Hutlet v., 2015 MBCA 25

Citation: Hutlet v. 4093887 Canada Ltd. et al., 2015 MBCA 25 Date: 20150304 Docket: AI15-30-08316 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: MICHELLE HUTLET ) D. A. Simpson ) for the Appellants ) (Plaintiff) Respondent ) R. H. Kravetsky ) for the Respondent ) - and - ) J. A.

Jurczak ) for the proposed ) Intervenor4093887 CANADA LTD. and 4093879 ) CANADA LTD. ) Chambers motion heard: ) February 19, 2015 ) (Defendants) Appellants ) Decision pronounced: ) March 4, 2015 CAMERON J.A. [1] This is a motion by the Canadian Association of Counsel to Employers (CACE) for intervenor status in the appeal bythe defendants from an order dismissing a motion to strike the statement of claim filed by the plaintiff. [2] The claim seeks to recover overtime wages which the plaintiff says she did not receive while she was employed bythe defendants.

The defendants moved before the master to strike the claim on the basis that it disclosed no cause of action. The masterrefused to strike the claim. [3] On appeal, the motion judge also refused to strike the claim. She found that the plaintiff was not limited to resortingto the complaints process in The Employment Standards Code, C.C.S.M., c. E110 (the Code) to enforce her claim. Rather, she found thatthe provisions of the Code contemplate the right to overtime through civil action.

She held that, “[w]hether that creates a discrete causeof action for breach of statute or whether the cause of action is based on contract because the statutory provision is an implied term of theemployment contract, the claim here is adequate” (at para. 66). [4] The motion before me is for intervenor status in the defendants’ appeal of the decision of the motion judge. [5] CACE is a national organization of management-side labour and employment lawyers. Its mandate is to ensure thatadvancements in Canadian law reflect the interests of employers.

It argues that the decision of the motion judge is broad in that itimplicates all employers, including those outside of the province, and that it may be applied to other employee rights under the Code. CACE maintains that it can present a broader, unique perspective from that of the defendants, in that it could bring a province-wide andnation-wide employer perspective. [6] The defendants take no position regarding CACE’s motion. [7] The plaintiff opposes the motion.

Among other things, she argues that because CACE is comprised of lawyers andnot the actual employers who hire them, it is ill suited to present itself as a public interest group. In a similar vein, she argues that CACEcannot have an interest in the outcome of the litigation, being that it is not comprised of the very persons who are alleged to be affectedby it. Additionally, she notes that the defendants are constituted of a partnership that carries on business as “Nyg[å]rd InternationalPartnership,” an actual Canadian employer.

She denies that CACE has identified any different approach that it would take than thedefendants. Further, she maintains that it would be unfair to allow CACE to intervene in that it would amount to twice the advocacy forthe defendants and would cause her additional cost and effort. [8] In circumstances such as this, where the potential intervenor does not have a direct connection with the litigation, thiscourt has repeatedly relied on the decision of Sawatzky v. Riverview Health Centre Inc. (1998), (MB KB), 133

Man.R. (2d) 41 (Q.B.) . In that case, Beard J. (as she then was), held that the Queen’s Bench Rules respecting intervention should not be interpreted too narrowly. She set out the factors to be considered as (at para. 36): …. (

i) the nature of the case; (ii) the issues which arise; and (iii) the likelihood of the applicant being able to make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties. With respect to the likelihood of an applicant being able to make a useful contribution, she outlined the following additional factors (at para. 37): .... (

a) does the intervenor have a real, substantial and identifiable interest in the subject-matter of the proceedings; (

b) does the intervenor have an important perspective distinct from the immediate parties; or (

c) is the intervenor a well-recognized group with a special expertise and with a broad and identifiable membership base? See also R. v. Mabior (C.L.) , 2009 MBCA 93 , 245 Man.R. (2d) 81 ; R. v. Creekside Hideaway Motel Ltd. et al. , 2007 MBCA 19 , 212 Man.R. (2d) 231 ; Manitoba Metis Federation Inc. v. Canada (Attorney General) et al. , 2008 MBCA 131 , 231 Man.R. (2d) 178 ; and R. v. Rémillard (R.) et al. , 2006 MBCA 2 , 208 Man.R. (2d) 1 . [ 9 ] In my view, the nature of this case is such that it could affect employers in general.

I am also of the view that CACE is a well-recognized group with a special expertise and broad and identifiable membership base. Indeed, it has previously been granted intervenor status in the Supreme Court of Canada. [ 10 ] However, CACE has not persuaded me that it would make a useful contribution to the resolution of the appeal without causing injustice to the immediate parties.

Neither am I convinced that it could provide an important perspective distinct from the immediate parties. [ 11 ] I agree with the plaintiff that the defendants, as employers, will be able to thoroughly canvass all of the issues involved in the appeal. The defendants’ notice of appeal is comprehensive and detailed. It identifies 11 alleged errors by the motion judge. It asserts that the motion judge erred by effectively creating a new claim and asks for time limitations to be placed on the claim, if recognized.

This is the same position advanced by CACE, albeit in different language. [ 12 ] With respect to CACE’s position that the decision will have national implications in that it engages the provisions of the Code relating to wages being held in trust and thereby without limitation periods, I note that that argument was made before the motion judge and she refused to decide it on the basis that it was not claimed by the plaintiff (despite a stated intention to do so). Thus, I do not see how a unique perspective arises in this regard. [ 13 ] Finally, as to the contention that CACE would argue that a narrow

interpretation of the Code would fail to recognize national and/or inter-jurisdictional character of employers, resulting in Manitoba becoming an outlier in relation to other Canadian jurisdictions, I note that the motion judge considered jurisprudence from a number of provinces in reaching her decision. She observed that there were conflicting provincial decisions, but that result may be based in the subtle differences in the legislative schemes involved.

From that, I conclude that the national perspective was and will be canvassed as is evidenced by the defendants’ allegation that the motion judge erred in interpreting the Code . [ 14 ] Therefore, for the above reasons, the motion to intervene is dismissed with costs to the plaintiff.

J.A.