Citation: Hutlet v 4093887 Canada Ltd et al, Date: 20150902 2015 MBCA 82 Docket: AI15-30-08316 IN THE COURT OF APPEAL OF MANITOBA Coram: Mr. Justice Alan D. MacInnes Mr. Justice Marc M. Monnin Mr. Justice Christopher J. Mainella BETWEEN: ) R. I. Good,MICHELLE HUTLET ) D. A. Simpson and ) C. C. Fergusson (Plaintiff) Respondent ) for the Appellants ) - and - ) R. H. Kravetsky ) for the Respondent4093887 CANADA LTD.

AND ) 4093879 CANADA LTD. ) ) Appeal heard and (Defendants) Appellants ) Decision pronounced: ) September 2, 2015 On appeal from 2014 MBQB 223, 311 ManR (2d) 222 MAINELLA JA (for the Court): [1] This is an appeal of the dismissal of a motion to strike an amended statement of claim seeking payment for overtimewages at the rate set out in section 17(1) of The Employment Standards Code, CCSM, c E110 (the Code). [2] In our view, the appeal must fail. It is not plain and obvious that an employee’s only remedy for non-payment ofovertime wages is the administrative regime created by the Code.

There is conflicting appellate authority as to whether an employmentstandard created by statute becomes an implied term of an employment contract that can be enforced by a civil action (see Stewart v ParkManor Motors Ltd, (ON CA), [1968] 1 OR 234 at 238-40 (CA); Kolodziejski v Auto Electric Service Ltd (1999), (SK CA), 177 SaskR 197 at paras 17-30 (CA); and Macaraeg v E Care Contact Centers Ltd, 2008 BCCA 182 at paras 68-78, 255 BCAC 126, leave to appeal to SCC ref’d, [2008] SCCA No 293 (QL)). [3] In reaching our decision we are not endorsing, or disagreeing with, the

interpretation of the Code undertaken by themotion judge. Whether the respondent can enforce her statutory right to overtime pay through an action, given the wording of the Code,and if so, for how long can she recover unpaid overtime wages, are questions we think are best left for a trial judge to decide, with thebenefit of a full record as to the background of the respondent’s 13 years of employment with the appellants. [4] In the result, the appeal is dismissed with costs. JA

JA JA