S99-2103 Date: 19990428 Docket: A982962 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA Oral Reasons for Judgment The Honourable Mr. Justice Pitfield Pronounced in Chambers April 28, 1999 BETWEEN: LAGUNA WOODCRAFT (CANADA) LTD. PETITIONER AND: THE EMPLOYMENT STANDARDS TRIBUNAL and THE DIRECTOR OF EMPLOYMENT STANDARDS RESPONDENTS Counsel for the Plaintiff: D. Dlab Counsel for the Defendant: A. J. Adamic/ J. MacTavish [1] THE COURT: (Oral) This is an application for judicial review of a decision of the Employment Standards Tribunal made September 5, 1997. [2] The Tribunal cancelled a determination of the director of Employment Standards that Mr. Saffray, an employee of Laguna, which is the petitioner in this proceeding, was entitled to severance wages for the period March 23 to March 27, 1996 and compensation based on the wage rate of $10.00 per hour rather than $8.00 per hour as alleged by the petitioner. At the same hearing, the Tribunal confirmed the director's determination with respect to Mr. Saffray's entitlement to statutory holiday pay, vacation pay, and over-time pay. [3] The petitioner claims that the decision of the Tribunal should be set aside, firstly, because the director did not adequately investigate the complaint by Mr. Saffray against Laguna; secondly, the Tribunal erred in law in rejecting the evidence of Mr. Rana, an officer on behalf of the petitioner, with respect to the content of what are otherwise incomplete payroll records tendered as evidence at the hearing before the Tribunal; and thirdly, on an application for reconsideration of its decision the Tribunal refused to consider complete payroll records which the petitioner sought to tender as new evidence. [4] Some background in relationship to this proceeding will be helpful. Mr. Saffray was employed by Laguna. He resigned from his position in late March 1996. He complained to the director about the non-payment of amounts to which he said he was entitled to upon cessation of his employment. [5] A delegate of the director, Mr. Mackie, attended at Laguna's office in the fall of 1996 and asked Mr. Rana, who, as I have indicated, was an officer on behalf of the petitioner, to call him. Mr. Mackie left his business card at the premises. He did not receive a call from Mr. Rana with the result that on October 8, 1996 he called the offices of Laguna and spoke to Mr. Rana. He told Mr. Rana about the complaint that had been made by Mr. Saffray and asked for payroll records which would disclose the amount which had been paid by the company to Mr. Saffray. Mr. Mackie's evidence is that Mr. Rana agreed to provide those records. [6] The records were not forthcoming. In November 1996, the director, through his delegate, issued a demand to the petitioner for the production of payroll records pertaining to Mr. Saffray. The demand for records was sent by certified mail to the offices of the company. The certified mail appears on the evidence not to have been claimed by Laguna and it was returned to the director of Employment Standards. [7] Consequently, the director issued a notice of penalty claiming $500.00 pursuant to regulations prescribed under the Employment Standards Act for failure by Laguna to comply with the demand. The notice of penalty was sent to the petitioner by certified mail. A copy of the notice was also sent to the registered and records office of the petitioner. The determination, together with an indication that it was copied to the registered and records office, appears as Exhibit "C" to Mr. Rana's affidavit which was filed on November 9, 1998. [8] The certified mail addressed to the petitioner was also returned to the director marked on its face "unclaimed". The director subsequently issued a determination on December 5, 1996. The determination was delivered by certified mail and a copy was provided to the registered and records office. I find on the evidence that advice about the significance of that determination was transmitted by the registered and records office or solicitors on behalf of the petitioner to Mr. Rana at the company. [9] Counsel on behalf of Laguna says that the company often does not claim certified mail directed to it because of the fact that it frequently finds delivered to it in that manner unsolicited products which it does not find helpful. I would say in response to that observation that if Laguna chooses not to claim its certified mail it does so at its peril, particularly where the statute under which the certified mail is issued provides that in a certain number of days following delivery by certified mail or attempted delivery by certified mail, delivery is deemed to have been made. Quite frankly, I cannot understand how a corporation such as this petitioner could reasonably conclude that it can ignore certified mail of any kind whether it likes the contents or not. The statement of the practice is not an excuse in the circumstances. [10] The issue of the director's determination was followed by an appeal made by Laguna to the Tribunal. The hearing proceeded on April 11th and 28th, 1997. The evidence satisfies me that at that hearing the Tribunal heard the evidence of Mr. Saffray and the evidence of Mr. Rana. The result of the hearing was, as I have noted, that three terms of the determination made by the director were set aside while the remaining three were confirmed. [11] The observations which I make against this background are the following. It is my opinion that the director should not be named as a respondent in judicial review proceedings of this kind. Under the Employment Standards Act an appeal lies to the Tribunal from any decision made by the director. Judicial review, in the ordinary course, is not available where there is an appeal to higher authority. The judicial review should be pursued, where appropriate and necessary, in relation to decisions of the Tribunal and not of the director. [12] It is my opinion that, contrary to the submissions made on behalf of the petitioner, there was no deficiency in the investigation made by the director in this case. The director received a complaint, made inquiries of the petitioner, received no response from the petitioner, had a telephone conversation with an officer of the petitioner and was assured or told that information would be forthcoming and it was not. In two separate instances certified mail was sent by the director to the proper company address and was returned to the director unclaimed. [13] In the circumstances, the decision on the part of the director to issue a notice of demand for the production of payroll records and to issue a penalty notice as well as the subsequent determination in respect of the company's obligation to Mr. Saffray, cannot be questioned. Given the indifference, if I can call it that, of the company to the inquiries being made by the director, it ill behooves the company to come forward and say it was not the subject of a fair investigation and inquiry by the director. [14] If my opinion or finding in that regard should be in error, and for any reason the investigation should be regarded as inadequate, any deficiency was overcome, in my judgment, as the Tribunal conducted a full hearing at which the petitioner was offered full opportunity to present all of the evidence in support of its claim that it was not obliged to pay Mr. Saffray any amount. It was offered an opportunity to present the testimony of its officer, Mr. Rana, and it was offered the opportunity to tender documentary evidence pertaining to payments made to Mr. Saffray. [15] The Tribunal acted, in my judgment, as it was empowered to do, in accordance with s. 115 of the Act, in varying the determination made by the director and paid attention to all of the evidence proffered by the company to it. The Tribunal reviewed documents, heard testimony, and in that regard, it accepted Mr. Rana's evidence in some respects and accepted Mr. Saffray's evidence in other respects. It rejected some of the evidence tendered by Mr. Rana and some of the evidence tendered by Mr. Saffray. [16] The Tribunal was in a position to observe the witnesses and to review the documents which were tendered before it. As a trier of fact, if you like, hearing all of the evidence relevant to the determination, the Tribunal was entitled, in my judgment, to make findings on credibility. [17] In the course of judicial review, a finding of credibility can only be interfered with in the event that it can be shown to have no justification whatsoever based upon the evidence before the trier of fact. In that regard, the judgment of the court in Toronto (City) Board of Education v. O.S.S.T.F., District 15 (1997), 144 D.L.R. (4th) 385 (S.C.C.), states at page 399: When a court is reviewing a tribunal's findings of fact or the inferences made on the basis of the evidence, it can only intervene "where the evidence, viewed reasonably, is incapable of supporting a tribunal's finding of fact". [18] In this particular case, the reasons of the Tribunal indicate that it was not satisfied that the documentary evidence tendered by Mr. Rana at the hearing should be accepted as conclusive of payroll information and particularly of payroll payments made to Mr. Saffray. It was, therefore, required to have reference to the oral testimony of Mr. Rana and Mr. Saffray. In all of the circumstances, it chose to accept the evidence of Mr. Saffray and to reject the evidence of Mr. Rana. In accepting some of Mr. Rana's evidence but rejecting it in other respects, it was not acting in a manner which can be said on the record or on the material before me to have been without any justification whatsoever so as to be patently unreasonable or an error in law. [19] The remaining question is whether or not the Tribunal erred, on the application by the petitioner for reconsideration, in refusing to admit complete payroll records as evidence before it. The finding of the Tribunal is that the payroll records were as much available in April 1997 as they were in November when the application for reconsideration was made. It is my opinion that the Tribunal quite appropriately applied the rule that where evidence was readily available at the time of the earlier hearing, it would be inappropriate to admit that evidence in a later proceeding. The material was fully available to the petitioner and all that can be said in respect of the petitioner's claim in this regard, is that it is yet another example of the company not having applied its mind to the problem at hand. The information was readily available from its accountants. It apparently chose not to find it. In the circumstances, there was no error on the part of the Tribunal in refusing to admit or reconsider the decision of the Tribunal based upon the production of this evidence, which is not in any sense new evidence. [20] It follows from what I have said that the Tribunal did not fail to adhere to the principles of natural justice in making its ruling which had the effect of varying the decision of the director nor did it make a patently unreasonable decision which could be set aside on judicial review. [21] It follows that the petition is dismissed as is the claim against Mr. Saffray for recovery of any amount paid out of trust by the director to him in response to the determination as varied by the Tribunal. (SUBMISSIONS RE: COSTS) [22] THE COURT: In the circumstances, the Tribunal and director have been generous in their omission to seek costs. There will be no order with respect to costs. "I.H. Pitfield, J." The Honourable Mr. Justice I.H. Pitfield