Bartel-Zobarich v Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) et al, 2022 MBCA 64

Citation: Bartel-Zobarich v Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) et al, 2022 MBCA 64 Date: 20220811 Dockets: AI22-30-09785 AI22-30-09786 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) L. Bartel-Zobarich ) on her own behalf ) Lydia Bartel-zobarich ) A. Silver ) for the Respondent ) Manitoba Association of (P laintiff / Applicant) Applicant ) Health Care Professionals ) (MAHCP-Bargaining Unit) ) - and - ) M. I. Merner ) for the Respondent ) Concordia Hospital manitoba association of health ) (Employer) care professionals (mahcp- ) bargaining unit), concordia ) T. D.

Edkins hospital (employer) and Manitoba ) for the Respondent labour board ) Manitoba Labour Board ) ) Chambers motions heard: ( Defendants/Respondents) Respondents ) June 30, 2022 ) ) Decision pronounced: ) August 11, 2022 cameron JA Introduction [ 1 ] The applicant brings two motions for an extension of time to file notices of appeal from the orders of the motion judge granting the motions of the respondents the Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) (the MAHCP), the Concordia Hospital (Employer) (the employer) and the Manitoba Labour Board (the board) to strike out the notice of application in Court of Queen’s Bench File No.

CI20-01-26779 (the application) and the statement of claim in CI20-01-27318 (the claim) without leave to amend as well as declaring the applicant to be a “vexatious litigant relative to her employment [with the employer]” ( 2021 MBQB 87 at para 40 ).

Costs were ordered in favour of each the respondents on a Class 3 basis. [ 2 ] The decision of the motion judge resulted in separate orders being filed by each of the parties at different times, but essentially, they were all the same. [ 3 ] The current notices of motion filed by the applicant only request an extension of time to appeal the orders filed by the MAHCP on October 6, 2021 (the orders).

However, because the orders struck the application and the claim without leave to amend in their entirety as against each of the respondents, and declared the applicant to be a vexatious litigant relative to her employment with the employer, each of them fully participated in these proceedings. [ 4 ] For the reasons that follow, I would dismiss the applicant’s motions. Background [ 5 ] The background to these proceedings is lengthy.

The key facts were described by the motion judge (at para 2): . . . a) [The applicant] was employed at [the employer] for approximately 22 years as a Radiology Technician, and at all material times the terms of her employment were subject to a collective agreement;

b) In January 2012, [the applicant’s] employment was terminated for cause, after which the [MAHCP], filed a grievance relating to the termination (the “Grievance”). [The applicant] takes the position that her employment was terminated because she was injured on the job and was scheduled for surgery;

c) The Grievance was settled in January 2014 prior to a hearing, and a release executed in favour of the [e]mployer. [The applicant] takes the position that the Grievance was settled without her knowledge; d) [The applicant] then filed an unfair labour practice complaint against the [MAHCP] and the [e]mployer with respect to, among other things, the settlement of the Grievance. After a hearing focused upon the [MAHCP’s] conduct with respect to two specific issues (delay and pension entitlement), the complaint was dismissed by the [board] on September 21, 2015.

On October 30, 2015, the [b]oard dismissed an application to review and reconsider that decision; e) [The applicant] sought a judicial review of the [b]oard’s decision in [the Court of Queen’s Bench] in CI 15-01-98811 (the “Judicial Review Application”), which was dismissed on June 22, 2016, with costs to the [MAHCP] of $5,930.08 and the [e]mployer of $5,817.51, which remain unpaid; f) [The applicant] appealed the Judicial Review Application decision, which was dismissed with reasons at Bartel-Zobarich v.

MAHCP et al , 2018 MBCA 109 , with costs to the [MAHCP] of $3,714.82 and costs to the [e]mployer of $3,712.70, which remain unpaid;

g) On February 9, 2018 [the applicant] filed a Statement of Claim in CI 18-01-12675 (the “2018 Claim”) against the respondents . . ., alleging, among other things, wrongful termination, failure to accommodate, failure to provide fair representation, bad faith, negligence and breach of settlement. The 2018 Claim was struck out by Sr. Master Lee (as he then was), without leave to amend, because it did not advance a reasonable cause of action and was an abuse of process given the outcome of the Judicial Review Application. He also ordered costs in favour of the [e]mployer in the amount of $500.00, which have been paid;

h) On July 25, 2019, [the applicant] filed an appeal with the Workers Compensation Review Office, seeking payment of wage loss benefits, which the [e]mployer defended. Neither the [MAHCP] nor the [b]oard were a party to the proceeding. The Review Office dismissed the appeal on September 23, 2019. [The applicant] filed a further appeal to the Workers Compensation Appeal Commission, which was dismissed on February 14, 2020. She has sought no further relief with respect to that dismissal;

i) On August 28, 2019, [the applicant] filed a complaint under The Public Interest Disclosure (Whistleblower Protection) Act , C.C.S.M. c. P217 (the “ PIDA ”), against the [MAHCP] and the [e]mployer, (the “ PIDA Complaint”) which was dismissed by the [b]oard on December 6, 2019 in writing, but without formal, written reasons (which were not required).

On March 10, 2020, the [b]oard dismissed an application to review and reconsider that decision; and j) [The applicant] filed the [a]pplication on March 26, 2020, and the [c]laim on June 8, 2020, both of which are now at issue. [ 6 ] After considering the applicable law, the motion judge found that the application and the claim were frivolous and that they constituted an abuse of process. She held that the claim did not disclose a reasonable cause of action. As regards to the board, the motion judge also held that there was no basis to find that the board was a suable entity.

She struck the application and the claim without leave to amend. [ 7 ] Next, the motion judge reviewed the law regarding vexatious litigants. After reviewing the hearings related to the litigation in these proceedings, she found the applicant to be a vexatious litigant, relative to her employment with the employer. The Relevant Rules [ 8 ] An application for an extension of time to file an appeal is governed by rr 11(1)(

a) and 42 of the MB, Court of Appeal Rules , MR 555/88R (the CA Rules ), which state: Time for service 11(1) Subject to subrules (2) and (2.1), a notice of appeal shall be filed and served within the following time limits:

(

a) in a case where the judgment appealed from is required to be filed, within 30 days after that filing; Extension or abridgement of time 42 Except where these rules otherwise provide, where an application is made, the court or a judge may, by order, extend or abridge the time limits set out in these rules for doing any act or taking any proceeding, and that power may be exercised whether the application is made before or after the expiration of the prescribed time limit. [ 9 ] In Wong v Grant Mitchell Law Corporation et al , 2017 MBCA 49 , Chartier CJM explained that the purpose of an appeal period is to bring finality to proceedings.

He stated that it is not in the public interest to have “matters forever hanging over the heads of opposing parties” (at para 6; see also R v Giesbrecht (EH) , 2007 MBCA 112 at paras 20-22 ). [ 10 ] In this case, the motion judge provided her reasons for decision on April 21, 2021 and the orders were filed on October 6, 2021. The time limit for filing the applicant’s appeals started running on the latter of these two dates.

The applicant did not file her motions to extend time to file her appeals until June 8, 2022, almost eight months after the date that the orders were filed, thereby exceeding the time limit by approximately seven months. The Factors to Consider in Determining Whether to Grant an Extension [ 11 ] The factors for this Court to consider when determining whether to grant an extension of time to commence an appeal are well settled.

They are whether: 1) the applicant had a continuous intention to appeal from a time within the period when the appeal should have been filed; 2) the applicant has a reasonable explanation for the delay; 3) the applicant has an arguable ground of appeal; 4) any prejudice suffered by the other party can be addressed if the extension is granted; 5) whether it is right and just in all the circumstances that the time for commencing the appeal be extended.

See Delichte v Rogers , 2018 MBCA 79 at paras 16-17 ; Samborski Environmental Ltd v The Government of Manitoba et al , 2020 MBCA 63 at para 36 ; and Guilbert v Economical Mutual Insurance Company , 2022 MBCA 1 at para 13 . [ 12 ] As noted by Mainella JA in Delichte , consideration of the final factor requires the Court to “look broadly at the relevant circumstances and do what justice requires” (at para 17; see also Samborski at para 36; and Guilbert at para 13 ).

Analysis Continuous Intention to Appeal [ 13 ] It is important for an applicant to demonstrate that the intention to appeal was formed during the appeal period and continued through the time that the extension was sought (see Giesbrecht at paras 20-22 ; and Guilbert at para 19 ). Dissatisfaction with the result, without more, does not equate to an intention to appeal (see Giesbrecht at para 21 ).

Further, a delay in appealing in order to pursue other remedies has been found to constitute a break in the intention to appeal (see Wong at para 3 ). [ 14 ] In this case, the applicant was clearly unhappy after receiving the decision of the motion judge. Within a week, she sent emails to the respondents, wherein she dissected and refuted the findings and reasons of the motion judge and indicated that she would not be paying costs, as ordered. Despite these emails, she did not file notices of appeal of the orders. [ 15 ] Rather, the applicant chose to pursue other legal remedies.

Specifically, on March 1, 2022, she filed an application with the board seeking a remedy for an alleged unfair labour practice, which was dismissed on March 10, 2022. On March 16, 2022, she filed an application for review and reconsideration of that order which was dismissed on March 23, 2022.

Each of these proceedings are based on the same factual history as earlier outlined. [ 16 ] Furthermore, I was advised by counsel for the MAHCP at the oral hearing of these proceedings that the applicant recently tried to file a claim against the respondents in the Court of Queen’s Bench, but was unable to do so due to the vexatious litigant order. In response, the applicant filed a motion in that Court to amend the orders of the motion judge or to obtain leave to proceed with an action against the respondents pursuant to the vexatious litigant order.

That motion appeared on the civil uncontested motions list on June 6, 2022. At that time, the presiding judge (not the same as the motion judge) advised the applicant that that Court did not have jurisdiction to amend the orders, and that the remedy she sought in that regard could only be granted by this Court.

Two days later, on June 8, 2022, the applicant filed the motions to extend time to appeal that are the subject of these proceedings. [ 17 ] In my view, the actions taken by the applicant in returning to the board and filing to amend the motion judge’s orders in the Court of Queen’s Bench, as well as seemingly trying to obtain leave to proceed with an action against the same respondents, as provided in the vexatious litigant order, do not demonstrate that she had a continuous intention to appeal. Reasonable Explanation for the Delay

[ 18 ] Furthermore, while the reasons provided by the applicant explaining her delay in filing her appeals are sympathetic, they are also problematic. In her affidavits and notices of motion, the applicant outlines the passing of her mother in 2019, and hospitalizations of her father in 2019 and 2020. She describes her role as the caregiver for her father and the requirement that she maintain two households. She also noted that, in September 2021, her father required hospitalization. In 2022, her father’s house was broken into, which required her to file insurance claims.

She also cites COVID-19 issues, lockdowns and inclement weather as reasons for not proceeding sooner. [ 19 ] While I have sympathy for the applicant’s situation, a number of her reasons for the delay pre-date the hearing before the motion judge, which occurred on December 22, 2020.

In addition, many of the challenges described by the applicant, such as COVID-19, lockdowns and the weather are common among many litigants. [ 20 ] I have concerns that, despite the explanations she has provided, the applicant was able to file her applications with the board and a motion in the Court of Queen’s Bench, yet she still did not attempt to file her motions for an extension of time to file her appeals until after she was unable to obtain the relief she sought in the Court of Queen’s Bench.

The applicant was aware of the appeal process in this Court, including the timeline requirements, as she had previously appealed a judicial review decision of the Court of Queen’s Bench dismissing the board’s dismissal of her claims of unfair labour practice against the MAHCP and the employer (see para 5(

f) herein). [ 21 ] Based on all of the above, the applicant has not convinced me that the reasons she has provided for the delay are reasonable. Arguable Ground of Appeal [ 22 ] In Mann v Mitchell , 2019 MBCA 44 (relying on Sattva Capital Corp v Creston Moly Corp , 2014 SCC 53 ; and Boryskiewich v Stuart , 2014 MBCA 77 ), Monnin JA stated that an arguable ground of appeal is “one which survives a preliminary examination under the applicable standard of review and has the potential to succeed and to change the result of the hearing below” (at para 3).

The demonstration of an arguable ground of appeal is a relatively low threshold to meet (see Guilbert at para 27 ). [ 23 ] In Penner v Montcalm (Rural Municipality) , 2020 MBCA 97 , Mainella JA explained that, before a preliminary examination of whether a ground is arguable can take place, discernable grounds of appeal must be identified. He said (at para 15): Rule 4 of the CA Rules sets out the requisite content of a notice of appeal which includes that “the grounds to be argued” be set out (r 4(f)).

To comply with this requirement, an appellant must particularize in the notice of appeal the nature of each alleged error being appealed in a discernible fashion, even if imperfectly done. New grounds may not be added later without leave of the Court. [ 24 ] The board argues that, in this case, the materials filed by the applicant do not meet the above standard. I agree. [ 25 ] In the materials she filed, the applicant does not state any proposed grounds of appeal. Rather, she reargues the history of her claim and the failure of the motion judge to consider new evidence.

Regarding the latter, this is the same type of evidence that this Court refused to admit in Bartel-Zobarich v MAHCP et al , 2018 MBCA 109 . The applicant continues to make the similar unfair labour practice arguments, which were dismissed in that decision as well.

She does not identify any reviewable errors in the reasons of the motion judge. [ 26 ] If I am wrong and the applicant has particularized errors made by the motion judge, I am of the view that she still has not made out an arguable ground. [ 27 ] The applicant argues that she has not received procedural fairness, that the motion judge failed to consider the new evidence, that she had no choice but to sign the release in 2014, that she was not accommodated by the employer to enable her return to work and that she was abandoned by the MAHCP. [ 28 ] In her reasons, the motion judge considered each allegation in the application and in the claim against each of the respondents.

She found significant issues with the application and the claim, stating that the proceedings sought to relitigate issues that had been or could have been addressed in past proceedings, including the applicant’s complaint under The Public Interest Disclosure (Whistleblower Protection) Act , CCSM c P217 . She found that the application and the claim were frivolous and vexatious, that they constituted an abuse of process and that the claim did not disclose a reasonable cause of action.

She considered the law regarding vexatious litigants before declaring the applicant to be one in relation to her employment with the employer. The issues identified by the applicant have been repeatedly dealt with in previous related proceedings brought by the applicant. I am not persuaded that the applicant has identified any arguable grounds of appeal.

Prejudice [ 29 ] While the respondents’ legal positions are not prejudiced by the delay, the continual attempts to relitigate these proceedings have prejudiced the respondents in that they had to repeatedly attend administrative and court proceedings regarding matters that have already been litigated, thereby incurring legal costs. This prejudice is exacerbated by the fact that the applicant refuses to pay the orders of costs made against her throughout most of the litigation she has initiated against the respondents.

Interests of Justice [ 30 ] In light of all of the above, it is clearly not in the interests of justice that the extensions of time to file an appeal be granted.

Decision [ 31 ] In the result, the motions are denied. [ 32 ] Costs on tariff are ordered in favour of the MAHCP and the employer regarding both the application and the claim. In accordance with its request, costs on tariff are awarded to the board only with respect to the claim. [ 33 ] In light of the continuous delays in these proceedings, approval of the form of my orders are dispensed with. JA