LABOUR RELATIONS |
Actton Transport Ltd. v. Steeves
A-361-03
2004 FCA 182, Pelletier J.A.
5/5/04
15 pp.
Appeal from dismissal of application for judicial review of payment order--Russell Lyle McIvor (McIvor), former employee of Actton Transport Ltd. (Actton) complained to officials of respondent Minister of Labour (Minister) not paid overtime to which entitled--Because Actton federally regulated employer, McIvor's entitlement to overtime depended upon Motor Vehicle Operators Hours of Work Regulations (Regulations)--Regulations distinguish between city, highway motor vehicle operator for purposes of overtime --"Prevailing industry practice" used to determine whether driver one or other--Minister's official concluded McIvor city motor vehicle operator based on how far from home terminals Calgary city motor vehicle operators typically worked-- Concluded McIvor entitled to overtime after 45 hours per week--Issued payment order requiring Actton to pay McIvor approximately $1,000 in overtime--Actton arguing definition of city motor vehicle operator in terms of prevailing industry practice in geographical area in which operator employed so uncertain as to make Regulations invalid--Actton argued that by leaving it to official to determine "prevailing industry practice", Governor in Council transformed legislative power into administrative power, which amounts to unlawful delegation--Canada Labour Code authorizing Governor in Council to define standard hours of work for employees engaged in industries where application of general rules in ss. 169, 171 would be harmful to interests of employees, employers--Regulations withdraw employment of motor vehicle operators from general scheme and in doing so provide different rules for city and highway motor vehicle operators --After providing arbitrary criterion, 10-mile radius from operator's home terminal, Regulations also allow for recognition of prevailing practice in industry--Distinguishing between city and highway motor vehicle operators on basis of prevailing industry practice satisfies legislative mandate since prevailing practice question of fact, not matter of administrative discretion--Official called upon to ascertain prevailing practice for purpose of applying it to given case engaged in fact-finding, not legislating--Cases relied upon by Actton establishing where delegated decision-maker authorized to decide certain questions by regulation, regulations promulgated in exercise of that power must actually decide questions--They cannot simply confer upon delegated decision-maker power to decide administratively which legislation requires it to decide legislatively-- Requirement Governor in Council proceed by regulation satisfied when Governor in Council specified, by regulation, that distinction between city and highway motor vehicle operator to be drawn according to prevailing industry practice --Basis of distinction set out in Regulations--Official's function to identify and then apply prevailing practice as it exists in geographical area--Rationale for such scheme that employers who do not have to pay overtime until employee has worked 60 hours enjoy significant advantage over those who must pay overtime after 45 hours--If law permitted employer to decide for itself whether it paid overtime after 45 or 60 hours, simply by dispatching employee beyond 10-mile radius, there would be very few city motor vehicle operators-- Using prevailing industry practice as determining factor means of protecting employees from work assignments whose object simply to limit entitlement to overtime--Appeal dismissed-- Motor Vehicle Operators Hours of Work Regulations, C.R.C. 1978, c. 990, s. 20(4)--Canada Labour Code, R.S.C., 1985, c. L-2, ss. 169 (as am. by S.C. 1993, c. 42, s. 14), 171.