Docket: CACV2373 Retail, Wholesale v. Department Store Union, Local S-955, 2013 SKCA 56

THE COURT OF APPEAL FOR SASKATCHEWAN Citation: 2013 SKCA 56 Date: 2013-05-24 Between: Docket: CACV2373 Retail, Wholesale and Department Store Union, Local S-955 Appellant - and - Lilydale Inc. Respondent Before: Jackson J.A. (in Chambers) Counsel: Gary Bainbridge for the Prospective Appellant Adrian Elmslie for the Prospective Respondent Application: From: 2011 SKQB 396 Heard: March 25, 2013 Disposition: Dismissed Written Reasons: May 24, 2013

By: The Honourable Madam Justice Jackson Jackson J.A. I. Introduction [1] This is an application to extend the time to appeal a decision of the Court of Queen’s Bench to this Court. By the time theproposed appellant advised the proposed respondent of its intention to apply to extend the time to appeal, almost one year had passedsince the time period for bringing the appeal had expired. I have concluded that the application should be dismissed. II. Background [2] The parties before the Court are: (

i) the Retail, Wholesale and Department Store Union, Local S-955, as the bargaining agent forthe employees at Lilydale Inc.’s poultry processing facility at Wynyard, Saskatchewan; and (ii) Lilydale, the employer at the Wynyardpoultry facility. The Union is the proposed appellant and seeks the extension of time.

Lilydale is the proposed respondent and resiststhe granting of an extension. [3] By way of brief background, the underlying dispute between the Union and Lilydale arises from a grievance filed by the Union,alleging that Lilydale had improperly transferred work from its Wynyard facility to a poultry processing facility in Calgary, contrary tothe collective agreement. This grievance was filed in June of 2008. [4] Resolution of the dispute depends on the

interpretation of these two articles contained in the collective agreement then in force:

ARTICLE 12 - MANAGEMENT RIGHTS 12.01 The Company shall have the exclusive right and power to manage the business and direct the working forces, including the rightto hire, suspend, discipline for just cause, discharge for cause, lay off, promote, assign to jobs, transfer employees from department todepartment, to increase or decrease the working force, to determine the products to be handled and nothing in this Agreement shall beintended, or is to be construed in any way to interfere with, the recognized right of the Company to manage and control its business but itis agreed that nothing in this clause shall be used to discriminate against any employee or the Union and this clause shall not be used forthe purpose of avoiding the effects of the other provisions of this Agreement. … . . .

ARTICLE 21 - NO CONTRACTING OUT 21.01 In order to provide job security for the members of the bargaining unit, the Company agrees that all work or services performedby the employees shall not be sub-contracted, transferred, leased, assigned or conveyed in whole or in part, to any other plant, person,company or non-unit employee unless otherwise agreed in writing by the Union and the Company. [emphasis added] [5] The Union alleges that Lilydale breached

Article 21.01 by transferring “Tray Pack” and “Thigh Deboned” processing work fromits Wynyard Plant to its Calgary Plant without first obtaining the Union’s consent. Lilydale counters by saying it did not transfer“work”, but rather it discontinued operations in Wynyard while maintaining operations in Calgary. [6] A three-person Board of Arbitration was constituted to hear the grievance in accordance with the provisions of the collectiveagreement. The majority of the Board ruled in the Union’s favour on January 19, 2011. The Board interpreted

Article 21.01 asinvolving “a movement or removal of something from one party and a corresponding receipt by another” ( (SK LA) atpara. 66). Applying this

interpretation of the

Article to the facts before it, the Board found that the production of “Tray Pack” and “ThighDeboned” product was not simply discontinued at the Wynyard Plant but it was replaced by the production of the same product at theCalgary Plant.

Thus, the Board found that both of the required elements―a moving or removal of work (in this case from the WynyardPlant) and a corresponding receipt of that work (by the Calgary Plant) were present (at para. 67). [7] The parties agreed at the outset of the arbitration hearing that the proceedings would be bifurcated such that the Board left thequestion of remedy to the parties in the first instance, with the Board reserving jurisdiction in the event they were unable to agree. [8] Before meeting to discuss the question of remedy, Lilydale brought an application to review the Board’s decision in the Court ofQueen's Bench. [9] Laing C.J. allowed the application and quashed the Board’s decision on October 21, 2011 (see: 2011 SKQB 396, 384 Sask.

R.252). Laing C.J. found that the Board used the words “work” and “product” interchangeably with respect to the issue of discontinuance. He interpreted these words in the context of Articles 12.01 and 21.01 of the collective agreement and found that the Board had arrived

at an unreasonable

interpretation of the word “work” in

Article 21.01, which caused it to arrive at the unreasonable conclusion that bargaining unit work had been transferred out of the unit. Significantly, counsel for the Union did not make any argument before Laing C.J. to the effect that the application for judicial review was premature as the decision regarding the remedy for the breach of the collective agreement had not yet been rendered. [ 10 ] While the Union believed that its in-house counsel had appealed the decision of Laing C.J. within the 30-day period specified in The Court of Appeal Act, 2000 , S.S. 2000, c.

C-42.1, no appeal had in fact been filed. [ 11 ] Unbeknownst to the Union, its in-house counsel did contact counsel for Lilydale on January 19, 2012, after the appeal period had expired, asking whether Lilydale would consent to an extension of time. Lilydale’s counsel responded to in-house counsel on January 25, 2012 and requested particulars regarding the delay. No response was received to this request. [ 12 ] In November of 2012, the Union learned that no appeal had been filed.

On November 13, 2012, the Union’s present counsel contacted Lilydale’s counsel, advising him of the Union’s instructions to apply for an order pursuant to s. 9(6) of The Court of Appeal Act, 2000 , extending the time within which the Union may file a notice of appeal. [ 13 ] It should be noted that in January of this year, the chair of the Board passed away. There are no transcripts of the hearing before the Board. [ 14 ] As a final point of background, the collective agreement construed by the Board came to an end in March of this year. III.

Proposed Notice of Appeal [ 15 ] The Union argues that if leave is granted it will file a notice of appeal setting forward these grounds: THAT the appeal is taken upon the following grounds: a. That the Learned Chambers Judge erred in exercising his discretion and assuming jurisdiction to judicially review an arbitration award that was not yet final, when doing so before the remedy had been ordered was premature; b.

That the Learned Chambers Judge erred in law in failing to give proper judicial deference to the decision of a consensual arbitrator acting within jurisdiction and interpreting its constituent authority (the collective agreement), and in substituting its own opinion for that of the Board of Arbitration’s; c. That the Learned Chambers Judge erred in law in his

interpretation of

Article 21.01 of the Collective Agreement, by concluding that “work” had not been transferred from the Respondent’s Wynyard operation to the Respondent’s Calgary operation; d. That the Learned Chambers Judge erred in law in concluding that the provisions of

Article 12.01 of the Collective Agreement had any application to the facts of the case as found by the arbitrator, and in particular, the Learned Chamber Judge’s conclusion that what occurred with the transfer of work was management exercising its rights respecting “products to be handled”; IV. Analysis A. Legal Framework [ 16 ] Subsections 9(1) and (2) of The Court of Appeal Act, 2000 establish that the Union was required to file its appeal 30 days from the date of the filing of the written reasons with the local registrar of the Court of Queen’s Bench: Appeal periods 9(1) In this section, “date” means, with respect to a decision: (

a) the date of filing of the written reasons for the decision with the registrar, local registrar or chambers clerk of the Court of Queen’s Bench, as the case may be; . . . 9(2) Subject to this section, a notice of appeal must be served within 30 days after the date of the decision being appealed from. Subsection 9(6) of The Court of Appeal Act allows this Court to extend the 30-day time period when 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 ofthe judge or court, it is just and equitable to do so. [17] The framework of principle at play in applications of this nature is well known. While the judge’s discretion to grant an extensionof time to appeal is considered unfettered, it has become customary to assess the merits of such an application having regard for suchfactors as: (

i) whether a reasonable explanation for the delay exists; (ii) whether the appellant possessed a bona fide intention to appealwithin the time limited for appeal; (iii) whether there is an arguable case to be made to a panel of the Court; and (iv) whether therespondent will suffer any serious or real prejudice, if leave is granted, beyond what would be incurred in the usual appeal process. Inany given case, one or more factors may be more important than any other. [18] These factors are considered as a matter of practice, but as this Court has made clear in such decisions as Royal Bank of Canada v.G.M.

Homes Inc. et al. (1982), (SK CA), 25 Sask. R. 6 (C.A.) and Treeland Motor Inn Ltd. v. Western Assurance Co.et al. (1983), (SK CA), 4 D.L.R. (4th) 370 (Sask. C.A.), they are not fixed rules; the only constant rule is that thediscretion to enlarge the time must be exercised judicially. Section 9(6) emphasizes that a court may grant an extension of time when itis “just and equitable to do so.” [19] For a recent application of these principles see: Dutchuk v. Dutchuk, 2009 SKCA 89, 337 Sask. R. 46; Raymond v. RaymondEstate, 2010 SKCA 86, 359 Sask. R. 123; Sparvier v.

Canada (Attorney General), 2011 SKCA 115; Fuller Austin Insulation Inc. v.International Association of Heat & Frost Insulators & Asbestos Workers, Local 119, 2012 SKCA 25, 385 Sask. R. 304; and Frey v. BellMobility Inc., 2013 SKCA 26. [20] I will now turn to consider the pertinent evidence and arguments made in relation to each of the factors listed above, beforeconsidering whether it is just and equitable to grant the relief requested. B.

Is there a reasonable explanation for delay? [21] For ease of clarity, the appeal period commenced on October 21, 2011, which is the date of the decision and is presumed by theparties as also being the date it was filed with the local registrar, and expired on November 21, 2011.

The period of delay runs from thatlatter date until November 13, 2012, being the date the Union’s new counsel advised Lilydale that he had been instructed to make anapplication to extend the time to appeal. (Lilydale’s counsel and the Union’s new counsel agreed between them not to count the timefrom November 13, 2012 until the latter could make an application to extend the time to appeal.) [22] Mr. Garry Burkhart, the Secretary-Treasurer of the Union, provided the only affidavit evidence for the Union. He explains thedelay in this manner.

Specifically, he attests that the Union’s previous counsel was involved in other litigation, including somesignificant constitutional litigation during the time period in question, was unable to tend to the appeal, and that he also fell ill forapproximately two months during this time period. Generally, Mr. Burkhart swears that previous counsel failed to appeal the decision inaccordance with the instructions that he had been given. He indicates that the Union’s previous counsel was employed in-house as theirgeneral counsel. C.

Did the Union possess a bona fide intention to appeal within the time limited for appeal? [23] Mr. Burkart indicates that not only did the Union intend to appeal the decision, but both parties agreed that the nature of the issuesunder consideration was such that the matter would likely be appealed, if possible, “all the way to the Supreme Court of Canada.” D. Is there an Arguable Case? [24] The Union raises an argument based on the bifurcated nature of the proceedings, which indicates the judicial review applicationmay have been premature (see: Saskatchewan Union of Nurses v.

Sherbrooke Community Centre (1996), (SK CA),144 Sask. R. 15 (C.A.) at paras. 2-3). The Union also asserts that the Chambers judge did not accord sufficient deference to the decisionof the Board, where that Board was acting on its “home turf”, i.e. the

interpretation of the collective agreement. In setting aside thedecision of the Board, the Union argues that the Chambers judge did not ask himself whether “the decision falls within a range ofpossible, acceptable outcomes which are defensible in respect of the facts and the law” (see: Dunsmuir v. New Brunswick, 2008 SCC 9,[2008] 1 S.C.R. 190 at para. 47). E.

Whether the respondent will suffer any serious or real prejudice, if leave is granted, beyond what would be incurred in the usualappeal process? [25] Counsel for Lilydale submits that after the Union’s previous counsel failed within a reasonable time to follow up on his invitationto provide particulars of why he should agree to an extension of time, Lilydale could be confident that no appeal would be pursued, and itgave effect to this belief. According to the unchallenged evidence, in early 2012 Lilydale made changes to its Wynyard plant as follows: (

a) Lilydale incurred capital expenditures of approximately $20,000 with respect to equipment upgrades that were required to focusproduction on deboned products;

(

b) an additional 15 workers were hired at the Wynyard Plant due to increased work Levels; and (

c) average regular hours, average overtime hours and the number of full time equivalent positions at the Wynyard Plant increasedthroughout 2012. (see: Cervantes Affidavit, para. 20). [26] Lilydale has also committed to investing in new deboning equipment (which is scheduled to be installed at the Wynyard Plant inJune 2013) and to continued renovations to the Wynyard Plant.

The cost of this new equipment and associated changes to the WynyardPlant is estimated to be in excess of $1,000,000 (see: Cervantes Affidavit, para. 21). [27] Since the Union is now claiming damages only as a remedy for the grievance, the Union offers the assurance that any of Lilydale’sincreased costs could be taken into account when the Board fixes the remedy for the breach of the collective agreement, if the Unionwere to be successful in this Court. F. Whether it is just and equitable to grant an extension? [28] Applications for leave to appeal normally involve comparatively short time periods of delay.

When the delay is lengthy, as it is inthis case, it is not uncommon for a request for an extension to be denied (see, for example: Lajeunesse v. Tastad Enterprises Inc. (1999), (SK CA), 180 Sask. R. 264 (a delay of more than 10 months); Raymond Estate, supra (a delay of 15 months); FullerAustin Insulation, supra (a delay of 18 months).

Depending on the strength of the arguable nature of the appeal and the answer to thequestion whether the respondent will suffer serious or real prejudice, extensions of time have been granted even in the face of lengthydelay (see: for example, Farm-Rite Equipment Ltd. (Receiver of) v. Robinson Alamo Sales Ltd. (SK CA), [1989] 5W.W.R. 673; 78 Sask.R. 161 (delay of over two and one-half years). As a general principle, however, the longer the delay, the morepersuasive the reasons for that delay will need to be.

Such a principle supports the general approach of the Court to questions of delay inhaving appeals heard as promptly and efficiently as reasonably possible (see: International Capital Corp. v. Schafer, 2010 SKCA 48, 319 D.L.R. (4th) 155). [29] Without question, a delay of approximately one year outside the normal time limit for filing a notice of appeal is significant andperhaps particularly so in the labour relations context, where the parties have an on-going relationship and disputes are expected to beresolved expeditiously.

It is apparent from the affidavit material that the Union left the matter in previous counsel’s hands and he failedto meet the required appeal period. He had a surcharge of work, and he was ill for two months in the middle of the process.

Howeversympathetic the Court might be to such claims, it is nonetheless clear that previous counsel did not accord a priority to filing a notice ofappeal during the required time or move to seek an extension of time after initially contacting Lilydale’s counsel and did not inform theUnion of these matters. [30] To be sure, the Union ought to have been able to rely on its counsel to follow its instructions. Nonetheless, it stands to reason that,at some point, the Union should have begun inquiring about the status of its appeal.

It may be that the Union did make inquiries, butbased solely on the affidavit evidence before me, the nature and extent of such inquiries, if any, throughout the 12-month period islargely unknown. Overall, the factual record in this regard is quite thin, which leads me to conclude that the explanation for the delay isweak. [31] While the Court is often sympathetic to an argument based on what would appear to be solicitor error, it cannot be said on thisoccasion that previous counsel acted in error or misunderstood the true state of affairs—which are the more usual types of cases ofsolicitor error.

While the Union executive did not know an appeal had not been filed by their general counsel, the issue is what to makeof this fact or, in other words, upon whom should the consequences of the failure to act come to rest. In another case, where the timelapse was less or the reasons for the inactivity were more persuasive, the Court may come to a different conclusion (see, e.g., TreelandMotor Inn Ltd, supra). [32] With respect to the other factors, I am satisfied that the Union had a bona fide intention to appeal within the appeal period andbelieved that it had launched an appeal.

On my reading of the evidence, the Union officer’s statement to a Lilydale officer that thematter would likely be appealed, if possible, “all the way to the Supreme Court of Canada” does not appear to be litigation boasting. Instead, it appears to be a genuine reflection, of the nature of the dispute and the issues that the dispute raised. Furthermore, it wouldseem peculiar for the Union not to have intended to appeal a judicial review decision that quashed an important award for it and itsmembers. [33] I am also satisfied that the Union had at least an arguable appeal.

The arguable nature of the appeal, however, is undercut by twofactors. [34] First, it is relevant that one of the Union’s arguments, i.e., relating to prematurity, was not raised before the Chambers judge. Thus, if leave is granted, the Court hearing the appeal proper would be required to determine first, whether to entertain this newargument and if so, the consequences of the argument for the appeal. If the Court gives effect to this ground of appeal, the likely reliefwould be to quash the decision, pending the determination of the appropriate remedy by the parties or by the Board.

That, of course,may not end the matter as the Board’s decision could be susceptible to judicial review anew and to a further appeal to this Court. All ofthis would contribute to the passage of time since the filing of the grievance in 2008, and a significant part of this time would beattributable to the acts and decisions of the Union and in-house counsel either in omitting to make the prematurity argument before LaingC.J. or in failing to apply promptly to extend the appeal period in this Court.

[ 35 ] The second factor that undercuts the arguable nature of the appeal is that the collective agreement, under which Lilydale took steps to change operations at Wynyard, expired in March of this year and the parties are presently in negotiations regarding a new agreement. Insofar as the prior collective agreement gave rise to a misunderstanding as to its

interpretation, it is at least theoretically possible for the parties to resolve that misunderstanding for the purposes of a new agreement.

Further, if the division of the Court hearing the appeal proper were to decide the appeal on the basis of insufficient deference being accorded to the decision of the Board, the Court’s decision may very well be moot with respect to any future collective bargaining agreement. [ 36 ] I am also persuaded that if I were to extend the appeal period, Lilydale will suffer serious or real prejudice beyond what would be experienced by the regular appeal process, by virtue of its actions since January 2012.

The Union’s assurance that any of Lilydale’s costs could be taken into account when the Board fixes the remedy for the breach of the collective agreement is simply not sufficient to ensure no serious or real prejudice will harm Lilydale as this argument is dependent upon either the future goodwill of the Union or future findings of the Board. In short, Lilydale appears to have relied upon the un-appealed decision of Laing C.J. to its financial detriment. [ 37 ] I am also not unmindful that if the Union were to be successful on appeal, the issue of remedy may require the intervention of the Board.

Since the chair of the Board passed away in January of 2013, and no transcript of the hearings before the Board exists, it is not inconceivable that part of the case would have to be repeated. Apart from the additional delay and resulting expense that this will entail, Lilydale’s evidence indicates that the witness upon whom it would call to substantiate its case and its instructing counsel are no longer part of its employ.

All of this adds to Lilydale’s potential prejudice. [ 38 ] Weighing the matter, including the length of the delay and the weakness of the explanation for it, the Union’s intention to appeal, the arguable nature of the appeal, and the prejudice to Lilydale, I find it would not be just and equitable to grant leave in this case. V. Conclusion [ 39 ] The application is dismissed with costs on Column 2. DATED at the City of Regina, in the Province of Saskatchewan, this 24 th day of May, A.D. 2013. ___ “Jackson J.A.” ____________________ Jackson J.A.