Docket: CACV2206 Rocking Hills Cattle Co. Ltd. v. Mark Rupcich (Director), 2012 SKCA 17

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 17 Date: 20120223 Between: Docket: CACV2206 Rocking Hills Cattle Co. Ltd. and Mark Rupcich (Director) Prospective Appellants (Appellants) - and - Director of Labour Standards (on behalf of Nancy Holdner) Prospective Respondent (Respondent) Before: Richards J.A. (in Chambers) Counsel: Scott D. Giroux for the Prospective Appellants

Meghan R. McAvoy for the Prospective Respondent Application: From: 2011 SKQB 453 Heard: February 22, 2012 Disposition: Leave to appeal is granted Written Reasons: February 23, 2012 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [ 1 ] This is an application for leave to appeal brought by Rocking Hills Cattle Co. Ltd. (“Rocking Hills”) and Mark Rupcich, the Prospective Appellants. The Prospective Respondent is the Director of Labour Standards. II. Background [ 2 ] Section 4(3) of The Labour Standards Act , R.S.S. 1978, c. L-1 (the “ Act ”) sits at the centre of this case.

It provides that the Act does not apply to “…an employee employed primarily in farming, ranching or market gardening.”

Section 4 is reproduced below: 4(1) Subject to subsections (1.1), (2), (3) and (4) and to the regulations, the provisions of this Act apply to the Crown in right of Saskatchewan and to every employee employed in the Province of Saskatchewan and to the employer of every such employee.

(1.1) Without limiting the generality of subsection (1) but subject to the exemptions prescribed in the regulations, this Act applies to employees who work at home.

(2) Part I of this Act does not apply to an employee who performs services that are entirely of a managerial character.

(3) Subject to subsection (3.1), this Act does not apply to an employee employed primarily in farming, ranching or market gardening.

(3.1) For the purposes of subsection (3), the following are deemed not to be within the meaning of farming, ranching or market gardening: (

a) the operation of egg hatcheries, greenhouses and nurseries; (

b) bush clearing operations; (

c) commercial hog operations.

(4) Parts I, V and VI of this Act do not apply to teachers as defined in

section 2 of The Education Act, 1995 . [ 3 ] Rocking Hills is a ranch operation of some size. Nancy Holdner worked for Rocking Hills as a bookkeeper and office manager from January of 2006 to October of 2009. [ 4 ] The Director of Labour Standards issued a wage assessment requiring Rocking Hills to pay Ms. Holdner the sum of $6,280. This amount was comprised of overtime pay, public holiday pay and annual holiday pay. Rocking Hills appealed this award to an adjudicator. The adjudicator upheld the assessment. [ 5 ] Rocking Hills then appealed to the Court of Queen’s Bench pursuant to s. 62.3(1) of the Act .

Once again, it was unsuccessful. [ 6 ] Rocking Hills now seeks leave to appeal to this Court pursuant to s. 62.3(2) of the Act .

III. Analysis [7] The factors to be considered in deciding whether to grant leave to appeal are well established. They involve both the merits of theproposed appeal and its importance. See: Rothmans, Benson & Hedges Inc. v. Saskatchewan, 2002 SKCA 119, 227 Sask. R. 121. [8] As to the merits of the proposed appeal, Rocking Hills submits that the Chambers judge erred in her approach to s. 4 of the Act andmisinterpreted the phrase “…employed primarily in farming, ranching or market gardening.” It contends she should not have employedthe approach specified in Anderson v.

Bear Hills Pork Producers Limited Partnership, 2000 SKQB 505, 198 Sask. R. 229 to the effectthat an employee must directly perform “farm-type activities” in order to come within the scope of the subsection. Rocking Hills saysthe real question raised by s. 4(3) is whether Ms. Holdner was employed by a farm, ranch or market garden. [9] The Director rejects this approach and says Rocking Hills’ position is devoid of merit and that the proper

interpretation of s. 4 issettled. In the Director’s view, s. 4(3) must be read narrowly so as to extend the benefits of the Act as widely as reasonably possible. [10] For my part, I am not persuaded that the situation is quite as straightforward as the Director suggests. For example, Elcan ForageInc. v. Weiler (1992), (SK KB), 102 Sask. R. 197 (Q.B.) contains a suggestion at para. 13 (albeit by way of obitercomment) that a person doing non-farm-related work can fall within s. 4(3) if he or she is employed by a bona fide farmer or rancher.

Inthe result, the Queen’s Bench case law does not appear to be entirely consistent. [11] Overall, in my view, the proposed appeal has enough merit to warrant an order granting leave to appeal. [12] As to the question of the importance of the proposed appeal, Rocking Hills suggests that it is necessary for this Court to clarify theproper

interpretation of s. 4(3). It says the issue raised by these proceedings is of significance to a large number of employers andemployees in the agricultural sector of the economy. In response, the Director contends that the law in this area is settled andstraightforward and that there is no need for this Court to weigh in. [13] I am inclined to agree with Rocking Hills on this issue. The proper

interpretation of s. 4(3) is obviously important and a decision onthat point will have general and ongoing application. As noted, the case law in the Court of Queen’s Bench is not without itsinconsistencies and a ruling from this Court will resolve any uncertainties in that regard. IV. Conclusion [14] Leave to appeal is granted for the reasons outlined above. Costs will be in the discretion of the panel hearing the appeal. DATED at the City of Regina, in the Province of Saskatchewan, this 23rd day of February, A.D. 2012. “Richards J.A.” Richards J.A.