Rule 515.1: General Appeal List

Case Summary

The Appellant, Mr. James, sought to restore his Appeal which had been struck, pursuant to Rule 515.1(9.1) due to inactivity for almost one year.

The Appellant was a probationary instructor at the Respondent Northern Lakes College (the “College”) between August 18, 2008 and December 15, 2008 and was subject to a collective bargaining agreement between the Board of Governors and the Faculty Association of the College. On November 10, 2010, Mr. James filed a Statement of Claim for wrongful dismissal and other breaches as part of the collective agreement. The Claim was struck before a Master. Mr. James’ Appeal to the Court of Queen’s Bench was also unsuccessful. The Appellant filed a Notice of Appeal to the Court of Appeal on October 16, 2012, but took no action for almost one year.

In determining whether to restore the Appeal, the Court considered the following: the Appeal’s arguable merit, any explanation for the delay, reasonable promptness in restoring the Appeal, and any prejudice to the respondents: 707739 Alberta Ltd v Phillips, 2001 ABCA 219 at para 13; Garry v Canada, 2007 ABCA 234 at para 4.

The Parties agreed that the motion hinged on the merits of the Appeal, specifically, whether the Court retained the jurisdiction to hear the merits of the case. The Court narrowed the issue in dispute to the alleged wrongful dismissal of the Appellant. Veldhuis J. stated that, although there are rare instances where courts retain residual jurisdiction over labour issues, courts often lack jurisdiction over such claims when they arise from interpretation, application, administration or violation of a collective agreement and are subject to the dispute resolution procedures set out in the collective agreement.

The Court considered the arguments advanced by the Appellant, to determine if it retained jurisdiction over the dispute in this case. First, the Appellant, relying on Quebec (Commission des droits de la personne et des droits de la jeunesse) v Quebec (Attorney General), 2004 SCC 39 (“Morin”), submitted that a court may take jurisdiction when the dispute involves a discriminatory clause in a collective bargaining agreement (i.e. probationary employees may grieve claims but may not arbitrate them). The Court distinguished this case from Morin, on the basis that Morin was based on age discrimination, and specifically stated that employers may provide fewer rights to probationary employees than non-probationary employees without amounting to discrimination.

Second, the Appellant argued that the Court may take jurisdiction where the grievance process fails to provide effective redress. The Appellant’s argument that he was denied arbitration as a probationary employee was rejected based on reasoning in Vaughan v Canada, 2005 SCC 11. Veldhuis J. stated that arbitration was not necessary for an aggrieved party to have redress and a lack of access to independent arbitration was not sufficient reason in itself for the courts to get involved with labour disputes.

Finally, the Court did not agree with the Appellant’s interpretation of ss. 87 and 88 of the Post-Secondary Learning Act, SA 2003, c P-19.5 and did not consider the Appellant’s argument that he had been improperly classified as a probationary employee, as that argument had not been raised in the Courts below.

The Court found no arguable merit on the Appeal, dismissed the Application to restore the Appeal and awarded Costs to the Respondents in the amount of $1,000.

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