause (

e) did not apply to his case for the reasons set out at para. 33 above, and that the only clause that could possibly apply was clause (a). He then argued that clause (

a) could not apply because he had worked for longer than 30 days, with the result that none of the exemptions applied. This meant that s. 61 remained in effect and he was entitled to either notice of the termination of his employment or pay in lieu of notice. None of the other parties responded to what appeared to be this new argument by the employee. (vi) Analysis 38 I will deal first with the argument advanced by the employee before the Board that clauses (

a) and (

e) were linked so that any employment for which an exemption was claimed under clause (

e) could not exceed 30 days. I agree with the decision of the Board that, based on the wording of s. 62(1) , clauses (

a) and (

e) must be read as being separate and distinct. There are no words in the legislation linking the two provisions, and each deals with a separate and different type of employment situation, as do all of the other exemptions. Further, had the legislature intended to limit the exemption in clause (

e) to an employment arrangement that did not exceed 30 days, it could have said so, as it did in clause (a). In addition to clause (a), some of the other exemptions also refer to specific time periods. Therefore, the fact that there is no specific time period in clause (e), but rather a reference to a “temporary period” means that the Legislature did not intend any specific limitation, and to read one in would be to change the legislation. 39 There is, therefore, no arguable case of substance to support the

interpretation of the legislation that was put forward by the employee before the Board, and no reasonable prospect that the argument would succeed if it proceeded to appeal. 40 I will deal now with the new positions advanced by the employee in its brief, as set out at paras. 33 and 37 of this decision. 41 The employee argued, firstly, that the Board erred in finding that the employment was intended to be of a temporary nature based only on the length of the employment, being 32 days, despite finding that an individual hired by Houston and assigned to MH may use that temporary assignment to seek possible full-time employment with MH.

The finding that the employment was intended to be temporary was a finding of fact or mixed law and fact, as the Board was required to determine, on the facts, whether this particular employment was temporary. Its decision is, therefore, not open to appeal.

Apart from that, there was ample other evidence that the employment was intended to be for a temporary period, including: the evidence that MH contacted Houston to arrange for a temporary employee; in the waiver, the employee acknowledged that Houston was offering temporary employment assignments and that the nature of the work was temporary employment; the employment lasted only 32 days; and that, while he was working at a MH facility, he continued to be paid by Houston – all of which was referred to by the Board in its decision.

Thus, even if it were open to the employee to appeal on this basis, there is no arguable case of substance on which to grant leave to appeal , and no reasonable prospect that the argument would succeed if it proceeded to appeal. 42 The employee argued, secondly, that s. 62(1)(

e) does not grant employers an exemption from s. 61 based on the temporary nature of the employment; rather, it states that there must exist an arrangement whereby the employee is free to accept or not accept work assignments for a temporary period when requested to work by the employer . He said that the word “temporary” does not apply to the duration of the employee’s service, but rather to the hypothetical period when the employee may choose to decline an assignment from the employer. Finally, he argued that there was no evidence in this case that any such optional assignments were ever offered to the employee by either Houston or MH. 43 The employee is arguing for an

interpretation of the legislation that would, in effect, read as follows: “(

e) the employee is employed under an arrangement by which the employee may, within a temporary period, choose to work or not work when requested

to work by the employer.” If the choice is whether or not to accept a specific work assignment – that is, a specific job at a particular business – the employee already has that right and giving him or her a temporary period of unspecified duration within which to make that choice would add nothing to those existing rights. There is a presumption of statutory

interpretation against tautology, which is explained by Ruth Sullivan, Sullivan er on the Construction of Statutes , 5th ed. ( Markham : LexisNexis Canada Inc., 2008) as follows (at p. 210): It is presumed that the legislature avoids superfluous or meaningless words, that it does not pointlessly repeat itself or speak in vain. Every word in a statute is presumed to make sense and to have a specific role to play in advancing the legislative purpose. . . . . . …. Every word and provision found in a statute is supposed to have a meaning and a function. For this reason courts should avoid, as much as possible, adopting

interpretations that would render any portion of a statute meaningless or pointless or redundant. The presumption against tautology is invoked by the courts frequently and for a variety of purposes: to reveal ambiguity or resolve it, to infer the purpose of provisions, to determine the scope of general terms, powers or conditions, and to clarify the relation between the provisions of one or more Acts. It applies both to individual words and phrases and to larger units of legislation such as paragraphs and sections and to parts of the legislative scheme. …. See, for example, Ste.

Rose & District Cattle Feeders Co-op v. Geisel, 2010 MBCA 52 , 255 Man.R. (2d) 45 at para. 70 . 44 In this case, Houston offered the employee an assignment at MH and he clearly had a choice of whether to accept or decline that assignment. To say that he could do so within a temporary period would not change his existing rights. This would be equally true of any other work assignment that Houston might offer to the employee.

On this reading, the use of the phrase “within a temporary period” proposed by the employee has no meaning and breaches the principle against tautology. 45 In the clause as written, the words “for a temporary period” follow immediately after the words “to work or not to work.” The clause, when read as written, gives the employee the choice of accepting or declining temporary work, with the phrase “for a temporary period” referring to the duration of the work and not to the hypothetical period when the employee may choose to decline an assignment from the employer. This is consistent with the

interpretation first advanced by the employee before the Board, when he said in both his written statement and in his argument that “[i]t is well known that this

section allows temporary staffing agencies to conduct business without incurring the obligation to pay notice.” That is clearly what happened in this case. 46 This argument by the employee about the

interpretation of s. 62(1)(

e) does not raise an arguable case of substance on which to grant leave to appeal and there is no reasonable prospect that it would succeed if it proceeded to appeal. 47 Finally, the employee argued that, in order to find that s. 62(1) (

e) applied to his case and that s. 62(1) (

a) did not, the Board had to argue that s. 62(1) (a)(ii) applied only in cases where the employee was on probation with an implied promise of permanent employment pending successful conclusion of the probationary period, which he described as a very restrictive

interpretation of that provision. He further argued that, to do this, the Board had to invent notions that are not referred to in the Code , including the concept of “indefinite hire.” 48 In considering this argument, it should be noted that the exemptions in s. 62(1) are not necessarily mutually exclusive – it is possible for more than one exemption to apply to a specific situation. It was, therefore, not necessary for the Board to find that the employment in this case fell exclusively within any particular exemption, and the Board did not have to exclude either clauses (

a) or (

e) in order for the other to apply. Had the work assignment lasted less than 30 days, the Board could have held that the employee was subject to exemptions under both provisions. 49 The Board in its decision referred to an “indefinite hire” in responding to the employee’s argument that the “temporary period” in clause (

e) must be limited to a period of less than 30 days because this ties in with the 30-day exemption in clause (a). It explained that the “temporary period” in clause (

e) is not a defined period, but is a question of fact in each case, as is an “indefinite hire (whether casual, part-time or full-time)” and as are the periods in clauses (

b) and (c). It held that the 30-day period in clause (

a) does not apply to the employment described in clauses (

b) or (c), and there is no reason why it should apply to the employment described in clause (e). 50 At the leave hearing, the employee stated, in reply, that he was not relying on any link between clauses (

a) and (e), which means that he was not relying on this argument as part of his leave application for leave. Thus, the reference to “indefinite hire” in the Board’s decision is irrelevant to this application. Further, it was used as an example of a different type of employment to explain the difference between clauses (

a) and (

e) and was not a factor in the Board’s decision. 51 As I noted at paras. 38 and 39, each exemption in s. 62(1) is to be read separately and on its own. Section 62(1)(

a) clearly does not apply in this case because the period of employment was longer than 30 days. There is no need to consider this exemption any further. The Board found that the exemption in s. 62(1)(

e) did not include any time limitation, and I have found that there is no arguable case of substance on which to grant leave to appeal the Board’s

interpretation of that provision. Finally, the Board found, on the facts, that s. 62(1) (

e) did apply. This is a question of mixed law and fact, and is not open to appeal. VIII. DECISION 52 Thus, there is also no arguable case of substance on which to grant leave to appeal the Board’s

interpretation of s. 62(1)(

e) and no reasonable prospect that the arguments would succeed if the employee proceeded to appeal. 53 The application for leave is therefore dismissed.

J.A.