Procedural Fairness: Listen to the Other Side

• Author: Marie-Yosie Saint-Cyr, First Reference Managing Editor
• Date: October 31, 2019

Written by Daniel Standing LL.B., First Reference Editor

A recent case of the Saskatchewan Court of Appeal, Saskatchewan (Employment Standards) v North Park Enterprises Inc., 2019 SKCA 69 (CanLII), illustrates the importance of the Latin maxim, audi alteram partem which means “listen to the other side,” or “let the other side be heard as well.” All administrative bodies, including labour boards, must comply with the rules of natural justice and procedural fairness. Within those rules there exists the duty to act fairly, which includes allowing the parties the right to be heard. In this case, the Saskatchewan Labour Relations Board issued a decision which ran afoul of this critical principle in several instances.

Key facts

The Director of Employment Standards issued a wage assessment against North Park Enterprises Inc., (the Employer) requiring it to pay more than $6,000 to Sean Bridgette, an employee who was laid off and claimed he was owed pay in lieu of notice, as well as call-out pay. The Employer successfully appealed the wage assessment to an adjudicator who reduced the amount substantially, eliminating the pay in lieu of notice and leaving $184.04 for call-out pay. The Director then appealed the adjudicator’s decision to the Labour Relations Board on multiple grounds of appeal. The day before the hearing, Mr. Bridgette’s wife, acting as his representative, sent an email to the Board containing written submissions on Mr. Bridgette’s behalf. Neither she nor the Board shared the email with the other parties, who were unaware of it. Following a hearing, the Board issued a written decision, cancelling the adjudicator’s decision and remitting the matter back to the adjudicator along with directions. Ten days after the hearing, the Board sent a copy of the email containing Mr. Bridgette’s submissions to the Director.

The Director was successful before the Board on the merits of its appeal, but appealed to the Saskatchewan Court of Appeal anyway, asserting that the Board committed errors of law by making various findings and issuing directions against it in violation of procedural fairness. Those findings and directions concerned the timeliness of the Employer’s appeal of the wage assessment, and the Director’s standing to participate at an adjudication. The third finding concerned the applicability of a particular section of The Saskatchewan Employment Act, respecting the time for filing an appeal.

Ultimately, the Court of Appeal agreed with the Board on...