Federal Court Decisions

     97-T-8

BETWEEN:      INDEPENDENT CONTRACTORS and BUSINESSES ASSOCIATION,

KNAPPETT CONSTRUCTION LTD.,

CCM CONSTRUCTION LTD.,

KINETIC CONSTRUCTION LTD.,

     Applicants

AND:          THE MINISTER of LABOUR,

REGIONAL DIRECTOR of LABOUR, VANCOUVER

and

THE ATTORNEY GENERAL of CANADA,

     Respondents

     REASONS FOR ORDER and ORDER

DENAULT J.:

     The Court is seized of two matters. The first is an application for an extension of time, the Applicants having filed an Originating Notice of Motion on February 25, 1997, which filing date was clearly outside the prescribed thirty day period. The second is an application by the Respondents for an order dismissing the Originating Notice of Motion. While the Applicants submit that the "decision" which is properly the subject of the judicial review proceedings is that dated December 6, 1996, the Respondents argue that the decision dated February 3, 1995 is the impugned decision.

     This application raises several interesting questions. Among them is the issue of whether the association ought to have Applicant or Intervenor status, whether it has a direct personal interest in the case and whether it can file a class action on behalf of third parties.

     Having reviewed the facts of this case, this Court is satisfied that the pivotal "decision" in this application for judicial review is that which is dated February 3, 1995. The Applicant association, the ICBA, being aware as it was of that decision, sought to have it revisited, as evidenced by a letter dated March 8, 1995.¹

     Pursuant to the affidavit of Mr. Philip Hochstein,² Executive Vice-President of the Applicant association, unidentified members of the ICBA who were submitting tenders on federal construction projects advised him, in or about October 1996, that a union had faxed them a copy of the Notice to Contractors, which document was originally attached to the February 3, 1995 decision/letter signed by Bill Ross, Director of Program Services & Labour, B.C./Yukon Region with Human Resources Development Canada. As a result of this information, the ICBA sought legal advice. In a letter dated October 28, 1996 and addressed to Mr. Ross, counsel for the ICBA set out the association's legal position respecting the imposition of the provincial Fair Wage Schedule on federal construction projects.³ That letter concluded as follows: "...if the Director refuses to withdraw the Provincial Wage Schedule as a schedule of fair wages for the purposes of Federal Construction Contracts, our client will be forced to seek a remedy in the Courts."⁴

     On December 6, 1996, the Director sent a letter to counsel for the Applicant association. Among other things, that letter stated the following: "Pursuant to this authority I have decided that for projects which meet the conditions of the Skills Development and Fair Wage Act of British Columbia..., I will use the hourly wage rate (not the benefit rate) as the fair wage ...". The Director then added: "As you know, the contracting authorities have been advised of the above and requested to enclose a notice of such in their tendering documents."⁵ To the extent that the ICBA's formalized legal position, as set out in the October 28, 1996 letter, was essentially no more than a detailed expression of the March 8, 1995 opinion, I am of the view that the letter dated December 6, 1996 was merely a courtesy response reiterating the substance of the February 3, 1995 decision. As it contained no new facts, the December 1996 letter can neither be considered a fresh decision nor a reconsideration.⁶

     Should I be mistaken, such that the December 6, 1996 letter is found to be amenable to being interpreted as a reconsideration of the previous decision, the application for an extension of time must be dismissed, nonetheless, on the ground that the Applicants have failed to meet the test for an extension of time. Even if I were to assume, for purely conjectural purposes, that the Applicants herein have established an arguable case on the merits, I am not satisfied that the Applicants have shown a bona fide intention to seek judicial review within the prescribed 30 day period, a finding which holds whether the date of the decision is determined to be February 1995 or December 1996. Above all, the Applicants have failed to provide a reasonable explanation for the delay which preceded the filing of their Originating Notice of Motion on February 25, 1997. Had there been evidence showing that the parties were attempting to negotiate, the Applicants might have been able to demonstrate that the delay was "reasonable". No such evidence was adduced, however. Significantly, two letters written by counsel for ICBA and addressed to Director Bill Ross, went unanswered. Those letters, dated December 30, 1996 and January 31, 1997,⁷ advised the Respondents of the ICBA's intention to undertake judicial review proceedings to have the Director's decision set aside; they also sought the Respondents' acquiescence relative to the IBCA's anticipated application for an extension of time.

     The Applicants' motion for an extension of time being dismissed, it necessarily follows that the Respondents' application for an order dismissing the Applicants' request for an extension of time is moot.

OTTAWA, April 2, 1997

    

     J.F.C.C.

__________________

¹      On March 8, 1995, Mr. Philip Hochstein wrote to Mr. W.R. (Bill) Ross to air his views on the use of the provincial Fair Wage Schedule.

²      At paragraph 14 of Mr. Hochstein's third affidavit. Mr. Hochstein swore three affidavits. The first, dated February 14, 1997, was filed in support of the Originating Notice of Motion. The second, dated February 24, 1997, was filed in support of the Applicants' Motion for an extension of time. The third, dated February 28, 1997, was filed in response to the Wilkie and Ross affidavits, sworn and filed February 27, 1997.

³      At paragraph 15 of the third Hochstein affidavit.

⁴      The October 28, 1996 letter, prepared by counsel for the ICBA, is Exhibit "A" to the first affidavit of Mr. Philip Hochstein.

⁵      The December 6, 1996 letter is Exhibit "B" to the affidavit of Debra Sutherland.

⁶      Dumbrava v. Canada (Minister of Citizenship and Immigration) [1995] 101 F.T.R. 230 at 235 - 236.

⁷      Exhibits "C" and "D", respectively, to the affidavit of Debra Sutherland.