Date: 19990308
Docket: T-563-98,
T-1259-97
BETWEEN:
T-563-98
KNAPPETT CONSTRUCTION LTD.,
CCM CONSTRUCTION LTD.
and KINECTIC CONSTRUCTION LTD.
Applicants
- and -
THE MINISTER OF LABOUR, REGIONAL
DIRECTOR OF THE DEPARTMENT OF LABOUR,
VANCOUVER AND THE ATTORNEY GENERAL
OF CANADA
Respondents
AND BETWEEN:
T-1259-97
KINETIC CONSTRUCTION LTD.,
Applicant,
- and -
THE MINISTER OF LABOUR, REGIONAL
DIRECTOR OF THE DEPARTMENT OF LABOUR,
VANCOUVER AND THE ATTORNEY GENERAL
OF CANADA,
Respondents.
REASONS FOR ORDER
MR. JOHN A. HARGRAVE,
PROTHONOTARY
[1] At the conclusion of the Applicant's motion, I ordered application T-1259-97 consolidated with T-563-98. I will refer to these two applications as the 1997 and 1998 applications. These are promised, although delayed, reasons which deal primarily with the consolidation, but which also touch on the stay of the 1997 application and the filing of further affidavit material relevant to both applications.
BACKGROUND
[2] Both of the applications seek review of similar decisions made by the Vancouver Regional Director of the Department of Labour. The 1997 application seeks review of a 22 May 1997 ruling that the wages paid to workers, on a defined project, a Buoy Maintenance Building in Victoria, are those set out in the Fair Wage Minimum Rate Schedule pursuant to the Skills Development and Fair Wage Act, S.B.C. 1994 c. 22.
[3] The 1998 application again seeks review of a similar but general ruling, involving the wages of construction workers on federal projects, subject to the Fair Wage and Hours of Labour Act, R.S.C. 1985, c. L-4 (the "Fair Wage Act"), which the Regional Director of the Department of Labour again held to be those specified under the Fair Wage Minimum Rate Schedule to the B.C. Skills Development Act.
[4] To complete this portion of the background, the Respondents say the decisions to be reviewed are not only similar, but are one and the same. I would note, at this stage, perhaps only the Regional Director knows which is so.
[5] On 30 June 1997, the 1997 application was stayed by Mr. Justice Gibson "... pending the result on the appeal of the said order of Denault, J.", referring to a proceeding before the Federal Court of Appeal in docket A-288-97. This appeal arose because Mr. Justice Denault had dismissed the Applicants' motion for an extension of time in a proceeding which, in due course, became the 1998 application.
[6] The Court of Appeal, by reasons of 12 March 1998, extended the time within which the Appellants, who are now the Applicants in the 1998 action, might commence their application for judicial review, until 2 April 1998: the Applicants commenced their proceeding in a timely manner.
[7] Here I will note the advice of counsel for the Applicants that Mr. Justice Gibson had granted the stay on the basis that the then proposed 1998 action and the stayed 1997 action involved similar issues of fact and law.
[8] This brings me to pertinent background as to the filing of additional affidavit material. The Applicants' evidence and submissions are to the effect that, because of the stay, the affidavit material in both proceedings is not only out of date, but moreover additional relevant wage rate material is now available.
CONSIDERATION
The Stay
[9] The Respondents' submission, that the stay of Mr. Justice Gibson ought not to be removed, is based on an argument that the Regional Director of the Department of Labour made only one decision, on 3 February 1995, and that is demonstrated, at least by implication, from the Federal Court of Appeal's reasons on the time extension leading to the 1998 application. From this, it is said to follow, according to the Respondents, that there has been an abuse of process, the two applications being as to the same decision. As I conclude, in due course, none of this is really relevant. But let us pursue the Respondents' line of reasoning a little further.
[10] Now the Court of Appeal tied down the date of one decision, 6 December 1996. That is the decision which gave rise to the 1998 action. The Applicant, in the 1997 application, deals not with a general decision by someone, perhaps the Regional Director of the Department of Labour, but rather with a specific decision, communicated 22 May 1997, in connection with a Buoy Maintenance Building and while it is in similar terms to the 1996 decision, there is really nothing to indicate whether it is the same decision, or a separate decision. Moreover, Mr. Justice Gibson, in June of 1997, had an opportunity to strike out the 1997 action as a duplication and therefore an abuse, in the light of the then current proceeding which gave rise to the 1998 application, yet declined to do so at that time. Clearly he left the issue of duplication of proceedings open, depending upon the outcome of the appeal to the Court of Appeal to extend time, and thus allowed both proceedings to proceed in parallel, subject to any later motion the Respondents might bring to strike out one of the applications.
[11] The more direct answer to the Respondents' argument in opposition to the removal of the stay, that the two parallel actions are an abuse, is that the length of any stay depends upon the terms of the order for the stay. Here I declined to make any order as to the stay for, on the clear wording of Mr. Justice Gibson's order, the stay came to an end automatically when the Court of Appeal made its decision on the issue of the time extension. It may be that the Respondents will be able to convince the judge hearing these consolidated applications that there is only one decision. But that has nothing to do with the stay or its termination.
Further Affidavits
[12] I next deal with the issue of supplemental affidavits. By way of particular background, the Fair Wage Act and Regulations impose on all federal construction projects the relevant provincial wage. Each Regional Director in the Department of Labour, in the exercise of his authority under the legislation, is to ascertain from wage surveys and other pertinent material the applicable wage rates. However, in the present instance, the Applicants say that by merely adopting and imposing provincial government standards, which are set by a different standard and which do not reflect the real prevailing wage rates, rather than calculating the federal construction project wages by the criteria set out in the Regulations and under the Fair Wage Act, the Regional Director, among other things, acted without jurisdiction, beyond his jurisdiction and indeed refused to exercise his jurisdiction. Pertinent to this exercise of jurisdiction are the relevant wage rates in Victoria and in the rest of British Columbia.
[13] The Applicants say further affidavits ought to be filed because the affidavit material presently on file is outdated by reason of the delay pending the outcome of the time extension appeal to allow the commencement of the 1998 application. Furthermore, the Applicants say additional information has become available as to relevant wage rates in the Victoria area pertaining to the time the tender was made. This information, the Applicants submit, would be of assistance to the Court.
[14] The Respondents made submissions to the effect that some of the evidence which the applicants now wish to bring forward might have been put together months ago. While this may be so in theory it would seem, at least in part, that the wage material has only recently be collated and made available by government.
[15] Another approach by which to challenge the supplemental affidavit material, say the Respondents, is that the relevant evidence is that which existed before the Regional Director when he made his decision. Yet I think the better view is that where the challenge is on jurisdictional grounds, as is the case here, there is not the limitation that evidence must be limited to that which was before the decision-maker. Specifically, at issue are the prevailing wages in the district of greater Victoria. It is in the interest of justice that the Court be permitted to review full evidence respecting the prevailing wage rate in Victoria at the relevant time, for that is the best evidence available.
[16] Finally, the Respondents refer to Franz v. Canada (1994), 80 F.T.R. 79 for the proposition that the Federal Court Rules do not provide for the introduction of fresh evidence on judicial review.
[17] When this motion was argued the new Federal Court Rules had come into effect. Rule 312 allows the filing of additional affidavit material, with the leave of the Court. I canvassed this new Rule fairly thoroughly in Fogal v. The Queen, an unreported 6 January 1999 decision in action T-790-98. There I referred to several cases, including Eli Lily and Company v. Apotex Inc. (1998), 137 F.T.R. 226 at 228, being a decision decided under the old rules, which sets out that the main concerns, for additional affidavits, are whether the additional material would serve the interests of justice, would assist the Court and would not seriously prejudice the other side. I went on to note that supplemental affidavits should only be allowed in limited circumstances, for otherwise the procedure would not be in the spirit of judicial review proceedings, which are designed to dispense quick relief through a summary procedure. I also went on to note, in that particular instance, that the material, which was relevant, could not have been made available at an earlier date. In Fogal, as here, there are circumstances which make it appropriate and which justify the filing of supplemental affidavit material.
Consolidation
[18] Rule 105 provides that the Court may order two or more proceedings consolidated, for hearing together or one immediately after the other. The factor which permit consolidation are somewhat open-ended, however reasons for consolidation include common questions of law and fact, savings of time and expense which out weight any resulting inconvenience and the danger of that if not consolidated, different judges might arrive at inconsistent results. As example of the application of such factors see the unreported 14 June 1994 decision of Madame Justice Reed in Taiyo Gyogyo K.K. v. The "Tuo Hai", action T-1951-91, in which Madame Justice Reed sets out her reasons for consolidation in that particular instance:
| My reasons can be briefly stated. The two actions contain significant common questions of law and fact: the responsibility of the "Tenyo Maru" and the "Tuo Hai" respectively, and those having interests in these vessels, for the collision is at the foundation of both claims. In addition, the savings in time and expense, both for the Court and for the parties, in having the two actions heard together outweighs any inconvenience therefrom which might arise. If consolidation is not effected there is a potential for the same issue to be tried before different judges, in the context of the separate actions, with the attendant possibility of inconsistent findings as well as unnecessary expense. As I indicated orally, the comments of Mr. Justice Strayer in Oak Bay Marine Group v. Jackson (T-448-94, March 25, 1994) at page 6 are very apposite. |
The reference to the Oak Bay Marine case, now reported (1994) 75 F.T.R. 105 at 109, is as to the common sense of joining actions together where such might effect the least expenditure of resources of the parties and of the Court.
[19] In the present instance, the two applications for judicial review involve decision which are at least similar.
[20] The argument, in both instances, is that the Fair Wage Act and Regulations require any schedule of fair wages prepared by the Regional Director to set out wages that are generally accepted as current for competent workmen doing similar work in the district in question. In both instances the argument of the Applicants is that wage rates in Victoria and in British Columbia, as determined by the provincial government and used by the Regional Director of the Department of Labour as a basis for his calculations, are significantly higher than generally accepted wages paid to competent workmen, particularly for unskilled workers, in the case of the 1997 application in greater Victoria and the case of the 1998 application for districts in British Columbia outside of greater Vancouver. However, in both instances, the Applicants point out that the government of British Columbia, in designating wage rates, made a conscious and stated decision not to tie the rates to the wages which were in fact paid in the construction industry by private contractors. The argument concludes that the provincial wage schedule is inconsistent with the requirements of the Fair Wage Act and thus should be set aside.
[21] Quite properly the Applicants also point to the differences between the two applications. First, the 1997 application involves a specific project in Victoria while the 1998 application is apparently a decision to apply the provincial fair wage schedule to all federal projects within the province. As a result, in the one instance, evidence of wage rates in and about greater Victoria will be most relevant, while in the 1998 application the relevant wage rates will be those in various districts throughout British Columbia. Again, quite properly, the Applicants point out that they might have success in one application and not in the other.
[22] At the end of submissions on the consolidation motion I concluded that there were significant common questions of law and fact; that the savings of time and expense, in having one hearing outweigh any resulting inconvenience by reason of there being two separate sets of wage rates at issue; and finally that if the two proceedings are not consolidated the judges hearing them separately could conceivably arrive at inconsistent results. Thus I ordered the two applications consolidated for all purposes.
[23] I thank counsel for presenting thorough argument.
(Sgd.) "John A. Hargrave"
Prothonotary
Vancouver, British Columbia
March 8, 1999
FEDERAL COURT TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
HEARING DATED: June 4, 1998
COURT NO.: T-563-98
T-1259-97
STYLE OF CAUSE: KINETIC CONSTRUCTION LTD. et al.
v.
THE MINISTER OF LABOUR, et al.
PLACE OF HEARING: Vancouver, BC
REASONS FOR ORDER OF MR. JOHN A. HARGRAVE, PROTHONOTARY
dated March 8, 1999
APPEARANCES:
Mr. Robert W. Grant for Applicants
Ms. Darlene Patrick for Respondents
SOLICITORS OF RECORD:
Robert Grant
Heenan, Blaikie
Vancouver, BC for Applicants
Morris Rosenberg
Deputy Attorney General
of Canada for Respondents