Leonard Balzer Appellant/ Respondent on Cross-Appeal (Plaintiff) v. Federated Co-operatives Limited,, 2018 SKCA 93

Court of Appeal for Saskatchewan Docket: CACV2519 Citation: Balzer v Federated Co-operatives Limited , 2018 SKCA 93 Date: 2018-11-28 Between: Leonard Balzer Appellant/ Respondent on Cross-Appeal (Plaintiff) And Federated Co-operatives Limited, Kenneth John McKechney and Wayne Gust Respondents/ Appellants on Cross-Appeal (Defendants) Before: Richards C.J.S., Herauf and Schwann JJ.A. Disposition: Appeal dismissed; cross-appeal dismissed Written reasons by: The Honourable Madam Justice Schwann In concurrence: The Honourable Chief Justice Richards The Honourable Mr.

Justice Herauf On Appeal From: 2014 SKQB 32 , Saskatoon Appeal Heard: November 15, 2017 Counsel: John B. Benesh for the Appellant William P. Langen for the Respondent Schwann J.A. I. Introduction [ 1 ] Leonard Balzer was terminated from his employment without notice on September 23, 2002, as the result of several alleged safety violations. The incident that gave rise to the safety violations, and ultimately led to Mr. Balzer’s termination, occurred when a significant amount of propane vapour was released into the environment after Mr.

Balzer had backed up his propane delivery truck without first disconnecting the propane fill hoses. [ 2 ] Following a nine-day trial, the trial judge dismissed Mr. Balzer’s wrongful dismissal and defamation claims, but awarded him $19,398.30 for unpaid overtime. Mr. Balzer appeals from the wrongful dismissal and defamation portion of the judgment seeking, among other relief, judgment in the amount of $76,284, which he says is equivalent to 24 months’ notice.

His former employer, Federated Co-operatives Limited [Federated], cross-appeals the decision in relation to unpaid overtime. [ 3 ] For the reasons expressed below, I conclude both the appeal and cross-appeal must be dismissed. II. factual background [ 4 ] Mr. Balzer was hired in 1996 as Federated’s propane coordinator in Buffalo Narrows, Saskatchewan. Mr. Balzer underwent an extensive two-month training and orientation course at the commencement of his employment.

The course covered a wide range of topics, including the handling of hazardous products, propane product knowledge, and Federated’s safety policy, rules and procedures. Safety Policy No. 69-17 was one such policy. It emphasized the need for a safe work environment and stated in part: “Every employee is obliged to protect their self, their fellow employees and the public.

A job is not done correctly unless every precaution and safety rule is followed.” [ 5 ] Under the “Penalties” portion of this policy, it states: As per Policy 69-16, it will be considered a major rule violation for a supervisor or employee to fail to observe/practice or cause such failure of the safety rules and regulations put in place by the Company and Occupational Health and Safety Committee.

A major rule violation will result in an immediate suspension of the individual and possible discharge. [ 6 ] Federated’s discipline policy states in part: In certain cases, incidents will occur which require an investigation of the facts, but IN ALL CASES IN WHICH THERE IS A VIOLATION OF THE MAJOR RULES, SUSPENSION OR DISMISSAL WILL RESULT. ... (Emphasis in original) The disciplinary policy goes on to identify the following as an example of a “major rule violation”:

Failure to observe regulations for safety, equipment operation, accident prevention and fire prevention. [ 7 ] Mr. Balzer signed a statement indicating that he had received the discipline

section of the policy, it had been explained to him in detail by his supervisor and he understood what it said. The acknowledgment portion of the statement concluded with: “I fully understand the consequences of my actions if I fail to adhere to these policies.” [ 8 ] Mr. Balzer had also attended a number of training courses over the years, including those dealing with the transportation of dangerous goods and hazardous materials. Mr. Balzer was given a booklet pertaining to bulk truck drivers that provided directions in the event of a propane leak. Finally, Mr.

Balzer was provided with an orange wallet-size card that set out the names of the agencies and their phone numbers to call in the event of an emergency. [ 9 ] On the morning of September 12, 2002, Mr. Balzer began to fill his delivery truck with propane from the above-ground storage tanks that were located on the Federated compound. Before doing so, though, he failed to place the fail-safe braking system (known as chock blocks) behind the rear wheels of his truck. Mr. Balzer then left the truck unattended off and on while it was being filled to attend to some administrative work in the Federated office.

At approximately 11:00 a.m., believing his truck was 80% full, Mr. Balzer left the office and returned to his truck. He turned off the pump and again returned to the office. Importantly, as it turned out, Mr. Balzer did not disconnect the fill hoses from the truck. [ 10 ] When Mr. Balzer returned to the truck to begin his deliveries, he failed to walk around the passenger side of the truck, failed to disconnect the hoses, and then, instead of driving forward, began to back up the truck. After the truck reversed five or six feet, Mr.

Balzer heard a “whoosh” and immediately observed propane vapour escaping from the fill line and noticed the back check valve had pulled loose from the barrel of the truck. [ 11 ] The propane vapour escaped for 15 to 30 minutes, ultimately discharging an estimated 5,000 litres of propane into the atmosphere. The vapour escape ceased when the liquid propane in the truck became refrigerated through a process known as “auto- refrigeration”. While the vapour was refrigerating, Mr.

Balzer left the Federated compound to borrow a pipe wrench from the adjacent SaskPower property, which he had intended to use to reinsert the back check valve that had pulled loose from the barrel of the truck. Mr. Balzer was gone five minutes. He did not close or lock the gate to the Federated compound. [ 12 ] On Mr. Balzer’s return to the Federated compound, he called his co-worker, Edward Clarke, who was, at that time, 100 kilometres away from Buffalo Narrows. Mr. Balzer informed Mr. Clarke of what had transpired and Mr. Clarke agreed to immediately return to Buffalo Narrows. Mr. Balzer then left for lunch.

He was gone for roughly one hour. Although Mr. Balzer closed the Federated gate this time, he could not recall if he had locked it. Mr. Balzer acknowledged that if the propane in the truck had become “unrefrigerated” while he was away for lunch, there could have been a further release of propane vapour. [ 13 ] After Mr. Balzer returned from lunch, he once again tried to insert the back check valve into the barrel of his truck. While he was attempting to do so, Jim Krepps, an employee with Superior Propane, arrived on the scene. Mr. Krepps thought the pipe wrench Mr.

Balzer was using was too small for the task at hand. Mr. Krepps then left the Federated compound to place a call to safety personnel with his company because he had become concerned about a potential environmental issue and was not satisfied Mr. Balzer appreciated the seriousness of the situation. [ 14 ] Mr. Krepps returned to the Federated compound after placing a call to his supervisor. After Mr. Krepps left, Mr. Balzer attempted to contact Christopher Greedus, his immediate supervisor, via the fleet radio system. Mr. Balzer was unable to reach Mr. Greedus and did not leave a message. Mr.

Balzer made no attempt to contact Wayne Gust, who was more senior to Mr. Greedus, or call the Federated 24-hour emergency number. [ 15 ] Mr. Clarke arrived at the Federated compound around 1:30 p.m. to find the gate open, Mr. Balzer’s truck running and Mr. Balzer attempting to pump the propane from the truck back into the storage tank. Mr. Clarke observed that one of the valves on the truck was at an unusual angle. When Mr. Clarke turned off Mr. Balzer’s truck he could hear propane vapour escaping from the fill line aperture in the barrel of the truck. At this point, Mr. Clarke persuaded Mr.

Balzer to report the incident to Mr. Gust, which Mr. Balzer eventually did. [ 16 ] Mr. Balzer left the Federated compound in mid-afternoon to drive to Meadow Lake for a pre-arranged meeting with Mr. Greedus that had been scheduled for the next day on unrelated matters. Mr. Balzer left Mr. Clarke in charge of the vapour leak problem. Mr. Clarke was eventually able to rectify the immediate problem by delivering some of the propane from the truck and discharging the balance back into the storage tank. [ 17 ] Following an investigation into this incident, Federated terminated Mr.

Balzer for cause several weeks thereafter, citing the following safety violations: (

a) failure to place chock blocks behind the drive wheels; (

b) failure to turn off all the valves and disconnect the loading lines before moving the truck; (

c) failure to notify the local authorities immediately of the potential danger; (

d) failure to promptly notify Federated management; and (

e) failure to secure the yard so unauthorized personnel could not enter the compound, which resulted in personnel from SaskPower and Superior Propane entering the compound unannounced and unaware of the problem. [ 18 ] Federated had also identified a number of “poor judgment calls” on Mr. Balzer’s part, including: (

i) leaving a hazardous situation unattended while he went for lunch; (ii) leaving a subordinate alone to evacuate the balance of the propane from the truck; and (iii) backing up the truck when it should have been driven forward.

III. TRIAL JUDGE’S DECISION [19] The trial judge began his analysis with reference to the authoritative decision in McKinley v BC Tel, 2001 SCC 38, [2001] 2SCR 161 [McKinley], where the Supreme Court of Canada said just cause for dismissal involves a contextual analysis with an eye toproportionality. The trial judge then adopted the following

summary of McKinley found in Dowling v Ontario (Workplace Safety andInsurance Board) (2004), (ON CA), 246 DLR (4th) 65 (Ont CA), as the appropriate framework for his analysis: [49] Following McKinley, it can be seen that the core question for determination is whether an employee has engaged in misconductthat is incompatible with the fundamental terms of the employment relationship. The rationale for the standard is that the sanctionimposed for misconduct is to be proportional -- dismissal is warranted when the misconduct is sufficiently serious that it strikes at theheart of the employment relationship.

This is a factual inquiry to be determined by a contextual examination of the nature andcircumstances of the misconduct. [50] Application of the standard consists of: 1. determining the nature and extent of the misconduct; 2. considering the surrounding circumstances; and, 3. deciding whether dismissal is warranted (i.e. whether dismissal is a proportional response). [51] The first step is largely self-explanatory but it bears noting that an employer is entitled to rely on after discovered wrongdoing, solong as the later discovered acts occurred pre-termination. See Lake Ontario Portland Cement Co. v.

Groner, (SCC),[1961] S.C.R. 553. [52] The second step, in my view, is intended to be a consideration of the employee within the employment relationship. Thus, theparticular circumstances of both the employee and the employer must be considered. In relation to the employee, one would considerfactors such as age, employment history, seniority, role and responsibilities.

In relation to the employer, one would consider such thingsas the type of business or activity in which the employer is engaged, any relevant employer policies or practices, the employee’s positionwithin the organisation, and the degree of trust reposed in the employee. [53] The third step is an assessment of whether the misconduct is reconcilable with sustaining the employment relationship.

Thisrequires a consideration of the proved dishonest acts, within the employment context, to determine whether the misconduct issufficiently serious that it would give rise to a breakdown in the employment relationship. [20] Since the underlying reason for Mr. Balzer’s dismissal related to breach of a major rule and failure to observe Federated’ssafety policy, the trial judge adopted the following seven factors to guide his assessment about whether the employer had establishedcause for dismissal (at para 61, citing Hancock v Sobey’s Stores Ltd. (1988), 70 NFLD & PEIR 338 (NL Sup Ct), and Howard A.

Levitt,The Law of Dismissal in Canada (Aurora, Ont.: Canada Law Book, 1985) at 103): 1. The rules must be distributed. 2. The rules must be known to the employees. 3. The rules must be consistently enforced by the company. 4. The employees must be warned that they will be terminated if a rule is breached. 5. The rules must be reasonable. 6. The implications of breaking the rules in question are sufficiently serious to justify termination. 7. Whether a reasonable excuse exists.

Item No. 6 in the foregoing is the proportionality requirement. [21] The trial judge went on to observe that breach of an employer’s rules or policy can lead to a finding that the employmentrelationship has broken down. On this point, he made specific reference to Plester v Polyone Canada Inc., 2011 ONSC 6068, which heldthat “all employees must exercise sound personal judgment even in stressful workplace situations in the interests of workplace safety, orrisk firing” (at para 51). [22] With this legal framework in mind, the trial judge then turned to the evidence, much of which was not in dispute.

He saidrelease of approximately 5,000 litres of propane over a 20 to 30 minute period was a “very serious” incident and qualified as an“emergency” (at para 63). He went on: “There is no dispute that propane is a hazardous substance with a very high flammability contentand that the propane vapour plume had drifted over a significant portion of the town of Buffalo Narrows ... Mr. Balzer, in his evidence,did not disagree” as to the seriousness of the situation (at para 63, emphasis added). [23] The trial judge then examined Mr.

Balzer’s actions and inactions leading up to and following the propane escape, concludingthey were all contrary to his training. He identified the following specific transgressions (at para 64): … (

a) he did not use chock blocks while loading the truck;

(

b) he did not disconnect the fill line and the vapour line from the truck before moving the truck; (

c) he did not notify any emergency responders; (

d) he did not notify his own management in a timely manner to both report the incident and to seek advice on how to proceed; (

e) he left the scene unattended while propane was escaping the truck to acquire a wrench from SaskPower; (

f) he did not secure the compound to keep people away from the scene at any time before leaving for lunch or upon his return from lunch. This allowed a SaskPower employee to enter the compound in his vehicle, as well as the Superior Propane employees to enter in their vehicle, which vehicles were sources of ignition; and (

g) he went home for lunch, knowing that the tank was in a refrigerated state, which could change at any time. [ 24 ] In relation to the seven factors identified above, the trial judge found as fact that: (

i) Federated’s rule had been distributed to Mr. Balzer via the discipline policy documents and it was known to him; (ii) the policy warned of possible termination if a major rule violation occurred; (iii) the rule was reasonable bearing in mind the dangers in distributing propane and the emphasized importance of employee and public safety; and (iv) the combined effect of the various lapses in safety protocol in an emergency amounted to a very serious breach of the rule, as opposed to an incidental or minor breach (at para 66).

In sum, the trial judge was satisfied from the evidence and his findings of fact that the first six factors of the test had been met. [ 25 ] The trial judge then turned his attention to the last factor – whether Mr. Balzer had a reasonable excuse for the breach of the safety policy. He assessed the parties’ evidence in relation to this factor in some detail in light of Mr. Balzer’s argument that his judgment had been adversely affected by the inhalation of propane vapour.

The trial judge considered the expert evidence that had been called by both parties and in the end preferred the expert opinion proffered by Federated’s witness over that of Mr. Balzer’s expert witnesses. The trial judge then concluded: “The absence of direct evidence that Mr. Balzer did inhale substantial quantities of propane vapour, and the absence of any psychological symptoms set out above, does not persuade me on the balance of probabilities that Mr. Balzer inhaled significant amounts of propane vapour” (at para 70). [ 26 ] This finding led to the trial judge’s conclusion that Mr.

Balzer’s judgment had not been impaired, and that while he may have been in a state of shock immediately following the incident, or as Mr. Balzer had put it, “stressed and frightened”, that alone did not amount to a reasonable excuse for his failure to follow safety protocols. [ 27 ] In light of these findings of fact, the trial judge concluded Mr. Balzer had been dismissed for cause. He summed up his bottom-line conclusion in this way: [72] Mr. Balzer was the person in Buffalo Narrows on whom Federated relied for safe operation of its business of propane distribution. Mr.

Balzer did not meet any of the expectations that were placed upon him to perform in the event of a propane escape emergency. Mr. Balzer agrees his performance was very substandard, and the only explanation he can offer for that substandard performance is one that the Court does not accept. There is nothing in the evidence that suggests Federated should trust him to behave differently or more appropriately with respect to any future propane emergency event in which he is directly involved. Mr. Balzer did not offer any evidence to suggest it could. Federated’s inability to trust Mr.

Balzer going forward to behave appropriately in an emergency situation was sufficient to sever the employment relationship. I find Federated had just cause to terminate the employment of Mr. Balzer. The action for wrongful termination is dismissed. (Emphasis added) [ 28 ] The trial judge went on to deal with Mr. Balzer’s claim for unpaid overtime. Although not specifically pled by Mr. Balzer in this fashion, the trial judge assessed Mr. Balzer’s entitlement to overtime pay pursuant to s. 6 of The Labour Standards Act , RSS 1978, c L-1 [ LSA ]. Using Mr.

Balzer’s evidence about the number of overtime hours he claimed to have worked, discounted by 20% for overlap and then applying the six-year period of limitation prescribed by The Limitation of Actions Act , RSS 1978, c L-15 (which was the operative legislation at the time the statement of claim was issued), the trial judge arrived at a figure of $19,398.30. Mr. Balzer was awarded judgment in this amount. IV. ISSUES [ 29 ] Mr. Balzer identified 17 separate grounds of appeal in the notice of appeal filed with this Court by his trial counsel. At the time of the appeal hearing, Mr.

Balzer, who was by then represented by different legal counsel, reduced his grounds of appeal to the following: (

i) whether the trial judge erred in failing to consider if the “brass” back check valve was the cause of the propane escape, and (ii) whether the trial judge erred in his assessment of the “seriousness” of the incident and whether termination was a proportional response to the incident. [ 30 ] The Federated cross-appeal on the overtime award was also recast at the time of the appeal hearing. Federated now frames its grounds in the following manner: (

i) whether the learned trial judge erred in allowing Mr. Balzer’s claim for overtime pay based on s. 6 of the LSA , when that issue was never argued at trial, and (ii) in the alternative, whether the learned trial judge erred in applying the limitation period set out in The Limitation of Actions Act , instead of the limitation period prescribed by the LSA . V. ANALYSIS A. Mr. Balzer’s Appeal

1. Failure to consider whether the brass back check valve was the cause of the propane leak [ 31 ] Mr. Balzer submits the trial judge erred in his application of the law by failing to consider evidence about a faulty brass back check valve that he says was the real cause of the propane escape. In support of this argument, Mr. Balzer points to three pieces of evidence. [ 32 ] The first piece of evidence is found in the testimony of Dr. Iain Le May, a mechanical and metallurgical engineer, who had been called by Mr. Balzer as an expert witness. Dr.

Le May testified that he observed the threads on the brass check valve to have been damaged but found the steel threads in the truck’s tank had remained intact. Based on this observation, Dr. Le May opined that the brass valve was obviously weaker than the steel insert and that if the back check valve had been made of steel and not of brass, the hose might not have pulled away from the truck when Mr. Balzer backed up and, as such, there would have been no propane escape. [ 33 ] A second piece of evidence that served to build on Dr. Le May’s opinion centred around an incident in 2006 involving Mr. Clarke. Like Mr.

Balzer, Mr. Clarke had accidentally reversed his propane delivery truck without first disconnecting the fill hoses, but this time there was no propane escape. Dr. Le May was of the opinion that since the back check valve fittings were made of steel, not brass, in 2006 (when Mr. Clarke’s incident occurred) compared to the brass fittings in 2002 (when Mr. Balzer’s incident occurred), Mr. Clarke did not experience the same problem. [ 34 ] The final piece to Mr. Balzer’s causation argument concerns The Canadian Standards Association International Code B149.2- 00 [Code], in effect in 2002.

A provision in this Code required the internal threading for valves and fittings on back check valves to be made of steel or iron. As noted, when Mr. Balzer’s incident occurred, the back check valve was made of brass. Federated officials testified to having been unaware of this state of affairs and consequently unaware that its delivery truck was non-compliant with Code. Federated attributed non-compliance to an error made by an outside contractor in the course of routine maintenance for Mr. Balzer’s propane delivery truck. [ 35 ] With this evidence in hand, Mr.

Balzer had argued at trial and again on appeal that, but for Federated’s failure to supply a delivery unit (i.e., truck) properly equipped with Code-compliant fittings, the propane escape would never have occurred. Furthermore, he argued, Federated’s ignorance of the situation caused it to breach an implied term of the employment contract that obliged Federated to provide a reasonably safe work system and transport tank. By firing Mr. Balzer in light of its failures, and thereby making Mr. Balzer the scapegoat for the propane escape incident, Mr.

Balzer contends Federated had fundamentally violated the employment contract. [ 36 ] The upshot of these three pieces of evidence, Mr. Balzer argues, was that he was wrongfully dismissed. On appeal, he argues the trial judge erred in failing to consider or place any weight on the aforesaid evidence. [ 37 ] In fairness to Mr. Balzer, other than recounting the trial evidence described above, the trial judge did not squarely address Mr. Balzer’s causation or Code-compliance arguments, nor for that matter did the trial judge make any findings of fact about whether the brass check back valve was even Code-compliant.

And finally, the trial judge made no reference to the significance of the 2006 incident involving Mr. Clarke. However, as I will explain, the trial judge’s failure to address Mr. Balzer’s causation argument was likely because he found it irrelevant to the legal framework he had adopted and the basis for his dismissal. [ 38 ] The fundamental problem with Mr. Balzer’s argument, as I see it, is that he was not terminated because of the propane leak itself. Rather, Mr. Balzer was terminated because he had failed to comply with Federated’s safety policies and procedures before, during and after the leak.

In this respect, Federated pointed to the following specific examples of procedural breach that arose before the leak occurred: (

i) Mr. Balzer failed to use the chock blocks before loading the truck with propane; (ii) Mr. Balzer left the truck unattended while filling it; (iii) Mr. Balzer did not do a circle-check or walk-around before engaging the truck; (iv) Mr. Balzer did not disconnect the fill and vapour lines from the truck before moving it; and (

v) Mr. Balzer backed up the truck without disconnecting the hose. [ 39 ] None of these findings of fact were challenged by Mr. Balzer at trial and none have anything to do with whether the back check valve was made of brass or steel. [ 40 ] Similarly, Mr. Balzer’s actions and inactions after the propane release gave rise to other reasons for concern. Here, Federated pointed to the following: (

i) Mr. Balzer failed to report the incident to the police or fire departments and seek advice on how to handle the emergency nor, for that matter, did he report it to his own management personnel in a timely way; (ii) Mr. Balzer left the scene unattended for five minutes when the propane was actively escaping from the truck; (iii) Mr. Balzer failed to secure the compound from third parties and allowed other people to enter the compound while the incident was ongoing; and (iv) Mr.

Balzer left his truck running and went home for lunch for about an hour when he knew the situation could worsen. [ 41 ] Once again, none of these failings relate to whether the back check valve was made of brass or steel. While it could be argued the propane escape would not have happened if the back check valve had been made of stronger material, this, in my view, is largely after-the-fact rationalization on Mr. Balzer’s part that misses the underlying concerns Federated had with his actions and inactions. Federated terminated Mr.

Balzer because it had concern with his cavalier approach to how he filled the truck and his obvious breach of the protocols Federated had instituted to guard against an incident of this nature. Similarly, regardless of the precise cause of the propane escape, Federated had serious concerns about the way in which Mr. Balzer responded when confronted with an obviously dangerous situation. Federated argued Mr. Balzer’s actions and omissions after the propane escape occurred spoke volumes about his poor judgment and his obvious failure to adhere to Federated’s safety policies and procedures. [ 42 ] On appeal, Mr.

Balzer has not challenged any of the trial judge’s findings of fact with regard to what he did before he backed the truck away from the tanks or his response to the propane leak. In fact, the only two factual issues Mr. Balzer challenged at trial were in relation to his post-leak response. The first concerned whether Federated had provided him with a specific emergency response plan. The trial judge found as fact that the plan was outlined on the orange card that had been provided to Mr. Balzer when he commenced employment. The second issue related to Mr.

Balzer’s submission that he had been impaired by the propane fumes and was thus unable to muster an effective response to the emergency. The trial judge rejected that evidence as well.

[ 43 ] Based on the evidence before him, the trial judge had little difficulty concluding that Mr. Balzer’s performance was substandard and that the combined effect of his acts and omissions in an emergency situation amounted to a very serious breach of Federated’s protocols and that his breaches were not simply incidental or minor in nature. In the end, the trial judge found no reasonable basis for Federated to trust that Mr. Balzer would behave differently or more appropriately if faced with another emergency in the future.

This was found to be a sufficient basis for Federated to have severed its employment relationship with Mr. Balzer. [ 44 ] Given the trial judge’s findings of fact in light of Federated’s reasons for dismissal, I see no error on the part of the trial judge. [ 45 ] Quite apart from my conclusion on this point, there is another reason why Mr. Balzer’s argument cannot succeed. Mr. Balzer takes no issue on appeal with the trial judge’s identification of the applicable law.

I take his concession to mean that he accepts the seven factors that had been identified by the trial judge as constituting the appropriate legal framework from which to assess dismissal where it rests on a breach or breaches of an employer’s rules. While causation may play a role in assessing “whether a reasonable excuse exists”, that factor must be interpreted to refer to whether the employee had a reasonable excuse for not complying with a major rule.

In other words, the excuse must be logically connected with the employee’s failure to comply with the employer’s rules and not as an excuse for the underlying cause of the accident. In this regard, Mr. Balzer had argued propane impairment caused his faulty responses. The trial judge rejected his evidence on this point. 2. Failure to assess the proportionality of Mr. Balzer’s dismissal [ 46 ] The second argument put forth by Mr. Balzer on appeal is that the trial judge erred by failing to consider whether Federated’s decision to terminate his employment was “proportional” to the situation. In this respect, Mr.

Balzer takes issue with the relative seriousness of Federated’s reasons for termination, suggesting they did not rise to a level that justified dismissal. While Mr. Balzer agrees he may have been negligent, he suggests the overall situation was not as dangerous as Federated portrayed and, in any event, Federated failed to assess its own response in the circumstances. [ 47 ] Mr.

Balzer’s argument on this point seems to be that, if you step back and critically assess each of Federated’s reasons for dismissal, the situation was not nearly as serious as Federated portrayed it to be, and, in any event, none of the so-called infractions would have made any measurable difference to the outcome. By way of example, Mr. Balzer says: (

i) there was no evidence the chock blocks would have made any difference; (ii) the first responders in Buffalo Narrows were volunteers and as such they may not have responded in a timely way; (iii) when he called his supervisors, he was unable to get through to them because they were in a budget meeting; (iv) when he left for lunch, he thought the situation was under control; and (

v) he had to leave the compound unattended to get a wrench. On the whole, Mr. Balzer admits he was wrong, if not negligent, but asserts his actions did not amount to cause for dismissal and the trial judge erred in not assessing his situation differently. [ 48 ] Mr. Balzer’s argument must be assessed in light of two overriding considerations. First, Mr. Balzer has not challenged any of the trial judge’s findings of fact. Rather, he appears to take issue with the weight assigned to the evidence by the trial judge and the inferences drawn from the findings that were accepted.

There is an obvious problem with this argument. An appellate court is not free to reweigh and reconsider the evidence without deference to the findings of fact made by the trial judge. An appellate court can only interfere with findings of fact made at trial or inferences drawn from those findings if the findings involve a palpable and overriding error ( H.L. v Canada (Attorney General) , 2005 SCC 25 , [2005] 1 SCR 401).

This deferential approach was reaffirmed in Nelson (City) v Mowatt , 2017 SCC 8 , [2017] 1 SCR 138: [38] I acknowledge that the Court of Appeal’s finding of fact that adverse possession of the disputed lot was continuous from December 1909 to at least February 1923 is not unreasonable. It is certainly possible to weigh parts of the evidence differently than the chambers judge did. The possibility of alternative findings based on different ascriptions of weight is, however, not unusual, and presents no basis for overturning the findings of a fact-finder.

It is not the role of appellate courts to second-guess the weight to be assigned to the various items of evidence. Absent palpable and overriding error — that is, absent an error that is “plainly seen” and has affected the result — an appellate court may not upset a fact-finder’s findings of fact ( Housen v. Nikolaisen , 2002 SCC 33 , [2002] 2 S.C.R. 235, at paras. 6 and 10 ; see also H.L. v. Canada (Attorney General) , 2005 SCC 25 , [2005] 1 S.C.R. 401, at para. 55 ).

The standard of palpable and overriding error applies with respect to the underlying facts relied upon by the trial judge to draw an inference, and to the inference- drawing process itself ( Housen , at para. 23 ). ... [ 49 ] Mr. Balzer appears to be arguing that the trial judge erred in law by placing disproportionate weight on the evidence concerning Federated’s reasons for dismissal and thereby attributed a higher level of “seriousness” to each of the alleged infractions.

In sum, he argues, this caused the trial judge to overemphasize certain reasons, take them out of perspective and thus misapply the proportionality analysis. [ 50 ] It is clear from the decision that the trial judge understood the law and understood that – all things considered – dismissal must amount to a proportional response given the circumstances and that dismissal is only warranted when the misconduct is so serious that it strikes at the heart of the employment relationship.

The trial judge understood this assessment called for a factual inquiry and a contextual examination of the nature and circumstances of the alleged misconduct (at paras 58–59). [ 51 ] To that end, the trial judge noted that Mr. Balzer’s annual performance reviews had placed him in the “well done” category and that he had had no previous accidents or performance incidents (at para 29). The trial judge also examined evidence about what had transpired on the day in question, the nature of the Federated’s propane delivery business and the emphasis on safety in its policies and practices.

On this latter point, at paragraph 32, the trial judge specifically commented on Mr. McKechney’s evidence about the incident and why safety was a paramount concern for Federated: ... He concluded that the safety violations created a very dangerous situation not only for persons who entered the unrestricted compound during the event, but also for members of the public who were downwind of the vapour plume and not warned of the escape of propane.

He explained propane is heavier than air and will settle at ground level, and depending on the concentration, a source of ignition canignite the propane. He also testified that Federated was very concerned that the incident had not been reported to Federated managementin a prompt, honest and forthright manner. Mr. McKechney also criticized the judgment calls of leaving the truck unattended for a halfhour while he went for lunch, and leaving Mr. Clarke on his own to dispose of the propane product in the truck. He also concluded therewere inconsistencies in Mr. Balzer’s reporting. On this latter point, Mr.

Balzer agreed that he did not have a clear recollection ofeverything that occurred immediately following the event. [52] In the end, the trial judge had little difficulty concluding that propane is a hazardous substance and, as he put it, no witnesshad suggested that the release of propane was anything but very serious and that the situation involving Mr. Balzer specifically qualifiedas an emergency. This finding was amply supported by the evidence at trial. In fact, in relation to the relative “seriousness” of theincident, and somewhat contrary to the position taken by Mr.

Balzer on appeal, the trial judge commented: “Mr. Balzer, in his evidence,did not disagree” (at para 63, emphasis added). [53] Given the findings of fact made by the trial judge, how he weighed the evidence, Mr. Balzer’s own admission that thesituation was serious, and in light of the standard of review, there is simply no basis to interfere with the trial judge’s proportionalityanalysis. 3. Conclusion on Mr. Balzer’s appeal [54] For the reasons given, I find no basis to interfere with the trial decision. Mr. Balzer’s appeal must therefore be dismissed. B. The Cross Appeal 1.

Background and trial judge’s decision [55] Paragraph 13 of Mr. Balzer’s statement of claim contains a

summary of the hours he allegedly worked without remunerationbeyond the normal 40-hour week from 1996 to 2001. This came to a grand total of 1,105 hours, which, using Mr. Balzer’s actual salaryover his six years of employment with Federated, amounted to a claim for $36,889.38 of unpaid overtime. In his pleadings, Mr. Balzeradvanced a claim for unpaid overtime based on the legal principles of misrepresentation, deceit and unjust enrichment. By not payinghim for the extra hours he worked, Mr. Balzer argued Federated had been unjustly enriched at his expense. [56] At trial, Federated did not deny that Mr.

Balzer may have worked more than 40 hours per week from time to time. Instead,Federated chose to defend this part of Mr. Balzer’s claim on the footing he was in a “management position” and, as such, not entitled toovertime pay. Federated also argued Mr. Balzer’s cause of action grounded in misrepresentation, deceit and unjust enrichment had noapplication to his circumstance. [57] The trial judge assessed Mr. Balzer’s overtime claim under s. 6 of the LSA, which entitles an employee to be paid 1.5 timesthe employee’s normal hourly rate after the employee works a 40-hour week.

Relying on this Court’s decision in Kolodziejski v AutoElectric Service Ltd. (1999), (SK CA), 174 DLR (4th) 525 (Sask CA) [Kolodziejski], the trial judge held that anemployee who wishes to enforce an overtime claim is not limited to the enforcement procedures set out in the LSA and may resort to thecivil courts to advance his or her claim. [58] The trial judge then considered whether Mr. Balzer was a manager as asserted by Federated.

A finding of fact on this pointwas important because, as the trial judge noted, “Section 4(2) of the [LSA] provides that the overtime provisions in s. 6 do not apply toan employee who performs services that are ‘entirely of a managerial character’” (at para 77). From the whole of the evidence beforehim, the trial judge found as fact that Mr. Balzer did not perform services entirely of a managerial character and, as such, his overtimeclaim could be considered on its merits. [59] The trial judge then applied the six-year limitation period set out in The Limitation of Actions Act to Mr. Balzer’s claim. Thismeant Mr.

Balzer’s claim for 192.5 hours in 1996 and 231 hours in 1997 was statute barred, leaving him with a claim for 683.5 hours.The trial judge largely accepted Mr. Balzer’s evidence concerning the number of overtime hours he claimed to have worked, butdiscounted the gross total by 20% for the possibility that some of the work was unnecessarily done on overtime hours. Using the revisedhours coupled with Mr. Balzer’s approach to valuation, the trial judge found as fact that Mr.

Balzer had worked 547 overtime hours andwas therefore entitled to $19,398.30. [60] Federated raises two arguments on appeal in relation to this part of the judgment.

Section 6 of the LSA was never pled or argued [61] As mentioned, Mr. Balzer’s claim for overtime pay was largely premised on allegations of deliberate misrepresentation thathad allegedly been made to him by Federated, namely: (

i) Federated had failed to disclose the fact it had paid overtime to the person whohad previously held Mr. Balzer’s position; and (ii) Mr. Balzer’s position placed significantly more time demands on him than what hehad been led to believe, particularly in the winter months. The consequence of all of this for Mr. Balzer was that he was held to a hardbargain with no compensation for the unavoidable overtime hours he inevitably had to work. [62] Federated defended Mr. Balzer’s overtime claim by firstly attempting to refute the allegation of misrepresentation and bypointing to Mr.

Balzer’s contract of employment that did not stipulate a right to compensation for overtime. Second, Federated took theposition Mr. Balzer was in a managerial position and, as such, was not entitled to overtime pay. In the alternative, Federated urged thetrial judge to impose a six-year limitation period on the overtime claim pursuant to The Limitation of Actions Act. [63] The trial judge largely ignored Mr. Balzer’s pleadings. Instead, he zeroed in on Mr. Balzer’s statutory right to overtime,

stating: [76]

Section 6 of [the LSA] provides that after an employee has worked 40 hours per week, the employee is entitled to be paid at1.5 times their normal hourly rate in the absence of the application of other sections of the [LSA]. This

section goes on to spell out howthe hourly rate is to be calculated in the case of an employee earning a monthly salary. An employee who wishes to enforce this right isnot limited to the procedures available under the Act and may resort to the civil courts for enforcement. (Kolodziejski v. Auto ElectricService Ltd (1999), (SK CA), 174 D.L.R. (4th) 525, [1999] 10 W.W.R. 543 (Sask. C.A.).) [64] Federated says it was an error of law for the trial judge to have resolved Mr. Balzer’s overtime claim on a legal theory thatwas not pled or argued at trial.

As such, Federated says, it was caught off guard and prejudiced because it did not have an opportunity tocall evidence or present its position at trial. [65] As a matter of general principle, it is an error of law for a trial judge to determine a matter based on a legal theory not raised inthe pleadings or argued at trial. Parties are entitled to know and be able to meet the case against them. In Long v Van Burgsteden, 2014SKCA 115, 378 DLR (4th) 562 [Long], Caldwell J.A., speaking for this Court, outlined this principle of law: [17] The fact Mr.

Long was found liable for the destruction of the trees on two footings that first arose in the reasons for judgmentruns entirely contrary to a longstanding principle of law: No litigant should be put to a loss without having had a proper opportunity tomeet the case against him.

In North Western Salt Company Limited v Electrolytic Alkali Company Limited, [1914] AC 461 (HL) at 476-477, Lord Moulton characterised this as follows: … [O]ur judicial procedure is based on the principle that in fairness a litigant should have due notice of the issues that are to be raised inorder that he may prepare himself with the evidence necessary to present his case fittingly to the Court, and it would indeed be strange tohold that this wholesome rule should be relaxed when he is charged with something so grave as acting against the common weal.

So, where a trial judge determines a matter on the basis of a legal theory that was not raised in the pleadings and was not argued at trial,the trial judge commits an error of law.

See: Online Constructors Ltd. v Speers Construction Inc., 2012 ABCA 132 at para 15, Alta LR(5th) 100; Sumner v PCL Constructors Inc., 2011 ABCA 326 at para 26, [2012] 1 WWR 649; Canada Trustco Mortgage Co. v Renard,2008 BCCA 343 at paras 38-39, 298 DLR (4th) 216; Northey-Taylor v Casey, 2008 ABCA 149 at para 9, [2008] 9 WWR 112; see also:Rodaro v Royal Bank of Canada (2002), (ON CA), 59 OR (3d) 74 (CA). [18] In Canada Trustco Mortgage Co. v Renard, Frankel J.A. described the principle in these terms: [38] Fairness requires that a trial judge not bring issues into litigation without giving the parties an opportunity to address them.

Thisis also reflected in Walker v. Blades, 2007 BCCA 436, 70 B.C.L.R. (4th) 226 at para. 16, and Rodaro v. Royal Bank of Canada, (2002), (ON CA), 59 O.R. (3d) 74 (C.A.) at paras. 60-62. In Walker, the trial judge erred in dismissing an action on the basisthat the plaintiff had repudiated the contract in issue, when repudiation had not been pleaded or argued.

In Rodaro, the trial judge’s errorwas in granting judgment in favour of the plaintiff on a theory of liability that had not been pleaded or argued. [39] The common thread running through these authorities is the proposition that a party is entitled to know and respond to the caseagainst it, whether by the calling of evidence, or through submissions. This is particularly so when there is a question as to whether aparty is engaged criminal activity. In my view, the trial in the case at bar became unfair when the trial judge, acting on his own initiative,made a finding that Mr. and Mrs.

Renard acted in concert with Mr. Glockl to defraud Canada Trustco. In effect, the Renards werepronounced guilty of fraud, albeit on an application of the civil burden of proof, without having an opportunity to respond to allegationsagainst them. See also: Saadati v Moorhead, 2017 SCC 28 at para 9, [2017] 1 SCR 543. [66] A careful examination of Mr.

Balzer’s statement of claim, the trial transcript and the briefs of law filed by the parties providesample support for the conclusion that, in holding as he did, the trial judge determined the overtime issue on a legal theory that was notadvanced or explicitly argued by the parties at trial.

This constitutes an error of law. [67] That said, as Caldwell J.A went on to explain in Long, a trial decision may yet be sustained if it is clear no other evidencewould have been adduced at trial had the appellant been alerted to the new theory of liability and the correctness of the trial judge’sfindings of liability on the basis of the new theory of liability is borne out: [21] However, notwithstanding the foregoing conclusion, a trial decision may yet be sustained if, on an examination at the appellatelevel and after having received the submissions of appellate counsel, it is clear no other evidence would have been adduced at trial hadthe appellant been notified of the new theory of liability before trial or at trial and the correctness of the trial judge’s finding of liabilityon the basis of the fresh theory advanced in the judge’s reasons is borne out (see: Online Constructors Ltd. v Speers Construction Inc.,Sumner v PCL Constructors Inc., and, in particular, Rodaro v Royal Bank of Canada at paras. 58-71, Canada Trustco Mortgage Co. vRenard at paras. 31-42, and Northey-Taylor v Casey at paras. 13-18).

In other words, regardless of her error, if the evidentiary record iscomplete and the trial judge here were correct in her application of the law to the facts and thereby correctly found Mr. Long liable, thenthe result would nevertheless withstand appellate scrutiny. On the other hand, if Mr. Long were prejudiced by an inability to adduceevidence on the point or the trial judge were not correct in her finding of liability on both of the two fresh theories, then we would haveto dismiss the claim against Mr.

Long, as there would then be no remaining legal theory upon which to ground his liability for the loss ofthe trees. Here, Mr. Long has not taken issue with the evidentiary record, has not sought to adduce fresh evidence on appeal and has notsuggested he has lost a right of cross-examination on a point of evidence or suffered any similar prejudice. Rather, he says, under theremaining grounds of appeal, that the two fresh theories of liability are not borne out by the facts.

In that respect, I accept that theremaining questions for the Court are ones of law involving the application of the two legal theories to the facts. See also: Northey-Taylor v Casey, 2008 ABCA 149, [2008] 9 WWR 112. [68] The first question to be asked here is whether Federated would have called additional evidence had it known that statutory

entitlement for overtime pay under the LSA was on the table. To properly address this issue requires an understanding of the statutory scheme. [ 69 ] Section 6(1) of the LSA prohibits an employer from requiring an employee to work more than an 8-hour day or 40 hours in any week without paying the employee wages at time-and-one-half. The

section provides: Hours of work and overtime pay 6

(1) Subject to sections 7, 9 and 12, no employer shall, unless he complies with subsection (2), require or permit any employee to work or to be at his disposal for more than eight hours in any day or 40 hours in any week.

(2) Subject to sections 7 and 9, an employer who requires or permits an employee to work or to be at his disposal for more than eight hours in any day or 40 hours in any week shall pay to that employee wages at the rate of time and one-half for each hour or part of an hour in excess of eight hours in any day, or 40 hours in any week, during which he requires or permits the employee to work or to be at his disposal. [ 70 ] However, as the trial judge correctly pointed out, the right to overtime pay enshrined in s. 6(2) must be read in light of s. 4. This provision is of critical importance because it stipulates certain groups of employees to whom

Part I of the LSA (which includes the overtime provisions in s. 6) does not apply. Section 4(2) has direct relevance to the matter under appeal: 4

(2) Part I of this Act does not apply to an employee who performs services that are entirely of a managerial character. [ 71 ] Returning to the trial decision, it is clear the trial judge was alive to s. 4(2). Having regard to the jurisprudence in this province, he adopted a broad purposive approach to the

interpretation of s. 4, stating that the exemption must be construed in a manner that ensures that employee rights are not casually eroded. He went on to state that “labour standards legislation should be interpreted to extend protection to as many employees as possible” (at para 77). The trial judge then adopted the legal framework for assessing managerial function set out in McCracken v Canadian National Railway Company , 2010 ONSC 4520 , 3 CPC (7th) 81: [60] Being a manager relates to the nature of the work actually performed: Lee-Shanok v. Banca Nazionale Del Lavoro of Canada Ltd. , [1987] F.C.J.

No. 548 (F.C.A.) ; Leontsini v. Business Express Inc. , [1997] F.C.J.

No. 26 (F.T.D.) . ... [62] An essential element of being a manager is that the person performs an administrative and leadership role and not just an operational role in the organization [citations omitted]. [63] The case law reveals that certain activities or functions are regarded as management functions, such as representing the employer in collective bargaining or in discipline or grievance procedure, setting a budget, determining the organization’s structure, determining the organization’s policies; controlling day-to-day operations; determining staffing levels, supervising and reviewing the performance of subordinates, hiring and firing employees, and dealing with emergencies, but the mere presence of these activities is not enough and they must be accompanied by a significant level of autonomy and real decision-making authority and discretion [citations omitted]. [ 72 ] The trial judge next turned to the evidence that had been led by the parties about whether Mr.

Balzer’s position was “managerial”, beginning with Mr. Balzer’s formal job description. The trial judge found it significant that Mr. Balzer was initially the only employee in Buffalo Narrows. He found no evidence Mr. Balzer had supervised propane operations in Meadow Lake or Big River. He took note of the fact Mr. Greedus (Mr. Balzer’s immediate supervisor) had implemented a policy that required Mr. Balzer to telephone Mr. Greedus each morning to inform him of his planned activities for the day. Ultimately, the issue came down to the degree to which Mr. Balzer was being actively supervised and Mr.

Balzer’s lack of any real authority over Mr. Clarke, the other Federated employee at Buffalo Narrows. In light of the jurisprudential framework and having regard to the whole of the evidence before him, the trial judge made the following findings of fact: [85] I conclude that Mr. Balzer was a remote employee, remote from his immediate supervisor, who performed very little, if any, management functions as set out in the case law. He was an operational employee, not an administrative one. His job was to take orders for propane, deliver the propane and collect the accounts receivable.

He also had a sales role of attempting to acquire new accounts. He was to follow Federated’s policy in each of these areas. The only discretion he had was with respect to the routing for the deliveries of propane, which routing his supervisors found unsatisfactory and led to him being supervised by Mr. Greedus on a daily basis. He was required to file weekly and monthly reports and, in the last several months, daily reports to his supervisor. To the extent he could assign tasks to Mr. Clarke, that role was the traditional “lead hand” role of assigning duties. The evidence does not disclose that Mr.

Balzer was performing any of the management functions referred to in the McCracken decision at paragraph 80 above, nor does it disclose that he had any real decision-making authority within the Federated organization. [ 73 ] Applying the law to facts as found, the trial judge had little difficulty concluding Mr. Balzer was not an employee who performed services of an entirely managerial character. As such, he concluded, Mr.

Balzer’s overtime claim was not exempted and could be considered on its merits (at para 86). [ 74 ] With that background and findings of fact in mind, I return to this Court’s decision in Long . An examination of the trial transcript satisfies me that Federated led evidence to establish that Mr. Balzer had been employed in a managerial role with the company. In this respect Federated called evidence about Mr. Balzer’s hiring, his job description, his duties and reporting structures. Federated was not restricted in the evidence it could call and had the benefit of cross-examining Mr.

Balzer on the very issue that lies at the heart of s. 4(2) of the LSA . Federated’s purpose in calling this line of evidence was to establish that Mr. Balzer’s job was truly “managerial in character”, which it had argued was a complete defence to Mr. Balzer’s overtime claim, albeit for different reasons. So, while Federated’s evidence was ostensibly led to address and respond to an allegation that it had misrepresented the scope of Mr.

Balzer’s work and whether the previous employee had received overtime pay, the line of defence taken by Federated effectively plumbed the same evidentiary basis as would have been required for purposes of addressing a defence under s. 4(2) of the LSA .

[ 75 ] When pressed in oral argument on appeal about the nature of any additional evidence it would have called had it known s. 6 of the LSA was in play, Federated thought evidence about whether Mr. Balzer had made a claim with a labour standards officer under the LSA might have been relevant and helpful to its position. Federated did not, however, go on to explain how or why this sort of evidence would have been significant to an analysis of Mr.

Balzer’s right under s. 6 of the LSA . [ 76 ] As I see it, the only way this sort of evidence might have been of any assistance to Federated is in relation to an issue estoppel type of argument, that is, whether Mr. Balzer was precluded from re-litigating the overtime issue because the matter had already been litigated in another forum (see, for example: Danyluk v Ainsworth Technologies Inc. , 2001 SCC 44 , [2001] 2 SCR 460; Penner v Niagara (Regional Police Services Board) , 2013 SCC 19 , [2013] 2 SCR 125).

The problem with Federated’s argument in this Court is that, in order to succeed with issue estoppel, it had to do more than simply point to the possibility of an overtime claim having been advanced in another forum. At a minimum, Federated had to establish that (

i) the same question had been decided, (ii) the decision was final, and (iii) the parties were the same. Obviously, if Mr. Balzer had taken proceedings under the statutory regime and received a prior ruling, Federated, as a party to those proceedings, would have had knowledge of it. Federated did not suggest such a ruling had been made. [ 77 ] Returning to the Long analysis, if the evidentiary record is complete, the appellate court must then ask whether, regardless of the error, the trial judge was correct in his application of the law to the facts.

The trial judge did not elaborate on how he came to conclude that Mr. Balzer was entitled to overtime pay based on s. 6 of the LSA , apart from an examination of the managerial exemption set out in s. 4(2) and this Court’s decision in Kolodziejski . In my view, his thinking on the matter must have been informed by the following provisions of the LSA : Application of Act 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. ... Time for payment of wages in cases not provided for 48

(2) Every employee who terminates his employment or whose employment is terminated for any reason shall be paid his wages in full by his employer within 14 days after the day on which the termination of employment takes effect. ... Effect of Act on other Acts, agreements, contracts and customs 72

(2) Where any provision in this Act or in any order or regulation made under this Act requires the payment of wages at the rate of time and one-half, no provision in any Act, agreement or contract of service, and no custom, shall be deemed to be more favourable than the provision in this Act or in the order or regulation if it provides for the payment of wages at a rate less than the rate of time and one-half. ... Agreements not to deprive employees of benefits of Act 75

(1) No agreement, whether heretofore or hereafter entered into, has any force or effect if it deprives an employee of any right, power, privilege or other benefit provided by this Act. ... [ 78 ] Read together, these sections provide that the provisions of the LSA apply to every employee employed in Saskatchewan, and to every employer of every such employee. Taken in reference to s. 6 and Mr. Balzer’s situation, they must be read to mean that, as a matter of statute, Mr.

Balzer was entitled to overtime pay for each hour he worked in excess of an 8-hour day or 40 hours in a week, and that Federated was obliged by law to give effect to Mr. Balzer’s statutory rights. Further, as noted in Kolodziejski , the effect of the LSA is to introduce further terms into employment contracts, which can be enforced in the same manner as any other contractual term (at para 21). [ 79 ] As discussed above, the trial judge found as fact that Mr. Balzer’s employment was not entirely of a managerial character and therefore his right to overtime pay was not ousted by s. 4(2).

The trial judge did not go on, however, to consider whether The Labour Standards Regulations, 1995 , RRS c L-1 Reg 5, in force and effect at the operative time, exempted Mr. Balzer’s job function from the right to overtime pay. Having carefully reviewed these Regulations , I am satisfied none applied to Mr. Balzer’s employment situation. [ 80 ] So, taking into account ss. 4(2) and 6 of the LSA , the evidence led at trial by Federated, the nature of Federated’s defence to this part of Mr.

Balzer’s claim, and this Court’s decision in in Kolodziejski , I am satisfied that although the LSA had not been specifically pled by Mr. Balzer as the legal basis for his unpaid overtime claim, the trial judge correctly concluded that Mr. Balzer was entitled to overtime pay. In the result, the error in law did not amount to a substantial wrong or miscarriage of justice that requires the judgment to be set aside or sent back for a new trial. 2. The incorrect limitation period

[ 81 ] Even if Mr. Balzer is entitled to some amount of overtime pay, Federated argues the trial judge applied the wrong limitation period and thereby erred in law. It says Mr. Balzer’s claim for overtime pay was limited by s. 68.4 of the LSA to one year and not the six- year limitation period set out in The Limitation of Actions Act (repealed by The Limitations Act , SS 2004, c L-16.1). [ 82 ] The Limitation of Actions Act established a six-year limitation period for claims of this nature: Periods of limitation 3

(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned: … (

f) actions for: (

i) the recovery of money, except in respect of a debt charged upon land, whether recoverable as a debt or damages or otherwise, and whether on a recognizance, bond, covenant or other specialty or on a simple contract, express or implied; or (ii) an account or for not accounting; within six years after the cause of action arose; [ 83 ] However, s. 3(2) of The Limitation of Actions Act went on to provide that the limitation period found in s. 3(1) did not apply in the face of another statute with a more specific limitation period: 3

(2) Nothing in this

section extends to an action where the time for bringing the action is by statute specially limited. [ 84 ] Federated argues s. 68.4 of the LSA , which establishes a time limit for making unpaid wage claims, represents a more specific limitation period and therefore governs Mr. Balzer’s circumstance.

Section 68.4 provides: Time limit for certain claims 68.4

(1) A claim pursuant to this Act with respect to unpaid wages must be made to the director or a duly authorized representative of the minister within one year after the last day on which payment of wages was to be made to an employee and an employer failed to make payment.

(2) Recovery of wages pursuant to this Act is limited: (

a) to wages that became payable in the year immediately preceding the day on which the claim was made to the director or duly authorized representative of the minister; or (

b) where the employment with the employer has ceased, to wages that became payable within the last year of employment with that employer. [ 85 ] This Court squarely identified the limitations imposed by s. 68.4 in paragraph 29 of Kolodziejski , where it said: ... This

section has two limitations. The claim itself must be brought to the Director within a certain period of time and the Director then can only pursue wages back one year, either to the year immediately preceding the day in which the claim is made or to wages payable within the last year of employment depending on the relevant circumstances. Thus, an employee is limited and would not be able to claim for holiday pay for earlier years if such a claim is proven. In the case before us the appellant’s claim for holiday pay would be barred by both these statutory limitations.

It is obvious that if the appellant is not allowed to pursue his claim through a civil action the wage assessment process outlined in the Act is for him a non-existent remedy . (Emphasis added) [ 86 ] Notwithstanding the limitations identified in s. 68.4, the Court went on to say: [30] In my view, it is not the intention of the Legislature to confer a statutory benefit and yet effectively bar the enforcement of that benefit if that employee fails to bring the claim within the year. I find the trial judge erred in finding the statutory remedies grant the appellant adequate protection.

See also: Watson v Wozniak , 2004 SKQB 339 , 252 Sask R 153. [ 87 ] Thus, in spite of the statutory limitations set out in s. 68.4, Kolodziejski declined to interpret the LSA in a manner that limited an employee’s rights and remedies available in a civil action to one year. Given this result, I find the trial judge did not err in law by imposing the six-year limitation period prescribed by The Limitations of Actions Act. [ 88 ] Federated argues Kolodziejski was wrongly decided and that this Court should instead follow the British Columbia Court of Appeal in Macaraeg v E.

Care Contract Centers Ltd ., 2008 BCCA 182 , 295 DLR (4th) 358. I decline to do so. This Court is bound by its decision in Kolodziejsk . If Federated had wanted this Court to revisit its previous decision, it should have requested a five member panel to sit on this appeal for that express purpose. It failed to do so. [ 89 ] In light of this Court’s holding in Kolodziejski , Federated’s argument about the application of the more restrictive limitation period must fail.

VI. CONCLUSION [ 90 ] For the reasons given, both Mr. Balzer’s appeal and Federated’s cross-appeal are dismissed. Both parties have met with some success in this Court, which ordinarily would have resulted in a costs award in their favour. However, since an award of costs for one side would roughly be set-off by an award of costs for the other, I find it appropriate in the circumstances to make no order for costs in this Court. “Schwann J.A.” Schwann J.A. I concur. “Richards C.J.S.” Richards C.J.S. I concur. “Herauf J.A.” Herauf J.A.