Date: 20220531  
Docket: T-1938-19  
Citation: 2022 FC 796  
Ottawa, Ontario, May 31, 2022  
PRESENT: The Honourable Mr. Justice Gleeson  
BETWEEN:  
GRAIN WORKERS' UNION  
LOCAL 333 ILWU  
Applicant  
and  
VITERRA INC.  
Respondent  
ORDER AND REASONS  
I.  
Overview  
The Applicant, Grain Workers’ Union Local 333 ILWU, seeks an order, pursuant to  
Rules 466 and 467 of the Federal Courts Rules, SOR/98-106, holding the Respondent Viterra  
Inc. in contempt of court.  
Page: 2  
The alleged contempt arises in the context of an arbitration award finding the Respondent  
allowed employees to work in excess of 48 hours per week in violation of the overtime  
provisions of the Canada Labour Code, RSC 1985, c L-2 [Code]. The Arbitrator ordered the  
Respondent cease and desist violating the Code. The Applicant alleges the Respondent has not  
complied with that Order.  
For the reasons that follow, I find the Respondent, Viterra Inc., is guilty of contempt of  
court, the evidence establishing beyond a reasonable doubt Viterra’s failure to comply with the  
Arbitrator’s cease and desist Order.  
II.  
Documents  
Documents have been collected and managed using the Court’s E-Trial Toolkit. The  
Toolkit has assigned each document an Applicant or Respondent identification number and a  
corresponding “FC” number. Where a document has been entered into evidence, the document  
has also been assigned an Exhibit number.  
Where documentary evidence is referenced or cited in these reasons, the documents’  
Exhibit Number and the “FC” number are both identified.  
Exhibit 271 (FC01454) is a Table of Concordance that cross-references the three  
potential numbers assigned each document and provides a brief title or description of the  
document.  
Page: 3  
III.  
Background  
The Respondent operates two grain terminals at the Port of Vancouver: the Pacific  
Terminal and the Cascadia Terminal. The Applicant is certified under the Code to represent  
employees at the two terminals.  
In July 2017, the Applicant filed two policy grievances alleging the Respondent was  
allowing employees to work in excess of 48 hours per week in violation of the maximum work  
hours provisions of the Code.  
A.  
The arbitral award  
Arbitrator Sullivan was appointed to arbitrate the two grievances. On October 28, 2019,  
he issued his Arbitration Decision [the Award] finding the Respondent was in contravention of  
the statutory overtime provisions contained in the Code (Exhibit 2, FC00001).  
In the Award, Arbitrator Sullivan noted the parties are covered by a Collective  
Agreement, the Collective Agreement does not contain provisions regarding overtime and the  
following sections of the Code are therefore applicable:  
DIVISION I  
Section I  
Hours of Work  
Durée du travail  
Règle générale  
Standard hours of work  
169 (1) Except as otherwise  
provided by or under this  
Division  
169 (1) Sauf disposition  
contraire prévue sous le régime  
de la présente section :  
Page: 4  
(a) the standard hours of  
work of an employee shall  
not exceed eight hours in a  
day and forty hours in a  
week; and  
a) la durée normale du travail  
est de huit heures par jour et de  
quarante heures par semaine;  
(b) no employer shall cause  
or permit an employee to  
work longer hours than eight  
hours in any day or forty  
hours in any week.  
b) il est interdit à l’employeur  
de faire ou laisser travailler un  
employé au-delà de cette durée.  
Moyenne  
Averaging  
(2) Pour les établissements où  
la nature du travail nécessite  
une répartition irrégulière des  
heures de travail, les horaires  
journaliers et hebdomadaires  
sont établis, conformément aux  
règlements, de manière que  
leur moyenne sur deux  
(2) Where the nature of the  
work in an industrial  
establishment necessitates  
irregular distribution of the  
hours of work of an  
employee, the hours of work  
in a day and the hours of  
work in a week may be  
calculated, in such manner  
and in such circumstances as  
may be prescribed by the  
regulations, as an average for  
a period of two or more  
weeks.  
semaines ou plus corresponde à  
la durée normale journalière ou  
hebdomadaire.  
Durée  
Duration of averaging  
(2.1) Les horaires journaliers  
ou hebdomadaires calculés à  
titre de moyenne  
conformément au paragraphe  
(2) demeurent en vigueur :  
(2.1) The averaged hours of  
work calculated pursuant to  
subsection (2) remain in  
effect  
a) dans le cas où l’employeur  
et le syndicat s’entendent par  
écrit sur le calcul de la  
moyenne, jusqu’à l’expiration  
de l’entente ou de la période  
plus courte qu’ils fixent;  
(a) where the averaging of  
hours of work is agreed to in  
writing by an employer and a  
trade union, for the duration  
of that agreement or for such  
shorter period as is agreed to  
by the parties; or  
Page: 5  
(b) where the averaging of  
hours of work is not agreed to  
in writing by an employer  
and a trade union, for no  
longer than three years.  
b) dans le cas contraire,  
pendant trois ans au maximum.  
[]  
[]  
Durée maximale du travail  
Maximum hours of work  
171 (1) L’employé peut être  
employé au-delà de la durée  
normale du travail. Toutefois,  
sous réserve des articles 172,  
176 et 177 et des règlements  
d’application de l’article 175,  
le nombre d’heures qu’il peut  
travailler au cours d’une  
semaine ne doit pas dépasser  
quarante-huit ou le nombre  
inférieur fixé par règlement  
pour l’établissement où il est  
employé.  
171 (1) An employee may be  
employed in excess of the  
standard hours of work but,  
subject to sections 172, 176  
and 177, and to any  
regulations made pursuant to  
section 175, the total hours  
that may be worked by any  
employee in any week shall  
not exceed forty-eight hours  
in a week or such fewer total  
number of hours as may be  
prescribed by the regulations  
as maximum working hours  
in the industrial establishment  
in or in connection with the  
operation of which the  
employee is employed.  
Moyenne  
Averaging  
(2) Le paragraphe 169(2)  
s’applique au calcul de la durée  
maximale hebdomadaire qui  
peut être fixée aux termes du  
présent article.  
(2) Subsection 169(2) applies  
in the computation of the  
maximum hours of work in a  
week prescribed under this  
section.  
Arbitrator Sullivan noted the parties did not have an averaging agreement, the working of  
overtime was voluntary and the Collective Agreement contemplates employees working in  
excess of 48 hours in a week. He further found, based on the evidence, that a number of  
employees had worked in excess of 48 hours in a week and that this occurred regularly and often,  
Page: 6  
particularly where two shifts as opposed to three shifts were being run at the employers two  
terminals. Arbitrator Sullivan further noted that after implementation of a third shift at both  
terminals in January 2019, the instances of excessive weekly hours being performed by a number  
of employees were greatly reduced. Arbitrator Sullivan then concluded and ordered as follows:  
The Union has requested that I issue a cease and desist order. I  
have considered the payroll data relied on by the Union for the  
period prior to the filing of the two grievances on July 14, 2017.  
Based on that data and the stipulations agreed by the parties in  
their May 10, 2018 correspondence, I have found that the Canada  
Labour Code has been violated and order the Employer cease and  
desist violating the Code. Going forward, I leave it to the parties to  
meet and determine what form of averaging arrangement can be  
agreed upon in the context of a 6-on/3-off continuous operation  
schedule that does not operate on a week-to-week basis.  
I remain seized with jurisdiction to resolve any dispute that may  
arise out of the implementation of this decision.  
The Respondent subsequently sought clarification of the Award. On November 28, 2019,  
Arbitrator Sullivan provided the following clarification:  
For clarification, the award was based on stipulated evidence  
regarding the data and factual circumstances up to the date of the  
grievance. No evidence of data and/or factual circumstances  
after the date of the grievance was led at the hearing and  
the award did not address this matter.  
On May 27, 2020, the parties again appeared before Arbitrator Sullivan for the purpose of  
seeking resolution by way of an averaging agreement as provided for in the Code and  
contemplated by the Award. The parties were unable to reach an agreement and on May 28,  
2020, Arbitrator Sullivan issued a “Letter Decision” confirming his jurisdiction exhausted:  
By video conference on May 27, 2020 we reconvened under my  
retained jurisdiction for the purpose of seeking a resolution to the  
outstanding matter of an averaging agreement. No resolution was  
Page: 7  
reached and my jurisdiction in relation to the grievance I was  
appointed by the parties to hear and determine is now exhausted.  
B.  
Procedural history in this Court  
As provided for at section 66 of the Code, the Applicant caused a copy of the Award to  
be filed in the Federal Court on December 6, 2019. Subsection 66(2) of the Code provides that,  
upon filing, the order or decision of an arbitrator shall be registered and has the same force and  
effect as if the decision or award were a judgment obtained in the Court. It is on this basis that  
contempt proceedings have been pursued, pursuant to Rules 466 and 467 of the Federal Courts  
Rules.  
On September 14, 2020, Madame Prothonotary Kathleen Ring issued an ex parte Order  
directing the Respondent appear before this Court to hear proof of the Respondent’s alleged  
breach of the Award.  
The Respondent raised a number of preliminary issues and the parties proposed that the  
hearing proceed in two parts. The Court agreed and the Part 1 proceedings addressed a series of  
objections the Respondent raised to the enforceability of the Award. These objections were  
considered but dismissed in Grain Workers’ Union Local 333 ILWU v Viterra Inc., 2020 FC  
1106 [the November 2020 Order].  
The Respondent then brought separate motions seeking orders quashing subpoenas duces  
tecum (Grain Workers’ Union Local 333 ILWU v Viterra Inc., 2021 FC 187 [the February 2021  
Order]) and objecting to the production and admissibility of the records to be produced pursuant  
Page: 8  
to the subpoenas duces tecum (Grain Workers’ Union Local 333 ILWU v Viterra Inc., 2021 FC  
292 [the April 2021 Order]). The motions were dismissed but questions relating to the  
admissibility of the documents were held to be more properly addressed in the course of the  
evidentiary hearing.  
Part 2 of the proceedings involved the hearing of evidence. The Applicant called seven  
witnesses over three days: April 27-28 and July 26, 2021. In addition to the witnesses’ testimony,  
the Applicant introduced and relied upon payroll records created by the Respondent in the  
normal course of business. These records, consisting of Time Card Reports and Exception  
Reports, were produced pursuant to the subpoenas duces tecum and detail employee hours at the  
Respondents Cascadia and Pacific Terminals. The Applicant also introduced and relied upon  
extracts from the personal work diaries or calendars of two of the witnesses, Mr. Craig  
McFeeters and Ms. Nikki Kerr, both members of the Applicant Union who are employed by the  
Respondent.  
Upon completion of the evidentiary hearing, the Respondent renewed its objection to the  
admissibility of the Time Card Reports and Exception Reports. The Respondent also contested  
the admissibility of the diary extracts. The documentary evidence was held to be admissible in  
Grain Workers’ Union Local 333 ILWU v Viterra Inc., 2021 FC 920 [the September 2021  
Order]. Each of the three categories of documents are briefly described in the September 2021  
Order at para 5.  
Page: 9  
As noted above, the Applicant called seven witnesses. The Respondent cross-examined  
each of the Applicant’s witnesses but did not call any additional witnesses.  
IV.  
Witness testimony  
All witnesses testified in a forthright and credible manner. The evidence provided was  
generally consistent on matters of relevance to the issues raised. A brief summary of that  
evidence follows.  
A.  
Kevin Ling  
Mr. Ling testified he has held the position of secretary-treasurer with the Applicant Union  
since 2003. His evidence focused primarily on the procedural history of the underlying  
grievance. Exhibits 1 through 10 (FC00001, FC00223, FC00225 - FC00227, FC00230 -  
FC00232, FC00238, FC00239), which he entered into evidence, detail the history of the  
Applicant’s grievances and the processes engaged by the Applicant subsequent to the Award.  
Mr. Ling testified the Applicant represents approximately 200 employees at the  
Respondent’s Pacific and Cascadia Terminals in Vancouver. Mr. Ling stated he is employed as a  
grain worker at another Vancouver grain terminal, specifically a sheet metal worker, and he has  
40 years of experience in the grain industry.  
Page: 10  
Mr. Ling provided a brief description of the function and operation of a grain terminal  
and the types of jobs members of the Applicant Union perform. He identified workplace hazards  
present in any industrial environment and those unique to the grain industry.  
Mr. Ling testified he had participated in several collective bargaining rounds since 2005.  
He stated the most recent round of bargaining between the parties took place in 2018 or 2019. He  
also testified that in his role as a Union official he was aware of the Applicant’s overtime  
grievance and that:  
In response to a challenge by Viterra, Arbitrator Sullivan ruled that he had  
jurisdiction to hear the dispute;  
Viterra sought judicial review of Arbitrator Sullivan’s jurisdiction decision but  
was unsuccessful in British Columbia courts;  
Arbitrator Sullivan found Viterra to be in breach of the overtime limitations  
contained in the Code; and  
The Applicant had filed Arbitrator Sullivan’s award with the Federal Court.  
Mr. Ling testified he wrote to the Respondent after the issuance of the Award to advise  
that the Applicant was aware the Respondent was continuing to schedule employees to work in  
excess of 48 hours per week (contrary to the Award). Mr. Ling also testified Arbitrator Sullivan  
had left it to the parties to negotiate an averaging agreement, but the parties were unsuccessful in  
these efforts. He testified the parties had participated in an expedited mediation presided over by  
Arbitrator Sullivan, but this too was unsuccessful.  
Page: 11  
Mr. Ling acknowledged in cross-examination that he had no first-hand knowledge of how  
overtime is assigned at the Respondent’s terminals or any first-hand knowledge that the staffing  
of extra overtime hours was taking place. He also acknowledged there were circumstances where  
the number of overtime hours paid is not indicative of the hours worked. For example, a worker  
may be paid an hour of overtime for working five extra minutes. Mr. Ling did note that such  
situations are rare.  
B.  
Sharon Hong  
Ms. Sharon Hong is an employee of the Respondent; she works as an administrative  
assistant at the Cascadia Terminal and has done so since May 2019.  
Ms. Hong was served with a subpoena duces tecum requiring she produce two categories  
of records. She had to produce: (1) records generated after October 29, 2019, disclosing the  
hours worked by the Applicant’s members employed by the Respondent, and (2) any relevant  
records produced pursuant to the Respondent’s obligations under section 24 of the Canada  
Labour Standards Regulations, CRC, c 986.  
Although working from the Cascadia Terminal, Ms. Hong testified she completes work  
that relates to both the Cascadia and Pacific Terminals. Among other things, her tasks involve  
the review and approval of payroll data once processed to ensure consistency between the payroll  
numbers and the on-site data. She testified she has access to payroll records and the Respondent  
relies on a software program interchangeably called Time and Attendanceor Attendance  
Enterpriseto process payroll data. She testified that the accuracy of these records is extremely  
Page: 12  
important and that there are checks and balances to verify payroll data. For instance, Ms. Hong  
verifies data input by other administrative assistants: Ms. Serena Cheung at Cascadia Terminal  
and Ms. Sarah Olson at Pacific Terminal.  
Ms. Hong testified she compiled the documents responding to the subpoena duces tecum.  
She stated the documents consisted of Time Card Reports that list, for each employee, the hours  
worked in each pay period (Exhibits 143-166, FC00089FC00112; Exhibits 167-182, FC00166–  
FC00181; and Exhibits 183-214, FC00191FC00222) and Exception Reports (Exhibits 11-94,  
FC00005FC00088; and Exhibits 95-142, FC00118 FC00165). She testified the documents  
produced in response to the subpoena duces tecum were true and reliable copies of the  
Respondent’s records.  
Ms. Hong described the work schedule for the Respondent’s hourly employees. Her  
evidence was that the Respondent’s terminals operate on a 24-hour, seven-day-per-week basis.  
Each 24-hour period consists of three eight-hour shifts: a day shift, an afternoon shift and an  
overnight shift. The overnight shift is referred to as the graveyard shift. While some jobs have  
different rotations, generally the Applicant’s members work on a six-day-on, three-day-off cycle  
and rotate to a different shift after their three days off.  
Ms. Hong testified employees clock in and out by swiping an employer-issued access  
card on a card reader. The Time Card Reports are generated by the Time and Attendance  
software based on employees’ daily clock in and clock out times (also referred to in the evidence  
as punch in and punch out times). Adjustments are made manually based on data taken from the  
Page: 13  
daily Exception Report. Ms. Hong stated she is responsible for conducting a final check of the  
payroll data before its submission to the Respondent’s payroll office. Her evidence detailing her  
primary responsibilities for payroll data is summarized in the September 2021 Order (paras 17-  
18).  
Ms. Hong also described the content of the Exception Reports. Exception Reports are  
generated from manually produced paper documents that are completed on a daily basis by the  
shift supervisors. She confirmed any or all of the shift supervisors input data into the daily  
Exception Report. She also confirmed that scheduled hours of work for each employee are pre-  
loaded into the Time and Attendance software but employees are still expected to clock in and  
clock out. The Time and Attendance software will flag an employee who clocks in too early or  
late and this will be reflected in the Exception Report.  
Ms. Hong also described the process by which corrections are made to address oversights  
or errors in payroll data submitted in past pay periods.  
Ms. Hong testified certain overtime assignments are paid on the basis of a fixed number  
of hours regardless of time actually worked: vessel arrival and departures (three hours) and shift  
extensions where the employees shift is extended for either one hour or if more than one hour is  
worked, four hours. She testified the Time Card Reports reflect hours paid, which may be more  
than the actual hours worked.  
Page: 14  
C.  
Serena Cheung  
Ms. Serena Cheung testified she works as an administrative assistant at Viterra Cascadia  
and she has been a Viterra employee for approximately five years. Her responsibilities include  
importing data from the Exception Reports into the Time and Attendance software at the  
Cascadia Terminal. She occasionally performs the same function for the Pacific Terminal when  
her counterpart is away. She explained that Exception Report data is entered with the clock in  
and clock out data to generate the Time Card Reports.  
She further described how adjustments to an employees clock in and clock out times are  
made where an employee is entitled to a different rate of pay (overtime, for example) and how  
those changes are reflected on the face of the Time Card Report. Ms. Cheung testified that, as a  
result of her inputs and the manner in which these changes are tracked, the Time Card Report  
will reflect how long an employee was at work because employees are expected to clock in and  
clock out when arriving for and leaving work.  
Ms. Cheung testified that when completing a payroll, she makes sure all punch in and  
punch out times are correct and all exceptions are entered into the payroll spreadsheet. She  
makes sure there are no missing punches for any employee and follows up with the supervisors if  
there is a missing punch. She also follows up with supervisors for an explanation if there is a late  
punch that is not explained on the Exception Report. Adjustments may also be made to clock in  
and clock out times to allow for pay rates and overtime to be paid to an employee. Any  
Page: 15  
adjustments to the punch in and punch out times are tracked and recorded on the employees  
weekly Time Card Report under the heading “Supervisor Edits.”  
She testified the information she inputs is reliable and it is important to get this  
information correct because it is impacting someone else’s pay. Ms. Cheung was asked to  
identify a series of Time Card Reports relating to specific employees. She reviewed entries in the  
Time Card Reports, including applicable entries contained under the Supervisor Edits heading,  
and was asked to confirm hours recorded in relation to individual employees during specific  
Sunday to Saturday work weeks.  
In cross-examination, Ms. Cheung testified she did not have first-hand knowledge of how  
many hours each employee worked. She confirmed that her knowledge of an employees hours  
of work is based on punch reports generated when the employee clocks in and out, together with  
the supervisor-created Exception Reports. Ms. Cheung testified there are errors in punch reports  
but stated they are not frequent. She also testified employees will often punch in early and  
punching in early is not necessarily an indication that the employee started working early.  
Moreover, sometimes a Time Card Report will list eight hours of work even if an employee  
leaves early. Where this occurs, a supervisor will have instructed that the employee be paid until  
the end of the shift.  
In re-examination, Ms. Cheung testified Time and Attendance will identify punch in and  
punch out times of less than eight hours. She also testified an employee must work at least one  
full overtime hour to receive a four-hour extension.  
Page: 16  
D.  
Steve Larochelle  
Mr. Steve Larochelle testified he has worked for Viterra since 2008. He has been an  
operations supervisor at the Pacific Terminal since January 2017. Before becoming an operations  
supervisor, he had worked a number of Union jobs, his last one being a shift boss. As an  
operations supervisor, he is responsible for monitoring and directing employees. One aspect of  
this work is ensuring employees attend work on time and stay until their shift ends or they are  
relieved. He confirmed the facility operates on a continuous 24-hour basis, described the shift  
schedule and confirmed employees are expected to clock in and out for their shifts but stated that  
he is unable to monitor whether each employee is punching in or out.  
Mr. Larochelle also testified he keeps several records: manning sheets, Exception Reports  
and logs of any unacceptable behaviour. A manning sheet shows who will be working each shift  
for a given week. They are made months in advance and are changed as needed. Mr. Larochelle  
stated he is responsible for first approving and then recording any exceptions to an employee’s  
regular hours in an Exception Report. He confirmed this is a daily task and each shift looks after  
their own exceptions. In an Exception Report, he would record things such as when and why an  
employee worked less than their scheduled eight hours or when an employee took a day off.  
Mr. Larochelle also spoke to the practice of assigning overtime in the case of a shift  
extension or where an employee is brought in to work a full shift. He noted overtime hours for  
employees were not tracked and he had received no instructions to track overtime hours until the  
day of his examination (April 28, 2021). On April 28, 2021, he testified, he received an email  
Page: 17  
saying that no one should have more than eight hours of overtime in a week. Mr. Larochelle  
testified this was the first time he had received such an instruction.  
Mr. Larochelle clarified that in the past, before assigning an employee overtime, no steps  
were taken to check how many hours that employee had already worked. Employees who wanted  
overtime shifts would simply write their names on a sign up sheet and indicate what shifts they  
wanted.  
Mr. Larochelle stated that, for the past few years, it was common for employees to come  
in on a day off and work an extra eight-hour shift. This practice had become less common within  
the past few months. Mr. Larochelle confirmed that people had been working more than eight  
hours of overtime in the past. He testified this was a common occurrence and was still happening  
on a regular basis after November 2019.  
In cross-examination, Mr. Larochelle testified overtime must go to the most senior  
employee in a particular classification where overtime is available and the Union looks closely at  
who gets overtime. He stated he has never been told by a Union representative that he cannot  
assign overtime to a certain employee. He noted if overtime is not given to the most senior  
employee, a grievance would be filed and the grieving employee would be entitled to a  
compensatory overtime shift. He also testified employees were limited to working a maximum of  
four hours of overtime following a shift or two hours of overtime before a shift.  
Page: 18  
Mr. Larochelle also noted in cross-examination that although an employee with a four-  
hour extension should work for four hours, the employee will be paid for four hours regardless of  
whether he actually worked for that length of time. Mr. Larochelle agreed that in referring to  
hours of overtime, he was referring to hours of overtime paid as opposed to hours worked.  
However, he did testify it was rare for an employee to be paid for four hours of overtime on a  
shift extension and not work those four hours.  
E.  
Rosy Montgomery  
Ms. Rosy Montgomery stated she has been a Viterra employee since October 1991. She  
began as a general labourer but has been an operations supervisor at the Cascadia Terminal since  
December 2016.  
Ms. Montgomery spoke to her monitoring of employees. She described the early relief  
system in place that allows employees to begin a shift early and leave early to avoid traffic. She  
testified employees are responsible for relieving the person they are replacing and they are to  
begin working upon punching in, but she cannot monitor every position because of the location  
of her office. There are many positions where an employee will not be allowed to leave at the  
end of a shift until they are relieved by the next employee; one employee being late will  
therefore often affect when another employee can leave. She testified she is responsible for  
monitoring the tardiness of employees and late arrivals are documented in the Exception Report.  
Ms. Montgomery testified she is responsible for record-keeping, including Exception  
Reports, and she was trained on how to keep records. Ms. Montgomery indicated unanticipated  
Page: 19  
events are entered into an Exception Report on the day they occur, but she identified several  
situations where information is entered into an Exception Report in advance. This may occur, for  
example, when a supervisor knows in advance that an employee is taking a block of days for  
holidays or that an employee will be sick for several days. She stated that she supposes she  
would be subject to discipline if she did not perform her record-keeping duties in this regard.  
Ms. Montgomery also addressed how overtime is assigned. Her first consideration when  
choosing an employee to do overtime to fill a vacancy is finding someone who knows the job. If  
there is an employee on-site who knows the job, she will ask that employee. If no employee on-  
site knows the job, she will call an employee who is off-site to ask them to come in.  
She testified that when looking for an employee who knows the job, she does not know  
how many hours that employee has worked in a week. She also testified she has never been  
instructed to consider this when making an overtime assignment. She has been told to follow the  
overtime selection process agreed upon by the Union and the employer and hours worked is not a  
consideration. She stated overtime is worked on a volunteer basis and sometimes employees call  
her on their days off to request overtime hours.  
Ms. Montgomery stated she received an email direction close to the beginning of April  
2021 from the Respondent’s terminal manager stipulating that employees should not work more  
than 48 hours a week. She noted she was given a method for calculating hours that is difficult  
and tedious. She testified she has been following this direction but had never followed a  
procedure like this before as a supervisor.  
Page: 20  
Ms. Montgomery also testified that in the past, she had seen employees work more than  
48 hours a week. She testified this could have happened in 2019, including after November 2019.  
In that period, she accurately recorded in the Exception Reports when employees came in for  
eight-hour overtime shifts on their days off.  
In cross-examination, Ms. Montgomery stated there are times where employees fail to  
clock in and out. When she makes corrections due to punching errors and orders that an  
employee be paid for eight hours of work, the employee would not have actually worked eight  
hoursthe employee would have had lunch and coffee breaks during those eight hours. She also  
confirmed an employee will be paid for an hour of overtime even where they work an additional  
five minutes and acknowledged hours paid for a shift extension or the arrival and departure of a  
vessel is not necessarily indicative of the time the employee worked in performing these duties.  
Ms. Montgomery clarified that when she stated she has observed employees working over 48  
hours in a week, she did not go back and account for how many hours those employees actually  
worked.  
Ms. Montgomery also clarified on cross-examination that overtime is not assigned  
exclusively on the basis of seniority. It can go first to the person who is performing the task on-  
site. After asking an on-site worker, the next employee to ask is the one with the most seniority  
who performs that position.  
In re-examination, Ms. Montgomery stated she is responsible for approving all overtime  
paid and she has never approved an employee to work for just five minutes of overtime. She  
Page: 21  
stated supervisors are expected only to approve overtime where it is needed. She also clarified it  
is not unusualfor employees to make errors punching in and out and she is asked to fix these  
errors.  
F.  
Craig McFeeters  
Mr. Craig McFeeters testified he is a member of the Applicant Union and has worked at  
the Respondent’s Cascadia Terminal for more than 11 years. He has performed various jobs and  
is now employed as a panel control operator shipper. He stated while he does not currently hold a  
position with the Applicant Union, he had previously served as a shop steward for a total of six  
years.  
Mr. McFeeters testified he performs his duties in a control room with four other Union  
employees. He stated that the shipping supervisor, a non-Union position, also has a desk in the  
control room. He confirmed the Cascadia Terminal operates on a 24/7 basis and is closed only on  
Labour Day, Christmas Day, Boxing Day, New Years Day and Easter Sunday. He described the  
six-day-on, three-day-off rotating shift schedule at the Cascadia Terminal, the shift hours and the  
early relief program that allows employees to report for work and relieve the prior shift worker  
up to 45 minutes early. He confirmed that employees are required to clock in at the beginning of  
a shift and clock out at the end of a shift using one of three punch clocks located throughout the  
work premises.  
Mr. McFeeters testified he usually arrives 45 minutes before the scheduled  
commencement of his shift and upon clocking in he reports directly to his work station and  
Page: 22  
begins to work. He testified he is required to remain at work until his relief arrives and it is fairly  
common for him to work more than the scheduled eight hours, noting that to make the early  
relief system work at least one of the three employees on the three-shift rotation is required to  
work a few minutes of extra time. He testified that once an employee punches in, the employee is  
not permitted to leave the job site.  
Mr. McFeeters testified he may be asked to work an additional hour at the end of a shift  
for a variety of reasons or alternatively to remain for an additional four hours. In these situations,  
he is paid double time for the extra hours. When asked to work an extra four hours, he would  
often be let go after three and half hours but would be paid the four hours of double time. He also  
testified he could be asked to work an additional three hours to assist with the arrival or  
departure of a vessel. He testified that this typically required two to two and a half hours of  
actual work time but noted sometimes it would be very quick whereas in other circumstances  
more than three hours would be required.  
Mr. McFeeters testified that in a standard eight-hour shift an employee is entitled to two  
10-minute coffee breaks and a 20-minute lunch break. Mr. McFeeters noted there are exceptions  
to this schedule. In the control room, the practice is to provide employees two 20-minute coffee  
breaks and a 30-minute lunch break. In the receiving department, employees are given two 30-  
minute breaks during a shift. He further testified that if an employee is missing in the control  
room, the remaining employees may opt not to take breaks and an additional hour of double time  
is paid in this instance.  
Page: 23  
Mr. McFeeters testified he was unaware of any practices or procedures in the workplace  
that were intended to limit an employees maximum weekly hours prior to October 29, 2019. He  
also testified he was unaware of any changes in practices or procedures after that date but  
explained that in February 2021, Viterra management placed a notice on a bulletin board  
describing how the Code’s 48-hour maximum work week would be followed.  
Mr. McFeeters testified he had worked more than 48 hours in a week between November  
2019 and January/February 2021 and it was his practice to maintain personal notes or records of  
his hours in a calendar he completed on a daily basis. Referring to an extract from this calendar  
(Exhibit 215, FC00183), Mr. McFeeters described his practices in maintaining the calendar and  
how the annotations made reflect his work activities on a given day. Mr. McFeeters reviewed his  
calendar entries and hours noted on specific dates and cross-referenced some of the information  
recorded to that detailed in the employers Time Card Reports for the same dates.  
In cross-examination, Mr. McFeeters confirmed he was not familiar with and had not  
previously seen the employers Time Card Reports. Mr. McFeeters further agreed that his  
calendar entries recorded hours for which he was to be paid, not hours he had actually worked.  
He acknowledged that when looking at his calendar, one could not determine the hours actually  
worked in any particular week. In re-examination, Mr. McFeeters confirmed his shift start and  
end times, including any additional hours, would be reflected in his punch in and punch out  
times.  
Page: 24  
G.  
Nikki Kerr  
Ms. Nikki Kerr testified she is a member of the Applicant Union and has been employed  
at the Respondent’s Pacific Terminal since 2006. She has worked in a number of roles; she is  
currently employed as a Truck Loader and Janitor but also works in a variety of other positions.  
She testified as to her responsibilities in these various positions. She testified she has also held  
positions with the Union, including the chief shop steward position.  
Ms. Kerr described the 24/7 rotating shift schedule most employees work and the start  
and stop times for the three standard shifts. She testified that shift start and end times became  
fluid as a result of the COVID-19 pandemic to avoid employees congregating. When an  
employee’s relief arrived, the departing employee would punch out after “making sure they had  
eight hours on their clock and that their jobs were covered.”  
Ms. Kerr testified that as a Truck Loader and Janitor she works day shifts on a six-day-  
on, three-day-off schedule. She testified that in this role she normally would take three half-hour  
breaks during an eight-hour shift but would not be compensated for missed breaks.  
Ms. Kerr described the possible overtime schedules: a one-hour or four-hour extension at  
the end of a shift, a two-hour early shift start or an eight-hour shift on an employee’s day off. Ms.  
Kerr testified a four-hour extension normally requires three and half hours of work time, whereas  
an employee tends to work the full hour in the case of a one-hour shift extension and the full two  
hours if starting early.  
Page: 25  
Ms. Kerr described her routine when arriving for her day shift. She reported she would  
normally punch in about 20 minutes before the start of her shift and would be at her workstation  
within a few minutes of having punched in. At the end of a shift, she would hand in paperwork  
and equipment and then punch out. She testified an employee only punches in and out once per  
day and an employee does not punch in or out to record overtime at the beginning or end of a  
shift. She testified that once punched in, an employee may leave the premises to purchase lunch  
or coffee from a facility within walking distance but must first receive a supervisors permission.  
Ms. Kerr testified she was not aware of any measures the employer had in place to ensure  
overtime was assigned in accordance with the law. She testified that in April 2021, a supervisor  
told her that work was being done on a computer program to track employeesweekly hours to  
determine which employees had worked 48 hours in the week.  
Ms. Kerr identified a calendar (Exhibit 216, FC00189) that she testified she used to  
record the days she was scheduled to work, the job she was performing on a given day and any  
overtime she worked. Ms. Kerr reviewed her calendar entries, interpreted the meaning of those  
entries in relation to the job she was assigned and explained whether she had worked overtime.  
In cross-examination, Ms. Kerr acknowledged the time recorded was for pay purposes.  
She accepted it was possible an employee would work less time than the hours paid when  
working overtime on an extension. However, she also testified that based on the overtime jobs  
she was performing on a four-hour extension, she would have worked three and half hours, her  
break for that extension period being taken at the end of the overtime extension. Ms. Kerr also  
Page: 26  
acknowledged punch in and punch out times are not able to disclose actual hours worked as they  
do not account for break time. Ms. Kerr further testified the late arrival of an employees relief  
does not automatically trigger one hour of overtime for the employee ending their shift. She  
testified that certain categories of employees are notoriously late and that in those instances she  
is required to stay until her relief arrives, but she is not always compensated with one hour of  
overtime. The supervisor determines compensation.  
Ms. Kerr acknowledged errors were made in the Time Card Reports and these errors  
were not infrequent but described the errors as relating to the inclusion of authorized overtime.  
V.  
Issues  
The Applicant submits that, having addressed the various issues raised by the  
Respondent, the sole remaining question is whether the Applicant has established the  
Respondent is guilty of contempt.  
The Respondent submits a series of issues are to be considered:  
A. Does the Award “clearly and unequivocally” state what should or should not be  
done to comply? More specifically, is the Award deficient because:  
i.  
it fails to specify a time for compliance; and/or  
ii.  
it incorporates the relevant provisions of the Code by reference and  
therefore lacks the precision and clarity required, improperly requiring  
Page: 27  
those compelled to act to look beyond the Order to understand their legal  
obligations?  
B. Do the principles of stare decisis and judicial comity require the Court to  
conclude the Application must be dismissed?  
C. In the alternative, does the evidence establish non-compliance with the Award on  
the beyond a reasonable doubtstandard?  
D. If non-compliance is made out, should the Court exercise its discretion to not  
make a finding of contempt?  
I will address the issues as framed by the Respondent. In doing so, and as is discussed in  
greater detail below, I am of the view that issues A and B essentially seek to a re-argue or re-  
litigate matters raised by the Respondent that have already been argued and determined in the  
course of considering the Respondent’s initial objections to the contempt proceeding (November  
2020 Order at paras 43 to 52). However, in the November 2020 Order, I did conclude that the  
Award’s failure to set out an express timeline for performance, while not necessarily fatal, would  
be more appropriately addressed with the benefit of an evidentiary record. I do return to this  
issue.  
VI.  
The Law of Contempt  
In Carey v Laiken, 2015 SCC 17 [Carey], Justice Cromwell, speaking on behalf of the  
Supreme Court of Canada, summarized the common law of civil contempt.  
Page: 28  
To establish civil contempt, the party alleging the contempt bears the burden of  
establishing three elements beyond a reasonable doubt: (1) the order or judgment that is alleged  
to have been breached must state clearly and unequivocally what should be done or not done; (2)  
the alleged contemptor must have had actual knowledge of the order or judgment; and (3) the  
alleged contemptor must have intentionally done or omitted to do the act compelled by the order  
or judgment (Carey at paras 32-35; Rule 469 of the Federal Courts Rules).  
The contempt power is discretionary. Where the three elements have been established, a  
judge may nonetheless properly exercise his or her discretion and decline to impose a contempt  
finding where to do so would amount to an injustice in the circumstances (Carey at paras 36-37).  
VII. Analysis  
The Respondent argues the Award fails to satisfy the first and third elements identified in  
Carey.  
Actual knowledge of the Award, the second element identified in Carey, is not disputed. I  
am satisfied that the evidence establishes on a beyond a reasonable doubtstandard that the  
Respondent did have actual knowledge of the Award. In reaching this conclusion I rely on,  
among other evidence, the testimony of Mr. Kevin Ling, Exhibits 3 and 7 through 10 (FC00227,  
FC00225, FC00238, FC00239 and FC00226). Exhibits 3 and 7 through 9 establish the Applicant  
provided the Respondent written notice of alleged non-compliance in November 2019. Exhibit  
10 is Arbitrator Sullivan’s November 28, 2019 response to the Respondent’s request for a  
clarification of the Award.  
Page: 29  
I turn now to the question of whether the Award is sufficiently clear and precise to allow  
for its enforcement.  
A.  
The Award is enforceable  
The Respondent submits that the absence of a reference in the “ultimate disposition  
portion of the Award” (found at paragraph 11 above) to specific provisions of the Code and the  
Award’s failure to identify a time for compliance are defects that individually and together  
undermine the clarity and precision of the Award, rendering it unenforceable in this contempt  
proceeding. The Respondent relies on the privative clause at section 58 of the Code to argue that  
the Court can neither imply terms nor amend the Award to address these defects. It is submitted  
that to do so would be contrary to the intent of Parliament and the established jurisprudence,  
which holds, the Respondent argues, that the above-noted defects are fatal. It is argued the  
principles of stare decisis and judicial comity require the Court to conclude the Award fails to  
satisfy the first of the three elements necessary for demonstrating civil contempt.  
In advancing this argument, the Respondent acknowledges the Court’s November 2020  
Order considered and addressed the arguments that the Award was merely declaratory and  
lacked the precision necessary to determine, without the benefit of additional evidence, whether  
contempt has occurred. However, the Respondent submits that when the Court held that the  
“ultimate disposition” was sufficiently clear and precise when read within the broader context of  
the Award as a whole, it only determined that the “Award was properly registered for  
enforcement and that the contempt proceeding should continue.”  
Page: 30  
As I understand the Respondent’s position, it is argued that two separate and distinct  
thresholds are engaged where the clarity and precision of an Arbitrator’s award or order, filed  
pursuant to section 66 of the Code, is in issue. At the time of filing/registration, one threshold is  
applied. A second, more stringent threshold is to be considered in assessing the issue of  
enforceability.  
In considering the Respondent’s arguments, it will be helpful to review the relevant  
portion of the November 2020 Order:  
[43] The Respondent relies on a number of cases to argue that  
courts have declined to enforce declaratory orders as they lack the  
precision and specificity needed to allow a court to determine,  
without the benefit of additional evidence, whether contempt has  
occurred (CUPW v Canada Post Corp, [1987] FCJ No 1021 at  
page 5 [CUPW], Telus Mobility v Telecommunications Workers  
Union, 2002 FCT 1268 at para 39 [Telus] upheld on appeal Telus  
Mobility v Telecommunications Workers Union, 2004 FCA  
59, Goela v Via Rail Canada Inc, 2006 FC 562 at para  
30, Sucker Creek Indian Band v Calliou, [1999] FCJ No 1715, Re  
United Steelworkers of America, Local 663, and Anaconda  
Company (Canada) Ltd, [1969] BCJ No 406).  
[44] The Respondent submits the Award in this case is  
declaratory only. The Award declares the Respondent to have  
violated the Code. It does not conclude the breach is ongoing and it  
does not direct the Respondent take specific steps to correct the  
violation. The Respondent argues that before the Court could  
enforce this Order it would be required to look beyond the  
Arbitration Award and consider new circumstances and evidence  
that was not before the Arbitrator. It is argued that this is not the  
Court’s role and the Applicant’s remedy is not contempt but a  
fresh grievance process that is again referred to a labour arbitrator  
for determination. Again, I disagree.  
[45] To be enforceable an award must do more than merely set out  
an existing legal situation. It must compel the performance of  
specific actions or impose specific constraints (CUPW at page 5).  
[46] In this case, the Award details the sections of the Code that  
establishes maximum weekly hours of work and overtime.  
Page: 31  
Arbitrator Sullivan concludes “the Employer was in  
contravention of the statutory overtime hours of work per  
week,” that the Canada Labour Code has been violated,” and  
then orders that the “Employer cease and desist from  
violating the Code.” Specific findings have been made based on  
the evidence and specific future conduct has been ordered.  
Whether the Respondent’s future conduct is consistent with the  
Order is readily ascertainable by reference to the Code.  
[47] The Order, when read within the context of the decision as  
a whole, as it must be, is clear, precise, and specific (Warman v  
Tremaine, 2011 FCA 297 at para 57). The Order does not suffer  
from a lack of precision that would prevent the Respondent from  
taking the action required to comply or to explain a failure to  
comply in the course of a contempt proceeding (Telus at para 39).  
[48] I am also not convinced that consideration of the alleged  
contempt would require the Court to look beyond the Arbitration  
Award or to consider new circumstances. In pursuing civil  
contempt an Applicant must satisfy a high evidentiary burden to  
succeed. It is trite to note that this requires presenting evidence to  
establish the Respondent’s non-compliance with an order. In doing  
so an Applicant may seek to place evidence before the Court that  
goes beyond that relevant to non-compliance, but these are  
evidentiary matters relating to relevance that are to be addressed in  
the course of the evidentiary hearing. This possibility does not  
render an otherwise enforceable order unenforceable.  
[49] The Respondent further argues that failure of the Award to  
specify a timeline for compliance should result in the Court  
refusing to enforce the Award. The Respondent relies on Telus in  
submitting that the courts have routinely refused to enforce orders  
or awards in this circumstance (at para 43).  
[50] A specific time for compliance was not provided for  
in Telus. The Court held that this left open two possible  
interpretations, that the Order was immediately applicable and  
therefore incapable of being complied with or that it was to be  
complied with within a reasonable time. The Court then proceeded  
to consider whether there had been timely compliance with the  
Order based on the evidence.  
[51] The failure to specify a timeline for compliance in this  
instance may prove to be a reason not to enforce the Order.  
However, Telus does not teach that a contempt proceeding should  
fail simply on the basis that a time for compliance has not been  
Page: 32  
specified. Instead, Telus recognizes that in the absence of a  
specified timeline, two interpretations are available to the Court  
and that those alternative interpretations are to be considered in  
light of the evidence. The significance or impact of the absence of  
a specified timeline for compliance in the Award is not a question  
to be considered in the absence of evidence.  
[52] In summary, I find the Award is not declaratory; it is  
sufficiently specific and precise to allow its enforcement. Concerns  
relating to evidence and the Order’s failure to set out a specified  
timeline for compliance are more properly addressed, should they  
arise, in the course of the evidentiary hearing.  
The November 2020 Order specifically concludes that the Award is not solely declaratory  
and that it is sufficiently specific and precise to allow for its enforcement. It also concluded the  
absence of a specified timeline for compliance was not, in the absence of an evidentiary record,  
fatal to enforcement. The question of time to comply was to be more appropriately addressed,  
should it arise, in the course of the evidentiary hearing.  
The Respondent has cited no authority in support of the view that precision and clarity  
are to be assessed against different thresholds at different procedural points in a contempt  
proceeding. Nor did the Respondent’s written submissions in the Part 1 proceedings advance the  
view that this was the case. Instead, the Respondent’s written submissions on these issues were  
advanced under the heading “The Arbitration Award is declaratory and not enforceable in the  
Federal Court(emphasis added).  
The Respondent is seeking to re-argue the very issues addressed in the November 2020  
Order. In doing so, the Respondent not only revisits and reiterates arguments previously made  
but also advances fresh arguments. This includes an argument made in the course of oral  
Page: 33  
submissions that Warman v Tremaine, 2011 FCA 297, cited in the November 2020 Order (para  
47) can be distinguished on the basis that a different statutory regime applied and that the Court  
erred in its treatment of Telus Mobility v Telecommunications Workers Union, 2002 FCT 1268  
[Telus] (November 2020 Order at paras 49 51).  
The question of the Award’s enforceability has been considered and decided. The parties  
had the opportunity to provide written submissions and advance oral argument on the question of  
whether the Award clearly and unequivocally set out what should or should not be done to  
comply. I am not in a position to return to or reconsider these previously decided matters. Should  
the Respondent take issue with the conclusions reached, the proper recourse is by way of appeal.  
The November 2020 Order held that, the Award was not simply declaratory; it was  
sufficiently specific and precise to allow for enforcement, thereby satisfying the first element  
identified in Carey. I now turn to the third element: whether the evidence establishes on the  
beyond a reasonable doubtstandard that the Respondent has intentionally failed to comply  
with the Award.  
B.  
The Applicant has established that the Respondent is in breach of the Award  
(1)  
The standard of proof  
The parties agree, and as I have previously noted, each of the elements required to  
establish civil contempt must be established on a beyond a reasonable doubtstandard. The  
parties both rely on R v Lifchus, [1997] 3 SCR 320 [Lifchus], where the Supreme Court  
Page: 34  
addressed, in the context of providing instructions to a jury in a criminal proceeding, how the  
expression “reasonable doubt” should be explained.  
In Lifchus, Justice Cory states that the beyond a reasonable doubtstandard of proof is  
inextricably linked to the premise that an accused in a criminal proceeding benefits from a  
presumption of innocence and that the burden of proof is with the prosecution and does not shift  
(Lifchus at paras 27 and 36). In the context of a civil contempt proceeding, and again as  
previously noted, the burden is on the party alleging the contempt.  
A reasonable doubt is one that is based on reason and common sense and that is logically  
connected to the evidence or the absence of evidence. Although more is required than proof of  
probable guilt, the standard does not require proof to an absolute certainty or proof beyond any  
doubt. An imaginary or frivolous doubt is not a reasonable doubt (Lifchus at para 36).  
(2)  
Are break periods to be included in the calculation of work hours?  
The Applicant argues that in considering hours worked, break times are to be included in  
the calculation of an employees work hours. The Applicant submits the objects of Part III of the  
Code include the protection of individual workers and the creation of certainty in the labour  
market by providing for minimum labour standards (Instinct Trucking Ltd v Jacknisky, 2003 FC  
1027 at para 28). The Applicant relies on section 169.1 of the Code, which provides every  
employee is entitled to a 30-minute break during every consecutive five hours of work. The  
provision further provides the employee must be paid if the employer requires they remain at the  
employer’s disposal.  
Page: 35  
The Applicant relies on the evidence that establishes the Respondent’s employees are  
paid for their breaks and employees are required to remain in the workplace subject to the  
direction of their supervisors during break periods. The Applicant acknowledges the evidence  
that employees may depart the workplace to obtain lunch or coffee over a break but notes the  
evidence that this requires the employer’s permission.  
The Applicant argues that to interpret section 169.1 as excluding break periods in  
circumstances where an employee must remain at the employer’s disposal would undermine the  
provisions in Part III of the Code establishing maximum daily and weekly work hours. It would  
also be inconsistent with section 12 of the Interpretation Act, RSC 1985, c I-21, which requires  
section 169.1 be given a large and liberal interpretation that best ensures the attainment of the  
objects of the legislation.  
The Respondent submits it is non-controversial that breaks are not included as hours  
worked under the Code. The Respondent relies on an interpretation, policies and guidelines  
document that has as its aim the interpretation of the scope of section 169.1 of the Code (30  
Minute Breaks Canada Labour Code, Part III Division 1 802-1-IPG-100 [IPG-100]). IPG-  
100 defines breaks as “a short period of time during the work period when an employee is  
released from [their] obligations to the employer…and may freely attend to personal matters in  
or near the work placeand further states [g]iven that the employee is not under the control of  
[their] employer during [their] 30-minute break, that break is not considered work time.  
Consequently, the 30-minute break is not paid. However, if the employer requires the employee  
to remain available during the break, for example if the employer asks the employee to remain at  
Page: 36  
the work place during the break to answer the phone, then the employee must be paid for the  
break.”  
IPG-100 does not assist the Respondent. This document addresses the question of work  
hours in a situation where an employee “is released from [their] obligations to the employer  
[and]… may freely attend to personal matters in or near the work place.” This is not reflective of  
the evidence in this matter. Mr. McFeetersevidence was that an employee is not permitted to  
leave the job site once punched in for a shift. Ms. Kerr’s evidence was more nuanced in that she  
acknowledged an employee could be authorized to leave the work premises to obtain a meal  
from a nearby fast food restaurant, but this nonetheless required supervisor authorization. There  
is no evidence before me to indicate employees may freely attend to personal matters in or near  
the workplace during a break.  
The Respondent also relies on a second interpretation document (Hours of Work –  
Canada Labour Code, Part III Division 1 802-1-IPG-002 [IPG-002]). Among other things,  
this document addresses “waiting time.IPG-002 states waiting timeapplies mostly in the  
trucking industry and explains work hours for a vehicle operator usually accounts for the period  
from the beginning of a shift until an employee is relieved of their job responsibilities. The  
document then goes on to describe exceptions, which include time for authorized meal or rest  
breaks and other wait times while en route or at a destination. The Respondent suggests the  
breaks taken by the Applicant’s members are akin to “waiting time.”  
Page: 37  
IPG-002 also states that “[i]n general, an employee is performing workwhen the  
employee … is on a break granted by the employer but is required to remain at the employer’s  
disposal (for example, respond to clients or answer the telephone).” In my opinion, this latter  
circumstance aligns more closely with the evidence presented in this matter.  
The jurisprudence is not consistent on the issue of whether break periods are to be  
considered in assessing work hours. The Applicant argues that faced with the unsettled  
jurisprudence, an interpretation consistent with the objects of Part III of the Code is to be  
preferred. I agree.  
The cases relied upon by the Respondent do hold that break periods are not to be counted  
as work hours (Transport Drivers Local 106 v S.G.T 2000 Inc., 99 CLLC para 220-055, Union of  
Bank Employees, Local 2104 v Canadian Imperial Bank of Commerce, 85 CLLC para 16,021).  
However, these cases arise in the context of union certification activities, a circumstance where  
the Code seeks to achieve objects that differ from those engaged in this instance.  
Reimer Express Lines Ltd. v Teamsters, Local 938, [2000] C.L.A.D. No 762 at paragraph  
20 [Reimer] also holds that break periods are not to considered work hours. Reimer and Hao v  
Canadian Imperial Bank of Commerce, [2008] CAD No. 368 [Hao] were later cited in Fresco v  
Canadian Imperial Bank of Commerce, 2010 ONSC 4724 at paragraph 67 [Fresco], in support of  
the conclusion that break hours are not to be considered work hours. The Applicant argues,  
however, that Fresco is not persuasive, it having been overturned on appeal (on other grounds)  
Page: 38  
and because Hao stands for the opposite proposition. In Hao, break hours were treated as work  
hours.  
Fresco is not persuasive in this circumstance for the reasons highlighted by the  
Applicant. Furthermore, Fresco and Reimer can be distinguished because neither case involves a  
circumstance where employees are not released from their obligations to the employer during  
their break periods.  
Where, as here, employees are expected to remain on the employer’s premises and, as  
contemplated by section 169.1 of the Code, are paid for their break periods, I am of the opinion  
that those break periods are to count as work hours. That the employees are paid double time in  
some instances where breaks are not provided does not change the underlying circumstance; the  
employee does not have the freedom to attend to personal matters in or outside the workplace  
while on breaks.  
For all these reasons, I prefer and have adopted the Applicant’s position. On these facts,  
break periods are to be included in the calculation of work hours.  
It is important to note that had I concluded the Respondent’s position should prevail on  
this issue, this would not change my conclusion on the ultimate issue. As is explained below, the  
evidence establishes numerous instances of employees having worked in excess of 48 hours on a  
weekly basis even when break periods are excluded from work hours.  
Page: 39  
(3)  
The Respondent has been non-compliant  
The Respondent submits the Applicant has not met its burden. The evidence, at best,  
demonstrates hours paid as opposed to hours worked and is therefore not probative to the  
question of hours worked. The evidence adduced cannot satisfy the Applicants burden to  
demonstrate the Respondent has failed to comply with the Award by intentionally allowing or  
scheduling employees to work in excess of 48 hours in a week as alleged.  
The Respondent relies on the testimony of Mr. McFeeters and Ms. Kerr in submitting that  
the information these individuals recorded in their respective calendars and placed before the  
Court is similarly limited to a recording of hours paid, not hours worked. The Respondent also  
points to the testimony of a number of the witnesses stating that Time Card Reports have  
contained inaccurate information requiring adjustments and corrections and that employees make  
errors in punching in or punching out.  
The Applicant’s submissions summarize and tabulate a representative sample of hours  
worked by Ms. Kerr and Mr. McFeeters during a selection of weeks following the issuance of the  
Award, based on their punch times. The Applicant has undertaken a similar summary in respect  
of a small number of additional employees at both the Pacific and Cascadia Terminals. The  
summaries were prepared based on Time Card Reports, Exception Reports and, in the case of  
Ms. Kerr and Mr. McFeeters, data contained in their individual calendars. The Applicant  
reviewed this tabulated data in the course of oral submissions. Although the Respondent takes  
issue with the probative value of the evidence as it relates to the issue of work hours, the  
Page: 40  
Respondent has not objected to or identified any specific concerns with the accuracy or  
completeness of the Applicant’s summaries.  
I have relied on the Applicant’s summaries in my assessment of the evidence and  
reproduce those summaries below. I have also reviewed the Applicants charts detailing the  
evidence underpinning the summaries. In doing so, a number of citation errors were noted. In the  
interest of completeness, Schedule 1 to these reasons reproduces the Applicant’s charts. The  
document references in the charts are to the Applicant’s document numbers in the E-trial Toolkit.  
The Table of Concordance at Exhibit 271 (FC01454) may be of assistance in this regard.  
(a)  
Samples of weekly hours  
(i)  
Ms. Kerr  
The Applicant submits Ms. Kerr worked, at least, the following hours during the  
identified weeks in 2020:  
Week  
Time Worked  
January 12-18  
February 23-29  
March 1 7  
58 hours, 30 minutes  
56 hours, 10 minutes  
52 hours, 30 minutes  
50 hours, 45 minutes  
51 hours, 30 minutes  
59 hours, 30 minutes  
54 hours, 30 minutes  
March 22-28  
April 26 May 2  
August 2-8  
December 6-12  
Page: 41  
The evidentiary basis for the above chart is set out in Appendix A to the Applicants  
submissions, which, as I note above, has been reproduced at Schedule 1 of these reasons.  
The Applicant submits the evidence has been interpreted conservatively to account for  
the Respondent’s position that evidence demonstrating hours paid cannot establish hours  
worked:  
A. The hours identified have been consistently recorded or reported in Ms. Kerr’s  
calendar, the Exception Reports, the Time Report Cards and Ms. Kerr’s punch in  
and punch out times;  
B. The weekly totals exclude breaks taken;  
C. The weekly totals also exclude missed breaks if the missed break was not reported  
in both Ms. Kerr’s calendar and on the applicable Exception Report or Time Card  
Report; and  
D. Any time Ms. Kerr remained punched in that exceeded the time for her scheduled  
shift was excluded from the calculation of hours worked unless Ms. Kerr was  
actually paid for overtime.  
(ii)  
Mr. McFeeters  
Week  
Time Worked  
56 hours  
July 19-25, 2020  
December 6-12, 2020  
January 17-23, 2021  
51 hours, 10 minutes  
49 hours, 40 minutes  
Page: 42  
The Applicant again submits that the evidence has been interpreted conservatively:  
A. Hours have only been included where they have been consistently recorded in Mr.  
McFeeterscalendar, the Exception Reports and the Time Card Reports and are  
also consistent with punch in and punch out times;  
B. The weekly totals exclude breaks taken;  
C. The weekly totals also exclude missed breaks if the missed break is not reflected  
in the payroll records; and  
D. Punch in times that exceeded eight hours were excluded unless Mr. McFeeters  
was paid overtime.  
The evidentiary basis for the above chart is set out in Appendix B to the Applicants  
submissions, reproduced at Schedule 1.  
(iii)  
Pacific Terminal Employees  
Employee  
Week  
Hours worked  
Saul Bermudes Varela August 2 8, 2020  
57 hours, 50 minutes  
60 hours, 30 minutes  
64 hours, 30 minutes  
55 hours  
Ed Bruschinsky  
Bryan Chatt  
August 9 15, 2020  
August 9 15, 2020  
August 2 8, 2020  
Zachary Twolan  
Hours reported exclude the maximum break time per shift. The evidentiary basis for the  
above chart is set out in Appendix C to the Applicants submissions, reproduced at Schedule 1.  
Page: 43  
(iv)  
Cascadia Terminal Employees  
Employee  
Week  
Hours worked  
66 hours, 40 minutes  
53 hours  
Esteban Acedo  
Michael Bauer  
James Brunskill  
Colton Schock  
August 16 22, 2020,  
August 16 22, 2020  
August 16 22, 2020  
50 hours, 50 minutes  
52 hours  
November 29 December 5,  
2020  
Hours reported exclude the maximum break time per shift. The evidentiary basis for the  
above chart is set out in Appendix D to the Applicants submissions, reproduced at Schedule 1.  
(b)  
Punch times reflect hours worked  
The evidence establishes that punch in and punch out times accurately reflect the hours  
that employees are on the employer’s premises (see, for example, Transcript Volume 3, page 66,  
lines 8 -15). Mr. McFeeters testified he starts work upon arriving at the workplace (“Yeah, after  
punching in I’m two floors up to my desk, so 30 seconds to a minute or so”: Transcript Volume  
3, page 12, lines 12 -13), as did Ms. Kerr (Transcript Volume 3, page 82, lines 7 24).  
The Respondent argues that hours worked cannot be determined because overtime  
worked as a shift extension or to assist with a vessel arrival or departure is paid and recorded  
based on fixed time periods (one- or four-hour extensions and three hours for a vessel) regardless  
of the time actually worked. However, the evidence establishes employees commence work very  
shortly after punching or clocking in. Similarly, they punch out upon being released from work.  
There is no evidence indicating employees remain in the workplace after being released from  
work.  
Page: 44  
Witnesses did acknowledge that punch in and punch out times were not representative of  
hours worked, but only on the basis that employees do not punch out for break periods  
(Transcript Volume 3, page 123, lines 11-26). Where break periods are either counted as work  
hours, or alternatively excluded from the calculation of work hours, the evidence establishes the  
elapsed time between employees punching in and punching out is an accurate reflection of hours  
worked.  
The evidence does demonstrate that there may be errors in the punch in and out data and  
errors in the Exception Report and Time Card Report that arise in the process of generating these  
documents. However, the evidence indicates errors arise from human mistake or oversight. This  
is to be both anticipated and expected in any data collection process reliant on human inputs.  
There is no evidence of systemic defects nor is there evidence that the data as a whole is  
inherently unreliable.  
I am satisfied that the punch in and punch out data is reliable. I am also satisfied that the  
evidence establishes an employees actual work hours can be accurately inferred from this data  
by calculating the time that passes between an employee punching in at the employers premises  
on a given day and later punching out. The punch in and punch out data dispels any reasonable  
doubt that might arise in relying on data generated for pay purposes to determine hours worked.  
I have concluded that break times are to be counted for the purpose of determining work  
hours in this circumstance. However, as is disclosed in the summaries set out above, the evidence  
Page: 45  
discloses work weeks exceeding 48 hours even if break times are excluded from the calculation  
of hours worked.  
(c)  
Evidentiary burden has been satisfied  
The charts set out above disclose numerous instances where the data indicates an  
employee worked in excess of 48 hours in a week. The Applicant submits, and I agree, that to  
conclude in the instances relating to Ms. Kerr and Mr. McFeeters that the employee worked less  
than 48 hours one would have to dismiss data that was consistently recorded in both payroll  
documentation and the employee’s personal record or calendar. The Applicant also persuasively  
notes in reference to the hours worked by Ms. Kerr during the week of August 2 to 8, 2020 - 59  
hours and 30 minutes, excluding break times - that one would have to accept Ms. Kerr spent 11  
hours and 30 minutes in the workplace punched in and paid but not required for work to  
conclude she worked no more than 48 hours that week.  
I am satisfied the evidence does establish on a “beyond a reasonable doubt” standard that  
after October 28, 2019, the Respondent persisted, at both its Cascadia and Pacific Terminals, to  
have employees work in excess of 48 hours per week, thereby violating the Code and failing to  
comply with the Award.  
In so concluding, I having considered: (1) the calculation of weekly hours in the sampling  
set out above; (2) the Applicant’s conservative approach to the calculation of weekly hours in  
that sampling; (3) my conclusion that the punch in and punch out data is reliable and reflective of  
hours worked; (4) the evidence of numerous witnesses to the effect that the Respondent did not  
Page: 46  
implement any changes to its practices or procedures to the assignment of overtime after the  
issuance of the Award and prior to April 2021; (5) the testimony of Mr. McFeeters and Ms. Kerr  
to the effect that they had personally worked in excess of 48 hours in a week after the issuance of  
the Award, testimony that is consistent with the documentary evidence; (6) the testimony of Mr.  
Larochelle to the effect that it was a common occurrence for employees to have worked in excess  
of eight hours of overtime in a week from November 2019; and (6) the evidence of Mr.  
Larochelle and Ms. Montgomery to the effect that as supervisors they neither tracked nor  
considered weekly hours worked in the assignment of overtime before April 2021.  
(d)  
Intent is established  
Turning to the question of intent, Justice René Leblanc notes in Canada (National  
Revenue) v Chi, 2018 FC 897, that in a contempt proceeding “there is no need to prove mens rea  
as it is understood in a criminal context. What must be established is that the alleged contemptor  
had both knowledge of the order and was knowingly disobeying it” (para 14). Intent to disobey  
can be inferred where the alleged contemptor has knowledge of the order (Canada (National  
Revenue) v Gray, 2018 FC 549 at para 58; Asics Corp v 9153-2267 Quebec Inc., 2017 FC 5 at  
paras 34 and 54).  
The Respondent’s knowledge of the Award is not disputed. The evidence also establishes  
that the Respondent was provided notice of non-compliance in November 2019 (Exhibit 3,  
FC00227; Exhibit 7, FC00225). The intention not to comply with the Award can be readily  
inferred on these facts.  
Page: 47  
(e)  
Time for compliance  
As discussed at paragraph 79 above, the November 2020 Order held that the failure of the  
Award to set out an express timeline was not necessarily fatal to the enforcement of the Award.  
It was held that the issue of timely compliance with the Award could only be addressed after  
evidence had been heard.  
The Respondent has maintained in its submissions that the failure to set out an express  
time for compliance in the Award renders it incapable of enforcement without more. This  
argument, as I have previously stated, has been considered and decided and will not be re-visited.  
The question to be addressed at this stage is whether there has been a reasonable opportunity to  
comply.  
Timely compliance requires a consideration of the surrounding circumstances (Sound  
Contracting Ltd. v Comox Strathcona (Regional District), 2005 BCCA 167 at para 11; Telus at  
paras 46-47; also see Berge v Hughes Properties (BCCA), [1988] BCJ No 353, 24 BCLR (2d) 1  
[Skybound], where the contempt finding was overturned due to the order being found to be  
imprecise as to time in a concurring judgment, Justice Esson, speaking only for himself, states  
that he would not want the decision to be understood as meaning a finding of contempt could  
never be made without a specific date being set in an order).  
Page: 48  
The above-cited jurisprudence indicates that the question of timely compliance may  
engage several factors, including an alleged contemptors compliance efforts, the passage of time  
and obstacles to compliance.  
In this instance, the evidence indicates that the Respondent made little, if any, effort to  
comply with the Order prior to April 2021. Similarly, there is nothing in the evidence to suggest  
the Applicant’s action have prevented or delayed the Respondent’s ability to comply. The  
unsuccessful efforts undertaken to negotiate an averaging agreement are noted. However, those  
efforts ended in May 2020 and they did not prevent compliance through other means.  
Having concluded the Award is enforceable by way of this proceeding, the Respondent  
failed to comply with the Award, intent not to comply can be inferred and the Respondent has  
had a reasonable time to comply, contempt has been established.  
C.  
Decline to make a finding of contempt  
In Carey, the Supreme Court affirmed that the contempt power of the court is  
discretionary and that courts have consistently discouraged routine use of the power as a mere  
means of obtaining compliance with an order or judgment. The power should be used cautiously  
and with restraint (Carey at para 36).  
Having concluded that the Applicant has established contempt, I must now consider  
whether to exercise the Court’s discretionary authority to not hold the Respondent in contempt.  
Page: 49  
The Respondent submits that the interests of justice weigh in favour of an exercise of the Courts  
discretion not to do so.  
The Respondent argues the intent of the Award was to provide an impetus for the parties  
to work together to consider a scheduling agreement as contemplated by the Code. Efforts were  
made to come to an agreement and the failure, to date to do so should not result in a consequence  
being directed only at the Respondent. In this respect, the Respondent points to Mr. Larochelle’s  
testimony where he states that the Applicant Union monitors what employees are given overtime  
and has never objected to a grant of overtime on the basis that an employee cannot be assigned  
more overtime.  
In Carey, the Supreme Court cites Morrow, Power v Newfoundland Telephone Co.,  
[1994] NJ No 197 (QL), 121 Nfld. & P.E.I.R. 334 (Nfld. C.A.) as an example of the court  
exercising its discretion on the basis that the alleged contemptor acted in good faith and took  
reasonable steps to comply with the order. The Court in Carey does not attempt to delineate what  
circumstances might warrant the exercise of the discretion, instead leaving open the possibility  
for its exercise in any instance where the finding would work an injustice in the circumstances  
(Carey at para 37).  
I agree with the Respondent’s view that the circumstances surrounding the failure of the  
parties to enter into an averaging agreement and the Applicant’s approach to the issue of  
overtime are certainly factors, among others, that are relevant to the exercise of the discretion.  
However, the weight to be given these factors must flow from the evidence and there is little on  
Page: 50  
the record to allow the factors to be assessed. In making this observation, I am in no way  
suggesting the Respondent was under any obligation to call evidence in response to the contempt  
allegation. Because the Respondent has chosen not do so and in the absence of evidence having  
been led by the Applicants or having been elicited on cross-examination on these issues, the  
Court is left to speculate as to the reasons the negotiation of the averaging arrangement and  
subsequent intervention of Arbitrator Sullivan, were not successful.  
Mr. Larochelle’s evidence that he was unaware of any instance of the Union having  
intervened in workplace overtime decisions on the basis of the number of hours an employee  
worked may, as the Respondent submits, suggest some shared responsibility. However, the  
evidence also demonstrates numerous efforts on the part of the Applicant to have the Respondent  
comply with the Award after it issued, including the bringing of this Application.  
There is also some evidence on the record indicating the Respondent made some effort as  
of April 2021 to comply with the Award. Mr. Larochelle and Ms. Montgomery both testified  
they received direction to consider weekly hours before awarding overtime, Mr. Larochelle on  
the date he appeared to testify in this proceeding and Ms. Montgomery early in April 2021.  
While this evidence suggests an effort to comply was made, the witnesses also testified they had  
received no prior instructions to consider weekly hours. The limited evidence does not allow the  
Court to draw any conclusions as to the motivation behind this effort. It does however, suggest  
obstacles to compliance, if any, were not insurmountable.  
Page: 51  
In asking the Court to exercise its discretion, the Respondent has pointed to little  
evidence on the record that would suggest good faith efforts have been made to comply,  
compliance was an impossibility or there has been some form of technical (if not actual)  
compliance with the Award. All of these are factors that, if supported by an evidentiary  
foundation, might support a conclusion that a contempt finding would work an injustice in the  
circumstances.  
In this instance, I am unconvinced that an injustice would result from the Court’s failure  
to exercise its discretion not to hold the Respondent in contempt. I therefore decline to exercise  
the discretion.  
VIII. Conclusion  
For the above reasons, the Applicant has demonstrated beyond a reasonable doubt that  
the Respondent is guilty of contempt, it having failed to comply with the October 28, 2019  
Award of Arbitrator Sullivan filed with the Court.  
The Court will receive submissions from the parties on an appropriate penalty for the  
established contempt, as well as the appropriate disposition of costs resulting from this  
proceeding.  
Page: 52  
ORDER IN T-1938-19  
THIS COURT ORDERS that:  
1.  
The Respondent is guilty of contempt, it having been found beyond a reasonable  
doubt that the Respondent, having actual knowledge of the October 28, 2019 Award  
of Arbitrator Sullivan filed and registered in the Federal Court pursuant to section 66  
of the Canada Labour Code, RSC 1985, c L-2, failed to thereafter cease and desist in  
violating the Code;  
2.  
The parties shall contact the Federal Court Judicial Administrator to schedule a date  
for a hearing on penalty not later than twenty (20) days from the date of this order. In  
doing so, the parties shall propose a timeline for the service and filing of any written  
submissions; and  
3.  
Costs shall be addressed at the hearing on penalty.  
“Patrick Gleeson”  
Blank  
Judge  
Page: 53  
Schedule 1  
Page: 54