Savoie v. Alberta Union of Provincial Employees, 2012 ABQB 575

Court of Queen ’ s Bench of Alberta Citation: Savoie v. Alberta Union of Provincial Employees, 2012 ABQB 575 Date: 20120921 Docket: 1203 03563 Registry: Edmonton Between: Richard John Savoie Appellant - and - The Alberta Union of Provincial Employees Respondent Editorial Notice: On behalf of the Government of Alberta personal data identifiers have been removed from this unofficial electronic version of the judgment. _______________________________________________________ Memorandum of Decision of the Honourable Madam Justice M.T. Moreau _______________________________________________________ I.

INTRODUCTION [ 1 ] The Appellant, Richard John Savoie, appeals a decision of the Provincial Court of Alberta (Civil) granting the application of

the Respondent, the Alberta Union of Provincial Employees ( “ AUPE ” ), for

summary judgment dismissing the Appellant ’ s Civil Claim on the basis that there was no merit to it. The Appellant was not present at the hearing of the

summary dismissal application. [ 2 ] The Appellant ’ s main grounds of appeal are that he was not aware of the time and place of the hearing, he had earlier requested the transfer of the court proceeding to Calgary, and he did not receive a reply to that request until after the hearing of the

summary dismissal application. II. FACTS [ 3 ] The Appellant is the husband of Elaine Savoie. Mrs. Savoie was employed by the University of Calgary from January 1997 until August 2009. AUPE is the sole collective bargaining agent for employees employed in general support services by the University of Calgary pursuant to the Public Service Employee Relations Act, RSA 2000, c. P-43 ( “ the PSERA ” ) . While the Appellant was never employed by the University of Calgary, it would appear that Mrs. Savoie granted to him a power of attorney that included an authorization to sue on her behalf. In her reasons for decision of January 31, 2012 granting the

summary dismissal application, the learned Provincial Court judge ruled that the Appellant had standing to bring the Civil Claim on his wife ’ s behalf. No issue was taken by AUPE with that ruling for the purposes of this appeal. [ 4 ] Mrs. Savoie was employed as a financial business officer in the faculty of kinesiology. An investigation was initiated into cash payments made to announcers and officials at athletic games following which the director of the department was removed from his position although staff members were advised that no fraud had been found. On the same day, Mrs.

Savoie left work for a stress- induced medical condition. On Mrs. Savoie ’ s return, she was offered a lower paid position, was advised that this position would be red circled and that alternatively, she could accept a severance package. She accepted the new position. Subsequently she received a letter of discipline stating that she and two others in the department had been found to have breached University policy, the Income Tax Act, the Employment Standards Code and their collective agreement. The next month she received a “ Performance Expectation Letter ” .

Just over six months later, in November 2008, she was advised that her position was being substantially modified. She accepted an eight-month redeployment package and her employment terminated in August 2009. [ 5 ] Mrs. Savoie filed four grievances before her redeployment, the first on February 4, 2008 alleging “ harassment ” ; the second on February 15, 2008 alleging improper pay; the third on March 17, 2008 regarding the letter of discipline; and the fourth on May 12, 2008 regarding the performance expectation letter.

All four grievances were advanced by AUPE to arbitration, an arbitrator was selected and dates were set for a December 2009 arbitration hearing. [ 6 ] The record discloses that in November 2008, AUPE conveyed an offer prepared by Mrs. Savoie to settle the four grievances that involved the payment to her of $411,500 which was refused by the University of Calgary, AUPE advising her that the University might consider “ something more reasonable ” . A settlement offer was made by the University of Calgary in July 2009 and communicated by AUPE to Mrs.

Savoie which provided for the removal of the letter of discipline and the letter of expectation from her file, a resolution of her claim relating to improper pay of $6,700 plus an additional four months in salary along with a tuition waiver of one year for her son. She advised AUPE that she would only accept the University ’ s offer if AUPE provided her with an additional $50,000 for failing to properly represent her. [ 7 ] On November 19, 2009, AUPE wrote to Mrs.

Savoie advising that the Grievance Review Board had examined her case in detail and had concluded that the University ’ s latest offer constituted the best possible resolution of her grievances and that any arbitration award would most likely be inferior to the University ’ s offer. In a further letter dated December 3, 2009, shortly before the scheduled arbitration hearing, AUPE informed Mrs. Savoie that the Grievance Review Board would be reviewing her file on December 17, 2009 to determine whether AUPE would be proceeding with her grievances. The arbitration hearing was adjourned at AUPE ’ s request.

Neither Mrs. Savoie nor the Appellant made a written submission to the Grievance Review Board despite being invited to do so, nor did either appear before the Board. The Board made the decision not to proceed to arbitration and her file was closed. [ 8 ] The Civil Claim filed by Mr. Savoie in the Judicial District of Calgary on April 4, 2011 alleges deceit by AUPE in notifying Mrs.

Savoie that the grievances would be taken to arbitration, refusal to prepare for the arbitration hearings, and attempts through coercion and intimidation to have her accept a “ low-ball ” offer of settlement or abandon her claim entirely. The Civil Claim alleges that Mrs. Savoie refused to take the offer and insisted on receiving a higher settlement amount, whereupon AUPE advised her it

had no obligation to proceed with the arbitration and closed her file. The amount claimed in the Civil Claim is $411,500, however, Mrs. Savoie ’ s recovery is limited to $25,000 in Provincial Court (Civil). [ 9 ] The Appellant was notified in writing by Alberta Justice that the Civil Claim was being transferred to Edmonton pursuant to Alberta Regulation No. 329/89. At a pre-trial conference ( “ PTC ” ) held in Edmonton on October 7, 2009, the PTC judge ordered that AUPE be permitted to make an application for

summary dismissal and that the Appellant could cross-apply to set the matter for trial. The Appellant alleges that he was prevented from referring to any evidence and was treated in an abusive and unfair manner by the PTC judge. He wrote a letter to Alberta Justice Communications on November 22, 2009 citing the manner in which the PTC had been conducted and requested that the proceedings be transferred back to Calgary. [ 10 ] The details relating to service of notice of the

summary dismissal hearing are related below. The Appellant did not appear on the

summary dismissal application ultimately heard on December 20, 2012 and, in a written decision filed on January 31, 2012 , his Civil Claim was dismissed with costs to AUPE in the amount of $750.00. III. ISSUES [ 11 ] The main issue in this appeal is whether the decision of the learned Provincial Court judge dismissing the Civil Claim on the merits should be allowed to stand having regard to the Appellant ’ s assertion that he was not aware of the hearing date. IV. DISCUSSION [ 12 ] Mr. Savoie took issue at the hearing of the appeal with the jurisdiction of the Provincial Court to grant

summary judgment dismissing his Civil Claim on the basis that the Provincial Court Act, RSA 2000, C. P-31 and amendments thereto ( “ the Act ” ) and regulations thereunder contain no provision for making the application. The learned Provincial Court judge referred to s.8(2) of the Act , which provides: Rules of Court 8(1) The practice and procedure of the Court shall be as provided in this Act and the regulations.

(2) Where this Act or the regulations do not provide for a specific practice or procedure of the Court that is necessary to ensure an expeditious and inexpensive resolution of a matter before the Court, the Court may (

a) apply the Alberta Rules of Court, and (

b) modify the Alberta Rules of Court as needed. [ 13 ] As noted by the Supreme Court of Canada in Canada (Attorney General) v. Lameman , 2008 SCC 14 , at paras. 11-12 : The

summary judgment rule serves an important purpose in the civil litigation system. It prevents claims or defences that have no chance of success from

proceeding to trial. Trying unmeritorious claims imposes a heavy price in terms of time and cost on the parties to the litigation and on the justice system. It is essential to the proper operation of the justice system and beneficial to the parties that claims that have no chance of success be weeded out at an early stage. Conversely, it is essential to justice that claims disclosing real issues that may be successful proceed to trial. [ 14 ] In light of these comments, the

summary judgment procedure is “ necessary to ensure an expeditious and inexpensive resolution of a matter before the Court ” within the meaning of s.8(2) of the Act. As neither the Act nor the regulations provides for a

summary judgment application, it was within the powers of the PTC judge and the judge who ultimately heard the application to permit AUPE to proceed with a

summary dismissal application pursuant to Rule 7.3 of the Alberta Rules of Court . [ 15 ] It is necessary to carefully review the record in order to fully address the Appellant ’ s assertion that he was not aware of the time and place of the

summary dismissal hearing. [ 16 ] AUPE ’ s Notice of Application for

summary dismissal was filed on November 3, 2011, within the 30 days directed by the PTC judge ’ s October 7, 2011 order. The Notice of Application set the matter for hearing on November 29, 2011. An Affidavit of Service sworn by a legal assistant in the office of counsel for AUPE and filed on November 29, 2011 stated that she forwarded to the Appellant filed copies of the Notice of Application (for

summary dismissal), along with the Affidavit of William Rigutto, by mail via Xpress Post to the Appellant ’ s address in Calgary, being the address for service provided by him on the Civil Claim. The Canada Post tracking sheet attached to the Affidavit of Service indicates that delivery of the documents was attempted on November 4, 2011 and a notice card was left indicating where the item could be picked up.

The item was not claimed and the envelope containing the documents was returned on November 24, 2011. [ 17 ] The Affidavit of Service went on to state that in the meantime, counsel for AUPE also sent an email to the Appellant requesting that he provide his fax number. The Appellant did so by a reply email of the same date. On November 17, 2011, counsel for AUPE faxed a letter and a copy of the Notice of Application for

summary dismissal to the fax number provided by the Appellant. In a letter included with these documents, counsel advised that the application documents had been forwarded by Xpress Post. The letter confirmed the hearing date of November 29, 2011 at 1:30 p.m. and the courtroom number (the date and time having been underlined). The letter stated that as of November 17, 2011, the documents that had been sent by Xpress Post had not been picked up, a notice card having been left at the Appellant ’ s address, and requested that the Appellant arrange to pick up the documents as soon as possible.

The letter also advised the Appellant that a written brief was being forwarded to him by courier on the same day. The letter invited the Appellant to call counsel for AUPE if he had any concerns. [ 18 ] The fax confirmation that the Notice of Application and letter were sent to the fax number provided by the Appellant was attached to the Affidavit of Service, indicating receipt of the fax at 3:16 p.m. on November 17, 2011. The Appellant on the same date forwarded seven pages by fax to counsel for AUPE (the fax indicating a receipt time of 3:54 p.m.). Included was a one-page document entitled “

Summary of the Case; Savoie vs. The Alberta Union of Provincial Employees October 2011". It contained allegations that Mrs. Savoie had been harassed and bullied by management staff resulting in her filing the four grievances; that Mrs. Savoie had been notified in September 2008 that the grievances would be taken to arbitration which was described as

an act in support of the constructive dismissal of Mrs. Savoie in November 2008; that the union asked Mrs. Savoie what dollar amounts she would settle the matter for and she responded with a figure of $411,500; that the union did not prepare for the arbitration but attempted to dissuade her from proceeding, and that the notice of an arbitration hearing was a “ ruse and a fraud ” . The

Summary also referred to complaints filed about the union ’ s conduct with the Alberta Labour Relations Board ( “ the ALRB ” ) and how the ALRB handled her complaints. Finally, the

Summary alleged that the union had no intention of proceeding with the arbitration, acted dishonestly and with impunity and in collusion with the employer to constructively dismiss Mrs. Savoie, and asked the Court to award Mrs. Savoie the full amount of her claim and/or any other compensation the Court deemed appropriate. [ 19 ] Also included with the documents faxed by the Appellant to counsel for AUPE was a two-page document entitled “

Schedule of Documents - Savoie vs. AUPE October 2011" listing 33 documents, which correspond to the documents he filed in his appeal, along with a copy of a four-page General Power of Attorney granted by Mrs. Savoie in favour of Mr. Savoie.

[ 20 ] The Notice of Application and related documents earlier sent by Xpress Post to the Appellant having been returned unclaimed on November 24, 2011, on that date, counsel for AUPE forwarded the Notice of Application and Affidavit of Mr. Rigutto to the Appellant at the address noted on the Civil Claim, by Purolator courier. A Purolator tracking sheet attached to the Affidavit of Service confirmed that the documents were delivered “ AT DOOR OF RICHARD J SAVOIE ” on November 25, 2011 at 9:29 a.m. [ 21 ] No transcript was before me of the proceedings of November 29, 2011 in Edmonton.

The Appellant did not attend the hearing. An order was granted by the Honourable Judge Young adjourning AUPE ’ s

summary dismissal application to December 20 at 1:30 p.m. in Courtroom 264. The Order authorized service of the Notice of Application, Affidavit of William Rigutto, Written Brief and Book of Authorities, together with a letter from counsel confirming the adjournment of the application to December 20 th , and a filed copy of her Order “ ...by leaving same at the address of the Plaintiff set out in his Civil Claim ... ” .

The Order provided that service in this manner “ ... shall be deemed good and sufficient service on the Plaintiff. ” [ 22 ] A further Affidavit of Service sworn by the legal assistant of counsel for AUPE and filed on December 9, 2011 stated that on December 1, 2011, true copies of the Notice of Application filed on November 3, 2011, the Affidavit of Mr.

Rigutto, counsel ’ s Written Brief and Book of Authorities filed November 16, 2011, the Order of Judge Young of November 30, 2011, along with correspondence to the Appellant from counsel for AUPE were forwarded by courier to the Appellant at the address for service provided in his Civil Claim. In bold print, counsel ’ s letter set out the adjourned date, time and location of the hearing in compliance with Judge Young ’ s order of November 30, 2011.

Attached to the Affidavit of Service was a “ Shipment Details ” sheet from Purolator Courier confirming that these documents were “ delivered to OSNR at RECEPTION ” at 5:08 p.m. on December 5, 2011 at [...] Schooner Cover NW. [ 23 ] The record discloses that on November 22, 2011, after receiving the Notice of Application by fax from counsel for AUPE on November 17 th , 2011 and before the scheduled hearing date of November 29, 2011, the Appellant wrote a letter to Alberta Justice, Communications with a copy to the Office of the Alberta Ombudsman. The letter stated: Re: Provincial Court Action Docket No.

P1190302254 Dear Minister of Justice: Having attended a pre-trial conference on October 7 2011 at the Edmonton Law Courts Annex, I am writing to request that this matter be moved to the Calgary Law Courts Centre. During the pre-trial conference at the Edmonton Law Courts Annex I was subjected to verbal abuse, intimidation and harassment by the judge who chaired the pre-trial conference. The judge who chaired the conference only identified himself with the first name “ Jim ” .

In this meeting he prevented me from presenting my evidence, announced that I would lose my case and showed an unfair bias to the defendant; the Alberta Union of Provincial Employees. Every person has the right to a fair trial, and the effective protection of all human rights very much depends on access to competent, independent and impartial courts of law which can, and will, administer justice fairly. Respectfully, I ask that you move the court case to the Calgary Law Courts

Centre. Yours truly, Rick Savoie [ 24 ] Counsel for AUPE advised at the hearing of this appeal that he did not receive a copy of this letter. The Applicant did not suggest that he had sent a copy to him. [ 25 ] The Appellant maintained at the hearing of the appeal that he was not aware of the December 20, 2012 date for the

summary dismissal application although he could not say whether he may not have opened a parcel of documents he may have received by courier. He added that he would not have paid attention to anything that had been delivered to him unless it was a letter from the Minister of Justice.

In any event, it would have been reasonable and prudent for him to check with Alberta Justice as to what had transpired at the November 29, 2011 hearing, as he was aware of that hearing date. [ 26 ] In relation to the first package of documents delivered by courier to him on November 24, 2011, the Purolator tracking sheet described their delivery “ AT DOOR OF RICHARD J SAVOIE ” on November 25, 2011. He had by then written to the Alberta Justice requesting the transfer of his action.

The tracking sheet for the package of documents delivered by Purolator on December 5, 2011, while indicating that they were delivered to the address noted on his Civil Claim, stated “ delivered to OSNR at RECEPTION ” . I cannot say whether this means the same thing as “ at the door ” of the Appellant. [ 27 ] The transcript of the December 20, 2012

summary dismissal hearing contains this exchange between the Honourable Judge Young and counsel for AUPE at the outset of the hearing: MR. RENOUF: .... I am going to try and give the Court a roadmap to what I think is the simplest solution. THE COURT: Well, I – okay. Before you do that, though, I do want to put something on the record. Mr. Savoie – I hesitate to use the word filed, but he provided the Court with a letter which he has actually directed to Alberta Justice, expressing a concern with his right to a fair trial if the matter proceeds to be dealt with in the Edmonton law courts.

He is asking that the matter be moved to Calgary. I am putting this on the record because as far as I am concerned, if he wants to make an application, if he wants to change the venue, he is going to have to make an application to change the venue . And unless you tell me something different in terms of there being an issue with service, I am going to hear your application. MR. RENOUF: Thank you, Your Honour. There is no issue of service. An affidavit of service has been filed in accordance with the order for substitutional service.

I think probably any conceivable doubt about whether the substitutional service was valid is probably answered by Mr. Savoie having written to the

Court. That would confirm that he knows about this proceeding , but — THE COURT: Is there an affidavit of service? THE COURT CLERK: Yes. MR. RENOUF: Yes, it is filed December 9 th , Your Honour. THE COURT CLERK: Yes, Your Honour. THE COURT: Let me just – oh yes,. Oh, December 9? MR. RENOUF: Yes. THE COURT: Madam clerk, can you help me out here? I have this. Is it in the file? THE COURT CLERK: It is in the file. THE COURT: Because the other one has got a November date on it. THE COURT CLERK: Maybe this is the one I am thinking of. MR. RENOUF: I think I have got an extra copy. THE COURT CLERK: Oh, here is one. MR.

RENOUF: All right. THE COURT CLERK: So December 9, you were saying? MR. RENOUF: December 9 th , yeah. THE COURT CLERK: And the other one is just underneath here. MR. RENOUF: And that includes your order, Your Honour, of November the 30 th which was the order of substitutional service. That is Exhibit E to the affidavit of service. THE COURT: So as at December 5 th , documents were left at the residence as

per my order? MR. RENOUF: Yes. THE COURT: So some 15 days ago? MR. RENOUF: Yes. THE COURT: Please proceed. [underlining added] [ 28 ] There are two points to note from this exchange. First, counsel for AUPE ’ s comment at the December 20 th hearing: “ I think probably any conceivable doubt about whether the substitutional service was valid is probably answered by Mr. Savoie having written to the Court. That would confirm that he knows about this proceeding ” would not be accurate if by “ this proceeding ” he meant “ this application ” as Mr.

Savoie ’ s correspondence to the Court pre-dated the delivery to him of the Order for substitutional service which set out the December 20 th hearing date. [ 29 ] Second, having received correspondence from the Appellant and having stated that if he wanted a change of venue he was going to have to make an application, the learned Provincial Court judge proceeded to deal with the application for

summary judgment. As the record discloses, the Appellant did not receive a written reply from a Provincial Court administrator to his letter of November 22, 2012 until January 9, 2012, some time after the hearing of the

summary dismissal application. The letter stated: This Court has received your letter dated November 22, 2011, directed to the attention of Alberta Justice, Communications. You have requested that your matter be moved to Calgary. This will require you to make an application to the Court, on notice to Mr. Renouf, counsel for the Defendant. [ 30 ] The learned Provincial Court Judge ’ s written decision was filed on January 31, 2012, the only mention made of service being as follows: [1] ...

The Plaintiff was served with notice of the application pursuant to an Order for Substitutional Service granted by this Court on November 29, 2011. The Plaintiff did not appear on the application nor did anyone appear on his behalf. Consequently, the only evidence before the Court on the application was the Affidavit of William Rigutto, sworn on November 2, 2011, on behalf of the Defendant, and filed in the within action on November 3, 2011 (the “ Rigutto Affidavit ” ).

And at para. 7: [7] As set out earlier in this decision, the Plaintiff did not appear on this application and no Affidavit was filed by or on his behalf. [ 31 ] The Appellant ’ s failure to attend the application was also noted at para. 46 when costs were addressed. [ 32 ] It would appear that the learned Provincial Court judge was not aware of the “

Summary of the Case ” faxed by the Appellant to counsel for AUPE on November 17, 2011 although I do not have the benefit of the November 29 th , 2011 hearing transcript to confirm this. This document was not in the record forwarded to this Court from Provincial Court.

[ 33 ] It would appear that while the learned Provincial Court judge contemplated at the outset of the

summary dismissal hearing that the Appellant would be notified that he would be required to make a change of venue application, he only received notice of this after the

summary dismissal application was heard. [ 34 ] Counsel for AUPE argued that the Appellant should not be entitled to hijack Court proceedings simply by writing a letter to the Minister of Justice requesting a transfer of proceedings already properly before the Court and set for hearing. Counsel noted that the Appellant failed to provide to him a copy of his letter request for a transfer of the proceedings or to inquire as to how to go about requesting a transfer of proceedings.

There was nothing alerting the Minister of Justice to the urgency of the Appellant ’ s requesting a transfer of the proceeding in his November 22 nd letter as it did not refer to the scheduled November 29, 2011 court hearing. [ 35 ] I agree with counsel for AUPE that the Appellant should have alerted him to his transfer request and Alberta Justice to the fast-approaching hearing date. However, the Appellant did supply a fax number immediately upon being requested to do so by counsel for AUPE. He earlier traveled from his residence in Calgary to Edmonton for the October 7, 2011 pre-trial conference.

When he received the faxed documents relating to the

summary dismissal application which I infer he did on November 17, 2011 from the timing of his faxed response within an hour, he provided counsel for AUPE with his

Summary of the Case and a detailed list of 33 documents he intended to rely on. In taking these steps, he was obviously intent on continuing his action. [ 36 ] The Appellant also wrote within 5 days of receiving the faxed documents (and one week prior to the first scheduled date for the

summary judgment motion) to Justice Communications requesting the transfer of the proceedings. While this was not sent as a Notice of Application, he did direct his letter to the same department, Alberta Justice, that had advised him sometime earlier that the proceedings had been transferred to Edmonton. [ 37 ] The Appellant responded promptly to the letter dated January 9, 2012 from a Provincial Court administrator advising him he was required to make an application to transfer his claim.

The record contains a letter dated January 20, 2012, from the Appellant to the administrator which states: Further to your letter of January 9 2012 please consider this letter my request and application to have this matter moved to the Calgary Courts Centre. As well, please consider this letter as my request to appeal the “ Judgment ” dated February 3, 2012 (photo copy enclosed). Please advise if there are any additional requirements of myself in order to complete these requests. I can be reached by telephone at 403- 860-4939. Thank you. [ 38 ] The letter indicates that a copy was sent to counsel for AUPE.

The Appellant filed his notice of appeal in Calgary on February 27, 2012. [ 39 ] Based on these actions, it would appear that he fully intended to pursue his Civil Claim and he may not have been aware of the December 20, 2012 hearing date.

The Administrator ’ s letter of January 9, 2012 would not have dispelled any belief he might have held that he still had an opportunity to apply to transfer his claim to Calgary as he renewed his request in his letter of January 20, 2012 to the Provincial Court administrator. [ 40 ] I am of the view that despite there being evidence of laxity in the Appellant ’ s approach to the proceedings in the Court below, the interests of justice require that he be given an opportunity to fully respond to the application for

summary dismissal. There is no apparent prejudice to AUPE that could not be compensated by an award of costs. [ 41 ] Counsel for AUPE takes the position that to hear the application for

summary dismissal again is a waste of the Court and parties ’ time as there is nothing left to litigate on the Civil Claim, the University having offered to fully address all grievances except the non-arbitrable “ harassment ” grievance. [ 42 ] The learned Provincial Court judge found that the Civil Claim in essence disclosed allegations of deceit and of a breach of the union ’ s duty of fair representation. With respect to the deceit allegation, the learned Provincial Court judge stated at para. 31: “ There is nothing in the Rigutto Affidavit to indicate that the Defendant lied when it advised Mrs.

Savoie that it was going to take her grievances to arbitration. Further there is nothing in the Rigutto Affidavit to indicate that the Defendant was reckless in advising Mrs. Savoie that her grievances would be taken to arbitration.... ” As for the claim based on a breach of the duty of fair representation, the learned

Provincial Court judge concluded, at para. 42, that “ ... the Defendant actively proceeded to both try to resolve the grievances and prepare the grievances for arbitration.... ” She went on to state in the same paragraph: “ There is nothing in any of the dealings between the parties as set out in the Rigutto Affidavit to indicate that those dealings were anything but cordial and professional. ” [ 43 ] At para. 43, the learned Provincial Court judge stated: “ ...there is no evidence to suggest that the discretion of the Defendant....was exercised in any way other than “ in good faith, objectively and honestly, after a thorough study of the grievance and the case....[t]here is no evidence to suggest that the Defendant ’ s decision not to proceed with arbitration was “ arbitrary, capricious, discriminatory or wrongful. ” She concluded: “ ...on the basis of the evidence before me, there is no merit to the Plaintiff ’ s Claim that the Defendant breached its duty of fair representation.... ” [ 44 ] It is clear that the conclusions drawn by the learned Provincial Court judge as to the lack of merit of either of the claims of the Appellant were based solely on the Rigutto Affidavit.

Having briefly heard from the Appellant and reviewed the 33 documents tendered on the appeal (many of which are already part of the record from the Court below), it would appear that evidence of discussions relating to these documents between the Appellant and/or Mrs. Savoie and employees of AUPE would likely have been placed by the Appellant before the Provincial Court in defending a

summary dismissal application. How such discussions between the parties might have affected a decision to grant

summary dismissal is difficult to gauge without the evidence being formally tendered and the opportunity provided to AUPE to respond to it. [ 45 ] Although not raised by either party on the appeal, it is clear from s. 41(2)(

d) of the Act that where a plaintiff fails to appear on the date set for a hearing in respect of a claim, the Provincial Court may dismiss the plaintiff ’ s claim. Pursuant to s. 42(1)(b), the Provincial Court may, on any terms it considers proper, set aside or vary the dismissal of a claim under s. 41. Accordingly, the first ground of this appeal could have been addressed through a setting aside application in Provincial Court. However, it would not promote expeditious proceedings to return the matter to Provincial Court to hear a setting aside application. It is noted that this Court is empowered at the request of a party to treat an appeal as a trial de novo pursuant to s. 51 of the Act .

Section 53.3(1.1) provides that the Court of Queen ’ s Bench may not refer a matter back to the Provincial Court for the purposes of conducting a new trial except in very limited circumstances that do not apply here. Clearly, these provisions reflect a legislative intent to streamline Provincial Court Act civil proceedings and appeals. [ 46 ] I also note new Rule 1.2 (1), which states: Purpose and intention of these rules 1.2(1) The purpose of these rules is to provide a means by which claims can be fairly and justly resolved in or by a court process in a timely and cost- effective way. S.1.2(2) of the Rules goes on to state:

(2) In particular, these rules are intended to be used (a) .... (

b) to facilitate the quickest means of resolving a claim at the least expense [ 47 ] Rule 1.4(1) authorizes the Court, subject to any specific provision of the rules, to make any order with respect to practice or procedure, or both, in a proceeding before the Court in order to implement and advance the purpose and intention of the new rules. I am of the view that to return this matter to Provincial Court for a continuation of the

summary dismissal application would be contrary to the intent of both the Act and the new Rules.

[ 48 ] Accordingly, I direct that the appeal be continued before me as an application de novo for

summary dismissal by AUPE. Should the application succeed, the Provincial Court proceedings will be at an end. Should the application fail, or should counsel for AUPE elect, for any reason, not to proceed with the application de novo , the matter will be returned to Provincial Court for a trial in the usual course, no trial having yet taken place. [ 49 ] The following additional directions are given to facilitate the orderly conduct of the application de novo : 1. The Appellant shall file in this Court and serve on counsel for AUPE his Affidavit in response to the Affidavit of Mr.

Rigutto no later than October 19, 2012 . The Affidavit shall attach as Exhibits all documents relevant to this appeal that he intends to rely upon, including those of the 33 documents he filed in this appeal he intends to rely on that are not already part of the court record and are relevant to this appeal and not to the judicial review application filed by him from a decision of the ALRB. 2. The Appellant shall not be permitted to rely on any evidence not forming part of or attached to his Affidavit. Should the Appellant wish to tender evidence of verbal exchanges, emails or correspondence between Mrs.

Savoie and AUPE, an Affidavit sworn by her will be required in relation to any such exchanges. Such Affidavit shall be filed in this Court and served upon counsel for AUPE no later than October 19, 2012 . 3. Any rebuttal Affidavit shall be filed and served by counsel for AUPE on the Appellant by November 9, 2012. 4. Should the Appellant or counsel for AUPE wish to conduct questioning on Affidavit, including the Rigutto Affidavit already filed, the questioning shall be completed by no later than November 23, 2012 . Any questioning on Affidavit shall be conducted at the offices of counsel for AUPE.

Conduct money for the attendance of any affiant who resides outside of the City of Edmonton shall be provided no later than one week prior to the questioning of the affiant in an amount equal to the amount of conduct money provided for questioning in proceedings in Court of Queen ’ s Bench. 5. Any undertakings provided at questioning shall be complied with by December 7, 2012. 6. The deadlines directed are firm and neither party shall be entitled to rely on evidence that has not been filed in compliance with these deadlines.

However, either of the parties shall be permitted to apply to me by letter with a copy to the other party for an extension of these deadlines based on reasonable grounds, provided that such application is made prior to the expiry of the deadline sought to be extended. 7. A date for a one-day application de novo shall be selected by the Appellant and counsel for AUPE no later than October 5, 2012 (the October 5 date not being the hearing but to select the hearing date).

The hearing shall be set for no earlier than seven days after the procedural steps set out in directions 1 through 5 above have been completed or, if no questioning is requested by either party, for no earlier than November 23, 2012 . 8. Either party shall be entitled to apply by letter to me by October 12, 2012 to set the date for the continuation of the appeal if a hearing date has not been agreed upon by October 7, 2012. 9. As I am seized with the application de novo , the Appellant shall not be entitled to apply for a transfer of the proceedings in Provincial Court pending the conclusion of the appeal.

10. Service of all documents and any notification shall be by fax to counsel for the AUPE at (780) 424-7768 and by fax to the Appellant at (403) 241-[...]. Each shall advise the other within 48 hours of any change in their fax number. A copy of any letter to the Court requesting an extension of a deadline or that the matter be set for hearing shall be provided by fax to the other party and, in the case of AUPE, to counsel for AUPE. [ 50 ] I would ask counsel for AUPE to prepare an order reflecting these terms.

The approval of the Appellant to the form of order is waived and the Clerk of the Court may sign the order as provided for by Rule 9.4(2)(c). [ 51 ] Thrown away costs and the costs of the September 14, 2012 hearing may be spoken to at the conclusion of this appeal. Heard on the 14 th day of September, 2012. Dated at the City of Edmonton, Alberta this 21 st , day of September, 2012. M.T. Moreau J.C.Q.B.A. Appearances: Richard John Savoie on his own behalf Simon Renouf, Q.C. for the Respondent Alberta Union of Provincial Employees