3.22: Evidence on judicial review
13.5: Variation of time periods

Case Summary

This was an Application for Judicial Review of a Decision of the Registrar of Appeals denying the Applicant an extension of time in which to file a Notice of Appeal from a Decision of an Employment Standards Officer.

A preliminary issue was whether the Applicant was able to file Affidavits containing evidence beyond what was before the original decisionmaker, contrary to Rule 3.22. The Court held that the Affidavits largely contained evidence that was before the original decisionmaker, and the limited new evidence was not harmful. The Court exercised its discretion to receive this evidence.

Next, the Court considered whether the Registrar of Appeals had any authority to extend the time for appeal under the Employment Standards Code. The Court held that the Registrar had no such authority. The Court observed that an Appeal to the Registrar under the Employment Standards Code is made pursuant to statute, and as such, the Rules (for example, Rule 13.5) do not apply absent express adoption in the relevant statute. The Registrar, like a Superior Court Judge, has no power under the Rules to extend statutory limitation periods.

Justice Graesser also considered whether an email by the Applicant complaining about the original Order and advising of its intention to appeal can constitute “deemed service”.  The Court held that such an email is not equivalent to filing a Notice of Appeal, and as such held that this Ground of Appeal was without merit.

Justice Graesser therefore dismissed the Application.

View CanLII Details