Ontario Labour Relations Board
0597-98-ES Joffre Bérubé a director of 1110957 Ontario Inc. o/a Soleil Levant, Applicant v. Roch Drouin and Ministry of Labour, Responding Parties.
0598-98-ES Sylvie Hubert Bérubé a director of 1110957 Ontario Inc. o/a Soleil Levant, Applicant v. Roch Drouin and Ministry of Labour, Responding Parties.
BEFORE: Bram Herlich, Referee.
APPEARANCES: Joffre Berubé, Richard Bosada and Diane Margis for the applicants; Grainne McGrath for the Ministry of Labour; Roch Drouin and Louise Lacasse for Roch Drouin.
DECISION: February 8, 2000
Decision
1These are applications filed to review the issuance of Orders to Pay Numbers D02435 and D02436. Both Orders issued on April 23, 1998. The first is made against the applicant Sylvie Hubert Bérubé; the second against her spouse Joffre Bérubé. Mr. and Mrs. Bérubé were both, at one time, directors of 1110957 Ontario Inc. o/a Soleil Levant (“Soleil”). It is as a consequence of their status as directors that the orders were made.
2The beneficiary of these orders was Roch Drouin a former employee of Soleil.
3On the first day of hearing, the parties, with the assistance of a Labour Relations Officer, spent some time discussing the issues and, although unable to resolve the case in its entirety, were able to narrow the issues and limit the determinations necessary for me to make.
4When those discussions concluded we heard the evidence of the applicants’ first two witnesses including that of M. Bérubé.
5At the commencement of the second day of hearing and as the applicants were about to call their final witness, Mr. Drouin ask to address the hearing. He indicated that he was unhappy with the evidence that had been put before me, with the length of time it had taken to dispose of the matter and with the unfair burden the proceedings had placed on his mother (who had some direct involvement in the relevant events and was expected to testify on his behalf).
6As a consequence of all that, Mr. Drouin advised that he was withdrawing and would participate no further in the proceedings.
7I indicated to Mr. Drouin that he was, of course, free to do so but that any such choice might put his case in serious jeopardy given (what might as a consequence become the contradicted) evidence we had heard so far. The matter was discussed further in the hearing room and privately between Mr. Drouin and Ministry counsel.
8Ultimately, however, Mr. Drouin chose to depart.
9The hearing proceeded and heard the applicants’ last witness. Prior to hearing the parties’ submissions, the Ministry and the applicants came to an agreement as how these proceedings ought to be disposed of in view of the uncontradicted and unchallenged evidence before me.
10In particular, there were two major issues before me.
11First, although it was agreed that Mme Bérubé was at one time a director of Soleil, viva voce evidence was called to establish that well before Mr. Drouin entered into an employment relationship with Soleil, Mme Bérubé had ceased to be a director.
12Second, a significant portion of the applicants’ evidence suggested that Mr. Drouin’s regular hours of work in the restaurant, which was open only from 7 a.m. to 3 p.m., were 44 hours per week. Although there was some documentary evidence to suggest Mr. Drouin regularly worked 10 and more hours per day 7 days a week, that evidence is in inconsistent with documentary evidence which made its way to Soleil’s ultimate receiver, which consisted of identical forms filled out differently.
13Indeed, it was conceded by Ministry counsel that (at least one of) the forms which suggested Mr. Drouin’s longer hours were filled in by Mr. Drouin not at the time that these hours were worked but rather at the time he subsequently filed his claim with the Employment Standards Branch.
14Most importantly, however, in view of his departure from the hearing we simply have no evidence from Mr. Drouin himself about the hours he claims to have worked. In that context and having regard to the agreement of the Ministry and the applicants, I now come the following conclusions.
15Since the evidence before me is uncontradicted and unchallenged that Sylvie Bérubé was not a director at the material time, Order to Pay #D02435 dated April 23, 1998 is hereby rescinded.
16I am satisfied that Mr. Drouin worked a total of 910 hours at the rate of $12.48 per hour. He was paid a total of $10,483.20; $873.60 less than he ought to have been.
17In addition Mr. Drouin worked on 3 public holidays for which a total of $449.28 (3 days x 8 hours x $18.72 per hour) ought to have been paid (the parties’ agreement appears to contain a clerical error since the product of 3 days x 8 hours x $18.72 per hour is $449.28 not $349.28).
18Thus Mr. Bérubé’s total earnings were $11,356.80 plus $449.28 in public holiday pay for a total of $11,806.08.
19He ought to have been paid 4% of that amount as vacation pay i.e. $472.24. Thus the total amount outstanding is:
(a) regular (unpaid) wages 873.60
(b) unpaid holiday pay 449.28
(c) unpaid vacation pay 472.24
Total $1,795.12
20Order to Pay #D02436, dated April 23, 1998 is hereby amended to reflect the total amount owing as $1,795.12.
“Bram Herlich”
Referee
This decision is issued under the administrative auspices of the Ontario Labour Relations Board, 505 University Avenue, 2nd Floor, Toronto, Ontario, M5G 2P1