Pruden v Olysky Limited Partnership, 2018 SKCA 75

Court of Appeal for Saskatchewan Docket: CACV3288 Citation: Pruden v Olysky Limited Partnership, 2018 SKCA 75Date: 2018-09-14 Between:James PrudenApplicant/Prospective Appellant (Complainant)AndOlysky Limited PartnershipRespondent/Prospective Respondent (Respondent)Before: Whitmore (in Chambers)Disposition: Application deniedOn Application From: LRB File No 36-18, ReginaApplication Heard: September 12, 2018Counsel: James Pruden on his own behalf Brent Matkowski for the Respondent Whitmore J.A.

Fiat [1] This is an application for leave to appeal a decision of the Labor Relations Board [Board] pursuant to s. 4-9 of TheSaskatchewan Employment Act, SS 2013, c S-15.1 [Employment Act]: see Pruden v Olysky Limited Partnership, (Sask LRB) [Board Decision]. I. Background A. Events leading up to this application [2] The prospective appellant, Mr. James Pruden, commenced employment with the prospective respondent, Olysky LimitedPartnership [Olysky], in August of 2012. [3] On January 9, 2017 Mr. Pruden told Olysky that he had difficulty with the work he was assigned. Later that day Mr.

Prudensent a report of an injury to the Human Resources Department of Olysky, stating he had trouble breathing. He went to a doctor and wasprovided a note excusing him from work for four days. [4] After the four days had expired, Mr. Pruden called Olysky and advised he thought his respiratory issues were from dust andmould in the workplace and then on January 16, 2017, he said he would not be coming to work. He was told that he would have to letOlysky know if he was going to miss any further work. [5] He did not notify Olysky and did not come into work on January 17, 18, or 19, 2017.

On January 20, 2017, Olyskyterminated Mr. Pruden’s employment for abandoning his job. [6] Mr. Pruden filed a complaint with the Occupational Health and Safety Division of the Ministry of Labour, allegingdiscrimination in that he was terminated because he was ill. [7] On April 11, 2017, an occupational health officer found that Olysky did not commit a discriminatory act and Mr. Pruden’scomplaint was dismissed. [8] On April 19, 2017, Mr. Pruden was served with notice, via registered letter, that his complaint had been dismissed. On July6, 2017, Mr.

Pruden filed a written notice of appeal pursuant to s. 3-53 of the Employment Act, appealing the April 11, 2017, decision ofthe occupation health officer dismissing his complaint. B. Proceedings before the adjudicator [9] Before the adjudicator hearing the appeal, Olysky moved to have Mr. Pruden’s appeal dismissed as the appeal had not beenfiled within the appeal period: Pruden v Olysky Limited Partnership, LRB File No 143-17 (4 February 2018) Labour Relations Board[Adjudicator Decision]. At this stage, the proceedings moved away from being about the substantive merits of Mr.

Pruden’s complaint,and became concerned with the effect of Mr. Pruden’s failure to comply with the limitation period set out in the Employment Act. [10]

Section 3-53 of the Employment Act provides: Appeal of occupational health officer decision

3-53

(2) An appeal pursuant to subsection (1) must be commenced by filing a written notice of appeal with the director of occupational health and safety within 15 business days after the date of service of the decision being appealed. [ 11 ] At the hearing, the adjudicator noted that Mr. Pruden’s notice of appeal was dated July 6, 2017, and thus was not in compliance with s. 3 - 53 of the Employment Act in that he had not filed his appeal within 15 days of service of the decision under appeal. [ 12 ] The adjudicator concluded the following ( Adjudicator Decision ): [32] In light of the mandatory nature of the time established for filing a written notice of appeal in

section 3 - 53(2) of The Saskatchewan Employment Act and the absence of any authority on the part of an adjudicator, or anyone else, to extend that time period, I find that Mr. Pruden’s notice of appeal was not filed in time. I therefore have no jurisdiction to hear the appeal. [ 13 ] In essence, the adjudicator found that since Mr. Pruden failed to comply with the limitation period set out in the Employment Act , she was unable to hear and consider Mr. Pruden’s appeal respecting the substantive merits of his complaint. [ 14 ] Mr. Pruden appealed the Adjudicator Decision to the Labor Relations Board. C.

Proceedings before the Board [ 15 ] On appeal to the Board, the main issue was the effect of Mr. Pruden’s failure to comply with the limitation period set out in the Employment Act . The Board’s power to review the Adjudicator Decision on this point was limited by the applicable standard of review, which it identified as being reasonableness.

Reasonableness is a deferential standard and is concerned with whether a decision falls within a range of possible, acceptable outcomes in respect of the facts and the law: Dunsmuir v New Brunswick, 2008 SCC 9 at para 47 , [2008] 1 SCR 190 [ Dunsmuir ]. [ 16 ] After reviewing the Adjudicator Decision , the Board found the adjudicator’s conclusion was reasonable and, in fact, correct in view of the mandatory limitation period detailed in the Employment Act . [ 17 ] In addition to considering the reasonableness of the adjudicator’s analysis, the Board also considered whether The Limitations Act, SS 2003, c L-16.1, might apply to relieve Mr.

Pruden of having to comply with the limitation period set out in the Employment Act . If The Limitations Act applied, and the adjudicator failed to consider it, the failure would constitute an error of law to which a correctness standard of review applied. In such cases, the reviewing decision-maker – the Board – may substitute its own decision for that of the decision-maker below – the adjudicator: Dunsmuir at para 50 . Practically speaking, if The Limitations Act applied here in such a way that it suspended the limitation period in the Employment Act , the Board would have had the authority to allow Mr.

Pruden to proceed with his appeal of the decision of the occupational health officer respecting the merits of his complaint. [ 18 ] On this issue, Olysky argued, and the Board accepted, that, as a general rule, The Limitations Act does not apply to administrative proceedings taking place outside of a court. The recent decision of Fecyk v Bracken , 2017 SKQB 85 , was cited as authority for this proposition. The Board found no error of law on this point and dismissed Mr. Pruden’s appeal. [ 19 ] Mr. Pruden now seeks leave to appeal the Board Decision pursuant to s. 4 - 9 of the Employment Act . II.

Analysis [ 20 ] The test for leave is set out in Chinichian v Mamawetan Churchill River (Health Region) , 2016 SKCA 89 , 484 Sask R 76: [29] This application for leave is governed by The Saskatchewan Employment Act . An appeal may be made to the Court of Appeal from a decision of the Board pursuant to

section 4 - 9 on a question of law, with leave of a judge of the Court. Applications for leave to appeal on a question of law are assessed according to the analytical framework outlined authoritatively by Cameron J.A. in Rothmans, Benson & Hedges Inc. v Saskatchewan , 2002 SKCA 119 at para 6 , 227 Sask R 121 [ Rothmans ], modified to take into account the final nature of the order under appeal ( Saskatoon (City) v North Ridge Development Corporation , 2015 SKCA 13 at para 55 , 451 Sask R 265 [ North Ridge ]). [30] In

summary terms, this means that an applicant for leave to appeal on a question of law must satisfy the following: (

a) identify a question of law; (

b) demonstrate that the proposed appeal is of sufficient merit to justify leave being granted; and (

c) persuade the Chambers judge that the proposed appeal is of sufficient importance to warrant the attention of the Court. [ 21 ] Although the proposed appellant has not listed any grounds for appeal in his draft notice of appeal to this Court, I take him to be stating that (

a) the Board erred in finding the Adjudicator Decision was reasonable in her

interpretation of the Employment Act [first proposed ground of appeal] and (2) the Board erred in finding The Limitations Act did not apply to the limitation period in s. 3 - 53(2) of the Employment Act [second proposed ground of appeal].

These are questions of law and, thus, the first branch of the test for leave to appeal is met. [ 22 ] I will deal next with the question of merit. [ 23 ] On the first proposed ground of appeal, the standard of review to be applied by the Board to the Adjudicator Decision is that of reasonableness, as the adjudicator is interpreting her own statute: e.g., see Alberta (Information and Privacy Commissioner) v Alberta Teachers’ Association , 2011 SCC 61 at paras 30–35 , [2011] 3 SCR 654. In my view, the Board made no error, and, in fact, was correct

in reviewing the Adjudicator Decision on the standard of reasonableness. [24] In the Adjudicator Decision, the adjudicator set out ample authority for her conclusion that she could not extend the time forservice of the notice of appeal. Cited extensively was Brady v Jacobs Industrial Services Ltd, (Sask LRB) [Brady], arecent decision of an adjudicator appointed pursuant to s. 3-53 of the Employment Act.

In that case, after reviewing the limitation periodcontained at s. 3-54(2) of the Employment Act, that adjudicator explained as follows: [36] The mandatory nature of the appeal requirements makes it clear the legislature intended to provide certainty as to when an appealhas been properly commenced.

This permits those directly affected by a decision as well as the Ministry to know with certainty whetheror not the decision has been appealed. … … [49] As an adjudicator under the [Employment Act], I only have the authority delegated to me by the Act. … [T]ribunals created bystatute cannot exceed the powers granted to them by their enabling statute, they must adhere to the statutory jurisdiction and they cannottrespass in areas where the Legislature has not assigned them authority.

I have already noted above that the statutory requirements for anappeal are mandatory, including the time limit within which to file an appeal. Any authority to permit me to extend or waive the timelimit for the appeal must be found in the Act. [50] The law in Saskatchewan is clear that any substantive right to extend the time for an appeal must be found in the statute creating theright of appeal: Jordan v. Saskatchewan (Securities Commission), SK CA, March 21, 1968; Wascana Energy Inc. v.

Rural Municipalityof Gull Lake No. 139 et al., (SK CA). [51] There is no express provision anywhere in the Saskatchewan Employment Act that gives authority to the adjudicator or to anyoneelse to extend or waive the time limits for an appeal. [25] I also note Houston v Saskatchewan Teachers’ Federation, 2009 SKCA 70, 331 Sask R 157, a decision of this Court, whereinJustice Richards (as he then was) explained the effect of statutory appeal periods: [5] As noted, s. 34(1) of The Teachers’ Federation Act, 2006 [SS 2006, c T-7.1], is clear.

It says an appeal is to be brought within 30days from the date on which the order in question was issued. It makes no provision for the extension of that time limit. The decisions ofthis Court establish that, in such circumstances, a litigant’s right to appeal expires if it is not brought within the appeal period. In Jordanv. Saskatchewan Securities Commission (1968), (SK CA), 64 W.W.R. 121 (Sask. C.A.), a case generally parallelingthis one, Culliton C.J.S. dismissed an appeal by referring to Re MacDonald Estate, (SK CA), [1929] 1 W.W.R. 193(Sask.

C.A.), where the Court had said this: [10] As the right of appeal is given by statute and there is no statutory or other authority for extending the time fixed by the statute thereis no right of appeal if the appeal is not brought within that time, and this Court has no power to extend that time as we have been askedto do: B.C. Permanent Loan Co. v. C.N.R., (SK CA), [1922] 2 W.W.R. 579, 15 Sask LR 433 (C.A.). [26] The authorities are clear, and I find no error with the adjudicator’s application of them to this case.

Likewise, the Board’sconclusion that the adjudicator’s decision that she could not extend the time for service of the notice of appeal was reasonable and wascorrect. Accordingly, there is no merit to this proposed ground of appeal that would justify granting leave. [27] On the second proposed ground of appeal, the Board’s conclusion that The Limitations Act was inapplicable to a decision ofthe Board is clearly borne out by the plain wording of The Limitations Act: Application of Act 3(1) Subject to subsections (2) to (5), this Act applies to claims pursued in court proceedings that: (

a) are commenced by statement of claim; or (

b) are commenced by originating notice and are not proceedings in the nature of an application. [28] Mr. Pruden’s matter is not a claim pursued in court. The Limitations Act is not applicable. I conclude the proposed appeal, onthe basis the Board erred in finding The Limitations Act did not apply, is destined to fail. There is no merit to this second proposedground of appeal. [29] Turning to the question of importance, I find that the proposed appeal fails on this branch of the test as well.

The proposedappellant has not raised a new or controversial or unusual issue, nor has he raised a new or uncertain or unsettled point of law. While thematter is important to Mr. Pruden and to Olysky, it is not important to the state of the law in this province. [30] As I find the proposed appeal is destined to fail, and is of no broader significance, I conclude the application for leave toappeal the Board Decision must be dismissed. [31] There shall be no order as to costs. “Whitmore J.A.” Whitmore J.A.