Fredericton (City) et al. v. Fredericton Police Association, Local 911 et al., (2016) 449 N.B.R.(2d) 164 (CA)

• Judge: French, J.A.
• Court: Court of Appeal (New Brunswick)
• Case Date: April 22, 2016
• Jurisdiction: New Brunswick
• Citations: (2016), 449 N.B.R.(2d) 164 (CA)

Fredericton v. Police Assoc. (2016), 449 N.B.R.(2d) 164 (CA);

    449 R.N.-B.(2e) 164; 1180 A.P.R. 164

MLB headnote and full text

Sommaire et texte intégral

[French language version follows English language version]

[La version française vient à la suite de la version anglaise]

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Temp. Cite: [2016] N.B.R.(2d) TBEd. JL.018

Renvoi temp.: [2016] N.B.R.(2d) TBEd. JL.018

The City of Fredericton and the Board of Trustees of the Shared Risk Plan for CUPE and Non-Bargaining Employees of the City of Fredericton (intended appellants) v. Fredericton Police Association, Local 911, United Brotherhood of Carpenters and Joiners of America, Fredericton Fire Fighters Association, International Association of Fire Fighters, Local 1053 and Superintendent of Pensions (intended respondents)

(26-16-CA; 27-16-CA)

Indexed As: Fredericton (City) et al. v. Fredericton Police Association, Local 911 et al.

Répertorié: Fredericton (City) et al. v. Fredericton Police Association, Local 911 et al.

New Brunswick Court of Appeal

French, J.A.

May 11, 2016.

Summary:

Résumé:

The intended appellants moved for an extension of time to serve applications for leave to appeal a decision of the Financial and Consumer Services Tribunal. The applications were filed on the last day of the 30-day time period (Financial and Consumer Services Commission Act, s. 48(2)), but were not served on the intended respondents within the 30-day period prescribed by s. 48(3)(a). Further, the applications were filed with the Tribunal's Registrar outside the 30-day period prescribed by s. 48(3)(b). The intended respondents opposed the motions on the ground that the Court did not have jurisdiction to extend the time for service and filing of the applications, pursuant to s. 48 of the Act and the Rules of Court.

The New Brunswick Court of Appeal, per French, J.A., allowed the motions.

Administrative Law - Topic 6112

Judicial review - Statutory appeal - General - Extension of time for applying for leave to appeal (incl. for serving or filing) - The New Brunswick Court of Appeal, per French, J.A., concluded that the Court had the jurisdiction to extend the time to serve an application for leave to appeal, as provided for in s. 48(3)(a) of the Financial and Consumer Services Commission Act, and to file an application with the Registrar of the Financial and Consumer Services Tribunal, as provided for in s. 48(3)(b) - The application for leave to appeal was made within the 30-day time period provided for in s. 48(2) - A review of the case law indicated that whether failure to serve was fatal to an appeal, or was remediable by an order extending the time for service, depended largely on the applicable legislation - "A reading of s. 48(3), in the context of the Act as a whole, led me to conclude the Court may extend the 30-day period for service and for filing of an application for leave to appeal with the Registrar of the Tribunal. The right to appeal a decision of the Tribunal is contained entirely within s. 48. The section addresses separately the making of an application for leave to appeal and the service of the application (and the filing with the Registrar of the Tribunal). ... The legislative differentiation between these obligations cannot be overlooked. Though both are mandatory, they arise as independent obligations. ... It is my view that compliance with s. 48(2) satisfies the only substantive time limit for pursuing an appeal under s. 48." - See paragraphs 31 to 37.

Administrative Law - Topic 6112

Judicial review - Statutory appeal - General - Extension of time for applying for leave to appeal (incl. for serving or filing) - The dispute centered on the requirement in s. 48(3) of the Financial and Consumer Services Commission Act to serve on the other parties, within 30 days, an application for leave to appeal and to file it with the Registrar of the Tribunal - The application for leave to appeal was made within the 30-day time period provided for in s. 48(2) - There was no opposition to the request for an extension of time, other than jurisdiction - The New Brunswick Court of Appeal, per French, J.A., concluded that s. 48(8) provided the Court with the jurisdiction to extend the time for service and filing under s. 48(3) - The Court disagreed with the intended respondents' submission that s. 48(8) ("To the extent that they are not inconsistent with this section, the Rules of Court apply to an appeal under this section") and the Rules did not provide the authority to extend time - "[T]he use of the word 'appeal' in s. 48(8) is intended to incorporate the Rules in relation to the entire appeal process under s. 48" - In this case, the application for leave and the filed records and submissions were consistent with the Rules - "The incorporation of the Rules, to the extent that they are inconsistent with the Act, does not exclude the incorporation of the power under the Rules to extend a time period that is provided in the Rules. ... Rule 62.03(2) expressly allows the Court to extend the time to serve a Notice of Motion for Leave to Appeal. This, in my view, confers the power to extend the time period prescribed by the Act for the procedural steps of service and filing with the Registrar of the Tribunal. This is not an inconsistency as contemplated by s. 48(8)." - See paragraphs 38 to 44.

Administrative Law - Topic 6146

Judicial review - Statutory appeal - Conditions precedent - Statutory power - Exercise of - [See first Administrative Law - Topic 6112 ].

Courts - Topic 5781

Provincial courts - New Brunswick - Court of Appeal - Jurisdiction - Single judge - [See both Administrative Law - Topic 6112 ].

Practice - Topic 10

General principles and definitions - Extension of time under rules - [See second Administrative Law - Topic 6112 ].

Practice - Topic 12

General principles and definitions - Substantive versus procedural rules or rights - [See both Administrative Law - Topic 6112 ].

Practice - Topic 8872

Appeals - Leave to appeal - Extension of time for application for (incl. for serving or filing) - [See both Administrative Law - Topic 6112 ].

Securities Regulation - Topic 1382

Regulatory commissions (incl. self-regulatory organizations) - Statutory appeals to courts or judicial review - Leave to appeal (incl. extension of time for serving or filing) - [See both Administrative Law - Topic 6112 ].

Counsel:

Avocats:

Frederick C. McElman, Q.C., and Jessica R. Bungay, for the intended appellant, the City of Fredericton;

David A. Stamp, for the intended appellant, the Board of Trustees of the Shared Risk Plan for CUPE and Non-Bargaining Employees of the City of Fredericton;

David Andrew Mombourquette and Brenda Laudia Comeau, for the intended respondent, Fredericton Police Association, Local 911, United Brotherhood of Carpenters and Joiners of America;

Sean McManus, for the intended respondent, Fredericton Fire Fighters Association, International Association of Fire Fighters, Local 1053;

Brian Edward Maude, for the intended respondent, Superintendent of Pensions.

These motions were heard on April 22, 2016, by French, J.A., of the New Brunswick Court of Appeal, who delivered the decision on May 11, 2016, and the following reasons on July 14, 2016, in both official languages.