United Food & Commercial Workers' Union, Local 401 Applicant - v. -, 2013 ABQB 687

Court of Queen ’ s Bench of Alberta Citation: United Food & Commercial Workers’ Union, Local 401 v Canada Safeway Limited, 2013 ABQB 687 Date: 20131120 Docket: 1201 16318 Registry: Calgary Between: United Food & Commercial Workers' Union, Local 401 Applicant - and - Canada Safeway Limited Respondent _ ________________________________________ ______________ Reasons for Judgment of the Honourable Mr. Justice J.T. McCarthy _________________________________________ ______________ I. Background [ 1 ] This is an application for judicial review of a decision (the “Decision”) of a labour arbitrator (the “Arbitrator”).

As will be discussed further below, only that portion of the Decision pertaining to remedy is under review. [ 2 ] The facts of this matter, in brief, are these. The grievor (“DM”) was employed by the Respondent, Canada Safeway Limited (“Safeway”). In conjunction with a transfer to a different store in October 2008, DM was placed in a leadership role and very soon experienced significant conflict with her co-workers. Various parties gave evidence at the hearing before the Arbitrator and their evidence is set out in detail in the Decision.

For purposes of this judgment, it will be sufficient to state that the Arbitrator found that some, though not all, of the incidents described in the testimony constituted harassment of DM by her co-workers.

The Arbitrator also concluded that these incidents were stressful, that the workplace stress spilled over into DM’s home life and that the stress resulted in unpleasant physical symptoms such as stomach cramps and vomiting at work. [ 3 ] Further, the Arbitrator found that Safeway was aware, at the very least, that there was a serious conflict in the workplace and that the slow response of Safeway’s management to the situation was part of the reason that the employees engaged in “self-help”.

The Arbitrator found that, by not acting sooner, Safeway had failed to ensure DM’s health and safety as required under s. 2(1) of the Occupational Health and Safety Act , RSA 2000, c O-2 (the “ OHSA ”). It is undisputed that the OHSA is incorporated into the collective agreement (the “Collective Agreement”) between Safeway and the United Food & Commercial Workers Union, Local 401 (the “Union”). Accordingly, the Arbitrator found that there had been a breach of the Collective Agreement. [ 4 ] However, the Arbitrator also made certain findings that were not favourable to DM.

DM was diagnosed with depression before, during and after the period October 2008 to November 2009 and claimed that this depression was a result of the workplace

harassment. The Arbitrator stated at p. 67 of the Decision, “...I am unprepared to find a causal link between [DM’s] depression and harassment. Causation requires stronger evidence than was provided in the current case.” The Arbitrator then reviewed the evidence of DM’s psychological expert before concluding at p. 69 that “...the Union has failed to establish, on a balance of probabilities that [DM’s] depression was caused by her experiences at Store 2.” [ 5 ] Further, the Arbitrator found that some of the blame for the situation fell on DM herself.

He made these comments at p. 76: While [Safeway] could and should have done more to protect [DM], she was largely the author of her own fate. She handled her leadership responsibilities poorly, she turned disagreements into confrontations, she deflected blame, and she made gratuitously insulting remarks about others. She was not honest at the arbitration hearing.

As noted in ITT Canon “it is difficult to conceive of a more frustrating situation for a supervisor and a human resources manager to cope with than an individual employee who has at least a negative personality problem or a deliberate penchant to create problems with other employees” (paragraph 31). [ 6 ] In the grievance, the following remedies were sought: (

a) a declaration that Safeway violated the Collective Agreement and the OHSA by failing to provide the employee with a healthy and safe work environment to which she is entitled; (

b) a written apology for the violation; (c) $5000 compensation for the violation; (

d) the establishment, in conjunction with the Union, of a comprehensive policy to address future issues of workplace bullying and harassment; and (

e) any other remedy necessary to make the Union and the affected employee whole in all respects. [ 7 ] The Arbitrator granted the declaration that Safeway had violated the OHSA and the Collective Agreement, but indicated that he was limiting the remedy to that declaration. In doing so, he made these comments: ...[DM’s] most powerful argument for damages was that the harassment at Store 2 caused her subsequent clinical depression. For reasons that I have already provided, the evidence is insufficient to establish the causal link proposed by the Union. ...

Had [DM] come to the arbitration with clean hands, her argument for both an apology and monetary damages would have been much stronger. She is far from an innocent victim and it would be inequitable to reward her for her own poor behaviour. The other remedy sought by Union was an order that [Safeway] work with the Union to develop policies to help prevent workplace harassment and bullying. To state the obvious, workplace bullying and harassment, and dysfunctional conflict, whether harassment or not, are in no one’s interests.

Policies and practices that can help promote healthy work environments are always a good thing. Without commenting on the extent of my authority to issue an order requiring the creation of a harassment policy, I merely note that there was very little evidence on the company’s current policies in this regard. Without such evidence, and more comprehensive submissions on this particular remedy, I decline to issue an order for the parties to create a policy that may or may not already be in place. Furthermore, the problem in the current case was not one of policy, it was one of response, or lack of a timely one. II.

Standard of Review [ 8 ] It is common ground that the standard of review for the Decision is reasonableness. As I noted in my decision in Telus v TWU , 2013 ABQB 355 at para 16 , “It is well-established that, except in certain circumstances, such as human rights disputes, labour arbitrators are entitled to considerable deference.” In addition, Safeway cited AUPE v Lethbridge Community College , 2004 SCC 28 , 1 SCR 727 and Nor-Man Regional Health Authority Inc v Manitoba Association of Health Care Professionals , 2011 SCC 59 , 3 SCR 616.

In the latter case, the Supreme Court of Canada made these comments at para. 42 in respect of remedies awarded by labour arbitrators: As a starting point, it is well established that, as a general rule, reasonableness is the standard of review governing arbitral awards under a collective agreement: “This Court has often recognized the relative expertise of labour arbitrators in the

interpretation of collective agreements, and counselled that the review of their decisions should be approached with deference” ( Dunsmuir , at para. 68). [ 9 ] As to the meaning of the reasonableness standard, Safeway points to the oft-quoted passage from Dunsmuir v New Brunswick , 2008 SCC 9 , 1 SCR 190 at para 47 : Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result.

Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 10 ] In its brief, Safeway asserts that the Decision as to remedy is entitled to deference on a variety of grounds: The Arbitrator was operating in an area where there was no one correct answer. He instead had a range of reasonable remedial options open to him. The Arbitrator was also in the best position to assess the witnesses’ credibility and to weigh the evidence when he

fashioned his remedial response. Finally, and perhaps most importantly, the Arbitrator had the required labour relations expertise togauge the impact that various remedies would have on the parties and their collective bargaining relationship. [11] While acknowledging that reasonableness is the appropriate standard, the Union argues that certain criteria must beconsidered in determining whether the remedy awarded by a labour arbitrator is reasonable.

It points to Royal Oak Mines Inc v Canada(Labour Relations Board) (SCC), [1996], 1 SCR 369 at para 68: There are four situations in which a remedial order will be considered patently unreasonable: (1) where the remedy is punitive in nature;(2) where the remedy granted infringes the Canadian Charter of Rights and Freedoms; (3) where there is no rational connection betweenthe breach, its consequences, and the remedy; and (4) where the remedy contradicts the objects and purposes of the Code. [12] While Royal Oak predates the Supreme Court of Canada’s re-articulation in Dunsmuir of the standards of review, the Unionasserts that the Royal Oak criteria have been adopted in decisions of our Court of Appeal subsequent to Dunsmuir. [13] In Gateway Casinos GP Inc (cob Palace Casino) v United Food and Commercial Workers, Local 401, 2009 ABCA 114, 457AR 30, the Court of Appeal considered whether a labour arbitrator’s decision was punitive and whether it was rationally connected to thebreach of the collective agreement.

Thus, in the Union’s submission, the first and third Royal Oak criteria must form part of the analysis. [14] In Visconti v College of Physicians and Surgeons of Alberta, 2010 ABCA 250, 482 AR 244, the Court of Appeal held that thepenalty imposed by a tribunal was unreasonable in that it took into account alleged misconduct beyond that for which the physician hadbeen charged and convicted. The Court of Appeal made these comments at paras. 26-28: The fashioning of a penalty must reflect the proper application of principles, including a reflection of “what has actually happened”: seeJaswal v.

Newfoundland Medical Board (1996), (NL SC), 138 Nfld. & P.E.I.R. 181 at para. 35, [1996] N.J. No. 50(Nfld. S.C. (T.D.)) [Jaswal]. In Jaswal, Green, J. (as he then was) set out a list of 13 such principles at para. 35, including: the impact ofthe incident on the offended patient; the degree to which the offensive conduct that was found to have occurred was clearly regarded, byconsensus, as being the type of conduct that would fall outside the range of permitted conduct; and the range of sentence in similar cases.

In other words, the sentence must fit the crime, rather than include redress for unindicted misconduct. The penalties imposed by the Council fall afoul of these considerations and are therefore unreasonable. They must be refashioned toaddress only the misconduct of which Dr.

Visconti was convicted, which does not include the size of his standard dose of ventolin. [15] The Union argues that this case stands for the proposition that the remedy is to focus on the violation. [16] The Union also cited the Court of Appeal’s decision in Bruse v Calgary School District No 19, 2011 ABCA 196, 510 AR 125,in which the Court found at para. 39 that there was “no rational basis” for the remedy ordered by the board of reference. III.

The Union’s Argument [17] The crux of the Union’s argument is that there must be a rational connection between the facts found in respect of theviolation and the remedy ordered. The Union’s position is that the “remedial authority of the arbitrator is aimed at correcting theviolation of the Collective Agreement” and that the Arbitrator erred in taking DM’s conduct into account in deciding the remedy.

TheUnion asserts that, having found that DM was harassed, that she suffered stress as a result and that Safeway’s failure to respond in atimely fashion constituted a breach of the Collective Agreement, it was irrational for the Arbitrator to decline to order compensation andan apology. [18] The Union argues that the purpose of damages is to compensate for the employer’s contribution to the harm done to theemployee.

It cites Re Ontario (Ministry of Community Safety and Correctional Services) and Ontario Public Service Employees Union (Tardiel et al.) (2010), 202 LAC (4th) 241 at para. 137 for the proposition that the functional justification for damages is compensation,vindication and deterrence.

It asserts that by declining to award an apology or any monetary damages, the Arbitrator failed to addressthese justifying principles. [19] In its brief, the Union summarizes its arguments in support of its position that the remedial decision is unreasonable asfollows: - The response of an arbitrator to a violation is to be remedial and a remedial order is to be rationally connected to the breach. Thedecision of no compensation and no apology did not look at the employer’s violation, but instead looked at the conduct of the grievor.

Assuch, the decision was not rationally connected to the breach. - The determination of the amount of damages is subject to an analysis that such an award is not to trivialize the violation. An awardof no damages is so totally disconnected from the violation that it trivializes the violation and cannot be rationally connected to thebreach. - Damages address vindication and again, an award of no damages provides no vindication.

As such, there is no rational connection. - To the extent the damages are to be a deterrent, the failure to provide for any damages or an apology, again fails to provide aremedial directive. - Mental distress is deserving of damages on the basis that it is the result of an obligation under the Collective Agreement that is theequivalent to a “peace of mind” obligation. A violation of such a clause normally invites an award of damages.

IV. Safeway’s Argument [20] Safeway, of course, takes the position that the Decision was reasonable. It notes that damages are not awarded automaticallyin every case where there is a violation of a collective agreement that causes an employee mental distress. As an example, it points to Re Toronto (City) and CUPE, Local 79 (2002), (ON LA), 110 LAC (4th) 129, in which the arbitrator made thesecomments: In the normal course violations of the provisions of a collective agreement do not result in an order of damages for pain and sufferingpayable to the grievors.

This includes circumstances in which an employer disciplines or discharges an employee and the discipline issubsequently found to be without just cause or the penalty too severe, as well as situations in which it is determined that an employerviolated the provisions of a collective agreement by improperly laying off workers, or improperly filling a vacancy. In these and othercircumstances, the affected employee(

s) may suffer monetary damages, or may suffer mental distress and anguish as a result of theemployer’s actions, but in the normal course are not entitled to damages from their employer other than reimbursement for lost wagesand perhaps interest thereon. [21] Moreover, Safeway argues that this is the case even where the violation in question also imports violation of a statute, citingthese comments in Re Lafarge Concrete and Teamsters Union, Local 213 (1995), 40 CLAS 32 at para 9: One cannot conclude in arbitral law that damages automatically flow in each circumstance where there is a finding of a duty toaccommodate.

Each case must be based on the particular facts and circumstances which form the basis of the decision and the particularremedies that flow from that decision. [22] Safeway asserts that ordering an apology is normally inappropriate in a labour relations context and cites the followingauthorities in support. [23] In Toronto v CUPE, the arbitrator declined to order an apology, stating as follows: In my view, to order an apology in the circumstances of this case, would be more punitive than compensatory. If a party wishes toapologize for their actions, they can always choose to do so.

An involuntary apology which is ordered by fiat of an arbitration board maybe perceived as lacking in sincerity. In this regard, I share the view of Professor Hunter as expressed in Audrey Styres v. Sam Paiken,(1982) (ON HRT), 3 C.H.R.R. D/926 at para. 8248 where he states: ... In any event, I regard an apology made under duress as an exercise in hypocrisy.

An apology voluntarily offered and sincerely meantis fine; a coerced apology cannot but be insincere and pointless. [24] Similarly, in Re School District No 36 and Surrey Teachers’ Assn (1999), 60 CLAS 280, the arbitrator made these commentsat paras 7-8: I turn to the request for an apology. An arbitrator has a broad power to provide remedial relief. That power is sufficiently broad toinclude the ordering of an apology. But it would only be in rare circumstances that such a power would be exercised.

Normally theordering of an apology is considered inappropriate in a labour relations context: see Re Stanley Works Ltd. and International Associationof Machinists (1979) (ON LA), 24 L.A.C. (2d) 395 (Hinnegan); Canada Post Corporation and Canadian Union ofPostal Workers, unreported, June 17, 1994 (Bird); and Re Canada Post and Canadian Union of Postal Workers (1983) (CA LA), 11 L.A.C. (3d) 13 (Norman).

Arbitrator Swinton expressed the view in Re CUPE and Office and ProfessionalEmployees’ International Union (1982) (ON LA), 4 L.A.C. (3d) 385 that such a remedy is not compensatory but has“the flavour of punitive action”. This is not a case where such an order is appropriate. There is no finding of bad faith on the part of the School Board. I have nojurisdiction to suggest or direct an apology from the student’s parents. For these reasons, I am not prepared to direct that the SchoolBoard apologize to Mr.

Chamberlain. [25] Finally, in Re CUPE and Office and Professional Employees’ International Union (1982) (ON LA), 4L.A.C. (3d) 385, one of the cases referred to in the above quote, the arbitrator discussed apologies as follows at para. 14: We agree with the reasons underlying these cases. From a grievor’s perspective, the concern is remedy. Traditionally, those remedieshave been compensatory in nature, based on contractual considerations, as Polymer indicates. They include reinstatement (a form ofspecific performance), damages, compliance orders and declaratory relief.

An order to the employer to discipline another employee,particularly one outside the bargaining unit, or to require him to apologize is not compensatory in nature. Rather, it has the flavour ofpunitive action demanded by the grievor. [26] Turning more specifically to this case, Safeway takes the position that the Decision not to order damages or an apology wasbased in large part on the Arbitrator’s conclusion that there was no causal link between the harassment and DM’s depression.

Safewayargues that this is a relevant and appropriate factor for the Arbitrator to consider in determining the remedy and that ignoring the injuryor lack thereof arising from a health and safety violation defies common sense. [27] Safeway also argues that it was reasonable for the Arbitrator to take DM’s conduct into account in arriving at the Decision onremedy. It cites a number of cases in which arbitrators have taken grievors’ conduct into account in their decisions. While I will notrecite the full list of cases Safeway provided, the following will serve as examples of the salient point.

In Re 20 Vic Management Inc andRetail, Wholesale Canada/CAW Division, Local 414 (2001), 66 CLAS 170, the arbitrator made these comments at para. 7: The Labour Relations Act confers broad discretion on an arbitrator to fashion the appropriate remedy. I believe, therefore, that it is openfor me to hold that Ashton, by virtue of conduct for which the Company issued no penalty, nonetheless may have disentitled himself

from receiving full, or even partial, compensation. It might be asserted that to deny Ashton compensation, in whole or in part, is tantamount to imposing a 7 month suspension without pay, which would them form part of his record. On this point, my view is that denying full or partial compensation is not be equivalent to the affirmative imposition of a suspension. Instead, as I have suggested, it would be an exercise of the arbitrator’s discretion to deny monetary recovery on equitable grounds. The appropriate analogy is to the plaintiff who seeks equitable relief in a civil suit.

In this connection, see Snell’s Principles of Equity , 30 th ed., 2000, at p. 31: This maxim [“he who comes into equity must come with clean hands”] is very similar to the previous maxim; but it differs from it in looking to the past rather than the future. The plaintiff not only must be prepared now to do what is right and fair, but also must show that his past record in the Transaction is clean; for “he who has committed iniquity ... shall not have Equity” ...

The maxim must not be taken too widely; “Equity does not demand that its suitors shall have led blameless lives.” What bars the claim is not a general depravity but one which has “an immediate and necessary relation to the equity sued for.” The clean hands maxim has been applied in the labour relations context by the Canada Labour Relations Board, where an order was refused where it was believed that it would be inequitable to issue it, in view of the improper conduct of the party applying for the order: see Hollingsworth v.

Canadian Union of Postal Workers (1998), 41 C.L.R.B.R. (2d) 161 . ... [ 28 ] The conduct of a party was also referred to by the British Columbia Labour Relations Board in Re Coulson Forest Products Ltd [1994] BCLRBD No 436: It is within the arbitrator’s jurisdiction to assess each parties [sic] conduct, reach findings of fact and apply those findings to its remedial authority. The Board will not review findings of fact nor will it second guess the discretionary authority of the agreed upon arbitrator that flows reasonably from the findings of fact.

The conduct of a party is often a factor in determining the remedy ordered by the arbitration board. I find no basis to conclude that the award is inconsistent with the principles expressed or implied in the Code. [ 29 ] Safeway counters the Union’s argument that the Arbitrator failed to address compensation, vindication and deterrence by asserting that the Decision as a whole makes clear that the Arbitrator concluded that these factors were outweighed by others, such as DM’s conduct and the absence of a causal link between the harassment and her depression.

Safeway refers to the Supreme Court of Canada’s decision in Newfoundland and Labrador Nurses’ Union v Newfoundland and Labrador (Treasury Board) , 2011 SCC 62 , 3 SCR 708 (“ Newfoundland Nurses ”), in which Abella J. made these comments at para. 12: It is important to emphasize the Court’s endorsement of Professor Dyzenhaus’s observation that the notion of deference to administrative tribunal decision-making requires “a respectful attention to the reasons offered or which could be offered in support of a decision”.

In his cited article, Professor Dyzenhaus explains how reasonableness applies to reasons as follows: “Reasonable” means here that the reasons do in fact or in principle support the conclusion reached. That is, even if the reasons in fact given do not seem wholly adequate to support the decision, the court must first seek to supplement them before it seeks to subvert them .

For if it is right that among the reasons for deference are the appointment of the tribunal and not the court as the front line adjudicator, the tribunal’s proximity to the dispute, its expertise, etc, then it is also the case that its decision should be presumed to be correct even if its reasons are in some respects defective. [Emphasis in Newfoundland Nurses .] [ 30 ] Safeway then asserts that it is a “relatively simple exercise to supplement the [Arbitrator’s] reasons by inferring that he considered the need for compensation, vindication and deterrence to be outweighed by other factors. [ 31 ] Safeway concludes its argument by stating that limiting the remedy to a declaration is within the range of possible, acceptable remedial outcomes as contemplated by Dunsmuir .

V. Analysis and Conclusion [ 32 ] For the reasons that follow, I conclude that the remedial portion of the Decision was reasonable and I decline to interfere with it. [ 33 ] First, I reject the Union’s arguments that the Decision is not rationally connected to Safeway’s breach of the OHSA and the Collective Agreement and that the refusal to award damages or an apology trivializes that breach. A rational connection to the breach does not require the Arbitrator to take a one-sided view of the events in question or to focus on Safeway’s conduct to the exclusion of the other relevant facts.

It was entirely reasonable for the Arbitrator to fashion the appropriate remedy by taking into account the totality of the circumstances. Moreover, the Arbitrator’s determination that neither damages nor an apology was warranted does not, in my view, trivialize the violation but simply considers it in context. [ 34 ] I also reject the argument that the Decision fails to take account of the principles of compensation, vindication and deterrence, though my analysis on this point differs slightly from Safeway’s.

I do not view the Decision as indicating that other factors outweighed these principles; rather, I find that the Decision appropriately addresses the principles. [ 35 ] To begin with, I disagree with the Union’s assertion in its brief that “none of the requested remedies were provided”. This is inaccurate. The Union requested and the Arbitrator granted a declaration that Safeway had breached the OHSA and the Collective Agreement. That declaration was neither nothing nor a mere prelude to more extensive relief.

In assessing the extent to which the Decision takes account of the principles enumerated by the Union, the declaration must form part of the analysis. [ 36 ] I agree with the authorities provided by Safeway that damages are not a necessary part of every arbitral award. The Union’s argument is that the purpose of damages is to compensate for the employer’s

part in the harm done to the employee. In these circumstances, where the Arbitrator found as a fact that there was no causal link between DM’s depression and the harassment, it is not unreasonable to conclude that DM could be adequately compensated by the declaration without the addition of monetary damages.

[ 37 ] With respect to vindication, I note that Black’s Law Dictionary defines “vindicate” as “To clear of suspicion, blame or doubt.” Similarly, Webster’s Third New International Dictionary defines “vindicate” as “to free from any question of error, dishonor, guilt or negligence; exonerate; absolve”. It seems to me that, in a case where the Arbitrator found fault by both DM and Safeway, this principle can be addressed by a modest remedial measure.

The declaration alone was a reasonable way of doing so. [ 38 ] Finally, I do not think it unreasonable for the Arbitrator to have declined to award damages as a deterrent. It is clear from the Decision that the Arbitrator considered Safeway’s conduct not so much egregious as dilatory. The declaration of wrongdoing on Safeway’s part was, in my view, a reasonable means of achieving a deterrent effect. [ 39 ] I am of the same view in respect of the Arbitrator’s refusal to order an apology.

While there may be situations in which such an order is appropriate, to order an apology as a matter of course for any breach would, in my view, create a meaningless pro forma exercise that does nothing to advance the principles upon which the Union relies. I find useful these comments quoted by the arbitrator in Toronto v CUPE : The purpose of the apology remains, not to publicly pillory the Union or Mr. Takala, but to afford Ms. James the courtesy of acknowledgement of the wrong done to her.

The situation calls for nothing less and nothing more than that. [ 40 ] Similarly, I find that the Arbitrator did not act unreasonably in concluding that this situation calls for nothing more than the declaration already given. [ 41 ] As noted above, the Union also requested an order that Safeway, in conjunction with the Union, establish a comprehensive policy to address future issues of workplace bullying and harassment. The Arbitrator declined to grant this order and made the comments quoted above about it. I find that the Arbitrator acted reasonably in respect of this request as well.

The Arbitrator clearly was alive to the importance of preventing workplace harassment and to the useful role that employer policies can play in prevention. It cannot be said that the Arbitrator did not consider the issue. Nevertheless, I find that his decision not to grant the order in the face of insufficient evidence was reasonable. [ 42 ] Finally, the Union argues that the Arbitrator erred in not providing reasons for not granting an alternative remedy. Again, I emphasize that the Arbitrator did grant a remedial order in the form of a declaration.

Further, while the Arbitrator did not expressly set out his reasons for not granting some form of relief other than that requested by the Union, I find that it is clear from the Decision that he fashioned the relief he felt was appropriate. In this regard, I am mindful of the comments quoted by the Supreme Court of Canada in Newfoundland Nurses and set forth above.

I find that the Decision as to remedy was reasonable and that the Arbitrator’s reasons for that remedy were adequate. [ 43 ] For all of the foregoing reasons, the application for judicial review of the Decision is dismissed. [ 44 ] If the parties are unable to agree on costs they may make an appointment to speak to same. Heard on the 16 th day of July, 2013. Dated at the City of Calgary, Alberta this 20 th day of November, 2013. J.T. McCarthy J.C.Q.B.A. Appearances: William J. Johnson, Q.C. McGown Johnson for the Applicant Damon S. Bailey McLennan Ross LLP

for the Respondent