Citation: Daryl-Evans v. Empl. Standards Date: 20020111 2002 BCSC 48 Docket: L003189 Registry: Vancouver IN THE SUPREME COURT OF BRITISH COLUMBIA BETWEEN: DARYL-EVANS MECHANICAL LTD. AND: PETITIONER DIRECTOR OF EMPLOYMENT STANDARDS AND THE EMPLOYMENT STANDARDS TRIBUNAL AND JOHN E. TYLER RESPONDENTS REASONS FOR JUDGMENT OF THE HONOURABLE MADAM JUSTICE HUMPHRIES (IN CHAMBERS) Counsel for the Petitioner: Counsel for the Director of Employment Standards: Counsel for the Employment Standards Tribunal: Counsel for the Construction Labour Relations Association (Intervenor): Counsel for Independent Contractors and Businesses Association: Counsel for British Columbia Construction Association: P.A. Gall M. Westfall A.J. Adamic J.A. MacTavish T.A. Roper, Q.C. A.L. Zwack D.D. Chesman B.D. Dartnell Counsel for British Columbia and Yukon C.R. Gordon Territory Building and Construction Trades Council: Date and Place of Hearing: September 25, 26, 27, 2001 Vancouver, B.C. [1] This case concerns notice and severance pay for construction workers, specifically the applicability of section 65(1)(e) of Employment Standards Act, RSBC 1996, c. 113 (the "Act") to the termination of employment of the respondent Mr. Tyler.
[2] The petitioner seeks to quash a decision of the Employment Standards Tribunal dated November 9, 2000, in which the Tribunal, on reconsideration of the adjudicator's decision of April 12, 2000, decided that the respondent Mr. Tyler, a construction worker formerly employed by the petitioner for a period of over five years on a variety of sites, was entitled to layoff or termination pay in lieu of notice. Mr. Tyler, though served with notice of the proceedings, did not enter an appearance or take any part in the proceedings. THE STATUTORY SCHEME AND HISTORY [3] In 1995, the Employment Standards Act SBC 1980, c. 10, was substantially amended, following receipt by the legislature of a report entitled Rights and Responsibilities in a Changing Workplace; a Review of Employment Standards in British Columbia (the "Mark Thompson Report"). The review was done and the report compiled by Mark Thompson, who was appointed as a Commissioner for those purposes by the Minister of Skills, Training and Labour. [4] One of the major changes following upon the Mark Thompson Report was the creation of the Employment Standards Tribunal (the "Tribunal") under Part 12 of the new Act. Prior to these amendments, appeals from a decision of the Director of Employment Standards (the "Director") were taken directly to the Supreme Court of British Columbia. Following the amendment, appeals go to the Tribunal, and this court's role is one of judicial review only. [5] Part 13 of the present Act deals with appeals. Section 112 provides that any person may appeal a determination (defined in section 1 as any decision made by the Director under a number of sections) to the Tribunal. Section 116 provides for reconsideration of any order or decision of the Tribunal. [6] Both before and after the amendments, the Act set out minimum requirements for notice in lieu of severance pay. The present section 63, which replaced the former section 42, reads: (1) After 3 consecutive months or employment, the employer becomes liable to pay an employee an amount equal to one week's wages as compensation for length of service. (2) The employer's liability for compensation for length of service increases as follows: (a) after 12 consecutive months of employment, to an amount equal to 2 weeks' wages; (b) after 3 consecutive years of employment, to an amount equal to 3 weeks' wages plus one additional week's wages for each additional year of employment, to a maximum of 8 weeks' wages.
(3) The liability is deemed to be discharged if the employee (a) is given written notice of termination... (b) is given a combination of notice and money... (c) terminates the employment, retires from employment, or is dismissed for just cause. [7] Prior to 1995, section 49.1 dealt with notice for group terminations of 50 or more employees. Section 49.2 provided: Section 49.1 does not apply to an employee industry. (e) employed in the construction [8] The Employment Standards Act Regulation, B.C. Reg. 37/81 s. 10, dealt with individual employees: 10. Part 5 of the Act does not apply to (b) a person employed to work at a construction site by an employer whose principal business is construction. [9] Under the present Act, the exceptions for both group and individual terminations are dealt with in section 65: 65 (1) Sections 63 [individual terminations] and section 64 [group terminations] do not apply to an employee (e) employed at a construction site by an employer whose principal business is construction... "Construction" is defined as "the construction, renovation, repair or demolition of property or the alteration or improvement of land." FACTS [10] Mr. Tyler was employed as a plumber by the petitioner, Daryl- Evans Mechanical Ltd. ("DEM") from March 6, 1994 to July 15, 1999 on a number of different and consecutive construction projects on various sites. There is no issue that DEM is an employer "whose principal business is construction." Mr. Tyler is not a member of a union. Mr. Tyler's employment with DEM ceased for reasons which all parties agreed are not relevant to the case before me, although the hearings at all levels have proceeded on the basis that the termination was not for
cause, as the issue of notice would not then arise (see section 63(3)(c) of the Act). [11] Following the cessation of his employment, Mr. Tyler sought compensation for length of service under section 63(2) of the Act. Accepting, on the evidence before her, that Mr. Tyler performed construction work, the Director held that he fell under the exemption contained in section 65(1)(e). She said: Since the Complainant was working on construction sites, there is no compensation for length of service owing to the Complainant. [12] Mr. Tyler appealed to the Tribunal. He was successful. The adjudicator ordered DEM to pay Mr. Tyler compensation for length of service. DEM sought a reconsideration of the adjudicator's decision pursuant to section 116 of the Act. The Tribunal upheld the adjudicator's decision, saying: As an employee of some permanence who was not employed to work on a single site, we find that he is entitled to the protection of the Act. [13] The relevant portions of the Tribunal's reasons are set out more fully at a later point in this judgement. [14] DEM petitions this court to quash this decision and affirm the decision of the Director. The petitioner contends that the exception in section 65(1)(e) was intended to and must apply to workers who have worked on more than one site, regardless of the length of time of employment; that is, the exception applies to all construction workers. THE INTERVENORS [15] The intervenors, the Construction Labour Relations Association ("CLRA"), the Independent Contractors and Businesses Association ("ICBA"), were granted leave to intervene by this court on January 4, 2001. The British Columbia Construction Association ("BCCA") and the British Columbia and Yukon Territory Building and Construction Trades Council ("BCYT") also made representations. All four intervenors filed affidavits. [16] Counsel for the Tribunal, supported by BCYT, objects to the admissibility of the affidavits from the intervenors. They agree that the sort of evidence contained in the affidavits of the intervenors is indeed useful for the decision maker to know, but they say the decision maker is the Tribunal and the statutory process should be protected. Therefore the information should have been before the Tribunal at first instance and should not be added to the record on judicial review. [17] Counsel for the ICBA, supported by CLRA and BCCA, submitted that the Tribunal's objection to the filing of affidavits was unseemly and inappropriate, as it appeared to be an attempt to defend the correctness of its decision (see Northwestern Utilities Ltd. et al. v.
Edmonton (City), [1979] 1 S.C.R. 684). ICBA, supported by CLRA and BCCA, also took the position that an intervenor (here the BCYT) could not object to the admissibility of evidence from another intervenor, on the basis that an intervenor can have no role in controlling or limiting the scope of proceedings. BCYT submitted that the principles of natural justice permit the Tribunal and other intervenors to object; otherwise only the petitioner could be heard on the matter and there would be no one to put the arguments before the court. [18] The argument raised by ICBA has merit, but where, as here, Mr. Tyler has not appeared, there is no one else but the Tribunal to defend the completeness of the record. Counsel for the Tribunal and counsel for BCYT shared the argument on this point. Without deciding the question of whether an intervenor may object to the evidence of another intervenor, I will consider the arguments advanced as if they all came from the Tribunal. Given the remarks in Paccar, infra, I am of the view that the Tribunal has a role in protecting the statutory process and these arguments are properly received from them in that context. [19] The parties generally agree on the law applicable to the issue of adding to the record on judicial review. As stated by Esson C.J.S.C., (as he then was), in Evans Forest Products Ltd. v. British Columbia, [1995] B.C.J. No. 729 (Q.L.) (B.C.S.C.) at para. 4: An applicant on judicial review is not necessarily confined to putting before the court that material which formed the record before the tribunal. Extrinsic evidence may be admissible to show lack of jurisdiction or denial of natural justice. [20] One of the arguments advanced by the petitioner is that the Tribunal's decision is contrary not only to the purposes of the Act as set out in section 2, but to historical interpretations, understandings and practices in the industry; these factors were known to the legislature and must be considered in an analysis of legislative intent. It is the petitioner's position that the Tribunal's decision was patently unreasonable because it negated the legislative will; in other words, the Tribunal purported to legislate rather than to interpret the legislation. Therefore the additional information, it is contended, goes to a jurisdictional issue. [21] The Tribunal, supported by BCYT, says that is not the sort of jurisdictional question upon which further evidence is admissible. According to counsel for the Tribunal, further evidence may be received only where the issue is one of pure jurisdiction - for example where there were extrinsic facts that would show a denial of natural justice or an erroneous initial assumption of jurisdiction. They rely on White Spot Limited v. BCLRB et al. (23 May 1997), Vancouver A970162 (B.C.S.C.), which limited the applicability of Evans Forest Products, relying instead upon the "well-established rule" that the review is to be on the record only. [22] Generally, the evidence of CLRA, ICBA and BCCA was aimed at providing me with an understanding of the construction industry,
particularly, in their view, of the devastating effect upon the industry as a whole of a requirement to give notice or severance pay to any workers, regardless of the number of sites upon which they worked or the length of employment. [23] The nature of the problem was addressed in general terms by the petitioner as follows: the construction industry is driven by construction projects, obtained through a process of competitive bidding. A construction worker will not know for whom he or she will be working from project to project, and the continued existence of the contractor depends on getting future projects. Even within a single project, it is difficult to determine when a worker will be needed or terminated. That will depend on how the job progresses and whether the schedule is adhered to, a rare occurrence. A contractor cannot say with any certainty when a worker will be laid off, and if notice is given of a date that does not then materialize, new notice would have to be given. [24] As well, a contractor hopes to be able to send employees on to another project. Some contractors will keep a group of core employees on by taking unprofitable jobs to fill in the gap between bigger projects. If a contractor is forced into a competitive disadvantage by having to incorporate an allowance for severance pay into his bid, he will simply respond by refusing to hire workers on successive projects, thus ensuring he can avail himself of the "single site" exemption in Section 65(1)(e) as it was interpreted by the Tribunal. [25] CLRB, ICBA, and BCCA adopted the petitioner's submissions and added to them from their own perspectives. [26] CLRA is the statutorily-appointed bargaining agent for all unionised construction employers who have a bargaining relationship with a trade union representing employees in craft bargaining units in industrial, commercial and institutional construction. [27] According to the affidavit of Robert Morrison, President of CLRA, the employers represented by CLRA obtain workers through union hiring halls. Mr. Morrison states that the use of hiring halls is distinctive to the building trade unionized construction industry. The use of hiring halls by building trade unions fundamentally alters the character of the employment relationship between construction employers and workers. The worker has only a temporary employment relationship with the employer, lasting only while work is available and returns to the hiring hall to be dispatched to the next job. [28] Based on Mr. Morrison's affidavit, counsel for CLRA addressed two specific issues unique to this organization. First, employers represented by CLRA deal with collective agreements which were negotiated on the common understanding that severance pay and notice were not required for any construction workers. Thus, wages and working conditions for construction employees covered by collective agreements are higher than those for similarly skilled workers in other industries. As section 69 of the Act requires collective agreements to "meet or exceed" the requirements of section 63, new requirements would
have to be incorporated retroactively into all of the agreements if the Tribunal's decision were upheld. [29] Second, some collective agreements allow employers to "name request" employees from the hiring halls so that the employer can maintain a core group of employees from site to site. If employers are compelled to give notice to a worker who works on more than one site, the employers will not hire a worker on a subsequent site. [30] ICBA is a province-wide not-for-profit association, whose members are primarily open-shop construction contractors in the province of British Columbia i.e., the part of the construction industry, including employers, employees and unions, who operate outside of the traditional building trades craft union "closed-shop" system of construction. These employees are not required to join a particular union in order to be employed, and participation on a given construction site or project is open to all contractors qualified to do the work. Eighty percent of the work in British Columbia is done on an open-shop basis. [31] ICBA's concern, expressed in the affidavit of Philip Hochstein, Executive Vice-President, is that employers will find it impossible to move employees from site to site in order to keep them on on a long term basis. As well, contractors will not be able to assess their labour costs with any certainty, nor can they predict the termination of work for any particular worker in order to give proper notice. The consequences of the Tribunal's decision is that contractors will not be able to retain employees beyond a single project. [32] BCCA is a province-wide association whose members are regional construction associations, representing approximately 1700 companies actively engaged in the construction industry. Those companies include union and non-union construction employers. Their concerns are similar to those of ICBA. [33] BCYT, the union counterpart to CLRA, represents employees in the unionized sector of the construction industry. The construction craft unions which are members of BCYT operate hiring halls through which skilled tradespeople are dispatched to work for unionized construction contractors. The affidavit of Mr. Loftus, Business Representative of the International Union of Operating Engineers, Local 115, describes the difference between hiring practices conducted through hiring halls maintained by the unions and those conducted directly by employers. [34] Non-union contractors do not have access to the hiring halls and will frequently maintain a core of skilled workers on the payroll, often for many years. According to Mr. Loftus, these employees have an ongoing employment relationship with a single employer and expect that relationship to continue in the same fashion as long-term employment in other industries. [35] Mr. Loftus states, with examples, that construction rates of pay do not incorporate any compensation for notice of termination, contrary to the statement in Mr. Morrison's affidavit that they do.
[36] This review shows that the evidence of the intervenors CLRB, ICBA and BCCA bolsters the submissions of the petitioner, although each group's particular perspective was fleshed out by their respective counsel. [37] The decisions respecting additions to the record in Evans Forest Products and White Spot were made on preliminary motions. In Evans Forest Products, Esson C.J.S.C. refused to strike out certain paragraphs in the affidavit of the petitioner in advance of the hearing. He appeared to accept the possibility that facts directed at establishing the degree of impact of the decision may relate to the discretionary aspects of judicial review and may therefore be relevant, but he declined to reach a conclusion on it until the hearing could be concluded. Whether the impugned paragraphs were ultimately found to be admissible, I do not know. [38] The simple and purist approach is that set out in White Spot. The judicial review must take place on the record. Under that analysis, if the new evidence does not go to the initial assumption of jurisdiction or to a denial of natural justice, it is not admissible on a judicial review. [39] In my view, however justified the affidavits of CLRB, ICBA and BCCA and the views expressed therein might be when taken in the historic and industry context, they should have been before the tribunal. The points made by them were all made by the petitioner, albeit with less specificity. [40] It would be foolish of me to close my eyes to this information completely, however. The Tribunal is permitted to put before me submissions going to the reasonableness of a decision (see reference to Paccar, infra, at para. 49). In defending the decision, particularly in attempting to show that there is a rational basis underlying the distinction made by the Tribunal, they too have had to assume some knowledge of the industry on my part. In that context, I feel bound to consider the information put before me by the intervenors to enable me to understand the argument on the role of historical understandings, practices and interpretations in the industry as it relates, if at all, to the interpretation of s. 65(1)(e). While the information should have been before the Tribunal, the arguments I have heard from all sides on that issue become meaningless if I have no context for them. [41] As the employee himself is not before me, I am of the view that the representations of BCYT are of assistance to the court. The affidavit of Mr. Loftus is mainly a response to the affidavits of Mr. Morrison, Mr. Hochstein, and Mr. MacLeay and is admissible for the limited purpose set out above. [42] I should say that I appreciate the approach taken by counsel with respect to these affidavits. They argued the issue of admissibility, but went on to the merits in any event, thus allowing me time for reflection and the additional perspective gained by being able to consider all of the issues together. ROLE OF THE DIRECTOR AND THE TRIBUNAL
[43] Both the Director and the Tribunal are named respondents. Counsel for the Director recognized that her standing to address the issues before the court is limited. While not supporting either petitioner or Tribunal, the Director submitted that it was essential to clarify her statutory role, the process and the policy behind the impugned decision. [44] Counsel explained that the particular issue before the court has not arisen before because of the statutory history of the relevant sections and the existence of collective agreements. She outlined some of the problems facing the Director in applying the present section 65(1)(e), suggesting that there are issues of interpretation upon which I might render assistance. I do not doubt that that the Director has a difficult task in assembling evidence, finding facts, and applying section 65(1)(e) to those facts, particularly in light of the dearth of judicial interpretation and the conflicting views in the industry as reflected in the affidavits of the intervenors and in the Mark Thompson Report. However, each case must be decided on its own facts. It would not be prudent of me to embark on a more general analysis than that called for by the limited question before me. [45] Nor do I see this as an appropriate case to send back for further evidence on any particular issue, if that is what counsel for the Director was suggesting (as was done in Honeywell Ltd. v British Columbia (Director of Employment Standards, [1997] B.C.J. No. 2290 (Q.L.) (B.C.S.C.)). The Director was able to find that the work done by Mr. Tyler was construction work, that it was done on construction sites, and that the employer was a company whose business is primarily construction. That is sufficient for the present case. [46] No one raised an issue as to the Tribunal's standing. However, I asked counsel for the Tribunal to address it so I could better understand his role, particularly as there was no one before me to advance Mr. Tyler's position. [47] Counsel referred to the following passage from BCGEU v Industrial Relations Council (1988), 33 B.C.L.R. 1 (C.A.), as adopted by the Supreme Court of Canada in Caimaw, Local 14 v. Paccar of Canada Ltd. (1989), 62 D.L.R. (4th) 437 at 463: The traditional basis for holding that a tribunal should not appear to defend the correctness of its decision has been the feeling that it is unseemly and inappropriate for it to put itself in that position. But when the issue becomes, as it does in relation to the patently unreasonable test, whether the decision was reasonable, there is a powerful policy reason in favour of permitting the tribunal to make submissions. That is, the tribunal is in the best position to draw the attention of the court to those considerations, rooted in the specialised jurisdiction or expertise of the tribunal, which may render reasonable what would otherwise appear unreasonable to someone not versed in the
intricacies of the specialised area. In some cases, the parties to the dispute may not adequately place those considerations before the court, either because the parties do not perceive them or do not regard it as being in their interest to stress them. I accept, therefore, that the Tribunal may make submissions going to whether the decision was reasonable. THE STANDARD OF REVIEW [48] The petitioner acknowledges the existence of the broad privative clause in section 110, the high level of deference usually accorded the decisions of the Tribunal, and the usual standard of review as "patent unreasonableness." [49] However, the petitioner argues that the decision of the Tribunal is based only on principles of statutory interpretation, an area with which the court frequently deals. It does not deal with an area in which the Tribunal has any particular expertise. As well, the decision differs from that of the Director, who should be recognized as having a great deal of expertise in the interpretation and application of the legislation. For those reasons, the petitioner says a lesser standard of deference is appropriate in this particular case. [50] According to the Supreme Court of Canada in Pushpanathan v. Canada (M.C.I.) (1998), 160 DLR (4 th ) 193, the central inquiry in determining the standard of review exercisable by a court of law is the legislative intent of the statute creating the tribunal whose decision is being reviewed. More specifically, the reviewing court must ask: "was the question which the provision raises one that was intended by the legislators to be left to the exclusive decision of the Board?" (p. 588). [51] The Supreme Court of Canada lists the factors to be taken into account in determining the standard of review: [52] 1. The existence of a privative clause. The privative clause here is broad: 110. A decision or order of the tribunal under this Act or the regulations on any matter in which it has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds. [53] I do not read the words "in which it has jurisdiction" as limiting the scope of this clause in any material way, as the petitioner suggests. Obviously the section can only protect the Tribunal while it is acting within its jurisdiction. This does not lessen the level of deference to be accorded to its decisions, nor does it prevent the court from quashing a decision which purports to interpret and extend the section beyond its legislative bounds, if that is indeed what occurred here.
[54] 2. Expertise. I do not have any particular evidence before me as to the level of expertise of the Tribunal, but they had before them the decisions of the Director and adjudicator, submissions of the petitioner, and at least portions of the Mark Thompson Report. The legislature set up this Tribunal in 1995 in order to deal with appeals from the Director that used to come to this court. The very creation of the Tribunal and the statutory scheme under which it operates creates a presumption of expertise in the area of employment standards and the applicability of the Act. That it was thought necessary to put such detailed and extensive information before me so that I might understand the construction industry is further support for the proposition that the legislature intended to have these matters dealt with by a Tribunal with specialized expertise. [55] 3. Purpose of the Act and the particular provision. In Rizzo & Rizzo Shoes Ltd. (Re) (1998), 154 D.L.R. (4th) 192, the Supreme Court of Canada, in dealing with similar provisions in the Ontario Employment Standards Act, R.S.O. 1980, c. 137, referred to its previous remarks in Machtinger v. HOJ Industries Ltd., [1992] 1 SCR 986, stating at para 24 and 25 (of Rizzo): [The object of the Act is] the protection of "...the interests of employees by requiring employers to comply with certain minimum standards, including minimum periods of notice of termination"... The objects of the termination and severance pay provisions themselves are also broadly premised upon the need to protect employees. [56] Those remarks are applicable to the British Columbia provisions as well. [57] The Supreme Court of Canada said in Pushpanathan, at 212: Where the purposes of the statute and of the decision-maker are conceived not primarily in terms of establishing rights as between parties, or as entitlements, but rather as a delicate balancing between different constituencies, then the appropriateness of court supervision diminishes. [58] The Tribunal has been charged with the responsibility of balancing the rights of employers and employees, taking into account the broad considerations set out in section 2 of the Act. Those relevant here are: (a) to ensure that employees in British Columbia receive at least basic standards of compensation and conditions of employment; (b) to promote the fair treatment of employees and employers;
(d) to provide fair and efficient procedures for resolving disputes over the application and interpretation of this act; (e) to foster the development of a productive and efficient labour force that can contribute fully to the prosperity of British Columbia. [59] 4. The "Nature of the Problem": A Question of Law or Fact? According to Pushpanathan, while even pure questions of law may be granted a wide degree of deference, the further the implications of a decision stray from the core expertise of the Tribunal, the less likelihood deference will be shown. [60] Here, the decision to be made involves the applicability of a section of the Act to certain facts in a dispute arising out of the termination of employment. While characterized by the petitioner as an issue of pure statutory interpretation, the arguments which I have been asked to consider have, at their heart, the competing interests and realities of the various components of the construction industry. [61] Although the Tribunal approached its task by using the principles of statutory interpretation, I do not see what other course was open to it. It was asked to consider whether the exemption in section 65(1)(e) applied to the situation before it and was thus bound to undertake that inquiry. The job it is entrusted to do under the statute requires such analysis on a frequent basis. While the court will look closely at questions of statutory interpretation to see if the Tribunal has gone beyond its jurisdiction by purporting to legislate or to negate the intention of the legislature, the potential for such scrutiny does not lessen the standard of review. [62] After a consideration of all of the factors outlined in Pushpanathan as they apply to the legislative scheme before me, I accept that the decision of the Tribunal is to be accorded a high level of deference and that the appropriate standard of review is one of "patent unreasonableness." WAS THE DECISION PATENTLY UNREASONABLE? [63] In Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 SCR 941, the court said, at page 190-1:...it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test....
It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational. [64] The petitioner contends, supported by CLRB, ICBA and BCCA, that the decision of the Tribunal is patently unreasonable because it has purported to legislate which it must not do (see Pacific Press Ltd. v. Vancouver-New Westminster Newspaper Guild, Local 115 et al. (1989), 34 B.C.L.R. (2d) 339 (B.C.C.A.), and B.C.G.E.U. v. Industrial Relations Council (1988), 33 B.C.L.R. (2d) 1 (B.C.C.A.),- the "Verrin" decision). In support of this proposition, the petitioner says the Tribunal ignored the legislative history, the previous interpretations of the statute by the Director, the understandings, expectations and practices of the industry, and the purposes of the Act, improperly importing factors such as subjective fairness and employee expectations into the section. Further, the Tribunal misunderstood or misapplied the Mark Thompson Report and its relation to the subsequent legislation, thus leading itself into an error of statutory interpretation. [65] The affidavits filed by CLRB, ICBA and BCCA make it clear that their organizations have always construed the exemption to be industry wide, and have relied on that continued interpretation by the Director. CLRB and ICBA made submissions to Commissioner Thompson to ensure the "construction exemption" remained unchanged. [66] It is the petitioner's position that the intent of the legislature can be clearly understood by looking at the Mark Thompson Report, commissioned by them to examine these very issues. [67] Part VII of the report deals with termination of employment. Commissioner Thompson noted that there were few suggestions for change in the present system governing individual employees; group terminations attracted more attention. [68] Under the heading "Individual Termination", the report states at page 144: A few employers outside of the construction industry who rely upon hiring halls wondered if the severance pay provision would cover them when their employees were laid off and returned to their hiring halls. The Commission received a brief from a group of construction unions requesting removal of the exemption for their industry, a suggestion employers rejected vigorously. [69] The report then goes on to state at page 146: Section 43(b) of the Act may well cover employers who are not in the construction industry and rely upon hiring halls to recruit employees. Nevertheless, the language of that
section of the Act is open to several interpretations and should be clarified. [70] The report then recommends that the Act should provide that employers and employees who rely on hiring halls for the short-term dispatch and recall of workers should not be covered by the termination provisions in section 42 of the Act, as it then was. At p. 146 it states: Current exclusions from the termination provisions of the Act reflect the realities of the industries affected. Majority sentiment in these industries is to leave the exclusions in the Regulation. In all cases, the exclusions reflect special conditions of these groups. The Commission respects the parties' views and does not recommend any change in the status quo. [71] Under the heading of "Group Termination", the following statement appears at page 152: The Commission notes that the exemption for the construction industry is in the Regulation for individual termination and in Section 49.2(e) of the Act for group terminations. That inconsistency should be corrected. The commission notes that this exclusion is very broad. Many workers in the construction industry work on a short-term basis and the industry is organised around intermittent employment. Workers are often compensated in their wages for the employment insecurity they face. On the other hand, workers in some branches of the industry are not paid for insecurity and construction employers may retain a core of permanent employees between projects. As the law and Regulation now stand, these employees are not covered by the termination provisions. In the course of eliminating the inconsistency of treatment of construction workers in the Act where it covers terminations, the government may wish to examine the specific circumstances of that industry and grant more specific exemptions in accord with the recommended procedures. [emphasis added] [72] It is the petitioner's contention that the legislature, having been given the Commissioner's views that the exemption described by him was very broad and should be examined, nevertheless did not change the wording in section 65(1)(e) from that contained in the old Regulation 10. From this, one must infer that the legislative intent was to leave the exemption broad enough to cover both short-term workers on one site and those workers who were retained by employers between projects. The
petitioner says the legislative intent was ignored by the Tribunal, thus rendering their decision patently unreasonable. [73] The relevant portion of the Tribunal's reasons is as follows: DEM has raised a significant issue of law that compels a review because of the importance of the interpretation of this section to the parties and the implications this determination will have for future cases.... We do not take issue with DEM's argument that the plain reading of the legislation states that once an employee is found to be employed at a construction site, and the employer's principal business is construction, the termination pay provision do not apply. However, the evidence is that Tyler worked continuously for DEM at many construction sites, not just one. The evidence is also that he worked on a number of other job sites for DEM that were not construction sites. Exceptions to benefit-conferring legislation must be narrowly interpreted. Section 65(1)(e) refers to a construction site, not to construction workers, as DEM argues, nor does it include "persons working on construction sites" as the delegate concluded. In our view, this section is designed to provide relief from the termination pay provision for employers to the extent that they employ workers to work on a single construction project. However, where an employer has many construction and renovation projects, and an employee is continuously employed by that employer, we are of the view, as the Adjudicator was, that the exception from the termination provision does not apply. We have arrived at this conclusion based on the strict wording of the legislation, as well as the principle that exceptions should be narrowly construed, and the interpretation and application of the Act should be consistent with its objectives and purpose. The purposes of the Act include ensuring that employees in British Columbia receive at least basic standards of compensation and conditions of employment, and to promote the fair treatment of employees and employers....
DEM also contends that the legislature had the opportunity to amend or eliminate the exemptions which were part of the old Act and Regulations in 1994. DEM contends that the legislature chose not to do that but, rather, to preserve the status quo recommended by Professor Thompson at p. 146 of his report. We do not consider the report to have recommended the status quo at all. Professor Thompson said that "exceptions should be limited" (at p. 29), that "coverage be more inclusive" and "apply as broadly as possible" (at p. 31). While we agree that he recommended that there be no change to the status quo at p. 146, we note that he was referring specifically to "employers and employees who rely on hiring halls", not a person in Tyler's situation. Moreover, the panel notes that "an employee employed in the construction industry" was exempt from the group termination provisions under the old Act and that the legislature chose not to adopt that broad working, wording that, had it been adopted, would have provided for an exemption for construction workers. In choosing wording that refers to a construction site, the legislature maintained the exemption for employees like those hired through hiring halls, employees that are employed to work on a single construction site and know that, once the work is complete, their employment will be terminated. DEM contends that s. 65(1)(e) provides for something different through 65(1)(b) and (c). We agree. Section 65(1)(e) governs employees that are not employed for a definite term but an indefinite term, and employees that are not employed for specific work which must be completed within a 12 month period but work which may last far longer than that. The panel finds that to interpret this section in the manner urged by DEM would, violate the spirit and intent of the Act to deprive workers of their rights on termination. Tyler's employment did not fall within those categories of employment exempted in sections 63 through 65. As an employee of some permanence who was not employed to work on a single site, we find that he is entitled to the protection of the Act. [74] Counsel for the Tribunal and BCYT argue that the distinction made by the Tribunal is not arbitrary or irrational. They argue that the interpretation by the Tribunal is in accord with the purposes of this
legislation as set out in Rizzo & Rizzo Shoes, supra. That case supports a broad interpretation leading to wide protection of employees, with narrow exemptions, and would resolve ambiguities in favour of the claimant. As well, the decision reflects a recognition of a meaningful distinction in the industry, that is a distinction between employees who work on a short term basis and are compensated for employment insecurity, and those employees who are retained between projects on a permanent basis. This distinction is one recognized by the Mark Thompson Report in the passage set in paragraph 71 above. [75] It is apparent from the submissions of the petitioner, the remarks in the Mark Thompson Report and the decision of the Director, that the construction industry has operated under the assumption that it was, in its entirety, exempted from the notice provisions of the Act. However, no one could point to any authority or for doing so, other than convention and practice. [76] Section 37(3) of the Interpretation Act, R.S.B.C. 1996 c. 238, reads: An amendment, consolidation, re-enactment or revision of an enactment must not be construed to be or to involve an adoption of the construction that has by judicial decision or otherwise been placed on the language used in the enactment or on similar language. [77] I accept the contention of the Tribunal and BCYT that, while it is open to me to find that section 65(1)(e) has the meaning ascribed to the prior Regulation 10 by the Mark Thompson Report, the Director and the industry, I must not construe it in that way simply because that was the meaning given to it previously. In other words, I cannot draw a conclusion one way or another from a prior construction. [78] I was referred to the employment standards legislation from various jurisdictions in Canada to show that other provinces, particularly Ontario, have accepted work location in the construction industry, not number of sites or length of employment, as the determining factor for an exemption (see Boyd v. Culliton Brothers Ltd., [1995] O.J. No. 2265 (Q.L.) (Gen. Div.)). In Scapillati v. A. Potvin Construction Ltd., [1999] O.J. No. 2187 (Q.L.), the Ontario Court of Appeal held that it was reasonable not to give notice of termination to an employee in the construction industry, based largely on the same type of arguments advanced before me by the petitioner and intervenors. [79] These decisions support the petitioner's contention as to the industry understanding and expectation. However, none of the other legislative schemes or cases decided under them is of assistance in determining the issue before me, which involves a review of the decision of the Tribunal, rather than an interpretation by this court at first instance. [80] Counsel for ICBA took me through the legislation and the use of the word "a" to demonstrate that its use is simply as an article and
not a numerical indicator. However, I do not think it can be said that it is "clearly irrational" or "patently unreasonable" to interpret the words "a site" in section 65(1)(e) to mean "a single site" as opposed to "one or more sites," when taken in the context of the whole of the Tribunal's reasons. [81] While this judgment was under reserve, section 28(3) of the Interpretation Act came to my attention. It reads: (3) In an enactment words in the singular include the plural, and words in the plural include the singular. [82] I sent a memorandum through the Registry asking counsel if they wished to address this section, as it had not been raised in argument before me or before the Tribunal. I have now received submissions from all parties. The petitioner and intervenors submit this section is dispositive of this case. The Tribunal and the Director caution against my taking into account something that was not before the Tribunal and interpreting the Act myself. The question in my mind was not whether I should now embark on an analysis of section 65(1)(e) in light of section 28(3) of the Interpretation Act, but whether I should direct the Tribunal to reconsider the matter in light of this section pursuant to section 5 of the Judicial Review Procedure Act, although such an approach was not suggested by counsel, and if I did not direct it back, whether the failure to consider the section rendered the decision patently unreasonable. [83] I have decided not to direct the matter back, and have come to the conclusion that the failure to consider section 28(3) of the Interpretation Act does not render the decision patently unreasonable. While I am troubled by the emphasis in the Tribunal's decision of their view of legislative intention, a view which is not necessarily supported when section 28(3)is considered, the Interpretation Act only governs where a contrary intention does not appear in the relevant statute (see section 2(1) of that Act). In Bank of Canada v Gratton [1987] BCJ No. 1887 (B.C.C.A.), the court said, while considering the effect of section 2(1) on section 28(3): The contrary intention need not be found in the express words, but may be inferred from the scheme of the enactment, its legislative history and other circumstances which surround the use of the word in question. [84] Thus it appears that section 28(3) does not set out a hard and fast interpretative rule; it provides a caution that, in the absence of contextual factors suggesting otherwise, the legislative drafter's choice of a plural or singular term is not semantically significant. Taking the Tribunal's reasons as a whole, it is evident they were purporting to interpret the words in section 65(1)(e) in their "entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [the Legislature]" (see Rizzo & Rizzo Shoes, supra, p. 87). That the portion of their judgment referring to legislative intention does not include a
reference to section 28(3) does not invalidate the Tribunal's interpretation nor does it render it patently unreasonable. [85] Moreover, it is not an answer to the Tribunal's failure to consider that particular legislative provision for me to embark on my own analysis of it and its applicability to section 65(1)(e) under the guise of affirming the Director's decision, which is the second part of the relief sought in the petition. I was referred to no authority which would allow me to affirm the decision of a statutory authority not under review, and to do so would entail an analysis of the issues in a manner reserved by the Legislature for the Tribunal. This is not consistent with this court's role on judicial review. CONCLUSION [86] Taking all of this into account, the decision of the Tribunal cannot be said to be clearly irrational, nor is it an attempt to legislate or negate the legislative will. The decision is not contrary to the objects of this type of legislation as enunciated in Rizzo & Rizzo Shoes. It accords with the Supreme Court of Canada's statement that the legislation must be interpreted liberally, with ambiguities resolved in favour of the worker. It is not contrary to the expressed purposes of the Act as set out in section 2 thereof. It reflects a meaningful distinction in the industry, one which was in fact raised in the Mark Thompson Report. [87] While there is a good argument that employees of long-standing who have worked on many projects are not entitled to notice because of the wording of section 65(1)(e), that argument was made before the Tribunal and considered and rejected in its reasons. If I were to adopt the positions put forward by the petitioner and the relevant intervenors, I would, in my view, be entering into an area which the legislature has reserved for the Tribunal. In other words, I would be enforcing another view of the industry and of the practical issues facing construction contractors simply because I might have decided the matter differently. [88] It remains to be seen how the Tribunal will apply the section in future appeals. On the facts of Mr. Tyler's case, no obvious unfairness arises, but there are instances where the Tribunal's present interpretation will give rise to illogical and inconsistent results. One of the most obvious is that raised by counsel for CLRA - a worker who stays on one project for 18 months is not entitled to notice, whereas a worker who is moved to a variety of sites in a shorter time period is so entitled. The Act requires more specificity if such outcomes are to be avoided. This was, as I have noted, recognized by Mr. Thompson and recommended in his report. [89] However, it is not up to the court to rewrite legislation to make the necessary changes, either adding specificity or clarifying the wording so that the exemption is without doubt a blanket one. That task lies with the legislature. [90] In the result, the petition is dismissed. I am indebted to all counsel for their thorough submissions and patient assistance in
acquainting me with the issues. If there is a need to address costs, counsel may do so through the Registry. "M.A. Humphries, J." The Honourable Madam Justice M.A. Humphries