IN THE SUPREME COURT OF BRITISH COLUMBIA
Citation:
Brandt Tractor Ltd. v. Claypool,
2015 BCSC 759
Date: 20150511
Docket: S027418
Registry: Chilliwack
Between:
Brandt Tractor Ltd.
Petitioner
And
Shannon Claypool and
The Employment Standards Tribunal
Respondents
Before: The Honourable Mr. Justice Walker
Reasons for Judgment
Counsel for the Petitioner:
Counsel for the Respondent, Shannon
Claypool:
Counsel for the Respondent, Employment
Standards Tribunal:
Counsel for the Respondent, Director of
Employment Standards:
Place and Date of Hearing:
Place and Date of Judgment:
M.J. Torrens
T.L. Kerr
J.M. O’Rourke
A.J. Adamic
Vancouver, B.C.
April 10, 2015
Chilliwack, B.C.
May 11, 2015
Brandt Tractor Ltd. v. Claypool
Page 2
Introduction
[1]
Brandt Tractor Ltd., the petitioner, seeks to quash three decisions of the
Employment Standards Tribunal of British Columbia regarding the manner in which it
structured payment of statutory vacation and holiday pay in its employment contract
with one of its employees, Mr. Shannon Claypool.
[2]
Brandt Tractor Ltd. (“Brandt”) is in the business of selling heavy duty
construction and forestry equipment, including equipment manufactured by John
Deere, in Canada. Mr. Claypool was employed by Brandt as a worksite product
specialist at Brandt’s Surrey location. He signed multiple one-year employment
contracts that governed his employment from March 13, 2006 to June 23, 2010.
Mr. Claypool left his employment with Brandt in June 2010 of his own accord.
[3]
In addition to an annual base salary of $21,000 (which was paid semi-
monthly), Mr. Claypool’s compensation package included commission payments.
The commission amounts ranged from 0% to 20% depending on the product that he
sold. For example, his global commission for sales of:
(a)
used equipment, 20% on the gross margin;
(b)
consigned equipment, 10% on the gross margin;
(c)
an extended warranty with a margin of 20% or more, 5%;
(d)
an extended warranty with a margin lower than 20%, 0%; and
(e)
new John Deere utility equipment, the rate is dictated by a plan
described in the employment contract as the “Employee’s Branch
Utility Construction and Forestry wholegoods commissions plan”.
[4]
Brandt paid Mr. Claypool any commission he was entitled to receive at the
end of the month following the month in which it was earned.
[5]
The central issue on this judicial review application is the manner in which
statutory vacation and holiday pay on earned commissions is treated in
Brandt Tractor Ltd. v. Claypool
Page 3
Mr. Claypool’s employment contract. The employment contract specified that
statutory vacation and holiday pay amounts were included in Mr. Claypool’s
commissions. Mr. Claypool takes no issue with Brandt’s treatment of statutory
vacation and holiday pay on his base salary.
[6]
Section 58 of the Employment Standards Act, R.S.B.C., 1996, c. 113 (“Act”),
requires all employers to pay vacation and holiday pay. The minimum amount
payable for vacation pay for employees with less than five years employment with
their employer is 4% of their wages; thereafter it is 6%. Brandt agreed to pay
Mr. Claypool the maximum amount of 6% statutory vacation pay from the outset of
his employment. Their employment contract also called for Brandt to pay statutory
holiday pay in the required amount of 4%. In these reasons, unless I separately
distinguish the two, I will refer to statutory vacation and holiday pay as “Vacation
Pay”.
[7]
Each time his employment was renewed with Brandt, Mr. Claypool signed a
new employment contract. Each contract had the same terms insofar as the
approach to Vacation Pay. The specific employment contract in issue is dated
March 1, 2010 (“Employment Contract”).
[8]
Mr. Claypool took issue with Brandt’s approach to Vacation Pay in the
Employment Contract. On September 7, 2010, he filed an unpaid wage complaint,
per s. 74 of the Act, alleging that he was owed unpaid commissions and vacation
pay earned on those commissions. His complaint was determined in his favour by a
member of the Employment Standards Tribunal on January 31, 2013 (the “Original
Determination”). Following a hearing in which evidence, including viva voce
testimony, was adduced, the Employment Contract was determined not to comply
with the Act in respect of its treatment of Vacation Pay on earned commissions.
Brandt was found to owe Mr. Claypool $10,039.91.
[9]
Brandt’s appeal, decided solely on written submissions on August 8, 2013,
was unsuccessful (“Appeal Decision”). So was Brandt’s subsequent request for
Brandt Tractor Ltd. v. Claypool
Page 4
reconsideration, which was decided on November 20, 2013 and indexed as Brandt
Tractor Ltd., Re, [2014] B.C.W.L.D. 1127 (“Reconsideration Decision”).
[10]
Although Brandt’s petition claims that it seeks judicial review of the Appeal
Decision and the Reconsideration Decision, at the hearing of the petition, Brandt
confirmed that it is the Reconsideration Decision that is before this Court on judicial
review. The primary ground of Brandt’s claim is that the determination in the
Reconsideration Decision that the Employment Contract contravenes s. 58 of the
Act is patently unreasonable. It advances other alternate grounds to attack the
amount ordered to be paid. For example, Brandt asserts that it is inconsistent for the
Employment Contract to have been found illegal but at the same time, for the
reconsideration tribunal member to rely on it to impose an obligation on Brandt to
pay 6% statutory vacation pay as opposed to the amount that Mr. Claypool would be
entitled to receive by the Act, which is 4%. Brandt also claims that the time period
used in the Reconsideration Decision to calculate Vacation Pay is incorrect and not
in compliance with the Act.
[11]
Mr. Claypool and the Employment Standards Tribunal are respondents. The
Director of Employment Standards also provided written and oral argument at the
hearing of the petition. The Director took an appropriate expanded role in the
proceedings without objection from the other parties and in accordance with the
reasoning of Mr. Justice LaForest in Canadian Assn. of Industrial, Mechanical and
Allied Workers, Local 14 v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 (see also
Ontario (Children’s Lawyer) v. Ontario (Information and Privacy Commissioner)
(2005), 75 O.R. (3d) 309 at para. 37 (C.A.)). I will refer to Mr. Claypool, the
Employment Standards Tribunal, and the Director collectively as the respondents.
[12]
The respondents opposed the petition on the basis that this Court must give
considerable deference to the tribunal member who issued the Reconsideration
Decision, the petitioner has failed to demonstrate that it is patently unreasonable,
and in any event, the result is correct.
Brandt Tractor Ltd. v. Claypool
[13]
Page 5
All of the parties were in agreement that as a result of the combination of the
privative clause contained in the Act and s. 58 of the Administrative Tribunals Act,
S.B.C. 2004, c. 45 (“ATA”), the governing test for Brandt’s judicial review application
is patent unreasonableness. I agree.
[14]
Section 110 of the Act contains the privative clause:
110 (1) The tribunal has exclusive jurisdiction to inquire into, hear and
determine all those matters and questions of fact, law and discretion arising
or required to be determined in an appeal or reconsideration under Parts 12
and 13 and to make any order permitted to be made.
(2) A decision or order of the tribunal on a matter in respect of which the
tribunal has exclusive jurisdiction is final and conclusive and is not open to
question or review in any court.
[15]
Decisions of tribunals constituted under the Act are subject to the highest
level of deference. According to s. 58(2)(a) of the ATA, in a judicial review
proceeding concerning an expert tribunal (such as the Employment Standards
Tribunal where its enabling legislation contains a privative clause), a finding of fact
or law or “an exercise of discretion by the tribunal in respect of a matter over which it
has exclusive jurisdiction under a privative clause must not be interfered with unless
it is patently unreasonable.” In addition, “questions about the application of common
law rules of natural justice and procedural fairness must be decided having regard to
whether, in all of the circumstances, the tribunal acted fairly”: ATA, s. 58(2)(b).
[16]
Decisions involving the exercise of discretion under s. 58(2) are patently
unreasonable if the discretion is exercised arbitrarily or in bad faith, for an improper
purpose, is based entirely or predominately on irrelevant factors, or fails to take
statutory requirements into account: ATA, s. 58(3).
[17]
Brandt does not attack the Reconsideration Decision on the basis of an
exercise of discretion. At the heart of this judicial review proceeding is the question
of whether the Reconsideration Decision is patently unreasonable. If the decision is
not found to be patently unreasonable, then I must consider the other alternate
grounds advanced by Brandt. For the reasons set out below, that is unnecessary
Brandt Tractor Ltd. v. Claypool
Page 6
because I have determined that Brandt has demonstrated that the Reconsideration
Decision is patently unreasonable.
The Patently Unreasonable Standard of Review
[18]
The test is not a question of whether I agree with the Reconsideration
Decision, or whether I find it unreasonable; the question to be determined is whether
it is patently unreasonable. It is not the role of the reviewing court to make findings of
fact. As I have noted, a high degree of deference is owed to decisions of the
Employment Standards Tribunal: Gorenshtein v. British Columbia (Employment
Standards Tribunal), 2013 BCSC 1499 at para. 54; Spirit Ridge Resort Holdings Ltd.
v. British Columbia (Employment Standards Tribunal), 2014 BCSC 2059 at para. 34,
citing Johnson v. British Columbia (Workers’ Compensation Board), 2011 BCCA 255
at para. 43.
[19]
The meaning of the patently unreasonable standard has been described in
many cases decided in this province and by the Supreme Court of Canada. In
Speckling v. British Columbia (Workers’ Compensation Board), 2005 BCCA 80 at
para. 33, the Court of Appeal applied the Supreme Court of Canada’s definition from
Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.
748 at para. 57, where the Court defined it to mean “openly, clearly, evidently
unreasonable”. In Johnson v. British Columbia (Workers’ Compensation Board),
2011 BCCA, 255 at para. 44, the Court said that in respect of a decision of a
specialized administrative tribunal, it must be “so patently unreasonable that its
construction cannot be rationally supported by the relevant legislation” (quoting
Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp.,
[1979] 2 S.C.R. 227 at 237).
[20]
In Office & Professional Employees’ International Union, Local 378 v. British
Columbia (Labour Relations Board), 2001 BCCA 433, Southin J.A. said that in
considering whether a decision is patently unreasonable, the reviewing judge must
ask whether “anything leaps out that indicates a lack of reason”:
[28] It has been said, and correctly, that the standard to be applied here is
one of patent unreasonableness. To my mind the practical way to address
Brandt Tractor Ltd. v. Claypool
Page 7
that standard is to first look at the section in issue, then to read the decisions
in issue of the Labour Relations Board and finally to ask oneself whether
anything leaps out that indicates a lack of reason. Nothing leapt out here.
[21]
In Phillips v. British Columbia (Workers’ Compensation Appeal Tribunal),
2011 BCSC 576, after reviewing the applicable law, the standard of patently
unreasonable was described as “clearly irrational” and “evidently not in accordance
with reason” (at para. 31), or “so flawed that no amount of curial deference can
justify letting it stand” (at para. 32).
What Facts May Be Reviewed
[22]
Although there was some dispute between the parties concerning the extent
to which I could review the record beyond the facts set out in the Reconsideration
Decision, the parties agreed that it was appropriate for me to review the Employment
Contract and also inform myself from the facts found in the Original Determination
and the Appeal Decision.
[23]
Indeed, in Toronto Board of Education v. Ontario Secondary School
Teachers’ Federation, District 15, [1997] 1 S.C.R. 487, the Supreme Court of
Canada said that a reviewing judge may review the record to understand the
tribunal’s decision and the basis for the findings (at para. 47). The reviewing judge
does not, however, reweigh the evidence. In Canada (Director of Investigation and
Research), Mr. Justice Iacobucci said at para. 57 that, “This is not to say, of course,
that judges reviewing a decision on the standard of patent unreasonableness may
not examine the record”. The test for finding a decision to be patently unreasonable,
he said, usually requires the tribunal’s error to be evidence on the face of the record.
If it is, then the decision is patently unreasonable.
[24]
In this case, I have not engaged in any form of weighing the evidence and
have limited my review to informing myself of the facts as set out in the three
decisions and in reading the Employment Contract.
[25]
Further, I have not engaged in an analysis of the correctness of the applicable
law described in the Reconsideration Decision.
Brandt Tractor Ltd. v. Claypool
Page 8
The Employment Contract and Payment of Commissions and Vacation Pay
[26]
The material terms of Mr. Claypool’s Employment Contract with Brandt are
described in the Reconsideration Decision. The contract is also found in the record
before me on this judicial review application.
[27]
The treatment of statutory vacation pay in respect of earned commissions is
addressed in paragraph 5 of the Employment Contract. It is described in the
Reconsideration Decision as follows:
5.2 The Employee will receive vacation pay as follows: (a) during his
vacation, the continuance of his Base Salary as well as all commissions
attributable to the Employee on sales by Brandt within his territory, and (b) on
each commission payment, 6% vacation pay will be included on all
commissions, in accordance with Schedule “B”. For greater clarity, vacation
pay on commissions shall be limited to 6% even if an Employee is entitled to
annual vacation that exceeds the relevant provincial employment or labour
standards legislation.
[28]
Payment of statutory holiday pay is set out in paragraph 5.3:
The Employee will receive statutory holiday pay as follows: (a) on the
statutory holiday, the continuance of his Base Salary, and (b) on each
commission payment, 4% statutory holiday pay will be included on all
commissions, in accordance with Schedule “B”.
[29]
Schedule B to the Employment Contract sets out the commission structure.
The key clause provides:
B)
COMMISSIONS:
Commissions shall be payable based upon the wholegoods products sold by
the Employee within the Employee’s designated sales territory, all as
determined by Brandt;
Commissions shall not be earned until funds have been settled in full and
received by the company.
All Commission amounts set out in this Schedule “B” include 6% vacation pay
and 4% statutory holiday pay.
…
C)
APPROVAL:
All commissions are subject to approval of the management of Brandt Tractor
Ltd.
Brandt Tractor Ltd. v. Claypool
[30]
Page 9
Commissions are paid monthly, in the month after they are earned.
Determining the exact amount of Vacation Pay included in each global commission
payment was readily calculable and Mr. Claypool was provided by Brandt with
detailed written information showing the exact amount of Vacation Pay on his earned
commissions.
Analysis of the Reconsideration Decision
Two Different Legal Tests
[31]
A useful and appropriate starting point in the analysis is to set out the tribunal
member’s statement of law applicable to treatment of Vacation Pay on commissions
in employment contracts. Ultimately, his summary of the law was that even though
commissions are defined as “wages” in the Act, it is possible, and lawful, for an
employer to stipulate that Vacation Pay is included in commissions so long as the
following requirements are met:
(a)
there is a formal written employment contract that clearly states that
some of the commission is being paid as Vacation Pay;
(b)
the employment contract does not merely state that the commission
would otherwise be payable “includes” Vacation Pay;
(c)
the employment contract provides for the amount of Vacation Pay that
is required by the Act; and
(d)
the amount of the Vacation Pay is clearly and separately identified in
the employee’s wage statements.
[32]
After reviewing prior relevant decisions of the Employment Standards
Tribunal and of the courts of this province, the tribunal member summarized the law
as follows:
39
The foregoing review indicates that at least four separate Tribunal
Members, in six separate decisions (none of which the Director challenged by
way of a reconsideration application) endorsed, either expressly or by
reasonable implication, the view that vacation pay could be paid as a portion
Brandt Tractor Ltd. v. Claypool
Page 10
of the employee’s total compensation attributable to a sale provided: i) there
is a formal written agreement that clearly provides for an allocation of a
portion of the global sum payable to vacation pay; ii) the agreement does not
simply state that a commission otherwise payable “includes” vacation pay; iii)
the agreement provides for the proper amount of vacation pay; and iv) the
vacation pay actually paid is clearly and separately identified in the
employee’s wage statements.
[Emphasis added]
[33]
The authorities that the tribunal member referred to in paragraph 39 are
referred to in the Reconsideration Decision as the “National Signcorp” line of
authorities. In National Signcorp Investments Ltd., BC EST #D163/98, which was
written by the same tribunal member who wrote the Reconsideration Decision, the
tribunal member determined at pages 4 - 5 that an employment contract that called
for the employer to pay Vacation Pay as part of global commission was in
compliance with the Act:
At the point of engagement, each of the 11 sales representatives signed
employment agreements that provided for an initial “salary plus commission”
compensation package and which, after a certain period of time (which varies
from employee to employee), “rolled-over” into a 100% commission formula.
Clause 4 of the employees’ compensation agreements is of particular
concern in this appeal:
“4) Commission/draw, commission/salary and straight
commission earnings are 100th/104th of the amount paid. Four
(4) 104ths are considered to be vacation pay which will be
paid at each pay period.”
Thus, the employer’s approach to compensation was to agree to pay a
“global commission” (which was based on the individual’s sales and leasing
volume) to each representative and then allocate the commission between
“regular earnings” and “vacation pay”. This allocation was specifically set out
on each employee’s pay stub for each pay period - - in other words, the dollar
amount shown as “commissions” was something less than the full
commission payable with the balance due being recorded as “holiday pay
paid” (i.e., vacation pay). The facts of the present case distinguish it from
InterCity Appraisals Ltd. [1996] BC EST #D245/96 (cited to me by both
counsel for the employer and by the Director’s delegate) where I found there
was no agreement between the parties to include vacation pay in the
commission rate and where there were no payroll records showing that
vacation pay had ever been paid to the complainants.
…
It is to be noted that 58(2)(b) specifically provides that an employer and an
employee may agree that vacation pay will be paid at each pay period. …
Brandt Tractor Ltd. v. Claypool
Page 11
In my view, the system that the employer has put in place with respect to the
payment of vacation pay is in full compliance with the Act. This system is
completely transparent; it was agreed (in writing) between the employer and
the employee at the outset of the employment relationship; and it separately
identifies “regular” commission earnings and vacation pay on each payday
wage statement. The Director’s delegate concedes that if the employer had,
from the outset, simply reduced the global commission rate by an amount
equivalent to vacation pay and then added that latter amount to each
employee’s pay on each payday, the requirements of the Act would have
been satisfied. For my part, I cannot fathom why the same result cannot be
lawfully accomplished by simply paying a global commission rate and then
allocating a portion of that commission to vacation pay so long as that system
is clearly explained to the employee at the outset of the employment
relationship and the vacation pay portion is clearly identified and accounted
for on the employee’s wage statement.
[Emphasis added]
[34]
Having set out the legal test to be applied, the tribunal member then provided
a further and different iteration of the legal test at paragraph 40, stating that Vacation
Pay must be expressed as an additional “top-up” to commissions. An employer
cannot simply identify a global commission rate and then allocate a specified
percentage amount as Vacation Pay. Under the formulation of the test described in
paragraph 40, the four criteria said to be required in the National Signcorp line of
authorities would not be sufficient to comply with the Act since those cases do not
require additional, top-up payments. As I read the tribunal member’s remarks in
paragraph 40, they are a departure from the legal conclusion he previously identified
in paragraph 39 of the Reconsideration Decision:
40
…The Tribunal has consistently held that an employer cannot satisfy
its obligation to pay vacation pay by simply stating that any vacation pay
otherwise payable is simply included within a particular commission rate. The
employer must specify a commission rate and then must pay an additional
4% or 6%, depending on the employee’s tenure, as vacation pay. This latter
amount may be paid by way of an additional “top up” to the commission rate
provided for in the enabling written agreement between the parties so long as
the “top up” meets the employer’s statutory obligation and the additional
payment is separately identified as vacation pay on the employee’s wage
statements.
[Emphasis added]
[35]
In essence, the tribunal member set out two different legal tests which have
different outcomes when applied to the facts of this case. In my respectful opinion,
Brandt Tractor Ltd. v. Claypool
Page 12
setting out two different legal tests leaps out as indicating a lack of reason and is, in
my opinion, clearly and patently unreasonable.
Applying the National Signcorp Line of Authorities
[36]
The tribunal member found paragraph 5.2 of the Employment Contract to
contravene the Act because he found that it reduced Mr. Claypool’s earned and
payable commissions that he and Brandt had agreed to:
49
In my view, and as previously expressed, the agreement as it relates
to the payment of vacation pay contravenes the Act and, accordingly, under
section 4 “has no effect”. The commissions earned and payable under the
agreement are “wages” within section 1 of the Act and, as such, attract
vacation pay under section 58. In my view, the agreement does not fall within
the parameters of the National Signcorp line of authorities. Under section 58,
vacation pay must be paid on all earned wages and that would include, in this
case, not only all commissions earned but also the base salary and statutory
holiday pay.
[37]
The tribunal member determined that in contravention of the Act the
Employment Contract reduced the commission that Mr. Claypool had otherwise
agreed would be paid to him:
50
Paragraph 5.2 of the agreement states that 6% vacation pay will be
paid “on each commission”. However, Brandt simply purported to effectively
reduce Mr. Claypool’s earned and payable commissions by an amount
equivalent to the vacation pay that would otherwise be payable to
Mr. Claypool. …
[38]
In doing so, I observe that the tribunal member did not refer to the actual
words in the Employment Contract which provided that Mr. Claypool’s global
commission payments included statutory vacation and holiday pay and set out the
actual amounts of 6% and 4%, respectively. Thus, a plain reading of the
Employment Contract shows that it did in fact provide for Vacation Pay to be paid on
all earned commissions and is included in the applicable global commission amount.
[39]
As I have noted, the National Signcorp line of authorities reviewed by the
tribunal member do not state that an employer is required to pay Vacation Pay as an
additional top-up payment. They specifically allow one portion of the global
commission payment to be allocated as commission and another portion as
Brandt Tractor Ltd. v. Claypool
Page 13
Vacation Pay so long as it does not effectively decrease the commission rate agreed
to in the employment contract. In this case, the agreed commission rate included
specific rates for statutory vacation and holiday pay that were paid to Mr. Claypool
when he earned a commission. In the result, the first three requirements of the
National Signcorp line of authorities described by the tribunal member were met.
Transparency and Mr. Claypool’s Reasonable Expectation
[40]
I have also determined that the Reconsideration Decision is patently
unreasonable because the tribunal member did not apply the facts in reaching his
determination.
[41]
The tribunal member determined that the treatment of Vacation Pay in the
Employment Contract does not comply with the Act because it did not meet
Mr. Claypool’s reasonable expectation:
52
The Applicant maintains that its system wholly complies with the
principles espoused in the National Signcorp line of authorities but a simple
example will, I believe, demonstrate the fallacy of the Applicant’s assertion.
Under the parties’ March 1, 2010, agreement, a 20% commission is payable
on the “gross margin” for sale of “New John Deere ‘Commercial Worksite
Products’ and Ditch Witch Skid Steers”. Assuming a $10,000 gross margin,
Mr. Claypool would have reasonably expected a $2,000 commission (i.e., a
“wage” payment of $2,000) and, in addition, would have been entitled to an
additional 6% vacation pay over and above the commission (i.e., $120).
However, the Applicant says that the $2,000 commission is really only $1,880
since 6% of the $2,000 total commission entitlement represents vacation pay.
In other words, the commission is not 20% but rather 18.8% - in effect, the
Applicant is taking a $120 deduction (contrary to section 21 of the Act) from
the employee’s regular wages and crediting it as “vacation pay”. In the end
result, the commission rate is not 20% as stated in the agreement but only
18.8% and this cannot, in my view, be characterized as a wholly transparent
system. Indeed, it is highly misleading. …
[Emphasis added]
[42]
I take the tribunal member’s point to be that treatment of Vacation Pay is,
essentially, a matter of transparency for Mr. Claypool. With the greatest of respect, a
determination that Mr. Claypool was misled by a lack of transparency is inconsistent
with the facts set out earlier in the Reconsideration Decision and in the Original
Determination as well as the approach taken by the tribunal member in National
Signcorp that I have excerpted and underscored in paragraph 33 of these reasons.
Brandt Tractor Ltd. v. Claypool
[43]
Page 14
Lack of transparency was not an issue for Mr. Claypool because the facts are
that Mr. Claypool was well aware of the commission and Vacation Pay structure
before he signed the Employment Contract with Brandt. Mr. Claypool signed
successive employment contracts with identical language insofar as treatment of
Vacation Pay payable on earned commissions was concerned. Brandt provided
Mr. Claypool with a regular, monthly itemized written breakdown of the specific
amounts of all global commission payments, statutory vacation and holiday pay
earned and paid on all earned commissions, and the commission amounts net of
Vacation Pay.
[44]
Therefore, in concluding that Mr. Claypool was misled and was not paid in
accordance with his reasonable expectation overlooks the facts. When signing the
Employment Contract, Mr. Claypool understood and agreed to the longstanding
approach taken to Vacation Pay. The transparency requirement identified by the
tribunal member in the Reconsideration Decision was met.
Requirement for Bi-Monthly Payment of Commissions
[45]
During oral submissions, Brandt also argued that the Reconsideration
Decision was patently unreasonable because the tribunal member determined, at
paragraph 47, on his own accord and without submissions from any of the parties,
that the Employment Contract contravened the Act because commissions were not
paid twice monthly. This point was not raised before me as a denial of natural justice
issue, but as another purported illustration of the patent unreasonableness of the
decision and result. The respondents did not dispute Brandt’s assertion that this
aspect of the Reconsideration Decision was reached by the tribunal member of his
own accord. No authority was cited before me to demonstrate that this constitutes
patent unreasonableness as opposed to founding a complaint for denial of natural
justice. Given my determination that the Reconsideration Decision is patently
unreasonable for other reasons, it is not necessary to determine this particular point.
Brandt Tractor Ltd. v. Claypool
Page 15
Conclusion
[46]
For the foregoing reasons, I have determined that the Reconsideration
Decision is patently unreasonable. The decision should be quashed and the
complaint referred back to the Employment Standards Tribunal for reconsideration.
This is not one of those rare cases where I should exercise my discretion to
substitute my own opinion as to the appropriate result: Dennis v. British Columbia
(Superintendent of Motor Vehicles), 2000 BCCA 653.
[47]
Instead, the complaint should be referred back with directions to the Tribunal,
as per s. 5 of the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to set out a
complete and uniform statement of the applicable law and to apply the applicable
law to the facts.
“Walker J.”
__________________________________
The Honourable Mr. Justice Walker