Court of Appeal

Marren v. Echo Bay Mines Ltd., 2000 NWTCA 7

              Date: 2000 12 09
Docket:

IN THE COURT OF APPEAL FOR THE NORTHWEST TERRITORIES
YELLOWKNIFE CIVIL SITTINGS
HEARD JUNE 21, 2000
______________________________________

      COUNSEL  TRIAL JUDGE COURT

MARK MARREN  Austin F. Marshall      Vancise J.  Richard J.A.
    Appellant          Hunt J.A.
          Schuler J.A.

-and-

ECHO BAY MINES LTD. Thomas W. Wakeling
    Respondent

APPEAL #CA 00720
______________________________________________________________________________

REASONS FOR JUDGMENT RESERVED
______________________________________________________________________________

RICHARD JA:

[1] At issue here is whether this Court has jurisdiction to consider the appeal filed by the Appellant.

[2] The Appellant is an employee at a northern mine site and invoked the provisions of the Labour Standards Act R.S.N.W.T. 1988, c. L-1.  Pursuant to that legislative regime he sought payment of overtime wages he claimed were owed to him by the employer for a specific three week period.  He received an unfavourable decision from the Labour Standards Officer and appealed to the Labour Standards Board.  The Board allowed his appeal under s.53 of the Act and directed the Respondent employer to pay certain overtime wages.

[3] The Respondent filed an appeal of the Board s decision in the N.W.T. Supreme Court pursuant to a statutory right of appeal in s.53(4) of the Act, alleging that the Board had made an error in law.  Section 53 reads:

53.(1) Where the Labour Standards Officer

(a) receives information that indicates that an employer has failed to pay to an employee all wages earned, and

(b) is satisfied that the employee is not proceeding with any other action for the recovery of the unpaid wages,
the Labour Standards Officer may, at any time.

(c) make a certificate in which shall be set out the wages owing, and

(d) send a copy of the certificate to the employer by registered mail, giving the employer 30 days after the date of the mailing of the certificate within which to present evidence and make representation.

    (2) The Board, after the investigation that it considers adequate, including the holding of hearings that it considers advisable, and consideration of representation, if any, from the persons concerned, may

(a) confirm the wages owing as set out in the certificate; or

(b) cancel the certificate and

(i)  make another certificate, in which shall be set out the wages owing, or

(ii) take no further action.

 (3) The Board may, at any time, cause the certificate confirmed or made under subsection (2) to be filed with the Clerk of the Supreme Court and upon that the certificate shall be enforceable as a judgment or order of the Supreme Court in favour of the Board for the recovery of a debt in the amount of wages owing as set out in the certificate.

(4) An appeal lies to a judge of the Supreme Court from the Board on any point of law raised before the Board under this section and the appeal must be lodged within 30 days after the date of the decision appealed from.

(5) The decision of a judge of the Supreme Court on appeal is final. (emphasis added)

[4] In addition to its s.53(4) appeal, the Respondent also filed an application for judicial review of the Board s decision seeking an order in the nature of certiorari quashing the Board s decision.  The judicial review application was taken in the alternative, i.e., in the event the Supreme Court concluded there was no statutory right of appeal under s.53(4) of the Act.

[5] The Supreme Court judge held that he had jurisdiction to hear the employer s appeal on a point of law under s.53(4) of the Act.  The judge then decided the point of law in the employer s favour, set aside the Board s decision, and restored the Labour Standards Officer s decision.  He found it unnecessary to consider the application for judicial review.

[6] The legislature has provided that the decision of the Supreme Court judge in a s.53(4) appeal is final.  In our view, this clear provision precludes this Court from considering a further appeal.

[7] This Court is created by statute and has only the power, authority or jurisdiction vested by the legislature.  The Supreme Court of Canada has confirmed that appellate courts have no inherent jurisdiction.  See Kourtessis v. M.N.R., [1993] 2 S.C.R. 53, R. v. Thomas, [1998] 3 S.R.C. 535, and R. v. G.W., [1999] 3 S.C.R. 597.

[8] The present Judicature Act RSNWT 1988 ch.. J-1 states the powers and jurisdiction of the Court:

15.(1) An appellate court for the Territories called the Court of Appeal for the Northwest Territories is established.

15.(2) The Court of Appeal is a superior court of record and has all the powers and jurisdiction in relation to matters arising in the Territories possessed by the Court of Appeal for the Territories as it existed immediately before March 15, 1971.

[9] Prior to March 15, 1971 the Parliament of Canada had the legislative authority to create superior courts in these Territories.  On that date, that legislative authority devolved to the Legislative Assembly of the Northwest Territories.  See R.S.C. 1970 (1st supp) ch.48, ss 22-23.

[10] Prior to March 15, 1971 the powers and jurisdiction possessed by the Court of Appeal were set forth in the Northwest Territories Act R.S.C. 1970, ch. N-22:

33.(1) There shall be a Court of Appeal for the Territories called the Court of Appeal, which is a superior court of record and has all the powers and jurisdiction in relation to matters arising in the Territories possessed by the Appellate Division of the Supreme Court of Alberta in relation to matters arising in Alberta immediately prior to the 1st day of January 1960 and without restricting the generality of the foregoing, the Court of Appeal has jurisdiction and power to hear and determine

(a) all appeals or motions in the nature of appeals respecting judgments, orders or decisions of the Territorial Court [ now called Supreme Court] or a judge thereof; and

(b) all other petitions, motions, matters or things whatever that might lawfully be brought in England before a Divisional Court of the High Court of Justice or before the Court of Appeal.

[11] In our opinion, this general authority to hear an appeal from a decision of a Supreme Court judge (granted to this Court by statute, i.e., s.15 of the present Judicature Act and s.33 of the former Northwest Territories Act) must give way to a specific statutory provision.  Nelson v. Pollution Control Board (1981) 32 B.C.L.R. 12 (B.C.C.A.); Yorkville North Development v. City of North York (1988) 29 O.A.C. 110 (Ont. C.A.).

[12] Section 19(2) of the Interpretation Act RSNWT 1988, ch. I-8 provides:

19(2) ..., where under an enactment an appeal is given from any person, board, commission or other body to a court or judge, an appeal lies from the decision of the court or judge as in the case of any other action, matter or proceeding in that court or in the court of which the judge is a member unless a contrary intention is expressly stated in the enactment (emphasis added)

Here,  a contrary intention is expressly stated  in the Labour Standards Act.

[13] And this Court s own Rules, enacted pursuant to s.20 of the Judicature Act,
state:
Rule 5.(1) Except as otherwise provided, an appeal lies to the Court from the whole or any part of any judgment, order, direction or finding of a judge sitting in court or the verdict or finding of a jury or from the judgment, order or direction of a judge sitting in chambers. (emphasis added)

Here, it is  otherwise provided  in s.53(5) of the Labour Standards Act.

[14] The words of s.53(5) are plain and clear: the decision of a Supreme Court judge under s.53(4) is final.  As asked rhetorically by Lord Diplock in an analogous case, Re Racal Communications Ltd. [1981] A.C. 374 (H.L.) at p.379,  what could be plainer than that?

[15] A reading of the Labour Standards Act suggests that, having provided for a two-step appeal process regarding any issue of wages owing in accordance with the law (the second step being to a Supreme Court judge) , the legislature did not intend that another appellate court be burdened with the minutiae of statutory wages owing or not owing.

[16] The Appellant took the position before the Supreme Court judge, and before us, that the employer did not have a statutory right of appeal under s.53(4) of the Act and that therefore the Supreme Court judge did not have jurisdiction under s.53.  As stated earlier in these Reasons, the Supreme Court judge considered these submissions and held that he did have jurisdiction under s.53(4) of the Act.  In our view, the finality provision applies to the Supreme Court judge s decision regarding his jurisdiction as well as to the substantive point of law in issue.  There is no right of appeal to this Court from either decision.

[17] For these reasons this Court has no jurisdiction over the appeal.  The appeal is dismissed with costs.

____________________
Richard J.A.

       I Concur____________________
Hunt J.A.

I Concur____________________
Schuler J.A.
Dated at Yellowknife, NT,
this 12th day of September 2000

CA 00720


IN THE COURT OF APPEAL FOR
THE NORTHWEST TERRITORIES



BETWEEN:

MARK MARREN

Appellant

- and -



ECHO BAY MINES LTD.

Respondent



REASONS FOR JUDGMENT RESERVED