Court of Appeal of Quebec

2915499 Canada inc. c. Commission des normes, de l'équité, de la santé et de la sécurité du travail

200-09-009447-175

Gagnon, Savard, Gagnon

Appeal from a judgment of the Court of Quebec granting in part a claim based on the Act respecting labour standards (CQLR, c. N-1.1) (“ALS”). Allowed; the claim is dismissed.

The appellant operates a restaurant where tips are pooled amongst the servers and bussers. The appellant pays these employees the minimum wage payable to employees who receive gratuities or tips, as prescribed in s. 4 of the Regulation respecting labour standards (CQLR, c. N-1.1, r. 3). The trial judge found that bussers do not meet the definition of “employee who receives gratuities or tips” and that they should be remunerated at the “regular” minimum wage prescribed in s. 3 of the Regulation

The appeal should be allowed. The judge’s interpretation of the relevant provisions was unduly restrictive. Sections 3 and 4 of the Regulation set out different standards for different categories of employees. Section 4 of the Regulation, which sets a minimum wage for an employee who receives gratuities or tips, is therefore not an exception to the rule in section 3 of the Regulation. The judge should have adopted the contextual approach to statutory interpretation. What is more, he accepted an interpretation of “employee who receives gratuities or tips” based on the patron (the person who usually pays the tips), while the definition in s. 1 of the Regulation is based on the employee (the person who usually receives the tips). The judge erred in finding that an employee “receives” a tip only if it is received directly from the patron. Section 50 of the ALS provides that tips may be paid directly or indirectly by the patron. The meaning of the term “indirectly” must not be limited solely to the two situations described by the judge: (1) when a patron uses a credit or debit card to pay the bill, and (2) when the patron pays the employer the service charges added to the bill. However, tip-pooling amongst employees is a well-known phenomenon, particularly in the restaurant milieu, and the legislator has recognized and regulated this practice. It would be paradoxical for the definition of “employee who receives gratuities or tips” to exclude a person who rendered a service to the patron and who usually receives the tips in actual fact while performing his or her work, even if it is merely a share of the amount paid by the patron. 

***Provisions interpreted: ss. 1, 3 and 4 of the Regulation respecting labour standards and ss. 50 of the Act respecting labour standards

*Summary by SOQUIJ
Text of the decision: Http://citoyens.soquij.qc.ca

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