Date: 20181121 Docket: CI 16-01-04438 (Winnipeg Centre) Indexed as: Shirritt-Beaumont v. Frontier School Division Cited as: 2018 MBQB 177 COURT OF QUEEN S BENCH OF MANITOBA BETWEEN: ) APPEARANCES: ) RAYMOND SHIRRITT-BEAUMONT, ) Mark H. Toews ) for the plaintiff Plaintiff, ) ) Curran P. McNicol - and - ) for the defendant ) FRONTIER SCHOOL DIVISION, ) ) Judgment delivered: Defendant. ) November 21, 2018 EDMOND J. Introduction [1] The defendant seeks summary judgment dismissing the plaintiff s claim on the basis that the claim is statute barred. [2] On October 27, 2016, the plaintiff issued a statement of claim against the defendant seeking general damages, special damages and solicitor and client costs, alleging that he was paid as an independent contractor by the defendant from 1988 to 2006, when he ought to have been treated and paid as an employee of the defendant.
Page: 2 The plaintiff seeks unpaid vacation pay and pension plan contributions during the period from 1988 to 2006. [3] The sole issue for determination is whether the claim is statute barred pursuant to The Limitations of Actions Act, C.C.S.M. c. L150 (the Act ). The defendant is not seeking summary judgment on the primary issue to be determined that is, whether the plaintiff was an employee or an independent contractor of the defendant during the relevant time period. The defendant denies that the plaintiff was an employee. However, for the purposes of this motion, the parties have asked the court to rule on the limitation issue. Statement of Facts [4] The defendant is a body corporate established pursuant to the provisions of The Public Schools Act, C.C.S.M. c. P250. Most of the schools the defendant operates are located in Northern Communities of Manitoba. [5] The plaintiff was appointed to the position of Principal of Berens Rivers School in Berens River, Manitoba effective September 1, 1981. The plaintiff resigned from that position effective June 30, 1986. [6] The defendant paid the plaintiff a salary and provided him with benefits that he was entitled to pursuant to the applicable collective agreements during the period of time that he was Principal of Berens River School. The plaintiff was a member of the Teachers Retirement Allowance Fund (TRAF) or retirement plan up to June 30, 1986. [7] Beginning in the fall of 1986, the plaintiff was retained by the defendant to assist it with research and curriculum development. The plaintiff and the defendant entered
Page: 3 into a number of agreements in which the plaintiff was paid a fixed amount and the defendant did not make source deductions for income tax, Canada pension plan and employment insurance. The plaintiff was not paid vacation pay and was not a member of TRAF from 1986-1989. [8] Effective August 15, 1989, the defendant appointed the plaintiff to the position of Principal of Jack River School in Norway House, Manitoba. The plaintiff continued in that position until his resignation effective December 31, 1989. The plaintiff was paid a salary and benefits that he was entitled to pursuant to the applicable collective agreement and was a member of TRAF. [9] Following his resignation, the plaintiff was again retained by the defendant to assist with research and curriculum development. The plaintiff and the defendant entered into agreements which were described as fee for service agreements and were for specific school years ending June 30. No source deductions for income tax, Canada pension plan and employment insurance were made and remitted by the defendant. The plaintiff was not paid vacation pay and was not a member of TRAF. [10] Effective January 2, 2007, the plaintiff was employed by the defendant, was paid as an employee and was a member of TRAF. [11] It is clear from a review of the documents that the plaintiff knew that he had not been paid any annual vacation allowance and that no contributions were being made to TRAF as he was not treated as a member of the retirement plan. [12] The plaintiff continued as an employee of the defendant from January 2, 2007 until his retirement on April 1, 2011.
Page: 4 [13] The statement of claim was issued on October 27, 2016. A statement of defence was filed on January 25, 2017. The defendant s notice of motion seeking summary judgment was filed October 20, 2017. Summary Judgment [14] The test applied on summary judgment motions in Manitoba was amended and came into effect in January 2018. An excellent summary of the new Queen s Bench Rules applicable to summary judgment are summarized in the decision of Free Enterprise Bus Lines Inc. v. Winnipeg Exclusive Bus Tours Inc., 2018 MBQB 64, [2018] M.J. No. 106 (QL), at paras. 27-31: 27 Amendments to the Queen's Bench Rules, Man. Reg. 553/88, as amended by Man. Reg. 130/17, which came into effect in January of this year, make significant changes to the summary judgment process. The new rules are designed to promote proportionality to ensure "the just, most expeditious and least expensive determination of every civil proceeding on its merits" (Rule 1.04(1)) and reflect the Supreme Court's direction in Hryniak v. Mauldin, 2014 SCC 7 (para. 2), [2014] 1 S.C.R. 87, that "a culture shift is required in order to create an environment promoting timely and affordable access to the civil justice system." 28 Manitoba's new summary judgment rules are similar to the Ontario summary judgment rules interpreted by the Court in Hryniak. In that case, Karakatsanis J. explained (at para. 45) that the Ontario rules "are designed to transform Rule 20 from a means to weed out unmeritorious claims to a significant alternative model of adjudication." To that end, the test on a summary judgment motion is no longer whether there is a "genuine issue for trial" but whether there is a "genuine issue requiring a trial" (Rule 20.07(1)). The traditional trial is no longer the default position but should be pursued only where the judge cannot "achieve a fair and just adjudication of the issues" on the basis of the evidence produced on the summary judgment motion (Rule 20.03(5)). 29 To facilitate the use of the summary judgment motion as an alternative means of adjudication, the rules contemplate more flexibility in the type of evidence tendered and authorize the judge to weigh evidence, evaluate credibility of deponents and draw reasonable inferences (Rule 20.07(2)). Whereas under the former rules issues of credibility usually required a trial, the
Page: 5 new rules facilitate the resolution of those issues on summary judgment. A trial is not required unless the judge is not confident making the necessary fact findings on the basis of the evidence presented and tools available on the motion. As explained in Hryniak: [56] While I agree that a motion judge must have an appreciation of the evidence necessary to make dispositive findings, such an appreciation is not only available at trial. Focussing on how much and what kind of evidence could be adduced at a trial, as opposed to whether a trial is "requir[ed]" as the Rule directs, is likely to lead to the bar being set too high. The interest of justice cannot be limited to the advantageous features of a conventional trial, and must account for proportionality, timeliness and affordability. Otherwise, the adjudication permitted with the new powers -- and the purpose of the amendments -- would be frustrated. [57] On a summary judgment motion, the evidence need not be equivalent to that at trial, but must be such that the judge is confident that she can fairly resolve the dispute. A documentary record, particularly when supplemented by the new fact-finding tools, including ordering oral testimony, is often sufficient to resolve material issues fairly and justly. The powers provided in Rules 20.04(2.1) and 20.04(2.2) can provide an equally valid, if less extensive, manner of fact finding. 30 In Hryniak, the Court suggested that the new powers to evaluate the evidence and order oral evidence should only be engaged where the judge cannot decide the issues without resorting to those powers. Karakatsanis J. said: [66] On a motion for summary judgment under Rule 20.04, the judge should first determine if there is a genuine issue requiring trial based only on the evidence before her, without using the new fact-finding powers. There will be no genuine issue requiring a trial if the summary judgment process provides her with the evidence required to fairly and justly adjudicate the dispute and is a timely, affordable and proportionate procedure, under Rule 20.04(2)(a). If there appears to be a genuine issue requiring a trial, she should then determine if the need for a trial can be avoided by using the new powers under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. Their use will not be against the interest of justice if they will lead to a fair and just result and will serve the goals of timeliness, affordability and proportionality in light of the litigation as a whole. 31 And in the companion case, Bruno Appliance and Furniture, Inc. v. Hryniak, 2014 SCC 8, [2014] 1 S.C.R. 126, she said: [22] Summary judgment may not be granted under Rule 20 where there is a genuine issue requiring a trial. As outlined in the companion Mauldin appeal, the motion judge should ask whether the matter can be resolved in a fair and just manner on a summary judgment motion. This will be the case when the process (1) allows the judge to make the necessary findings of fact, (2) allows the judge to apply the law to the facts, and
Page: 6 (3) is a proportionate, more expeditious and less expensive means to achieve a just result. If there appears to be a genuine issue requiring a trial, based only on the record before her, the judge should then ask if the need for a trial can be avoided by using the new powers provided under Rules 20.04(2.1) and (2.2). She may, at her discretion, use those powers, provided that their use is not against the interest of justice. [15] Applying these principles to this case requires an analysis of the relevant provisions of the Act. The parties rely upon the following provisions of the Act: Limitations 2(1) The following actions shall be commenced within and not after the times respectively hereinafter mentioned:... (i) actions for the recovery of money (except in respect of a debt charged upon land), whether recoverable as a debt or damages or otherwise, and whether a recognizance, bond, covenants, or other specialty, or on a simple contract, express or implied, and actions for an account or not accounting, within six years after the cause of action arose; Definition of trustee 49(1) In this section trustee includes an executor, administrator and trustees whose trust arises by construction or implication of law as well as an express trustee and also includes a joint trustee. Actions by a beneficiary under a trust in respect of fraud, etc. 49(2) No period of limitation prescribed by this act applies to an action by a beneficiary under a trust, being an action (a) in respect of any fraud or fraudulent breach of trust to which the trustee was a party or privy; or (b) to recover from the trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. Other actions by beneficiaries under trusts 49(3) Subject as aforesaid, an action by a beneficiary to recover trust property or in respect of any breach of trust, not being an action for which a period of limitation is prescribed by any other provision of this act, shall not be brought after the expiration of six years from the date on which the right of action accrued, but the right of action shall be deemed not to have accrued to any beneficiary entitled to a future interest in the trust property, until the interest falls into possession.
Page: 7 [16] Determining the limitation period applicable to an action for vacation pay requires a review of the relevant provisions of The Employment Standards Code, C.C.S.M. c. E110 (the Code ) and other legislation predating the Code which has now been repealed, The Vacations with Pay Act, R.S.M. 1987 c. V20 (the VWP Act ) and The Payment of Wages Act, R.S.M. 1987, c. P31. The relevant provisions of the Code are: Definitions 1(1) In this Code, "annual vacation" means a vacation to which an employee is entitled under section 34; "employee" means an individual who is employed by an employer to do work, and includes a former employee but does not include a director of a corporation in relation to that corporation; "employer" means a person that employs an employee in any employment or business, and includes (a) a person that has control or direction of, or is directly or indirectly responsible for, the employment of an employee or the payment of wages to an employee, (b) a former employer, (c) a receiver of the business of an employer, and (d) two or more employers declared to be a single employer under section 134; "employment" means the engagement of an employee by an employer for the performance of work by the employee under an agreement in which the employee agrees to perform work for the employer for consideration that consists of or includes wages paid to the employee by the employer; "vacation allowance" means an allowance to which an employee is entitled under section 39 or 44; Amount of vacation allowance 39(2) An employer shall pay to an employee who is entitled to an annual vacation, for each week of the vacation, a vacation allowance consisting of
Page: 8 (a) 2% of the wages that the employee earned in the year of employment in respect of which the employee is entitled to the annual vacation; and (b) if the employer provides board and lodging, or pays an allowance in lieu of board and lodging, as part of the usual remuneration of the employee, an amount equal to 2% of the cash value of the board and lodging or allowance that the employee received in the year of employment in respect of his or her regular hours of work. Time of payment of vacation allowance 39(3) Unless the employee otherwise agrees, the employer shall pay the vacation allowance to the employee not later than the last working day before the employee's annual vacation begins. Employer may use common anniversary date 42(1) Despite sections 34 (annual vacation) and 39 (vacation allowance), an employer may establish a common anniversary date for all employees or a group of employees for the purpose of calculating their annual vacations and vacation allowances. Effect of notice of termination 43 Where an employer or employee gives notice of termination of the employee's employment, (a) no part of the employee's annual vacation may be used to calculate the required notice period unless, in the case of an employee giving notice, the employer otherwise agrees; and (b) the payment of a vacation allowance to the employee does not affect any other amount payable to the employee in respect of the termination. Payment of vacation allowance on termination 44(2) If an employee's employment terminates before he or she is entitled to an annual vacation, the employer shall pay the employee a vacation allowance equal to (a) if the employee has not completed five consecutive years of employment with the employer, 4% of the wages earned since the date the employee became employed by the employer or the date the employee last became entitled to an annual vacation, whichever is later; and (b) if the employee has completed five consecutive years of employment with the employer, an additional 2% of the wages earned from the date the employee last became entitled to an annual vacation to the date of termination.
Page: 9 Employer is deemed to hold wages in trust 100 Despite any other Act, an employer is deemed to hold the wages that are due or accruing due to an employee in trust for the employee, and the employee has a lien and charge on the property and assets of the employer for the amount of the wages, whether or not the amount is kept separate and apart by the employer or the business of the employer is in receivership. Priority of lien and charge 101 Despite any other Act and subject to sections 102 (priority of prior purchase money security interest), 102.1 (priority of certain tax liens) and 106 (priority of real property mortgage), a lien and charge under section 100 and subsection 94(2) has priority to a maximum of $2,500., or an amount prescribed, and is payable in priority over any other claim or right in the property or assets of the employer that exists before or after the wages are due and payable, including (a) any claim or right of the Crown in right of Manitoba; and (b) any lien, charge, encumbrance, assignment, including an assignment of book debts, debenture or other security of whatever kind of any person, and any security interest, as defined in The Personal Property Security Act. [17] The relevant section of the VWP Act is: 19(2) Every employer shall be deemed to hold the vacation wages and vacation allowances accruing due to an employee in trust for the employee whether or not the account thereof has been kept separate and apart by the employer and the employee has a lien and charge in the amount of the vacation wages and vacation allowances on the assets of the employer. [18] The relevant section of The Payment of Wages Act is: Wages deemed held in trust 3(4) Every employer shall be deemed to hold the wages due or accruing due to an employee in trust for the employee and for payment of the wages over to the employee in the manner and at the time provided by law and the employee has a lien and charge on the property and assets of the employer whether or not the amount of the wages has been kept separate and apart by the employer and whether or not the employer is in receivership.
Page: 10 [19] The defendant submits that the plaintiff s claim is statute barred pursuant to s. 2(1)(i) or alternatively, s. 49(3) of the Act. The defendant submits that there is no genuine issue requiring a trial and that summary judgment should be granted. The plaintiff alleges that the cause of action for vacation pay arises once vacation is taken or once termination of employment occurs and no payment is made. Therefore, the cause of action for payment of a vacation allowance is not statute barred. Similarly, the plaintiff submits that the cause of action for pension contributions does not arise until the plaintiff retires and the statement of claim was issued prior to the expiration of the six-year limitation period from his date of retirement. [20] Specifically, the plaintiff submits that s. 34(1) of the Code is not triggered until an employee takes vacation time or until termination of employment. He argues that because there is insufficient evidence to establish that he took any vacation during the period from 1989 to 2006, s. 34(1) of the Code is not triggered until termination of employment which occurred on April 1, 2011. Since the statement of claim was issued on October 27, 2016, within six years of the date of termination of employment and non-payment of vacation pay, the plaintiff submits the action is not statute barred. [21] The plaintiff alleges that between 1988 and 2006, he was paid as if he was an independent contractor, but ought to have been paid as an employee and was therefore entitled to vacation pay and pension contributions. In response, the defendant submits the plaintiff knew that he was not paid vacation pay and was not receiving pension contributions and that he was not a member of the TRAF plan during the period from 1988 to 2006. The defendant submits that the cause of action arose
Page: 11 on the date of the alleged breaches which occurred each year from 1988 to 2006 and the statement of claim was issued more than six years after the alleged breaches. [22] Commencing January 2, 2007, the plaintiff was engaged as an employee of the defendant up to the date of his retirement and he knew that he was paid an annual vacation allowance, that the defendant made all required source deductions and the defendant made all contributions to the TRAF plan on the plaintiff s behalf. [23] The first step undertaken by the court to determine the applicable limitation period is to determine the essence of the claim (See Lount Corp. v. Shelter Canadian Properties Ltd., 2015 MBQB 206, 325 Man.R. (2d) 34; Glass v. Shelter Canadian Properties Ltd., 2013 MBQB 132, 292 Man.R. (2d) 240; and Speciallaser Tech Inc. v. Specialloy Industries Ltd., [1998] M.J. No. 465, 132 Man.R. (2d) 118). [24] In my view, the essence of the plaintiff s claim is for the recovery of money as a result of alleged breaches of the agreements he entered into with the defendant. The agreements entered into between the plaintiff and the defendant during the relevant period of time from 1986 to 2006 were contracts of one year in duration. While the earlier agreements did not expressly contain such a term, commencing on July 4, 2000, paragraph 3 of that agreement states this is not a continuous employment contract. (Exhibit D to affidavit of the plaintiff sworn January 30, 2018) The agreements executed in 2001 and 2002 contain the same provision. Nevertheless, the evidence establishes that the plaintiff worked for the defendant continuously from 1981-2011. [25] The cause of action against the defendant for the recovery of money, whether recoverable as a debt or damages or otherwise, on a simple contract, express or
Page: 12 implied, had to be commenced within six years after the cause of action arose. In this case the cause of action arose from the date of the breach of contract. There is authority that supports a finding that each alleged breach of the yearly contracts constitutes a separate cause of action for which the plaintiff may recover damages within the appropriate limitation period. (See Incorporated Broadcasters Ltd. et al. v. CanWest Global Communications Corp. et al., 2008 MBQB 296, 244 Man.R. (2d) 127; Sentinel Self Storage Corp. v. Dyregrov, 2003 MBCA 136, 180 Man.R. (2d) 85) [26] If only s. 2(1)(i) and not s. 49 of the Act applies, it would appear that the plaintiff s claim is an action for the recovery of money on a simple contract, express or implied, and such an action must be commenced within six years after the cause of action arose. The cause of action arose when the defendant failed to pay the vacation allowance from 1988 up to and including 2006. [27] The TRAF plan requires the defendant to remit its contributions monthly, within 30 days after the last day of the month to which the contributions pertain. The plaintiff s claim is for contributions from 1988 up to and including 2006. [28] In my view, a different analysis is required regarding the cause of action relating to the plaintiff s claim that the defendant failed to make pension contributions during the period from 1988-2006. Although the statement of claim is not as clear as it could be, the plaintiff s claim is for the alleged breach of the defendant in failing to make pension contributions and hold those funds in the TRAF plan to be paid out as a pension benefit upon the plaintiff s retirement.
Page: 13 [29] The plaintiff relies upon Dinney v. Great-West Life Assurance Co., 2007 MBQB 120, [2007] M.J. No. 187, aff d Dinney v. Great-West Life Assurance Co., 2009 MBCA 29, 236 Man.R. (2d) 299; leave to appeal to the Supreme Court of Canada refused December 17, 2009. That case involved an alleged claim for failure of the defendant to pay indexed pensions to the plaintiff. The defendant claimed that the breach occurred more than six years before the action was commenced and that the action was therefore statute barred. [30] Jewers J. stated at para. 15: 15 With respect I would not follow this case. I appreciate that disability benefits are not pension benefits but in my view the principle is the same, namely that the payments are periodical and no cause of action for the enforcement of the payments can arise until they fall due and are wrongfully refused. That goes back to what was said by Osler J. (supra) that the date upon which a cause of action arises is the date upon which every element of that cause first exists and that there must be in existence entitlement to the benefit and refusal or failure by the defendant to pay it. In the case of the pension benefits, there is certainly an eligibility for the pension which arises upon retirement and continues for life but there is no entitlement to the actual receipt of the pension benefits until the appointed due dates have come and gone and they have been wrongfully withheld by the company. [31] On appeal, MacInnes J.A., on behalf of the court, dismissed the defendants ground for appeal based on the limitation defence. The court of appeal found that the plaintiff was entitled to sue for Great-West Life Assurance Company s breach of contract in failing to make the monthly pension payment due on a prorated basis as of a certain date and for each month thereafter. (para. 117) [32] As well, the plaintiff relies upon Huang v. Telus Corp. Pension Plan (Trustees of), 2005 ABQB 40, 372 A.R. 336, in which the Alberta Court of Queen s Bench considered when a cause of action for pension contribution payments arises.
Page: 14 Although the applicable provisions of the Alberta legislation are different, the court found that the cause of action in breach of trust (if proved) crystallizes at termination (para. 74). [33] Based on these authorities, I am satisfied that the cause of action for general damages based on the defendant s failure to make pension contributions and hold those funds in trust in the TRAF plan arose or crystallized on the date of the plaintiff s retirement on April 1, 2011, and once the pension benefits are alleged to have been wrongfully withheld by the defendant. If the plaintiff was an employee as alleged, the obligation of the defendant to make pension contributions was a continuing one which continued up to the date of the plaintiff s retirement. [34] While there is a basis to say that the plaintiff was not a member of the TRAF plan from 1988 2006 (other than a brief period in 1989), and knew that no pension contributions were made on his behalf during that time frame, relying on the authorities cited above, the cause of action did not accrue or crystallize until the pension benefits became due and payable upon the plaintiff s retirement and once the defendant failed to calculate the plaintiff s pension without regard to the entire period from 1988-2006. The plaintiff alleges that he was continuously employed by the defendant from 1981-2011 and his claim for pension benefits did not accrue or crystallize until after his retirement on April 1, 2011. [35] That is not the end of the matter as the plaintiff alleges that s. 49 of the Act applies and there is no period of limitation applicable to an action by a beneficiary under a trust and specifically pursuant to paragraph 49(2)(b) to recover from the
Page: 15 trustee trust property or the proceeds thereof in the possession of the trustee, or previously received by the trustee and converted to his use. [36] The statement of claim is a claim for general damages, special damages and solicitor and client costs. The plaintiff has not advanced a specific claim to recover trust property or the proceeds thereof in the possession of the trustee. However, the plaintiff has advanced a claim for breach of trust based on the defendant s failure to hold the vacation allowance and pension contributions in trust for the benefit of the plaintiff. [37] I agree that pursuant to the VWP Act and The Payment of Wages Act (now repealed) and the Code, an employer is deemed to hold a vacation allowance and wages due and accruing due to an employee in trust for the employee. [38] In my view, the facts of this case are distinguishable from the facts set forth in the cases relied upon by the defendant (See Lount Corp., Glass and Speciallaser Tech Inc.). In this case, if the plaintiff is able to establish that he was an employee, the defendant is deemed by statute to hold wages that are due or accruing due in trust for the plaintiff. [39] In Green v. Canada Trust Realty Inc., 2005 MBQB 249, 198 Man.R. (2d) 182, the defendants brought a motion for summary judgment seeking to dismiss the plaintiffs claims for vacation wages on the basis the claim was brought outside the applicable limitation period. The defendants argued that s. 19 of the VWP Act meant vacation wages are a debt due from the employer to the employee. The defendants advanced a similar argument that is being advanced in this case, submitting that the
Page: 16 claims arising more than six years prior to the issuance of the statement of claim ought to be dismissed. The plaintiffs submitted that s. 49(2)(b) of the Act was applicable. The motion judge dismissed the summary judgment motion and concluded: 41 The onus is on the defendants to show that the material clearly establishes that they will succeed at trial. It seems clear from the material that there is a real issue on the question concerning the applicable limitation period. Factual determinations will play a role in the trial judge's analysis of this issue. The defendant's argument falls short of persuading me it will ultimately succeed. The question of the applicable limitation period must be left for the trial judge to determine. Accordingly, the motion for summary judgment on the basis of the limitations of action defence is dismissed. [40] While the summary judgment test applied in Green has been changed to ensure the just, most expeditious and least expensive determination of every civil proceeding on its merits, the plaintiff s claim is that the vacation allowance is deemed to be held in trust for the plaintiff and the defendant breached the statutory trust provisions, such that s. 49(2)(b) may apply. There is insufficient evidence to decide whether the plaintiff was an employee at the material time (1988-2006). If the plaintiff was an employee of the defendant during the entire time frame as alleged, then the defendant is deemed to hold the vacation allowance in trust for the plaintiff. At the hearing of this motion, the parties advised that further evidence will be required on the central issue in this case, whether the plaintiff was an employee of the defendant at the material time. In my view, the question of the applicable limitation period should be decided once that evidence is tendered. [41] The plaintiff also submits that no limitation period applies pursuant to s. 49(2)(b) of the Act in connection with the claim for the defendant s failure to make pension contributions. It is unnecessary to decide that issue because, as noted above, the
Page: 17 plaintiff s cause of action for damages in connection with the alleged breach by the defendant to make pension contributions was commenced within six years of the date of the plaintiff s retirement and the defendant has not satisfied me that cause of action is statute barred. [42] A further argument advanced by the defendant is that s. 49(3) of the Act applies to the facts of this case. The defendant submits the alleged breaches of trust occurred between 1988 and 2006 each time the defendant failed to pay the plaintiff s annual vacation entitlement no later than the last working day before his annual vacation began or each time the defendant failed to make contributions to the retirement plan on the plaintiff s behalf when required and failed to hold any of those funds in trust for the plaintiff. Since the plaintiff did not issue a statement of claim within six years from the date any right of action accrued, the claim for breach of trust is statute barred pursuant to s. 49(3) of the Act. [43] Section 49(3) starts with the words Subject as aforesaid which, in my view, means that s. 49(3) is subject to the specific provision set out in s. 49(2) which states that no period of limitation applies to an action by a beneficiary under a trust. In other words, the exception set out in s. 49(3) only applies if the specific limitation provision does not apply. Since I have found that s. 49(2)(b) may apply if the plaintiff was an employee during the relevant time, I am not satisfied that s. 49(3) applies. [44] The central issue to be decided in this case is whether or not the plaintiff was an employee and is entitled to a vacation allowance and pension benefits pursuant to the TRAF plan during the period from 1988-2006. The parties filed some, but not all, of
Page: 18 the evidence required to decide that issue. Further evidence is required in order to permit the court to make a fair and just determination of that issue. [45] Accordingly, the summary judgment motion is dismissed and the parties are directed to contact the trial coordinator and arrange a further summary judgment conference or pre-trial conference to determine the proportionate, most expeditious and least expensive means to have this matter determined. Costs shall remain in the cause. J.