OKUNS v ALBERTA LABOUR RELATIONS BOARD

This was an Application to restore an Appeal to the record under Rules 14.47 and 14.65(1). The Applicant, a former bus driver, was dismissed following an incident with a minor passenger. The Canadian Union of Public Employees (Local 1505) (the “Union”) filed, then withdrew, a grievance on his behalf after concluding that video evidence undermined his case. The Applicant challenged the video’s authenticity and filed a duty of fair representation complaint with the Alberta Labour Relations Board (the “ALRB”), which was dismissed for lack of merit. The Applicant’s subsequent Judicial Review Application was struck for repeated failures to meet filing deadlines, and the ensuing Appeal was deemed abandoned.

Under Rules 14.47 and 14.65, an Application to restore an Appeal that has been struck or deemed abandoned must be filed as soon as reasonably possible, but in any event, no later than six months after being struck. Feehan J.A. reviewed the discretionary test for restoration, considering the Appeal’s arguable merit, the explanation for delay, promptness in seeking restoration, intention to proceed, and prejudice to the respondent. Feehan J.A. highlighted that these factors are assessed together to determine whether restoration serves the interests of justice, noting that no factor is determinative, and restoration may still be denied even if all are satisfied. Appeal Justice Feehan emphasized that a higher threshold applies where an Appeal is deemed abandoned, requiring exceptional circumstances beyond the appellant’s control. Feehan J. further noted that delay in bringing the Application is generally fatal, and prejudice to the respondent is presumed since finality of judgment is a legitimate expectation.

Applying these principles, the Court found that the Applicant failed to satisfy the requirements for restoration. While the Applicant argued that flaws in the Union’s representation and video evidence constituted merit, Feehan J.A. noted that both the Union and the ALRB previously concluded otherwise. The Applicant offered no satisfactory explanation for extensive delays, having waited 17 months after the Appeal was struck and 11 months after it was deemed abandoned before seeking restoration. Feehan J.A. noted that the Applicant’s reasons, which included loss of counsel, self-representation, and health issues, did not excuse the lack of promptness.

Accordingly, prejudice to the Respondent was presumed, and the Application to restore the Appeal was dismissed. The Court pronounced Judgment and invoked Rule 9.2(2)(c).