3225-99-ES A. A. Waters & Brookes, Applicant v. Farzin Lachini et al. and Ministry of Labour, Responding Parties.

Employment Practices Branch File No. 41008505

BEFORE: Patrick Kelly, Vice-Chair.

APPEARANCES: John D. Lewis, Alan Brookes, Harold Deenen and Tony Di Giovanni for the applicant; Farzin Lachini and Joe Teves for the responding party; Deanna Exner for the Ministry of Labour.

DECISION OF THE BOARD; September 26, 2001

1This is an application for review filed pursuant to section 68 of the Employment Standards Act, R.S.O. 1990, c. E.14, as amended (“the Act”) against Order to Pay No. 51326 issued by an Employment Standards Officer on January 7, 2000.

2The Employment Standards Officer found that the applicant (“the employer” or “the company”) was in violation of Part IV section 17 (hours of work); Part VI, section 24(1) (overtime); and Part VII, s. 26 (public holidays) of the Act in respect of the responding party employees (“the employees”).

3The hearing in this matter commenced on December 13, 2000 and continued on January 23, April 23 and August 8, 2001. Throughout, only two of the employees affected by the Order to Pay participated, Joe Teves and Farzin Lachini. Mr. Lachini’s participation was sporadic, and he did not appear at all on August 8, 2001 at which time I heard the final arguments of the parties in attendance.

The issue

4The company, which is in the business of designing, installing and maintaining irrigation or water systems for plant material, contends that the employees are employed in landscape gardening, and are therefore exempt from the Act’s hours of work, overtime and holiday pay requirements by virtue of Regulation 325 R.R.O. 1990, as amended (“Reg. 325”). In the alternative, the company submits the employees are employed in the construction industry, and thereby exempt from the hours of work provisions of the Act, also by virtue of Reg. 325. The responding parties who participated in the hearing of this matter were of the view that the work of the employees did not fall within the statutory meaning of landscape gardening, and that they are therefore entitled to the amounts set out in the Order to Pay. The Ministry of Labour conceded that some of the work done by some of the employees might be work in construction, but that, should I reach such a conclusion, it would not affect the monetary aspect of the Officer’s Order to Pay.

The evidence

The business of the company

5The employer originated in 1987 as an unincorporated business dealing both in landscaping and irrigation systems. Upon incorporation some five years ago, the company devoted itself exclusively to automated irrigations systems (systems of interconnected underground pipes to which are attached ground-level sprinkler heads, all of which are activated by electronic timing devices). Its customer base is urban, divided more or less equally between homeowners and commercial enterprises, with a small reliance upon institutional clients. On three occasions in the last thirteen years, the applicant has installed irrigation systems in sport fields, and, in that same period, once modified an irrigation system for a clay tennis court. The company designs about one-half of its irrigation projects, which I shall refer to as “green field installations”. The remainder of the projects involve irrigation systems already designed and installed, but in need of modification. Most of the larger projects undertaken by the company are initiated through landscape contractors who sub-contract the irrigation systems work.

6The company’s work is seasonal. Activity commences in the Spring, reaches its peak in May and June of each year, and winds down by mid-Fall, at which time the irrigation systems are prepared for winter shutdown. To a considerable extent, the scheduling of the company’s projects is affected by external factors, primarily the schedule of the landscape contractors and the weather. Many of the applicant’s projects cannot be pinpointed on the calendar with certainty. That is because the timing of the applicant’s work depends upon the speed and efficiency by which the landscape contractor has advanced its work, which in turn is influenced by weather conditions. The applicant’s work on these projects commences when the landscape contractor is on the brink, in its critical path, of receiving and placing plant material in the ground. The applicant often has in the area of 36 hours notice of the actual commencement of its work. If it fails to respond on time and/or install the system expeditiously, and the landscape contractor’s plants die or are in peril as a result, the applicant is responsible for the purchase of replacement plants or the costs of transporting water to the site. The applicant must temporarily stop work (regardless of whether it is working with a landscape contractor, or independently) in the event of rain, and possibly thereafter, depending upon the ground conditions.

7The company’s hours of work are not fixed daily. Delays caused by unfavourable weather conditions or by a landscape contractor can result, and have resulted, in project overlaps in the applicant’s schedule, thus requiring extra time and effort by its employees in a given work week. Plants and newer shrubs removed from an existing landscape for the purpose of installing an irrigation system must be restored the same day, requiring the installation to be completed that day.

8On green field projects involving a landscape contractor, the applicant and the landscape contractor consult closely during the irrigation system installation, particularly with respect to the placement of the underground pipes in planned garden areas. The landscape contractor will generally indicate the order in which the installation is to be carried out, and there is always discussion concerning the height of the plants to be planted and irrigated.

9The applicant employs both technical and service employees. Technical employees are involved mainly in the installation of systems, but they can also be assigned service work. The reverse is true of the service workers. At best, the service component generates one-third of the applicant’s total business, with the rest coming from irrigation installation.

10The service employees, of whom there are between 1.5 to 2.5 full-time equivalents, mainly prepare existing irrigation systems for operation in the Spring (including repairs) and close, or “winterize”, them in mid-Fall. The Spring preparation may involve adjustments to the flow of water from the sprinkler heads in order to provide adequate water coverage in proportion to the growth in the landscape since the previous watering season. This appears to be within the employee’s discretion and judgement. Service employees also make maintenance calls throughout the season. The uncontradicted evidence of Mr. Brookes was that, although landscape contractors in the Greater Toronto Area generally do not install irrigation systems as part of their business (with some notable exceptions), it is not uncommon that they provide maintenance services with respect to irrigation systems. Indeed, Mr. Brookes has from time to time lost maintenance business to landscape contractors.

11There are approximately eight technical employees whose job it is to install irrigation systems based upon layouts or drawings produced by the company’s owner, Alan Brookes, or the landscape contractor. These layouts ultimately determine the route of the underground pipes and the location of the sprinkler heads, based upon the existing landscape or the landscape that is to be achieved. In the case of a new commercial landscape that is to be created, these layouts are often juxtapositions of the irrigation plan upon the landscape contractor’s “planting plan”. The planting plan typically will show the kinds of plant life to be installed, their size above ground, their root size and the measure of spread between them. The irrigation plan is then designed and marked accordingly. Typically, Mr. Brookes places flags on the project site indicating where the sprinkler heads are to be placed. The applicant’s employees have nothing to do with the planning process or the creation of the drawings. There was very little evidence to suggest that the employees actually consult the drawings. There is little need to do so, as quite often the landscape contractor is present for consultation, and Mr. Brookes appears to be frequently present at project sites, placing flags or otherwise making himself available in the event of problems or questions.

12Typically, a green field installation involves the removal and protection of sod, the separation of top soil and sub-grade or “garbage” soil, the digging of trenches, the laying and connecting of pipes and sprinkler heads, and the re-establishment of the soils, property grade and sod. There was some dispute between the parties in this matter regarding the amount of time typically required in each of the processes. Mr. Brookes suggested that the restoration of the landscape, once the pipes and sprinkler heads are installed, takes up at least 50% of the total time of a system installation. He was challenged closely by counsel for the Ministry of Labour on this point, but he remained adamant. Mr. Teves had something to say about this issue. He suggested that most of his time was spent on plumbing, which further suggested that he spent little time restoring the landscape. But Mr. Teves was the foreman on the crew in which he worked, and I cannot say that his duties were typical of the other technical employees. Mr. Lachini speculated that he spent substantial portions of time in plumbing and ditch digging, but he did not offer any evidence concerning the amount of time he spent on landscape restoration other than time spent tamping (the process of packing down soil). It was not clear to me whether he was involved at all in the restoration of sod, nor was it clear the extent to which he worked on restoring the property grade. I am therefore left with Mr. Brookes’ evidence as the most reliable on this point.

13There was no dispute that the normal daily hours of work ranged from 7:00 a.m. until 5:00 p.m. or 6:00 p.m., and it sometimes happened that employees worked as late as 9:00 or 10:00 p.m. if that was required to complete the task, especially if there were plants still to be placed in the ground. In the usual course, the company did a new project every day. It sometimes operated every day of the week. Employees would work from 50 to 70 hours a week at the peak of the company’s business cycle.

14The technical employees determine the height at which the sprinkler heads are set next to ground level, depending upon the height and type of the vegetation to be irrigated. Care must be taken that the position of a sprinkler head on a lawn is such that it will not be damaged later by a passing lawn mower. When it is necessary to route an installation through an existing garden, the technical employees may be required to separate mulch from soil, and dig out plants, protecting their root systems by placing them in a shaded area or covering the plants with light tarps, and then re-plant them after the underground pipes have been laid. The tools used in the installation process include rakes, shovels, pipe-installation machinery, cutters, crimpers for pipe connection and tampers to pack down soil and re-establish grade.

15Mr. Brookes testified that it is the company’s objective and practice to impart knowledge to the senior technical employees concerning evapotransforation, water-soil infiltration rates, and appropriate watering schedules depending upon the type of landscape and soil to be irrigated. It would appear, however, that some employees are more interested than others in this kind of information and its application in the work, and therefore Mr. Brookes accommodated those interests. Other employees, like Mr. Teves, were more adept at restoring the landscape to its original appearance following the installation process. Again, it appears that the company played to the particular employee’s strengths. However, it was Mr. Brookes’ expectation that every employee must know enough not to cut plant life, and to recognize the difference between new and established plants in taking the proper precautions when removing them. At one time, the company regularly provided training sessions (but not at the time the Employment Standards Officer made his determination). There are reference textbooks available in the main office, but they are seldom used. Due to the high staff turnover which the company usually experiences from year to year, it is Mr. Brookes who is the main source of plant and irrigation knowledge, and it is Mr. Brookes who plays a very “hands on” role at the installation sites, directing employees on the finer points of irrigation technique. This typically occurs when the employees are experiencing a particular problem or challenge. They generally refer their questions to Mr. Brookes. One of the most common issues that arises is the determination of the amount of water required for specific areas or sites. That often depends upon the type of soil in question (as well as the grade of the property), and its water infiltration rate. Employees are accustomed to hearing Mr. Brookes make inquiries of the kind of soil they are encountering during the digging process. Mr. Brookes also often speaks to them about caring for delicate plants, and the need for all plant material to receive 1.5 inches of water weekly.

16From time to time, and depending upon their level of knowledge, employees may make changes to the sprinkler head locations, which are generally pre-determined by Mr. Brookes. This will occur when the landscape contractor makes changes to the planting plan, or some aspect of the landscape is otherwise changed from what was originally anticipated. Sometimes changes in the landscape that were unanticipated by Mr. Brookes when he designed an irrigation system become apparent to the technical employees, such as the appearance of a perennial plant weeks after Mr. Brookes has visited the site. In such a case, the employee would never unilaterally change the original design, but might bring the matter to the attention of Mr. Brookes for re-design, or adjust the height of the sprinkler head to accommodate the problem, or even move the plant itself to another location, if possible. These solutions are within the discretion of the employee who comes upon the particular problem. It was not uncommon for technical employees to change the nozzles in the sprinkler heads designated by Mr. Brookes for a project, so that unanticipated shortfalls in water coverage might be corrected.

Horticulture, landscape architecture/gardening, and the role of irrigation systems

17The Board heard from two witnesses who claimed expertise in matters of landscaping and horticulture respectively. Harold Deenen is a landscape architect who holds a large number of advisory positions with various landscape and horticultural organizations, including Landscape Ontario. He also is the owner of his own landscaping business in which he has twenty-seven years experience. Mr. Deenen is a graduate of a three-year technical landscape technology program with Humber College, certified in the trade of horticulture, and a member of the Ontario Association of Landscape Architects.

18Tony Di Giovanni is the current president of Landscape Ontario, a member of the Ontario Diploma of Horticulture Advisory Board and a member of the Landscape Architecture Program Advisory Board at the University of Guelph. Mr. Di Giovanni has horticulture teaching experience at the community college level, and was a horticulture grower for Centennial Park Conservatory in Etobicoke for a period of six years. He holds a landscape technician diploma from Humber College.

19The uncontradicted evidence of Mr. Deenen and Mr. Di Giovanni established the following with respect to horticulture education and the horticulture industry in Ontario. Horticulture is a trade regulated by the Ministry of Education. The designation requires successful completion of an apprentice program involving 2000 hours of in-school and practical learning, eventually leading to a certificate of qualification in horticulture. A number of community colleges in Ontario, such as Humber College deliver three-year programs which prepare students for competence in landscape technology as horticulturists. The apprenticeship curriculum covers, among many other topics, irrigation systems. The degree to which each of the community colleges offering horticulture studies devotes time and resources to studies in irrigation varies depending upon the branch of horticulture being studied.

20There are roughly 100,000 individuals who work in the horticulture industry, but only approximately 300 have graduated from horticulture schools. Most people working in horticulture learn aspects of the trade on the job.

21Mr. Deenen and Mr. Di Giovanni also gave uncontradicted evidence concerning horticultural associations. Their evidence disclosed, for example, that Landscape Ontario is a trade association representing the Ontario horticultural industry, including landscape designers, landscape contractors, landscape maintenance contractors, lawn care contractors, nursery growers, garden centres, and irrigation systems contractors. Its goals are, first, to foster professional development and education among its members and, secondly, to promote the horticultural industry in general. Landscape Ontario plays a significant role advising the Ministry of Education with respect to its horticulture apprentice trade program, and in assisting community colleges with respect to horticulture curriculum standards. Membership in Landscape Ontario requires full-time engagement in an activity related to plant material. For example, brick interlock businesses with no connection to plant life cannot be active voting members, although they can be admitted as associate members.

22According to Mr. Di Giovanni, irrigation systems contractors must either have some knowledge of plant life, or be supervised by someone who does, in order to successfully carry on business. The bulk of plant life knowledge is usually borne by the managers and owners of the irrigation systems business, and less by the employees, although, ideally, all employees should have that knowledge.

23In large urban areas, such as the Greater Toronto Area, the trend is to specialize in irrigation systems rather than incorporate that function directly into the landscape contractor’s business. That is because irrigation specialists tend to be more efficient in the installation phase, and also because, economically, it may not make sense for landscape contractors to employ irrigation specialists on a full-time basis when they cannot be utilized or kept busy all hours of the working day or week. It is more common, however, for the landscape contractor to do routine irrigation system maintenance such as setting timers and adjusting sprinkler heads, thereby gaining control over the system that directly affects the quality of their landscape projects.

24Mr. Deenen and Mr. Di Giovanni had remarkably similar views of the term “landscape gardening”. They described it generally as the design, construction, modification, maintenance and sustainment of the outdoor environment. Mr. Deenen actually delineated between landscape architecture and landscape gardening. Landscape architecture involves landscape design and layout, whereas landscape gardening is the actual modification and change to the landscape. Landscape contractors generally do both.

25The single most important component in sustaining and propagating plant life is water and the delivery of water to a plant’s fibre roots. According to Mr. Deenen, eighty per cent of plant fatality is due to lack of water. Automated irrigation systems are a highly efficient method of delivering the right amount of water to plant life.

26In a scenario involving the collaboration of landscape contractors and irrigation systems contractors in a particular project, they tend to work in a consultative manner, discussing plant material types, their heights and locations. The landscape contractor usually occupies the unofficial role of general contractor on site.

Decision

27As stated at the outset of this decision, the issue to be decided in this matter is whether the employees of the company were employed in landscape gardening, and thus exempt from the Act’s hours of work, overtime and holiday pay requirements by virtue of Reg. 325

28The relevant sections of Reg. 325 as they were at the time this application was filed were as follows:

4. Part IV, except section 22, of the Act does not apply to a person employed,

(a) as a full-time firefighter as defined in the Fire Departments Act;

(b) whose only work is supervisory or managerial in character;

(c) as a fishing or hunting guide;

(d) to work in construction;

(e) in,

(i) landscape gardening,

(ii) mushroom growing,

(iii) the growing of flowers for the retail and wholesale trade,

(iv) the growing, transporting and laying of sod,

(v) the growing of trees and shrubs for the wholesale and retail trade

(vi) the breeding and boarding of horses on a farm, or

(vii) the keeping of fur-bearing animals, as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;

(f) [Revoked O. Reg. 423/94, s.1]

(g) as a superintendent, janitor or caretaker of a residential building and who resides in the building; or

(h) as an embalmer or funeral director.

6. Part VI of the Act does not apply to a person employed,

(a) as a full-time firefighter as defined in the Fire Departments Act;

(b) whose only work is supervisory or managerial in character;

(c) as a fishing or hunting guide;

(d) in,

(i) landscape gardening,

(ii) mushroom growing,

(iii) the growing of flowers for the retail and wholesale trade,

(iv) the growing, transporting and laying of sod,

(v) the growing of trees and shrubs for the retail and wholesale trade,

(vi) the breeding and boarding of horses on a farm, or

(vii) the keeping of fur-bearing animals as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;

(e) [Revoked O. Reg. 423/94, s.2]

(f) as a student to instruct or supervise children;

(g) as a student at a camp for children;

(h) as a student in a recreational program operated by a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada), where the work or duties of the student are directed connected with the recreational program;

(i) as a superintendent, janitor or caretaker of a residential building and who resides in the building;

(j) as a taxi cab driver; or

(k) as an ambulance drive, ambulance driver’s helper or first-aid attendant on an ambulance.

7. (1) [Public Holidays] – Part VII of the Act does not apply to a person employed,

(a) as a full-time firefighter as defined in the Fire Departments Act;

(b) as a fishing or hunting guide;

(c) in,

(i) landscape gardening,

(ii) mushroom growing,

(iii) the growing of flowers for the retail and wholesale trade,

(iv) the growing, transporting and laying of sod,

(v) the growing of trees and shrubs for the retail and wholesale trade,

(vi) the breeding and boarding of horses on a farm, or

(vii) the keeping of fur-bearing animals as defined in the Fur Farms Act, for propagation or the production of pelts for commercial purposes;

(d) [Revoked O. Reg. 423/94, s. 3.]

(e) as a student to instruct or supervise children;

(f) as a student at a camp for children;

(g) as a student in a recreational program operated by a charitable organization registered as a charitable organization in Canada under Part I of the Income Tax Act (Canada), where the work or duties of the student are directly connected with the recreational program;

(h) as a superintendent, janitor or caretaker of a residential building and who resides in the building;

(i) as a taxi cab driver; or

(j) as a seasonal employee in a hotel, motel, tourist resort, restaurant or tavern who is provided with room and board.

(2) An employee who works in construction and receives 7 per cent or more of the employee’s hourly rate or wages for vacation pay or holiday pay is exempt from Part Vii of the Act.

(3) Substituted Day – Where an employer, with the agreement of an employee to whom section 25 of the Act does not apply, substitutes or designates a day for a public holiday, the day so substituted or designated shall be the public holiday for the purposes of section 26 of the Act.

29In closing argument, counsel for the employer referred me to the following authorities: Re Submatic Irrigation Systems Canada, Inc., [1990] O.E.S.A.D. No. 116 (Baum); Re Andrew Agrichemicals, [1992] O.E.S.A.D. No. 74, (Novick); Re Ontario Mushroom Co. Ltd. et al. and Learie et al. (1977), 1977 CanLII 1838 (ON HCJDC), 76 D.L.R. (3d) 431 (Ont. Div. Ct.); International Hod Carriers’ Building and Common Labourers’ Union of America, Local 506 and McLean-Peister Limited, [1962] 63 C.L.L.C. ¶ 16272 (O.L.RB.); Re Gomez, [1995] O.E.S.A.D. No. 113, (Signoroni); Re Braun Nursery Limited, April 22, 1981 (E. Norris Davis); and Employment Standards Act, Ont. Reg. 325, ss. 4, 6 and 7.

30Counsel for the Ministry relied upon the following authorities in support of its view that the claimants were not exempt from the protections of the Act as set out above: Submatic Irrigation Systems Canada Inc., supra; Andrews Agrichemicals, supra; Machtinger v. HOJ Industries Ltd., 1992 CanLII 102 (SCC), [1992] 1 S.C.R. 986; Ministry of Labour v. Clark Agri Service Inc. [September 1998] decision of Bennett, J. (Ont. C. J. (Prov. Div.)) (unreported); Her Majesty The Queen v. Spanway Buildings Limited, [April 1988] decision of Collins, L.T.G. (Prov. C. (Crim. Div.)) (unreported); and Interpretation Act, R.S.O. 1990, c. I-11, s. 10.

31For the reasons that follow, I have determined that the employees are engaged in landscape gardening, and that the Order to Pay should be rescinded.

32In the HOJ decision, supra the Supreme Court of Canada dealt with the termination provisions of the Act. It noted that the statute was intended to remedy the unequal bargaining power between employers and employees by the imposition of certain minimal protections. Where there are competing interpretations of the Act’s requirements, the Court stated that the interpretation which encourages employer compliance, and thereby extends the Act’s coverage to the greatest number of employees possible is to be preferred to interpretations that do not achieve those objectives. As the Court pointed out, section 10 of the Interpretation Act, supra, deems all statutes to be remedial in nature, and thus requires that such laws be given fair, large and liberal interpretation. However, in analyzing the statutory language exempting certain categories of employees from certain provisions of the Act, I do not take the Court’s decision in HOJ to hold that I should, so as to ensure employer compliance and the optimum application of the statute, interpret the legislation in such a way that is at odds with the plain reading of the words, or that is incongruent with the scheme and framework, of the Act.

33In the analysis of the facts and law in the matter before me, I begin by observing that the term “landscape gardening” is not defined in Reg. 325 or the Act. The applicant and the Ministry referred me to several dictionary and encyclopaedic definitions of the phrase, but I decline to attempt an exhaustive meaning. It is not necessary to do so, for the question in this case is whether or not the business of the applicant fits within the construct of the term, “landscape gardening”. If it does, the claimants are without the protection of Parts IV, VI and VII of the Act.

34There have been several decisions of Referees in which some attempt was made to come to terms with the meaning of landscape gardening.

35The Submatic decision, supra - the case most favourable to the responding parties’ position in this matter – involved an employer engaged primarily in the installation of irrigation systems. The remainder of the business dealt with the provision of tools and equipment (and advice related to their utilization) to dealers in the farming industry. As in the case before me, the employer in Submatic worked closely with landscape gardeners, and was responsible for restoring gardens to their original condition after installation of irrigation systems, thus necessitating the replanting of shrubbery and flowers. It was not disputed that the employer’s work was closely associated with the proper functioning of a garden.

36The Referee determined that the plain meaning of landscape gardening “relates to the direct act of landscaping gardening, that is, of creating a landscape garden”. He rejected the notion that the employer in that case was involved in the creation of a landscape garden. He went on to explain his reasoning, as follows:

I derive this meaning from the term itself as well as from the terms used in the subsection (d) of which it is a part, namely, mushroom growing, growing flowers for the retail and wholesale trade, the growing, transporting and laying of sod, the growing of trees and shrubs for the retail and wholesale trade, the breeding and boarding of horses on a farm, the keeping of fur-bearing animals.

First, all of the listed exemptions relate to industries engaged in dealing directly with growing, alive things. It can be assumed that, as Ministry Counsel noted, the laws of nature in terms of sustaining that growth do not necessarily coincide with the rules of the Employment Standards Act. It simply might be necessary to work in excess of the requisite number of hours and move into an overtime mode to care for the plants, trees, sod or animals.

The same cannot be said of an irrigation system. The irrigationist knows in advance when the system will be needed, and what the system must achieve.

Second, consider the exemption listed under the subsection relating to the growing, transporting and laying of sod. The evidence was clear that the laying of sod was seen by the Employer as a part of landscape gardening. Indeed, the point was made that the Employer frequently was required to replace such sod after an irrigation system had been installed. Yet, the fact is that the regulation treats the laying of sod as a separate category of exemption unrelated to landscape gardening.

37In my view, Submatic is distinguishable from the facts in the matter before me. In that case – which I note was heard over the course of a single hearing day, and appears to have involved an assessment of fairly simple stipulated facts – the Referee found that, unlike others in the business of dealing directly with growing, alive things, the irrigationist knows in advance when the system will be needed, and what the system must achieve. The finding in Submatic with respect to the irrigationist’s advance knowledge of the time of installation was not borne out by the evidence in this case. In the matter before me, the applicant routinely had a rough idea of the timing of any particular installation, but generally did not know of precisely the time until 36 hours prior. There were occasions of even less notice. In addition, it was generally necessary to complete installations on the day they commenced to ensure the survival of new plants or the replanting of those plants temporarily removed to accommodate the installation. Finally, it was not always possible for the applicant to know in advance what the irrigation system was intended to achieve, because it was not uncommon for the original landscape design to change. The irrigation system must be capable of accommodating and responding to those unforeseen changes.

38I am also not persuaded by the Referee’s conclusions in Submatic concerning the significance of the other listed exemptions that are grouped together with landscape gardening in sections 4, 6 and 7 of Reg. 325. His view was that “the laying of sod” was a separate category of exemption unrelated to landscape gardening, and that, accordingly, the irrigationist’s role in laying sod should not be considered part of landscape gardening. However, the sod exemption refers to employees employed in “the growing, transporting and laying of sod”. That suggests an enterprise dedicated not only to the installation, but also to the creation and transport of a product. Such an enterprise is readily distinguishable from the business of landscape gardening. That being said, however, it goes too far, in my opinion, to suggest that the statutory scheme of Reg. 325 is such that the laying of sod is not or cannot be a component of landscape gardening. Reg. 325’s other exemptions make reference to persons whose employment has some connection to the growth of flowers, trees and shrubs for commercial purposes. Surely that cannot be taken to mean that, by process of logical deduction, the term, “landscape gardening” in Reg. 325 must be understood to have nothing to do with flowers, trees and shrubs.

39In Albert Andrews Enterprises Inc., supra, the issue was whether or not the application of industrial, roadside and railroad weed and brush control herbicides constituted landscape gardening within the meaning of Reg. 325. The evidence disclosed that the two claimants sprayed herbicides in mainly industrial settings, on contiguous roadways and railway tracks, not areas in need of landscaping or beautification. Moreover, the purpose of the work was to control vegetation to prevent fires, make sites safer for employees working in the area, and to improve visibility and prevent contamination. The Referee found that this was not landscape gardening. While I agree with the legal conclusion reached by the Referee, the matter before me is distinguishable from the Albert Andrews case. The applicant’s business is a mix of residential and commercial, and its purpose, at least in part, is to contribute to the sustainment of landscapes and their aesthetic enhancement. The business purposes of the employer in Albert Andrews had no obvious nexus with plant life survival or beautification of the landscape.

40On the other hand, Re Gomez, supra, is more on point. The claimants in that matter performed a number of tasks associated with the employer’s landscaping business, including the installation of interlocking bricks and the erection of retaining walls around garden areas. The claimants contended that the brick work and wall-building comprised 80 per cent of their duties, and that gardening tasks occupied the remaining 20 per cent. The employer adduced evidence that challenged the contention of the claimants. The Referee found it unnecessary to make a determination on the delineation of the tasks because he was satisfied that the installation of interlocking bricks and building of retaining walls around gardens constituted “an integral aspect of the landscape gardening work done by the Employer…”

41The Braun Nursery case, supra, is of some interest in the determination of this matter, despite its different facts. That case suggests that the proper focus in the interpretation of the exemption in Reg. 325 should not be directed on any particular employee’s duties or classification, but rather on the employer’s business and whether what the employee does is necessary to producing the desired end-product associated with that business. There, the issue was whether two mechanics, whose sole responsibility was the maintenance of agricultural equipment used in their employer’s business, were, like the employees in the case before me, exempt from similar statutory protections. The employer’s primary business was the growing of trees and shrubs for wholesale. Landscaping formed a much smaller portion of the business. The Referee decided the mechanics were employed in landscape gardening and in the growing of trees and shrubs for the retail and wholesale trade, and, in arriving at that determination, observed:

It seems to me that the question is whether the duties performed by Williams and Convey [the two mechanics] are solely required and solely contributory to the overall business enterprise i.e. growing of trees and shrubs or landscape gardening. To take any other view militates against the efficiencies of specialization of labour and/or the division of labour. There can be no doubt that the tools or equipment used in the specific operation will require to be maintained and repaired. It could be accomplished by the user of the tool or equipment being required to do such maintenance and repair himself, and if that were the way in which the work was organized I would think that such a person would be, nonetheless, clearly engaged in landscape gardening or in growing trees and shrubs for the total of his work time. If I am correct in that, it then becomes apparent that it is not the occupation of the employee or the particular sub-division of the total labour which is assigned to the individual employee which is determinative. The test has to be whether what the individual employee is doing is necessary to producing the desired end-product of the business enterprise. If it is, then that person is employed in, as here, landscape gardening or the growing of trees and shrubs.

42The Gomez and Braun Nursery cases suggest that it is appropriate to consider the overall purpose of the enterprise, and the employees’ role within that overall purpose when determining whether or not a person is employed in landscape gardening. In the matter before me, the applicant’s business purpose is to provide and maintain irrigation systems not merely for the sake of conducting water, but for the broader purpose of sustaining and maintaining landscapes. If that were not the case, the applicant would not bear any financial responsibility for dead plant life resulting from its failure to deliver water or care for temporarily removed plants. The employees in this matter play an integral role in realizing the applicant’s business aspirations.

43In many parts of Ontario, landscaping, on one hand, and irrigation system installation and maintenance on the other, are typically combined. In others, most notably large urban areas, it is much more common to find specialization of these functions within the horticultural industry. The reasons for organizing businesses in either manner are largely economic.

44Just as brick work and retaining walls are integral to the look and function of certain types of garden, so to is the appropriate distribution of moisture essential to the survival and appearance of plant life. That point is underscored by the fact that irrigation systems studies form part of the curriculum of a number of community colleges offering courses in landscape technology leading to a designation in the trade of horticulture.

45The company often works closely with landscape contractors. The workers of each, in differing degrees, deal with live, growing things. As the Referee in the Submatic case observed, “the laws of nature in terms of sustaining that growth do not necessarily coincide with the rules of the Employment Standards Act”. The endeavours of the applicant and the landscape contractors with whom it collaborates play out on a critical path that is largely influenced by compressed time pressures and the unpredictable dictates of weather. On the facts before me, it would make little sense to differentiate on any policy basis between employees of the applicant and employees of the landscape contractors who work side by side on the same project under similar time constraints, over the same season, and joined in a similar business purpose.

46For all these reasons, I find that the employees are employed in landscape gardening. It is, therefore, unnecessary to deal with the company’s alternative position that the employees are employed in the construction industry.

47Pursuant to the authority contained in subsection 68 (20) of the Act, I hereby rescind Order to Pay 51326. I further order that the amount of $8,505.92 in respect of wages, and the administrative fee of $850.59, paid to the "Director in trust" in relation to this matter, plus any interest accrued thereon, be returned to the employer.

“Patrick Kelly”

for the Board