COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Canwood International Inc. v. Bork,
2013 BCCA 96
Date: 20130305
Docket: CA040052
Between:
Canwood International Inc.
Appellant
(Petitioner)
And
Olaf Bork, Employment Standards Tribunal,
Director of Employment Standards and Attorney General of British Columbia
Respondents
(Respondents)
Before:
The Honourable Mr. Justice Chiasson
(In Chambers)
On appeal from: Supreme Court of British Columbia, April 20 and June 14, 2012
(Canwood International Inc. v. Bork, 2012 BCSC 578 and 2012 BCSC 871,
Vancouver Docket No. S096089)
Representative of the Appellant:
Counsel for the Respondent, Olaf. Bork:
Counsel for the Respondent,
Employment Standards Tribunal:
Counsel for the Respondent,
Director of Employment Standards:
Counsel for the Respondent,
Attorney General of British Columbia:
Place and Date of Hearings:
Place and Date of Judgment:
J.G. Matkin, Q.C.
I.S. Petersen
J.M. O’Rourke
M.J. Alman
J.M. Walters
Vancouver, British Columbia
October 18 and December 6, 2012
Vancouver, British Columbia
March 5, 2013
Canwood International Inc. v. Bork
Page 2
Reasons for Judgment of the Honourable Mr. Justice Chiasson:
Introduction
[1]
These reasons for judgment address three applications, two of which are
brought by Canwood International Inc. (the “applicant”). The applicant seeks leave
to appeal a costs order made June 14, 2012 and an extension of time to appeal an
order dismissing a petition for judicial review made April 20, 2012. The third is the
application of the respondent Director of Employment Standards (the “Director”)
seeking an order holding the applicant in contempt of court and an order requiring it
to pay $29,409.65 into the Director’s trust account.
Background
[2]
These proceedings arose out of a failed business venture that resulted in the
respondent, Olaf Bork, filing a complaint under the Employment Standards Act,
R.S.B.C. 1996, c. 113. He complained that the applicant failed to pay him a $60,000
bonus. On November 12, 2008, following a hearing, a delegate of the Director
determined that the applicant owed Mr. Bork the bonus, vacation pay on the bonus,
statutory interest and a $500 mandatory administrative penalty. The applicant
unsuccessfully appealed the determination to the Employment Standards Tribunal
(the “Tribunal”). Its request for reconsideration of its appeal was dismissed.
[3]
The applicant sought judicial review of all three decisions. Mr. Justice Harris,
as he then was, concluded that the original determination of the Director was not
before him and limited judicial review to the appeal and reconsideration decisions.
Harris J. dismissed the petition on April 20, 2012. He also dismissed Mr. Bork’s
application for special costs, stating that he was “prepared to entertain brief written
submissions on the question of the appropriate scale of costs” (at para. 189). His
reasons are indexed as 2012 BCSC 578.
[4]
On June 14, 2012, the judge awarded Mr. Bork the costs of the judicial review
petition on Scale C. His reasons on this matter are indexed as 2012 BCSC 871.
Canwood International Inc. v. Bork
[5]
Page 3
On July 4, 2012, the applicant filed a Notice of Application for Leave to
Appeal the June 14, 2012 costs order. This application came before me on October
18, 2012. I was advised by Mr. Matkin, who was acting as a representative of the
applicant, that the applicant intended to appeal the April 20, 2012 order,
notwithstanding previously advising the other parties that it was seeking to appeal
the costs order only. Some opposing counsel learned of the applicant’s intention to
appeal the April 20, 2012 order only on the morning of October 18, 2012.
[6]
That day, I made the following orders:
IT IS ORDERED that the hearing of the appellant's application for leave to
appeal is adjourned until the date set for the hearing of the appellant's
application for an extension of time to appeal from the order of Harris J. (as
he then was) made April 20, 2012;
IT IS FURTHER ORDERED that the appellant shall pay forthwith to the
respondent Olaf Bork $1,100.00 as costs of this application thrown away;
IT IS FURTHER ORDERED that the appellant shall pay forthwith to the
respondent Olaf Bork $1,100.00 as costs thrown away, pursuant to the order
of Master Taylor made March 24, 2010;
IT IS FURTHER ORDERED that by November 8, 2012 the appellant shall
pay into the trust account of the respondent Director of Employment
Standards the amount of $20,000.00; and
IT IS FURTHER ORDERED that after service of the appellant's filed notice of
motion for an extension of time to appeal from the order of Harris J. (as he
then was) made April 20, 2012 and supporting materials, the respondents
shall have 10 days to make reply.
I advised the parties that I was not seized of the matter, but if they wished me to
hear the applications, I would endeavour to make myself available.
[7]
Although the applicant made certain payments to the Director, it did not
comply fully with the payment requirements of the October 18, 2012 order. This led
to the contempt application by the Director, which was filed on November 13, 2012.
[8]
Prior to the hearing of these applications, the applicant paid the outstanding
balance pursuant to the October 18, 2012 Order and provided an explanation why it
previously had failed to do so.
Canwood International Inc. v. Bork
Page 4
Discussion
Procedural history
[9]
Before the Tribunal, the applicant contended that the Director did not have
jurisdiction to make the determination because the applicant’s employment
relationships were governed by federal and not provincial law. It did not raise the
constitutional issue before the Director at first instance. On the appeal before the
Tribunal, in support of its position that it was subject to federal labour law, the
applicant, raised the federal trade and commerce power, integration with Canadian
National Railway, a federal undertaking, and its relationships with First Nations. On
the reconsideration application, it initially addressed only the First Nations argument,
but referred to trade and commerce in its reply. It also requested an oral hearing,
which was refused.
[10]
On judicial review, the applicant contended that the Employment Standards
Act did not apply because it was involved in international trade. As to the other
prongs of its constitutional argument, the chambers judge noted at para. 159:
In the context of this judicial review, Canwood conceded the following. First, it
is not itself a federal undertaking, nor is it functionally integrated with a
federal undertaking or entity. Moreover, the record does not establish that
Canwood was in fact in the business of international sales of wood. Its
business plan had not been implemented.
[11]
The applicant also argued that it had been denied natural justice because the
Tribunal declined to order an oral hearing on the reconsideration application. The
chambers judge dealt with this contention, stating at paras. 134 and 135:
[134] ... Canwood complains that it was denied the opportunity to make
oral submissions before the Tribunal on both the appeal and the
reconsideration. Canwood argues that an oral hearing was required because
of the complexity of the issues and the fact that the findings of the Director
rested in part on conclusions of credibility.
[135] The principles of natural justice do not call for oral hearings simply
because matters may be complex or credibility is an issue, see D. Hall &
Associates Ltd. v. Director of Employment Standards et al., 2001 BCSC 575.
The parties had been given a full opportunity to present their cases before the
Director. No appeal lies from findings of fact, although it is apparent that
Canwood was attempting to reargue the facts on appeal. The parties had
Canwood International Inc. v. Bork
Page 5
every opportunity to fully present their cases in writing on appeal and
reconsideration. The submissions made by Canwood were extensive and
complete. They were not denied any opportunity to make every point they
wished to make. I can see no error in principle, or breach of any principle of
natural justice, in the Tribunal declining to hear oral submissions in addition to
the voluminous written submissions before it.
[12]
In dismissing the applicant’s petition for judicial review, the judge stated:
[164] None of this means, however, that Canwood's position is free from
difficulty. I am satisfied that Canwood did not put before the Tribunal, either
on appeal or reconsideration, the constitutional points it now seeks to make
before this Court. The argument advanced before the Tribunal is different
from the one that Canwood now seeks to advance on judicial review.
Canwood did not argue the international trade prong of the trade and
commerce power in a way that put that issue before the Tribunal. The
authority relied on dealt only with the general trade and commerce power.
Canwood did not provide the Tribunal with a position based on the federal
regulations to which its proposed business export activities would be subject.
Canwood no longer relies on the general trade and commerce power. The
other constitutional arguments put before the Tribunal have also been
abandoned.
[165] The result of all this is that the constitutional argument has been
fundamentally recast in terms of its particulars and its legal foundation. As a
result, this Court is not being asked to undertake a judicial review of the
Tribunal’s decisions. It is being asked to give effect to a new argument, albeit
related to arguments advanced before the Tribunal, but nonetheless different
from them in important respects. In my view, this is not an appropriate
exercise of the power of judicial review. I find Canwood has failed to exhaust
its internal remedies before the Tribunal. It seeks now to recast its argument
and to put it on a different foundation. I decline to exercise my discretion in
favour of undertaking a judicial review of the Tribunal's decision on this basis.
...
[169] Accordingly, I dismiss the application for judicial review on
constitutional grounds. Canwood has abandoned those constitutional
arguments that would have been a proper subject for judicial review and
seeks to advance an argument that, by virtue of being materially different
from that which was advanced before the Tribunal, is not.
[13]
In the event that he erred in refusing to entertain the constitutional issue as
presented at the hearing, the judge undertook an analysis of that issue in the
alternative. He concluded that the applicant’s employment relationships were
governed by provincial law.
Canwood International Inc. v. Bork
[14]
Page 6
The applicant asserts that it did raise the trade and commerce power before
the Tribunal, albeit only in reply. It contends that the May 17, 2012 decision of the
Supreme Court of Canada in Tessier Ltée v. Quebec (Commission de la santé et de
la sécurité du travail), 2012 SCC 23, [2012] 2 S.C.R. 3, provides a “comprehensive
analysis of the federal exception from the presumption of provincial authority over
labour relations” that was not available to Harris J.
[15]
On June 20, 2012, Mr. Matkin advised opposing counsel that the applicant
“will be appealing the order of costs”. In response to comments made by counsel,
Mr. Matkin stated in a June 24, 2012 e-mail, “I am very puzzled why you are in such
a huff about an appeal limited to the issue of costs”.
[16]
The applicant’s application for leave to appeal the costs order was filed July
4, 2012. On that day, after acknowledging receipt of the notice of application,
counsel for the Attorney General stated, “(With respect, it would appear that [the
applicant] seeks to appeal the merits of the decision, not simply the costs.)”. That
day, Mr. Matkin responded, stating:
No we are just appealing the costs advocating two grounds: 1. There is no
previous decision on point about federal labour relations under Trade and
Commerce and 2. In the alternative the BCSC lacked the fresh guidance of
Tessier Ltee and as a result erred in the analysis of s. 91(2).
[17]
On July 5, 2012, Mr. Matkin wrote:
We take issue with the decision of Mr. Justice Harris particularly in light of the
relevant later decision of the Supreme Court of Canada in Tessier Ltee. We
are only appealing the order of costs.
[18]
On July 26, 2012, the applicant filed its notice of motion in support of its
application for leave to appeal. It sought leave to appeal the orders of Harris J.
made April 20, 2012 and June 14, 2012, a fact duly noted by counsel for the Director
in a July 26, 2012 e-mail to Mr. Matkin.
[19]
Also on July 26, 2012, the applicant filed its motion book that contained the
argument supporting the application for leave to appeal. In it, the applicant stated in
para. 16:
Canwood International Inc. v. Bork
Page 7
Because this application is not an appeal of the main BCSC judgment [the
applicant] submits that the Court of Appeal should limit their review of the
BCSC original decision to one issue i.e. did the Court use the wrong test for
federal labour authority under S. 91(2)? ...
Application to extend the time to appeal
[20]
If the time to appeal the April 20, 2012 order were extended, leave to appeal
the costs order might not be required (Dunn v. Vicars, 2009 BCCA 477, 277
B.C.A.C. 213 at paras. 35–42), but the result of that application likely would be
relevant to a consideration of the application for leave. Mr. Matkin advised me that if
time were extended, the application for leave to appeal the costs order would not be
pursued. For this reason, I first address the application to extend the time.
[21]
The criteria for extending time are well known. They were set out in Davies v.
C.I.B.C. (1987), 15 B.C.L.R. (2d) 256 at 259–260 (C.A.) and may be summarized as
follows:
[22]
1)
Was there a bona fide intention to appeal?
2)
When were the respondents informed of the intention?
3)
Would the respondents be prejudiced unduly by an extension of time?
4)
Is there merit in the appeal?
5)
Is it in the interest of justice that an extension be granted?
The fifth question “encompasses the other four questions and states the
decisive question” (Davies at 260). Further, “the first four rules cannot be used to
defeat the interests of justice but are themselves guides to the application of the
interests of justice” (Haldorson v. Coquitlam (City), 2000 BCCA 672, 149 B.C.A.C.
197 at para. 9). The interests of justice is not a factor that is to be applied
independently of the other factors set out in Davies (Perren v. Lalari, 2009 BCCA
564, 280 B.C.A.C. 197 at para. 33 (per Prowse J.A. for the majority).
[23]
The burden is on the applicant to establish that the criteria are met (Kedia
International Inc. v. Royal Bank of Canada, 2008 BCCA 305 at para. 8 (Chiasson
Canwood International Inc. v. Bork
Page 8
J.A. in Chambers); Rapton v. British Columbia (Superintendent of Motor Vehicles),
2011 BCCA 71 at para. 19 (Garson J.A. in Chambers)).
[24]
Although it is clear that the applicant intended to argue constitutional issues
on its costs appeal, there is no evidence that it had a bona fide intention to appeal
within the appeal period of the April 20, 2012 order. In fact, it disavowed any such
intention.
[25]
Although the respondents clearly knew that the applicant wanted to address
constitutional issues and suspected that it intended to attack the April 20, 2012
decision of the chambers judge, the first time they became aware of an actual
intention to appeal the April 20, 2012 order was late on the evening of October 17, or
early in the morning of October 18, 2012.
[26]
Subject to the impact of continued delay on Mr. Bork, I do not think it can be
said that the respondents would be prejudiced unduly by an extension of time.
[27]
I turn to the merits of the proposed appeal. They are stated in the applicant’s
application to extend time as:
[28]
I.
Did [the applicant] fail to exhaust its remedies before engaging in the
judicial review?
II.
Did the judicial review err by treating the Trade and Commerce clause
as a “derivative” and not a “direct” constitutional power?
III.
Did the BCSC deny a fair hearing in the judicial review by not allowing
[the applicant] the right to amend the Petition with affidavits about
constitutional facts and by ruling without reasons that [the applicant’s]
Reply in argument was improper? Also did the Tribunal breach the
rules of natural justice by denying an oral hearing when the issue was
a complex constitutional matter?
IV.
Should the Court of Appeal extend the time for filing a Notice of
appeal of the Canwood merit decision?
Although the judge held that the applicant had not exhausted its internal
remedies, I think he did so using the phrase to describe the effect of the applicant
recasting its constitutional arguments, not as a term of art in the traditional sense.
The judge did use the phrase in that sense when considering whether to limit the
Canwood International Inc. v. Bork
Page 9
judicial review to the reconsideration decision only. In that context, he distinguished
this Court’s decision in United Steelworkers, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers International Union,
Local 2009 v. Auyeung, 2011 BCCA 527, 314 B.C.A.C. 172, on the basis that it was
limited to a consideration of the administrative scheme under the British Columbia
Labour Relations Code, R.S.B.C. 1996, c. 244. That determination is not before me,
but I question the approach of the judge while noting that, from a practical
perspective, the review process under the Employment Standards Act essentially is
the same as the process under the Labour Relations Code. In this case review of
both the appeal and reconsideration decisions obliged the court to consider
arguments made on the appeal that were not made on the reconsideration.
[29]
While the applicant has an argument that the judge erred in concluding it did
not advance its trade and commerce position before the Tribunal on the
reconsideration application, it is by no means clear that it did so. The reference in its
reply on the reconsideration is terse. What is clear is that the constitutional
argument was advanced in various different forms as the proceedings progressed. I
doubt that a division of this Court would interfere with the judge’s exercise of
discretion to refuse to entertain the constitutional issue as presented to him in the
circumstances of this case.
[30]
The principal basis on which the judicial review application was dismissed
was the shifting focus of the applicant’s constitutional arguments. I say little about
the judge’s alternative analysis of the constitutional issue, save to observe that the
position advanced by the applicant is somewhat novel. The applicant’s “derivative”–
“direct” constitutional power argument appears to relate to its position that Tessier
Ltée changed the law. I question the extent to which Tessier Ltée changed the law
in a way that would have affected the law as determined by the judge.
[31]
The chambers judge afforded the applicant an opportunity to deliver a reply in
the judicial review proceeding. He considered it, but found it unhelpful, stating at
para. 184:
Canwood International Inc. v. Bork
Page 10
I agree that the reply is improper. For the most part, it reargued the case. At
the same time, it did not add much or anything that struck me as having any
material effect on what the basis of the constitutional argument was or what
arguments could be advanced by Canwood. In brief, I did not see anything in
the reply that might have led me either to refuse to consider an argument
because it was new and advanced too late or, if new and material, to provide
the respondents with an opportunity to respond to it. In short, the reply did not
advance my understanding of the issues I have been called on to decide nor
has my review of it prejudiced the position of the respondents.
I see no error of principle in the judge’s exercise of his discretion to disregard the
applicant’s reply arguments.
[32]
This matter has been outstanding since November 2008. Mr. Bork resorted
successfully to employment standards legislation. He has been denied the benefit of
his effort for over four years. While the delay from April 20, 2012 is not inordinately
long, the delay overall is extensive. The issue that the applicant seeks to pursue
has nothing to do with the merits of Mr. Bork’s entitlement. The proposed appeal is
not strong. In my view, it is not in the interests of justice to extend the time to appeal
the April 20, 2012 order.
[33]
I am not prepared to extend the time to appeal the order of Harris J. made
April 20, 2012.
Leave to appeal the costs order
[34]
In his June 14, 2012 reasons on costs, the judge referred to comments in his
reasons on the merits of the petition for judicial review:
[2]
In those reasons, I dismissed an application by Mr. Bork for special
costs, but invited further written submissions on the question of the
appropriate scale of costs. I dismissed the application for special costs in the
following terms, much of which remains relevant to the question of the scale
of costs:
[185] Mr. Bork applies for special costs in the event that the
petition for judicial review is dismissed. In support of his
application for special costs, Mr. Bork submits the following.
He says that the petition for judicial review has been litigated
in a manner that frustrates Mr. Bork's right to an efficient and
cost-effective determination of his entitlement to a bonus.
Originally, the petition improperly named Mr. Bork's counsel as
a respondent. The petitioner has consistently attempted to
Canwood International Inc. v. Bork
Page 11
expand the issues in dispute, failed to properly define the
constitutional issues, repeatedly proceeded in procedurally
irregular and improper ways and failed to advance the petition
to a determination on its merits in a responsible and timely
manner. Mr. Bork says that he has been denied payment of
the monies owing to him without a proper basis. In short, he
submits that the petition for judicial review was always without
merit, but the resolution of it has been made infinitely more
complex than it ought to have been. The suggestion is that
there has been a deliberate effort to frustrate Mr. Bork's
entitlement to his judgment.
[186] There is no doubt that there is much merit in what
Mr. Bork has to say. The petitioner has continually shifted
position and attempted to expand the issues before the Court.
It did so also before the Tribunal. This matter has taken too
long to come to court. As I noted above, the petitioner has not
provided a satisfactory explanation of the lengthy delay
involved in these proceedings. The application to amend the
petition was, in my view, misconceived. Proper procedures
have been flouted with disturbing regularity.
[187] Mr. Matkin did acknowledge that it had taken too long
for this matter to be heard on the merits. At some point in the
proceeding, Canwood had been represented by counsel.
Mr. Matkin took over representing Canwood in his capacity as
a director of the company, and not as counsel. Although
Mr. Matkin is an experienced lawyer, he did not practice as a
litigator. The subtext of his comments on how this matter
unfolded procedurally is that mistakes may well have been
made, not through ill will, but through a lack of experience in
litigation.
[188] Before I can make an award of special costs, I have to
be satisfied that the manner in which the proceedings have
been undertaken reveals conduct that is reprehensible or
worthy of rebuke. Although I understand and sympathise with
the frustration felt by the respondents in dealing with this
matter, I cannot conclude that matters have risen to the level
that the petitioner’s conduct has been reprehensible or
deserving of rebuke.
[189] I reject the application for special costs. I am prepared
to entertain brief written submissions on the question of the
appropriate scale of costs.
[35]
The judge then set out the relevant considerations on an application for costs
on Scale C, as stated by Madam Justice Lynn Smith in Antrobus v. Antrobus, 2012
BCSC 613 at para. 11. He concluded as follows:
Canwood International Inc. v. Bork
Page 12
[4]
The issues in this judicial review were complex. The petitioner raised
seven grounds of judicial review, including constitutional issues going to
jurisdiction. The considerations that I have set out at para. 2 indicate the
procedural complexity, unexplained delay and the failure to advance the case
in procedurally appropriate ways. As a result, there were a number of pretrial
applications, which in my view, were unnecessary. The constitutional issue
was only finally adequately articulated at the hearing itself.
[5]
I am satisfied that this matter was one of more than ordinary difficulty.
The hearing took longer than it ought to have done. The issues were made
more complex than they needed to be, but were inherently complex. A
cursory review of the reasons for judgment dismissing the petition is sufficient
to illustrate that proposition. There were numerous pretrial applications, not
least of which were those in front of me in which I have to determine what the
record was upon which the judicial review was proceeding.
[6]
In my view, the petitioner’s argument to avoid costs being awarded on
Scale C is without merit. The issue is not whether costs should be awarded.
There is no reason to depart from the general rule that costs follow the event.
Accordingly, the novelty and complexity of the constitutional issue supports
an award on Scale C. The record does not support the petitioner’s argument
that the respondents used delay tactics or attempted to have the petitioner
abandon the petition out of frustration. Quite the contrary. Moreover, an
application to determine the appropriate scale of costs is not an invitation to
reargue the merits or advance propositions more properly the subject of an
appeal.
[36]
The factors to be considered on an application for leave to appeal were
summarized by Madam Justice Saunders in Goldman Sachs & Co. v. Sessions,
2000 BCCA 326 at para. 10 (in Chambers):
[1] whether the point on appeal is of significance to the practice;
[2] whether the point raised is of significance to the action itself;
[3] whether the appeal is prima facie meritorious or, on the other hand,
whether it is frivolous; and
[4] whether the appeal will unduly hinder the progress of the action.
[37]
The test for leave to appeal an order of costs was set out in Neufeld v. Foster,
2000 BCCA 485, 5 M.V.R. (4th) 276 (Rowles J.A. in Chambers):
[14]
...As an award of costs generally involves the exercise of discretion,
the award is subject to limited appellate review. Generally, leave is not
granted unless a question of principle is involved: Raffele v. Janzen, [1989]
B.C.J. No. 1733 (Q.L.) (B.C.C.A.).
[15]
The factors that are generally taken into account on an application for
leave to appeal are the importance of the proposed appeal generally and to
Canwood International Inc. v. Bork
Page 13
the parties, the utility of the proposed appeal in the circumstances of the
parties, and the prospects of success of the proposed appeal.
[38]
A court will set aside a costs award on appeal only if the judge has made an
error in principle or if the costs award is plainly wrong (Hamilton v. Open Window
Bakery Ltd., 2004 SCC 9, [2004] 1 S.C.R. 303 at para. 27). The applicant bears an
onerous burden because of this Court’s reluctance to interfere with discretionary
orders: Oliveira v. McIntyre, [1998] B.C.J. No. 1682 (QL) at para. 9 (C.A.) (Donald
J.A. in Chambers).
[39]
Because of this highly deferential standard of review, the merit requirement
for leave to appeal an order for costs takes on a more prominent role and will require
the applicant to demonstrate a matter of principle before leave will be granted:
Bradshaw v. Stenner, 2012 BCCA 481 at paras. 27–31 (Hinkson J.A. in Chambers),
citing Yung v. Jade Flower Investments Ltd., 2012 BCCA 168, 319 B.C.A.C. 265 at
paras. 18–20 (D. Smith J.A. in Chambers).
[40]
Mr. Bork provided further submissions to the chambers judge, but also relies
on the submissions advanced in support of his previous application for special costs.
The applicant asserted that no costs should be awarded because “there were no
decided cases on the constitutional issue raised” and that issue was novel.
[41]
In its submission, the applicant states the points in issue on its proposed
appeal as follows:
I.
Should the Court of Appeal interfere with the BCSC exercise of
discretion refusing to waive costs against [the applicant] in these
unique circumstances where on the issue of S. 91(2) there were no
decided cases on point?
II.
Should the Court of Appeal consider the Tessier Ltee case as relevant
to an appeal of costs because the Supreme Court decision changing
the law came before the final BCSC decision?
III.
Does Tessier Ltee show that the BCSC wrongly interpreted the
constitutional law of federal labour relations of an international trade
and log export business under Section 91(2)?
Canwood International Inc. v. Bork
IV.
Page 14
Does a mistaken interpretation of constitutional law by the BCSC
cloud the “sound basis” of the discretion of the BCSC to award costs
against [the applicant]?
[Underline original.]
[42]
Supporting its contention that there should be no costs because there were
no decided cases on point is the applicant’s assertion that the judge rejected its
constitutional arguments. While it is correct that the judge did address those
arguments, this was done in the alternative and was not the basis on which the
application for judicial review was dismissed.
[43]
In any event, the judge considered the contention that the constitutional point
was novel. He concluded it did not warrant relieving the applicant from an award of
costs. It was the judge’s view that “the novelty and complexity of the constitutional
issue supports an award on Scale C”. I see no error in principle in the judge’s
exercise of discretion on this point. In my view, a division of this Court would be
unlikely to interfere based on the applicant’s contention the judge erred refusing not
to award costs because there were no decided cases on point.
[44]
Addressing Tessier in its submission, the applicant argues:
[15]
... [T]he major analysis and fresh guidance generally of Abella, J. in
Tessier Ltee provides an opportunity for the Court of Appeal to clarify
constitutional law in the context of an international log export business.
Because of the timing and overlap of the 3 judgments (April, May and June) it
is submitted that the Court of Appeal should consider the new and relevant
constitutional law decided in Tessier Ltee in this leave to appeal.
[16]
Because this application is not an appeal of the main BCSC judgment,
Canwood submits that the Court of Appeal should limit their review of the
BCSC original decision to one issue i.e. did the Court use the wrong test for
federal labour authority under S. 91(2)? If the Court of Appeal concludes that
the BCSC got it wrong on this issue it is submitted that the Court of Appeal
should in the public interest correct this error and set aside the order of costs
recognizing that this error would have clouded the discretion of the BCSC on
costs.
[Underline original.]
[45]
The judge dismissed the petition for judicial review because he was not
satisfied the constitutional issue was framed properly. Whether the judge was
Canwood International Inc. v. Bork
Page 15
correct in this conclusion and in his alternative analysis of the applicant’s
constitutional position is stated by the applicant on this application as not under
appeal. The applicant is in effect asking this Court to determine whether the judge
“got it wrong on this issue”; that is, to provide an opinion on a constitutional issue
that is not under appeal based on legal authority that was not available to the
chambers judge. I cannot think that a division of this Court would do so.
[46]
In my view, the judge made no error of principle in awarding costs on Scale
C. The applicant suggests that if he were to have had the benefit of the analysis in
Tessier, he would have exercised his discretion differently. I cannot understand why
that would be the case. The judge awarded costs on Scale C because the litigation
was unnecessarily protracted and included a complex and novel constitutional issue.
Having the benefit of Tessier would not have altered that conclusion; the issues
would have remained complex and novel. The applicant’s lengthy submission on
the effect of Tessier illustrates that this is so. Having the benefit of Tessier also
would not have vitiated the other considerations that were taken into account by the
judge when making his costs order.
[47]
I would not grant leave to appeal the June 14, 2012 order.
Contempt application
[48]
The applicant failed to abide by the terms of the October 18, 2012 Order in
that it did not pay $20,000 into the trust account of the Director by November 8,
2012. On December 2, 2012, Mr. Matkin wrote to counsel for the Director, stating:
I am attaching a check [sic] from Ms. Xiu Lan Chen of 7007 Churchill Street,
Vancouver in the amount of $15,404.51 to Employment Standards in Trust to
satisfy the order of Mr. Justice Chiasson that Canwood International Inc. pay
into trust to Employment Standards the amount of $20,000. I apologize for
the delay in complying with this order. Ms Xiu Lan Chen did not understand
her obligation to the government due to language and culture issues. Also I
have been overseas and then in meetings in Southern California until
Saturday evening Dec. 01, 2012. As soon as I returned I immediately
explained the seriousness of the situation to her. Ms. Chen has responded
this evening with the attached check [sic].
Canwood International Inc. v. Bork
[49]
Page 16
A copy of the letter was provided to the Deputy Registrar of this Court in an e-
mail, the text of which stated:
Regarding the required payments, please convey to the Honourable
Mr. Justice Chiasson our sincere regret and apology for the delay in providing
the payments in Trust to Employment Standards pursuant to his Oct. order.
Canwood's director Ms. Xiu Lan Chen of 7007 Churchill Street, Vancouver
has very limited English language skills and did not understand her obligation
or my promise of a timely response in this situation. Further, I was overseas
and in meetings in California from Nov. 10 to Dec. 01. unable to communicate
directly with Ms. Chen. I am now able to report tonight that I have the
required final payment of $15,404.51 in hand and I will be deliver the check
by hand to Employment Standards in the morning.
I have attached the covering letter to Ms. Michelle J. Alman of Employment
Standards regarding this payment. Thank you.
[50]
Contempt of court is a very serious matter. It strikes at the heart of the
administration of justice (Larkin v. Glase, 2009 BCCA 321, 274 B.C.A.C. 1 at
para. 8). In this case, the applicant purged its contempt, which appears to have
arisen from a misunderstanding. I accept Mr. Matkin’s explanation that the matter
was rectified by him as soon as he became aware of it.
[51]
In the circumstances, I do not accede to the position advanced by the Director
and supported by Mr. Bork. I do not find the applicant in contempt.
[52]
I would not award costs to the applicant. Its conduct resulted in the contempt
application.
Conclusion
[53]
The applicant’s applications to extend the time to appeal the April 20, 2012
order and for leave to appeal the June 14, 2012 order are dismissed. Mr. Bork is
entitled to his costs.
Canwood International Inc. v. Bork
[54]
Page 17
The Director’s application to find the applicant in contempt is dismissed. The
Director did not seek costs. No other party is entitled to them.
“The Honourable Mr. Justice Chiasson”