Blanchette v. Vendetti, 2012 NUCJ 22

nunavuumi iqkaqtuijikkut NUNAVUT COURT OF JUSTICE La Cour de justice du Nunavut Citation: Blanchette v. Vendetti, 2012 NUCJ 22 Date of Judgment: 20121121 File Number: 08-12-008-CAP Registry: Iqaluit Appellant: Cecil Veneditti -and- Respondent: Martin Blanchette -and- Respondent Nunavut Human Rights Tribunal ________________________________________________________________________ Before: The Honourable Mr. Justice E. Johnson Counsel (Appellant): Jack Braithwaite Counsel (Respondent 1): Unrepresented Counsel (Respondent 2): Reema Khawja Location Heard: Iqaluit, Nunavut Date Heard: October 9, 2012 Matters: Nunavut Human Rights Act, S. Nu. 2003, c.12, s. 38 REASONS FOR JUDGMENT

(NOTE: This document may have been edited for publication) I. INTRODUCTION [ 1 ] On August 30, 2012, the Clerk of the Court accepted and filed a Notice of Appeal received from the appellant. He appealed the September 20, 2011, decision of Adjudicator Alan Weeks (the Decision) acting under the Human Rights Act, S.

Nu. 2003, c.12 (Act). [ 2 ] On September 18, 2012, the respondent Martin Blanchette (Blanchette) wrote a letter to this Court requesting that the Notice of Appeal be dismissed because it was filed more than one year from the date the decision was rendered. [ 3 ] On September 21, 2012, Reema Khajwja (Khajwa), counsel for the respondent the Nunavut Human Rights Tribunal (Tribunal), wrote a letter to Deborah Mercer, Civil Registrar of this Court requesting that this Court quash the Notice of Appeal. [ 4 ] I instructed the Clerk to tell counsel for the Tribunal to set down a motion on October 9, 2012. [ 5 ] Both Counsel for the appellant and the Tribunal filed special chambers briefs and affidavits and made oral arguments on the hearing date.

Blanchette represented himself. Judgment was reserved. II. ISSUES [ 6 ] Does this Court have the discretion to extend the time for filing a Notice of Appeal under

section 38 of the Act? [ 7 ] If this Court has the discretion to extend the time to file the Notice of Appeal, should it exercise its discretion in favour of the appellant? A. Does this Court have the discretion to extend the time for filing a Notice of Appeal under

section 38 of the Act? (i). Tribunal’s argument [ 8 ] The Tribunal argues that the time for filing an appeal expired on October 20, 2011. [ 9 ]

Section 38 of the Act authorizes any party to file a Notice of Appeal with the Nunavut Court of Justice within 30 days after being served with a copy of a decision of the Tribunal. [ 10 ] On September 20, 2011, the Tribunal issued the Decision that is the subject of the Notice of Appeal and it was served on the appellant on that date. To comply with

section 38 of the Act, the appellant had to file the Notice of Appeal by October 20, 2011. However, the appellant only filed the Notice of Appeal on August 30, 2012, close to one year after being served with the Decision. [ 11 ] The Tribunal argues that the Act does not provide for an extension of the deadline in any circumstances. As held in Lacourciere v Starkman, 2011 HRTO 1921 , [2011] OHRTD No 1918 , the Legislature’s choice not to include a provision to extend the deadline reflects well-established principles that promote efficiency in legal proceedings and finality in decision-making.

[12] Counsel for the Tribunal notes that in Anawak v Nunavut (Chief Electoral Officer), 2008 NUCJ 24, [2008] NuJ No 25 [Anawak],this Court noted the widely recognized view that a court cannot extend times fixed by statute by adopting the words of De Weerdt J. inTuktoyaktuk Enterprises Ltd. (Receivers of) v Northwest Territories (Labour Standards Board), (NWT SC), [1987]NWTR 268, [1987] NWTJ No 87 (SC) [Tuktoyaktuk], at 269-270. [13] De Weerdt J. relied on the following cases: (

a) Fredericks v R (1979), 11 CPC 120, 3 WCB 169 (Ct Martial App Ct) [Fredericks]; (

b) B.P. Exploration Can. Ltd. v Hagerman, (AB KB), [1978] AJ No 573, 6 Alta LR (2d) 100 (Dist Ct) [B.P.Exploration]; (

c) Jordan v Sask. Securities Comm. (1968), (SK CA), 64 WWR 121 (Sask CA); (

d) Re Milstein and Ont. College of Pharmacy (1976), (ON SC), 13 OR (2d) 700, 72 DLR (3d) 202 (Div Ct); (

e) Re Chamandy and Nat. Trust Co., [1934] OJ No 42, [1934] OWN 151 (CA); (

f) Shaunavon Butchers Ltd. v Burness, (SK CA), 24 Sask LR 399, [1930] 1 WWR 760, [1930] 3 DLR 656 (CA); (

g) Re MacDonald’s Estate, (SK CA), 23 Sask LR 237, [1929] 1 WWR 193 at 195, [1929] 2 DLR 265 (sub nom.MacDonald v MacDonald) (CA); (

h) Stringer v Nyman, (ON CA), [1956] OWN 182, 1 DLR (2d) 474 (CA). [14] The Tribunal relies on my comment in paragraph 18 of Anawak that the only exception to the general rule is where there is somestep needed to perfect the Notice of Appeal. Where the court is able to characterize the step as procedural rather than substantive it canexercise its discretion to extend the time limit. [15] Counsel for the Tribunal distinguished

section 38 of the Act from the appeal provision of the Nunavut Elections Act, S. Nu. 2002,c. 17 [Elections Act] considered in Anawak. She argues that there is no ambiguity in

section 38 that would suggest that the 30-daydeadline is a procedural step. Rather, it is clear that under

section 38 the right of appeal is conditional on filing the appeal within the 30-day time limit. The time limit is therefore a substantive and not a procedural requirement. The facts of this case do not fall into theexception applied in Anawak. As held in Mallett v Yorkshire Trust Company, 1986 ABCA 97, 71 AR 23 [Mallett], without an explicitstatutory authority to relieve against a statutory deadline, a court does not have the power to extend the deadline. (ii). Appellant’s argument [16] The appellant argues the 30-day time limit in

section 38 can be extended under the authority granted by section 86(4) of theJudicature Act, S.N.W.T. 1998, c. 34 as duplicated for Nunavut by s. 29 of the Nunavut Act, S.C. 1993, c. 28 [Judicature Act]. [17] The use of the word “may” in

section 38 makes it directory and not absolute. This Court is not compelled by law to dismiss theNotice of Appeal.

Section 38 should be read as permissive as it reads “may” rather than “shall” in contrast with the mandatory andabsolute language of section 86(1) of the Judicature Act. [18] The appellant argues that the reference to the Nunavut Court of Justice in

section 38 also makes sections 84-91 of the JudicatureAct applicable in determining the authority of this Court to extend the time line set out in

section 38. [19] Section 86(1) of the Judicature Act states that a Notice of Appeal “shall” be filed in the Nunavut Court of Justice within 30 daysafter the judgment, order, or decision appealed against was signed, entered and served. [20] Section 86(4) of the Judicature Act authorizes a judge to extend the time for the filing and serving of the Notice of Appeal eitherbefore or after the expiration of the 30-day time limit.

[21] Since the Judicature Act is the governing legislation with respect to appeals to the Nunavut Court of Justice, the rules of procedureset out in sections 84-91 apply to this appeal.

Section 38 of the Act simply reaffirms and incorporates, by reference, the general rules ofappeal set out in those sections. [22] In the alternative, the appellant argues that section 38(3) of the Act empowers this Court with the authority to extend the time to filethe Notice of Appeal. That

section states that after hearing an appeal, this Court may make “any other decision or order that the courtconsiders necessary”. These words are broad enough to include making an order extending the time for filing a Notice of Appeal. [23] In the further alternative, the time limit for filing the Notice of Appeal can be extended because there were procedural defects in theactions of the Tribunal that make the reasoning of Anawak applicable to this case. The procedural deficiency flows from the email letterfrom the Tribunal to the appellant dated September 20, 2011, that accompanied the Decision.

It states that, “The Tribunal has deemedthis matter closed”. The appellant argues that these words demonstrate that the Tribunal treated the matter as closed when it rendered itsdecision. In other words, the matter was treated as closed by the Tribunal even though the 30-day appeal period began to run. As a result,the procedure adopted by the Tribunal was materially deficient and the Notice of Appeal seeks to address the procedural errorscommitted by the Tribunal. [24] Anawak held that this Court can exercise its discretion to extend the time to file an appeal when faced with procedural deficiencies. (iii).

Analysis [25] As I held in Anawak, the general rule from the line of authorities discussed by De Weerdt J. in Tuktoyaktuk, is that a court cannotextend times fixed by statute without specific authority in the statute. Mallett is a more recent statement of the same principle. [26] In Anawak, I rejected the argument advanced by the respondent that this Court could not use the Nunavut Rules of Court [Rules] toextend a statutory time limit because

section 75.1(7) of the Elections Act in force at that time specifically referenced that the Rules wereapplicable unless stated to the contrary in the Act. It stated: Subject to this Act, the Rules of the Nunavut Court of Justice and the practice and procedure of the court apply to the application withsuch modifications as the circumstances require. [27] I was satisfied that the silence of the Elections Act coupled with the clear reference to the Nunavut Rules of Court was a sufficientindication of the intention of the legislature to leave a discretion with this Court to settle procedural matters.

In doing so, I was followingthe same approach taken by Conrad J. in Re Wolski, 1983 ABCA 198 , [1983] AJ No 142, 52 AR 390, of interpreting anambiguous provision as being procedural. [28] In the case at bar, there is no similar reference to the Nunavut Rules of Court. However,

section 83 of the Judicature Act clearlyrefers to a Tribunal “whose decision may, pursuant to an enactment be appealed to the Nunavut Court of Justice”. This would include therespondent Tribunal. [29] Section 86(1) of the Judicature Act mirrors

section 38 of the Act in requiring the Notice of Appeal to be filed within 30 days afterthe judgment, order, or decision appealed from was signed, entered and served. [30] However, unlike

section 38 of the Act, section 86(4) authorizes a judge to extend the time for the Notice of Appeal. [31] In Insurance Corporation of British Columbia v Heerspink, (SCC), [1982] SCJ No 65, [1982] 2 SCR 145, theSupreme Court of Canada recognized that in cases of inconsistency between human rights legislation and other types of legislation,human rights legislation prevails regardless of which was enacted first.

[32] Is there an inconsistency between

section 38 of the Act and section 86(4) of the Judicature Act? I am satisfied that there is noinconsistency because the Act is simply silent on whether the time limit can be extended. The Judicature Act is also

an act of generalapplication and these sections may have been added to address exactly this type of procedural problem that evolved from the case lawdiscussed above. [33] Therefore, I am satisfied that I have the jurisdiction to extend the time limit and move on to the second issue of whether I shouldextend the time. B. If this Court has the discretion to extend the time to file the Notice of Appeal, should it exercise its discretion in favour of theappellant? (i).

Law [34] Both counsel agree that the test set out in Cairns v Cairns, (AB CA), [1931] AJ No 76, [1931] 4 DLR 819[Cairns], should be applied to the facts in this case to determine whether this Court should extend the time for filing the appeal to August30, 2012, when the appellant filed the Notice of Appeal.

As noted by the Tribunal, this Court applied the Cairns test in Dimitrik vCambridge Bay (Minicipal Corporation of), 2009 NUCJ 17, [2009] NuJ No 18 [Dimitrik]. [35] I noted in Dimitrik, the Cairns test was applied more recently in Kerr v Robert Mathew Investments Ltd., 2008 ABCA 193, [2008]AJ No 551 [Kerr]. [36] The appellant argues that more recent cases have refined the Cairns test. In Maudlin v Cassels Brock & Blackwell LLP et al, 2011ONCA 67, [2011] OJ No 263 [Maudlin], the Ontario Court of Appeal confirmed that there were five elements to the Cairns test ratherthan the four elements in the traditional test.

The additional factor is “Does the ‘justice of the case’ require the granting of theextension?” [37] In Horne v Horne, 2010 ABCA 283, [2010] AJ No 1092 [Horne], the Alberta Court of Appeal held that it was not necessary for anappellant to satisfy all of the requirements of the Cairns/Maudlin test for a court to grant an extension of time to appeal.

The AlbertaCourt of Appeal further confirmed this approach in Johnston v Hader, 2010 ABCA 47, [2010] AJ No 133 [Hader]. [38] In RIC New Brunswick Inc. v Telecommunications Research Laboratories, 2010 ABCA 75, [2010] AJ No 253, the Alberta Courtof Appeal suggested that the Cairns factors must be weighed and balanced when making a determination of whether or not to grant anextension of time to file an appeal. [39] The Tribunal argued that it was highly debatable whether there were four or five factors.

However, it argued that it did not matterbecause the appellant did not meet any of the conditions to grant an extension. [40] In Maudlin, the appellant made an application to extend the time to perfect his appeal of the order of the chambers judge grantingpartial

summary judgment against him for $1,190,401.29. In granting leave, Weiler J.A. imposed strict terms that required the appellantto file a $950,000 irrevocable letter of credit. In her analysis of the application, Justice Weiler considered the factors that apply whendetermining whether to exercise discretion to extend the time for filing a Notice of Appeal. She stated: [5] Although this motion involves a request for leave to extend time to perfect an appeal, it is useful to consider the factors that applywhen determining whether to exercise discretion to extend the time for filing a notice of appeal.

Those factors are: * Has the appellant maintained a firm intention to appeal within the relevant time period? * Has the appellant provided a reasonable explanation for the delay in perfecting the appeal? * Is there prejudice to the respondent in granting the extension? * Is there is so little merit in the proposed appeal that the court could reasonably deny the appellant this important right?

* Does the "justice of the case" require the granting of an extension? [See Todd Archibald, Gordon Killeen & James C. Morton, Ontario Superior Court Practice 2011 (Toronto: LexisNexis Canada, 2010), atp.580; Rizzi v. Mavros (2007), 2007 ONCA 350 , 85 O.R. (3d) 401 (C.A.); and Kefeli v. Centennial College of Applied Artsand Technology, 23 C.P.C. (5th) 35 (Ont. C.A.), at para. 14.] [41] In Horne, Berger J. considered an application to extend the time to appeal against a matrimonial property judgment by two daysbecause of incorrect legal advice.

In granting leave, he expressed the view that it was not necessary for an applicant to satisfy all fourparts of the traditional test where there were “special circumstances”. [42] In Hader, an extension of time was also granted where counsel for the appellants missed a limitation period by ten days. Afterreviewing the four factors in the traditional test O’Brien J. stated: [11] I must admit to some difficulty in assessing the merits of the appeal upon the limited materials before me on the application. TheReasons for Judgment disclose a careful review and consideration of the issues by the trial judge.

It is certainly not apparent on the faceof the judgment that the trial judge made any error. It would take a much closer review of all of the evidence to possibly come to thatdetermination.

I cannot say, of course, that the appellants have no chance to develop a successful argument, but I hesitate to conclude thatthe appellants have demonstrated a reasonable chance of success. [12] I prefer to base my decision on the ground that this court is entitled to grant relief and extend the time, even if all four elements ofthe Cairns test are not strictly met, if in the circumstances of the case before it the court considers that an extension of time is appropriateand justice is thereby served. This proposition is supported by reference to the following cases: Petryga v.

Alberta (1980), 1980 ABCA323 , 26 A.R. 290 (C.A.), at para. 11; Higdon v. Smokey Lake General & Auxiliary Hospital and Nursing Home (District No.73) (1983), 1983 ABCA 331 , 29 Alta. L.R. 2d 215 (C.A.), 4 D.L.R. (4th) 175, at 218-219 Alta. L.R.; and King v. King, 2003ABCA 205, (2003), 346 A.R. 199, at para. 6. [43] I am satisfied that these authorities are simply emphasizing that the decision to grant leave to appeal is highly discretionary.

Inexceptional cases like Horne and Hader where the time for filing the appeal was missed by a few days a judge may grant leave even ifsome part of the traditional test has not been met. As stated by Laskin J.A. in Bratti v Wabco Standard Trane Inc. (c.o.b.

Trane Canada), (ON CA), 25 CBR (3d) 1, (1994), 25 CBR (3d) 1 at para 3: While appellate courts have considered a number of different factors in determining whether to grant leave to extend the time forappealing, the governing principle is simply whether the "justice of the case" requires that an extension be given. [44] In the case at bar, the appellant is late by almost one year and does not fit into the exceptional case category. In order to succeed hemust satisfy all four parts of the traditional test. (ii). Has the appellant maintained a firm intention to appeal within the relevant time period?

B.ii.1 Factual background [45] The appellant filed a 74-paragraph affidavit in support of the application that contained numerous exhibits. It covered the factualbackground starting in 2004 that led to the hearing before the Tribunal in July 2011 and the facts leading to the filing of the Notice ofAppeal in August 2012.

The Tribunal filed an affidavit from Marion Love, the Executive Director of the Tribunal, which was directed atthe steps taken by the Tribunal to organize and conduct the hearing and the steps taken by Blanchette to enforce the judgment in Ontario. [46] The following facts were not disputed in the Love affidavit filed by the Tribunal. [47] The appellant is the owner and operator of a company called C. Vendetti Construction and Consulting Inc. (the Company) that is

incorporated under the

Canada Business Corporations Act and carries on business in the construction industry. [ 48 ] On September 2, 2004, the Company hired Blanchette as a Power House operator at the Nanisivik mine that was then in operation in Arctic Bay, Nunavut. He worked in this capacity until September of 2005. [ 49 ] On June 25, 2005, Blanchette informed the Company that he intended to resign his position effective December 17, 2005. [ 50 ] On September 1, 2005, Blanchette was injured at work. He suffered an abdominal hernia while lifting heavy oxygen tanks at the workplace while working for the Company.

An accident report was completed and acknowledged by the Workers’ Compensation Board in a letter dated November 22, 2005. [ 51 ] Blanchette was treated by a physician in Thunder Bay and diagnosed with an abdominal hernia. However, he was cleared to return to work with no restrictions. Blanchette contacted the appellant and advised him he would be returning to work on October 17, 2005, until the end of the notice period on December 17.

The appellant advised Blanchette that there was no position available for him to fill because the Nanisivik Power Plant had closed due to the closure of the mine. [ 52 ] In December 2005, Blanchette filed a Notification against the appellant personally rather than against the Company alleging that he experienced discrimination in employment because of a disability. He requested damages equal to two months wages. [ 53 ] On January 4, 2006, the appellant replied to the Notification disputing the allegations made by Blanchette. [ 54 ] The appellant attended a pre-hearing conference on December 6, 2010.

At the conference the appellant raised a preliminary issue that Blanchette had filed the complaint against the wrong party. It should have been made against the Company and not the appellant in his personal capacity. All parties agreed to attend a hearing in July 2012 to address the preliminary issue raised and any other issues. [ 55 ] By an exchange of emails in April 2012, the Tribunal set a hearing for July 5, 2012. [ 56 ] After the hearing date was set the appellant became seriously ill. He suffered from high blood pressure that caused swollen legs and was unable to attend any scheduled appointments.

Attached to his affidavit as exhibit “H” was a certificate from his physician confirming his inability to attend the hearing because of his illness. [ 57 ] Although well aware of the date of the hearing and his inability to attend because of his medical condition, the appellant failed to notify the Tribunal that he could not attend and would need an adjournment. [ 58 ] The transcript of the hearing before Adjudicator Weeks indicated that he expected the appellant to be there and requested confirmation from Ms. Love that he was duly informed about the hearing.

She confirmed that on April 12, 2012, she emailed the appellant and informed him about the date of the hearing. Both the appellant and Blanchette confirmed by email that the date was acceptable. On May 2, 2012, she sent an email with a Notice of Hearing to both parties. [ 59 ] On September 20, 2012, the appellant received an email from Ms. Love that stated: “A decision has been rendered for the Hearing regarding this matter which took place on July 5, 2011. It is enclosed for your reference.

The Tribunal has deemed this matter closed.” [ 60 ] The email of September 20 did not mention that the appellant had 30 days to file an appeal as had occurred in a previous

communication from the Tribunal received in October 2007 that ordered the complaint to proceed to a hearing. [ 61 ] The decision of Adjudicator Weeks ordered the appellant to pay Blanchette damages of $19,500 that was the equivalent of two months wages. [ 62 ] On March 7, 2012, the appellant was served with the order of Fregeau J. dated February 10, 2012, under the Reciprocal Enforcement of Judgments Act, RSO 1990, c R.5 , registering the decision of Adjudicator Weeks as a judgment of the Ontario Superior Court of Justice. [ 63 ] On March 28, 2012, counsel for the appellant advised the Tribunal that he intended to apply to set aside the order of Fregeau J.

The letter also requested certain documents from the Tribunal that were sent with a covering letter dated April 5, 2012. [ 64 ] On April 12, the appellant filed a Notice of Motion to set aside the registration of the judgment that was adjourned by consent pending the outcome of the appeal filed by the appellant. [ 65 ] On May 18, 2012, counsel for the appellant delivered a Notice of Appeal to the Clerk of this Court for filing.

Although the Notice of Appeal was filed, the Clerk cancelled the registration and informed the Appellant by email dated May 29, 2012,that the Notice of Appeal was void because counsel for the appellant was not a member of the Nunavut Law Society and the Notice of Appeal did not list an address for service in Nunavut. [ 66 ] After receipt of the email, counsel for the appellant immediately commenced an application for a Restricted Appearance Certificate. On August 16, 2012, counsel for the appellant received his Restricted Appearance Certificate and then filed the Notice of Appeal dated August 30, 2012.

B.ii.2 Intention to appeal Appellant’s argument [ 67 ] The appellant argues that he had the intention to appeal because he made a timely reply to the Notification and attended at the pre- hearing meeting five years later. At the pre-hearing meeting he raised a legitimate issue that he was the wrong party. He operated through an incorporated company who was the employer. At the meeting he made it quite clear that he intended to fight the complaint until his remedies were exhausted.

The appellant also disputed a claim advanced by Blanchette under the Labour Standards Act that ultimately resulted in Blanchette receiving two week’s salary. [ 68 ] The appellant also argues that he was misled by the letter from the Tribunal dated September 20, 2012, attaching a copy of the decision, because it did not tell him that he had 30 days to appeal the decision as had occurred in the communications of October 2007. Respondent’s arguments [ 69 ] The Tribunal argues that the appellant is asking the Court to infer that he would have appealed the decision if he had been told he had 30 days to appeal.

This argument cannot be sustained for many reasons. First, the appellant had received previous correspondence from the Tribunal that made him aware of the 30-day limitation period. Second, the appellant has a history of ignoring correspondence from the Tribunal in relation to his rights. The appellant is not ignorant about the procedures of the Tribunal. He ignored the Notice of Hearing that specifically told him to contact the Tribunal if he would not be attending and the serious consequences of failing to appear.

Third, he claims he was ignorant of his rights and yet he operates a construction company that has regular access to the legal advice of his present counsel. [ 70 ] The Tribunal argues that the appellant was complacent about enforcing his rights in Nunavut because he did not feel he was in jeopardy. He certainly acted promptly when he received notice of the registration of the decision of the Tribunal as a judgment in

Ontario. He did not contact the Tribunal to clarify any questions he had had about the decision nor check the Tribunal’s website. The appellant’s conduct is inconsistent with having an intention to appeal within the appeal period. Analysis [ 71 ] Although the appellant was somewhat lackadaisical in his approach to pursuing his appeal, I am satisfied that he was active enough to infer that he intended to defend the complaint until he had exhausted his remedies. The Tribunal was also quite cavalier in holding a hearing after the complaint was ordered to proceed to a hearing. There was no explanation given for why it took five years to

schedule the hearing. The appellant was likely influenced by the relaxed attitude of the Tribunal in assertively pursuing his rights. (iii). Explanation for the delay B.iii.1 Appellant’s arguments [ 72 ] The appellant has no explanation for failing to communicate to the Tribunal that he could not attend the July hearing. However, he argues that he was misled by the Tribunal’s letter of September 20, 2011, to believe that the matter was closed and that there was nothing he could do about it. His

interpretation was that the matter was over and as a result he did nothing until he received notice of the registration of the judgment in Ontario. [ 73 ] After the appellant received notice of the registration of the decision of the Tribunal as a judgment in Ontario, he realized that the matter was “still alive” and immediately retained legal counsel to represent him and took steps to have the registration set aside. Both counsel agreed that the proceedings in Ontario should be adjourned pending the conclusion of proceedings in Nunavut.

Unfortunately, there was a delay from the adjournment of the Ontario proceedings on April 12 until the appeal was filed on August 28 because the appellant’s counsel was not a member of the Law Society of Nunavut. He attempted to file the notice of appeal in May but it was rejected because he was not a member of the Law Society and did not have an address for service in Nunavut. It then took several months to obtain a Restricted Appearance Certificate in August. The appellant argues that under all these circumstances the delay was not unreasonable.

B.iii.2 Tribunal’s arguments [ 74 ] The Tribunal argues that the appellant’s explanation for the six month delay from September until the following March is not acceptable. He was aware from the previous notification from the Tribunal in 2007 that there was a 30-day appeal period. When he received the decision in September 2011 he chose to remain ignorant about his rights. He knew he had missed the July hearing and had not notified the Tribunal and yet he took no steps to contact the Tribunal after he received the decision to inquire about a right of appeal.

He did not contact the Nunavut Court of Justice to inquire about an appeal nor did he visit the website of the Tribunal. Most significantly, although he had access to legal counsel for employment matters he failed to obtain legal advice about his rights when he knew the claim was against him personally. [ 75 ] The Tribunal further argues that the delays from April 2012 until August were also unreasonable because there was a five-month delay between retaining legal counsel and the filing of the appeal. The case at bar is not like Hader where counsel for the appellant missed the appeal deadline by a few days.

In that case, he filed the Notice of Appeal the same day he realized he had missed the limitation period. The Tribunal noted my approval in Dimitruk of the comments of Côté J. at para 21 of Rosenthe v Rosenthe, 1999 ABCA 236 , [1999] AJ No 920 [Rosenthe] . He stated that the appellant must explain the delay and also the delay in moving to apply to extend the time for filing. The Tribunal notes that it took the appellant six weeks to attempt the first filing of the appeal on May 28 after the initial six-month delay.

However, counsel for the appellant should have known he had to retain local counsel to file the notice of appeal and by failing to do so six weeks were lost. He could have checked the law list and contacted a local lawyer in a very short time. He also could have prepared the appeal in the appellant’s name so he could appear in court to represent himself. B.iii.3 Analysis [ 76 ] As I stated in Dimitruk, the cases applying the Cairns factors have emphasized the obligation of a potential appellant to move quickly to protect his or her rights of appeal.

In Rosenthe, the appellant did not find out that an order had been issued in favor of the respondent until six weeks after it had been issued. She tendered a Notice of Appeal two weeks later and it was rejected for being late.

Several months later the respondent filed an application to the Superior Court to extend the time to file the appeal but it was rejected for want of jurisdiction. More than two months later the appellant finally filed a motion in the Court of Appeal to extend the time for filing the notice of appeal. In denying the application, Côté J. stated: [21] A second and overlapping problem is delay in moving. It is not enough for someone who has missed time to appeal to explain how he or she missed the time. He or she must also account for the delay until he or she does move to extend the time.

Otherwise, a good excuse for missing the deadline for appealing by two days, would permit a year's extension of the time to appeal. That rule is only common sense, and is supported by the authorities, some of which include Cairns v. Cairns , supra; and Little v. Little, [1998 ABCA 400 , 228 A.R. 344 ]. [ 77 ] In Dimitrik , the delay in filing the application to extend the time for filing the appeal was seven months. About half of the delay occurred because the appellant procrastinated and the other half because his lawyer was busy and did not give the file the proper priority.

I found that the appellant fell within the parameters of Rosenthe and denied the application because the delay was unreasonable. In this case, the delay was longer than Dimitrik and both the appellant and his lawyer were similarly responsible for about half of the delay. [ 78 ] I am satisfied that the case at bar also falls within the parameters of Rosenthe. The appellant’s attempt to place the responsibility for taking proactive steps to protect his appeal rights on the Tribunal is disingenuous.

He is a sophisticated contractor who had ready access to legal advice when he perceived his personal assets were in jeopardy in Ontario. However, he assumed the complaint in Nunavut would not move beyond the borders of Nunavut and chose to ignore it despite being aware from previous communications with the Tribunal that there was a 30-day appeal period. If he was really concerned with protecting his rights he should have made some inquiries to the Tribunal.

If a litigant sleeps on his or her rights there may significant legal consequences such as losing a right of appeal. [ 79 ] There was further delay by the appellant’s legal counsel who should have known that a lawyer could not litigate in another jurisdiction without retaining local counsel to assist and provide an address for service. Some basic research would have revealed the names of local lawyers who could have filed the application shortly after the appellant discovered the registration of the judgment in Ontario. [ 80 ] As a result, the appellant failed to satisfy the second part of the Cairns test. (iv).

Prejudice to other parties B.iv.1 Appellant’s argument [ 81 ] The appellant argues that if this Court grants the extension of time, Blanchette will not be prejudiced. The appellant argues that he is the one who has incurred all the expenses while the money Blanchette spent was money he would have had to expend in any event. The legal costs can always be addressed at a later date. B.iv.2 Tribunal’s argument [ 82 ] While indicating that Blanchette could speak for himself, the Tribunal noted that the third factor from Cairns puts a heavy burden on the appellant.

At paragraph 32 of Cairns, the court noted that a review of the cases cited leaves no room for doubt that extensions of time will not be granted as a matter of course. The Tribunal also noted the remarks of the court at paragraphs 19-21 that a person who has a judgment where the time to appeal has expired has a vested interest in the judgment. The benefits that flow from the judgment will not be lightly disturbed. [ 83 ] Blanchette did not address the prejudice when he spoke and simply indicated that he could have claimed a larger sum but restricted it to two months’ pay. B.iv.3 Analysis

[ 84 ] The third part of the test was described in Kerr as: “that the appellant has not taken the benefits of the judgment from which appeal is sought” [ 85 ] In the case at bar, Blanchette has not taken the benefits of the judgment. He is entitled to post judgment interest that will address any costs to him of the use of the money because of the appellant’s delay. He will also be entitled to some legal costs that may cover his actual expenses. I am satisfied that the third part of the test is satisfied. (v).

Chance of success of appeal B.v.1 Appellant’s argument [ 86 ] The appellant argues that the Tribunal erred in awarding damages against him personally because at all material times he was operating through a corporation. If there is a liability it is a corporate liability and not a personal one. The appellant also argued that the Tribunal erred in failing to take into account Blanchette’s mitigation of damages because of the claim he pursued through the Labour Standards Act. Finally, the appellant argues that the Tribunal erred in the calculation of damages.

B.v.1 Tribunal’s argument [ 87 ] The Tribunal argues that everything the appellant challenges in the Notice of Appeal flows directly from his non-attendance at the hearing and his failure to communicate with the Tribunal about his illness and inability to attend. The hearing date was set after consultation with the appellant and he was advised in writing that if he could not attend he should let the Tribunal know immediately.

He was further advised that if he did not attend there was a very real consequence in that, under the rules of the Tribunal, the hearing would proceed in his absence and the Tribunal would only hear from Blanchette. There was no error committed by the Adjudicator in proceeding in the absence of the appellant. [ 88 ] On the issue of personal liability, the Tribunal argues that it is not uncommon in human rights proceedings to allege that a person be held personally responsible or jointly responsible with a corporation.

B.v.1 Analysis [ 89 ] The merits argued by the appellant flow from reliance on facts that were not before the Tribunal. The appeal issue is whether the Tribunal should have proceeded in his absence or should have voluntarily adjourned and tried to contact him. I am satisfied that under all the circumstances there is little chance of success of an appeal. III. CONCLUSION [ 90 ] The appellant has not satisfied two parts of the Cairns test. I therefore quash the Notice of Appeal. [ 91 ] Costs may be spoken to if necessary. Dated at the City of Iqaluit this 21st day of November, 2012

______________________ Justice Earl D. Johnson Nunavut Court of Justice