IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:	J.P. Metal Masters 2000 v. Director of Employment Standards,
	2006 BCSC 928

Date: 20060523
Docket: L95096
Registry: New Westminster

Between:

J.P. Metal Masters 2000 Inc.

Petitioner

And:

Director of Employment Standards
Employment Standards Tribunal
Dennis Foucher

Respondents

Before: The Honourable Mr. Justice Groberman

Oral Reasons for Judgment

In Chambers
May 23, 2006

Counsel for the Petitioner:	Timothy E. Watkins
Counsel for the Respondent Director:	Adele J. Adamic
Counsel for the Respondent Tribunal:	David W. Garner
In Person (May 18 only):	Dennis Foucher
Date and Place of Hearing:	May 18 and 19, 2006
	Vancouver, B.C.

[1]                THE COURT:  This is a judicial review application from a decision of the Employment Standards Tribunal, which found that the respondent, Mr. Foucher, was entitled to benefits under the Employment Standards Act, R.S.B.C. 1996, c. 113 as an ordinary – i.e. non-management – employee.  The petitioner employer argues that Mr. Foucher was a manager and therefore was not entitled to the benefits that the Tribunal awarded him.

The Statutory Scheme

[2]                The Employment Standards Act sets out certain minimal rights that employees must be accorded in British Columbia.  Among those rights are the right to overtime pay in circumstances set out in Part 4 of the Act, and for pay for statutory holidays as set out in Part 5 of the Act.

[3]                Section 127(2)(a) of the Act confers on the Lieutenant Governor-in-Council the power to make regulations “excluding, on any conditions, for any periods, and in any circumstances that are considered advisable, a class of persons from all or part of [the] Act.”  Section 34(f) of the Employment Standards Regulation, B.C. Reg. 396/95, provides that Part 4 of the Act does not apply to “a manager”.  Similarly, s. 36 of the Regulation provides that Part 5 of the Act does not apply to “a manager”.

[4]                It is common ground that unless Mr. Foucher was a manager, he was entitled to overtime and statutory holiday pay as ordered by the Tribunal.  The petitioner says that Mr. Foucher was a manager, coming within subsection (a) of the definition of manager in the Regulation which provides that "manager" means “a person whose principal employment responsibilities consist of supervising or directing, or both supervising and directing, human or other resources.”

Standard of Review

[5]                The parties agree that the court may only quash the Tribunal's decision if it is patently unreasonable.  I accept that that is the appropriate standard of review.

[6]                Section 110 of the Employment Standards Act is a privative clause expressly conferring on the Tribunal exclusive jurisdiction to determine questions of fact and law in proceedings under s. 13 of that Act.  Section 103 of the Act provides that certain provisions of the Administrative Tribunals Act, S.B.C. 2004, c. 45, apply to the Tribunal.  These include the definition of “privative clause” in s. 1 of that Act, and s. 58, which sets out the standard of review for tribunals whose enabling Acts contain such clauses.  Section 58 clearly provides that the standard of review in a proceeding such as the present one is a standard of “patent unreasonableness – i.e. the court must not interfere with the Tribunal's findings unless the findings were patently unreasonable.

[7]                A number of descriptive formulations of the patently unreasonable standard have been provided by the courts over the years.  In Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at para. 52, Iacobucci J. summarized the jurisprudence as follows:

In Canada (Director of Investigation and Research) v. Southam, [1997] 1 S.C.R. 748, at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted "in the immediacy or obviousness of the defect".  Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective.  A patently unreasonable decision has been described as "clearly irrational" or "evidently not in accordance with reason" (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64, per Cory J.; Centre communautaire juridique de l'Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.).  A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.

[8]                The patently unreasonable standard, then, is the most deferential standard that may be applied by courts on judicial review.

The Tribunal’s Findings

[9]                In finding that Mr. Foucher was not a manager, the Employment Standards Tribunal accepted the findings of fact made by the delegate of the Director of Employment Standards.  It described Mr. Foucher's work as follows:

All he did was check on whether work was done on site.  He would run and get whatever was needed to keep the work going.  He worked [at various] construction sites.  He considered himself to be a leadhand.  The only policies he enforced were in regards to wearing hard hats and attending the weekly safety meeting as required by WCB.

[10]            The Tribunal summarized the situation as follows:

The evidence in this case was that Foucher made no decisions regarding hiring, firing, evaluating, disciplining, setting or changing of schedules, calling employees in to work, authorizing overtime, time off or leaves of absence.  He had limited (and uncertain) authority regarding the use of company resources.  He monitored the work of 3 to 5 employees but made no independent decisions relating to work processes or work performed.

[11]            The re-evaluation panel concluded that while Mr. Foucher had some ancillary and very minor supervisory duties, he was not a manager as that term is defined in the regulation.

[12]            The Tribunal's findings are largely of a negative nature.  There is limited discussion of what Mr. Foucher did, as opposed to what he did not do.  It might have been better if the Tribunal had included more affirmative findings in its reasons.  Nonetheless, it is apparent that the Tribunal considered the essential attributes of direction and supervision and found those essential attributes were not exemplified in the principal duties of Mr. Foucher.

[13]            On the whole, the picture that emerges of Mr. Foucher's work is one in which he was responsible for monitoring the work of employees, in the sense of recording it and reporting back to management.  He did not, however, take on any appreciable role in deciding what work was to be done, in deciding how it was to be done, or in evaluating, disciplining or directing the work of employees.  On the face of it, I can find nothing patently unreasonable in the Tribunal's decision that he was not a manager.

Did the Tribunal Err in Conflating “Supervising” with “Directing”

[14]            The petitioner argues that the Tribunal concentrated to too great a degree on the fact that Mr. Foucher's principal employment responsibilities did not include directing other employees.  It notes that the definition speaks of "supervising or directing" and it urges that the court find that mere monitoring of employees falls within the term “supervising”, if not within the term “directing”.

[15]            I am far from convinced that the Lieutenant Governor-in-Council intended to set out two distinct watertight compartments in using the phrase "supervising or directing".  Indeed, I would think that in large part, the two concepts overlap, though there may be certain functions that are better categorized as one than the other.

[16]            In any event, I do not find that the Tribunal applied the definition in a patently unreasonable manner in holding Mr. Foucher's principal responsibilities could not be described either as supervising or as directing.  In the result, the application for judicial review is dismissed.  Neither the Tribunal nor the Director of Employment Standards seeks costs.  Mr. Foucher, while he attended on the first half day of this judicial review, did not file materials or put forward an argument.  Under the circumstances, I would not award him any costs. 

[17]            The petition, then, is dismissed with each party to bear his or its own costs.

“H.M. Groberman, J.”
The Honourable Mr. Justice H.M. Groberman