Akman Management Ltd. v. Bernier, 2011 MBCA 65

Citation: Akman Management Ltd. v. Bernier, 2011 MBCA 65 Date: 20110728 Docket: AI 11-30-07554 IN THE COURT OF APPEAL OF MANITOBA BETWEEN: ) R. Bernier ) on his own behalfAKMAN MANAGEMENT LTD. ) ) C. G. Labman (Employer) Respondent ) for the Respondent ) ) T. D. Gisser ) for the Manitoba Labour Board- and - ) ) M. A. Webb ) for the Director of ) Employment StandardsRAYMOND BERNIER ) ) Chambers motion heard: (Employee) Applicant ) June 16, 2011 ) ) Judgment delivered: ) July 28, 2011 M. A.

MONNIN J.A. 1 This is an application to extend the time in which to file an appeal from a decision of the Manitoba Labour Board (theLabour Board). 2 In order to be successful on such an application, an applicant must demonstrate that: 1) there was a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2) there is a reasonable explanation for the delay; 3) there are arguable grounds of appeal; 4) it is right and just in all of the circumstances that time for commencing the appeal be extended; and 5) any prejudice suffered by the other party can be addressed.

See Bohemier et al. v. CIBC Mortgages Inc., 2001 MBCA 161, 160Man.R. (2d) 39; Hunter v. Hunter, 2000 MBCA 134, 150 Man.R. (2d) 291; Zalizniak v. Zalizniak, 2006 MBCA 161, 212 Man.R. (2d)114; Elias v. Wolf, 2004 MBCA 99, 190 Man.R. (2d) 40; and Law Society of Manitoba v.

Eadie (1988), (MB CA), 54Man.R. (2d) 1 (C.A.). 3 In the present case, the applicant’s success or failure will rest with the third criteria; namely, whether he has an arguableground of appeal. 4 The applicant was employed by the respondent, Akman Management Ltd. (Akman), from December 17, 2007 untilOctober 31, 2009, in the capacity of a resident superintendent of a condominium complex that Akman managed. The applicant resignedfrom that position at the end of October 2009, and according to his evidence, did so under duress.

5 In December of 2009, the applicant was informed by Akman that he would not be eligible to receive any bonus payment for the time he had been employed as superintendent in 2009. 6 In March 2010, the applicant filed a complaint with Manitoba Labour and Immigration seeking payment of a bonus for the time he worked in 2009. That complaint was dismissed on October 14, 2010. The applicant appealed that decision to the Director of Employment Standards who, on December 6, 2010, agreed to refer the matter to the Labour Board.

A hearing date was set for March 1, 2011. 7 On December 8, 2010, the Labour Board wrote the applicant advising him that counsel for Akman had requested an adjournment and confirming that the applicant had verbally consented to such an adjournment. The hearing was rescheduled to March 17, 2011. That letter was sent by Xpress Post and received by the applicant. 8 In addition to the postponement request, counsel for Akman, on December 6, 2010, had written the Labour Board stating that there was no basis for proceeding against Akman and had requested that the applicant’s appeal be dismissed.

A copy of this letter was provided to the applicant along with a copy of the Labour Board’s response. The last para. of that letter reads: You will note that the matters which the Labour Board will consider are the issues identified in the written statement(

s) of appeal filed by either or both parties and the Division’s Order. The Labour Board may confirm, vary or revoke the Order issued by the Division. As this matter has now been referred to the Board, based on the parties identified in the disputed Order, it will proceed to hearing. The issue you raise in your December 6 th letter regarding the identity of the Employer, cannot be determined in the

summary manner you suggest.

However, this does not preclude you from making any submissions of this nature to the Board at the commencement of the hearing. 9 That letter was supposedly sent to the applicant, but the manner of delivery is unclear and in dispute. 10 What transpired next is best set out in the applicant’s own words in his affidavit filed in support of this application: THAT I then waited for Manitoba Labour’s reply to Akman’s letter dated December 6, 2010 (requesting outright dismissal), making the reasonable assumption that the hearing would not proceed without Manitoba Labour first rendering a decision on the matter before them, and further assuming that I would be informed of their decision, whatever it might be, and THAT hearing nothing from the Labour Board, I called them on or about March 22, 2010 [ sic ] to inquire as to the disposition of Akman’s December 6, 2010 request for dismissal, only to be told that the hearing had proceeded in my absence, and that I had been notified by express post of their decision re: Akman’s December 6, 2010 letter, and THAT in a letter dated April 4, 2011, (Exhibit N), I asked Manitoba Labour to fax me their disposition of Akman’s December 6, 2010 letter requesting dismissal, and THAT on April 6, 2011, Manitoba Labour faxed me their response (Exhibit O), along with a copy of their disposition of Akman’s December 6, 2010 letter requesting dismissal, (Exhibit P), and THAT on April 7, 2011, I faxed Manitoba Labour my response, (Exhibit Q), challenging their assertion that I had been informed by express post, and THAT in a faxed letter to me dated April 8, 2011, (Exhibit R), Manitoba Labour did not produce evidence of my having signed for receiving their disposition of Akman’s December 6, 2010 letter requesting dismissal, but rather fell back on simply stating I had signed receipt of a letter acknowledging the change of date for the hearing, and directed me to appeal their decision, and THAT on April 13, 2011, I faxed a letter to Manitoba Labour, (Exhibit S), requesting that they identify which December 8, 2010 letter did I in fact sign for, and asking them if they had a signed express post for each letter, and THAT on April 13, 2011, Manitoba Labour faxed me their response, (Exhibit T), which did not include evidence that I had signed for both of their letters dated December 8, 2010, and which directed me again to appeal their decision, and

. . . . . 11 The applicant’s position, as stated in his affidavit, is that he never received a copy of the Labour Board’s letter datedDecember 8, 2010, denying Akman’s

summary dismissal of the applicant’s claim and that he did not attend before the Board on the dayset for the hearing because he assumed that the hearing would not proceed until the issue of the

summary dismissal of the claim hadbeen dealt with. 12 In order for the applicant to have any chance of success on this motion, he must demonstrate that the Labour Board’sdecision to dismiss his claim was made in his absence due to improper and incomplete notification on the part of the Labour Board. 13 To this allegation, the Labour Board replies that the applicant did receive proper notification of the hearing date. Moreimportantly, it also argues that there are no provisions under The Employment Standards Code, C.C.S.M., c.

E110 (the ESC) that permitthe Labour Board to reopen a case once a decision has been made. Further, the Labour Board argues that the issue on which theapplicant wishes to appeal is not a point of law or jurisdiction. 14 The Labour Board’s position might appear to be dispositive of this application were it not for the decision of Twaddle J.A. inPan Canadian Computer Group Inc. v. Ward et al. (1996), (MB CA), 110 Man.R. (2d) 9 (C.A.). 15 Pan Canadian was an application for leave to appeal from a Labour Board order made under The Payment of Wages Act,R.S.M., 1987, c. P31 (since repealed).

The facts as set out in the reasons of Twaddle J.A. have a certain resemblance to the facts of thecase at bar (at paras. 2-3): The applicant employer is aggrieved because it was not heard by the Board. There is no dispute that proper notice of hearing was sentand received. What is said is that, as a result of a phone call from an unknown person, the appropriate officer of the applicant believedthat the hearing date had been adjourned and, in consequence, did not attend. The next the applicant heard of the matter was when it received a copy of the Board’s order requiring it to pay some $694.17 to theclaimant.

A fax was sent to Employment Standards requesting the right to be heard. The following explanation for the nonattendancewas offered: We received a telephone call from an individual during the 1st to second week in March asking if it would be “O.K.” to move thehearing forward to another date due to scheduling problems. I replied it would be fine but I would like the soonest available date. Thatindividual told me that the soonest they could reschedule is for Monday, June 5, 1995, at 9:00 a.m. I told them that was fine. At the time,I believed the individual was from the Employment Standards Board.

On April the 26th, 1995, I received a letter informing me that I had missed the court hearing as originally scheduled.

I now believe thatthe individual who called me was NOT from the Employment Standards board. 16 The applicant in that case filed a motion for leave to appeal on the basis that the Labour Board had acted without jurisdictionby proceeding to a hearing without hearing from the applicant. 17 Twaddle J.A. then went on to deal with the issue as follows (at paras. 7-16): The real point in issue is what the Board should have done when it received the present applicant’s complaint that it had not been heard.It is at least arguable that the Board had jurisdiction to reopen its decision: see (

i) Grillas v. Minister of Manpower and Immigration, (SCC), [1972] S.C.R. 577, esp. at pp. 589 and 590; (ii) Chandler v. Alberta Association of Architects, (SCC), [1989] 2 S.C.R. 848; 99 N.R. 277; 101 A.R. 321; 70 Alta.L.R. (2d) 193; 62 D.L.R. (4th) 577, at p. 862; (iii) Kates v. Canada Post Corp. (1991), 52 O.A.C. 319 (Div. Ct.); (iv) Vatanabadi v. Canada (Minister of Employment and Immigration) (1993), 153 N.R. 73; (FCA), 102 D.L.R.(4th) 433 (F.C.A.);

(

v) Zutter v. British Columbia (Council of Human Rights) (1995), (BC CA), 57 B.C.A.C. 241; 94 W.A.C. 241;122 D.L.R. (4th) 665 (C.A.). If the Board had such jurisdiction, it is also arguable, in my view, that the Board, by the letter from its Registrar to the present applicant,improperly declined its jurisdiction. I do not mean by that that it should have reopened its decision, but that it should have considered thepresent applicant’s explanation for its nonappearance and decided whether in the circumstances the present applicant had a sufficientlyvalid excuse to justify a reopening. In Aubut v.

Minister of National Revenue (1990), 126 N.R. 381 (F.C.A.), Hugessen, J.A., commented on the authority of anadministrative tribunal to reopen a decision where a party has a reasonable excuse for nonappearance. He said (at p. 383): If ... the applicant truly had a valid excuse to offer, such as, for example, he had been in a car accident while coming to court, he certainlycould have applied to the court to reopen, with a detailed affidavit in support.

Also in support of the argument that the present applicant’s excuse for nonappearance should have been considered by the Board, and adecision made as to whether a reopening of the decision was justified, are (

a) Rhyno v. Ideal Concrete Ltd. (1992), (NS SC), 118 N.S.R. (2d) 118; 327 A.P.R. 118 (Co. Ct.); and (

b) Mehdawi v. United Kingdom (Secretary of State) (1989), 105 N.R. 20 (H.L.), esp. at p. 26 per Lord Bridge of Harwich. In my view, those questions are of some importance not only to this litigant, but also to the public generally. It is surely not anuncommon occurrence for a party to administrative proceedings to miss a hearing. The public are entitled to know whether the Board hasjurisdiction to consider an excuse for nonattendance and, if it finds it sufficiently valid, to reopen its earlier decision.

It may be that the present applicant’s letter was not sufficient to invoke the Board’s jurisdiction, if it exists, to consider reopening itsdecision, but it equally may be that no formal application is required as long as it is clear to the Board that the applicant seeks arehearing. At the very least, the public is entitled to know what must be done to invoke the jurisdiction of a tribunal to considerreopening a decision. It may equally be that the Board will not find the present applicant’s excuse sufficient to warrant reopening its earlier decision.

That,however, is a matter which will be for the Board to decide if it has jurisdiction. The Board in the present case did not consider the adequacy of the present applicant’s excuse, but advised him in effect that it did nothave jurisdiction to consider an explanation for nonattendance which was subsequently given. The question, as I see it, is whether theBoard erred in not recognizing such jurisdiction. In the result, I am of the view that an issue of jurisdiction arises and that it is one the court ought to consider.

I therefore grant leave toappeal on the following question: Did the Manitoba Labour Board erroneously decline jurisdiction to consider whether its earlier decision should be reopened on theground that the party seeking relief had a valid excuse for its nonappearance? 18 There is also some guidance to be had from a recent decision of this court by Chartier J.A. in 2127423 Manitoba Ltd. o/aLondon Limos v. Unicity Taxi Ltd. et al., 2011 MBCA 45.

In that case, the applicants, seeking leave to appeal, argued that the failure bythe Taxicab Board to provide them with relevant documents prevented them from being able to properly object to an application beforethe Taxicab Board. In granting leave, Chartier J.A. wrote (at para. 9):

In essence, the objectors are claiming the Board erred in its adjudication by committing due process errors. Such errors are typically considered to be questions of law (see Donald J.M. Brown, Q.C., Civil Appeals , looseleaf (Toronto: Canvasback Publishing Inc., 2009) vol. 2, ch. 3 at para. 3:2221). I have been persuaded that the issues raised by the objectors are questions of law that meet the criteria for leave to be granted.

As the questions raised will now be considered by a panel of this court, I will not expand further. 19 With respect to the Pan Canadian decision, the Labour Board takes the position that contrary to The Payment of Wages Act , the ESC has no provision that would allow the Board to reopen a case.

It also points out that the decisions referred to by Twaddle J.A. deal with a different statutory context than the ESC. 20 There is no doubt that the applicant, based on his limited understanding of legal proceedings, honestly believed that the Labour Board hearing would not proceed until the issue raised by Akman’s counsel in his letter of December 6, 2010, was dealt with.

The fact that the applicant did not receive the Labour Board’s reply has not been challenged and I therefore accept his reasons for not attending the hearing as being reasonable and, in the circumstances, understandable. 21 As Twaddle J.A. said in Pan Canadian , the public is entitled to know whether the Board has jurisdiction to consider an excuse for nonattendance and, if it finds it sufficiently valid, to reopen its earlier decision. 22 I am therefore persuaded that the applicant has an arguable case and, since the other criteria required to be met to obtain an extension of time to file an appeal were really never an issue before me, I therefore grant the extension sought and grant leave to appeal on the same question of law that Twaddle J.A. had set in Pan Canadian and that is: Did the Manitoba Labour Board erroneously decline jurisdiction to consider whether its earlier decision should be reopened on the ground that the party seeking relief had a valid excuse for its nonappearance?

J.A.