Date: 20000216
Docket: A-365-99
MONTRÉAL, QUEBEC, THE 16TH DAY OF FEBRUARY, 2000
CORAM: THE CHIEF JUSTICE
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
THE HONOURABLE MR. JUSTICE NOËL
BETWEEN: JEAN-PAUL PROVOST
Appellant
AND
ATTORNEY GENERAL OF CANADA in her capacity as
representative of the MINISTER OF LABOUR
- and -
YVES LABERGE
- and -
GILLES JAUVIN ET AL.
(listed in Schedule "A")
Respondents
J U D G M E N T
The appeal is dismissed with costs.
Certified true translation
Martine Brunet, LL.B.
Date: 20000216
Docket: A-367-99
MONTRÉAL, QUEBEC, THE 16TH DAY OF FEBRUARY, 2000
CORAM: THE CHIEF JUSTICE
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
THE HONOURABLE MR. JUSTICE NOËL
BETWEEN: JEAN-PAUL PROVOST
Appellant
AND
ATTORNEY GENERAL OF CANADA in her capacity as
representative of the MINISTER OF LABOUR
- and -
YVES LABERGE
- and -
GILLES JAUVIN ET AL.
(listed in Schedule "A")
Respondents
J U D G M E N T
The appeal is dismissed with costs.
Certified true translation
Martine Brunet, LL.B.
Date: 20000216
CORAM: THE CHIEF JUSTICE
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
THE HONOURABLE MR. JUSTICE NOËL
A-365-99
BETWEEN:
JEAN-PAUL PROVOST
APPELLANT
AND
ATTORNEY GENERAL OF CANADA in her capacity as
representative of the MINISTER OF LABOUR
- and -
YVES LABERGE
- and -
GILLES JAUVIN ET AL. (listed in Schedule "A")
RESPONDENTS
A-367-99
BETWEEN:
CLAUDE PROVOST
APPELLANT
AND
ATTORNEY GENERAL OF CANADA in her capacity as
representative of the MINISTER OF LABOUR
- and -
YVES LABERGE
- and -
GILLES JAUVIN ET AL. (listed in Schedule "A")
RESPONDENTS
Hearing held in Montréal, Quebec on Monday, February 14, 2000
Judgment pronounced at the hearing in Montréal, Quebec, on Wednesday, February 16, 2000
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU J.A.
Date: 20000216
CORAM: THE CHIEF JUSTICE
THE HONOURABLE MR. JUSTICE LÉTOURNEAU
THE HONOURABLE MR. JUSTICE NOËL
A-365-99
BETWEEN:
JEAN-PAUL PROVOST
APPELLANT
AND
ATTORNEY GENERAL OF CANADA in her capacity as
representative of the MINISTER OF LABOUR
- and -
YVES LABERGE
- and -
GILLES JAUVIN ET AL. (listed in Schedule "A")
RESPONDENTS
A-367-99
BETWEEN:
CLAUDE PROVOST
APPELLANT
AND
ATTORNEY GENERAL OF CANADA in her capacity as
representative of the MINISTER OF LABOUR
- and -
YVES LABERGE
- and -
GILLES JAUVIN ET AL. (listed in Schedule "A")
RESPONDENTS
REASONS FOR JUDGMENT OF THE COURT
(Pronounced at the hearing in Montréal, Quebec
on Wednesday, February 16, 2000)
LÉTOURNEAU, J.A.
[1] The appeals in dockets A-365-99 and A-367-99 are from a decision of Rouleau J., acting as a motions judge, by which he denied the appellants request for an extension of the time prescribed for filing an application for judicial review. This application for judicial review was for the purpose of challenging the legality of a payment order issued by an inspector under subsection 251.1(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code) ordering them to pay the Receiver General of Canada a sum of $3,440,608.48. It was also directed against the refusal of the Minister of Labour (the Minister) to appoint a referee under section 251.12 of the Code. We reproduce sections 251.1(1), 251.11, 251.12(1), 251.15(3) and 251.18 to assist in understanding the dispute:
251.1 (1) [Ordre de paiement] L'inspecteur qui constate que l'employeur n'a pas versé à l'employé le salaire ou une autre indemnité auxquels celui-ci a droit sous le régime de la présente partie peut ordonner par écrit à l'employeur ou, sous réserve de l'article 251.18, à un administrateur d'une personne morale visé à cet article de verser le salaire ou l'indemnité en question; il est alors tenu de faire parvenir une copie de l'ordre de paiement à l'employé à la dernière adresse connue de celui-ci.
251.1 (1) [Payment order] Where an inspector finds that an employer has not paid an employee wages or other amounts to which the employee is entitled under this Part, the inspector may issue a written payment order to the employer, or, subject to section 251.18, to a director of a corporation referred to in that section, ordering the employer or director to pay the amount in question, and the inspector shall send a copy of any such payment order to the employee at the employee's latest known address.
251.11 (1) [Appel] Toute personne concernée par un ordre de paiement ou un avis de plainte non fondée peut, par écrit, interjeter appel de la décision de l'inspecteur auprès du ministre dans les quinze jours suivant la signification de l'ordre ou de sa copie, ou de l'avis.
251.11 (1) [Appeal] A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister, in writing, within fifteen days after service of the order, the copy of the order, or the notice.
(2) [Consignation du montant visé] L'employeur et l'administrateur de personne morale ne peuvent interjeter appel d'un ordre de paiement qu'à la condition de remettre au ministre la somme visée par l'ordre, sous réserve, dans le cas de l'administrateur, du montant maximal visé à l'article 251.18.
(2) [Payment of amount] An employer or a director of a corporation may not appeal from a payment order unless the employer or director pays to the Minister the amount indicated in the payment order, subject to, in the case of a director, the maximum amount of the director's liability under section 251.18.
251.12 (1) [Nomination d'un arbitre] Le ministre, saisi d'un appel, désigne en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'appel et lui transmet l'ordre de paiement ou l'avis de plainte non fondée ainsi que le document que l'appelant a fait parvenir au ministre en vertu du paragraphe 251.11(1).
251.12 (1) [Appointment of referee] On receipt of an appeal, the Minister shall appoint any person that the Minister considers appropriate as a referee to hear and adjudicate on the appeal, and shall provide that person with
(a) the payment order or the notice of unfounded complaint; and
(b) the document that the appellant has submitted to the Minister under subsection 251.11(1).
251.15
[...]
(3) [Enregistrement] La Cour fédérale procède à l'enregistrement de l'ordre de paiement, de l'ordonnance ou de l'ordre de versement dès leur dépôt; l'enregistrement leur confère valeur de jugement de ce tribunal et, dès lors, toutes les procédures d'exécution applicables à un tel jugement peuvent être engagées à leur égard.
251.15
[...]
(3) [Registration or orders] On the filing of a copy of an order in the Federal Court under subsection (1) or (2), the order shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.
251.18 [Responsabilité civile des administrateurs] Les administrateurs d'une personne morale sont, jusqu'à concurrence d'une somme équivalant à six mois de salaire, solidairement responsables du salaire et des autres indemnités auxquels l'employé a droit sous le régime de la présente partie, dans la mesure où la créance de l'employé a pris naissance au cours de leur mandat et à la condition que le recouvrement de la créance auprès de la personne morale soit impossible ou peu probable.
251.18 [Civil liability of directors] Directors of a corporation are jointly and severally liable for wages and other amounts to which an employee is entitled under this Part, to a maximum amount equivalent to six months' wages, to the extent that
(a) the entitlement arose during the particular director's incumbency; and
(b) recovery of the amount from the corporation is impossible or unlikely.
[2] In our opinion, these appeals should be dismissed with costs for the following reasons.
[3] It is true that in the case at bar, as the appellants" counsel submits, judicial review was the appropriate remedy,1 although one of the arguments of the appellants challenged the constitutional validity of the order issued by the inspector.
[4] However, the motions judge did not, in our opinion, err in the exercise of his discretion in refusing the requested remedy. The appellants argue that, as a result of the letter they wrote to the Minister on June 2, 1998 in reply to the Minister"s letter of May 29, 1998 by which the Minister informed them that in view of their failure to pay the security prescribed by section 251.11 of the Code, their appeal was not admissible and that consequently it would not be proceeded with, they were entitled to await a reply from the Minister that never came. In their letter of June 2, the appellants put the Minister on notice to appoint a referee to determine the admissibility of their appeal. We will come back to this issue later. They also asked to be informed of the Minister"s decision if he did not accede to their request.
[5] In our opinion, the appellants, by this letter, unjustifiably created an expectation for themselves that was not reasonable in the circumstances, given the Minister"s clear and conclusive decision concerning the admissibility of their appeal and the fact that their letter to the Minister cited no new fact or reason that would require either an analysis that had not already been made or a reply that had not already been given.
[6] Furthermore, the explanations given by the appellants to justify a delay of more than seven (7) months in commencing a proceeding subject to a 30-day limitation period from the date of the impugned decision is unreasonable, in our view. On the supposition that the appellants naively thought they were entitled to a reply to their letter by the Minister, they failed to demonstrate due diligence by remaining inactive for seven months, until the time of execution of the payment order. During this period, instead of challenging the Minister"s decision by way of judicial review, within the requisite limitation periods, the appellants opted for a different remedy to compensate for their failure to put up the security required by the appeal procedure.
[7] In these circumstances, the appellants" conduct does not indicate an inability or incapacity on their part to file an application for judicial review, but rather indicates the desire to pursue other avenues that they considered preferable and more promising at the time.
[8] The appellants cited, in support of their submission concerning their delay in proceeding, the decision of this Court in Bullock v. Her Majesty the Queen,2 in which an application for extension of time in which to file a judicial review proceeding was allowed after a delay of eight (8) months. With respect, the fact in that case are quite different from the facts in the case at bar. Mr. Bullock was an individual who was defending himself, without legal skills, and an inmate in a maximum security prison in which he had very little freedom of movement to access legal services and exercise his judicial review proceeding. This is clearly not the case of the appellants, who at all times were represented by counsel.
[9] Furthermore, Mr. Bullock had demonstrated from the very outset, without ever waiving it, his intention to challenge the transfer decision affecting him, and all of his steps, including those to obtain the assistance of counsel " and which were undertaken even before the final decision was rendered concerning the grievance he had filed " were for the purpose of challenging the legality of that decision in Court. In the present case, there is no reason why we should infer such intention on the part of the appellants to challenge in Court the Minister"s decision as to the admissibility of their appeal, within the requisite limitation periods.
[10] Moreover, we are not persuaded that the application for judicial review the appellants wish to bring has a reasonable chance of success, even if the appellants have clearly added to the grounds they cited in their June 2 letter to the Minister, which were limited to the argument that section 251.11 of the Code did not apply to them since they were no longer directors at the time of the appeal, nor were they directors at the time the entitlement came into existence.
[11] First, constitutionally, the applicants" allegations pertaining to the distribution of powers under sections 91 and 92 of the Constitution Act, 1867 are too vague and imprecise to get into a serious debate under these sections. As to the allegation of unconstitutional discrimination based on section 15 of the Charter of Human Rights and Freedoms [sic], it is impossible in our view to seriously argue that, because the right of appeal of directors or officers of a company is subject to the deposit of security while that of the employees is not, the directors or officers are discriminated against on the basis of one of the grounds enumerated in that section, that their status can be considered as a ground analogous to those contained in that section, or that they are a disadvantaged group within the meaning of that provision. The difference in treatment between the directors of a corporation and its employees is explained by the nature of and the difference in the responsibilities each respectively assumes.
[12] Second, there is hardly a serious debate, either, over the meaning and scope of sections 251.11 and 251.12 of the Code in regard to whether it was the Minister or the referee appointed under section 251.12 who had the authority to decide the admissibility of their appeal. Subsection 251.11(2) sets out a necessary precondition to the valid filing of an appeal to the Minister. Contrary to the appellants" submission, it is the task of the Minister, not the referee, to satisfy himself that this prior legal requirement has been complied with before setting in motion the process of appointment of a referee and the hearing of the appeal as such.
[13] Finally, the appellants repeat the argument that they need not put up security on appeal since subsection 251.11(2) is addressed to the directors of a company and they no longer had that status either at the time when their company declared bankruptcy or on the day they commenced their appeal. This argument is without merit and has no reasonable possibility of success. It is obvious that the procedure under the Code for the recovery of wages owing to the employees also covers the directors who were in office when the wage entitlement arose. Subsection 251.11(2) expressly refers to section 251.18, which clearly states that the directors are liable for wages and other amounts owing to the employees, to a maximum amount equivalent to six months" wages, when the entitlement arose during the directors" incumbency.
[14] For these reasons, the appeals in dockets A-365-99 and A-367-99 will be dismissed with costs.
Certified true translation
Martine Brunet, LL.B.
| ATTORNEY GENERAL OF CANADA |
| in her capacity as representative of the |
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Appellant
AND
ATTORNEY GENERAL OF CANADA ET AL.
Respondent
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: February 16, 2000 |
REASONS FOR JUDGMENT OF LÉTOURNEAU J.A.
DATED: February 16, 2000
APPEARANCES:
Jean Legault for the appellant
Kathleen Cahill for the respondents Gilles Jauvin et al.
SOLICITORS OF RECORD:
LEPAGE LAROCHE
Montréal, Quebec for the appellant
MELANÇON, MARCEAU, GRENIER &
SCIORTINO for the respondents Gilles Jauvin et al.
| UNREPRESENTED for the respondents Attorney General of Canada and Yves Laberge |
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Appellant
AND
ATTORNEY GENERAL OF CANADA ET AL.
Respondent
| PLACE OF HEARING: Montréal, Quebec |
| DATE OF HEARING: February 16, 2000 |
REASONS FOR JUDGMENT OF LÉTOURNEAU J.A.
DATED: February 16, 2000
APPEARANCES:
Jean Legault for the appellant
Kathleen Cahill for the respondents Gilles Jauvin et al.
SOLICITORS OF RECORD:
LEPAGE LAROCHE
Montréal, Quebec for the appellant
MELANÇON, MARCEAU, GRENIER &
SCIORTINO for the respondents Gilles Jauvin et al.
| UNREPRESENTED for the respondents Attorney General of Canada and Yves Laberge |
__________________
1 Gwala v. Canada (Minister of Citizenship and Immigration), A-375-98, May 21, 1999 (F.C.A.) overruling the decision of the Trial Division, reported at [1998] 4 F.C. 43.
2 A-706-96, December 3, 1997 (F.C.A.).
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