COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:
 Telus Communications Inc. v. Telecommuncations Workers Union,
 
 
 2007 BCCA 196
 

Date: （略）

Docket: CA033967

Between:

Telus Communications Inc.,

Tele-Mobile Company and TM Mobile Inc.

Respondents

(Plaintiffs)

And

Telecommunications Workers Union, Its Officers, Members Servants, Agents and Representatives, and John Doe, Jane Doe and Other Persons Unknown

to the Plaintiffs acting as Plaintiffs and/or attending at or near the premises of the Plaintiffs as set out in Schedule “A” and “B” hereto or at the Premises of Customers of the Plaintiffs

Appellants

(Defendants)

Before:
 The Honourable Mr. Justice Low
 
(In Chambers)
 

Oral Reasons for Judgment

D. Bobert
 Counsel for the Appellants
 
D.L. Richards
 Counsel for the Respondents
 
Place and Date of Hearing:
 Vancouver, British Columbia
 
 
 12 March 2007
 
Place and Date of Judgment:
 Vancouver, British Columbia
 
14 March 2007
 

[1]                LOW, J.A.: Mr. Justice Burnyeat found eleven people guilty of contempt of court for disobeying an injunctive order granted to Telus during a labour dispute.  They all appealed that finding.  Subsequently, the judge made an order that includes provisions that nine of the contemnors individually pay special costs of the contempt proceedings and that the other two, Capewell and Maceluch, pay costs on scale 3.  The order also provides that no person other than the contemnors may pay, fund or in any way contribute to the costs so ordered.  This order has been appealed by all eleven contemnors in a separate appeal. 

[2]                As of 10 August 2006 all but three of the eleven appellants have abandoned their appeals of the findings of contempt against them, the three exceptions being Messrs. Bridgeman, Semenec and Waite.  The eight appellants brought a motion for directions as to whether they need leave to appeal but concede that because they are now appealing with respect to costs only they need leave to appeal under s. 7(2) of the Court of Appeal Act.  Therefore, they have also brought a motion for an order converting their original notice of appeal nunc pro tunc to a notice of application for leave to appeal or, alternatively, for an order extending the time for the granting of leave.  They also seek leave to appeal.  It is conceded by Telus that Messrs. Bridgeman, Semenec and Waite are entitled to continue with their costs appeal as of right.

[3]                Although, as I have said, it is conceded by the eight appellants that they now need leave to appeal the costs provisions in the order because of abandonment of the substantive appeals, I do not want to be taken as necessarily agreeing with that proposition.  The concession is based on the chambers decision in Chouinard v. Insurance Corp. of British Columbia [2000] B.C.J. No. 1251.  The reasons in that case are very brief and the chambers judge simply purports to follow the decision of Rowles J. A. in Laurin v. Ford Credit Canada Limited, [1992] B.C.J. No. 2988 for the proposition that “leave is now required because of the abandonment of the substantive issues”.  However, my reading of the Laurin case is that it deals only with the principles to be applied where leave is sought to appeal a costs order only.  There is no discussion in the case of abandonment of substantive issues.  I am unable to find any other case on the point and I think that the point must be seen to be not yet settled in this court.  However, I am not asking counsel for further submissions because, on the assumption that leave is required, I am disposed to grant it. 

[4]                The court now has before it separate but related appeals to be heard at different times.  The three appellants still appealing the contempt order will have their substantive appeals heard next week.  The appeals of the costs orders will be heard on a date to be fixed, no doubt by a different panel.  I have indicated to counsel that it would have been much better procedurally for one order to have been entered following determination of the costs issue with one appeal to permit all issues to be resolved by one panel. 

[5]                The questions I must resolve are how to sort out the procedural irregularity that has arisen out of the abandonment by eight of the appellants of their substantive appeals and whether they should be given leave to continue their appeals of the awards of costs made against them.   

[6]                Telus contends that the eight appellants need an extension of time to apply for leave because they waited six months from the date they abandoned their substantive appeals before seeking leave to appeal the order respecting costs only.  I do not agree with this argument.  I do not consider that abandonment of the substantive issues renders the appeal of the eight appellants to be nullities absent the granting of leave to appeal.  They filed their notices of appeal in time and when they did so, because they were then also advancing a substantive appeal, they were entitled to appeal the costs awarded against them as of right.  There is no basis I can find under the Court of Appeal Act or the Court of Appeal Rules for concluding that the abandonment revived the 30-day period for bringing an application for leave to appeal under s. 14(1) of the Act.  The abandonment at worst brought about a need to regularize the appeal.  No procedure is enacted for that.  Although it must be said that the appellants could have moved more quickly than they did, in the absence of a rule requirement I cannot conclude that they need an extension of time.  

[7]                I turn then to the issue of whether leave to continue their appeals on costs alone should be granted to the eight appellants.  Because I have concluded that leave ought to be granted, I will say little about the issue. 

[8]                Telus presents a strong argument that there is no merit in the attack on the awarding of special costs because such awards usually follow findings of contempt in civil proceedings and leave to appeal therefrom is regularly refused.  In this case, however, there is a twist.  The chambers judge included the following provision in the order: “the parties and all others, save and except [the appellants], are hereby enjoined and restrained from paying or in any way funding or contributing to the funding, either directly or indirectly, of …, the Special Costs awarded or the Party and Party (Scale 3) costs awarded herein”.  In their factum, all eleven appellants raise the validity of this provision in the order as a separate ground of appeal.  I have not been made aware of any other case in which such a provision has been included in a costs order in the labour relations field or otherwise.  It appears to be an issue not previously argued in this court.  In my opinion, it is an important issue of general concern and it cannot be said that it lacks merit.

[9]                I could limit the eight appellants to arguing the payment restriction issue alone.  But I have decided to give them leave to also argue against the awarding of costs against them.  In this respect, I am concerned about the perception of justice.  If the three appellants still entitled to argue the costs issue as of right were successful on that issue, the other eight appellants, although still before the court on the payment restriction issue, would be justifiably aggrieved that they could not also benefit from that result. 

[10]            The eight appellants are granted leave to continue with the appeal of both the orders of costs made against them and the provision as to restriction of payment of costs.

“The Honourable Mr. Justice Low”