Saint John (City) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771, (2010) 362 N.B.R.(2d) 327 (CA)

• Judge: Drapeau, C.J.N.B.
• Court: Court of Appeal (New Brunswick)
• Case Date: June 24, 2010
• Jurisdiction: New Brunswick
• Citations: (2010), 362 N.B.R.(2d) 327 (CA)

Saint John v. IAFF (2010), 362 N.B.R.(2d) 327 (CA);

    362 R.N.-B.(2e) 327; 934 A.P.R. 327

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: [2010] N.B.R.(2d) TBEd. JL.014

Renvoi temp.: [2010] N.B.R.(2d) TBEd. JL.014

The City of Saint John (appellant) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771 (respondent)

(73-10-CA)

Indexed As: Saint John (City) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771

Répertorié: Saint John (City) v. Saint John Firefighters' Association, International Association of Fire Fighters, Local 771

New Brunswick Court of Appeal

Drapeau, C.J.N.B.

July 6, 2010.

Summary:

Résumé:

The City of Saint John applied for judicial review of an arbitration award rendered on a grievance concerning five Saint John fire fighters.

The New Brunswick Court of Queen's Bench, Trial Division, in a decision reported at 361 N.B.R.(2d) 50; 931 A.P.R. 50, dismissed the application. The City appealed. The City brought a motion for leave to file a submission that exceeded the maximum length prescribed under the Rules of Court. Under rule 62.14(4), an appellant's submission, exclusive of schedules, could not exceed 35 pages unless the Chief Justice ordered otherwise.

The New Brunswick Court of Appeal, per Drapeau, C.J.N.B., held that there were special circumstances justifying the issuance of a relieving order under rule 62.14(4). In the result, the City was allowed to file a submission that could not run beyond 50 pages, exclusive of any schedule.

Practice - Topic 9455

Appeals - Factum, case on appeal or appeal book - Content of - The City of Saint John applied for judicial review of an arbitration award rendered on a grievance concerning five Saint John fire fighters - The application was dismissed - The City appealed - The City sought leave to file a submission that exceeded the maximum length prescribed under the Rules of Court - Under rule 62.14(4), an appellant's submission, exclusive of schedules, could not exceed 35 pages unless the Chief Justice ordered otherwise - The City contended that there were special circumstances that justified the issuance of a relieving order under rule 62.14(4), which included the complexity of the issues raised in the Supplementary Notice of Appeal - The New Brunswick Court of Appeal, per Drapeau, C.J.N.B., held that there were special circumstances justifying the issuance of a relieving order under rule 62.14(4) - In the result, the City was allowed to file a submission that could not run beyond 50 pages, exclusive of any schedule.

Practice - Topic 9455

Appeals - Factum, case on appeal or appeal book - Content of - Under rule 62.14(4) of the Rules of Court, an appellant's submission, exclusive of schedules, could not exceed 35 pages unless the Chief Justice ordered otherwise - The New Brunswick Court of Appeal, per Drapeau, C.J.N.B., stated that "In considering whether to grant a relieving order under Rule 62.14(4), I am guided by the following considerations: (1) while the broad wording of the Rule permits flexibility in its application, the judicial discretion it confers stands to be exercised on a rational basis; (2) conciseness is not merely a pious wish: it is mandated by Rule 62.14(2); (3) a relieving order is seldom justified because, in most instances, the appellant should be able to make the case for reversal within 35 pages; (4) as a general rule, a relieving order will only issue in those cases where, due to special circumstances, including the exceptional complexity of the issues raised, judicial insistence upon compliance with the 35 page maximum would be unreasonable; (5) reasonableness is assessed by taking into account the best interests of the parties and the panel tasked with determining the appeal; (6) while the moving party bears the burden of establishing the requisite special circumstances, counsel's considered opinion regarding the need for derogation will weigh heavily in the balance; and (7) as a matter of good practice, a draft of the proposed submission should form part of the record on motion in all but the most exceptional cases" - See paragraph 13.

Procédure - Cote 9455

Appels - Factum, dossier ou cahier d'appel - Contenu - [Voir Practice - Topic 9455 ].

Cases Noticed:

Jachimowicz v. Jachimowicz, [2009] N.S.R.(2d) Uned. 62; 2009 NSCA 36, refd to. [para. 8].

Ochapowace Indian Band v. Saskatchewan (Minister of Justice), [2006] Sask.R. Uned. 107; 70 W.C.B.(2d) 374; 2006 SKCA 70, refd to. [para. 9].

Brown v. Lowe et al., [2000] B.C.A.C. Uned. 201; 2000 BCCA 635, refd to. [para. 10].

R. v. Port Chevrolet Oldsmobile Ltd. et al. (2008), 262 B.C.A.C. 51; 441 W.A.C. 51; 2008 BCCA 443, refd to. [para. 10].

Gould v. Sandau (2004), 201 B.C.A.C. 1; 328 W.A.C. 1; 2004 BCCA 90, refd to. [para. 10].

Maughan v. University of British Columbia et al. (2008), 262 B.C.A.C. 70; 441 W.A.C. 70; 2008 BCCA 452, refd to. [para. 10].

Pfizer Canada Inc. et al. v. Canada (Minister of Health) et al., [2006] F.T.R. Uned. 557; 2006 FC 937, consd. [para. 11].

Sawridge Indian Band v. Canada, [2006] N.R. Uned. 28; 2006 FCA 52, refd to. [para. 11].

Canada v. General Electric Capital Canada Inc. (2010), 403 N.R. 114; 2010 FCA 92, consd. [para. 12].

Statutes Noticed:

Rules of Court (N.B.), rule 62.14 [para. 6].

Authors and Works Noticed:

Brown, Henry S., Supreme Court of Canada Practice, 2010 (2009), p. 319 [para. 7].

Counsel:

Avocats:

Scott A. Brittain, for the appellant;

Daniel P.L. Léger, for the respondent.

This motion was heard on June 24, 2010, before Drapeau, C.J.N.B., of the New Brunswick Court of Appeal, who delivered the following decision in both official languages on July 6, 2010.