International Timber Co. v. Field

[19281 INTERNATIONAL TIMBER COMPANY

A

N *Oct.

(DEFENDANT) ..........................

*Oct.

AND

H.

.................

RESPONDENT. ON APPEAL FROM THE APPEAL BRITISH COLUMBIA

C.J.C.-The plaintiff (respondent) was engaged by the defendant company in its logging camp at Campbell River, British Columbia, for two periods during the year, 1927,-first as a " dish-washer " at $3.20 per day and afterwards as a waiter, or " flunkey," at first at the same wage and later at $3.45 a day. He appears to have been treated by his employers as liable to contribute to the Workmen's Compensation Fund a percentage of these wages. R.S.B.C., 1924, c. 278, s. 33.

By an Order of the Board of Adjustment (constituted under the Hours of Work Act, 1923) dated the 29th of September, 1926, and made under the Male Minimum Wage Act (B.C. Statutes, 1925, c. 32) the " minimum wage for all employees in the lumbering industry " was fixed at " forty cents per hour."

" Lumbering industry " was by the Order defined to include

Alleging that he was an employee in the " lumbering industry " of the defendants, the plaintiff sued in the County Court to recover the difference between the amounts paid S.C.R.

him at the contract prices above stated and 40 cents per hour on the basis of having worked 13 hours per day. the but, by section 13, the Act is declared inapplicable to the occupations of " farm labourers, fruit-pickers, fruit-packers, fruit and vegetable canners, and domestic servants." The County Court Judge found that the working time of the plaintiff amounted in all to only 10 hours per day and that from that time must be deducted l hours to cover meal times, leaving only hours as the actual working day to which the 40 cent rate per hour could apply. He also held, however, that the plaintiff was a " domestic servant " within section 13 and, accordingly, dismissed the action.

The Court of Appeal for British Columbia reversed this judgment, holding that the plaintiff's working time was 13 hours per day and that he was not a " domestic servant " within section 13.

As the foundation of his action the plaintiff prefers the Order of the Board of Adjustment and it is obvious that validity of that Order is essential to his success.

We are, with respect, of the opinion that it is apparent on the face of the Order of the 29th of September, 1926, that, in making it, the Board misconceived the nature and scope of its functions under the Male Minimum Wage Act and that the Order, as made, is ultra vires and invalid. The following portions of the statute indicate the powers and duties of the Board, so far as presently material: It is apparent that the Act deals not with the industries or businesses of employers as such, but with the occupations of employees. The same business or industry may include many different occupations: thus, a bread-making c.c. establishment may employ bread-makers, drivers of distributing wagons, book-keepers, shop assistants, etc.; and of such employees each of the classes mentioned would have a different occupation.

A fruit rancher may employ fruit-cultivators, fruit-pickers, fruit-packers, fruit-canners, book-keepers, drivers, etc.; yet, while the fruit-cultivator and the driver and the book keeper have occupations which may bring them within the Act, the occupations of the fruit-picker, fruit-packer and fruit-canner exclude them from its operation.

These illustrations suffice to make it apparent that, the occupation of the employee being what the Act is concerned with, the ascertainment of his connection with a particular industry or business does not suffice to determine what will be for him a proper minimum wage. The enumeration in the Board's Order of the activities included by it in the " lumbering industry " makes it abundantly clear that in making its Order, it had regard rather to the general nature of the industries in the carrying on of which the employees covered by it were engaged than to the particular occupations therein of such employees. The carpenter or painter is not the less engaged each in a different occupation because both happen to be employed in connection with erecting a factory, the one to build it and the other to paint it. The occupation of the driver of a team of horses and that of the river driver are not the less distinct because both may happen to be engaged in handling logs. The pursuits of the stationary engineer and the mill-hand do not cease to be separate and distinct occupations because each is employed in the same sash and door factory. Moreover, for men the nature of whose employment requires them to be continuously call " during long hours, though not actually at work (e.g., messengers and watchmen), the same minimum wage per hour of employment is scarcely appropriate as that which would be fixed for men whose employment consists of continual physical work during stated, but comparatively shorter hours (e.g., woodsmen, or factory hands). That the Provincial Legislature was alive to the difference in regard to the nature and hours of employment between men engaged in actual industrial work and persons employed in incidental work connected with industries, such as clerks, boarding-house and bunk-house assistants, is mani- .. C.

fest from s. 2 of the Labour Regulation Act, R.S.B.C., 1924, c. 126.

In a word, what, in our opinion, the Male Minimum Wage Act contemplates is that the Board in fixing minimum wages will take account of the nature of the employee's work, will consider how exacting it may be, what mental and physical effort it may entail and the conditions under which it is performed, such as the inconvenience, hardship and. risk incidental to it, rather than the general character of the industry or business in the carrying on of which the work will be done or services rendered.

Just as s. 3 requires the Board to deal separately with each kind of occupation, i.e., taking an illustration from the concrete case before us, to distinguish between such entirely different occupations as that of the woodsman and of the dining room waiter, so s. 5 contemplates that it will classify and' establish different rates of minimum wages for men pursuing the same trade or calling under different conditions and hours of employment, some entailing greater hardships and inconveniences than others-as, for instance, again using the concrete case before us by way of illustration, between the waiter in the town restaurant and the waiter, or " flunkey," in the distant lumber camp.

That such considerations did not influence the Board in making its Order of the 29th of September, 1926, but that, on the contrary, it grouped indiscriminately in that Order all employees engaged in the manufacture or handling of wood products and fixed for all the same minimum wage without regard to the particular occupation of each class of employee, seems to us so clear on the face of the Order that its invalidity is beyond doubt. A contrary view was taken by the British Columbia Court of Appeal in Rex v. Robertson & Hackett Sawmills, Ltd. (1).

That decision has been carefully considered. In so far as it is inconsist-