Employment Law

File No. ES-027515, ES-027580, ES-027582, ES-027583

IN THE MATTER OF THE EMPLOYMENT STANDARDS CODE

REVISED STATUTES OF ALBERTA 2000 CHAPTER E-9

WITH AMENDMENTS THERETO

AND IN THE MATTER OF CERTIFICATES ISSUED ON BEHALF OF THE

DIRECTOR OF EMPLOYMENT STANDARDS UNDER SECTION 112(4)(b) OF THE

EMPLOYMENT STANDARDS CODE DATED AUGUST 30,2016 AGAINST

SHAWN BEAVER, DIRECTOR OR FORMER DIRECTOR OF SHAWN BEAVER

PROFESSIONAL CORPORATION

BETWEEN:

SHAWN BEAVER, DIRECTOR OR FORMER DIRECTOR OF SHAWN BEAVER

PROFESSIONAL CORPORATION

APPELLANT

AND

MARY CAELEY ALVES, JACQUALINE ELIZABETH GREGORY, AMANDA

STEPHANIE HAYDUK, DAVID WARREN LLOYD

CLAIMANTS

AND

DIRECTOR OF EMPLOYMENT STANDARDS

THIRD PARTY

UMPIRE: THE HONOURABLE JUDGE J.L. SKITSKO

APPEAL HELD: MAY 3, 2017, JUNE 7, 2017, and AUGUST 16, 2017

UMPIRE’S AWARD

This is an appeal of an order issued under Section 110 of the Employment Standards Code RSA

2000, c. E-9, hereinafter referred to as the “Code”.

Section 110 of the Code reads as follows:

Filing of order

“110 If

(a) an order of an officer or of the Director is not complied with and the time for

an appeal has expired, or

(b) an umpire’s award is not complied with, the Director may file the order or

award with the clerk of the Court at the judicial centre closest to the place where

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the order or award was made, and the order or award is then enforceable as an

order or judgment of the Court.”

The Order was issued against Shawn Beaver Professional Corporation, operating as Beaver,

Leebody and Associates. Shawn Beaver filed the appeal in question. He lodged the appeal

against the Order of the Director making that Order enforceable as an order or judgment of the

Court.

This case began with complaints from 5 former employees of Shawn Beaver Professional

Corporation. The complaints were submitted to the Director and investigated by Officer Teresa

McKinnon. On November 26, 2015, pursuant to section 87 of the Code, Officer McKinnon

made orders as they related to a finding that “wages” were due to the employees. The section

reads:

“Order of an officer

87(1) If an officer determines that earnings are due to an employee and is unable

to mediate, settle or compromise the difference between the employer and

employee, the officer must make an order requiring the employer to pay to the

employee, or to pay to the Director on behalf of the employee, earnings to which

the employee is entitled.

(2) If an officer is unable to determine the amount of earnings that are due to an

employee because the employer has not made or kept complete and accurate

employment records, or has failed to make those records available to the officer

for inspection, the officer may determine the amount in any manner that the

officer considers appropriate.

(3) The employer or employee may appeal the order of the officer to an umpire.”

The 5 employees, Mary Caeley Alves, Jacqualine Elizabeth Gregory, Amanda Stephanie

Hayduk, David Warren Lloyd and Alexandra Karen Seaman saw their complaints investigated

by Officer McKinnon. For the purposes of this appeal, the claim by Alexandra Karen Seaman

was withdrawn, leaving only 4 employees’ wages the subject matter of this appeal.

The first employee, Mary Alves, was determined by Officer McKinnon to be owed $2,400.00 in

wages with $96.00 of vacation pay. Including the Order of Officer fee, $2,745.60 was required

to be paid for this employee to the Director of Employment Standards.

The second employee, Jacqualine Gregory, was found to be owed $1,792.00 in wages and

$71.68 of holiday pay and general holiday pay of $112.00 for a sub-total of $1,975.68. With the

Order of Officer fees, the amount payable to the Director of Employment Standards totalled

$2,173.25.

Amanda Hayduk was found to be owed $3,600.00 in wages and along with the $360.00 Order of

Officer fee the amount payable to the Director of Employment Standards was determined to be

$3,960.00.

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The fourth employee was David Lloyd who was found to be owed $4,500.00 and together with

the Order of Officer fees of $450.00, $4,950.00 was found payable to the Director of

Employment Standards.

I will call these Orders, for brevity sake, the “wages’ order”.

Ms. McKinnon made the findings in an Order of Officer dated November 26, 2015. There was

no appeal of this Order by the employer. This is noteworthy because at the bottom of each Order

in bold letters was the following written note:

“NOTE: An appeal of this Order must be served within 21 days after the

date of service on the appellant. Refer to section 95 on the reverse side

regarding the appeal process. Refer to the enclosed appeal form for the

Registrar’s address.”

Section 95 of the Code reads as follows:

“Appeal to umpire

95(1) A person who has a right of appeal to an umpire may appeal by serving on

the Registrar written notice of appeal specifying the reasons for it.

(2) A notice of appeal must be served on the Registrar within 21 days after the

date of service on the appellant of a copy of (a) a permit for the employment of an

employee who has a disability,

(b) a single employer declaration,

(c) an order under Division 3,

(d) a collection notice, or

(e) a certificate under section 112(4)(b).”

(2) A notice of appeal must be served on the Registrar within 21 days after the

date of service on the appellant of a copy of (a) a permit for the employment of an

employee who has a disability,

(b) a single employer declaration,

(c) an order under Division 3,

(d) a collection notice, or

(e) a certificate under section 112(4)(b).

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(3) A notice of appeal that is postmarked by the Canada Post Corporation within

the 21 days referred to in subsection (2) and that is received by the Registrar

outside the 21-day period is deemed to have been received within the 21 days.

(4) A notice of appeal must be accompanied with

(a) any fee payable under the regulations, and

(b) any amount the employer is required to pay under an order under Division 3,

which must be provided in the form of a money order or certified cheque payable

to the Director.

(5) When the Registrar considers that there are extenuating

circumstances that warrant doing so, the Registrar may

(a) waive or reduce a fee or other amount required to be paid when the notice of

appeal is served, or

(b) accept security for the amount payable in another form and amount acceptable

to the Registrar.”

There was no appeal filed by the Appellant to the “wages’ order”

Approximately 9 months later, Vivian Hu on behalf of the Director, made the section 110 Order.

It is from this Order that Mr. Beaver appeals.

The Appeal filed by Mr. Beaver reads:

“Under section 112 of the Employment Standards Code I appeal the Certificate

Issued on August 30, 2016 for the following reasons:

Section 119(3)(b)(c) – a Director is not liable unless the corp has commenced

liquidation or dissolution proceedings or has been dissolved or an assignment or

receiving order has been made under Bankruptcy & Insolvency Act.

Neither has occurred.

A custodianship order is not liquidation/dissolution or an assignment in

bankruptcy nor is it receiving order under bankruptcy legislation.

Dated September 16, 2016.

Signed, Shawn Beaver”

At the commencement of the hearing of this appeal on May 3, 2017, the appellant further

amended its grounds of appeal to include section 119(2)(a)(b). These sections refer to section

119 of the Alberta Business Corporations Act (the “ABC”) being c. B-9 of the Revised Statutes of

Alberta 2000, which section reads:

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“Directors’ liability for wages

119(1) Directors of a corporation are jointly and severally liable to employees of

the corporation for all debts not exceeding 6 months wages payable to each

employee for services performed for the corporation while they are directors.

(2) Subsection (1) does not render a director liable for debts for wages

(a) if the director believes on reasonable grounds that the corporation can

pay the debts as they become due, or

(b) if the debts are payable to employees for services performed while the

property of the corporation is under the control of a receiver, receiver‑ manager or liquidator.

(3) A director is not liable under subsection (1) unless

(a) the corporation has been sued for the debt within 6 months after it has

become due and execution has been returned unsatisfied in whole or in part,

(b) the corporation has commenced liquidation and dissolution

proceedings or has been dissolved and a claim for the debt has been proved within

6 months after the earlier of the date of commencement of the liquidation and

dissolution proceedings and the date of dissolution, or

(c) the corporation has made an assignment or a receiving order has been

made against it under the Bankruptcy and Insolvency Act (Canada) and a claim

for the debt has been proved within 6 months after the date of the assignment or

receiving order.

(4) No action may be brought against a director under this section more than 2

years after the date on which the director ceased to be a director.

(5) If execution referred to in subsection (3)(a) has issued, the amount

recoverable from a director is the amount remaining unsatisfied after execution.

(6) If a director pays a debt referred to in subsection (1) that is proved in

liquidation and dissolution or bankruptcy proceedings, the director is entitled to

any preference that the employee would have been entitled to, and if a judgment

has been obtained, the director is entitled to an assignment of the judgment.

(7) A director who has satisfied a claim under this section is entitled to

contribution from the other directors who were liable for the claim.”

The Facts

Mr. Beaver testified at the Hearing.

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He indicated he was the sole shareholder and director of the professional corporation, Shawn

Beaver Professional Corporation operating as Beaver, Leebody and Associates. The professional

corporation “P.C.” was incorporated for the purposes of engaging in and rendering legal services

to the public. When it was incorporated, Mr. Beaver was the sole director/shareholder and a

member of the Law Society of Alberta. Mr. Beaver provided his services as a lawyer to the

professional corporation.

Mr. Beaver told the Umpire that he was sworn in to the Alberta Bar in 1993. In 2004 he set up

his own firm, along with several others lawyers. He became the sole manager of the firm in

2010.

He told the hearing that from 2010 to the end of May 2015 he had paid all of his debts as they

became due, including all staff, lawyers or articling students who worked for the P.C. without

exception. In late May of 2015, the P.C. experienced disastrous consequences due to Mr.

Beaver’s conduct. It was shut down by the Law Society of Alberta. Days before the Law

Society decision, Mr. Beaver had been confronted by members and/or employees of the firm

regarding a $180,000.00 shortfall of monies in his trust account. He reported himself to the Law

Society on May 25 and three days later was suspended from the practice of law. A custodian of

the practice was appointed on May 28, 2015.

The custodian appointed by the Law Society was Ms. Brenda Edwards located in the City of

Calgary.

Mr. Beaver told the hearing that while he had no reason to believe that the Law Society would

shut his firm down, he knew that the custodian of the practice would have as he put it,

“immeasurable powers”. However, Mr. Beaver complained that the decision to appoint the

custodian was made without consultation with him.

It was Mr. Beaver’s argument that the employees in question would have been paid from the

ongoing accounts receivable and there would have been sufficient monies to pay these wages. In

his evidence, he said he “expected” the custodian to look at his books and she would see that

there were $120,000.00 to $150,000.00 of billings every month. He later learned that the

custodian had paid substantial amounts of monies to the Canada Revenue Agency

notwithstanding the fact that the custodian was aware of the employees’ claims for wages. He

therefore questioned the custodian’s priority of payments.

Mr. Beaver went further to suggest that because he had notified the Law Society, not only should

an “appropriate” custodian have been appointed located within City of Edmonton, but the person

should have been familiar with criminal law, the area of law that he practiced.

Mr. Beaver’s objections to the issues of the custodian were made in light of some stunning

admissions on his part. Impugned trust transactions leaving a shortfall in the range of

$180,000.00 had been discovered and indeed admitted irregularities in his trust account had

existed as early as December, 2014. These trust account irregularities had been brought to his

attention by a long term employee, Jaqueline Bawol.

At this point, I want to put Mr. Beaver’s objections and suggestions into perspective. The reality

was on May 25, 2015, Mr. Beaver’s law firm was experiencing a $180,000.00 shortfall in its

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trust account. While it is true that this fact was revealed to the Law Society by Mr. Beaver, I am

satisfied on the evidence that I heard that this only happened after other members and staff of the

firm had given Mr. Beaver an ultimatum. The ultimatum was essentially this: “Either you tell

the Law Society or we will”. I do not see any honourable conduct on Mr. Beaver’s part after

receiving that type of ultimatum. There should have been no confrontation because there should

have been no trust irregularities. Lawyers are held to the highest of standards with trust monies

as these funds do not belong to them while they are “in trust”. The term “trust” in the legal

professional is essential to the practice of law.

Since he reported himself to the Law Society he asked this Umpire to believe that had he been

given some input as to how this egregious situation was to be rectified, he would have ensured

that his staff would have been paid in full. I find his protestations and his approach in this area

as either extremely naïve or dishonest. Mr. Beaver was not naïve.

Mr. Beaver made at least one further interesting submission in his appeal. He indicated that a

former best friend and confrere in the law, Mr. Dan Chivers, offered to raise the necessary

money to cover the wages of his staff for the month of May, 2015. He indicated that because

Mr. Chivers and others raised monies to help pay the staff for some of the lost wages, the legal

effect of this payment was to preclude his responsibility in the matter. He argued that these

proceedings seeking recovery of these outstanding wages amounted to double recovery.

To this I would answer that this argument is absurd. That Mr. Beaver would somehow want to

take advantage of the kind assistance of others where the payment of this money was clearly an

act of charity and kindness on their part is selfish and dishonourable. I tip my hat to Mr. Chivers

and others who stepped in to assist the staff at the now defunct law firm. This was an

unconditional act of kindness and will not be sullied by Mr. Beaver’s spurious arguments. I

reject them outright.

Analysis

In coming to my conclusions in this case I have had to consider three Acts of our Legislature:

I. Sections 112(2) & (3)(b) of the Code which reads:

“112(2) Despite any other Act, the directors of a corporation are jointly and

severally liable to an employee of the corporation for unpaid wages earned during

a period not exceeding 6 months.

(3) Subsection (2) does not make a person liable for unpaid wages if

(a) the person was not a director when the unpaid wages were earned,

(b) for the reasons stated in section 119(2) or (3)(b) or (c) of the

Business Corporations Act the person would not be liable, or”

II. Sections 119(1), (2) and (3), of the BCA set out below:

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“119(1) Directors of a corporation are jointly and severally liable to employees of

the corporation for all debts not exceeding 6 months wages payable to each

employee for services performed for the corporation while they are directors.

(2) Subsection (1) does not render a director liable for debts for wages

(a) if the director believes on reasonable grounds that the corporation can pay the

debts as they become due, or

(b) if the debts are payable to employees for services performed while the

property of the corporation is under the control of a receiver, receiver-manager or

liquidator.

(3) A director is not liable under subsection (1) unless

(a) the corporation has been sued for the debt within 6 months after it has become

due and execution has been returned unsatisfied in whole or in part,

(b) the corporation has commenced liquidation and dissolution proceedings or has

been dissolved and a claim for the debt has been proved within 6 months after the

earlier of the date of commencement of the liquidation and dissolution

proceedings and the date of dissolution, or

(c) the corporation has made an assignment or a receiving order has been made

against it under the Bankruptcy and Insolvency Act (Canada) and a claim for the

debt has been proved within 6 months after the date of the assignment or

receiving order.”

(hereinafter referred to as the “exemption provision”.)

III. Sections 133(1) and (2) of the Legal Profession Act (”LPA”)which reads:

“133(1) Notwithstanding anything to the contrary in the Business Corporations

Act, every person who is a voting shareholder of a corporation during the time

that it is the holder of a permit or of a corporation during the time that it acts in

contravention of section 106(1) is liable to the same extent and in the same

manner as if the voting shareholders of the corporation were during that time

carrying on the business of the corporation as a partnership or, if there is only one

voting shareholder, as an individual practising as a barrister and solicitor.

(2) The liability of any person in carrying on the practice of a barrister and

solicitor is not affected by the fact that the practice of a barrister and solicitor is

carried on by that person as an employee and on behalf of a professional

corporation.”

We know section 112 of the Code makes a corporate director liable for the unpaid wages of

employees earnings during a period not exceeding 6 months where the provision in section

119(3) of the BCA does not apply. This is referenced in section 112(3) of the Code.

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The Director of Employment Standards argued that the provisions of section 112 of the Code and

section 133(1) of the LPA are not in conflict. However, the Director stated that under the section

112 provisions if a director was successful in his or her argument of the exemption provisions

under 133(1), the Director may not be able to enforce those section 112 provisions against the

Director or Directors of that corporation as it was not a finding under the Code.

The Director of Employment Standards further argued that my authority as an umpire is limited

and that means I am limited to making determinations only within the scope of the Code. In

other words, I am not entitled to include any LPA considerations in my findings in this appeal.

I respectfully disagree with this view for the following reasons.

The Purpose of the Code

The preamble of the Code reads:

“PREAMBLE

RECOGNIZING that a mutually effective relationship between employees and

employers is critical to the capacity of Albertans to prosper in the competitive

world-wide market economy of which Alberta is a part;

ACKNOWLEDGING that it is fitting that the worth and dignity of all Albertans

be recognized by the Legislature of Alberta though legislation that encourages fair

and equitable resolution of matters arising over terms and conditions of

employment;

REALIZING that the employee-employer relationship is based on a common

interest in the success of the employing organization, best recognized through

open and honest communication between affected parties;

RECOGNIZING that employees and employers are best able to manage their

affairs when statutory rights and responsibilities are clearly established and

understood; and

RECOGNIZING that legislation is an appropriate means of establishing minimum

standards for terms and conditions of employment;

HER MAJESTY, by and with the advice and consent of the Legislative Assembly

of Alberta, enacts as follows: …”

[Emphasis added]

Section 9 of the Code reads as follows:

“9 The Alberta Employment Standards Code RSA 2000 Chapter E-9 prescribes

a set of minimum standards, with specified exceptions, from employment

relationships in the Province of Alberta. The preamble of the Code sets out the

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importance of ensuring that employment relationship has the force of law in

Alberta;”

As noted by Harradence, J.A. in Smith v. Hostess Frito-Lay Company [1994] A.J. 483:

“... The Preamble of an enactment assists in explaining its purpose: Interpretation

Act R.S.A. 1980 CI.-7, s. 12(1).

In Machtinger v. HOJ Industries Ltd. (1992) 40 C.C.E.L. 1 (SCC) at 17, Justice

Iacobucci considers the Ontario Employment Standards Act and states:

"The objective of the Act is to protect the interests of employees by requiring

employers to comply with certain minimum standards, ...

The harm which the Act seeks to remedy is that individual employees, and in

particular non-unionized employees are often in an unequal bargaining position in

relation to their employers.

Accordingly, an interpretation of the Act which encourages employers to comply

with the minimum requirement of the Act and so extends its protection to as many

employees as possible, is to be favored over one that does not (emphasis my own)

(at paragraphs 5 and 6 text).”

In my view sections 2, 4 and 5 of the Code further clarifies the reach of the legislation:

“Application of this Act

2(1) This Act applies to all employers and employees, including the Crown in

right of Alberta and its employees, except as otherwise provided in this section.

4. An agreement that this Act or a provision of it does not apply or that remedies

provided by it are not to be available for an employee, is against public policy and

void.

5. For the purposes of this Act, the employment of an employee is deemed to be

continuous and uninterrupted when a business, undertaking or other activity or

part of it is sold, leased, transferred or merged or if it continues to operate under a

receiver or receiver-manager.”

Section 3 of the Code reads as follows:

“Civil remedies and greater benefits

3(1) Nothing in this Act affects

(a) any civil remedy of an employee or an employer;

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(b) an agreement, a right at common law or a custom that

(i) provides to an employee earnings, maternity and parental leave,

reservist leave, compassionate care leave or other benefits that are

at least equal to those under this

Act, or

(ii) imposes on an employer an obligation or duty greater

than that under this Act.

(2) If under an agreement an employee is to receive greater

earnings, maternity and parental leave, reservist leave or

compassionate care leave than those for which this Act provides,

the employer must give those greater benefits.”

Payment of wages is seen as a fundamental obligation of employers (see s. 8 of the Code).

Therefore, it seems to me if I was to accept the argument of the Director, that enforcement under

the Code for payment of wages of a law firm employee would preclude the protection of the

Code if that employee was a professional corporation. I do not accept this argument.

Clearly, the Code is designed to not only protect “certain individual non-unionized employees”

but also all employees (see Smith, supra). I reject the Director’s argument that my finding of

liability of a director/shareholder of a professional corporation to an employee of the

professional corporation is beyond my authority. Responsibility for these wages are the subject

matter of this appeal. Under section 107 I can confirm, vary, revoke or substitute anything that is

the subject of this appeal (see section 107(1)(a)). I am given considerable power under the Code.

I intend to use that power to ensure that this director of the professional corporation employer be

accountable to his former staff for payment of their wages.

The Legal Profession Act

I note that subsections 133(1) and (2) of the Legal Profession Act have been judicially

considered in several Alberta cases.

In Corkery v. Ronald S. Foster Professional Corp.(1987) 88 A.R. 232, the Court held that the

proper test for determining whether a sole shareholder of a professional corporation is personally

liable is whether the debt arises from the practice of law. In Corkery, a lawyer and sole

shareholder of a professional corporation and another professional corporation were associates

within a legal practice. Both lawyers became indebted to an employee in their practice of law.

The claim was for unpaid employee benefits.

The issue in Corkery was whether a sole shareholder of the professional corporation was

personally liable for payment of the debt. Virtue, J., found at paragraph 6 of Corkery as follows:

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“In my view the plain meaning of the words of the section are that the sole

shareholder of a professional corporation is personally liable for debts arising

from the practice of law. Costs associated with maintaining the operation of an

office for the practice of law including the wages and benefits of employees who

are lawyers are costs directly related to carrying on the business of the practice of

law and are matters for which the sole shareholder of a professional corporation

remains personally liable.”

It is important to note that obligations of professional corporations that arise outside of the scope

of practicing in a particular profession have been held not to be liabilities of the voting

shareholders (see Canada v. Roger M. Bourbonnais Professional Corporation (1996) 35 Alta. L.

Rev. 777). The issue before the Alberta Court of Appeal was whether Mr. Bourbonnais was

personally liable for the income tax liability of his professional corporation after he sold his law

practice and ceased to practice in Alberta.

The case of Sandilands v. Powell 2003 ABCA 162 canvassed the origins of professional

corporations in Alberta. In Sandilands, the Court of Appeal reviewed the jurisprudence to that

point in time. It was helpful to me in reaching my decision in this case.

Sandilands was also reviewed in the case of Dahlem Professional Corp. v. John F. Schneider

Professional Corp. (c.o.b. Canmore Legal Services), [2017] A.J. No, 282.

At paragraph 23 in Dahlem, the Alberta Court of Appeal noted as follows:

“Professional corporations were originally created to allow professionals to access

tax advantages available to other small businesses. At the same time, the

traditional rule that professionals are personally liable for the obligations of their

practices was maintained, "notwithstanding anything to the contrary in the

Business Corporations Act". While personal liability to the professionals' clients

and the protection of the public are central issues addressed in the legislation, the

general rule set out in s 133 is that the shareholder would remain personally liable

for all the debts of the professional practice. Bourbonnais and Sandilands

delineate the outer boundary of that personal liability. ...” [emphasis added]

And at paragraph 25:

“We agree with the respondent that the wages of an associate lawyer, engaged

through an employment or other contractual relationship, are costs associated with

the practice of law. Mr. Dahlem was a lawyer working under the banner of, using

the resources of, and bringing in business to CLS. He was at least analogous to an

associate lawyer in a firm. This arrangement was intended to benefit CLS in its

practice of law, and the trial judge made no error in concluding that the debt

owing to the respondent arose from the appellants' practice of law.”

There is no question that under section 112(2) that the Directors of a corporation are jointly and

severally liable to an employee of the corporation for unpaid wages during a period not

exceeding 6 months. I understand this. I also understand that subsection 3 of section 112 allows

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for exceptions. I understand that these exceptions are pursuant to section 119(2) or 3(b) or (c) of

the Business Corporations Act.

In my view, in light of section 133 of the Legal Professions Act, this section supercedes the

provisions of the Business Corporations Act. It is clear that under section 10 of the

Interpretation Act, RSA 2000 c. I-8 “... an enactment shall be construed as being remedial and

shall be given the fair, large and liberal construction and interpretation that best ensures the

attachment of its objects.” This “trump card” has been mandated by the Legislature. It is my

responsibility to interpret and enforce the same in accordance with the intentions of the

Legislature of this Province.

Therefore, it is my determination that the Director’s Certificates should be confirmed, finding the

Corporate Director, Shawn Beaver, personally liable for the unpaid wages of the four affected

employees, Mary Alves ($2,400.00), Jacqualine Gregory ($1,792.00), Amanda Hayduk

($3,600.00) and David Lloyd ($4,500.00).

The determination and Order of the Director is hereby confirmed.

The appeal is dismissed.

Dated at Edmonton, Alberta this 29 day of November, 2017.

UMPIRE:

Judge J. L. Skitsko - Umpire

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Shawn Beaver

For the Appellant Shawn Beaver Professional Corporation

(No Counsel)

For the Claimants M. Alves, J. Gregory, A. Hayduk, D. Lloyd

J. Andruchuk

For the Third Party - Director of Employment Standards

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