Docket: CACV2219 International Association of Heat & Frost Insulators & Asbestos Workers, Local 119 Prospective Appellant (Respondent) - v. -, 2012 SKCA 25

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2012 SKCA 25 Date: 20120307 Between: Docket: CACV2219 International Association of Heat & Frost Insulators & Asbestos Workers, Local 119 Prospective Appellant (Respondent) - and - Fuller Austin Insulation Inc. Prospective Respondent (Applicant) - and - William Wardell, Q.C. as a Board of Arbitration Respondent

Before: Richards J.A. (in Chambers) Counsel: A. Richard Engel, Q.C. for the Prospective Appellant Alan G. McIntyre for the Prospective Respondent Application: From: 2010 SKQB 269 Heard: February 22, 2012 Disposition: Application dismissed Written Reasons: March 7, 2012 By: The Honourable Mr. Justice Richards Richards J.A. I. Introduction [ 1 ] International Association of Heat & Frost Insulators & Asbestos Workers, Local 119 (the “Union”) is the bargaining agent for employees who work for Fuller Austin Insulation Inc. (“Fuller Austin”).

The Union filed a grievance related to overtime work schedules and an arbitrator ruled in its favour. Fuller Austin then brought a judicial review application in the Court of Queen’s Bench. The Chambers judge quashed the arbitral award in a decision rendered in July of 2010. The Union, for reasons explained below, failed to launch an appeal to this Court within the 30-day period specified in The Court of Appeal Act, 2000 , S.S. 2000, c. C-42.1. [ 2 ] The Union now seeks an order extending the time in which it may file a notice of appeal. The issue before me is whether that request should be granted. II.

Some Background [ 3 ] Fuller Austin is an industrial insulation specialist. As noted, the Union represents workers employed by Fuller Austin. Both the Union and Fuller Austin are bound by a collective agreement known as the Provincial Insulators’ Agreement (the “Agreement”). The Agreement provides for two work weeks: a five-day

schedule with eight work hours per day and a four-day

schedule with ten hours per day. [ 4 ] In 2008, the Terra Grain project at Belle Plaine was significantly behind schedule. Discussions took place between Fuller Austin and the Union’s business manager about how to address this problem. There was concern on the part of the parties that there might not be a sufficient number of workers available. As a result, it was agreed that greater hours and incentives would be offered to attract the necessary manpower.

Specifically, it was agreed that employees would work 11 ten-hour days in a row with three days off and, in addition, would receive a living allowance even though such an allowance was not required by the Agreement. [ 5 ] Fuller Austin then placed a manpower request, or “call”, in the agreed terms. It did this at the end of March of 2008. The call was filled, i.e. the necessary workers responded. All went well for several months. However, beginning in mid-2008, some employees declined to work more than eight hours per day.

Fuller Austin responded by withholding their living allowance for such days and issuing letters of warning in connection with their having left the worksite without permission. [ 6 ] This led to a grievance being filed in relation to two issues: (

a) whether the living allowance was payable to insulators who worked eight hours a day or less, and (

b) whether the overtime contemplated in the call was voluntary or mandatory. (Only this latter question is

a live issue in the application now before me.) [ 7 ] With respect to the “overtime” aspect of the grievance, the centre of the dispute concerned the effect of s. 12(1) of The Labour Standards Act , R.S.S. 1978, c. L-1.

It specifies limits on overtime in situations where an employee does not consent to such work: 12(1) Notwithstanding any other provision in this Act, no employer shall, without the consent of the employee, require an employee to work or to be at his disposal for more than 44 hours in any week or, in the circumstances referred to in clause 10(1)(a), 36 hours in any week, except in the case of emergency circumstances. [ 8 ] The arbitrator concluded that the overtime in issue was not voluntary and, as a result, was limited to no more than 44 hours per week in the absence of the consent of the individual workers involved.

In his view, the Union could not provide the required consent on behalf of its members. [ 9 ] Fuller Austin then brought a judicial review application. The Chambers judge overturned the arbitrator’s award. He reasoned that, in light of the call, the posted overtime was mandatory. He went on to conclude that, by responding to the call, individual workers had in fact consented to the overtime

schedule as per the requirements of s. 12 of The Labour Standards Act . [ 10 ] The decision of the Chambers judge was rendered on July 27, 2010. An application to extend the time for filing a notice of appeal was filed in this Court on January 27, 2012. III. Analysis [ 11 ] Section 9(2) of The Court of Appeal Act, 2000 , which is applicable here, says a notice of appeal must be served within 30 days of the decision appealed from. However, s. 9(6) allows a judge of this Court to extend an appeal period where it is just and equitable to do so: 9(6) On the application of any party, a judge or the court may extend an appeal period mentioned in this

section where, in the opinion of the judge or court, it is just and equitable to do so. [ 12 ] The factors considered in adjudicating an application to extend the time for bringing an appeal were described as follows in Dutchak v. Dutchak , 2009 SKCA 89 , 337 Sask. R. 46 at para. 12 : … in determining whether leave should be granted the applicant must persuade the Court that: (

i) there is a reasonable explanation for the delay; (ii) he or she possessed a bona fide intention to appeal within the time limited for appeal; (iii) there is an arguable case to be made to a panel of the Court; and (iv) there will be no prejudice to the respondent, if leave is granted beyond what would be incurred in the usual appeal process. In any given case, one or more factors may be more important than another. [ 13 ] In examining these four considerations, the requirements of an “arguable case” and of an “intention to appeal within the time limited for appeal” can be dispensed with quite readily.

With respect to the former, I will say no more than that, in light of the submissions of counsel, there is obviously at least an arguable issue at stake in the proposed appeal. Indeed, although Fuller Austin believes the decision of the Chambers judge is entirely correct, I do not understand it to say there is no arguable position to the contrary. Similarly, and also quite properly, Fuller Austin does not take issue with the contention on the Union’s part that it had formed an intention to appeal within the prescribed 30-day appeal period.

As a result, the meat of this application concerns the questions of the adequacy of the Union’s explanation for the delay in bringing an appeal and the possibility of prejudice to Fuller Austin if an appeal is undertaken. It is to these two matters which I now turn. A. Adequacy of Explanation for Delay [ 14 ] The Union filed the affidavit of Chuck Rudder, its business manager. Mr. Rudder deposes as follows: • On or about August 3, 2010, on receipt of the decision of the Chambers judge, he instructed the Union’s then counsel (not Mr.

Engel who acts for the Union on this application) to appeal. • On several occasions, in discussions with counsel, he inquired whether the appeal had been filed.

• During one conversation, counsel advised that she had missed the appeal period but that leave to appeal outside the appeal period could be sought. • On or about September 15 or 16 of 2010, during contract negotiations with the Construction Labour Relations Association of Saskatchewan Inc. (“CLR”), the organization which negotiates on behalf of unionized employers in the construction industry, he advised CLR that the Chambers decision had been appealed.

CLR informed him that, in fact, it had not been appealed. • On or about the end of November of 2011 or December of 2011, while meeting with counsel, he asked whether she had been able to follow through on his instructions with respect to appealing the Chambers decision. Counsel assured him that she would be able to handle the matter. • Subsequent to this meeting, he advised counsel that he would be seeking a new lawyer. Mr. Engel was then contacted and met with Mr. Rudder in early January.

He conducted conflicts checks and filed the application in issue here on January 27, 2012. [ 15 ] The Union also filed the affidavit of its former counsel. She says: • She received instructions to appeal the Chambers decision on August 4, 2010. • She believed the appeal period was longer than 30 days and, therefore, did not meet that deadline. • Mr. Rudder and Mr. Parker (business manager of the Saskatchewan Provincial Building & Construction Trades Council) inquired about the appeal on September 17 and September 29 of 2010, respectively.

She advised them that she had not yet had an opportunity to file the appeal. • In October or early November of 2010, she discovered the appeal period was 30 days and, on or about November 9, 2010, received instructions from Mr. Rudder to seek an extension of the time for filing the appeal. • Mr. Rudder asked her on a number of occasions if she had filed the appeal and she told him she would do so as soon as she had time. The last occasion on which this happened was in late November or early December of 2011. • She believes she raised the prospect of an appeal as a “side issue” in conversations with Mr.

McIntyre (counsel for Fuller Austin) about other matters in December of 2010, May of 2011 and early December of 2011. [ 16 ] As is apparent, the delay in bringing this appeal forward was very considerable. Eighteen months elapsed between the date on which the Chambers decision was released and the date the Union filed this application for extra time. Mr. Rudder’s affidavit adequately explains what happened in the two months between July 27, 2010 (the date of the Chambers decision) and mid-September of 2010 (when he was advised that no appeal had been filed).

During this period, he was quite reasonably proceeding on the basis that the Union’s counsel had acted on his instructions and launched the appeal. [ 17 ] The interval after September of 2010 and leading up to the Union contacting Mr. Engel in December of 2011 is more problematic. After learning the appeal had not been filed, it apparently took almost two months for Mr. Rudder to speak to the Union’s counsel. Further, as I read his affidavit, Mr. Rudder is unclear about the 12 or 13 months that elapsed before he contacted Mr. Engel.

It seems he had some contact with counsel but the number and full nature of such contacts is not spelled out. On this point, I would have thought that an organization like the Union (being not unfamiliar with legal-type processes by virtue of its ongoing involvement in arbitrations of one sort or another) might have been expected to follow up on the matter with more urgency. This is particularly so if the appeal was as important to the Union as Mr. Rudder indicates in his affidavit. [ 18 ] The Union’s former counsel does not shed a great deal of extra light on the matter. She says Mr. Rudder and Mr.

Parker made inquiries about the status of the appeal in September of 2010, that she received instructions to seek an extension of time in early November of 2010 and indicates that on a number of times (no further information provided as to how many times she was contacted or when she was contacted) Mr. Rudder asked if she had filed the appeal.

[ 19 ] In general terms, of course, a client should be able to rely on the representations of counsel with respect to whether something like a notice of appeal has been filed. But no such representations were made in this case. Rather, counsel advised Mr. Rudder on several occasions that she would get to the appeal or would get to it when she had time. The Union ultimately seems to have lost patience with her but it took well over a year to get there. [ 20 ] In the end, I am not prepared to say the Union’s explanation for its delay in moving forward is unreasonable.

But, that said, it is not particularly compelling either. B. Possible Prejudice [ 21 ] Fuller Austin, through the affidavit of its general manager Shaun Ekert, indicates that the collective agreement under negotiation in September of 2010 was finalized in January of 2011. Mr. Ekert says no issue was raised during the course of the negotiations about whether scheduled overtime should be mandatory. He also indicates that, after September 15 or 16 of 2010, there was no further indication as to whether the Chambers decision was, or was not, under appeal.

He says he first learned of the application presently under consideration in January of 2012, many months after the Chambers decision. During that interval, the Union and Fuller Austin apparently have conducted their affairs in accordance with the Chambers decision. [ 22 ] In light of this background and the fact that the Terra Grain project has been long concluded, counsel for Fuller Austin suggests the Union is attempting to use an appeal to this Court as a way of, in effect, amending the Agreement.

He argues that, if these issues are important to the Union, they should have been on the table in the context of the recently concluded round of collective bargaining. I understand him to say that Fuller Austin would be prejudiced if this appeal were to go ahead because it bargained on the basis that the Chambers decision was not under appeal and that it could rely on the overtime regime affirmed by the decision. [ 23 ] In response, the Union says it did not attempt to bargain the overtime issue because it was not required to do so. Citing Parry Sound (District) Social Services Administration Board v.

O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157, it says a collective agreement cannot displace employees’ statutory rights, such as those found in s. 12 of The Labour Standards Act . It also says that it has tried to minimize the potential prejudicial effect of the appeal on Fuller Austin by restricting the relief it seeks to a mere declaration. It makes no claim for back wages or lost opportunity for time off. [ 24 ] In my view, Fuller Austin’s concerns are legitimate. The Union might not have been able to bargain away its members’ substantive entitlements under s. 12 of The Labour Standards Act .

Nonetheless, it would seem that it would have been possible for Fuller Austin and the Union to negotiate in relation to the procedure or mechanisms which might be employed to get an individual employee’s “consent” as contemplated by s. 12. This would presumably have gone some distance toward giving Fuller Austin and other employers in its position a measure of certainty with respect to the hours they can reliably expect from employees who respond to a call like the one issued in this case. IV.

Conclusion [ 25 ] I conclude that the assessment of “justice and equity” referred to in s. 9(6) of The Court of Appeal Act, 2000 tips against the Union. Its explanation for the reasons for the delay in bringing this matter before the Court is not free of difficulties. But, much more to the point, Fuller Austin has made out a case that, by virtue of the delay, it will suffer prejudice if the appeal goes ahead at this late date. [ 26 ] The Union’s application is dismissed. Fuller Austin is entitled to costs in the usual way.

DATED at the City of Regina, in the Province of Saskatchewan, this 7th day of March, A.D. 2012. “Richards J.A.” Richards J.A.