2013 BCCA 96
British Columbia Court of Appeal
Canwood International Inc. v. Bork
2013 CarswellBC 529, 2013 BCCA 96, [2013] B.C.W.L.D. 3445, [2013] B.C.W.L.D. 3448, [2013] B.C.W.L.D. 3532, 226 A.C.W.S. (3d) 623, 334 B.C.A.C. 220, 572 W.A.C. 220
Canwood International Inc., Appellant (Petitioner) and Olaf Bork, Employment Standards Tribunal, Director of Employment Standards and Attorney General of British Columbia, Respondents (Respondents)
Chiasson J.A., In Chambers
Heard: October 18, 2012; December 6, 2012
Judgment: March 5, 2013
Docket: Vancouver CA040052
Proceedings: refusing leave to appeal Canwood International Inc. v. Bork (2012), 2012 CarswellBC 1745, 2012 BCSC 871 (B.C. S.C.); additional reasons to Canwood International Inc. v. Bork (2012), 2012 BCSC 578, 2012 CarswellBC 1092 (B.C. S.C.)
Counsel: J.G. Matkin, Q.C., for Appellant
I.S. Petersen, for Respondent, Olaf Bor
J.M. O’Rourke, for Respondent, Employment Standards Tribunal
M.J. Alman, for Respondent, Director of Employment Standards
J.M. Walters, for Respondent, Attorney General of British Columbia
Subject: Civil Practice and Procedure; Constitutional; Employment; Public
APPLICATION by employer for leave to appeal costs order reported at Canwood International Inc. v. Bork (2012), 2012 CarswellBC 1745, 2012 BCSC 871 (B.C. S.C.); APPLICATION by employer for extension of time to appeal order dismissing petition for judicial review; APPLICATION by Director of Employment Standards for order finding employer in contempt of court.
Chiasson J.A., In Chambers:
Introduction
1 These reasons for judgment address three applications, two of which are brought by Canwood International Inc. (the “applicant”). The applicant seeks leave to appeal a costs order made June 14, 2012 and an extension of time to appeal an order dismissing a petition for judicial review made April 20, 2012. The third is the application of the respondent Director of Employment Standards (the “Director”) seeking an order holding the applicant in contempt of court and an order requiring it to pay $29,409.65 into the Director’s trust account.
Background
2 These proceedings arose out of a failed business venture that resulted in the respondent, Olaf Bork, filing a complaint under the Employment Standards Act, R.S.B.C. 1996, c. 113. He complained that the applicant failed to pay him a $60,000 bonus. On November 12, 2008, following a hearing, a delegate of the Director determined that the applicant owed Mr. Bork the bonus, vacation pay on the bonus, statutory interest and a $500 mandatory administrative penalty. The applicant unsuccessfully appealed the determination to the Employment Standards Tribunal (the “Tribunal”). Its request for reconsideration of its appeal was dismissed.
3 The applicant sought judicial review of all three decisions. Mr. Justice Harris, as he then was, concluded that the original determination of the Director was not before him and limited judicial review to the appeal and reconsideration decisions. Harris J. dismissed the petition on April 20, 2012. He also dismissed Mr. Bork’s application for special costs, stating that he was “prepared to entertain brief written submissions on the question of the appropriate scale of costs” (at para. 189). His reasons are indexed as 2012 BCSC 578 (B.C. S.C.).
4 On June 14, 2012, the judge awarded Mr. Bork the costs of the judicial review petition on Scale C. His reasons on this matter are indexed as 2012 BCSC 871 (B.C. S.C.).
5 On July 4, 2012, the applicant filed a Notice of Application for Leave to Appeal the June 14, 2012 costs order. This application came before me on October 18, 2012. I was advised by Mr. Matkin, who was acting as a representative of the applicant, that the applicant intended to appeal the April 20, 2012 order, notwithstanding previously advising the other parties that it was seeking to appeal the costs order only. Some opposing counsel learned of the applicant’s intention to appeal the April 20, 2012 order only on the morning of October 18, 2012.
6 That day, I made the following orders:
IT IS ORDERED that the hearing of the appellant’s application for leave to appeal is adjourned until the date set for the hearing of the appellant’s application for an extension of time to appeal from the order of Harris J. (as he then was) made April 20, 2012;
IT IS FURTHER ORDERED that the appellant shall pay forthwith to the respondent Olaf Bork $1,100.00 as costs of this application thrown away;
IT IS FURTHER ORDERED that the appellant shall pay forthwith to the respondent Olaf Bork $1,100.00 as costs thrown away, pursuant to the order of Master Taylor made March 24, 2010;
IT IS FURTHER ORDERED that by November 8, 2012 the appellant shall pay into the trust account of the respondent Director of Employment Standards the amount of $20,000.00; and
IT IS FURTHER ORDERED that after service of the appellant’s filed notice of motion for an extension of time to appeal from the order of Harris J. (as he then was) made April 20, 2012 and supporting materials, the respondents shall have 10 days to make reply.
I advised the parties that I was not seized of the matter, but if they wished me to hear the applications, I would endeavour to make myself available.
7 Although the applicant made certain payments to the Director, it did not comply fully with the payment requirements of the October 18, 2012 order. This led to the contempt application by the Director, which was filed on November 13, 2012.
8 Prior to the hearing of these applications, the applicant paid the outstanding balance pursuant to the October 18, 2012 Order and provided an explanation why it previously had failed to do so.
Discussion
Procedural history
9 Before the Tribunal, the applicant contended that the Director did not have jurisdiction to make the determination because the applicant’s employment relationships were governed by federal and not provincial law. It did not raise the constitutional issue before the Director at first instance. On the appeal before the Tribunal, in support of its position that it was subject to federal labour law, the applicant, raised the federal trade and commerce power, integration with Canadian National Railway, a federal undertaking, and its relationships with First Nations. On the reconsideration application, it initially addressed only the First Nations argument, but referred to trade and commerce in its reply. It also requested an oral hearing, which was refused.
10 On judicial review, the applicant contended that the Employment Standards Act did not apply because it was involved in international trade. As to the other prongs of its constitutional argument, the chambers judge noted at para. 159:
In the context of this judicial review, Canwood conceded the following. First, it is not itself a federal undertaking, nor is it functionally integrated with a federal undertaking or entity. Moreover, the record does not establish that Canwood was in fact in the business of international sales of wood. Its business plan had not been implemented.
11 The applicant also argued that it had been denied natural justice because the Tribunal declined to order an oral hearing on the reconsideration application. The chambers judge dealt with this contention, stating at paras. 134 and 135:
[134] … Canwood complains that it was denied the opportunity to make oral submissions before the Tribunal on both the appeal and the reconsideration. Canwood argues that an oral hearing was required because of the complexity of the issues and the fact that the findings of the Director rested in part on conclusions of credibility.
[135] The principles of natural justice do not call for oral hearings simply because matters may be complex or credibility is an issue, see D. Hall & Associates Ltd. v. Director of Employment Standards et al., 2001 BCSC 575. The parties had been given a full opportunity to present their cases before the Director. No appeal lies from findings of fact, although it is apparent that Canwood was attempting to reargue the facts on appeal. The parties had every opportunity to fully present their cases in writing on appeal and reconsideration. The submissions made by Canwood were extensive and complete. They were not denied any opportunity to make every point they wished to make. I can see no error in principle, or breach of any principle of natural justice, in the Tribunal declining to hear oral submissions in addition to the voluminous written submissions before it.
12 In dismissing the applicant’s petition for judicial review, the judge stated:
[164] None of this means, however, that Canwood’s position is free from difficulty. I am satisfied that Canwood did not put before the Tribunal, either on appeal or reconsideration, the constitutional points it now seeks to make before this Court. The argument advanced before the Tribunal is different from the one that Canwood now seeks to advance on judicial review. Canwood did not argue the international trade prong of the trade and commerce power in a way that put that issue before the Tribunal. The authority relied on dealt only with the general trade and commerce power. Canwood did not provide the Tribunal with a position based on the federal regulations to which its proposed business export activities would be subject. Canwood no longer relies on the general trade and commerce power. The other constitutional arguments put before the Tribunal have also been abandoned.
[165] The result of all this is that the constitutional argument has been fundamentally recast in terms of its particulars and its legal foundation. As a result, this Court is not being asked to undertake a judicial review of the Tribunal’s decisions. It is being asked to give effect to a new argument, albeit related to arguments advanced before the Tribunal, but nonetheless different from them in important respects. In my view, this is not an appropriate exercise of the power of judicial review. I find Canwood has failed to exhaust its internal remedies before the Tribunal. It seeks now to recast its argument and to put it on a different foundation. I decline to exercise my discretion in favour of undertaking a judicial review of the Tribunal’s decision on this basis.
. . .
[169] Accordingly, I dismiss the application for judicial review on constitutional grounds. Canwood has abandoned those constitutional arguments that would have been a proper subject for judicial review and seeks to advance an argument that, by virtue of being materially different from that which was advanced before the Tribunal, is not.
13 In the event that he erred in refusing to entertain the constitutional issue as presented at the hearing, the judge undertook an analysis of that issue in the alternative. He concluded that the applicant’s employment relationships were governed by provincial law.
14 The applicant asserts that it did raise the trade and commerce power before the Tribunal, albeit only in reply. It contends that the May 17, 2012 decision of the Supreme Court of Canada in Tessier ltée c. Québec (Commission des lésions professionnelles), 2012 SCC 23, [2012] 2 S.C.R. 3 (S.C.C.), provides a “comprehensive analysis of the federal exception from the presumption of provincial authority over labour relations” that was not available to Harris J.
15 On June 20, 2012, Mr. Matkin advised opposing counsel that the applicant “will be appealing the order of costs”. In response to comments made by counsel, Mr. Matkin stated in a June 24, 2012 e-mail, “I am very puzzled why you are in such a huff about an appeal limited to the issue of costs”.
16 The applicant’s application for leave to appeal the costs order was filed July 4, 2012. On that day, after acknowledging receipt of the notice of application, counsel for the Attorney General stated, “(With respect, it would appear that [the applicant] seeks to appeal the merits of the decision, not simply the costs.)”. That day, Mr. Matkin responded, stating:
No we are just appealing the costs advocating two grounds: 1. There is no previous decision on point about federal labour relations under Trade and Commerce and 2. In the alternative the BCSC lacked the fresh guidance of Tessier Ltee and as a result erred in the analysis of s. 91(2).
17 On July 5, 2012, Mr. Matkin wrote:
We take issue with the decision of Mr. Justice Harris particularly in light of the relevant later decision of the Supreme Court of Canada in Tessier Ltee. We are only appealing the order of costs.
18 On July 26, 2012, the applicant filed its notice of motion in support of its application for leave to appeal. It sought leave to appeal the orders of Harris J. made April 20, 2012 and June 14, 2012, a fact duly noted by counsel for the Director in a July 26, 2012 e-mail to Mr. Matkin.
19 Also on July 26, 2012, the applicant filed its motion book that contained the argument supporting the application for leave to appeal. In it, the applicant stated in para. 16:
Because this application is not an appeal of the main BCSC judgment [the applicant] submits that the Court of Appeal should limit their review of the BCSC original decision to one issue i.e. did the Court use the wrong test for federal labour authority under S. 91(2)? …
Application to extend the time to appeal
20 If the time to appeal the April 20, 2012 order were extended, leave to appeal the costs order might not be required (Dunn v. Vicars, 2009 BCCA 477, 277 B.C.A.C. 213 (B.C. C.A.) at paras. 35 — 42), but the result of that application likely would be relevant to a consideration of the application for leave. Mr. Matkin advised me that if time were extended, the application for leave to appeal the costs order would not be pursued. For this reason, I first address the application to extend the time.
21 The criteria for extending time are well known. They were set out in Davies v. Canadian Imperial Bank of Commerce (1987), 15 B.C.L.R. (2d) 256 (B.C. C.A.), at 259 — 260 and may be summarized as follows:
1) Was there a bona fide intention to appeal?
2) When were the respondents informed of the intention?
3) Would the respondents be prejudiced unduly by an extension of time?
4) Is there merit in the appeal?
5) Is it in the interest of justice that an extension be granted?
22 The fifth question “encompasses the other four questions and states the decisive question” (Davies at 260). Further, “the first four rules cannot be used to defeat the interests of justice but are themselves guides to the application of the interests of justice” (Haldorson v. Coquitlam (City), 2000 BCCA 672, 149 B.C.A.C. 197 (B.C. C.A.) at para. 9). The interests of justice is not a factor that is to be applied independently of the other factors set out in Davies (Perren v. Lalari, 2009 BCCA 564, 280 B.C.A.C. 197 (B.C. C.A.) at para. 33 (per Prowse J.A. for the majority).
23 The burden is on the applicant to establish that the criteria are met (Kedia International Inc. v. Royal Bank, 2008 BCCA 305 (B.C. C.A. [In Chambers]) at para. 8 (Chiasson J.A. in Chambers); Rapton v. R., 2011 BCCA 71 (B.C. C.A. [In Chambers]) at para. 19 (Garson J.A. in Chambers)).
24 Although it is clear that the applicant intended to argue constitutional issues on its costs appeal, there is no evidence that it had a bona fide intention to appeal within the appeal period of the April 20, 2012 order. In fact, it disavowed any such intention.
25 Although the respondents clearly knew that the applicant wanted to address constitutional issues and suspected that it intended to attack the April 20, 2012 decision of the chambers judge, the first time they became aware of an actual intention to appeal the April 20, 2012 order was late on the evening of October 17, or early in the morning of October 18, 2012.
26 Subject to the impact of continued delay on Mr. Bork, I do not think it can be said that the respondents would be prejudiced unduly by an extension of time.
27 I turn to the merits of the proposed appeal. They are stated in the applicant’s application to extend time as:
- Did [the applicant] fail to exhaust its remedies before engaging in the judicial review?
- Did the judicial review err by treating the Trade and Commerce clause as a “derivative” and not a “direct” constitutional power?
III. Did the BCSC deny a fair hearing in the judicial review by not allowing [the applicant] the right to amend the Petition with affidavits about constitutional facts and by ruling without reasons that [the applicant’s] Reply in argument was improper? Also did the Tribunal breach the rules of natural justice by denying an oral hearing when the issue was a complex constitutional matter?
- Should the Court of Appeal extend the time for filing a Notice of appeal of the Canwood merit decision?
28 Although the judge held that the applicant had not exhausted its internal remedies, I think he did so using the phrase to describe the effect of the applicant recasting its constitutional arguments, not as a term of art in the traditional sense. The judge did use the phrase in that sense when considering whether to limit the judicial review to the reconsideration decision only. In that context, he distinguished this Court’s decision in U.S.W. v. Auyeung, 2011 BCCA 527, 314 B.C.A.C. 172 (B.C. C.A.), on the basis that it was limited to a consideration of the administrative scheme under the British Columbia Labour Relations Code, R.S.B.C. 1996, c. 244. That determination is not before me, but I question the approach of the judge while noting that, from a practical perspective, the review process under the Employment Standards Act essentially is the same as the process under the Labour Relations Code. In this case review of both the appeal and reconsideration decisions obliged the court to consider arguments made on the appeal that were not made on the reconsideration.
29 While the applicant has an argument that the judge erred in concluding it did not advance its trade and commerce position before the Tribunal on the reconsideration application, it is by no means clear that it did so. The reference in its reply on the reconsideration is terse. What is clear is that the constitutional argument was advanced in various different forms as the proceedings progressed. I doubt that a division of this Court would interfere with the judge’s exercise of discretion to refuse to entertain the constitutional issue as presented to him in the circumstances of this case.
30 The principal basis on which the judicial review application was dismissed was the shifting focus of the applicant’s constitutional arguments. I say little about the judge’s alternative analysis of the constitutional issue, save to observe that the position advanced by the applicant is somewhat novel. The applicant’s “derivative” — “direct” constitutional power argument appears to relate to its position that Tessier ltée changed the law. I question the extent to which Tessier ltée changed the law in a way that would have affected the law as determined by the judge.
31 The chambers judge afforded the applicant an opportunity to deliver a reply in the judicial review proceeding. He considered it, but found it unhelpful, stating at para. 184:
I agree that the reply is improper. For the most part, it reargued the case. At the same time, it did not add much or anything that struck me as having any material effect on what the basis of the constitutional argument was or what arguments could be advanced by Canwood. In brief, I did not see anything in the reply that might have led me either to refuse to consider an argument because it was new and advanced too late or, if new and material, to provide the respondents with an opportunity to respond to it. In short, the reply did not advance my understanding of the issues I have been called on to decide nor has my review of it prejudiced the position of the respondents.
I see no error of principle in the judge’s exercise of his discretion to disregard the applicant’s reply arguments.
32 This matter has been outstanding since November 2008. Mr. Bork resorted successfully to employment standards legislation. He has been denied the benefit of his effort for over four years. While the delay from April 20, 2012 is not inordinately long, the delay overall is extensive. The issue that the applicant seeks to pursue has nothing to do with the merits of Mr. Bork’s entitlement. The proposed appeal is not strong. In my view, it is not in the interests of justice to extend the time to appeal the April 20, 2012 order.
33 I am not prepared to extend the time to appeal the order of Harris J. made April 20, 2012.
Leave to appeal the costs order
34 In his June 14, 2012 reasons on costs, the judge referred to comments in his reasons on the merits of the petition for judicial review:
[2] In those reasons, I dismissed an application by Mr. Bork for special costs, but invited further written submissions on the question of the appropriate scale of costs. I dismissed the application for special costs in the following terms, much of which remains relevant to the question of the scale of costs:
[185] Mr. Bork applies for special costs in the event that the petition for judicial review is dismissed. In support of his application for special costs, Mr. Bork submits the following. He says that the petition for judicial review has been litigated in a manner that frustrates Mr. Bork’s right to an efficient and cost-effective determination of his entitlement to a bonus. Originally, the petition improperly named Mr. Bork’s counsel as a respondent. The petitioner has consistently attempted to expand the issues in dispute, failed to properly define the constitutional issues, repeatedly proceeded in procedurally irregular and improper ways and failed to advance the petition to a determination on its merits in a responsible and timely manner. Mr. Bork says that he has been denied payment of the monies owing to him without a proper basis. In short, he submits that the petition for judicial review was always without merit, but the resolution of it has been made infinitely more complex than it ought to have been. The suggestion is that there has been a deliberate effort to frustrate Mr. Bork’s entitlement to his judgment.
[186] There is no doubt that there is much merit in what Mr. Bork has to say. The petitioner has continually shifted position and attempted to expand the issues before the Court. It did so also before the Tribunal. This matter has taken too long to come to court. As I noted above, the petitioner has not provided a satisfactory explanation of the lengthy delay involved in these proceedings. The application to amend the petition was, in my view, misconceived. Proper procedures have been flouted with disturbing regularity.
[187] Mr. Matkin did acknowledge that it had taken too long for this matter to be heard on the merits. At some point in the proceeding, Canwood had been represented by counsel. Mr. Matkin took over representing Canwood in his capacity as a director of the company, and not as counsel. Although Mr. Matkin is an experienced lawyer, he did not practice as a litigator. The subtext of his comments on how this matter unfolded procedurally is that mistakes may well have been made, not through ill will, but through a lack of experience in litigation.
[188] Before I can make an award of special costs, I have to be satisfied that the manner in which the proceedings have been undertaken reveals conduct that is reprehensible or worthy of rebuke. Although I understand and sympathise with the frustration felt by the respondents in dealing with this matter, I cannot conclude that matters have risen to the level that the petitioner’s conduct has been reprehensible or deserving of rebuke.
[189] I reject the application for special costs. I am prepared to entertain brief written submissions on the question of the appropriate scale of costs.
35 The judge then set out the relevant considerations on an application for costs on Scale C, as stated by Madam Justice Lynn Smith in Antrobus v. Antrobus, 2012 BCSC 613 (B.C. S.C.) at para. 11. He concluded as follows:
[4] The issues in this judicial review were complex. The petitioner raised seven grounds of judicial review, including constitutional issues going to jurisdiction. The considerations that I have set out at para. 2 indicate the procedural complexity, unexplained delay and the failure to advance the case in procedurally appropriate ways. As a result, there were a number of pretrial applications, which in my view, were unnecessary. The constitutional issue was only finally adequately articulated at the hearing itself.
[5] I am satisfied that this matter was one of more than ordinary difficulty. The hearing took longer than it ought to have done. The issues were made more complex than they needed to be, but were inherently complex. A cursory review of the reasons for judgment dismissing the petition is sufficient to illustrate that proposition. There were numerous pretrial applications, not least of which were those in front of me in which I have to determine what the record was upon which the judicial review was proceeding.
[6] In my view, the petitioner’s argument to avoid costs being awarded on Scale C is without merit. The issue is not whether costs should be awarded. There is no reason to depart from the general rule that costs follow the event. Accordingly, the novelty and complexity of the constitutional issue supports an award on Scale C. The record does not support the petitioner’s argument that the respondents used delay tactics or attempted to have the petitioner abandon the petition out of frustration. Quite the contrary. Moreover, an application to determine the appropriate scale of costs is not an invitation to reargue the merits or advance propositions more properly the subject of an appeal.
36 The factors to be considered on an application for leave to appeal were summarized by Madam Justice Saunders in Goldman, Sachs & Co. v. Sessions, 2000 BCCA 326 (B.C. C.A. [In Chambers]) at para. 10 (in Chambers):
[1] whether the point on appeal is of significance to the practice;
[2] whether the point raised is of significance to the action itself;
[3] whether the appeal is prima facie meritorious or, on the other hand, whether it is frivolous; and
[4] whether the appeal will unduly hinder the progress of the action.
37 The test for leave to appeal an order of costs was set out in Neufeld v. Foster, 2000 BCCA 485, 5 M.V.R. (4th) 276 (B.C. C.A. [In Chambers]) (Rowles J.A. in Chambers):
[14] …As an award of costs generally involves the exercise of discretion, the award is subject to limited appellate review. Generally, leave is not granted unless a question of principle is involved: Raffele v. Janzen, [1989] B.C.J. No. 1733 (Q.L.) (B.C.C.A.).
[15] The factors that are generally taken into account on an application for leave to appeal are the importance of the proposed appeal generally and to the parties, the utility of the proposed appeal in the circumstances of the parties, and the prospects of success of the proposed appeal.
38 A court will set aside a costs award on appeal only if the judge has made an error in principle or if the costs award is plainly wrong (Hamilton v. Open Window Bakery Ltd. (2003), 2004 SCC 9, [2004] 1 S.C.R. 303 (S.C.C.) at para. 27). The applicant bears an onerous burden because of this Court’s reluctance to interfere with discretionary orders: Oliveira v. McIntyre, [1998] B.C.J. No. 1682 (B.C. C.A. [In Chambers]) at para. 9 (Donald J.A. in Chambers).
39 Because of this highly deferential standard of review, the merit requirement for leave to appeal an order for costs takes on a more prominent role and will require the applicant to demonstrate a matter of principle before leave will be granted: Bradshaw v. Stenner, 2012 BCCA 481 (B.C. C.A. [In Chambers]) at paras. 27 — 31 (Hinkson J.A. in Chambers), citing Yung v. Jade Flower Investments Ltd., 2012 BCCA 168, 319 B.C.A.C. 265 (B.C. C.A. [In Chambers]) at paras. 18 — 20 (D. Smith J.A. in Chambers).
40 Mr. Bork provided further submissions to the chambers judge, but also relies on the submissions advanced in support of his previous application for special costs. The applicant asserted that no costs should be awarded because “there were no decided cases on the constitutional issue raised” and that issue was novel.
41 In its submission, the applicant states the points in issue on its proposed appeal as follows:
- Should the Court of Appeal interfere with the BCSC exercise of discretion refusing to waive costs against [the applicant] in these unique circumstances where on the issue of S. 91(2) there were no decided cases on point?
- Should the Court of Appeal consider the Tessier lte case as relevant to an appeal of costs because the Supreme Court decision changing the law came before the final BCSC decision?
III. Does Tessier lte show that the BCSC wrongly interpreted the constitutional law of federal labour relations of an international trade and log export business under Section 91(2)?
- Does a mistaken interpretation of constitutional law by the BCSC cloud the “sound basis” of the discretion of the BCSC to award costs against [the applicant]?
[Underline original.]
42 Supporting its contention that there should be no costs because there were no decided cases on point is the applicant’s assertion that the judge rejected its constitutional arguments. While it is correct that the judge did address those arguments, this was done in the alternative and was not the basis on which the application for judicial review was dismissed.
43 In any event, the judge considered the contention that the constitutional point was novel. He concluded it did not warrant relieving the applicant from an award of costs. It was the judge’s view that “the novelty and complexity of the constitutional issue supports an award on Scale C”. I see no error in principle in the judge’s exercise of discretion on this point. In my view, a division of this Court would be unlikely to interfere based on the applicant’s contention the judge erred refusing not to award costs because there were no decided cases on point.
44 Addressing Tessier in its submission, the applicant argues:
[15] … [T]he major analysis and fresh guidance generally of Abella, J. in Tessier Ltee provides an opportunity for the Court of Appeal to clarify constitutional law in the context of an international log export business. Because of the timing and overlap of the 3 judgments (April, May and June) it is submitted that the Court of Appeal should consider the new and relevant constitutional law decided in Tessier Ltee in this leave to appeal.
[16] Because this application is not an appeal of the main BCSC judgment, Canwood submits that the Court of Appeal should limit their review of the BCSC original decision to one issue i.e. did the Court use the wrong test for federal labour authority under S. 91(2)? If the Court of Appeal concludes that the BCSC got it wrong on this issue it is submitted that the Court of Appeal should in the public interest correct this error and set aside the order of costs recognizing that this error would have clouded the discretion of the BCSC on costs.
[Underline original.]
45 The judge dismissed the petition for judicial review because he was not satisfied the constitutional issue was framed properly. Whether the judge was correct in this conclusion and in his alternative analysis of the applicant’s constitutional position is stated by the applicant on this application as not under appeal. The applicant is in effect asking this Court to determine whether the judge “got it wrong on this issue”; that is, to provide an opinion on a constitutional issue that is not under appeal based on legal authority that was not available to the chambers judge. I cannot think that a division of this Court would do so.
46 In my view, the judge made no error of principle in awarding costs on Scale C. The applicant suggests that if he were to have had the benefit of the analysis in Tessier, he would have exercised his discretion differently. I cannot understand why that would be the case. The judge awarded costs on Scale C because the litigation was unnecessarily protracted and included a complex and novel constitutional issue. Having the benefit of Tessier would not have altered that conclusion; the issues would have remained complex and novel. The applicant’s lengthy submission on the effect of Tessier illustrates that this is so. Having the benefit of Tessier also would not have vitiated the other considerations that were taken into account by the judge when making his costs order.
47 I would not grant leave to appeal the June 14, 2012 order.
Contempt application
48 The applicant failed to abide by the terms of the October 18, 2012 Order in that it did not pay $20,000 into the trust account of the Director by November 8, 2012. On December 2, 2012, Mr. Matkin wrote to counsel for the Director, stating:
I am attaching a check [sic] from Ms. Xiu Lan Chen of 7007 Churchill Street, Vancouver in the amount of $15,404.51 to Employment Standards in Trust to satisfy the order of Mr. Justice Chiasson that Canwood International Inc. pay into trust to Employment Standards the amount of $20,000. I apologize for the delay in complying with this order. Ms Xiu Lan Chen did not understand her obligation to the government due to language and culture issues. Also I have been overseas and then in meetings in Southern California until Saturday evening Dec. 01, 2012. As soon as I returned I immediately explained the seriousness of the situation to her. Ms. Chen has responded this evening with the attached check [sic].
49 A copy of the letter was provided to the Deputy Registrar of this Court in an e-mail, the text of which stated:
Regarding the required payments, please convey to the Honourable Mr. Justice Chiasson our sincere regret and apology for the delay in providing the payments in Trust to Employment Standards pursuant to his Oct. order. Canwood’s director Ms. Xiu Lan Chen of 7007 Churchill Street, Vancouver has very limited English language skills and did not understand her obligation or my promise of a timely response in this situation. Further, I was overseas and in meetings in California from Nov. 10 to Dec. 01. unable to communicate directly with Ms. Chen. I am now able to report tonight that I have the required final payment of $15,404.51 in hand and I will be deliver the check by hand to Employment Standards in the morning.
I have attached the covering letter to Ms. Michelle J. Alman of Employment Standards regarding this payment. Thank you.
50 Contempt of court is a very serious matter. It strikes at the heart of the administration of justice (Larkin v. Glase, 2009 BCCA 321, 274 B.C.A.C. 1 (B.C. C.A.) at para. 8). In this case, the applicant purged its contempt, which appears to have arisen from a misunderstanding. I accept Mr. Matkin’s explanation that the matter was rectified by him as soon as he became aware of it.
51 In the circumstances, I do not accede to the position advanced by the Director and supported by Mr. Bork. I do not find the applicant in contempt.
52 I would not award costs to the applicant. Its conduct resulted in the contempt application.
Conclusion
53 The applicant’s applications to extend the time to appeal the April 20, 2012 order and for leave to appeal the June 14, 2012 order are dismissed. Mr. Bork is entitled to his costs.
54 The Director’s application to find the applicant in contempt is dismissed. The Director did not seek costs. No other party is entitled to them.
Applications dismissed.