Executive Summary: Key Legal and Evidentiary Issues

• Leave to appeal was denied as no question of law or jurisdiction was raised.

• Employee’s evidence was accepted as credible due to the employer’s failure to present a witness.

• Payroll records provided by the employee were deemed reliable and supported the $9,041.03 claim.

• The Board exercised discretion under the Code to accept the late referral of the claim.

• Employer’s argument about the 22-month vacation wage limit was not raised before the Board.

• Procedural fairness claim was rejected due to employer’s refusal to justify discrepancies in its records.

Facts of the case

Patrick Jolicoeur was employed by Winnipeg Environmental Remediations Inc. from approximately December 2015 until July 26, 2022. In August 2022, he filed a claim with the Employment Standards Branch (ESB) under section 92(1) of The Employment Standards Code, CCSM c E110, regarding unpaid wages. The ESB dismissed the claim on May 17, 2023. On May 31, 2023, Jolicoeur submitted correspondence challenging the decision, specifically concerning vacation wages. The matter was referred to the Manitoba Labour Board (the Board) on July 6, 2023.

The board’s decision and evidentiary findings

A hearing before the Board began on February 28, 2024, but was adjourned due to the employer’s instructing witness being in the hospital. The hearing resumed on December 12, 2024. Despite being granted a short adjournment, the employer failed to present any witness to testify. The Board accepted Jolicoeur’s payroll records, obtained while he still had access to the employer’s system, as reliable. The employer’s records were inconsistent and unexplained. The employee testified that the records were generated through QuickBooks, securely sent by email, and could not be altered. He demonstrated that at the start of 2021, he had a vacation balance of $5,764.10 and accrued an additional $8,180.78 by the end of his employment. Having received $4,903.85 in vacation payments, the outstanding amount was calculated to be $9,041.03.

Policy terms and clauses discussed

The employer argued that the Board erred in accepting the late referral of the matter under section 110(1.1)(b) of the Code, which requires such requests to be filed within seven days of service of the order, unless extended by the director. The Court found that this was a factual issue, not a question of law. The employer also claimed the Board refused to consider its affidavit evidence due to the absence of a witness. The Court held that the Board had discretion in evaluating evidence and had given the employer sufficient opportunity to explain discrepancies. Lastly, the employer argued that section 96(2)(b)(ii) limited recovery to vacation pay earned in the 22 months prior to termination, and that only $692.28 was owing. However, this specific calculation was not raised before the Board and could not be raised on appeal.

Outcome and decision of the Court of Appeal

Justice Cameron of the Manitoba Court of Appeal denied the employer’s application for leave to appeal. The Court held that none of the grounds raised a question of law or jurisdiction and that there was no arguable case with a reasonable prospect of success. The decision of the Board to award $9,041.03 in vacation wages stood. The employee did not attend the appeal proceedings or file materials, and the Board did not seek costs, so no costs were awarded.