Fun Tyme Foods Ltd v Hurteau, 2023 MBCA 91

Citation: Fun Tyme Foods Ltd v Hurteau, 2023 MBCA 91 Date: 20231026 Docket: AI23-30-09968 IN THE COURT OF APPEAL OF MANITOBA BETWEEN : ) C. Hurteau ) on her own behalf FUN TYME FOODS LTD. ) ) J. D. H. King (Appellant/Employer) Respondent ) for the Respondent ) - and - ) T. P. Sandulak ) for Director, Workplace CARRIE HURTEAU ) Safety & Health ) (Employee) Applicant ) T. D.

Edkins ) for The Manitoba Labour - and- ) Board ) DIRECTOR, WORKPLACE SAFETY ) Chambers motion heard: & HEALTH ) October 5, 2023 ) (Interested Party) ) Decision pronounced: ) October 26, 2023 LEMAISTRE JA [ 1 ] The employee seeks leave to appeal the decision of the Manitoba Labour Board (the Board) allowing Fun Tyme Foods Ltd.’s (the employer) appeal of a safety and health officer’s decision. She also seeks an extension of time to file an application for leave to appeal the Board’s decision. [ 2 ] For the reasons that follow, the motions for leave to appeal and for an extension of time are dismissed.

Background [ 3 ] Briefly, the facts giving rise to the applications are as follows. As a result of an improvement order issued by a safety and health officer under The Workplace Safety and Health Act , CCSM c W210 [the WSHA ], the employee organized an election for the selection of a health and safety representative (the election). Subsequent to the election, the employee was called into a meeting with the employer. The employee alleged that, during the meeting, the employer demoted her.

She contacted the Workplace Safety and Health Branch (the WSHB) about the demotion, as well as an altercation she had with another employee. She alleged that she had been harassed and that she was facing possible termination as a reprisal for her involvement in the election. Shortly after the employee made her complaint to the WSHB, the employer terminated her employment without cause. [ 4 ] After an investigation, the safety and health officer determined that the employee had suffered a reprisal contrary to

section 42 of the WSHA . The employer appealed this decision to the Director of the WSHB (the Director) (see section 37(1) of the

WSHA ). The Director referred the appeal to the Board (see

section 38 of the WSHA ). [ 5 ] The Board conducted a three-day, virtual hearing. At the hearing, the employee testified, as did the employer and its witnesses, and both parties made oral representations. The Board did not permit the employee to call her proposed witnesses. [ 6 ] During the hearing, the Board attempted to clarify the employee’s complaint.

She stated “that it was the election of the safety representative that caused the breakdown in the employment relationship and caused her to lose her employment.” [ 7 ] After the hearing, the Board issued an order with reasons in which it concluded that, although the employee was terminated by the employer, “the uncontroverted evidence” did not support her allegation “that she was terminated for triggering [the] election”.

It stated, “No evidence led at the hearing could reasonably lead this Board to reach that same conclusion.” The Board allowed the appeal and dismissed the employee’s complaint; in effect, it set aside the safety and health officer’s decision (see section 39(6) of the WSHA ). [ 8 ] The employee filed her motion for an extension of time to file her leave motion approximately three months after the Board issued its order. The employer argues that an extension of time, if required, should not be granted.

Counsel for the Board points out that there is no specific timeline in the WSHA for the filing of a motion for leave to appeal. Analysis [ 9 ] Section 39(9) of the WSHA provides for an appeal to this Court, with leave, on a question of law or jurisdiction.

It states: Appeal to Court of Appeal 39(9) A person who is a party to an order of the Board made under subsection (6) may appeal the order to The Court of Appeal, but only on a question of law or jurisdiction and by leave of a judge of the Court. [ 10 ] In Janzen et al v Hi-Tec Industries Ltd , 2006 MBCA 17 [ Janzen ], on a motion for leave to appeal, the employer raised the issue of delay by the applicants in advancing their claims with the WSHB. In that case, the Board had dismissed the appeals due to “extreme delay” (at para 17).

The employer argued that the appeals to this Court should also be dismissed due to the delay. The Court rejected the employer’s argument and stated, “There is no statutory time limit for appeals under sec. 39 of the WSHA ” (at para 11). [ 11 ] Although Janzen appears to confirm the Board’s position that there is no time requirement to file a motion for leave to appeal, as I will explain, I am of the view that I need not decide whether an extension is required in this case. [ 12 ] There is an overlap between the tests for granting an extension of time and granting leave to appeal.

The criteria for granting an extension are as follows: 1) a continuous intention to appeal from a time within the period when the appeal should have been commenced; 2) a reasonable explanation for the delay; 3) arguable grounds of appeal ; 4) any prejudice suffered by the other party can be addressed; and 5) whether it is right and just in all the circumstances that the time for commencing the appeal be extended.

See Bartel-Zobarich v Manitoba Association of Health Care Professionals (MAHCP-Bargaining Unit) et al , 2022 MBCA 64 at paras 11-12 . [ 13 ] Leave to appeal may be granted on a question of law or jurisdiction of sufficient importance to warrant consideration by this Court, provided the question has a reasonable chance of success (see Winnipeg (City of) v Manitoba (Director, Contaminated Sites Remediation Act) et al , 2022 MBCA 72 at para 36 ). [ 14 ] In my view, the employee has not raised any arguable grounds of appeal with a reasonable chance of success.

Therefore, she has not met either test. [ 15 ] Apart from the issues relating to procedural fairness, all of the issues the employee has raised are exclusively questions of fact or, at most, questions of mixed fact and law, none of which are subject to appellate review under section 39(9) of the WHSA . [ 16 ] For example, in her memorandum of argument, the employee asserts that the Board erred by relying on evidence that was untrue, and failed to find on the evidence that the employer had not paid wages owed to her. She also argues that the Board wrongly concluded that she had not satisfied the requirements of

section 42 of the WSHA ; she says that she did prove that she invoked her rights and that this conduct caused the reprisal.

Leave to appeal may not be granted if the questions raised require the Court to assess or analyze conflicting factual issues (see Levin v Manitoba Public Insurance Corporation et al , 2021 MBCA 16 at para 2 ). [ 17 ] Regarding procedural fairness, the employee argues that the proceedings were unfair because 1) the Director sent her correspondence prior to the hearing that misled her about who bore the onus of proof at the hearing, 2) the employer failed to provide its witness list as instructed by the Board, 3) the Board did not allow her witnesses to testify, 4) she did not have adequate time to prepare for the hearing given the late disclosure of the employer’s witness list on the morning of the hearing, and 5) she could not effectively cross- examine the employer’s witnesses as they were not provided with clean copies of the relevant documents prior to the virtual hearing.

[ 18 ] While issues of procedural fairness are questions of law, in my view, the employee has not established that the issues r aised in this case have a reasonable prospect of success . [ 19 ] To begin, provided it gives all parties an opportunity to present evidence and make representations, t he decisions made by the Board as to practice and procedure are discretionary matters within its purview (see section 140(1) of The Labour Relations Act , CCSM c L10 [the LRA ]).

The Board has the power to formulate general guidelines but it “is not bound by those guidelines in the exercise of its powers or the performance of its duties and functions” (at section 141(2)). Importantly, the Board also has the power to make regulations respecting “the establishment of rules of procedure for its hearings” (at section 141(1)(a)).

The Manitoba Labour Board (The Workplace Safety and Health Act) Rules of Procedure , Man Reg 387/88R [the MLB Rules ] provide the Board with wide discretion to “receive and accept such evidence” regarding the matters raised before it (see rr 4(5) and 5(3)). [ 20 ] I am not persuaded it is arguable that the proceedings were unfair because the employee was misled by the Director as to who bore the onus of proof at the hearing.

The correspondence the employee relies on to support this argument is not in evidence and it is not apparent from the record filed on the motion that the employee raised this issue with the Board. It was for the Board, not the Director, to determine the onus at the hearing. In its reasons, the Board correctly explained the onus, including the “reverse onus” created by

section 42.1(4) of the WSHA . More importantly, the Board’s reasons make clear that the employee understood that she needed to establish that she suffered negative employment consequences because she invoked her rights under the WSHA , and it gave her the opportunity to do so. [ 21 ] The employee’s assertion that the employer failed to provide its witness list as instructed by the Board is contradicted by the record. The employer identified its potential witnesses and provided a

summary of their anticipated evidence five business days prior to the hearing as directed by the Board. [ 22 ] There is no arguable merit to the employee’s assertion that the proceedings were unfair because of the Board’s decision not to permit her witnesses to testify at the hearing.

Its decision was appropriately based on relevance and this was a decision the Board was entitled to make under the MLB Rules . [ 23 ] There is also no arguable merit to the employee’s submissions that the proceedings were unfair because she was not able to adequately prepare, and the employer’s witnesses were not given documents, creating challenges for her during cross- examination. The employee did not request any accommodations to address these issues.

Moreover, the Board provided the parties the opportunity to present evidence and make representations, and was entitled to make the procedural decisions that it did. Conclusion [ 24 ] In the result , the employee has not established arguable grounds of appeal on a question of law. Moreover, the issues raised are not of sufficient importance to warrant the attention of the Court and I have not been persuaded that there is a risk of an injustice if I do not grant leave to appeal. [ 25 ] For these reasons, the motions are dismissed with costs to the employer in accordance with the applicable tariff. JA