2317945 Ontario Inc. carrying on business as KD Poultry v. Curtis Lavigne et al.
ONSC 4293
DIVISIONAL COURT FILE NO.: DC-20-2611
DATE: 20210621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton, and Kristjanson JJ.
BETWEEN:
2317945 Ontario Inc. carrying on business as KD Poultry
Applicant
– and –
Curtis Lavigne, Justin Fearns, Dakota Oliver, Director of Employment Standards and Ontario Labour Relations Board
Respondents
COUNSEL:
Cristy Nurse, for the Applicant
Evan Schiller, for the Director of Employment Standards
Aaron Hart and Lindsay Lawrence, for the Ontario Labour Relations Board
No one appearing for the other Respondents
HEARD: June 2, 2021 (virtually) at Ottawa
Aston J.
[1] KD Poultry (“KD”) brings this application for judicial review of a decision of the Ontario Labour Relations Board (“the Board”) dated February 7, 2020. The Board held that the farm worker exemption in s. 2(2) of O. Reg. 285/01 under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”), did not apply to the Applicant’s employees. Consequently, the Board confirmed (with some modifications) orders to pay (“OTPs”) against KD for three of its poultry service workers (“PSWs”)[^1]. The decision means that all KD’s poultry service workers will be entitled to various ESA benefits.
[2] The Applicant seeks (a) to quash the Decision as unreasonable and (b) a declaration that s. 2(2) of O. Reg. 285/01 exempts the Applicant’s PSWs from various provisions of the ESA.
The Issue
[3] The Applicant’s liability to pay holiday pay, and accord other employee entitlements under the ESA, depends upon whether the farm worker exemption contained in s. 2(2) of O. Reg. 285/01 applies to the work performed by the Applicant’s PSWs. Section 2(2) provides as follows:
Subject to [certain special rules re fruit, vegetable and tobacco harvest workers not germane to this appeal], Parts VII[^2], VII.1[^3], VIII[^4], IX[^5], X[^6] and XI[^7] of the Act do not apply to a person employed on a farm whose employment is directly related to the primary production of eggs, milk, grain, seeds, fruit, vegetables, maple products, honey, tobacco, herbs, pigs, cattle, sheep, goats, poultry, deer, elk, ratites, bison, rabbits, game birds, wild boar and cultured fish. (emphasis added)
The Board’s analysis
[4] The Board described the work of the PSWs as follows. The first phase of their work involves populating rearing-barns with pullets. The work is scheduled in coordination with farmers who will advise the Applicant company of a delivery of pullets. The PSWs take trays of pullets into the barn in which birds will be counted and placed into cages. Subsequently, the PSWs provide three vaccinations to the birds, two when the birds are around 8 weeks old, and the third vaccination when they are around 14-16 weeks old. When the chickens are ready to be moved into barns in which they will begin to lay eggs, the PSWs gather the chickens and load them for transport. Roughly a year later, the PSWs return to the egg-laying barns and collect the spent hens for transport to a processing facility.
[5] At para. 20, the Board summarized the evidence as follows:
Through Mr. Chamberlain’s testimony, and that of Ms. Chamberlain, it is apparent that: the employees are employed directly by KD; despite the fact that a particular farmer may be present when work is being conducted, on-site supervision is provided by KD; relevant training is provided through KD; and all decisions related to hiring, discipline and discharge are made by KD. In short, the PSWs have no direct relationship with the individual farmers on whose properties they are assigned to work. PSWs are assigned to work for different farmers, on different farms and can work on more than one farm in one day.
Mr. Chamberlain is the manager and sole owner of the Applicant.
[6] The Board considered the nature of the work performed by the PSWs and did not reject the possibility their work qualified as “employment directly related to the primary production of eggs” within the meaning of s. 2(2) of the Regulation. However, it did not address that aspect of the exemption provision because its finding that the work was not “on a farm” was dispositive of the issue.
[7] The Board’s reasons canvassed previous decisions of the Board which had considered the application of the farm worker exemption. The Board referred to 976395 Ontario Inc. v. Burry, 2001 11999 (Ont. LRB). Burry addressed whether the farm worker exemption applied to employees who attended at farms, collected broiler chickens, and loaded them for transport to processing facilities for a company which provided services to a variety of farmers. The Board quoted with approval the determination in Burry that:
…in my view the key words in the provision are “a farm”. A plain reading of those words mean that the exemption applies to employees who are employed on a single farm. Had the legislature intended the exemption to apply to workers who work on many farms it could have used words such as “employed in agriculture”, “employed on farms” or “employed in farming”. Since the employees in this case were employed by Moonfleet working at many farms, they are not covered by the Regulations.
[8] The Applicant submitted that this court’s decision in Rouge River Farms Inc. v. Director of Employment Standards and Ontario Labour Relations Board, 2019 ONSC 3498 (Div. Ct.), compels a re-examination of the Board’s prior decisions, Burry in particular. Rouge River determined that the phrase “a farm” could include various tracts of land owned by a single farmer. In Rouge River each of the farm locations were found to be interdependent parts of a single farm even though many of the employees worked at more than one location. There was also expert evidence to address the “unique constraints” for Ontario farms, explaining the agriculture sector’s history of exemption from certain employment standards in the ESA. This court found that the Board’s decision in Rouge River was unreasonable because “it ignored – without explanation – compelling expert evidence that necessitates a broader interpretation of ‘farm’ in [the Regulation]”.
[9] Ultimately, at paras. 32 and 33 of its Decision in this case, the Board found that “there can be no doubt that the applicant’s employees work on more than one farm and provide services to more than one farmer”. Relying on Burry, the Board found that “[i]t is the provision of services to multiple farms which removes the applicant’s business from the scope of the Regulation”.
Standard of Review
[10] Section 119(14) of the ESA provides that “a decision of the Board concerning the interpretation of this Act shall not be overturned unless the decision is unreasonable”.
[11] The parties agree that the standard of review is reasonableness.
The affidavit evidence
[12] As a preliminary matter we addressed the question of the affidavit evidence contained in the application record. As pointed out in Scott v. Toronto (City), 2021 ONSC 858 (Div. Ct.) at para. 21, it is not always necessary to bring a formal motion to introduce affidavit evidence in an application for judicial review, provided that the evidence comes within the limited circumstances where a party may lead evidence to supplement the record. However, we did not have to invite submissions on the question of whether a motion ought to have been brought in this case because counsel for the Applicant invited us to strike the affidavit and any reference to it in her factum.
Was the Board’s decision reasonable?
[13] The Applicant has the burden of showing that the Board’s decision is unreasonable: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 at para. 100. On the reasonableness review, the starting point is the reasons provided by the decision maker. A reviewing court is to give “respectful attention” to those reasons and assess “whether the decision bears the hallmarks of reasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision”: Vavilov, at paras. 84 and 99.
[14] The Applicant’s position is that “employed on a farm” should not be restricted to “employed on a single farm” or “employed by a single farmer”. It contends that the farm worker exemption must not be read so narrowly that the purpose of the exemption is defeated. The purpose of the regulation is to maintain ESA rights and protections for employees but also to protect and promote the interests of farmers and the agricultural sector.
[15] The Applicant submits that the Decision is unreasonable because it disregarded the Applicant’s relevant evidence about the state of the egg-laying industry in Ontario without adequate explanation. The Applicant argues that the Decision ignores uncontradicted evidence about the industry, the actual work performed by PSWs and how that work must be scheduled.
[16] The Applicant also submits the decision creates arbitrary and absurd results and promotes uncertainty.
[17] We are not persuaded that the Decision is unreasonable.
[18] We disagree with the Applicant’s contention that the Board disregarded the evidence respecting the operational context in which egg laying hens are reared, and eggs and/or spent hens are brought to market. At paras. 8 – 20 of the Decision, the Board summarized the evidence of the two witnesses the Applicant called. The Board accepted Mr. Chamberlain’s evidence concerning KD’s business model and the work of its PSWs. However, it did not accept his impression or understanding respecting the egg laying industry in general because he was not qualified as an expert. The Board did not err in drawing that line and finding that his opinion evidence “does not carry the weight of a qualified expert” (para. 8). Unlike Rouge River, the evidentiary foundation in this case does not support KD’s submission that a “purposive” interpretation of the Regulation ought to reflect the evolution, methodology and special scheduling problems of the egg laying industry.
[19] At paragraph 24 of its Decision, the Board considered both the purpose of the ESA and the competing purpose of the farm worker exemption. It adopted its earlier articulation of that interpretive exercise in Organix Matters Inc. v Director of Employment Standards, 2012 49515 (Ont. LRB) paras. 17-18. It considered the Applicant’s submissions about the rationale behind the exemption. On the evidence before the Board its conclusion that the exemption should be narrowly construed, and that it did not apply to KD’s PSWs, was not unreasonable.
[20] Vavilov points out that a reviewing court should consider whether a particular decision is consistent with the administrative body’s past decisions. Although the Board is not bound by previous decisions, it would bear the “justificatory burden of explaining that departure in its reasons” if it were to depart from those past decisions: Vavilov, at para. 131. Consistent with its past decisions, the Board in this case did not accept the proposition that the phrase “on a farm” ought to be expanded to include multiple tracts of land owned by multiple farmers and multiple farms. Consistency with the Board’s prior decisions is also reason to reject the submission that this decision creates arbitrary or absurd results or uncertainty.
[21] None of the logical fallacies the Supreme Court of Canada identified in Vavilov are present in the Decision. The Decision was based on a rational chain of analysis. That rational chain can be summarized as follows: the Applicant’s employees provide services to multiple farms; exemptions in the ESA are to be interpreted narrowly; the Board’s jurisprudence has consistently held that the exemption was not meant to cover commercial/industrial operations or operations providing services to multiple farms; therefore, the exemption does not apply to the current employees.
[22] The Decision strikes a balance between the purposes and objectives of the ESA and the farm worker exemption in s. 2(2) of O.Reg. 285/01 that is not unreasonable.
[23] The application is dismissed. By agreement of counsel no order is made as to costs.
Aston J.
I agree _______________________________
Swinton J.
I agree _______________________________
Kristjanson J.
Released: June 21, 2021
ONSC 4293
DIVISIONAL COURT FILE NO.: DC-20-2611
DATE: 20210621
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton and Kristjanson JJ.
BETWEEN:
2317945 Ontario Inc. carrying on business as KD Poultry
Applicant
- and -
Curtis Lavigne, Justin Fearns, Dakota Oliver, Director of Employment Standards and Ontario Labour Relations Board
Respondents
REASONS FOR DECISION
Aston J.
Released: June 21, 2021
[^1]: The three PSWs named as respondents in this application did not participate in the judicial review. [^2]: Hours of Work [^3]: The “Three Hour Rule” [^4]: Overtime Pay [^5]: Minimum Wage [^6]: Public Holidays [^7]: Vacation Pay