Post v. Kellogg Brown & Root (Canada) Co. et al.,

• Judge: C,Paperny,Sulyma
• Neutral Citation: 2005 ABCA 390
• Citation: (2005), 380 A.R. 277 (CA),2005 ABCA 390,380 AR 277,(2005), 380 AR 277 (CA),380 A.R. 277
• Date: 02 November 2005
• Court: Court of Appeal (Alberta)

Post v. Kellogg Brown & Root Co. (2005), 380 A.R. 277 (CA);

    363 W.A.C. 277

MLB headnote and full text

Temp. Cite: [2005] A.R. TBEd. NO.039

Samuel Post (respondent/applicant) v. Alberta Occupational Health and Safety Council (not a party to appeal/respondent) and Kellogg Brown & Root (Canada) Company carrying on business as KBR and KBR Halliburton (appellants)

Samuel Post (respondent/applicant) v. Alberta Occupational Health and Safety Council (appellant/respondent)

(0503-0132-AC; 0503-0133-AC; 2005 ABCA 390)

Indexed As: Post v. Kellogg Brown & Root (Canada) Co. et al.

Alberta Court of Appeal

Côté and Paperny, JJ.A., and Sulyma, J.(ad hoc)

November 2, 2005.

Summary:

Post filed an unlawful dismissal complaint with Alberta Human Resources and Employment - Workplace Health and Safety. His union and the employer were found to have violated s. 36 of the Occupational Health and Safety Act. The employer and the union appealed. The Alberta Occupational Health and Safety Council allowed the appeals on May 11, 2004. Post acknowledged picking up the Council's order from his private post office box on May 13, 2004. A chambers judge found that Post had not been personally served with the order as "personal service" under s. 44 of the Act required that the decision be delivered into Post's hands. Kellogg and the Council appealed.

The Alberta Court of Appeal allowed the appeal, holding that personal service had occurred.

Administrative Law - Topic 509

The hearing and decision - Procedure - Service - The Alberta Occupational Health and Safety Council rendered a decision on May 11, 2004 - Post acknowledged picking up the Council's order from his private post office box on May 13, 2004 - The Alberta Court of Appeal held that the Council's order was personally served on Post under s. 44 of the Occupational Health and Safety Act - Personal service occurred where actual notice of the order was received - It did not have to be shown that the order was delivered into the recipient's hands, and it did not matter who handed the papers to the addressee - The purpose of service was to give a party notice, and if that object had been satisfied because the document actually reached the party, then the precise manner in which it occurred was of no concern - See paragraphs 4 to 6.

Administrative Law - Topic 509

The hearing and decision - Procedure - Service - At issue was whether an order of the Alberta Occupational Health and Safety Council had been personally served on Post under s. 44 of the Occupational Health and Safety Act - A chambers judge held that it would be "inequitable" to use Post's admission in his affidavit that he had received the Council's order in his post office box, to find that personal service had been effected - The Alberta Court of Appeal held that the chambers judge was wrong in holding that it would be inequitable to use Post's admission against him - First, the court's equitable jurisdiction to relieve against penalties and forfeitures applied only to contractual penalties and forfeitures and did not relieve against the mandatory operation of a statute or rule of civil procedure - Second, a party who moved to set aside service had to give evidence about whether he in fact got notice or was in effect served - See paragraphs 7 to 8.

Equity - Topic 602

Equitable jurisdiction - Exercise of - [See second Administrative Law - Topic 509 ].

Equity - Topic 1063

Equitable relief - Relief from forfeiture - Jurisdiction - [See second Administrative Law - Topic 509 ].

Practice - Topic 2500

Service - Personal service - General - [See second Administrative Law - Topic 509 ].

Practice - Topic 2508

Service - Personal service - Manner of service - [See first Administrative Law - Topic 509 ].

Cases Noticed:

Hvozdanski Estate v. Gasland Oil Ltd. et al. (2000), 263 A.R. 399; 2000 ABQB 168, refd to. [para. 5].

Rupertsland Mortgage Investment Ltd. v. Winnipeg (City) and Gemmill (Medical Officer of Health for Winnipeg) (1981), 25 Man.R.(2d) 29 (Co. Ct.), refd to. [para. 5].

Red Giant Disposal & Services v. C.U.P.E. (1981), 26 B.C.L.R. 131 (S.C.), refd to. [para. 5].

Consiglio, Re, [1971] O.R. 798 (Master), refd to. [para. 5].

Polo Ralph Lauren Corp. et al. v. Cato et al., [1990] 3 F.C. 541; 36 F.T.R. 81 (T.D.), refd to. [para. 6].

Hope v. Hope (1854), 4 De G.M. & G. 328; 43 E.R. 534; 26 L.J. Ch. 682, refd to. [para. 6].

Tamglass American Inc. v. Richter, Allen & Taylor, Inc. (2005), 380 A.R. 286; 2005 ABCA 341, refd to. [para. 7].

Hansraj v. Ao et al., [2005] 4 W.W.R. 669; 354 A.R. 91; 329 W.A.C. 91; 2004 ABCA 223, refd to. [para. 7].

Statutes Noticed:

Occupational Health and Safety Act, R.S.A. 2000, c. O-2, sect. 44 [para. 1].

Counsel:

H.J.D. McPhail, Q.C., for the appellants, Kellogg Brown & Root (Canada) Company, carrying on business as KBR and KBR Halliburton;

S.N. Polkosnik, for the appellant/respondent, Alberta Occupational Health and Safety Council;

G.H. Veale, for the respondent/applicant, Samuel Post.

This appeal was heard on November 2, 2005, before Côté and Paperny, JJ.A., and Sulyma, J.(ad hoc), of the Alberta Court of Appeal. The following memorandum of judgment of the Court of Appeal was delivered from the bench by Côté, J.A., on November 2, 2005 and was filed on November 7, 2005.