Roses's Well Services Ltd. et al. v. Troyer et al., (2006) 394 A.R. 110 (QB)

• Judge: Verville, J.
• Court: Court of Queen's Bench of Alberta (Canada)
• Case Date: January 25, 2006
• Citations: (2006), 394 A.R. 110 (QB);2006 ABQB 76

Roses's Well Services Ltd. v. Troyer (2006), 394 A.R. 110 (QB)

MLB headnote and full text

Temp. Cite: [2006] A.R. TBEd. JA.134

In The Matter Of a decision of Judge L.J. Burgess acting as Umpire dated September 16, 2005;

And In The Matter Of the Employment Standards Code, R.S.A. 2000, c. E-9;

And In The Matter Of an application for judicial review of the decision of His Honour L.J. Burgess acting as Umpire dated September 16, 2005.

Roses's Well Services Ltd., L.V. Trucking Ltd., Keori Trucking Ltd., Thesen's Trucking Ltd., 315378 Alberta Ltd. operating as Dial Oilfield Services (appellant/applicant) v. Kelly B. Troyer (claimant/respondent) and Director of Employment Standards

(third party)

(0503 17855; 2006 ABQB 76)

Indexed As: Roses's Well Services Ltd. et al. v. Troyer et al.

Alberta Court of Queen's Bench

Judicial District of Edmonton

Verville, J.

January 26, 2006.

Summary:

An employment standards officer ordered an employer to pay Troyer $8,314.08 in lieu of notice. The employer filed a notice of appeal. At the hearing, the umpire dismissed the appeal on the basis that the notice of appeal was a nullity because it had not adequately set out the grounds of appeal. The employer sought judicial review.

The Alberta Court of Queen's Bench allowed the application, remitting the matter back to an umpire for a hearing on the merits.

Master and Servant - Topic 8503

Employment and labour standards - Decisions of director, tribunal or officers - Appeals - An employment standards officer ordered an employer to pay Troyer $8,314.08 in lieu of notice - The employer filed a notice of appeal asserting that the officer erred in failing to take into account (i) a witness's bias and (ii) relevant considerations or by taking into account irrelevant considerations - At the hearing, the employer argued that the issue was whether Troyer quit or was fired - The umpire dismissed the appeal, holding that the notice of appeal was a nullity because it did not identify the issues - The employer sought judicial review - The Alberta Court of Queen's Bench allowed the application - The standard of review was correctness - The umpire erred in concluding that the inadequate reasons in the notice of appeal rendered it a nullity - The grounds of appeal were merely a guide to what the likely issues were - While required by statute, they did not go to jurisdiction - Further, there was a trend toward considering a notice of appeal as a pleading, which could be amended if inadequate, and any prejudice cured by a remedy such as an adjournment or costs - See paragraphs 20 to 36.

Master and Servant - Topic 8589

Employment and labour standards - Practice - Costs - An employment standards officer ordered an employer to pay Troyer $8,314.08 in lieu of notice - The employer filed a notice of appeal asserting that the officer erred in failing to take into account (i) a witness's bias and (ii) relevant considerations or by taking into account irrelevant considerations - At the hearing, the employer argued that the issue was whether Troyer quit or was fired - The umpire dismissed the appeal, holding that the notice of appeal was a nullity because it did not identify the issues - The employer sought judicial review - The Alberta Court of Queen's Bench allowed the application, finding that the umpire had erred - The court declined to order costs in favour of the employer although it had been successful on the judicial review application - The employer had brought the problem on itself by failing to provide adequate reasons for the appeal either in the notice of appeal or subsequently by correspondence prior to the commencement of the appeal before the umpire - See paragraph 43.

Practice - Topic 7022

Costs - Party and party costs - Entitlement to party and party costs - Successful party - Exceptions - Defective pleadings or procedures - [See Master and Servant - Topic 8589 ].

Practice - Topic 8862

Appeals - Quashing or dismissal of appeals - Grounds for - [See Master and Servant - Topic 8503 ].

Practice - Topic 9001

Appeals - Notice of appeal - Form of notice of appeal - [See Master and Servant - Topic 8503 ].

Cases Noticed:

Pushpanathan v. Canada (Minister of Citizenship and Immigration), [1998] 1 S.C.R. 982; 226 N.R. 201, appld. [para. 10].

Workers' Compensation Board (Alta.) v. Workers' Compensation Board Appeals Commission (Alta.) (2005), 371 A.R. 318; 354 W.A.C. 318; 2005 ABCA 276, appld. [para. 10].

Alberta Union of Provincial Employees et al. v. Lethbridge Community College, [2004] 1 S.C.R. 727; 319 N.R. 201; 348 A.R. 1; 321 W.A.C. 1, refd to. [para. 11].

National-Oilwell Ltd. v. Madsen et al. (1992), 120 A.R. 389; 8 W.A.C. 389 (C.A.), folld. [para. 22].

Coulthard v. Alberta (2004), 373 A.R. 40 (Q.B.), dist. [para. 27].

R. v. Timmons (1957), 117 C.C.C. 417; 25 C.R. 317 (Alta. C.A.), dist. [para. 28].

R. v. Lucier (R.C.) (1996), 187 A.R. 228; 127 W.A.C. 228 (C.A.), refd to. [para. 31].

Lundrigan et al. v. Weir et al. (2004), 250 Sask.R. 59; 2004 SKQB 239, consd. [para. 32].

Seelye v. Cohen (1986), 76 A.R. 79; 45 Alta. L.R.(2d) 111 (Q.B.), consd. [para. 32].

Counsel:

Sydney A. Sabine (Prentice Chow McLean McAllister), for the appellant/applicant;

Kelly B. Troyer, appearing on own behalf;

Sean McDonough (Alberta Justice - Civil Litigation), for the Director of Employment Standards.

This application was heard on January 25, 2006, by Verville, J., of the Alberta Court of Queen's Bench, Judicial District of Edmonton, who delivered the following reasons for judgment on January 26, 2006.