2021 NLCA 20, 2021 NLCA 20

Roger LaSaga (appellant) v. Atlantic Minerals Limited (first respondent), International Union of Operating Engineers, Local 904 (second respondent) and James Oakley, Q.C. (third respondent) (19/107) Indexed As: LaSaga v. Atlantic Minerals Limited 2021 NLCA 20 6 C.A.N.L.R. 499 Court of Appeal of Newfoundland and Labrador Welsh J.A. April 6, 2021

Summary: The International Union of Operating Engineers, Local 904, brought a grievance on behalf of Mr. LaSaga after his employment with Atlantic Minerals Ltd. was terminated. The grievance was dismissed. The Union did not seek judicial review. Mr. LaSaga filed an originating application and a statement of claim seeking to challenge the arbitrator’s decision. Both proceedings were dismissed for lack of jurisdiction. Mr. LaSaga filed a notice of appeal, but took no further action to perfect the appeal. The parties were advised by the Court that the appeal would be deemed abandoned unless Mr.

LaSaga took steps under rule 17 of the Court of Appeal Rules . Mr. LaSaga then filed an application pursuant to rule 17(4) seeking an indefinite adjournment. Held: Application denied. Appeal deemed to be abandoned. Welsh J.A.: The respondents did not consent to the application and advised the Court that they had not been served with the notice of appeal. Rule 17(4) was therefore of no application (paragraphs 4-7). The appeal was deemed abandoned due to Mr. LaSaga’s failure to carry his appeal forward, and noncompliance with the Court of Appeal Rules .

The appellant was ordered to pay costs of the application in the amount of $1,000 to each of the three respondents pursuant to rule 17(7) (paragraphs 8-9). Rules considered: Court of Appeal Rules , NLR 38/16, rule 17 Counsel: Appearing on his own behalf, the appellant; Twila E. Reid and David Constantine, for the first respondent; Ronald A. Pink Q.C., for the second respondent; Gerard Martin Q.C., for the third respondent. The application was heard, and dismissed, on April 6, 2021 by Welsh J.A., and the appeal was deemed abandoned.

The following memorandum of disposition was filed on April 7, 2021 by Welsh J.A. ______________________________________________________________

Welsh J.A.: [ 1 ] When Mr. LaSaga’s employment with Atlantic Minerals Ltd. was terminated, the International Union of Operating Engineers, Local 904 brought a grievance on his behalf. By decision dated March 26, 2018, following ten days of arbitration hearings, the grievance was dismissed by the arbitrator, James Oakley Q.C. The Union determined that there was no basis on which to seek judicial review. [ 2 ] Mr. LaSaga attempted to challenge the arbitrator’s decision by means of originating applications and, later, by means of a statement of claim.

The proceedings were dismissed for lack of jurisdiction. [ 3 ] Mr. LaSaga then filed a notice of appeal, dated December 27, 2019, in this Court. Counsel for the Employer, the Union and the arbitrator all advised the Court at the hearing of this application that they had never been served with the notice of appeal. They became aware of the appeal when they received notice from the Court that the appeal would be deemed abandoned unless Mr. LaSaga took steps as set out in rule 17 of the Court of Appeal Rules , NLR 38/16 . The Court had sent a notice of deemed abandonment to Mr.

LaSaga and the other parties on January 7, 2021. [ 4 ] Rule 17(1) provides for notice to be given by the Court that an appeal may be deemed abandoned: Where an application or request to set a hearing date for an appeal has not been made within one year after the notice of appeal was filed, the registrar shall give the parties notice that subsections (2) and (6) shall apply. [ 5 ] Rule 17(2) provides that an appeal shall not be deemed abandoned if the appellant delivers to the Court and the other parties a written explanation and proposed plan.

Alternatively, with the consent of the other parties, the appellant may apply to have the appeal adjourned indefinitely. Rule 17(4) provides: Upon application, the Court may adjourn the appeal indefinitely where the parties agree for good reason that the appeal should not be deemed abandoned but that, at the time, it is not practical to provide a proposed plan under subsection (2). [ 6 ] Rule 17(6) provides for an appeal to be deemed abandoned where the appellant has not complied with rule 17(2) or (4) within 60 days after the notice of deemed abandonment was sent. [ 7 ] Mr.

LaSaga made an application under rule 17(4) giving as his reason “health and safety measures put in place during the pandemic”. The three respondents did not consent to Mr. LaSaga’s application. Accordingly, rule 17(4) could not be engaged. [ 8 ] Further, in their written submissions, the respondents requested that the appeal be deemed abandoned based on the failure of Mr. LaSaga to carry forward his appeal and his complete disregard of and failure to comply with the Rules . Mr. LaSaga has not served the notice of appeal on the respondents. He has not requested a transcript or filed an appeal book or factum.

His application for an indefinite delay indicates that he is not intending to proceed with the appeal on a timely basis as required by rule 16. He provided no good reason for a delay. Notices on the Court of Appeal website clearly specify that the Court has been continuing to operate during the pandemic. If Mr. LaSaga was unable to access the website, he could have contacted the registry by telephone. [ 9 ] In the result, I was satisfied that the appeal should be deemed abandoned, with costs of $1,000 for this application to be paid to each of the respondents as authorized under rule 17(7). [ 10 ] If Mr.

LaSaga applies in the future to have the appeal reinstated pursuant to rule 17(9), the Court will consider, among any other relevant factors, whether he has taken the necessary steps to ensure that the required documents are filed and served, and whether the costs of this application have been paid. [ 11 ] Accordingly, at the hearing, I dismissed Mr. LaSaga’s application for an indefinite delay, deemed the appeal to be abandoned, and ordered Mr. LaSaga to pay costs of $1,000 for this application to each of the respondents. Application dismissed.