Lilydale Inc. v. Retail, Wholesale and Department Store Union, Local S-955, (2013) 414 Sask.R. 303 (CA)

• Judge: Jackson, J.A.
• Court: Court of Appeal (Saskatchewan)
• Case Date: March 25, 2013
• Jurisdiction: Saskatchewan
• Citations: (2013), 414 Sask.R. 303 (CA);2013 SKCA 56

Lilydale Inc. v. RWDSU (2013), 414 Sask.R. 303 (CA);

    575 W.A.C. 303

MLB headnote and full text

Temp. Cite: [2013] Sask.R. TBEd. MY.064

Retail, Wholesale and Department Store Union, Local S-955 (appellant) v. Lilydale Inc. (respondent)

(CACV2373; 2013 SKCA 56)

Indexed As: Lilydale Inc. v. Retail, Wholesale and Department Store Union, Local S-955

Saskatchewan Court of Appeal

Jackson, J.A.

May 24, 2013.

Summary:

Article 12 of the collective agreement provided that the employer's management rights included the right to determine the products to be handled within the bargaining unit and to change the products produced. Article 21 prohibited contracting out "work or services performed by the employees" without the parties' agreement. At issue were two of the employer's plants, both of which processed chicken, but used different processes. In 2008, the employer transferred the production of "thigh deboned" chicken and "tray pack" chicken from one plant to the other. An arbitration board upheld the union's grievance that the employer had breached article 21. The employer applied for judicial review.

The Saskatchewan Court of Queen's Bench, in a judgment reported (2011), 384 Sask.R. 252, allowed the application, setting aside the arbitration board's decision. The union, having failed to appeal within the time for doing so, applied to extend the time to appeal.

The Saskatchewan Court of Appeal, per Jackson, J.A., dismissed the application.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - The Saskatchewan Court of Appeal, per Jackson, J.A., stated that "while the judge's discretion to grant an extension of time to appeal is considered unfettered, it has become customary to assess the merits of such an application having regard for such factors as: (i) whether a reasonable explanation for the delay exists; (ii) whether the appellant possessed a bona fide intention to appeal within the time limited for appeal; (iii) whether there is an arguable case to be made to a panel of the Court; and (iv) whether the respondent will suffer any serious or real prejudice, if leave is granted, beyond what would be incurred in the usual appeal process. In any given case, one or more factors may be more important than any other. These factors are considered as a matter of practice, but ... they are not fixed rules; the only constant rule is that the discretion to enlarge the time must be exercised judicially. Section 9(6) [of the Court of Appeal Act] emphasizes that a court may grant an extension of time when it is 'just and equitable to do so'." - See paragraph 17.

Practice - Topic 9002

Appeals - Notice of appeal - Extension of time for filing and serving notice of appeal - Article 12 of a collective agreement provided that the employer's management rights included the right to determine the products to be handled within the bargaining unit and to change the products produced - Article 21 prohibited contracting out "work or services performed by the employees" without the parties' agreement - The employer transferred the production of "thigh deboned" chicken and "tray pack" chicken from one plant to the other - An arbitration board upheld the union's grievance that the employer breached article 21 - The trial judge set aside the arbitration board's decision - The board failed to discuss the meaning of the word "work" in article 21, appearing to assume that "work" included each individual product - Nor did the board discuss the relationship between articles 12 and 21 - The work referred to in article 21 was bargaining unit work, which, here, was the processing of chickens - If there had been a transfer of production of certain products without any compensating new products being produced, that might be a transfer of bargaining unit work - Here, the lost production was replaced with new production - The same chickens were being processed, but into different products - The board's unreasonable interpretation of the word "work" caused it to arrive at an unreasonable conclusion that bargaining unit work had been transferred out of the unit - The union thought in-house counsel filed an appeal from the October 21, 2011 decision within the 30 day appeal period - No appeal was filed - Two months after the appeal period expired, in-house counsel asked whether the employer would consent to an extension of time to appeal - The employer requested particulars regarding the delay - No response was provided - Months later, the union applied under s. 9(6) of the Court of Appeal Act to extend the time to file a notice of appeal - The Saskatchewan Court of Appeal, per Jackson, J.A., dismissed the application - A one year delay, with a weak explanation, was significant - The union had a bona fide intention to appeal within the 30 days (and thought counsel had done so) and had an arguable appeal - However, the employer, having relied on the unappealed decision to its financial detriment, would suffer serious or real prejudice - Other factors, including the expiration of the collective agreement at issue, which might render any appeal decision moot, warranted a finding that it was not just and equitable to extend the time to file the notice of appeal.

Cases Noticed:

Royal Bank of Canada v. G.M. Homes Inc. et al. (1982), 25 Sask.R. 6 (C.A.), refd to. [para. 18].

Treeland Motor Inn Ltd. v. Western Assurance Co. et al. (1983), 30 Sask.R. 154; 4 D.L.R.(4th) 370 (C.A.), refd to. [para. 18].

Dutchak v. Dutchak (2009), 337 Sask.R. 46; 464 W.A.C. 46; 2009 SKCA 89, refd to. [para. 19].

Raymond v. Raymond Estate (2010), 359 Sask.R. 123; 494 W.A.C. 123; 2010 SKCA 86, refd to. [para. 19].

Sparvier et al. v. Canada (Attorney General), [2011] Sask.R. Uned. 165; 2011 SKCA 115, refd to. [para. 19].

Fuller Austin Insulation Inc. v. International Association of Heat & Frost Insulators & Asbestos Workers, Local 119 et al. (2012), 385 Sask.R. 304; 536 W.A.C. 304; 2012 SKCA 25, refd to. [para. 19].

Frey v. BCE Inc. et al. (2013), 409 Sask.R. 266; 568 W.A.C. 266; 2012 SKCA 26, refd to. [para. 19].

Saskatchewan Union of Nurses v. Sherbrooke Community Centre (1996), 144 Sask.R. 15; 124 W.A.C. 15 (C.A.), refd to. [para. 24].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 24].

Lajeunesse v. Tastad Enterprises Inc. (1999), 180 Sask.R. 264; 205 W.A.C. 264 (C.A.), refd to. [para. 28].

Farm-Rite Equipment Ltd. (Receivership) v. Robinson Alamo Sales Ltd., [1989] 5 W.W.R. 673; 78 Sask.R. 161 (C.A.), refd to. [para. 28].

International Capital Corp. v. Schafer et al. (2010), 350 Sask.R. 160; 487 W.A.C. 160; 319 D.L.R.(4th) 155; 2010 SKCA 48, refd to. [para. 28].

Counsel:

Gary Bainbridge, for the prospective appellant;

Adrian Elmslie, for the prospective respondent.

This application was heard on March 25, 2013, in Chambers before Jackson, J.A., of the Saskatchewan Court of Appeal, who delivered the following judgment on May 24, 2013.