Procrane Inc. and the Applicant, Mr. Thompson, both brought Originating Applications for review of an Occupational Health and Safety Council decision regarding Mr. Thompson's employment with Procrane Inc. With respect to the Procrane Originating Application, Procrane made three attempts to serve Mr. Thompson personally before serving him by email. Counsel for Procrane appeared on the return date for its Originating Application and, in the absence of Mr. Thompson, obtained an Order deeming service good and sufficient (“Service Order”). The Procrane Originating Application was adjourned to the same date as Mr. Thompson’s Originating Application. Mr. Thompson asked to vary the Service Order, but was advised to raise this issue at the later Application. Mr. Thompson did not raise the Service Order at his Originating Application, but instead brought a separate Application to vary. The Application to vary the Service Order was heard and dismissed. The Judge who heard the Application to vary held that, even though Procrane had not given the requisite 10 days' notice under Rule 3.9, the matter had been adjourned over for many months, thereby giving ample notice. Solicitor-Client Costs to Procrane were also ordered. Mr. Thompson sought permission to Appeal the Service Order, the dismissal of the Application to vary the Service Order and the Costs award.

The Court of Appeal did not grant permission to appeal the Service Order. Slatter J.A. noted that an Appeal must be launched within 1-month of the pronouncement of the Order and this Appeal was brought out of time and without grounds to justify an extension. Additionally, under Rule 9.15(1)(b), the preferred procedure for reviewing an ex parte Order was to apply to have the Order set aside or varied. Mr. Thompson had applied to vary the Service Order; therefore, any Appeal would be considered redundant.

Regarding the Application to vary which was denied, Slater J.A. considered the test for obtaining permission to Appeal as set out under Rule 14.5, and noted that the test was applied differently depending on the subject matter and overall context of the Appeal. While the Applicant correctly noted that Rule 3.9 required 10-days’ notice for an Originating Application, the Court noted that the covering letter sent with the Originating Application stated that the return date was for scheduling purposes and the actual hearing date would be at a later time. Rule 13.5(2) allowed for the 10-day period to be abridged when there was an irregularity or non-compliance and the Court could also remedy this under Rule 1.5(1). Rule 1.5(4) did not allow the Court to cure an irregularity where there was prejudice to the other party; however, the date of the actual hearing allowed for 11 months of notice, which was far in excess of the 10-day requirement. Additionally, although email was not a contemplated method for service under Rules 11.4 and 11.5, Rule 11.27 enabled the Court to validate service effected in a manner other than that contemplated under the Rules. Service was a question of fact in that, if the document was actually received by the person being served, the method of service was “inconsequential”.

Regarding the Costs Order, Slatter J.A. noted that Rule 10.29 creates a presumption that Costs of interlocutory proceedings will be awarded to the successful party, and Rule 10.31(3) confirms that a wide range of Costs are possible. Solicitor-Client Costs were awarded against Mr. Thompson because of persistent unsupported allegations of perjury, deceit, misconduct and bias against counsel and members of the Court. The Court of Appeal noted that Rule 10.33(2)(g) allowed the Court to consider Mr. Thompson’s misconduct when awarding Costs. Both Applications for permission to Appeal were dismissed, and Slatter J.A. held that the resulting Order could be filed without approval from Mr. Thompson pursuant to Rule 9.4(2)(b).