Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171

Court of King’s Bench of Alberta Citation: Northern Air Charter (PR) Inc v Dunbar, 2023 ABKB 171 Date: 20230323 Docket: 1901 11423 Registry: Calgary Between: Northern Air Charter (PR) Inc Appellant - and - Michael Dunbar Respondent _______________________________________________________ Memorandum of Decision of the Honourable Justice A. Woolley _______________________________________________________

Appeal from the Reasons for Judgment of N.R. Hess The Honourable Judge Dated the 19 th day of July, 2019 ( 2019 ABPC 179 , Docket: P1690104470) Introduction [ 1 ] On July 19, 2019, the trial judge found the Appellant Northern Air Charter (PR) Inc. liable to the Respondent Michael Dunbar in an action for wrongful dismissal, awarding Mr. Dunbar $33,372.86 in damages. [ 2 ] Northern Air submits that the trial judge committed reviewable errors. In particular, it says that: (

a) The trial judge erred in treating Northern Air’s stop to Mr. Dunbar’s employment as termination of Mr. Dunbar’s employment, rather than as a “lay off” not giving rise to an entitlement to notice. (

b) In the alternative, the trial judge erred by not treating the end of Mr. Dunbar’s employment as a constructive dismissal to which Mr. Dunbar acquiesced in the first instance. (

c) In the further alternative, the trial judge erred by not finding that Mr. Dunbar failed to mitigate his loss when he declined Northern Air’s offer of re-employment. (

d) The trial judge evidenced a reasonable apprehension of bias. [ 3 ] For the reasons that follow, I dismiss Northern Air’s appeal.

What is the Applicable Standard of Review? [ 4 ] The Provincial Court judge’s decision must be reviewed on a standard of correctness on questions of law, and on a standard of palpable and overriding error with respect to questions of fact, and questions of mixed fact and law, unless the question of mixed fact and law contains an extricable question of law, in which case the standard of review for that extricable question is correctness: Housen v Nikolaisen , 2002 SCC 33 at paras. 8 , 10 and 26-28; Baran v Can To Can , 2021 ABQB 827 at para. 5 . [ 5 ] Generally speaking, contractual

interpretation is a question of mixed fact and law: Rice v Shell Global Solutions Canada Inc , 2021 ABCA 408 at para. 18 . [ 6 ] The Supreme Court has explained that a palpable and overriding error means an error that is plainly seen and led to the wrong result: Housen at paras. 4-5 . Did the Trial Judge Err in Treating the June 30 th Phone Call as a Termination of Mr. Dunbar’s Employment? Facts [ 7 ] The factual context for this ground of appeal, as found by the trial judge and as not disputed by Northern Air, is that Mr.

Dunbar is a qualified pilot who began employment with Northern Air, a chartered airline, on June 16, 2014. Mr. Dunbar worked in Peace River, and in Edmonton, before beginning work in Calgary in late 2015. [ 8 ] When he began employment with Northern Air in 2014, Mr. Dunbar received an offer of employment setting out the basic terms for his employment. A year later, in June 2015, Mr.

Dunbar entered into an employment contract which set out his pay and hours, and provided for performance reviews and termination by “either party with written notice that complies with Employment Standards for the Province of Alberta”. [ 9 ] Although not referenced in the June 2015 employment agreement, Northern Air had an Employee Handbook. The Handbook contemplated circumstances which could result in a temporary layoff, with the possibility of recall or permanent position elimination. The Handbook stated, however, that its provisions were “not an employment contract and should not be treated as such”. Mr.

Dunbar had, on June 8, 2015, signed an acknowledgement of receipt of the Employee Handbook, but that acknowledgement reiterated, “This handbook does not represent a contractual employment agreement”. [ 10 ] On October 28, 2015, Mr. Dunbar and Northern Air entered into a further employment agreement. This agreement promoted Mr. Dunbar to the position of Base Captain, and set his pay and hours, as well as allowing for performance reviews. The October 2015 agreement allowed for Mr. Dunbar’s employment to be terminated by either party in compliance with the Employment Standards Code

for Alberta and “applicable Federal regulations”. It did not reference the Handbook. [ 11 ] None of the original offer of employment, the June 2015 employment agreement or the October 2015 employment agreement referred to the possibility of layoff. [ 12 ] Mr. Dunbar’s employment with Northern Air ended on June 30, 2016 when, in a phone call, he was told: We are doing some restructuring and some downsizing here and unfortunately we are calling to let you know that we have to lay you off effective today. [ 13 ] Northern Air told Mr. Dunbar to deliver all access cards and keys to Northern Air that evening.

He was told that all future communication would be by e-mail as a matter of protocol. Mr. Dunbar was immediately locked out of the company website. [ 14 ] Northern Air sent an e-mail to its other employees saying “as of today Mike Dunbar is no longer employed with Northern air. We wish Mike all the best in his future endeavors”. At that time, Northern Air had never purported to lay off an employee before, although it has done so subsequently. [ 15 ] On July 19, 2016, Northern Air issued a ROE stating that the termination of Mr. Dunbar’s employment was due to “shortage of work/end of contract or season”.

It said that the date of recall was unknown and did not indicate that Mr. Dunbar might be returning. [ 16 ] On July 21, 2016, Mr. Dunbar’s lawyer advised Northern Air that Mr. Dunbar took the position that his employment had been terminated; Northern Air responded on August 5, 2016, saying that Mr. Dunbar had been laid off, not terminated. [ 17 ] On July 28, 2016, Northern Air issued a second ROE. It listed Mr. Dunbar’s insurable earnings and pay in lieu of notice of $3,333.33. Mr.

Dunbar said that he did not receive the pay in lieu of notice, and that allegation was not denied by Northern Air. [ 18 ] On August 28, 2016, counsel for Mr. Dunbar responded to Northern Air, stating that if Mr. Dunbar’s employment had not been terminated, Northern Air had repudiated Mr. Dunbar’s contract, and Mr. Dunbar accepted that repudiation. [ 19 ] On September 15, 2016, Northern Air sent Mr. Dunbar a recall letter, dated September 13, 2016. Counsel for Mr. Dunbar responded to the recall letter, advising that Mr. Dunbar intended to proceed with an action for constructive dismissal.

On September 20, 2016, counsel for Northern Air told counsel for Mr. Dunbar that the September 13, 2016 letter was either a recall of employment or a job offer. Mr. Dunbar declined to accept either. [ 20 ] Mr. Dunbar filed his claim against Northern Air on September 23, 2016. He found new employment in May, 2017. Trial Judgment [ 21 ] In holding Northern Air liable to Mr. Dunbar, the trial judge found that the Employment Handbook had no bearing on Mr.

Dunbar’s employment, relying on the fact that the employment agreements did not mention it, and the Handbook explicitly said it was not an employment agreement. [ 22 ] The trial judge found that the employment contract from October 28, 2015 was somewhat contradictory, insofar as it referenced both the Employment Standards Code , RSA 2000 c. E-9 , as well as federal regulations under the Canada Labour Code , RSC 1985, c. L-2 (“ CLC ”).

The trial judge held: To the extent the defendant is alleging the CLC or its regulations, were agreed by the parties to have been the method to be applied for termination, I find the contradiction in the terms in the agreement prepared by the defendant to be contradictory and therefore unenforceable. [ 23 ] The trial judge held that Mr. Dunbar could proceed either in common law or under the Employment Standards Code , and that once the common law remedy was pursued – as it was by Mr. Dunbar – the employment standards code had no application.

Further, he held that the regulations passed under the CLC had no application on its own: “The CLC must be agreed by the parties to apply to the employment agreement before the regulations enacted thereunder can have any application”. [ 24 ] In the alternative, the trial judge found that if Northern Air could rely on the CLC , s. 168 of that legislation, which applies to

Part III, the Part which includes the terms related to unjust dismissal, expressly provides that, nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than the rights or benefits under this part. [ 25 ] He further emphasized s. 240 of the CLC which gives the employee the ability to bring a complaint for unjust dismissal, s. 242 (3.1) which directs the adjudicator not to consider complaints where a person “has been laid off because of lack of work”, and s. 246 (1) which provides: No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245. [ 26 ] The trial judge held that the CLC “gives the plaintiff the right to pursue a civil remedy”. [ 27 ] The trial judge then considered the common law related to lay offs.

He cited textbook authority for the position that, in common law, absent a contractual agreement to the contrary, a temporary lay-off constitutes an immediate termination of employment; he noted support for that position found in Collins v Jim Pattison Industries Ltd , 1995 CarswellBC 276 at para. 27 and Vrana v Procar Limited , 2004 ABCA 2 at para. 6 .

[ 28 ] The trial judge found that the contractual relationship between Mr. Dunbar and Northern Air did not grant Northern Air the right to lay off its employees, and nor did its Handbook, even if the Handbook was part of the employment contract. The trial judge found that the “handbook does not contain the right of the defendant to lay off its employees under any circumstances”. [ 29 ] Ultimately, the trial judge found that Northern Air terminated Mr. Dunbar’s employment without cause, and Northern Air did not establish that they had the contractual freedom to terminate Mr. Dunbar’s employment without notice.

Analysis [ 30 ] The trial judge’s decision that Northern Air did not have the right to lay off Mr. Dunbar, and in fact terminated his employment, turned on the following propositions or conclusions: (

a) For the CLC to apply to the employment relationship, the parties had to agree to that application. (

b) The CLC did not amend the common law principles with respect to lay off, and as such did not give Northern Air the right to lay off Mr. Dunbar, or preclude Mr. Dunbar’s pursuit of civil remedies. (

c) The employment agreements between Northern Air and Mr. Dunbar did not give Northern Air the right to lay off Mr. Dunbar. (

d) Northern Air terminated Mr. Dunbar’s employment. Application of the CLC [ 31 ] With respect to the application of the CLC to the parties’ employment relationship, the trial judge’s determinations are questions of law, subject to review for correctness. [ 32 ] I am satisfied that the trial judge erred in holding that the CLC only applied if the parties agreed to its application. [ 33 ] By virtue of s. 167(1),

Part III of the CLC applies to employment, to employers and to employees in, or in connection with, any federal work, undertaking or business.

Section 2 (

e) of the CLC defines federal works, undertakings or businesses as including “aerodromes, aircraft or a line of air transportation”. Northern Air operates aircrafts and engages in air transportation. Mr. Dunbar was employed by Northern Air. As such, by operation of law, his employment was governed by

Part III of the CLC. Effect of the CLC [ 34 ] Whether the CLC permitted Northern Air to lay off Mr. Dunbar, or precluded Mr. Dunbar’s pursuit of civil remedies, is also a question of law, subject to review for correctness. [ 35 ] I am satisfied that the trial judge was correct that the CLC does not grant Northern Air the right to lay off Mr. Dunbar, or prelude Mr. Dunbar from pursuing a civil remedy for his dismissal. [ 36 ] As explained by Justice Abella, the CLC creates an alternative form of relief for employees to whom it applies, and who can claim to have been wrongfully dismissed: Wilson v.

Atomic Energy of Canada Limited , 2016 SCC 29 at para. 46 . Under the CLC, employees have entitlements they do not enjoy at common law – for example, the requirement that an employer provide reasons for dismissal, and the possibility of reinstatement: Wilson at para. 63 . [ 37 ] At the same time, however, that alternative form of relief is only available where the employee has been terminated; it is not available where an employer has laid off the employee. Specifically, s. 242(3.1) of the CLC provides that a complaint may not be brought for unjust dismissal where an employee has been laid off, and s. 30(1)(

c) of the Canada Labour Standards Regulation , SOR/2022-41says that “for the purposes of Divisions IX, X and XI of the Act” a lay-off shall not be deemed to be a termination where the term of a lay-off is three months or less. [ 38 ]

Section 230 of the CLC , which sets out the notice provisions in relation to termination of individual employment, states in s. 230(3) that “except where otherwise prescribed by regulation, an employer shall, for the purposes of this Division, be deemed to have terminated the employment of an employee when the employer lays off that employee.” [ 39 ] An employee is not, however, required to pursue a remedy under the CLC ; an employee may choose instead to pursue remedies at common law: Wilson at para. 64 ; CLC s. 246(1) . [ 40 ] Northern Air’s position is, in substance, that the limitation on an action for unjust dismissal in s. 242(3.1) of the CLC , and the definition of a lay-off pursuant to s. 30(1)(

c) of the Canada Labour Standards Regulation , mean that in an employment relationship governed by the CLC an employer is entitled to lay-off an employee without giving rise to a claim for wrongful dismissal.

Further, with respect to s. 230 , since s. 30 of the Regulation defines a lay-off as less than three months, an employee laid off for less than three months cannot take advantage of the deeming provision in s. 230 of the CLC – they cannot claim that their employment is deemed to have been terminated. [ 41 ] In brief, Northern Air submits that the CLC modifies the common law, allowing employers subject to the legislation to lay off their employees without having specifically contracted for the right to do so.

In Northern Air’s view, a federally regulated employer’s right to lay off an employee arises whether the employee pursues a remedy under the CLC or, as Mr. Dunbar did, pursues a remedy at common law. [ 42 ] The problem with Northern Air’s argument is that it requires seeing a deliberate legislative modification of the common law

in statutory language which

a) does not explicitly purport to modify the common law;

b) includes in s. 168 of the legislation a directionthat

Part III and its regulations do not affect more favourable rights or benefits enjoyed by an employee;

c) in the case of s. 30 of theRegulation, explicitly applies only to specific parts of the CLC; and

d) expressly, through s. 246, leaves the common law as a separateavailable option to an employee. [43] In my view, following Justice Abella’s decision in Wilson, the better

interpretation of the CLC is that it creates an alternativeto the common law, one with distinct substantive rights for both employers and employees, while still allowing the common law as anoption for employees.

The CLC creates an alternative to the common law but does not modify the application of the common law incases where employees – as is their right – choose to pursue remedies pursuant to the common law. [44] I agree in this respect with the decision of the British Columbia Supreme Court in Collins v Jim Pattison Industries Ltd.,(1995) (BC SC), 7 BCLR (3d) 13 at para. 23 where the Court held that the BC employment standards legislation didnot grant a statutory right to temporarily lay off employees, regardless of the terms of their employment contract.

See also, Turner vUniglobe, 2005 ABQB 513 at para. 56. [45] Northern Air could have used lay off as a defence if Mr. Dunbar had pursued relief through the CLC. Since Mr. Dunbar choseinstead to pursue his remedy through the common law, Northern Air can only assert a right to lay off Mr. Dunbar through operation ofthe common law – i.e., through locating that right in the terms of its employment agreement with Mr. Dunbar. The Employment Agreements [46] That leads to the third question, which is whether the trial judge erred in finding that Northern Air did not have a contractualright to lay off Mr. Dunbar.

The trial judge’s decision rested on his

interpretation of the employment agreements between Mr. Dunbarand Northern Air, an

interpretation reviewable only for palpable and overriding error. [47] No such error was made by the trial judge. Northern Air acknowledged that the employment agreements did not refer to theability of Northern Air to lay off an employee. The Employment Handbook did refer to that possibility, but Northern Air chose toexplicitly preclude the Handbook from being treated as part of the contractual relationship between it and its employees. [48] Northern Air submitted that its right to lay off Mr.

Dunbar should be understood as an implied term of the agreement, flowingfrom the language of the Employment Handbook, the structure of the governing CLC, and the practices of the industry, which wereknown to both it and Mr. Dunbar. [49] I am not satisfied that that context is sufficient to add a significant substantial right for the employer to the employmentcontract, a right which none of the contracts entered into explicitly included. The terms of the Employment Handbook show NorthernAir was alert to the possibility that it would seek to lay off its employees.

As such, it could have chosen to include that language in itsemployment agreements, yet it did not do so. The trial judge did not make a palpable and overriding error in interpreting the contracts aswritten and by finding that Northern Air did not enjoy a legal right not referenced in those agreements. Termination of Mr. Dunbar’s Employment [50] Whether or not Northern Air had terminated Mr. Dunbar’s employment is a question of fact reviewable only for palpable andoverriding error. [51] The trial judge did not err in finding that Northern Air terminated Mr. Dunbar’s employment.

Indeed, other than its use of theword “lay off” when it phoned Mr. Dunbar, its actions communicated that his employment was at an end. It had him deliver his accesscards and keys. It locked him out of the website. It told other employees he was not employed with Northern Air. It wished him the bestin his future endeavours. No palpable and overriding error was made by the trial judge in viewing these actions as terminating Mr.Dunbar’s employment.

Did the trial judge err in not treating the termination of Mr.Dunbar’s employment as a constructive dismissal to which heacquiesced? [52] The trial judge’s reasons did not rely on the concept of constructive dismissal – i.e., on the concept that Northern Air hadsufficiently changed the terms of Mr. Dunbar’s employment to have effectively dismissed him: Potter v New Brunswick, 2015 SCC 10.The trial judge found that Northern Air had dismissed Mr.

Dunbar, not that it had constructively dismissed him. [53] The issue of constructive dismissal was, however, raised by Northern Air on appeal. [54] Assuming that the issue of constructive dismissal is properly raised on appeal, I am satisfied that no error was made in not treating the June 30th phone call as a constructive dismissal to which Mr.

Dunbar acquiesced. [55] To find the phone call to be a constructive dismissal would require characterizing Northern Air’s actions not as astraightforward termination of employment, but rather as Northern Air unilaterally amending the employment relationship to include aright of lay off, and then laying off Mr. Dunbar. That

interpretation seems strained on the facts of what occurred on June 30, 2016, andalso in light of the common law position that a lay off is a termination. [56] In addition, for a constructive dismissal argument to aid Northern Air, would require characterizing the three-week period

between when Mr. Dunbar left Northern Air, and his lawyer sent a letter saying that they were treating it as a termination, as acquiescence by Mr. Dunbar in the constructive dismissal: Kosteckyj v Paramount Resources Ltd , 2022 ABCA 230 at para. 77 . [ 57 ] Three weeks of silence from an employee who has left the premises, turned in his access card, been removed from the website and, at the end of those three weeks, had his counsel write a letter stating that he had been terminated, does not constitute acquiescence. Did the trial judge err in finding that Mr.

Dunbar did not fail to mitigate when he declined an offer of re-employment by Northern Air on September 15, 2016? Trial Judgment [ 58 ] On September 15, 2016, Northern Air sent Mr. Dunbar a recall letter; on September 20, 2016, its counsel reiterated that the letter was either a recall of employment or a job offer. Mr. Dunbar declined to accept either. [ 59 ] Despite his refusal of the Northern Air’s offer of employment, the trial judge found that Mr. Dunbar appropriately mitigated his loss. Mr. Dunbar took reasonable steps to find employment. Further, in the circumstances Mr.

Dunbar was not required to accept the September offer of employment. The trial judge noted that even had Mr. Dunbar done so, he would have lost three months of income. In addition, the offer came only after Mr.

Dunbar had advised Northern Air that he took the position that his employment had been terminated. [ 60 ] The trial judge summarized the decision of the Supreme Court in Evans v Teamsters Local Union No 31 , 2008 SCC 20 at para. 30-31 , noting the position of the Court that in some circumstances it will be necessary for a dismissed employee to mitigate their loss by returning to work for the same employer, and that the onus is on the employer to show that a reasonable person in the place of the employee would have returned to work. [ 61 ] The trial judge then found (at para. 50) that Northern Air: 1. failed to provide payment in lieu of the appropriate working notice; 2. did not give written notice of the lay off and the consequences thereof; 3. notified all of its employees the plaintiff was no longer employed by the defendant; 4. failed to advise employees that the plaintiff had not been terminated, but rather he had been laid off, the reasons for the lay off and [that he] could be asked to return; 5. requested the plaintiff immediately return all access devices and blocked him from accessing the defendant's website, which contained his only access to the Handbook; and 6. advised no further verbal communication would be allowed and all communications would be required by e-mail. [ 62 ] The trial judge concluded that the extension of an employment offer was not a defence to the plaintiff’s claim.

In particular, the conduct and approach of Northern Air failed "to show a reasonable person would be expected to accept an offer from the defendant for re-employment". Analysis [ 63 ] The trial judge correctly summarized the Supreme Court’s decision in Evans . The rest of his decision on the issue of mitigation involved a question of mixed fact and law, and is subject to review for palpable and overriding error. [ 64 ] The trial judge made no such error.

An employee’s failure to accept an offer to return to employment, even in uncomfortable or unhappy circumstances, can constitute a failure to mitigate, as was the case in Evans . An employee is not, however, required to accept an offer of employment regardless of the circumstances: Fredrickson v Newtech Dental Laboratory Inc , 2015 BCCA 357 ; Oostlander v Cervus Equipment Corporation , 2022 ABQB 200 . [ 65 ] Here, Northern Air did not provide Mr. Dunbar with notice. He had been out of work for two and a half months, half the notice period to which he was entitled, as found by the trial judge.

Northern Air did not offer to make Mr. Dunbar whole. As such, had Mr. Dunbar returned to work at Northern Air he would have been in the awkward position of either giving up his legal claim for notice, or being engaged in legal proceedings with his employer. The trial judge did not make a palpable or overriding error in finding that a reasonable person would not accept an offer of employment in those circumstances.

Did the Trial Judge’s Conduct Give Rise to a Reasonable Apprehension of Bias? [ 66 ] A reasonable apprehension of bias arises where a reasonable person, having thought the matter through, would conclude that

it was more likely than not that the decision maker, whether consciously or unconsciously, would not decide the matter fairly:Committee for Justice and Liberty v National Energy Board, (SCC), [1978] 1 SCR 369 at 394. The test concerns boththe reality and the appearance of a “fair adjudicative process”: Yukon Francophone School Board, Education Area #23 v Yukon(Attorney General) 2015 SCC 25 at para. 22. [67] A judge is both required and presumed to be impartial; a judge is not, however required to be neutral: R v RDS, (SCC), [1997] 3 SCR 484 at paras 33-35.

There is a “crucial difference between an open mind and an empty one”: YukonFrancophone at para 33.

The mere fact of a judicial intervention in a trial is not evidence of bias: Brouillard v The Queen, (SCC), [1985] 1 SCR 39 at para. 17. [68] To find that a judge has failed to be impartial requires “‘cogent evidence’ demonstrating that the judge has done something togive rise to a reasonable apprehension of bias”: R v Schmaltz, 2015 ABCA 4 at para. 50. [69] Northern Air submits that Judge Hess’s conduct gave rise to a reasonable apprehension of bias when, during the examinationof the appellant’s witness, he expressed doubts about the legitimacy of Northern Air’s counterclaim: Q MR.

NIGHTINGALE: Charis, in its counterclaim, Northern Air is suing for two turned down flights. I'm going to ask you somequestions regarding that, okay? A Yeah. Q First question I'm going to ask you is flights for whom? Or – MR. NIGHTINGALE: Go ahead. THE COURT: The amazement on my face, sir, is just where you're going with this. But go ahead, please. MR. NIGHTINGALE: In – THE COURT: I'm just totally amazed. But go ahead, sir. I'll say no more. I sometimes get into trouble making comments during themiddle of a trial, so I'm not going to make a comment other than I am amazed. Go ahead, sir. Go ahead. MR.

NIGHTINGALE: Would it please the Court if I had a two-minute conversation with the corporate representative, just in respect to – THE COURT: Go ahead, certainly. [70] Following this exchange Northern Air withdrew its counterclaim. It did not raise any issue with the propriety of Judge Hess’scomments during the trial. [71] I reject this ground of appeal. A trial judge expressing skepticism about the merits of a legal claim may follow from the trialjudge’s reasoned and legitimate assessment of the claim. In some cases, the legal deficiencies of a claim are apparent on their face.

Here,because Northern Air immediately abandoned the claim, and I was provided with no information about its legal foundations, I cannot saywhether the issues with Northern Air’s counterclaim were apparent on its face. That a claim can be facially deficient means, however,that a judge’s suggestion that it is so ought not, without something more, be used to impugn that judge’s impartiality. [72] I am not satisfied that a party can refuse to give an adjudicator the opportunity to assess a claim, and then accuse theadjudicator of bias for being critical of that claim.

Even if Northern Air believed Judge Hess’s comments to be substantively improper,and reflective of an absence of objectivity, it nonetheless needed to present its best evidence and legal argument, creating a record toshow that no impartial adjudicator could assess the claim as “amazing” without first having heard the evidence and considered theapplicable law.

In this case, there is no record against which to assess Judge Hess’s assessment, which makes it impossible to determinethat his comment that the claim was “amazing” indicated an improper lack of impartiality, as opposed to a reasoned assessment of theclaim’s apparent legal spuriousness. [73] In other words, for Northern Air to impugn Judge Hess’s impartiality required showing either that no legal claim could befacially erroneous, or that no impartial judge could have assessed this claim as facially erroneous.

The first of these premises is incorrect,and I was given no basis on which to assess the validity of Judge Hess’s comments with respect to this particular claim, becauseNorthern Air did not pursue it. [74] An allegation of reasonable apprehension of bias needs to be raised with the trier of fact against whom it is made. While nodoubt raising a concern with a trial judge’s impartiality is uncomfortable, doing so allows the trier of fact to respond, whether byexplanation, adjustment or recusal. An apparent absence of impartiality from a single comment may simply be an instance ofmiscommunication.

This requirement is consistent with the legal principle, noted by Mr. Dunbar, that a reasonable apprehension of biasought to be raised at the earliest opportunity: R v MacDonald, 2001 ABQB 796 at para. 78, citing Canada (Human Rights Commission)v Taylor, (SCC), [1990] 3 SCR 892 at 941-943. [75] The issue of bias was not raised with Judge Hess. The legal or factual errors in his approach, as Northern Air perceived them,were not identified to him. He was not given an opportunity to explain, adjust or recuse himself, as appropriate.

For a reasonableapprehension of bias to be asserted now, some such opportunity needed to have been given. Conclusion

[ 76 ] The appeal is dismissed. If the parties cannot agree as to costs, the Respondent may submit brief submissions (no more than 3 pages) on the issue of the costs within 30 days of receiving these reasons, to which the Appellant may equally briefly respond within the following 15 days (no more than 3 pages). Heard on the 28 th day of February, 2023. Dated at the City of Calgary, Alberta this 23 rd day of March, 2023. A. Woolley J.C.K.B.A. Appearances: Tyler Nightingale/Dominic Pena - Chapman Riebeek LLP for the Appellant Joel Fairbrother - Bow River Law LLP for the Respondent