COURT FILE NO.: 567/2000

DATE: 20030312

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BLAIR R.S.J., LANE AND J. MACDONALD JJ.

B E T W E E N:

663605 ONTARIO LIMITED, OPERATING AS GUARDIAN EAGLE RESORT

Applicant

• and -

MARTIN LAPPAGE and MINISTRY OF LABOUR

Respondents

Richard Davidson - (the principal of the Applicant company) In Person

Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board

No One Appearing for Martin Lappage

HEARD: March 12, 2003

BLAIR r.s. J.: (Orally)

1This is an application for judicial review of the decisions of Janice Johnston, a Vice-Chair of the Ontario Labour Relations Board sitting as an adjudicator/referee on an application for review under the Employment Standards Act. She found that the respondent, Martin Lappage was entitled to vacation pay for the last two years of his employment with the applicant, Guardian Eagle Resort.

2Guardian Eagle Resort is located in Sioux Lookout in Ontario and employed Mr. Lappage to manage and maintain the resort from March, 1991 through December 31, 1996. He was paid a salary of $4,000 per month over twelve months per year initially, raised to $4,500 per month in January, 1994 and he was expected to work 40 hours per week.

3Mr. Lappage managed the resort during the period it was open from May to September and in the off season he worked maintaining the resort bringing in supplies and fuel and attending at various sports shows. Mr. Lappage kept records of the hours he worked. He attended at the hearing before the adjudicator. Mr. Davidson, the principal of the applicant who appeared before us today, did not attend the hearing but the company was represented at the hearing by the company's lawyer and by Mr. Davidson's daughter.

4The adjudicator found that the evidence called by Mr. Lappage demonstrated he worked well in excess of the 40 hours per week he was being paid for and in fact that he worked on a full-time basis during the winter months. Mr. Lappage never received any vacation pay.

5The position of the company at the hearing was summarized by the adjudicator in paragraph 5 of her reasons as follows:

"It was the position of the company that they were not obligated to pay Mr. Lappage vacation pay because he was paid on an annual basis even though he only performed active duties for the company from March to September of each year. Although the company acknowledged that he did perform some duties in the off months, it was their position that he did not work on a full-time basis during the time when the resort was not operating. Accordingly, it was their view that this period was to be considered Mr. Lappage's vacation time."

6In effect, the company's position was that Mr. Lappage had ample down time in which to take vacation in lieu of pay for vacation during the winter months and that he did so.

7The adjudicator did not accept this argument however. Her findings are set out in paragraph 7 of her reasons, which state:

"After having carefully considered the evidence in this case it is clear that Mr. Lappage worked year round on behalf of his employer. There is no evidence to indicate that he had substantial periods of free time during the months in which the resort was not open. To the contrary, the evidence called by Mr. Lappage indicates that he worked throughout the year on behalf of his employer. As such, he is entitled to vacation pursuant to section 28 of the Employment Standards Act. As he was never given any specific time off for vacation, he is entitled to four percent of the wages he earned during his period of employment with the company."

8On an application for judicial review of the decision of an adjudicator/referee under the Employment Standards Act, the standard of review is that of "reasonableness": see Re United Steelworkers of America, Local 14097 and Franks, et al. (1994) 1994 8708 (ON CA), 16 O.R. (3d) 620 (C.A.).

9The relevant provisions of the Employment Standards Act, as indicated above, are found in s.28 which state:

"28. Every employer shall give a vacation of at least two weeks to each employee upon the completion of each 12 months of employment whether or not the employment was active employment.

(2) An employer shall pay vacation pay to an employee entitled to a vacation under subsection (1).

(3) The vacation pay must be not less than 4 per cent of the wages (excluding vacation pay) earned by the employee during the 12 months for which the vacation is given."

(underlining added)

10Having regard to the record before the adjudicator we are satisfied that there was evidence upon which she could reasonably have come to the conclusions she arrived at and that there is no palpable or overriding error in her findings. The application must accordingly be dismissed.

11Before concluding however, we note that Mr. Davidson sought to rely, before us, upon what he says was an agreement made between Mr. Lappage and the applicant company in January, 1997, dealing with payment to Mr. Lappage for the extra hours he worked. He said that this document had been in the possession of the company's lawyer at the hearing. If that were so, it is not open to us to speculate why it was not put before the tribunal; but it was not. We declined to admit it on the judicial review application as there was no motion to that effect before us and since the document, on Mr. Davidson's submissions, was available and could have been put before the adjudicator at the time of the hearing. In any event, the document, it seems to us, was not dispositive of any issues before the tribunal, because we do not see how the alleged agreement would have helped the applicant company, as the issue is not whether Mr. Lappage was paid for all the hours he worked, but rather whether he received the vacation or pay in lieu of vacation called for by s.28 of the Act.

12The adjudicator found upon the record before her that he had not. The decision was not unreasonable and we cannot interfere with it. The application is therefore dismissed.

13I have endorsed the record as follows: "The application is dismissed for oral reasons delivered by Blair R.S.J. The respondent Board does not seek costs and there will be no order as to costs."

BLAIR R. S. J.

LANE J.

J. MACDONALD J.

Date of Reasons for Judgment: March 12, 2003

Date of Release: March 27, 2003

COURT FILE NO.: 567/2000

DATE: 20030312

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BLAIR R.S.J., LANE AND J. MACDONALD JJ.

B E T W E E N:

663605 ONTARIO LIMITED, OPERATING AS GUARDIAN EAGLE RESORT

Applicant

• and -

MARTIN LAPPAGE and MINISTRY OF LABOUR

Respondents