In the matter of a Wage recovery Appeal under Division XVI –
Part III of the Canada Labour Code
TRANSFRT MCNAMARA INC. v. DARIUSZ A. CZERNEWCAN
ADJUDICATOR: Ib S. Petersen
DECISION DATE: 23 December 2016
APPEARANCES: Mr. Ross Weber on behalf of the Appellant and Mr. Dariusz Czernewan on his own behalf
DECISION
By letter dated 22 October 2015, I was appointed by the Minister of Labour to hear and adjudicate the wage recovery appeal filed by the Appellant under the Canada Labour Code, R.S.C. 1985, c. L-2 (the “Code”), with respect to a payment order of an Inspector dated 9 January 2015, confirmed by the Inspector on or about 2 April 2015. There is no issue that this matter is within Federal jurisdiction.
Between my appointment in October 2015 and the hearing, there were numerous communications and discussions between the parties, including some that I was privy to, with respect to the issues in dispute, disclosure and production of relevant documents, the number of witnesses and the most appropriate manner to hear and determine the appeal. There were, as well, several preliminary motions. It took considerable time before a hearing could be convened. In any event, the parties agreed to a hearing date, 21 November 2016. The Employee is in British Columbia; the Employer’s head office is in Ontario. The parties also agreed that I should hear and determine the appeal via telephone conferencing.
Facts
The Appellant hired Mr. Czernewan as a truck driver on 8 April 2014; and he was terminated in late July 2014. He was hired in Ontario. At some point, the parties agreed that Mr. Czernewan would work out of the Appellant’s Delta British Columbia terminal.
The parties agreed that Mr. Czernewan could transport his personal belongings, including his vehicle, to his new address in British Columbia using the Appellant’s truck and trailer. There is no dispute that he did in fact do so. The move occurred 24-28 May 2014. There were no deductions from Mr. Czernewan’s pay in the pay periods following the move. A bill of lading (with handwriting on it) dated 23 May 2014 did not set out any amount. An invoice was not generated on the Employer’s computer system until 22 August.
Mr. Tregroning agreed that he had no personal knowledge of the details of whatever arrangement was made until later in August, after Mr. Czernewan’s termination. From the evidence, it appears that this arrangement came about as the result of Mr. Czernewan’s communications with the Employer’s administrative employees Janet Schmidt, Tanya Ellui and Julie Tanguay. These employees did not testify at the hearing.
Both parties referred me to an email from Mr. Czernewan to Ms. Schmidt and Ms. Ellui dated 30 April 2014. The email stated in part:
I have been able to secure a new home in BC and have to move by the end of May. In order to make this move as quick and efficient as possible, minimizing my down time from work, I am hoping to solicit some assistance from TFM. The way I see it, the most optimal option would be if TFM could set me up with an LTL load direct from ON to BC, with 20′ of trailer space available in which I could put my pick-up truck and a few other belongings. In exchange for this accommodation, I would run this trip for free (no wages need be paid), plus pay a small additional freight charge. Upon arrival in BC, I could take only the minimal amount of time to move into my new place, whereupon I would return to work in 2-3 days, with my truck already there for me in Delta. I’m sure it is obvious how this arrangement would benefit me, not having to drive my own vehicle across the country, etc. Perhaps less obvious might be how it would benefit TFM. Any other way I look at doing the move, results in my down time and loss of productivity for a minimum of 10 days, and depending on circumstances, as much as 14 days. I don’t want to be off for that long, and I’m sure that TFM doesn’t want me off for that long either.
I’m hoping that we can work something out. If what I outlined above is not possible, I am still hoping TFM could help me with reducing some of my moving costs. I am downsizing significantly for this move and only need a few of my larger belongings (which won’t fit into my pick-up) to make the journey from ON to BC. if the above scenario is not possible, I would like to know if TFM might give me 1-2 skid spots at the back of a trailer to put those larger belongings in. They would be: washer, bed (incl. mattress, frame, headboard), dresser, TV. Of course, with this option, I would still be looking at 10-14 days off work to complete the move of my personal vehicle and other belongings. Then there is also the question of getting back to Ontario from BC, to get back into my TFM truck. This move is stretching my financial resources to the maximum and I can’t see myself being in a position to spring for a flight from BC back to ON.
Please let me know what, if anything, TFM might be able to work out with me on this. Please understand that I am not trying to put any pressure on anyone, but the reality is that one month goes by awfully quick and there is not much time. Please have an answer for me, be it yay or nay, at your earliest convenience.
Mr. Czernewan testified that on 18 June 2014, Ms. Ellui told him that the Employer would not charge him for the use of the equipment to move his personal belongings to British Columbia. He explained that the reason was that it was cost effective for the Employer to move his belongings in 5 days rather than him taking off work for 2 weeks, which he contended would result in lost earnings for the Employer. Mr. Tregroning denied such an agreement. He did not agree with the reason put forward by Mr. Czernewan. He testified that Mr. Czernewan’s duties would have been covered by other drivers had he been absent. While Ms. Ellui did not testify, it does not make sense that the Employer would have made its equipment available to Mr. Czernewan without charge.
Some time after the move to British Columbia, the Appellant closed the Delta terminal and Mr. Czernewan would have to work out a different terminal. The terminal was some distance away and Mr. Czernewan was not agreeable to the change and the longer commute. Ultimately the Appellant dismissed him, apparently related to a late delivery.
Mr. Czernewan’s last working day was 29 July 2014. The Appellant deducted the amount of its costs of moving his personal belongings from Mr. Czernewan’s final pay cheque in August 2014. The amount deducted was $3,104.64. The Appellant presented in evidence a ”screenshot” of an invoice issued by the Appellant to Mr. Czernewan dated 22 August 2014 in the amount of $2,100 plus fuel surcharge and tax, for a total of $3,104.64. The $2,100 represented the regular price of $125 per container foot, less a $25 employee discount.
On 5 August 2014, Ms. Tanguay emailed Mr. Czernewan asking him for his “instructions to forfeit pay for the moving costs and [his] instruction that [he] would cover any shortfall.” The costs of the moving were stated to be $2,100, which, on the evidence, was the first time any specific amount had come up. In his response to the email, Mr. Czernewan stated, among others, that the Employer did not have the right to make the deduction under the Code. He did not, however, refer to the alleged 18 June agreement. In cross-examination Mr. Czernewan explained that his mind was preoccupied with the claim for $2,100 and the alleged late delivery. I do not accept his explanations. It makes little sense that he did not to refer to the agreement with Ms. Ellui in his communications with Ms. Tanguay if, in fact, there was such an agreement. After all, if there was such an agreement, he did not owe the Employer for the move. In my view there was, at most, some vague arrangement between the Employer and Mr. Czernewan that he would compensate the Employer for the use of its equipment.
Mr. Czernewan did not agree that the Appellant was permitted to deduct the $3,104.64. On 6 October 2014, he filed a complaint with the Canada Labour Program. On 9 January 2015, an Inspector issued a payment order under the Code in the amount of $3,345.89 on account of unpaid wages. The Inspector did not accept that the Appellant had written authorization for the deduction of the amount. She confirmed her order on 2 April 2015.
On 23 September 2014, the Appellant took action in small claims court in Ontario to recover the amount owed. The Appellant had trouble serving Mr. Czernewan and obtained an order for substituted service. On 23 March 2015, the Appellant took default judgment against Mr. Czernewan in the amount of $3,245.70. This amount was for the original amount claimed plus court order interest.
Issue(s)
The issue before me is whether the Appellant was permitted to deduct the amount from Mr. Czernewan’s pay cheque either (1) because there was an authorization in writing by the employee or, in the alternative, (2) because of the deduction was authorized by court order?
Analysis and Decision
The Employer is the Appellant and as such has the burden to persuade me that the order should be set aside.
The general principle applicable is clear from the Code. Generally deductions from “wages and other amounts due to an employee” are not permitted. Permit deductions are specifically provided for in the Code.
The Code provides:
- 1(1)No employer shall make deductions from wages or other amounts due to an employee, except as permitted by or under this section.
- (2)The permitted deductions are
- (a)those required by a federal or provincial Act or regulations made thereunder;
- (b)those authorized by a court order or a collective agreement or other document signed by a trade union on behalf of the employee;
- (c)amounts authorized in writing by the employee;
- (d)overpayments of wages by the employer; and
- (e)other amounts prescribed by regulation.
The Appellant relies on s. 254.1(2)(b) and (c).
In Ace-J Transportation Inc v Liu, 2012 CanLII 19845 (CA LA), Referee Luborsky stated:
[62] Subsection 254.1(2)(c) of the Code permits the employer to make deductions from an employee’s wages for “amounts authorized in writing by the employee”. As I noted at para. 23 in Skylink Express Ltd. v. Guillon, supra, those words “impart the clear identification of the specific sum(s) of money at issue and unequivocal written permission from the Respondent allowing the Appellant to deduct or withhold such amount(s) from any wages owing.” See, also to the same effect the conclusion of Referee Letourneau in Re RWB Ranch Ltd. and Delesalle 2011 CLB 30524. It is my opinion that the relevant provisions in the Contractor Agreement do not authorize the deduction of $1,000 from the final pay owned to the Respondent for two reasons.
In Brar v V4U Logistics Inc, 2014 CanLII 66946 (CA LA), the Referee referred to M. G. Lund Trucking Inc. v. Petersen [2008] C.L.A.D. No. 68, where Referee Kubara summarized the law in this area as follows:
19 Section 254.1 sets out a general rule prohibiting deductions from wages or other amounts except as provided in the subsections, including subsection (2) in issue here. The intention of Parliament is to limit deductions from employee’s wages to situations which fall within the permitted deductions. The overall purpose of the Section is protection of the employee to ensure the employer makes payment of wages properly due the employee. Subsection (2) must be interpreted with this in mind. ( See D.A.G. Enterprises Ltd. And Cook [1996] C.L.A.D. No. 224 at para. 20; SPAR Aerospace Ltd v. Rawas, [2001] C.L.A.D. No. 245 at para 22).
….
22 A number of referees have allowed (or would have allowed) payroll deductions which were authorized in writing, but before, not after, the triggering event, and even though not “at the time of the deduction”. They have been unanimous in saying that the deduction in question must be specific, not a “basket” type of authorization authorizing deduction of unspecified future amounts as a result of unspecified possible future occurrences. Or, put another way, that such an authorization may be enforceable if it allows deduction for a specified or determinable amount as a result of a specified future occurrence. (See, for example: 153685 Canada Inc. (c.o.b. KRT Leasing) and Kempster [1998] C.L.A.D. No 95; D.A.G. Enterprises Ltd. and Cook, ibid. (obiter, at para. 23); SPAR Aerospace Ltd v. Rawas ibid; 4-C’s Trucking Ltd v. Jans [2005] C.L.A.D. No. 534)
23 As noted above, the basic purpose of Section 254.1 is protection of the employee, and this must be kept in mind when interpreting the section. If the amount of the authorized deduction is specific or readily determinable, and is truly consensual (no coercion, economic or otherwise), then it should be enforceable whether it is contained in the agreement or documents signed at the time of hiring, or is signed subsequently. An authorised deduction that is for the benefit of the employee, or the mutual benefit of the employee and the employer, has a very high likelihood of being consensual. There is little or no possibility of mischief or harm arising from allowing the employer the powerful tool of payroll deduction where there is a benefit to the employee from such deduction. Thus, the exceptions listed in “Note 2” to IPG-60, even if authorized at the time of hiring, are enforceable, as each of them provides a benefit to the employee. The deductions are for the purpose of something beneficial to the employee, and the convenience of payroll deduction is also beneficial.
24 Of the cases I have reviewed, the ones in which the referee has allowed a deduction even though the authorization was not given “at the time of deduction” or “after the event” have each involved some direct benefit to the employee. In Kempster, the benefit to the employee was that he would have the convenience of cash for truck expenses while on the road, and to avoid the deduction all he had to do was not use that cash for personal expenditures. In 4-C’s v. Jans the employee received the right to subsidized personal use of the company cell phone. In Kenn Borek Air the employee received a forgiveable loan in respect to the costs of Pilot Proficiency Checks. In Spar Aerospace the employee received a forgiveable loan for his relocation expenses. The clear benefit to the employee in each of these cases neutralises any possible suggestion that the authorization may not have been freely given.
25 Where a written authorization for a payroll deduction involves a burden, or the potential for a penalty or fine, being imposed upon the employee (without a corresponding equal or greater benefit accruing to the employee), or benefits only the employer, then it becomes important to enquire into the circumstances of the authorization to ensure that it was freely given. This determination will be fact driven, and individual circumstances of each case will have to be carefully examined. For example, if the authorization to deduct a penalty or fine is given by the employee as a precondition of employment, or while under duress (such as impecuniosity, or unequal bargaining power, for example), or if there is no benefit to the employee by giving the authorization to deduct a fine or penalty, other than getting hired, then it ought not to be enforceable without further enquiry. A number of referees have noted the need for the written authorization to be truly consensual. It is likely to be so if there is something in it for the employee. There usually will be a risk that the authorisation was not fully consensual where the deduction amounts to a fine or penalty and benefits only the employer.
26 The right of an employer to make a deduction from wages is the exception, and not the rule. That is the way Section 254.1 is structured. This is because that right is an extremely powerful tool in the hands of an employer for collection of amounts from an employee for which the employer may consider the employee liable. Parliament has deemed it appropriate to constrain this ability to make payroll deductions through the enaction of Section 254.1. For that reason the Section should be narrowly construed and the exceptions to it limited to clear cases. Given this, it is appropriate for a decision maker to be satisfied as to the consensual nature of the authorization, as well as the clarity and specificity of the amount and circumstances of the deduction, and to resolve any ambiguity or question in a given situation or document in favour of the employee.
In Lund, for example, the Referee found an agreement, signed at the commencement of employment, purporting to authorize a $300 deduction from the driver’s final pay if he failed to return his keys to head office on cessation of employment, to be unauthorized as it provided no benefit to the employee. While the agreement was “sufficiently specific in its terms concerning amount and circumstances of deduction,” it benefitted only the employer with no corresponding benefit to the employee, and the Referee was not satisfied that it was freely given at the time of hiring.
The Appellant referred me to the decision of Referee Bertrand in K Line Construction Ltd v Brewer, 1999 CanLII 20303 (CA LA) and Referee Koski’s decision in Moellenbeck Transport Ltd. D’Amour, 2015 CarswellNat 1481 (May 6, 2015). In Brewer, the Referee disallowed certain deductions where there was no agreement in writing. The Appellant directed me to a passage in the decision, a quote from D.A.G. Enterprises vs. Cook (March 20, 1996) where Referee Monnin stated that s. 254.1(2)(c) “contemplates a specified amount or one which can be ascertained and agreed upon by the employee prior to the deduction being made.” [Emphasis added]. The Appellant relies on the underlined phrase – “which can be ascertained and agreed” – and argues that the 30 April 2014 email represents the agreement between the parties and Mr. Czernewan’s written authorization to deduct from wages or other amounts due to him.
I have been able to secure a new home in BC and have to move by the end of May. In order to make this move as quick and efficient as possible, minimizing my down time from work, I am hoping to solicit some assistance from TFM. The way I see it, the most optimal option would be if TFM could set me up with an LTL load direct from ON to BC, with 20′ of trailer space available in which I could put my pick-up truck and a few other belongings. …
The Employer argues that the reference to the 20-foot container space provides an ascertainable amount based on the Employer’s pricing that Mr. Czernewan would have been familiar with.
I do not agree. Even a cursory review of the balance of the email makes cleat that there was no agreement between the Appellant and Mr. Czernewan. There was no meeting of the minds on the essential terms, such as payment for the use of the equipment, discount (if any), time of payment due etc. The parties were exploring proposals and, in my view, it did not go much further. Mr. Czernewan also wrote in his email: “I’m hoping that we can work something out. If what I outlined above is not possible, I am still hoping TFM could help me with reducing some of my moving costs.” As noted above, I am prepared to accept that there was some arrangement between the Appellant and Mr. Czernewan that permitted him to use the equipment, and an expectation that he was going to compensate the Employer.
Even if there was an agreement between the parties with respect to the use of the equipment, I do not accept that the 30 April email constitutes a “written authorization” for the purposes of s. 254.1. The “arrangement” permitting the use of the Employer’s equipment to move his personal belongings and truck was for Mr. Czernewan’s benefit, being related to his move to British Columbia. In his 30 April email to the Employer’s Ms. Schmidt and Ms. Ellui prior to the move, he stated that he was hoping to solicit assistance from the Employer for the move as it stretched his financial resources. He acknowledged that it was “obvious how this arrangement would benefit [him].” Nevertheless, the document, the email, does not contain any words that convey a clear and unequivocal authorization, freely given, to deduct. The document does not refer to a specific or determinable amount. The document does not use any words that in any manner could be construed as an authorizing for any deduction from Mr. Czernewan’s wages or other amounts due to him. For that reason alone, the email in the case at hand cannot constitute a written authorization.
I am leaving aside the issue of whether an email, as an electronic document, can meet the requirement for written authorization (see ss. 31.1-31.8, Canada Evidence Act, RSC 1985, c. C-5). The here email is, of course, not signed, electronically or otherwise.
There is other circumstantial evidence. I note that the Employer’s conduct was inconsistent with the position taken, namely that the email constituted a written authorization. The Employer controls the workplace and its equipment and, in my view, could have secured Mr. Czernewan’s written authorization prior to permitting him to use the equipment. The Employer failed to do that. The Employer did not seek to deduct the amount from Mr. Czernewan’s pay immediately following the move (24-28 May 2014). In fact, the Employer did not seek to do so until after the termination of his employment in late July. The invoice the Employer relied upon here (and before the Ontario Provincial Court) was dated 22 August 2014, well after Mr. Czernewan’s last day at work. Parenthetically, I note that the employment relationship did not end on a positive note. Mr. Czernewan was upset because of the Employer’s closure of the Delta terminal; the Employer was not pleased that he, apparently, had made a late delivery to an important customer.
I reject the second alternative basis advanced by the Appellant, that the deduction was authorized by court order. Very briefly, the Employer did not commence legal action until 23 September 2014, and did not take default judgment against Mr. Czernewan until 23 March 2015. This is of course well after Mr. Czernewan’s employment had come to an end, cannot provide the basis for the deduction from wages. The court order would necessarily have to exist before the deduction is made. The Employer is not left without a remedy as it can seek to enforce its judgment.
The Employer claimed legal costs in the amount of $1,500. In the circumstances I reject that claim. The Employer submitted that Mr. Czernewan was not entitled to legal costs if he was successful (Foster v. Champion Feed Services Ltd., 2009 CarswellNat 650 (L.M. Dolgoy Referee, February 9, 2009)). There was no evidence of out-of-pocket expenses. Mr. Czernewan was a self-represented litigant.
A Referee has the express statutory power to award costs. S. 251.12(4) provides:
- (4)The referee may make any order that is necessary to give effect to the referee’s decision and, without limiting the generality of the foregoing, the referee may, by order,
- (a)confirm, rescind or vary, in whole or in part, the decision being appealed;
- (b)direct payment to any specified person of any money held in trust by the Receiver General that relates to the appeal; and
- (c)award costs in the proceedings.
In Cooper et al. v. Peace Air Ltd., 2014 CanLII 39017 (CA LA), Referee Sims referred to the decision by the Supreme Court of Canada in Canadian Human Rights Commission v. Canada [2011] SCC 53 at para. 40, that “Costs” is a well-understood term:
[40] Moreover, the term “costs”, in legal parlance, has a well-understood meaning that is distinct from either compensation or expenses. It is a legal term of art because it consists of “words or expressions that have through usage by legal professionals acquired a distinct legal meaning”: Sullivan, at p. 57. Costs usually mean some sort of compensation for legal expenses and services incurred in the course of litigation. If Parliament intended to confer authority to order costs, it is difficult to understand why it did not use this very familiar and widely used legal term of art to implement that purpose.
It is clear from the language of s. 251.12(4) that the referee is invested with significant remedial powers, including, expressly, the power to award costs. In Dynamex Canada Inc. v. Mamona, 2003 FCA 248, the Federal Court of Appeal noted generally that “the object of Part III of the Canada Labour Code is to protect individual workers and create certainty in the labour market by providing minimum labour standards and mechanisms for the efficient resolution of disputes arising from its provisions.” In the courts the primary purpose of costs is to indemnify the successful party, usually only partial indemnification. Under the Code, the power to award costs is a matter of discretion.
The unjust dismissal complaint process provides certain employees under Federal jurisdiction with rights akin to those covered by collective agreements (Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29). An adjudicator has extensive remedial powers. The Code provides no express power to award costs in unjust dismissal complaints. Section 242(4) provides, in part:
(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
…
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
The language of s. 242(4)(c) has provided the basis for an award of costs (for example, Flewelling v. Munsee-Delaware Nation, 2012 CanLII 5895 (CA LA)).
In Vanguard Transport Inc. v. Sahota, 2012 CanLII 70029, Referee Gordon F. Luborsky summarized:
[39] Section 251.12(4)(c) of the Code authorizes the Referee, by order, to “award costs in the proceedings”. As Referee Dorsey noted at para. 77 in Shaw Cablesystems G.P. v. Lee, [2008] C.L.A.D. No. 20, some Referees have stated that awards for costs “in summary matters such as these should be avoided…or awarded only in rare and exceptional circumstances”. In Hao v. Canadian Imperial Bank of Commerce, [2009] C.L.A.D. No. 145, at para. 14, Referee Kaufman was mindful of the suggestion that “as a general rule costs are to be awarded on a partial indemnity basis, save and except for circumstances where a Referee is in extreme disapproval of the conduct of one of the parties”. Although dealing with a complaint of unjust dismissal under Division XIV of the Code, I accept as a correct statement of the law applying to the principles underlying the consideration of the quantum of costs awarded to a successful party in a wage recovery appeal under Division XVI of Code, the following by Adjudicator Kuttner in Polchies v. Woodstock First Nation, [2002] C.L.A.D. No. 441, at para. 21:
¶ 21 Counsel has requested the awarding of costs to the complainant on a solicitor-client basis. Since the decision of the Federal Court of Appeal in Banca Nazionale del Lavoro of Canada Ltd., supra, the jurisdiction of an adjudicator to award costs is beyond question. There, Justice Stone found that jurisdiction to be grounded in section 242(4)(c) inasmuch as “legal costs incurred would effectively reduce compensation for lost remuneration, while their allowance would appear to remedy or, at least, to counteract a consequence of the dismissal.” (at p. 12,182). As Adjudicator Bruce noted in Re Tina Paul, supra, that legal costs in cases such as this have been incurred over a lengthy period of time is self-evidence. Here, as there, the complainant has incurred the legal costs associated with the pursuit of this complaint over a significant period of time and it would be unfair to place the burden of those costs on him. However, ordinarily costs are not awarded on a solicitor-and-client basis but at a lower tariff whether party-and-party or otherwise. Nevertheless, in the appropriate case solicitor-and-client costs may be awarded. In the Banca Nazionale case Justice Stone addressed the matter as follows:
“Even in courts, that sort of award is ordered “only in rare and exceptional circumstances to mark the court’s disapproval of the parties’ conduct in the litigation.” (Isaacs v. MHG International Ltd. (1984), 45 O.R. (2d) 693 (Ont. C.A.) at page 695), and a judge must be “extremely cautious in departing from the general rule” that only part-and-party costs should be allowed a successful litigant (Vanderclay Development Co. v. Inducon engineering Ltd. et al., [1969] 1 O.R. 41 (Ont. H. C.), at page 48). An extraordinary award of this kind ought only to be made in circumstances that are clearly exceptional, as would be the case where an adjudicator wished thereby to mark his disapproval of a party’s conduct in a proceeding.” (p. 12,183).
Where costs have been awarded, Referee Sims noted in Cooper that courts have generally deferred to such rulings, (for example in Autocar Connaisseur Inc. v. Lalancette, 1997 CanLII 5639 (FC)). In Foster, the Referee awarded out-of-pocket expenses incurred in connection with the hearing. Costs have been awarded to self-represented litigants (for example, Buckle Transport Inc. v. Miller, 1995 CanLII 10333 (CA LA). In Autocar Connaisseur Inc., an award for “counsel fees” was found not to be patently unreasonable. In Vanguard, there was evidence that the respondent employee had spent almost $2,000 to a firm of paralegals for his representation.
In the case at hand, there is no evidence of any legal costs paid by Mr. Czernewan. There is similarly no evidence of any out-of-pocket expences. Nevertheless, in the circumstances, I find it appropriate to award an amount on account of costs to Mr. Czernewan because of the purposes of the Code, providing minimum standards of employment and fair and efficient resolution of disputes of disputes.
The Employer made deductions from Mr. Czernewan’s final pay cheque in clear contravention of 254.1 (1), which prohibits deductions with certain limited exceptions. The Employer relied on an email communication, which, as I have found above, provided no basis for the deduction. In my view, it was abundantly clear on the face of the email that it could not reasonably be read to provide any basis for the deduction. I am also of the view that the Employer’s reliance on a court order obtained subsequent to the deduction could not reasonably provide a basis for the deduction. In the circumstances, I have determined that $500.00 is a reasonable amount.
I MAKE THE FOLLOWING ORDERS:
- The Appellant shall pay shall forthwith pay $500.00 on account of costs to Mr. Czernewan;
- The amount paid to the Receiver General by the Appellant, $3,345.89, less statutory deductions on account of tax, CPP and EI in the amount of $951.32, for a total of $2,394.57 shall forthwith be paid out to Mr. Czernewan;
I retain jurisdiction to address any issues arising out of this award.
Vancouver, 23 December 2016
_______________________
Ib Petersen
Referee