Bich, Vauclair, Schrager
Appeal from a judgment of the Superior Court dismissing an application for authorization to institute a class action. Allowed, with dissenting reasons.
Reasons of Bich J.A., with which Vauclair J.A. agrees: The proposed class action alleges that the employer is breaching the provisions of the Act respecting labour standards (CQLR, c. N-1.1) (A.L.S.) on the remuneration of time worked in excess of the regular workweek of 40 hours. The trial judge found that s. 55 A.L.S. did not apply since the appellants were remunerated on an annual, not hourly, basis and that the facts did not establish that the employer controlled the working hours. She also held that the composition of the class proposed by the appellants did not satisfy the requirements set out at art. 575(3) of the Code of Civil Procedure (CQLR, c. C-25.01).
To state that the appellants were actually remunerated on an annual basis, the judge necessarily had to conclude that they were in fact remunerated this way, regardless of the number of hours worked. Since this finding requires a factual analysis, the application of s. 55 A.L.S. to the facts at hand therefore did not raise a “pure question of law” capable of being decided at the authorization stage. The same is true regarding the judge’s conclusion on the second cause of action. Indeed, just because the appellants ostensibly received an annual salary or because their weekly working hours were variable does not mean that it can be inferred that these hours were not controlled or were inconsistent with a prevailing hourly wage within the meaning of s. 55. It also does not mean that there was no hourly wage or that the compensation system established by the respondents did not have the objective or result of avoiding or circumventing the public order provisions of the Act. This is what the debate between the parties is about. This debate cannot be resolved at the authorization stage. The judge’s finding with respect to the composition of the class is also unfounded, since all of the criteria set out in George c. Québec (Procureur général), (C.A., 2006-09-19), 2006 QCCA 1204, SOQUIJ AZ-50391838, J.E. 2006-1897, D.T.E. 2006T-892,  R.J.Q. 2318 are satisfied.
Dissenting reasons of Schrager J.A.: The judge did not err in her interpretation of s. 55 A.L.S. In addition, her analysis regarding the employer’s control over the working hours contains no clear error. There is no reason for this Court’s intervention.
Text of the decision: Http://citoyens.soquij.qc.ca