Komant v Enbridge Pipelines (Woodland) Inc, 2016 ABQB 631

Court of Queen’s Bench of Alberta Citation: Komant v Enbridge Pipelines (Woodland) Inc, 2016 ABQB 631 Date: 20161110 Docket: 1603 05473 Registry: Edmonton Between: Albert A. Komant Respondent - and - Enbridge Pipelines (Woodland) Inc Applicant _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice John J. Gill _______________________________________________________ Introduction [ 1 ] Enbridge Pipelines (woodland) INC. (the Applicant) applies to strike the Notice of Appeal of a Surface Rights Board Decision (the Decision) filed by Albert A. Komant (the Respondent). Background

[ 2 ] The background facts are not in dispute. [ 3 ] The parties participated in a hearing before the Surface Rights Board (the Board) on August 31 and September 1, 2015 to determine the appropriate compensation to be awarded to the Respondent from a Right of Entry Order obtained by the Applicant. In the Decision the Board awarded compensation to the Respondent. [ 4 ] The Respondent appealed the Decision by filing the Notice of Appeal with the Court of Queen’s Bench on March 24, 2016 and serving the Notice of Appeal on the Applicant on March 29, 2016. [ 5 ] The Respondent did not serve the Notice of Appeal on the Board until April 5, 2016. Issues: [ 6 ] The issues on this application are: (

a) Was the Notice of Appeal served on the Board within in the time required by Section 26(3)(

b) of the Surface Rights Act (the Act) ; (

b) If the Notice of Appeal was not served in time, ought the appeal be struck. Positions of the Parties The Applicant [ 7 ] Section. 26(3)(

b) of the Act requires that the party appealing a decision made under the Act shall “not later than 10 days after the filing of the notice of appeal, serve the Board with a copy of the notice of appeal”. [ 8 ] The Applicant submits that the Notice of Appeal was served late on the Board and that the Act does not give the Board or the Court the authority to extend or waive the ten day time frame for service [ 9 ] The

Interpretation Act governs the computation of time in Alberta enactments. Subsections 22(1), (3), (4) and (6) are applicable .The Applicant submits that in calculating the 10 days allowed for service one has to exclude March 24th (being the day the first event happened: the filing of the Notice of Appeal) and include April 3 rd , 2016 (being the day on which the 2 nd event happened: serving the Notice of Appeal on the Board). Since April 3rd, 2016 was a holiday (Sunday), the deadline is extended until the day following the holiday. This made the deadline for serving the Notice of Appeal April 4, 2016.

The Notice of Appeal was served on April 5, 2016. [ 10 ] As a result the Applicant submits that the Notice of Appeal must be stuck. An appeal of a compensation order from the Board is a statutory right. If an enactment provides a deadline for the filing and service of a pleading and that deadline has been missed, the Court is bound to strike the pleading unless there exists an express authority to extend the deadline. Here, there is no such authority.

The Respondent [ 11 ] The Respondent submits that the Notice of Appeal was served on the Board in time. [ 12 ] The Notice of Appeal filed by the Respondent was filed on March 24, 2016. March 25, 2016 was a holiday (Good Friday).The first day on which service could have been effected upon the Surface Rights Board was March 29, 2016 .The ten days commenced to run on Tuesday, March 29, 2016. [ 13 ] Alternatively, even if the ten day period for service of the Notice of Appeal commenced to run on March 25, 2016, the Respondent submits that the proper application of the

Interpretation Act made the last date for service of the Notice of Appeal, April 5, 2016. The Notice of Appeal was served in time. [ 14 ] Even if the service of the Notice of Appeal was not served within the time required by s. 26(3)(b), the Respondent submits that the appeal should not be struck. Service of a filed Notice of Appeal is not part of the process commencing the Appeal but rather part of the machinery of the appeal. The court has power to extend the time for service of the filed Notice of Appeal.

It is significant that the Board filed a certified record of the proceedings without objection and has not protested the late service of the Notice of Appeal. Legislation [ 15 ] The relevant legislation is as follows: Surface Rights Act Appeal of compensation order 26(1) the operator or any respondent named in a compensation order may appeal a compensation order made under this Act to the Court

of Queen’s Bench as to the amount of compensation payable or the person to whom the compensation is payable or both.

(3) The party appealing shall (

a) within 30 days after the date on which that party receives a copy of the compensation order, file a notice of appeal with the clerk of the Court at the judicial centre closest to the place where the land is situated, and (

b) not later than 10 days after the filing of the notice of appeal, serve the Board and the other parties to the compensation order appealed from or their respective solicitors with a copy of the notice of appeal with particulars of the filing endorsed on it. (emphasis added)

Interpretation Act Computation of time 22(1) If in an enactment the time limited for the doing of a thing expires or falls on a holiday, the thing may be done on the day next following that is not a holiday.

(2) If in an enactment the time limited for registration or filing of an instrument, or for the doing of anything, expires or falls on a day on which the office or place in which the instrument or thing is required to be registered, filed or done is not open during its regular hours of business, the instrument or thing may be registered, filed or done on the day next following on which the office or place is open.

(3) If an enactment contains a reference to a number of days expressed to be clear days or to “at least” or “not less than” a number of days between 2 events, in calculating the number of days, the days on which the events happen shall be excluded.

(4) If an enactment contains a reference to a number of days not expressed to be clear days or “at least” or “not less than” a number of days between 2 events, in calculating the number of days, the day on which the first event happens shall be excluded and the day on which the 2nd event happens shall be included .

(5) If in an enactment a time is expressed to begin or end at, on or with a specified day or to continue to or until a specified day, the time includes that day. (6 ) If in an enactment a time is expressed to begin after or to be from a specified day, the time does not include that day. (emphasis added). Analysis Issue: 1. Was the Notice of Appeal filed by the Respondent served on the Board within the time required by s. 26(3) (

b) of the Act ? [ 16 ] This case requires an

interpretation of the wording “not later than 10 days after the filing of the notice of appeal, serve the Board” in subsection 23(3)(

b) of the Act . [ 17 ] Both parties submit that the

Interpretation Act support their

interpretation. The

Interpretation Act does not specifically define the meaning of the words “not later than”. [ 18 ] Subsection 22(3) of the

Interpretation Act provides an

interpretation for the words “clear days”, “at least” or “not less than”. If those words are used, the days in which the events happened are excluded when calculating the number of days. Subsection 22(4) of the

Interpretation Act states that if none of the phrases mentioned in s. 22(3) are used, then the day on which the first event happened shall be excluded and the day on which the second event happened shall be included. If the second event falls on a holiday (as in this case), ss 22(1) applies to extend the deadline for service to the day next following that is not a holiday. [ 19 ] The Respondent submits that ss.23(3) applies and therefore April 5 th 2016(not April 4 th ) was the last day for service. [ 20 ] The wording of ss. 22(3) and 22(4) of the

Interpretation Act is specific. If a phrase is not mentioned in ss. 22(3) then ss. 22(4) applies. The phrase “not later than” is not mentioned in subsection (3) therefore subsection (4) applies. [ 21 ] In my opinion this wording confirms the Applicant’s position that the last day for serving the Notice of Appeal was April 4, 2016; not April 5, 2016. [ 22 ] I note also that the phrase “not later than” suggest a more restricted time frame for an action to be taken. Whereas the phrases used in ss. 22(3) ( “clear days” “at least” or “not less than” ) suggest a more expanded time frame.

This also supports a conclusion that ss. 22(4) applies. [ 23 ] I therefore find the Notice of Appeal was not served on the Board in the time required under ss. 23(3)(

b) of the Act. [ 24 ] I also find that the fact that several of the days following the filing of the Notice of Appeal were holidays (Easter) is

irrelevant. There is no reason why the 10 days cannot start to run on a holiday. 2. If the Notice of Appeal was not served on the Board on time, ought the Appeal be struck? [25] The Respondent notes that there is no issue that the Notice of Appeal was filed in time and that many of the cases referred toby the Applicant addressing the issue of extending time involve the late filing of a notice of appeal. The Respondent suggests that thosecases do not apply, as this application involves missing a deadline for service of an appeal document after it has been filed.

TheRespondent submits that different principles can and should be applied. The late service of an appeal document is a procedural, notsubstantive, deficiency and the Court has a general power to fix it by extending the time for service. [26] In support the Respondent refers to the Court of Appeal case of K.C. v College of Physical Therapists of Alberta 1998 ABCA213 where a Notice of Appeal was filed within the prescribed time but due to mistake by the lawyer it was not served in time. TheApplicant applied to extend time for service.

In that case the legislation specifically provided that the Rules of Court governed theAppeal. The Court of Appeal decided that the right of Appeal was absolute but the time limits were procedural and that the Rules ofCourt could apply to extensions in the appropriate circumstances. [27] The Respondent also refers to the Alberta Court of Appeal case Tymchuk v Edmonton (Subdivision and DevelopmentAppeal Board) 2012 ABCA 22. In that case the application for leave to appeal was filed within the prescribed time but was not served onuntil after the time prescribed under the Municipal Government Act.

As a result the Court found that it had no power to relieve againstlate service. That case involved an application for leave to appeal. The Court speculated (para. 47) that if it was a situation where therewas an appeal as of right there might be different considerations and that it might be easier to say that service was mere machineryduring a court procedure and not part of (or even before ) the commencement of the appeal. [28] Neither of these cases assist the Respondent. In fact the analysis in the Tymchuk case supports the Applicant’s position .

TheAlberta Court of Appeal held that because ss. 688(2) of the Municipal Government Act requires service of the application for leavewithin 30 days and the Act contains no provisions permitting an extension of this deadline or incorporating the Rules of Court or otherCourt of Appeal provisions to the leave to appeal stage, the Court had no power to waive the time limit for service and struck theapplication. [29] An appeal of the compensation order is a statutory right. As noted by the Applicant without

section 26 of the Act no party to acompensation order would have a right of appeal and any right of appeal is constrained by the conditions and procedures set out in thestatue. The Courts do not have the right to overrule these conditions or procedures unless they are expressly given that authority. See:Peavine Metis Settlement v. Whitehead, 2015 ABCA 366, at para 39; Houg Alberta Ltd. v. 417034 Alberta Ltd., 1991 ABCA 178 atpara 27; Sommers v.

Red Deer (County No. 23) Subdivision and Development Appeal Board, 2000 ABCA 225 at para 6; [30] Although the Court was dealing with different legislation, the circumstances in Northern Sunrise (County) v.

De Meyer,2009 ABCA 205 were analogous to this case and the analysis at paras 7 and 11 is applicable: [7] Where legislation provides for a specific time period (such as 30 days) for launching an appeal to this Court, and where thatlegislation does not expressly or impliedly incorporate by reference the Rules of Court AR 390/68 and their curative provisionsregarding extending time to appeal, this Court lacks jurisdiction to extend that time period if the limitation is clearly a ‘statutoryprescription’: Lakevold v. Dome Petroleum (1979), 1979 ABCA 261 , 181 A.R. 254, [1979] A.J.

No. 50 (QL) at paras. 4 - 5(referring to law dating from 1929); Yorkshire Trust Co. v. Mallett (1986), 1986 ABCA 97 , 71 A.R. 23, [1986] A.J. No. 308(QL); Bahcheli v. Alberta Securities Comm. (2007), 409 A.R. 388, [2007] A.J.

No. 520 (QL), 2007 ABCA 166 at paras. 64 - 78. [11] Reading ss. 688(2) and (5) of the MGA in their grammatical and ordinary sense and in context, it is apparent that theLegislature mandated that the application for leave to appeal must be “filed” and “served” within 30 days. [31] In this case it is apparent that the Legislature mandated that the Notice of Appeal must be served on the Board not later than10 days after the filing. This was not done. Service was late. The Act does not give the Board or the Court the authority to extend orwaive the service requirement.

This Court has no authority to grant the Respondent any extension or other relief. Decision [32] The application is granted and the Notice of Appeal is struck. Heard on the 9th day of November, 2016. Dated at the City of Edmonton, Alberta the 10th day of November, 2016.

Justice John J. Gill J.C.Q.B.A. Appearances: Murray Engelking, Engelking Wood for the Respondent - Albert A Komant Andrea M. Simmonds, Dentons Canada LLP for the - Applicant Enbridge Pipelines (woodland) INC .