The Director of Employment Standards Appellant (Appellant) v. North Park, 2019 SKCA 69

Court of Appeal for Saskatchewan Docket: CACV3214 Citation: Saskatchewan (Employment Standards) v North Park Enterprises Inc. , 2019 SKCA 69 Date: 2019-07-30 Between: The Director of Employment Standards Appellant (Appellant) And North Park Enterprises Inc. o/a Maxie’s Excavating; Vincent Dziadyk, being a director of North Park Enterprises Inc. o/a Maxie’s Excavating; Brym Enterprises Ltd. o/a Maxie’s Excavating; Myrna Braaten, being a director of Brym Enterprises Ltd. o/a Maxie’s Excavating; Dingo Road & Rail Holdings Ltd. o/a Maxie’s Excavating; Robert Harasymchuk, being a director of Dingo Road & Rail Holdings Ltd. o/a Maxie’s Excavating; Januk Holdings Ltd. o/a Maxie’s Excavating; Janice Harasymchuk, being a director of Januk Holdings Ltd. o/a Maxie’s Excavating; GKB Holdings Ltd. o/a Maxie’s Excavating; Gerald Braaten, being a director of GKB Holdings Ltd. o/a Maxie’s Excavating Respondents (Respondents) And Sean Andrew Bridgette Respondent (Respondent) Before: Whitmore, Ryan-Froslie and Tholl JJ.A.

Disposition: Appeal allowed Written reasons by: The Honourable Mr. Justice Tholl In concurrence: The Honourable Mr. Justice Whitmore The Honourable Madam Justice Ryan-Froslie On Appeal From: LRB 194-17, Regina Appeal Heard: May 17, 2019 Counsel: Steven Wang for the Appellant Candice Grant for North Park (written submissions only) No one appearing for Sean Bridgette Tholl J.A.

I. introduction [ 1 ] The Director of Employment Standards [the Director] issued a wage assessment against North Park Enterprises Inc. and various other related individuals and entities [the Employer], requiring the Employer to pay $6,478.97 to Sean Bridgette. The Employer successfully appealed the wage assessment to an adjudicator [the Adjudicator] resulting in a reduction of the wage assessment to $184.04.

The Director appealed the Adjudicator’s decision to the Labour Relations Board [the Board] (see Saskatchewan (Employment Standards) v Maxie’s Excavating , LRB 194-17 (8 February 2018) Saskatchewan Labour Relations Board [ Board Decision ]). [ 2 ] The Board allowed the Director’s appeal and remitted the matter back to the Adjudicator to deal with it in accordance with directions provided by the Board. The Director took issue with some of the directions and appealed the Board’s decision to our Court.

The Director asserts the Board violated its duty of procedural fairness when it made findings and provided directions with regard to three issues that were not properly before it. The Director further asserts the Board inappropriately considered written submissions that were provided to the Board by Mr. Bridgette that were not provided to the Director.

If the Director is unsuccessful on procedural fairness grounds, the Director further appeals against the directions provided by the Board on substantive grounds. [ 3 ] I find the procedural fairness concerns raised by the Director regarding the directions on the timelines and the Director’s ability to participate at the adjudication are well-founded. As a result, it is not necessary to deal with the substantive issues. The issue raised regarding Mr. Bridgette’s written submissions is without merit. The improper portions of the Board’s order shall be excised from the decision and are of no force and effect.

The matter is remitted to the Adjudicator. II. BackGROUND [ 4 ] Mr. Bridgette was laid off from employment with the Employer on December 15, 2016. He contacted the Director’s office and asserted he was entitled to pay in lieu of notice plus a relatively small payment for call out pay. After examining the matter, the Director issued a wage assessment, pursuant to s. 2 - 74 of The Saskatchewan Employment Act , SS 2013, c S-15.1 [the Act ], requiring the Employer to pay Mr. Bridgette $6,478.97, consisting of $6,294.93 for six weeks pay in lieu of notice and $184.04 for call out pay. The

Employer filed a notice of appeal from the wage assessment and asserted it had provided sufficient notice to Mr. Bridgette. The portion of the wage assessment that ordered the payment of unpaid call out pay was not disputed by the Employer. [ 5 ] An adjudication commenced in front of the Adjudicator on August 17, 2017, pursuant to s. 2 - 75 of the Act . The Employer was represented by three corporate directors who testified at the adjudication. The Director participated but the Director’s representative unequivocally informed the Adjudicator that the Director did not represent Mr. Bridgette. Mr.

Bridgette was present at the hearing and testified on his own behalf. The Adjudicator rendered a written decision on August 28, 2017, pursuant to s. 4 - 6 of the Act [ Adjudicator’s Decision ] . He determined the Employer had provided Mr. Bridgette with sufficient notice of layoff as required by s. 2-60 of the Act and reduced the wage assessment to $184.04. [ 6 ] The Director appealed the Adjudicator’s decision to the Board, pursuant to s. 4 - 8 of the Act .

In the appeal to the Board, the Director asserted the Adjudicator had applied the wrong test, erred in finding the Employer had satisfied the layoff notice requirements under s. 2 - 60 of the Act , mischaracterized the evidence and made improper inferences of fact. The appeal to the Board was heard by the chairperson of the Board, sitting alone, pursuant to s. 6 - 95(3) of the Act . [ 7 ] The hearing before the Board was conducted on December 5, 2017. An appeal to the Board on such a matter is an appeal on the record. The Employer, the Director and Mr. Bridgette all presented oral submissions at the hearing.

The Director had filed written submissions in advance of the hearing. The day before the hearing, Mr. Bridgette’s spouse sent an email to the Board containing written submissions on Mr. Bridgette’s behalf, without providing a copy of those submissions to the other parties.

The Director was not notified of the existence of those emailed submissions until the Board sent a copy of the email to the Director on December 15, 2017, which was ten days after the hearing. [ 8 ] On February 8, 2018, the Board released a written decision, cancelling the Adjudicator’s decision and remitting the matter to the Adjudicator with directions. In doing so, the Board was exercising its power set out in s. 4 - 8(6) of the Act , which reads as follows: Right to appeal adjudicator’s decision to board 4-8

(6) The board may: (

a) affirm, amend or cancel the decision or order of the adjudicator; or (

b) remit the matter back to the adjudicator for amendment of the adjudicator’s decision or order with any directions that the board considers appropriate. [ 9 ] The Director takes issue with the following findings and directions included in the Board Decision : (

a) determining there was no evidence in the record establishing the Employer had filed its appeal of the wage assessment within the 15 days as required by s. 2 - 75(2) of the Act (at para 86) and directing the Adjudicator as follows: [89] … take the steps necessary to ensure the appeal was filed in a timely manner. The Director shall be ordered by him to provide the Adjudicator and Bridgette with information and documents necessary to show when the Wage Assessment was issued, how and when it was served on [the Employer], the date and manner of the paying of the filing fee, along with a copy of the Notice of Appeal as well as their method and time of service upon him. (

b) determining the Director does not have standing to appear or participate in an adjudication unless called as a witness by one of the other parties (at para 79); and (

c) determining that s. 4 - 8(3) of the Act applies to the Director, which required the Director to file its notice of appeal with the Board within 15 days of being served with the Adjudicator’s decision (at para 44). [ 10 ] The Director appealed the Board Decision to this Court. The decision to cancel the Adjudicator’s decision and refer the substantive matter back to the Adjudicator is not under appeal. The Director was successful on that overarching issue at the Board. However, the Director asserts the Board committed errors of law by making the three sets of findings and directions noted above.

The Director submits none of these issues were properly in front of the Adjudicator or the Board, resulting in the Director being deprived of the ability to make representations to the Board on the issues or provide evidence at the adjudication. The Director asserts this violated the Board’s duty of procedural fairness, which should result in the findings and directions being invalidated. In the alternative, the Director submits the issues were wrongly decided by the Board and should be overturned. Lastly, the Director submits the Board failed to adhere to procedural fairness by failing to provide a copy of Mr.

Bridgette’s written submissions to the other parties in advance of the hearing. III. Issues [ 11 ] The following issues arise in this matter: (

a) Did the Board breach its duty of procedural fairness by determining issues that were not properly before it? (

b) Did the Board breach its duty of procedural fairness by considering written submissions that were not provided to the Director? (

c) Should the matter be remitted back to the Board or the Adjudicator? [ 12 ] The Director was the only full participant in the appeal to this Court. Mr. Bridgette did not provide oral or written submissions. The Employer took no position on the majority of the grounds of appeal and provided limited written submissions, requesting that the matter be remitted back to the Adjudicator. In the alternative, the Employer requested the entire matter be remitted back to the Board if this Court determined the Board’s remedy must be revisited.

IV. Jurisdiction and standard of review [13] The Director’s right of appeal to this Court is set out in s. 4-9 and s. 4-10 of the Act. The Director must first obtain leave toappeal a decision of the Board, pursuant to s. 4-9 of the Act.

Leave to appeal was granted by Whitmore J.A. on April 26, 2018(Saskatchewan (Employment Standards) v Maxie’s Excavating, 2018 SKCA 31). [14] Issues of procedural fairness arising from proceedings in front of an administrative tribunal raise questions of law and arereviewed on a correctness standard: Saskatoon (City) v Amalgamated Transit Union, Local 615, 2017 SKCA 96 at paras 24–32, [2018] 4WWR 822, and Eagle’s Nest Youth Ranch Inc. v Corman Park (Rural Municipality), 2016 SKCA 20 at para 20, 395 DLR (4th) 24.

I findit unnecessary to examine the standard of review to be applied to the Board’s substantive determinations because this appeal falls to bedetermined on the threshold issue of whether the Board committed errors of law by failing to adhere to procedural fairness. V. Analysis A. Procedural fairness [15] The Board is an administrative tribunal that is continued by s. 6-92 of the Act upon the repeal of The Trade Union Act, RSS1978, c T-17.

As a statutory tribunal, the Board owes a duty of procedural fairness to the litigants that come before it: Baker v Canada(Minister of Citizenship and Immigration), (SCC), 1999 SCC 699 at para 20, [1999] 2 SCR 817; Cardinal v Director ofKent Institution, (SCC), [1985] 2 SCR 643 at 653; Saskatoon Co-operative Association Limited v Saskatchewan JointBoard, Retail, Wholesale and Department Store Union, 2016 SKCA 94 at paras 20–22, 484 Sask R 157 [SK Co-Op]; and ConstructionWorkers Union, Local 151 v Saskatchewan Labour Relations Board and Technical Workforce Inc., 2017 SKQB 197 at paras 38–41. [16] The Board has broad authority to determine its own processes under s. 6-103 and s. 6-111 of the Act.

However, in determiningand implementing those processes, the Board must adhere to the duty of procedural fairness. A key component of the duty of proceduralfairness is the requirement that each party be aware of the issues to be determined by the administrative tribunal and have an opportunityto respond to those issues.

Under the audi alteram partem principle, each party has a right to be given a fair opportunity to be heard and torespond to the evidence and issues in question: SK Co-Op at para 32. [17] In the matter at hand, the Board failed to adhere to its duty of procedural fairness by deciding issues that were not properlybefore it. The Director was deprived of the required opportunity to adequately respond to the issues. 1. Issues not properly before the Board a. The timeliness of the filing of the Employer’s notice of appeal [18]

Section 2-75(2) of the Act requires an employer or corporate director to file a notice of appeal from a wage assessment within15 days of the date of service of the wage assessment. The notice of appeal must be filed with the Director along with a deposit:s. 2-75(2)–(6). Upon receipt of the notice of appeal and the deposit, the Director forwards the wage assessment and notice of appeal to anadjudicator: s. 2-75(8).

The timeliness of the filing of the Employer’s notice of appeal in this matter was dealt with at the adjudication.The Adjudicator made the following findings with regard to this issue (Adjudicator’s Decision): 2. Prior to the hearing, the Director confirmed that the appeal was made within the permitted time period. … 3. The Director confirmed that the Wage Assessment was served on the appellants on May 1, 2017, and that the Director received theappellant’s Notice of Appeal and required deposit on May 9, 2017.

The appeal was therefore started within the 15-day time periodprovided by The Saskatchewan Employment Act (the “Act”) 4. The appellants’ Notice of Appeal is a letter dated May 1, 2017, and signed … The Notice of Appeal states that the grounds are … . [19] The Director, who has an interest in the wage assessment not being successfully appealed, confirmed to the Adjudicator at thecommencement of the adjudication that the notice of appeal had been filed in time and provided specific dates. The Adjudicator acceptedthese unchallenged representations from the Director, who was adverse in interest to the Employer. Mr.

Bridgette did not dispute this issueat the adjudication hearing. Mr. Bridgette did not appeal the Adjudicator’ Decision. However, during his oral arguments at the Boardhearing, Mr. Bridgette raised this issue for the first time. Mr. Bridgette was represented at the Board hearing by his wife, Sarah Bridgette.During her submissions, Ms. Bridgette submitted there was no information in the file setting out the date of filing of the notice of appealof the wage assessment with the Director or any documents establishing that the deposit had been paid. Ms.

Bridgette submitted May 2,2017, should have been the deadline for the Employer to file its notice of appeal. She submitted the notice of appeal was late filed with theDirector so the Employer should not have been permitted to appeal to the Adjudicator (Board hearing transcript at 17–19). [20] At the conclusion of Ms. Bridgette’s submissions, one of the corporate directors immediately spoke up and stated, “I do havereceipt of notice --”.

The chairperson of the Board interrupted the corporate director and stated, “I can’t take evidence at this stage, that’snot -- we’re just here for argument” (Board hearing transcript at 19).

[ 21 ] During the Director’s response to Ms. Bridgette’s submissions, the following exchange took place between the Director’s two counsel and the chairperson (at 20–22): [Counsel #1] In regards to the comments of Mr. Bridgette’s representative, if they had wanted to take an issue with the sufficiency of the Adjudicator’s jurisdiction, they needed to do that within 15 days of the Adjudicator’s decision. There is a 15 day limit on appealing -- CHAIR: How do they do that if the notices or the documents are never provided to them? The Director has an obligation under

section 2 - 75(8) to provide copies of the documents to the Adjudicator. Those apparently were never provided. I don’t have them in my records. [Counsel #1]: Okay, I misunderstood that. [Counsel #2]: If I may … I would appreciate that the information is not specifically in evidence before you, other than the Adjudicator does address it in paragraph 3 of his decision, without, you know, all the specific dates but he does in paragraph 3 of his decision -- CHAIR: I’m aware of that. I’m just saying that in his record, which we have, there is not those documents.

It includes some wage assessment, it does not include the letters of appeal. [Counsel #2]: I -- CHAIR: There does seem to be some date disparities. [Counsel #2]: Well, we’re privy to that information, it can certainly be provided. … … [Counsel #2]: Yes, yes, and keeping in mind that the Director’s position is consistently in support of the Director’s own wage assessment but when an appeal of a wage assessment comes in to the Director’s attention, that does not comply with the deadline requirements.

The Director is in every case the first one aware of that, and in the best position to be bringing it to the Adjudicator’s attention. Specifically in this case, pursuant to the Registrars’ appointment, the Adjudicator asked the Director for that information, the Director provided it, and the Adjudicator was satisfied with its sufficiency. If either the Director or the Adjudicator had an issue with it, it -- I mean certainly it would have been in the Director’s best interest for the wage assessment to be pointing that out to the Adjudicator.

CHAIR: Surprisingly, though, it appears that that conclusion was reached prior to the hearing, and that’s what his decision states explicitly, prior to the hearing. [Counsel #2]: It does, in paragraph 2. My understanding is that the Employment Standards officers, as a general practice, address this at the beginning of each hearing. Again, we don’t have evidence before you, I can’t say that was specifically done in this case.

If there was -- if there was an issue with the Adjudicator’s jurisdiction it needed to be appealed within the 15 business days of the Adjudicator’s decision. [ 22 ] One of the Employer’s corporate directors added the following in reply to Ms. Bridgette’s submissions (at 24): Yeah, if I can speak to just in regards to the letters of appeal.

I received a letter from Kelly Harris [ph] which is dated March 28th stating the complaint filed by Sean Bridgette, and at the end of the letter it says that I’m to contact her on or before April 6th, 2017, which I did on April 5th, 2017, and told her that I would like this to go to arbitration. At that time a letter was -- a written letter was submitted to the Director of Employment Standards with our grounds for appeal, May 1, 2017, and a cheque for $500 which I have the cheque and I also have a receipt from the Government of Saskatchewan that it was received on May 9th.

So in regards to that it seemed like all of the processes of their appeal were following the right timelines. [ 23 ] Despite the issue not having been in dispute at the adjudication and Mr. Bridgette not having filed a notice of appeal from the Adjudicator’s decision, the Board addressed the issue and provided directions in relation to it (see paragraphs 85 to 89 of the Board Decision ). [ 24 ] I find the Board failed to adhere to procedural fairness in addressing the issue of the timeliness of the filing of the Employer’s notice of appeal. The matter was not in dispute before the Adjudicator.

As can be seen by the corporate director’s interjection and submissions in front of the Board, and the Director’s counsel’s submissions to the Board, there was additional evidence that could have been filed with the Adjudicator if the matter had been in dispute. [ 25 ] An appellate body has the discretion to permit new arguments, if it is able to do so without procedural prejudice, if the refusal to do so would amount to an injustice, and if the issue can be fully, effectively and fairly addressed on appeal : Guindon v Canada , 2015 SCC 41 at para 22 , [2015] 3 SCR 3 [ Guindon ], or R v Roach , 2009 ONCA 156 at paras 6–8 , 246 OAC 96.

The issue of the timeliness of the filing of the Employer’s notice of appeal was not in dispute before the Adjudicator and was not properly put before the Board. Mr. Bridgette had acquiesced to the issue being undisputed in the first instance. As a result, the Director and the Employer did not have an opportunity to tender evidence at the adjudication and had no opportunity to properly respond to the issue before the Board.

While the Board did not make a final finding regarding whether the Employer’s notice of appeal had been filed on time, the Board did make findings and provide directions on an issue that was not properly before it. In the circumstances of this matter, permitting the new argument was highly prejudicial. I find the Board addressing the issue in these circumstances to be a violation of procedural fairness. [ 26 ] The directions found in paragraphs 85 to 89 of the Board Decision must be excised from the decision and are of no force and effect.

Upon a rehearing of this matter, the Adjudicator is not required to take the steps necessary to ensure the appeal was filed in a timely manner. The Director is not required to provide the Adjudicator and Mr. Bridgette with the information and documents set out in paragraph 89 of the Board Decision . b. Director’s standing at the adjudication

[ 27 ] During submissions to the Board, Mr. Bridgette very briefly raised the issue that Ms. Bridgette had not been permitted to attend the adjudication and make representations on his behalf. His representative’s entire submission on this issue consisted of the following (Board hearing transcript at 16): [Sarah Bridgette] I’d like to start off by stating that Sean was initially told by the Employment Standards Officer that myself as his advocate was not allowed to participate in the appeal hearing on August 17th.

In fact, Sean was expressly told that if I attended the appeal hearing that Maxie’s would refuse to participate. It is unclear to me that if Sean is told that Employment Standards will not represent him, then how is it that he cannot have an advocate. [ 28 ] From the overall tenor of Mr. Bridgette’s submissions, the Board also concluded Mr. Bridgette was alleging the Director had failed to properly represent him ( Board Decision at paras 74 and 83). [ 29 ] There was no response to Mr. Bridgette’s brief submission on this issue by the Director or the Employer. Mr.

Bridgette had not filed a notice of appeal so there was no notice this issue was in front of the Board. The Board asked no questions of any party regarding this issue. Despite the absence of notice, the brief submissions by Mr. Bridgette, the lack of submissions by the Director or the Employer and the absence of any indication from the Board that it would be considering the issue, the Board analyzed and determined the significant issue of the Director’s standing and right to participate in an adjudication such as the one at hand ( Board Decision at paras 76 to 84).

The Board concluded as follows regarding the Director’s right to participate at the adjudication: [79] When the Director, or his designate, does not represent the employee as was the case here, he would have no standing to appear at the hearing and could only be in attendance at the hearing as a witness on behalf of the Employee or Employer. … [84] … as the matter is being remitted to the Adjudicator in any event, we would simply ask that he direct his mind to the points raised above in his revisiting of the appeal. [ 30 ] The combination of paragraphs 79 and 84 of the Board Decision have the effect of directing the Adjudicator not to permit the Director to even attend the adjudication, let alone have standing at the hearing, unless attending as a witness.

The Director takes issue with this finding from a procedural fairness standpoint and from a substantive standpoint. [ 31 ] As background, the following portions of the Act address the Director’s standing at an adjudication: Director has standing as representative of employees 2 - 87

(1) The director of employment standards: (

a) has standing to represent any or all employees of an employer: (

i) in proceedings respecting an appeal of a wage assessment or a hearing mentioned in sections 2-75 and 2-76 before an adjudicator, the board or a court; (ii) in proceedings pursuant to any other Act or any Act of the Parliament of Canada with respect to claims for unpaid wages; and (

b) may apply to a court to intervene in proceedings involving claims by or against employees, if in the opinion of the director the proceedings raise an issue of general importance to the rights and responsibilities of employers or employees. (2) Subsection (1) does not require the director of employment standards to represent employees in any proceedings.

(3) In exercising the power set out in subsection (1), the director of employment standards shall act in a reasonable manner. … Right of director to appeal 4-10 The director of employment standards and the director of occupational health and safety have the right: (

a) to appear and make representations on: (

i) any appeal or hearing heard by an adjudicator; and (ii) any appeal of an adjudicator’s decision before the board or the Court of Appeal; and (

b) to appeal any decision of an adjudicator or the board. [ 32 ] The Board Decision briefly addresses s. 2 - 87 of the Act but, despite earlier setting out s. 4 - 10 as a relevant statutory provision and analyzing it with regard to the Director’s right to appeal, the Board Decision does not mention s. 4 - 10 in its analysis of the Director’s standing at an adjudication. [ 33 ] The Director’s standing at adjudications should not have been decided by the Board when the issue was not before it.

The issue of standing represents an important issue for the Director, with the Board’s decision having a major impact on how matters proceed under the Act . The Director had no notice and no opportunity to address this significant issue. This is a violation of procedural fairness. The direction that the Director has no standing to appear at the adjudication, and can only attend if summoned as a witness, is excised from the Board Decision and is of no force and effect. [ 34 ] To be clear, I am not addressing the substantive issue of whether the part of the Board Decision regarding the Director’s

standing was correct or not. That issue is left to be decided on another day when the issue is properly raised by a party and the Director has an opportunity to respond to the issue. c. Applicability of 15-day appeal deadline to the Director [ 35 ] The Board spent significant time analyzing whether the Director was limited to appealing an adjudication decision within 15 days, as set out in s. 4 - 8(3) of the Act , or whether the Director had an unlimited time to appeal under s. 4 - 10 (b): Board Decision at paras 26–53.

Unfortunately, this was not the issue that was before the Board with regard to s. 4 - 10 . [ 36 ] The Board Decision correctly set out the issue that was to be decided in this matter under s. 4 - 10 of the Act (at para 14), which I summarize as a determination of whether the Director is limited to appealing to the Board only on a question of law or whether the Director has a broader right of appeal.

There was discussion of the scope of the appeal at the Board hearing and the Director was given leave to file a supplemental brief setting out his arguments as to why the Director was not limited to questions of law upon appeal: see the Board hearing transcript at 10–12, 22 and 24–26. While the matter was under reserve, the Board transformed this issue into a determination of whether the Director must adhere to the 15-day appeal deadline set out in s. 4 - 8(3) or whether the Director had an unlimited time to appeal under s. 4 - 10 (b).

The Board approached this issue as if it were an application by the Employer to dismiss the appeal to the Board as having been late filed ( Board Decision at paras 8, 22 and 53). Nowhere in the transcript or in the written record is there any indication that the Employer had made any such application.

The Employer filed no written material with the Board and did not raise the issue in oral submissions. [ 37 ] The Board determined the Director must comply with the 15-day time limit set out in s. 4 - 8(3) , but found the appeal could proceed for reasons of substantial compliance and because service of the Adjudicator’s decision had been completed by email, which is not a prescribed method of service. However, the Board decided the 15-day time limit applies to the Director, under s. 4-8(3), when the Director had no notice that this issue was going to be determined.

This violates procedural fairness in the same manner as the earlier two issues and cannot stand. [ 38 ] Unlike the above two errors, this breach of procedural fairness did not result in any directions being provided to the Adjudicator. It did not result in any prejudice in this matter, given that the appeal before the Board was permitted to proceed. However, the Board has determined the Director is subject to the timelines of s. 4 - 8(3) of the Act .

While I am not determining this substantive issue of the timelines applicable to the Director, I am of the opinion that the portions of the Board’s decision regarding the application of s. 4- 8(3) to the Director must be excised from the Board Decision and are of no force and effect because of the breach of the duty of procedural fairness in dealing with this issue. 2. Failure to provide a copy of Mr. Bridgette’s submissions [ 39 ] Mr. Bridgette’s representative, Ms. Bridgette, sent an email to the Board the day before the hearing setting out Mr. Bridgette’s submissions. Neither Ms.

Bridgette nor the Board provided a copy of the email to any of the other parties or notified them of the existence of the email. There was no mention of the email at the Board hearing. Ten days after the completion of the Board hearing, the Board forwarded a copy of the email to the Director’s counsel. The Director asserts the failure to provide Mr. Bridgette’s submissions to the Director deprived the Director of the ability to respond to the submissions. [ 40 ] Mr. Bridgette should have provided a copy of the email to the other parties.

If the Board was aware that the other parties had not received the submissions, it should have alerted the parties to its receipt of the email. With that said, however, there was no prejudice to the Director in this matter. Comparing the text of the email to the transcript of the submissions made to the Board by Mrs. Bridgette on Mr. Bridgette’s behalf reveals the email is merely a script for Mrs. Bridgette’s submissions. Her oral submissions follow the email almost word for word with a few additional words added to the oral submissions.

There is nothing contained in the email that was not spoken in oral submissions. After the completion of Ms. Bridgette’s oral submissions, the Director asked for, and was granted, a ten-minute adjournment to respond to Ms. Bridgette’s submissions. The Director then orally responded and did not ask for any further time to address the issues. [ 41 ] I further note the Director did not ask for the hearing to be reconvened once the Board forwarded the email on December 15, 2017. The Board Decision was not rendered until February 8, 2018.

Had the email raised any issues that the Director needed to respond to, the Director had ample time to request the hearing be reconvened. The Director did not do so. [ 42 ] I observe that Mr. Bridgette’s failure to provide the email submissions to the Director and the Employer in advance of the hearing simply underscores the complete absence of notice regarding the issue of the Employer’s alleged late filing of the appeal from the wage assessment. Otherwise, I find this argument to have no merit. B.

Remittance to the Board or the Adjudicator [ 43 ] The question arises as to whether the matter should be remitted back to the Board to address the procedural fairness issues or whether the matter should go back to the Adjudicator with the impugned portions of the decision excised. It is my opinion that the matter should be referred back to the Adjudicator as ordered by the Board, with the exception that the two offending directions to the Adjudicator shall be excised.

[44] An appellate court can sever portions of a decision so long as the remaining decision can stand on its own and the severedportions were not so intertwined with the remaining portions that the administrative body would not have made the decision knowing itcould not include the offending portion: see National Bank of Canada v RCIU, (SCC), [1984] 1 SCR 269 at 295; WinnipegPolice Association v Winnipeg (City) (1989), (MB KB), 60 Man R (2d) 64 at paras 22–23; and Agrium Vanscoy PotashOperations v USW Local 7552, 2014 SKCA 79 at paras 19–28, [2014] 8 WWR 629 [Agrium]. [45] In Brown and Evans, Judicial Review of Administrative Action in Canada, loose-leaf, vol 2 (Toronto: Carswell, 2017), theauthors discuss this issue as follows: §5:2251 – Generally The question of whether administrative action can be quashed or declared invalid in part, allowing the remained to stand, has arisen inconnection with adjudicative decisions, with exercises of administrative discretion, and with subordinate legislation.

Nevertheless, in eachcontext the question remain the same: is there too much inter-connectedness between the offending portion and the remainder to permitseverance? Where there is not, severance can be an appropriate remedial option.

However, severance of only the offending potions ofreasons for a decision, while leaving the decision intact, is generally not permitted. (Footnotes omitted) [46] Sara Blake, in Administrative Law in Canada, 6th ed (Markham: LexisNexis, 2017) at 246, frames the rule in the followingmanner: §9.5 If the tribunal error affects only part of its order, the entire order need not be quashed. The defective part may be severed from the order.This should be done only where the remaining order can stand on its own as a complete and enforceable order not crippled by the loss ofone of its components.

This turns on the effect that the tribunal intended to achieve when issuing the order. If the order could not achievethat effect without the impugned part, it should not be severed. Would the tribunal, knowing that it could not include the invalid part, haveissued the order without it? [47] Despite a court’s ability to sever portions of a decision, a finding of a breach of the duty of procedural fairness would oftenresult in the entirety of a decision being quashed and the matter being remitted back to the administrative body for a rehearing.

When therehas been a breach of procedural fairness, this is normally required because it is frequently impossible to separate the good portions fromthe bad portions: M.S. v Alberta (Crimes Compensation Board), 1998 ABCA 138 at paras 15–17. However, upon a finding of a breach ofprocedural fairness, an appellate court is not required to quash the entirety of a decision by an administrative decision-maker: Agrium atpara 28.

It is my opinion that when an appellate court can clearly isolate the portions of the decision that were affected by the breaches ofthe duty of procedural fairness from those portions that were not affected, the appellate court can sever the offending portions as long asthe remaining portions can stand alone.

In such a case, the key analysis concerns the interconnectedness between the severed portions andthe remaining portions. [48] Applying the above principles to the case at hand, the portions of the Board Decision that the Director seeks to have overturnedand severed are all distinct and separate from the substantive decision of the Board. The substantive decision determined whether theAdjudicator had erred in relation to whether reasonable layoff notice had been provided.

The impugned portions are all procedural issues.The procedural issues are not intertwined with the main issue in the matter and can be easily isolated and severed without affecting theintegrity of the remaining portions of the decision. [49] With regard to the s. 4-8(3) versus s. 4-10(b) 15-day deadline issue, this is not an issue relevant to the adjudication and nodirection was required or given to the Adjudicator regarding this issue. Normally, this would require the Court to refer the matter back tothe Board for a redetermination of this issue. However, it is now moot.

The Director’s appeal to the Board was allowed to proceed forother reasons and the Director was generally successful on the appeal. There is no utility in referring this issue back to the Board. Thedetermination of the merits of this issue will have to wait for another matter and another day. VI. Conclusion [50] The appeal is allowed. The Board’s directions regarding the Employer’s notice of appeal to the Adjudicator and the associateddeposit and the Board’s direction regarding the Director’s right to participate at the adjudication are excised from the Board Decision andare of no force and effect.

The portions of the Board’s decision regarding the application of s. 4-8(3) to the Director are excised from theBoard Decision and are of no force and effect. The matter is remitted to the Adjudicator to be determined in accordance with the order ofthe Board and the Board’s remaining directions. [51] There shall be no costs for this appeal. “Tholl J.A.” Tholl J.A.I concur. “Whitmore J.A.” Whitmore J.A.I concur. “Tholl J.A.”forRyan-Froslie J.A.