Digests

Actton Transport Ltd. v. Steeves

T-671-01

2003 FC 816, Campbell J.

7/10/03

22 pp.

Judicial review challenging jurisdiction of inspectors to enforce employer's obligation to pay overtime wages--Mr. McIvor, respondent in present application, employed by applicant (Actton) as waste disposal truck driver in Calgary from August to November, 1999--On leaving employment, respondent complained about unpaid overtime wages by Actton--Ms. Steeves, another respondent to present application, inspector acting under authority of Canada Labour Code (Code), made order requiring Actton to pay Mr. McIvor overtime claimed--Order made as result of Inspector Steeves' interpreting and applying provisions of Motor Vehicle Operators Hours of Work Regulations (Regulations), made pursuant to Part III of Code, and which govern payment of overtime wages for city and highway motor vehicle operators--Jurisdiction of Inspector Steeves to make order sole issue for determination--Code, s. 169(1) creating obligation on employer to adhere to standard "hours of work" and s. 174 creating obligation on employer to pay "overtime pay"--Obligations under Part III of Code, as modified by Regulations, under supervision of inspectors designated pursuant to Code, s. 249(1)--To assist inspectors and referees in enforcement process, Minister of Labour has published "Explanatory Guidelines" to give understanding of how Minister of Labour interprets Code and Regulations, and, why inspectors and referees might take responsibility to interpret and apply definition of "city motor vehicle operator"--Issue of inspector's jurisdiction to make payment order proper question for determination on present application--Actton's jurisdictional attack focusing on what Actton argues to be unlawful delegation of authority to inspectors to make determination of element of definition of "city motor vehicle operator"-- Furthermore, Actton arguing inspector does not have jurisdiction to make determination with respect to other alternate means of deciding on employer's obligation to pay overtime, being application of "prevailing industry practice in geographic area" where driver employed--Actton's primary jurisdictional argument, in giving definition to phrase "prevailing industry practice", Inspector Steeves was making law, something Inspector Steeves unauthorized to do-- Authority of inspector derived from Parliament under Code, and not from any delegation by regulation or otherwise-- Important to remember Regulations, s. 3 specifically stating Regulations providing modification to hours of work provisions of ss. 169, 171, especially for motor vehicle operators; Regulations not purporting to delegate authority, but merely modifying statutory obligations--Thus, Actton's delegated authority argument dismissed and Inspector Steeves had jurisdiction to make order--Scheme of Code, Part III and Regulations creating obligations on employer which must be met by actions of employer--In case of overtime pay, first obligation of employer to decide what overtime to pay--If employee concerned disagrees with decision, has right to make complaint, triggering involvement of inspector--Once involved, inspector can exercise powers of investigation under s. 249(2), gather evidence, and take enforcement action if considered necessary--Pursuant to s. 251(1), inspector authorized to find whether employer has met payment of overtime obligation--In arriving at conclusion, inspector authorized to make certain key factual findings, including finding of "prevailing industry practice" of paying overtime-- Thus, rather than inspector making unauthorized law by finding prevailing industry practice in certain geographic area, inspector applying law as required by Code and Regulations to come to factual conclusion on particular complaint--Actton has failed in its attack on order--Judicial review dismissed-- Canada Labour Code, R.S.C., 1985, c. L-2, ss. 169(1) (as am. by S.C. 1993, c. 42, s. 14), 171, 174, 249(1), 251(1) (as am. idem, s. 36)--Motor Vehicle Operators Hours of Work Regulations, C.R.C., c. 990, s. 3 (as am. by SOR/92-594, s. 10).