Date: 19980312
Docket: A-288-97
CORAM: STONE J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN:
| INDEPENDENT CONTRACTORS AND BUSINESS ASSOCIATION, KNAPPETT CONSTRUCTION LTD., CCM CONSTRUCTION LTD., KINETIC CONSTRUCTION LTD. |
Appellants
(Applicants)
- and -
| THE MINISTER OF LABOUR, REGIONAL DIRECTOR OF THE DEPARTMENT OF LABOUR, VANCOUVER AND THE ATTORNEY GENERAL OF CANADA |
Respondents
(Respondents)
Heard at Vancovuer, B.C., Tuesday, February 24, 1998
Judgment delivered at Ottawa, Ontario on Thursday, March 12, 1998.
REASONS FOR JUDGMENT BY: STONE J.A.
CONCURRED IN BY: DÉCARY J.A.
ROBERTSON J.A.
Date: 19980312
Docket: A-288-97
CORAM: STONE J.A.
DÉCARY J.A.
ROBERTSON J.A.
BETWEEN:
| INDEPENDENT CONTRACTORS AND BUSINESS ASSOCIATION, KNAPPETT CONSTRUCTION LTD., CCM CONSTRUCTION LTD., KINETIC CONSTRUCTION LTD. |
Appellants
(Applicants)
- and -
| THE MINISTER OF LABOUR, REGIONAL DIRECTOR OF THE DEPARTMENT OF LABOUR, VANCOUVER AND THE ATTORNEY GENERAL OF CANADA |
Respondents
(Respondents)
REASONS FOR JUDGMENT
STONE J.A.
[1] This is an appeal from an order of the Trial Division of April 2, 1997, dismissing a motion for an extension of time for bringing an application for judicial review of a decision made by the regional director of the Department of Labour at Vancouver (the "regional director"), pursuant to the Fair Wages and Hours of Labour Regulations, C.R.C. 1978, c. 1015 (the "Regulations").
[2] The Regulations were adopted pursuant to the Fair Wages and Hours of Labour Act, R.S.C. 1985, c. L-4 (the "Act"). By subsection 3(1) of the Act, every contract made with the Government of Canada for construction, remodelling, repair or demolition of any work is to be subject to certain conditions including that the employees involved be paid "fair wages"1. That term is defined in section 2 of the Act to mean "such wages as are generally accepted as current for competent workmen in the district in which the work is being performed...".
[3] Subsection 4(1) of the Regulations empowers the regional director of the Department of Labour at various places in Canada to ascertain the wage rates that in any district in which work under a contract is to be performed "are generally accepted as current for competent workmen in the character or class of work in which workmen employed in work under a contract will be engaged."
[4] Section 5 of the Regulations reads:
| 5. The Director may prepare a schedule of the wage rates ascertained by him pursuant to subsection 4(1) or (2), but in no case shall the wage rates set out in the schedule be less than the minimum hourly rate prescribed by or pursuant to Part III of the Canada Labour Code. |
[5] The first appellant (the "Association") is a voluntary association of open-shop contractors viz, contractors who are not certified to trade unions belonging to the British Columbia and Yukon Building Construction Trades Council. It describes itself in Article 1 of its By-laws as "the voice of the Open Shop construction industry in British Columbia."2 Each of the other appellants (the "Contractors") is a member of the Association.
[6] On February 3, 1995, W.R. (Bill) Ross, the regional director at Vancouver, wrote to federal contracting authorities in British Columbia with respect to the application of the Skills Development and Fair Wage Act, S.B.C. 1994, c. 22, of British Columbia, and advised of a change in the schedule of wage rates that had been in place since 1993. Henceforward he would use the "provincial minimum hourly rate in determining the fair wage" for projects that meet the criteria for the application of the British Columbia statute should a complaint be received. The practice that had been followed prior to February 3, 1995, was for the regional director to survey the local contractors in order to determine the fair wages under subsection 4(1) of the Regulations.
[7] In late February or early March 1995, the Association met and corresponded with the regional director with a view to persuading him to withdraw his decision. Despite the fact that a considerable amount of written material was provided for his review, the Association received no written reaction from the regional director. In October 1996, however, it became apparent to the Association that the decision was being implemented. In or about that month members of the Association who were submitting tenders in federal construction projects learned of the February 3, 1995 decision although it had yet to be included in the tendering documents.3 The Association met with the regional director on October 28, 1996, when a formal letter of objection was delivered by counsel in which the position was taken that the February 3, 1995 decision was beyond the powers conferred by the Regulations. Additional material was sent to the regional director on October 29, 1996, for the purpose of compelling him to review the approach he had taken in determining prevailing wage rates throughout British Columbia.
[8] By letter of December 6, 1996, the regional director informed the Association, with specific reference to counsel's letter of October 28, 1996, that pursuant to section 4 of the Regulations he had
| ...decided that for projects which meet the conditions of the Skills Development and Fair Wages Act of British Columbia (i.e. projects estimated at $250,000 or more and which do not fall under the exemptions noted in the regulations), I will use the hourly wage rate (not the benefit rate) as the fair wage and the province of British Columbia as the district. |
[9] Letters dated December 30, 1996 and January 31, 1997, were sent by counsel for the Association to the regional director indicating an intention to launch an application for judicial review of the December 6, 1996 decision and, if need be, to seek an extension of time to do so. The motion to have the thirty day limit under subsection 18.1(2) of the Federal Court Act extended for the purpose of attacking the December 6, 1996 decision was filed on February 25, 1997.
[10] The learned Motions Judge viewed the December 6, 1996 letter as "merely a courtesy response reiterating the substance of the February 3, 1995 decision." He also concluded, regardless of whether the decision was made on February 3, 1995, or December 6, 1996, that the time should not be extended because the appellants had not satisfied him of a bona fide intention to seek judicial review within the time limited by subsection 18.1(2), and because a reasonable explanation for the delay was not shown. As he put it at page 3 of his reasons:
| 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. |
[11] The relevant statutory provisions are subsections 18.1(1) and (2) and paragraph 18.1(3)(b) of the Federal Court Act. These read:
| 18.1 (1) An application for judicial review may be made by the Attorney General of Canada or by anyone directly affected by the matter in respect of which relief is sought. |
| (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow. |
| ... |
| 18.1(3) On an application for judicial review, the Trial Division may |
| ... |
| (b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal. |
[12] I shall deal first with the position of the Contractors.
[13] The record does not clearly establish that any of the Contractors has bid on a federal construction project in British Columbia since the change of policy was made on February 3, 1995. It shows that each of them has bid on such projects in the past, that they intend to continue to do so,4 and that one of them - Kinetic Construction Ltd. - was the low bidder on a construction project that is subject to the Act but was not awarded the contract prior to February 13, 1997.5
[14] I am satisfied from this that each of the Contractors is "directly affected" by the decision and, accordingly, that section 18.1 of the Federal Court Act entitles them to apply for judicial review and for relief under paragraph 18.1(3)(b) provided the application is launched in a timely manner. One of the grounds upon which relief may be granted under subsection 18.1(3) is, as provided for in paragraph 18.1(4)(a), that the federal board, commission or other tribunal "acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction".
[15] A person directly affected by a matter loses the right to apply for such relief if the judicial review proceedings are not launched "within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal". Such a person is then left to seek an extension of time pursuant to subsection 18.1(2).
[16] The circumstances in which the decision of the regional director was made are unusual, in that they did not involve a request by any of the appellants for a change of the regional policy that prevailed prior to February 3, 1995. In fact, not only did none of the appellants make such a request, but they were uniformly opposed to it. The regional director simply exercised a perceived power in modifying the policy that existed prior to February 3, 1995. Although the decision was clearly intended to have an on-going effect, that by itself is not in my view a basis for concluding that the thirty day time limit imposed by subsection 18.1(2) of the Federal Court Act has not expired.6
[17] The method by which a decision that is made under sections 4 and 5 of the Regulations is intended to be communicated is provided for in section 6. That section reads:
| 6. (1) Every contracting authority shall, before inviting tenders or entering into a contract, notify the Director in writing as to the nature of the proposed contract and the classifications of employment or work likely to be required in its execution. |
| (2) Subject to section 7, the Director shall, on receipt of a notice described in subsection (1), send to the contracting authority a schedule of wage rates described in section 5, appropriate for the proposed contract. |
| (3) Any change in the schedule of wage rates referred to in subsection (2) shall be sent by the Director to the contracting authority who shall, on receipt thereof, send a copy to each contractor affected thereby. |
[18] As this Court pointed out in Atlantic Coast Scallop Fishermen's Association et al. v. Canada (Minister of Fisheries and Oceans) (1995), 189 N.R. 220, at page 222, subsection 18.1(2) requires a tribunal itself by some positive action to communicate its decision to those directly affected by it. Here, however, neither the Act nor the Regulations impose a duty on the regional director to communicate his decision directly to every contractor who may potentially enter into a federal construction contract. Rather, subsection 6(3) of the Regulations contemplates that a contractor be informed of a change in the established wage rates by the "contracting authority" who, in turn, is required to "send a copy to each contractor affected thereby". The record clearly indicates that this is normally done by making the decision part of the tendering documents by which contractors are invited to bid on a federal construction project.7
[19] The appellants submit that before it can be determined at what point in time the decision was "first communicated" to the Contractors, it must first be determined when the decision was made. The decision, they say, was made on December 6, 1996, not on February 3, 1995. I agree. It is obvious that the regional director did decide on February 3, 1995, to apply the provincial wage rates to federal construction projects in British Columbia. On the other hand, the regional director was asked in the winter of 1995 and the fall of 1996 to review that decision in light of the materials furnished and the contention that the decision was beyond his jurisdiction. He appears to have done just that before writing the letter of December 6, 1996. I here adopt what was stated by Noël J. in Dumbrava v. Canada (Minister of Citizenship and Immigration) (1995), 101 F.T.R. 230, at page 236:
| Whenever a decision maker who is empowered to do so agrees to reconsider a decision on the basis of new facts, a fresh decision will result whether or not the original decision is changed, varied or maintained (Compare Peplinski v. Canada (Minister of National Health and Welfare), (1993), 58 F.T.R. 247 (T.D.).). What is relevant is that there be a fresh exercise of discretion, and such will always be the case when a decision maker agrees to reconsider his or her decision by reference to facts and submissions which were not on the record when the original decision was reached. |
See also Soimu v. Canada (Secretary of State) (1994), 83 F.T.R. 285, at paragraphs 5 and 6.
[20] The Association approached the regional director in 1995 and again in 1996 for the manifest purpose of promoting the interests of its members, for whom it was the "voice". This is evident from counsel's letter of October 28, 1996, where it was stated at page 7:
| The members of the ICBA are prepared to pay "such wages as are generally accepted as current for competent workmen in the district" in federal construction projects. The members of the ICBA do, however, object to the imposition of an arbitrary schedule of wages which is not based upon the definition of "fair wages" in the Act or the contracts.8 |
| [Emphasis added] |
In this context there was, in my view, no need to communicate the new decision further to the Contractors in the manner prescribed by subsection 6(3) of the Regulations. The record persuades me that by the time of the October 1996 meeting, the members of the Association including the Contractors were fully familiar with the contents of the February 3, 1995 decision. Why else would they object to it in the way that they did through their intermediary?
[21] Given that a fresh decision was made and communicated on December 6, 1996, it remains to be determined whether the Court should interfere with what was undoubtedly the exercise of discretion by the Motions Judge. The Supreme Court of Canada made it clear that interference is the exception and not the rule in Canada (Minister of Citizenship and Immigration) v. Tobiass et al. (1997), 218 N.R. 81, where it stated at page 123:
| A stay of proceedings is a discretionary remedy. Accordingly, an appellate court may not lightly interfere with a trial judge's decision to grant or not to grant a stay. The situation here is just as our colleague Gonthier, J., described in Elsom v. Elsom, [1989] 1 S.C.R. 1367; 96 N.R. 165, at p. 1375 [S.C.R.]:"[A]n appellant court will be justified in intervening in a trial judge's exercise of his discretion only if the trial judge misdirects himself or if his decision is so clearly wrong as to amount to an injustice." |
[22] Similarly, this Court maintained in Canderel Ltd. v. Canada, [1994] 1 F.C. 3, at page 9, that its role in reviewing a discretionary order is not to substitute its own discretion for that of the decision-maker below, but rather to determine whether he or she made an error of law.
[23] The appellants maintain that the Motions Judge misdirected himself in refusing to grant an extension. It was his view that the appellants failed to show a bona fide intention of seeking judicial review and did not provide a reasonable explanation for the delay.
[24] The seminal case for determining whether to grant or refuse an extension is the decision of this Court in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263. The granting of additional time "to do justice" between the parties was regarded by Thurlow C.J., at page 272, as the "underlying consideration". The particular factors normally considered to achieve that goal were summarized by Strayer J.A. in Nelson v. Commissioner of Corrections (Can.) et al. (1996), 206 N.R. 180 (F.C.A.), at page 181 as follows:
| The main considerations for determining whether an extension of time should be granted are well established in this court...and include the following: an intention, formulated within the time limit, to take proceedings; the existence of an arguable case; the cause and actual length of the delay; and whether there was prejudice caused by the delay. |
As Hugessen J.A. stated for the Court in Council of Canadians et al. v. Director of Investigation and Research, Competition Act et al. (1997), 212 N.R. 254 (F.C.A.), at page 255, while "[t]here is no immutable check list of matters that must be reviewed whenever the grant of an extension of time is being considered", the Court will generally look at whether the applicant has an arguable case and has adequately explained the failure to act in a timely fashion.
[25] The Motions Judge made no mention in his reasons of possible prejudice to the respondents. In my view, it is not clear from the record that the respondents would be prejudiced by a successful attack on the December 6, 1996 decision. The decision of the Motions Judge was based on the assumption that there is an arguable case on the merits. I would note that the Contractors are not required to persuade the Court that a judicial review application is bound to succeed. They need only show that they have an arguable case to present. I am satisfied on the record that they have done so. Having reached these conclusions, I must now pass to a consideration of the remaining factors i.e. whether the appellants have adequately explained the delay and whether they had a bona fide intention to seek judicial review.
[26] I do not view the six week delay as fatal in the circumstances. The appellants explained the reasons for the delay in their notice of motion. Among those reasons was the necessity of assembling evidence of current wage rates in various districts of British Columbia with a view, no doubt, to buttressing their argument that the entire province is not to be considered as a single district. The task of doing so would necessarily consume some considerable time given the geography of so large a province as British Columbia. I regard this explanation as adequate. The Motions Judge made no reference to it.
[27] I am also satisfied that there is clear evidence of a bona fide intention to seek judicial review of the December 6, 1996, decision in counsel's letters of December 30, 1996 and January 31, 1997. What was significant to the Motions Judge was that both letters "went unanswered". The first of these letters explicitly stated that the Association "intends to make an application pursuant to s. 18.1 of the Federal Court Act to set aside the decision". The second, confirming the first, again stated that the Association intended "to make an application pursuant to Section 18.1 of the Federal Court Act to set aside the decision dated December 6, 1996", and inquired whether the respondents would oppose a motion for an extension of time to do so. In my respectful view, the failure of the respondents to reply to these clear expressions of intention does not in the least lessen that intention. I consider both letters as signifying a continuing objection and an intention by the appellants to challenge the decision in the Court.
[28] I conclude, therefore, that this Court is justified in interfering with the decision below. In my view the time within which the Contractors may bring the application for judicial review should be extended by a further period of 21 days from the date of the judgment in this matter.
[29] I turn finally to the position of the Association.
[30] The Association asks that it be granted an extension of time within which to attack the decision of December 6, 1996. In my view, however, the request must be refused for an even more fundamental reason, namely, that the Association simply lacks standing to attack that decision by way of judicial review. It is not itself in the construction business and is therefore in no position to bid on federal government contracts in British Columbia. It follows that the Association is not "directly affected" by the December 6, 1996 decision in the sense that it can neither benefit nor suffer any direct adverse impact from that decision.
[31] It is true that from the outset the Association has sought to have the decision reviewed in its own right. Its interests in doing so, however, are obviously that of the members it serves including the Contractors. To borrow the words of Marceau J.A. in Canadian Transit Co. v. Canada (Public Service Staff Relations Board), [1989] 3 F.C. 611 (C.A.), at page 614, the Association's interest in the litigation is "merely indirect or contingent". The respondents appear to indicate in their written argument9 that they are not opposed to the Association seeking to intervene in any properly instituted application that the Contractors may launch. The Association will be able to seek intervener status in the Trial Division if any such application is brought.
[32] I would allow the appeal of the Contractors, set aside the order of the Trial Division and extend the time within which the Contractors may commence an application for judicial review of the December 6, 1996 decision of the regional director to 21 days from the date of the Judgment herein. I would dismiss the appeal of the Association.
"A.J. STONE"
J.A.
"I agree
Robert Décary j.a."
"I agree:
J.T. Robertson J.A."
FEDERAL COURT OF APPEAL
Date: 19980312
Docket: A-288-97
BETWEEN:
INDEPENDENT CONTRACTORS AND BUSINESS ASSOCIATION, KNAPPETT CONSTRUCTION LTD., CCM CONSTRUCTION LTD., KINETIC CONSTRUCTION LTD.
- and -
THE MINISTER OF LABOUR, REGIONAL DIRECTOR OF THE DEPARTMENT OF LABOUR, VANCOUVER AND THE ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT
__________________1 Paragraph 3(1)(a) of the Act.
2 Appeal Book, vol. 3, at p. 545.
3 Supplementary Affidavit of Philip Hochstein, sworn 28 February 1997, Appeal Book , vol. 3, at p. 540.
4 Affidavits of Bill Gyles, John Knappett and Bridget Cassidy, Appeal Book , vol. 1, at p.p. 39, 41 and 43.
5 Affidavit of Bill Gyles, ibid ., at p. 39.
6 See Drolet v. Surintendant des faillites et al. (1996), 118 F.T.R. 147.
7 Affidavit of W.R. Ross, sworn 26 February 1997, Appeal Book , vol. 1, at p. 27.
8 Appeal Book, vol. 1, at p. 57.
9 Memorandum of Points to be Argued (Respondents), at paragraphs 27-29.