Allen v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2011 NSCA 72

NOVA SCOTIA COURT OF APPEAL Citation: Allen v. Nova Scotia (Workers’ Compensation Appeals Tribunal), 2011 NSCA 72 Date: 20110726 Docket: CA 350108 Registry: Halifax Between: Laurie Allen Appellant v. Canada Post Corporation, Workers’ Compensation Board of Nova Scotia, Workers’ Compensation Appeals Tribunal, Attorney General of Nova Scotia Respondents Judge: The Honourable Justice Duncan R. Beveridge Motion Heard: July 21, 2011, in Halifax, Nova Scotia Held: Motion by the appellant to extend time to file an application for leave to appeal is dismissed without costs.

Counsel: Appellant in person Rebekah Powell, for the respondent, Canada Post Corporation Paula Arab, for the respondent, Workers’ Compensation Board of Nova Scotia Louanne Labelle, for the respondent, Workers’ Compensation Appeals Tribunal Reasons for judgment :

INTRODUCTION [ 1 ] Mr. Allen has worked for Canada Post as a letter carrier since 1984. He still does. Mr. Allen started losing time from work due to psychological issues. He claimed his loss of time was due to traumatic or gradual onset stress related to his work with Canada Post. His claim for benefits under the Workers’ Compensation Act , S.N.S. 1994-5, c.10 was denied. He appealed to the Workers’ Compensation Act Tribunal (WCAT). [ 2 ] His appeal to the WCAT was dismissed in a written decision dated March 24, 2011. There is an appeal process set out in the Act . It provides: 256

(1) Any participant in a final order, ruling or decision of the Appeals Tribunal may appeal to the Nova Scotia Court of Appeal on any question as to the jurisdiction of the Appeals Tribunal or on any question of law but on no question of fact.

(2) No appeal shall be made pursuant to subsection (1) without leave of the Nova Scotia Court of Appeal.

(3) The Nova Scotia Court of Appeal shall not grant leave to appeal pursuant to this

Section unless (

a) leave is applied for in accordance with the Civil Procedure Rules within thirty days of the receipt of written communication of the decision of the Appeals Tribunal; and (

b) all other avenues of appeal provided for in this Act have been exhausted. [ 3 ] There is no automatic right to appeal from a decision of the WCAT. To appeal, the participant must first seek and obtain leave to appeal. That application must be heard by a panel of this Court. Section 256(3)(

a) stipulates that leave shall not be granted unless it was applied for “in accordance with the Civil Procedure Rules within thirty days” of the receipt of the decision of the WCAT. Mr. Allen failed to bring an application for leave to appeal within 30 days. [ 4 ] He brings this motion asking I extend the time to file his application for leave to appeal. Notice of the proceedings was given to the Attorney General, the employer, WCAT, and the Worker’s Compensation Board (WCB). The Attorney General declined to intervene.

The WCB and WCAT gave notice of their intention to participate in the proceedings, but took no position on the requested extension of time. Canada Post opposes the extension. [ 5 ] Assuming that I have jurisdiction to grant the extension, for the reasons that follow, I would decline to do so. ANALYSIS [ 6 ] Mr. Allen is self-represented. He also represented himself before the WCAT. I raised with the parties the issue of my jurisdiction to grant the requested relief. There is little doubt that a judge of the Court has the authority to extend or abridge time limits prescribed by the Civil Procedure Rules .

Rule 90.37(12)(

h) provides: 90.37

(12) A judge of the Court of Appeal hearing a motion, in addition to any other powers, may order any of the following: (

h) that any time prescribed by this Rule 90 be extended or abridged before or after the expiration thereof. [ 7 ] However, the Civil Procedural Rules do not prescribe a time for bringing an application for leave to appeal from a decision of the WCAT. The Workers’ Compensation Act does.

[8] The Judicature Act, R.S.N.S. 1989, c. 240, s. 1, provides for an appeal to the Nova Scotia Court of Appeal from any decisionof the Supreme Court, or a judge thereof (s. 38). No time requirement is stipulated in the Judicature Act. The Civil Procedure Rules sets25 days (as those days are to be calculated by the directions in Rule 94) for general appeals; and 10 days with respect to appeals fromcosts or interlocutory orders. [9] The Civil Procedure Rules say the following about the time to start an appeal: Deadline for starting appeal 90.13

(1) An appeal under legislation that provides a deadline for starting the appeal must be started no later than the time providedin the legislation and the calculation of the days shall be as intended by the legislation.

(2) An appeal, or application for leave to appeal, from one of the following kinds of orders, or from the decision upon which it isbased, must be started no more than the number of days in the following table after the date of the order, unless legislation provides, or ajudge of the Court of Appeal permits, otherwise: Kind of Order Number of Days After under Divorce Act 30 days, within the meaning of Divorce Act under Workers’ Compensation Act 30 days within the meaning of Workers’ Compensation Act interlocutory or costs only order of judge orcourt 10 days, within the meaning of Rule 94 other order of judge or court 25 days, within the meaning of Rule 94 order of tribunal 25 days, within the meaning of Rule 94

(3) An appeal from a decision of a court or tribunal that has not issued an order must be started no more than the number of daysstated for the applicable proceeding listed in the above table, after the day the decision is made, unless legislation provides, or a judge ofthe Court of Appeal permits otherwise. [10] The Workers’ Compensation Act does not define “ 30 days”. In my opinion, the Rules, in their present format, may not give tothe Court, or a judge of the Court, the authority to extend the time to bring an application for leave to appeal under that Act.

My concernarises from the lack of clear authority in the Rules, or elsewhere to do so, particularly in light of the statutory direction in s. 256(3) of theAct that the Court shall not grant leave to appeal unless the application for leave was brought within 30 days. Why would I have thepower to extend that time, when the legislature has said the Court cannot grant leave to appeal? [11] The necessity for statutory authority to extend a prescribed time was considered by this Court in Re Chafe (1974), (NS CA), 10 N.S.R. (2d) 261. The procedural history in Chafe is somewhat unclear.

The legislation at the time provided:

(1) An appeal shall lie to the Appeal Division of the Supreme Court from any final decision of the Board upon any question as to itsjurisdiction or upon any question of law, but such appeal can be taken only by leave of a judge of the Court, given upon a petitionpresented to him within fifteen days after the rendering of the decision, and upon such terms as said judge may determine. Notice of suchpetition shall be given to the Board at least two clear days before the presentation of such petition. [12] The decision of the Board was made May 22, 1974.

The petition for leave was filed with the Court on June 7, 1974, but notheard until June 14, 1974. Macdonald J.A. wrote the decision for the panel. He concluded that the application for leave to appeal wasout of time, and the Court was without power to extend. He reasoned: 12 I am of the opinion that Civil Procedure Rules 62.01 (

a) and 62.36 are not relevant and of no assistance. Rule 3.03(1) by its termsapplies to times fixed by the Civil Procedure Rules or by order. This rule is similar to English Order 3 Rule 5(1) which is the successor toOrder 64, Rules 6 and 7 of the "Rules of the Supreme Court, 1883". Under these latter rules, and subject to an exception that is notmaterial here, it has been held that the Court has no power to extend the time fixed by statute, on the principle that

an Act of Parliamentwhich limits the time could not be altered otherwise than by the authority which made the enactment, i.e., the legislature. 13 See: In re Oliver and Scotts' Arbitration (1890), 43 L.R., Ch. D. 310, per Kekewich, J., at p. 313. 14 In Atkinson v. Dominion of Canada Guarantee and Accident Co. (1908), 16 O.L.R., 619, Meredith, C.J., at p. 632 said: Authority is not needed for the proposition that where the time is fixed by statute and the statute confers no power on the court to extendit, the rules as to enlarging time can have no application. 15 See also: Stringer v.

Nyman, (ON CA), [1956] O.W.N. 182, where it was held that there was no jurisdiction inthe court to extend the time limited for appeal under the Mining Act of Ontario. 16 In view of the foregoing it is my opinion that in this case the Court does not have jurisdiction to grant an order extending the timelimited for applying for leave to appeal under s. 140(1) of the Act.

I reached such opinion with regret and regret also that the statute wasnot so framed to provide either for extension of the time limited by s. 140(1) of the Act or to make the Civil Procedure Rules applicableto such statute. [13] The Judicature Act bestows very broad rule making powers on the Supreme Court and the Court of Appeal (ss. 47, 48 and 49). This includes the specific power to make rules extending the time to appeal even where the time limit is set out in specific legislation.

Section 50 provides: 50. Where an enactment authorizes an appeal to the Supreme Court or the Court of Appeal and prescribes a time period during which (

a) the appeal is to be commenced; (

b) an application for leave to appeal is to be made; (

c) a notice is to be given; or (

d) any other procedural step preliminary to the appeal is to be taken,

the judges of the Court may make rules respecting extension of the time period, notwithstanding that the time period has expired. R.S., c.240, s. 50; 1992, c. 16, s. 66. [14]

Section 50 of the Judicature Act was not in place when our Court considered Re Chafe.

Section 50 was introduced by S.N.S.1987, c. 38. An appeal from a decision of the WCAT is a tribunal appeal. Rule 90.07 specifically provides for the procedure for suchappeals. It states: Notice of appeal (tribunal) 90.07

(1) A provision in legislation prescribing the procedures to be followed for a tribunal appeal, including a provisionprescribing how and when the appeal must be brought, and to whom the notice of appeal must be delivered, prevails over anyinconsistent provision of this Rule 90, other than Rules made pursuant to s. 50 of the Judicature Act.

(2) An application for leave to appeal pursuant to the Workers’ Compensation Act must be made in Form 90.07A and if leave toappeal is granted a notice of appeal (tribunal) in accordance with this Rule must be filed. [15] Is there then a rule made pursuant to s. 50 of the Judicature Act that could be said to govern? There is none found directly inRule 90. However, Rule 90.02 provides that the Civil Procedure Rules that are not inconsistent with Rule 90 apply to proceedings in theCourt of Appeal with necessary modifications as may be directed by the Court or a judge thereof. Rule 94.03 might provide thenecessary authority to extend time. It says: 94.03

(1) A person who wishes to obtain an extension of a period referred to in

Section 50 of the Judicature Act may make amotion in an appeal or in reference to an intended appeal.

(2) A judge may determine the motion by exercising a discretion similar to that recognized by Rule 2.03, of Rule 2 - General. [16] In my opinion, there is nothing inconsistent between Rule 94.03 and Rule 90. However, I have not had the benefit ofconsidered submissions on this issue on the overall issue of jurisdiction to grant the relief requested. In the circumstances, I will assumethat I have the power to extend the time for a prospective applicant to apply for leave to appeal. [17] The issue becomes should I grant Mr. Allen’s request? The principles to be applied are well known. Mr.

Allen did not file abrief with his Motion materials, but Rebekah Powell, counsel for Canada Post, filed a detailed brief on July 12, 2011. Her brief sets outthe relevant authorities that define the test to be applied. In a nutshell, the ultimate question is whether the circumstances are such thatjustice requires the extension be granted.

In considering that question, the Court will want to know if the applicant had a bona fideintention to appeal while the right existed, the reason for not filing the application for leave to appeal within the prescribed time, and theapparent strength or merit in the proposed grounds of appeal. (See Tibbetts v. Tibbetts, (1992), (NS CA), 112 N.S.R.(2d) 173 (C.A.), Farrell v. Casavant, 2010 NSCA 71.) [18] Mr. Allen had the benefit of this material. In addition, at the outset of the hearing of the Motion, I reviewed with Mr.

Allenthe test and the issues that I would consider in exercising my discretion to extend the time. He confirmed he understood. I heard andconsidered his submissions, including reference to matters technically not in evidence. Unfortunately, Mr. Allen’s motion does not meetany of the usual criteria. I will explain. [19] Mr. Allen’s motion to extend the time was supported by his Notice of Motion, his affidavit and draft Notice of Application forLeave to Appeal. All are dated May 27, 2011 and were filed with the Registrar on that day. His affidavit attaches his proposed Notice ofApplication for leave to appeal.

The only substantive paragraph says: 3. THAT I have been working every day in May beyond court office closing time. Also from May 24 to 26 I was preoccupied withplumbing (household) problems at my civic address and although I was on leave, unexpected circumstances dictated that the time I

anticipated was to be used to complete the appeal was supplanted by other more pressing demands requiring my attention. [ 20 ] Mr. Allen does not say when he received the decision of the WCAT. Canada Post filed an affidavit by Yanya Vukelich sworn July 7, 2011. The affidavit sets out Mr. Allen’s hours of work from March 24 to May 27, 2011. It also recites that the written decision of WCAT was received by Canada Post on March 29, 2011. Mr. Allen did not dispute that is the date he likely also received the written decision. [ 21 ]

Section 19 of the

Interpretation Act , R.S.N.S. 1989, c.235 directs how time periods are to be calculated. By my calculation, applying those directions, he had until April 28, 2011 to file his application for leave to appeal. He does not say in his affidavit when he formed the intention to pursue an appeal, but he did confirm during the hearing that he knew there was time limit on pursuing an appeal, and that it was 30 days from when he received the WCAT decision. [ 22 ] Ms. Vukelich’s affidavit confirms that there were numerous days in April where Mr.

Allen finished work at 3:30 in the afternoon, and hence could have attended the courthouse to deal with the formalities of filing his application for leave to appeal. In addition, he was off work on scheduled leave April 26, 27, 28 and 29. [ 23 ] I am not satisfied that Mr. Allen had a bona fide intention to appeal within the prescribed time period, nor that he has a reasonable excuse for not filing his application for leave to appeal within that time. [ 24 ] I have not overlooked Mr. Allen’s explanation offered during the hearing before me.

Essentially, he said he went to the Court office, although it was unclear when, and was told by Court officials that they needed to assess the merits of his proposed appeal before permitting him to proceed with it. It was only when the Court office called him back, leaving a message on his phone that they had approved him going ahead, he then went (presumably on May 27) to file his documents. This explanation suffers from a number of problems. First the explanation was not properly in evidence before me. No mention was made of it in his affidavit of May 27, 2011, sworn before one of the Court officials.

If he believed that the delay was actually caused by the wait for an assessment by a Court official to assess merit, surely this would have been set out in his affidavit. More significantly, it does not make sense. The Court office has absolutely no role to review for merit prospective Notices of Appeal, or Applications for Leave to Appeal. Mr.

Allen’s explanation simply does not accord with how the Court office is known to operate. [ 25 ] Since the real issue is whether justice requires the requested extension of time, it is important not to mechanically reject a request simply because an applicant cannot satisfy one or more of the criteria that informs that overarching issue. All of the circumstances should be considered. One of the circumstances is the apparent strength or weakness of the proposed appeal. [ 26 ] Here, the proposed appeal involves seeking leave to appeal from this Court pursuant to s. 256 of the Workers’ Compensation Act .

Section 256 limits appeals to this Court to questions that deal with the jurisdiction of the WCAT or on questions of alleged legal errors by the WCAT, but not on questions of fact. It is axiomatic that it is not in the interests of justice to extend time for an applicant to file his or her application for leave to appeal where the proposed application is doomed to failure. In my opinion, Mr. Allen’s proposed application for leave to appeal is entirely without merit, and hence doomed to fail. I will elaborate. [ 27 ] Section 256(3)(

a) of the Workers’ Compensation Act arguably precludes granting leave unless it is applied for within thirty days of receipt of the WCAT decision. If the Court is precluded from granting leave to appeal, what point would there be in granting an extension to file his application for leave to appeal – it would be doomed to failure. Leaving that issue aside, what grounds does Mr. Allen propose to seek leave on?

His proposed grounds are: “The weight of evidence deserves a better presentation I feel the employer has set forth submissions, I would (an opportunity granted) like to address because they are false or misleading.” [ 28 ] I squarely raised with Mr. Allen during the hearing my concern that his proposed grounds of appeal did not appear to raise any arguable issue of law. I asked him to elaborate. It seems that his grounds really boil down to one complaint. He was self represented during the WCAT hearing. It was his perceived deficiencies about how he presented his case during that hearing, and how he met that

of the employer, he wants to complain about to the Court of Appeal. He alleges no procedural unfairness – just that he wants an opportunity to do a better presentation of his case. An appeal is not a rehearing. Furthermore, if a person chooses to represent himself at a hearing, he cannot later complain his representation was so deficient that he can obtain a legal remedy on appeal (see R. v. Gordon , [2003] O.J. No. 2145 (C.A.) ; R. v. Peepeetch , 2003 SKCA 76 ). [ 29 ] In my opinion, the complaints by Mr. Allen do not raise any arguable issue of law upon which the Court could grant leave to appeal.

SUMMARY AND CONCLUSION [ 30 ] Assuming that I have jurisdiction to grant the requested extension of time to file an application for leave to appeal from the decision of the WCAT dated March 24, 2011, I am not satisfied that it is in the interests of justice to do so. Mr. Allen has not satisfied me that he had a bona fide intention to appeal within the prescribed time period, nor a reasonable excuse for failing to do so. Furthermore, the proposed grounds of appeal upon which Mr. Allen would be seeking leave do not raise issues that would arguably permit this Court to grant leave to appeal.

There are no circumstances that would warrant granting the requested extension. [ 31 ] The Motion to extend time is dismissed, but in the circumstances without costs. Beveridge, J.A.