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Employment Law - EMPLOYMENT STANDARDS LEGISLATION - Constitutional issues - Federal v. provincial jurisdiction - Offences and enforcement - Complaints

Thursday, January 12, 2017 @ 7:00 PM  


Appeal by ICN Consulting (ICN), an employment agency, and its director from the dismissal of their petition for judicial review of a decision of the Employment Standards Tribunal refusing to reconsider a decision that the appellants breached the Employment Standards Act. The respondents Tagirova and Baranova, Russian nationals, filed complaints in 2008 that fees they were required to pay to the appellant for obtaining a work contract and work permit to work in Canada as live-in caregivers were contrary to s. 10 of the Employment Standards Act. Before the complaints were determined, the appellants commenced Small Claims actions against the respondents for payment of monies owing under their contracts. The appellants were successful against Tagirova. The Director of Employment Standards (Director) intervened in the Baranova action, submittingthat the matter should not proceed because the issue concerned the application of the Employment Standards Act, which, on the authority of prior jurisprudence, precluded the Provincial Court from exercising jurisdiction over the claim. The Provincial Court then adjourned the trial concerning the claim against Baranova. The Director’s delegate subsequently determined that the appellants contravened the Act by operating an employment agency without a valid employment agency licence and by charging unlawful fees. The appellants argued that the application judge erred in law in failing to determine whether there was a reasonable apprehension of bias in the delegate’s determination that the appellant had contravened the Employment Standards Act and in failing to give preclusive effect to the Provincial Court order requiring Tagirova to pay monies to the appellants under her contract. In the alternative, the appellants submitted that the application judge erred in failing to accord paramountcy to the federal immigration arrangements over the provincial statute. The appellants argued the federal provisions gave rights to authorized consultants like the appellants to provide services related to obtaining employment, and granted rights to foreign nationals to have such immigration consultants charge them fees for obtaining employment.

HELD: Appeal dismissed. There was no evidence to support the theory that the Director’s views on any issue relevant to the complaints were adopted, or filtered into, the mind of the delegate so as to cause a reasonable apprehension of bias with respect to the delegate’s determination. The application judge did not err in failing to find the Tribunal’s decisions were patently unreasonable as allowing an impermissible collateral attack on a court order. The doctrine of collateral attack could not apply to the adjournment decision in Baranova’s complaint. The Director, in pressing the complaints to a conclusion, did not engage in an impermissible collateral attack upon the Provincial Court judgment. The complainants were entitled to look to the Director to resolve their complaints properly filed. This was not a case in which res judicata should be applied. To allow the principle of res judicata to supplant a decision by the legislatively mandated authority was to undermine the integrity of the administrative scheme. The doctrine of federal paramountcy had no application to this case. The appellants had not established that the federal scheme in force when the contracts were made authorized them to charge fees for representing the respondents for work done before the respondents filed their applications. The appellants had also not established either operational conflict between the two schemes or frustration of the federal scheme by application of the provincial law.