Dicks et al. v. Nova Scotia (Elevators and Lifts) et al., (2015) 368 N.S.R.(2d) 174 (SC)

• Judge: Boudreau, J.
• Court: Supreme Court of Nova Scotia (Canada)
• Case Date: December 08, 2015
• Jurisdiction: Nova Scotia
• Citations: (2015), 368 N.S.R.(2d) 174 (SC);2015 NSSC 362

Dicks v. N.S. (2015), 368 N.S.R.(2d) 174 (SC);

    1160 A.P.R. 174

MLB headnote and full text

Temp. Cite: [2015] N.S.R.(2d) TBEd. DE.043

Ward Dicks, Ben McIntyre, Dan Vinette, Dave Garriock, Andy Reistetter and Peter Beerli as trustees for the Canadian Elevator Industry Education Program (applicant) v. The Chief Inspector appointed pursuant to the Elevators and Lifts Act, SNS 2002, c. 4, The Director of Technical Safety Division, Department of Labour and Advanced Education, Randy Kelly, Nathan McMichael, Craig Longard, Corey Cole, Jonathan McGregor and James Noade (respondents)

(Hfx. No. 441246; 2015 NSSC 362)

Indexed As: Dicks et al. v. Nova Scotia (Elevators and Lifts) et al.

Nova Scotia Supreme Court

Boudreau, J.

December 15, 2015.

Summary:

The trustees of the Canadian Elevator Industry Education Program (applicants) applied for judicial review of a decision made by the respondent Director of Technical Safety Division, Department of Labor and Advanced Education (N.S.), that approved an earlier decision made by the respondent Chief Inspector appointed under the Elevators and Lifts Act, accepting a training program for elevator mechanics and granting certificates of competency to individuals who had not completed the four-year program provided by the applicants. In fact there were two series of decisions, the first made respecting James Noade, the second respecting the other named respondents. A number of prehearing motions were brought: first, the applicants sought an extension of time to file the notice of judicial review respecting the first decision; second, two interested companies sought party status, or in the alternative, intervenor status; and third, the government respondents, supported by the individual respondents, moved for a finding that the applicants did not have standing to bring the judicial review application.

The Nova Scotia Supreme Court determined the issues accordingly.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - The applicants sought an extension of time to file a notice of judicial review - Civil Procedure Rule 7.05(1) provided the deadlines for the filing of a notice for judicial review - The Nova Scotia Supreme Court stated that "The decision to grant an extension of time is discretionary, and the court is instructed to take a flexible approach in assessing the facts, in order to ensure that justice is done. Generally speaking, courts will refer to a three-part analysis, as follows: 1. did the applicant have a bona fide intention to appeal when the right to appeal existed; 2. did the applicant have a reasonable excuse for the delay; 3. are there compelling or exceptional circumstances present which would warrant an extension of time, for example, has a strong case for error been shown, where there are real grounds to believe that a decision should be overturned. These are perhaps more properly referred to as guidelines. Courts will also consider other factors at play, including the length of the delay, the reason for the delay, the presence or absence of prejudice, the apparent strengths or merit of the proposed legal action, and the good-faith intention to appeal within the appropriate period. Each case is individual, and the importance of any of these factors can vary in any individual case." - See paragraphs 23 and 24.

Administrative Law - Topic 3342.1

Judicial review - General - Practice - Limitation period - Extension of - The trustees of the Canadian Elevator Industry Education Program (applicants) applied for judicial review of a decision made by the respondent Director of Technical Safety Division, Department of Labor and Advanced Education (N.S.), that approved an earlier decision made by the respondent Chief Inspector appointed under the Elevators and Lifts Act, accepting a training program for elevator mechanics and granting certificates of competency to individuals who had not completed the four-year program provided by the applicants - Under Civil Procedure Rule 7.05(1)(a), the deadline for filing the notice for judicial review was 25 days - The Nova Scotia Supreme Court dismissed the application - The delay was lengthy, more than five months after the period in rule 7.02 had expired - The reason for the delay was somewhat related to the question of whether the applicants had a true intention to appeal during the 25 day time period - The court did not find one - The only thing done by them during the first 25 days was to contact the government minister and seek her intervention - The court did not find an intention to appeal the decision through the courts - Prejudice was not a significant factor - Regarding the strength of the case, the court did not see that the case for error was strong enough to override the other factors - As the matter presently stood, it was not any more likely that the review would succeed, than not, and there were no other compelling or exceptional circumstances - See paragraphs 19 to 35.

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - [See Administrative Law - Topic 5414 ].

Administrative Law - Topic 3347

Judicial review - General - Practice - Parties (incl. standing) - The trustees of the Canadian Elevator Industry Education Program (CEIEP) applied for judicial review of a decision made by the respondent Director of Technical Safety Division, Department of Labor and Advanced Education (N.S.), that approved an earlier decision made by the respondent Chief Inspector appointed under the Elevators and Lifts Act, accepting a training program for elevator mechanics and granting certificates of competency to individuals who had not completed the four-year program provided by the applicants - Undisputed facts were that: CEIEP provided training for employees of elevator companies covered by Canadian collective agreements; the individual respondents were not employees of elevator companies covered by Canadian collective agreements and therefore CEIEP training was not available to them; these individuals attended a program then available for non-union employees, at the Elevating Training Devices Academy; the Chief Inspector of elevating devices for Nova Scotia granted Class A certificates of competency to all of these individuals, on the basis of the applications they placed before him; and, due to mobility agreements, these Nova Scotian certificate holders might now move to other provinces - The Nova Scotia Supreme Court held that there was enormous value in having the question of standing determined on a preliminary basis and it was properly brought as a preliminary question which could be decided on the basis of the uncontested facts, either through Civil Procedure Rule 12, or a preliminary motion - The court held that CEIEP did not have private interest standing in the matter - Although having unqualified elevator mechanics working was a concern for everyone, CEIEP's interests were not especially affected - While they were more interested than the average person on the street, the mere fact that they were interested did not mean that they had an "interest" (Civil Procedure Rule 35.08(2)) - Nor did CEIEP have standing under the public interest test, as the justiciable issue was not "serious" - See paragraphs 62 to 105.

Administrative Law - Topic 3351

Judicial review - General - Practice - Intervenors - General - [See Administrative Law - Topic 5414 ].

Administrative Law - Topic 5414

Judicial review - Certiorari - Practice - Parties - What constitutes an interested party - The Canadian Elevator Industry Education (CEIE) Program provided apprenticeship training in the construction and maintenance of elevating devices, but only for employees in Canada covered by collective agreements negotiated by the International Union of Elevator Constructors - The Program's trustees (applicants) applied for judicial review of a decision made by the respondent Director of Technical Safety Division, Department of Labor and Advanced Education (N.S.), that approved an earlier decision made by the respondent Chief Inspector appointed under the Elevators and Lifts Act, accepting a training program for elevator mechanics and granting certificates of competency to individuals who had not completed the four-year program provided by the applicants - Preliminary applications were brought, including ones by Universal and CKG - Both companies had employees that had received training other than from CEIE - The companies sought party status as respondents in this matter under Civil Procedure Rule 35.08(2), or alternatively, intervenor status - The Nova Scotia Supreme Court found that CKG had a sufficient interest in the proceedings to grant them the benefit of the presumption to make them a respondent - They were very significantly affected because, if they lost these employees, their contractual obligations to third parties would be in jeopardy - As the applicants' application for an extension of time to bring a judicial review against Universal's employee had been dismissed, Universal did not have a sufficient remaining "interest" under rule 35.08(2) - The court also refused to grant Universal intervenor status - Civil Procedure Rule 7.10, which provided for directions for judicial review, did not appear to make provision for intervenors in judicial review applications - It only referred to interested persons as "parties" or "respondents" - While Universal would likely be interested in these proceedings, they did not have a sufficient interest, since they were not affected by the hearing's outcome - Nor did they meet any of the other criteria - Their interest, if any, might be towards the future; but that concern was already being brought forward by CKG - Universal's intervention was not necessary in the public interest - CKG had been made a party and it could and would bring forward any concerns or issues on behalf of non-union companies - See paragraphs 36 to 61.

Practice - Topic 10

General principles and definitions - Extension of time under rules - [See first Administrative Law - Topic 3342.1 ].

Practice - Topic 5264

Trials - General - Trial of preliminary issues - Application - Question of law - [See second Administrative Law - Topic 3342.1 ].

Words and Phrases

Interest - The Nova Scotia Supreme Court discussed the meaning of the word "interest" as found in Nova Scotia Civil Procedure Rule 35.08(2) - See paragraphs 48 to 58.

Cases Noticed:

Osif v. College of Physicians and Surgeons (N.S.) (2015), 359 N.S.R.(2d) 187; 1133 A.P.R. 187; 2015 NSCA 46, refd to. [para. 22].

Jollymore Estate, Re (2001), 196 N.S.R.(2d) 177; 613 A.P.R. 177; 2001 NSCA 116, refd to. [para. 22].

Tibbetts v. Tibbetts (1992), 112 N.S.R.(2d) 173; 307 A.P.R. 173 (C.A.), refd to. [para. 22].

Rockwood Community Association Ltd. et al. v. Halifax (Regional Municipality) et al. (2011), 304 N.S.R.(2d) 83; 960 A.P.R. 83; 2011 NSSC 91, refd to. [para. 29].

Specter v. Nova Scotia (Minister of Fisheries and Aquaculture) et al., [2011] N.S.R.(2d) Uned. 138; 2011 NSSC 266, refd to. [para. 48].

Robichaud v. College of Registered Nurses of Nova Scotia (2011), 308 N.S.R.(2d) 292; 976 A.P.R. 292; 2011 NSSC 379, appld. [para. 49].

Mahoney v. Cumis Life Insurance Co. (2011), 301 N.S.R.(2d) 302; 953 A.P.R. 302; 2011 NSCA 31, refd to. [para. 66].

Amaratunga v. Northwest Atlantic Fisheries Organization, [2009] N.S.R.(2d) Uned. 153; 2009 NSSC 260, appld. [para. 68].

Aventis Pharma Inc. v. Canada (Minister of Health) et al., [2005] F.T.R. Uned. A93; 2005 FC 1396, refd to. [para. 86].

Downtown Eastside Sex Workers United Against Violence Society et al. v. Canada (Attorney General), [2012] 2 S.C.R. 524; 434 N.R. 257; 325 B.C.A.C. 1; 553 W.A.C. 1; 2012 SCC 45, refd to. [para. 94].

United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union v. Canada (Minister of Citizenship and Immigration) et al. (2013), 432 F.T.R. 225; 2013 FC 496, refd to. [para. 97].

Statutes Noticed:

Civil Procedure Rules (N.S.), rule 7.10 [para. 59]; rule 12 [para. 65]; rule 35.08(2) [para. 39].

Rules of Civil Procedure (N.S.) - see Civil Procedure Rules (N.S.).

Rules of Court (N.S.) - see Civil Procedure Rules (N.S.).

Counsel:

Raymond F. Larkin, Q.C., for the applicant;

Alison W. Campbell, for the respondents, Chief Inspector and Director of Technical Safety Division;

Nancy F. Barteaux, Q.C., for the individual respondents.

This application was heard in Halifax, N.S., on December 8, 2015, by Boudreau, J., of the Nova Scotia Supreme Court, who delivered the following oral decision on December 15, 2015.