



COURT
OF APPEAL FOR BRITISH COLUMBIA




Citation:



Davidson v. Tahtsa Timber Ltd.,









2010 BCCA 12




Date: 20100115

Docket:
CA035587

Between:

Thomas Clifford Davidson

Appellant

(
Plaintiff
)

And

Tahtsa Timber Ltd.

Respondent

(
Defendant
)






Before:



The Honourable Mr. Justice Low





(In Chambers)




On
appeal from: Supreme Court of British Columbia, November 22, 2007 (
Davidson
v. Tahtsa Timber Ltd.
, 2007 BCSC 1684, 13954)




Counsel for the Appellant, :



I.B.
  Lawson
, via teleconference





Counsel for the Respondent:



W.W.
  Chapman
,
via teleconference





Place and Date of Hearing:



Vancouver,
  British Columbia





October 9, 2009





Place and Date of Judgment:



Vancouver
, British Columbia





January
  15, 2010






Reasons for
Judgment of the Honourable Mr. Justice Low:

[1]

The appellant brings separate motions for leave
to file his factum out of time and for removal of his appeal from the inactive
list.

[2]

The respondent opposes both motions, primarily
on the basis that the appeal lacks merit.

[3]

The action against the respondent was for
wrongful dismissal of the appellant from his job as a truck driver.  He had
worked for the respondent in that capacity for twelve years.  The trial judge,
Mr. Justice Rice, found that the dismissal was not justified but that the
appellant had fully mitigated his damages by obtaining alternate employment
during the notice period of ten months.  Therefore, he dismissed the action. 
The appellant contends that the judge erred in finding that damages had been
fully mitigated.

[4]

There is also an issue as to whether there should
have been a Bullock order made against the respondent for that party to pay
the costs of John Brienen, another defendant against whom the action was
dismissed.  Mr. Brienen is a principal of Nadina Truck Service Ltd., a company
that owns a repair shop into a wall of which the appellant drove the
respondents truck.  That incident and the appellants denial of it are what
led to the appellants dismissal from his employment.

[5]

The appellant claimed damages from Mr. Brienen
for interference with his contract of employment and for slander.  He claimed
that what Mr. Brienen said about the appellant induced the respondent to fire
him.  The trial judge found that the actual words complained of were not said
by Mr. Brienen and that, even if they had been said, they were truthful and
therefore justified.  The appellant does not appeal the dismissal of the action
against Mr. Brienen.  Therefore, Mr. Brienen is not a respondent in the appeal.

[6]

The trial judgment was given on 22 November
2007.  The notice of appeal was filed on 4 December.  The respondent filed its
appearance on 25 January 2008.  The appeal record, transcript and appeal books
were filed more than a year later.  They had been in the possession of counsel
for the respondent from June 2008 to January 2009 as counsel considered the
content of the transcript and appeal books necessary for a proper hearing of
the appeal.  On 18 February 2009 there was a consent order extending the time
for these three filings and the appellant complied with the order.  However, by
this time the appeal was on the inactive list so the respondent consented to an
order that the appeal be removed from that list.  This order provided that the
time limit for taking the next step required by the
Court of Appeal Act
or
Court of Appeal Rules
must commence to run as of the date of this
order.  That meant that the appellant had to file and deliver his factum by 18
April 2009.

[7]

The appellant did not comply.  His counsel
advised counsel for the respondents on 15 June 2009 that the factum was
complete.  On 13 July, the registry refused to file the factum because an order
was needed extending the time for filing.  It was then almost three months
late.  The respondent would not consent to late filing.  As of 2 September the
respondents counsel had not received even an unfiled copy of the appellants
factum.

[8]

On 18 September 2009 the appellant filed the
motion to extend the time for filing his factum.  An affidavit of the appellant
in support of the motion exhibits the draft factum.

[9]

Because the appellant had not filed a
certificate of readiness within 180 days of the date of the consent order
removing the appeal from the inactive list, the appeal again went on the
inactive list on 18 August 2009 pursuant to s. 25(4)(b) of the
Court of Appeal
Act
.  When counsel made oral submissions before me in chambers, the
appellant had not brought a motion for a second removal of the appeal from the
inactive list.  When I learned this on a later review of the court file, I
advised counsel through the registry that I could not determine the motion
before me while the appeal remained on the inactive list.  The appellant has
now brought a motion for removal of the appeal from the list and I have
received written submissions on that motion.

[10]

The test for extension of time for the taking of
a step in an appeal is set out in
Sekhon v. Armstrong
, 2003 BCCA 318,
183 B.C.A.C. 137:

[17]      The
tests
that are applied
when an application is made to extend the time for taking a step necessary in
the prosecution of an appeal are set out in
Davies v. Canadian Imperial Bank
of Commerce
(1987), 15 B.C.L.R. (2d) 256 (C.A.).  The following questions,
with the necessary modifications, will generally be considered: (1) Was there a
bona fide intention to appeal? (2) When were the respondents informed of the
intention? (3) Would the respondents be unduly prejudiced by an extension? (4)
Is there merit in the appeal? (5) Is it in the interests of justice that an
extension be granted?  The fifth question is the most important as it
encompasses the other four questions and states the decisive question.  As to
the fifth rule, Lambert J.A., in
Haldorson v. Coquitlam (City)
,
supra
,
observed at para. 9:

[9]    The fifth rule, of course, in
Davies
v. Canadian Imperial Bank of Commerce
(1987), 15 B.C.L.R. (2d) 256
(B.C.C.A.) is that in deciding whether to extend time to someone who files a
notice of appeal late, the overriding rule, called the fifth rule, is that
there must be a balancing of the interests of justice as they affect both
parties and in reaching a decision the interests of justice will prevail.  The
first four rules cannot be used to defeat the interests of justice but are
themselves guides to the application of the interests of justice.

[11]

The test on an application for removal of an
appeal from the inactive list is found in
Kar Recovery Ltd. v. K.D.A
,
2004 BCCA 503, 204 B.C.A.C. 181:

[23]      There is no rigid test to apply in
determining whether an inactive appeal ought to be reactivated.  The overriding
issue is whether it is in the interests of justice to grant the application.

[24]      Factors which have been considered
by this Court include the following:

●          the extent of the delay,

●          the explanation for the delay,

●          the existence of any prejudice arising from the delay,

●          the likelihood of success on appeal.

(
Deline v. Kidd
, 2003 BCCA 170 at
para. 11.)


[12]

The delay in readying this appeal for hearing
has been extensive.  Counsel for the respondent took a long time to assist in
settling the appeal book and transcript.  Counsel for the appellant delayed
filing the appellants factum until it was out of time.  Both counsel have
failed to consider the time limits set out in the rules.  No reasons are
offered for the various delays.  It happens that the latest delay caused by
counsel for the appellant has created the double problem of leave becoming
necessary for filing of the appellants factum and the appeal having again been
put on the inactive list.  The respondent has not argued that it has been
prejudiced by the latest delay.  This is one of those cases in which consequences
of the failure of counsel to comply with the time limits should not be visited
upon the litigant.

[13]

It remains to consider the strength of the
appeal and the overriding interests of justice.

[14]

Mr. Brienen has taxed his costs against the
appellant at $42,653.75.  The appellant wishes to visit these costs upon the
respondent.

[15]

Mr. Brienen was not an employee of the
respondent.  The claim against him was independent of the claim against the
respondent.  The appellant failed to prove that Mr. Brienen did any of the
things the appellant claimed that he had done to interfere with the appellants
employment contract with the respondent.  The appellant has presented no
argument that the respondent could have properly been ordered to pay Mr.
Brienens costs even if the appellant had been able to prove damages against
his former employer for wrongful dismissal.

[16]

The appellant did not seek a Bullock order at
trial.  He wishes to raise that issue for the first time in this court.  It is
very unlikely that the appellant would be able to persuade a division of this
court that the trial judge should have made the costs order he now seeks.  It
seems unarguable that Mr. Brienen was a necessary defendant to enable the
appellant to make out his case of wrongful dismissal against the respondent. 
If this were the only ground of appeal, I would find that the appeal is without
merit.

[17]

On the question of damages for wrongful
dismissal, the appellant says that the trial judge erred in determining his
notice-period income on the basis of his income during the two years prior to
the dismissal.  Alternatively, the appellant says that there should have been
an order for nominal damages plus costs.

[18]

The respondent fired the appellant on 11 July
2005.  There is no dispute that the appropriate notice period was ten months. 
The period to be considered, therefore, was from that date to 11 May 2006.  The
trial judge determined that during this period the appellant earned at least as
much as he would have earned had he continued in his employment with the
respondent.  The judge said this:

[16]
As for
damages, there was little disagreement with the plaintiffs submission that ten
months was an appropriate notice period subject to the plaintiffs duty to
mitigate his loss.  It was not disputed that despite the brief interlude as a
contractor, the plaintiffs position ought to be judged overall as if he were a
twelve year employee.  The evidence indicates that work was available to the
plaintiff as a logging truck driver with other companies immediately after his
dismissal.  The plaintiff proved this by quickly finding a new job as a driver.
 The evidence did not indicate that his scale of pay fell at all with the
change, and from the materials submitted it seems that he earned more than he
did working for Tahtsa.  As a result, I was unable to find that there was any actual
loss.

[17]      In 2004, the plaintiffs reported
total income was $49,151.24.  For 2005, he reported $25,365.69 as employment
income from trucking, and $21,747.30 as farm income.  The sum of those two
is $47,112.99.  His reported income for 2006 was close to $57,000.00.

[18]      A review of the plaintiffs
documentation by Tahtsas counsel showed that his actual income for 2005 was
$55,616.94, not $47,112.99 as per his 2005 return.  The discrepancy was not
explained.  The plaintiffs calculation of his 2005 income was much higher, at
least for the first half of 2005.  However, there were errors in the
plaintiffs calculations, and I preferred the submission of Tahtsas counsel on
the point.

[19]      According to both Mr. Posselt and
the plaintiff, logging truck operators could expect eight months work in a
year, possibly more but possibly less depending on weather conditions.  A
driver of a low-bed tractortrailer such as the one driven by the plaintiff to
transport equipment could expect one month more work, but not a greater annual
income Logging operations shut down in August usually, and also during winter
freezing and spring break-up, but exact times arent predictable.  As a result,
argued Tahtsas counsel, it was likely more reliable to base projected income
for the plaintiff on an average of his income for the previous twelve months or
more.

[20]      Mr.
Posselt
explained in some detail other variables that make a truck drivers
income unpredictable.  One of those variables is market conditions.  The
logging truck operators, taking their pay as a percentage of the price of the
logs sold, must expect their income to fluctuate.  Low-bed drivers, normally
paid by the hour, are theoretically immune to those fluctuations, but their
pay, as Mr. Posselt testified, does not tend to exceed what the logging truck
drivers earn.

[21]      Accordingly,
taking into account these uncertainties, and relying to a great extent on the
plaintiffs total income for 2005 and 2006, overall it appears that the
plaintiffs expected income for the ten months after his dismissal should have
amounted on average of his past two years earnings per month multiplied by
ten.  His actual income was at least that much and was probably more.  I am
unable to determine with certainty, therefore, that the plaintiff suffered any
actual loss.  Accordingly the claim for wrongful dismissal is dismissed
with costs to Tahtsa at scale B subject to submissions.


[19]

The appellants argument is that the trial judge
erred in failing to take into account that the appellant, pre-dismissal, worked
for the respondent as both a logging truck driver and as a low-bed driver.  It
is said that the evidence supported the conclusion that per year this would
have given him two more months employment than when he had been driving only a
logging truck.  Although his counsel does not put it this way, the error the
appellant alleges is that the judge misapprehended the evidence in comparing
earnings to determine the amount of the loss.  The appellant says that if the
judge had fully considered the evidence he would have found a loss of about
$11,000 during the ten-month notice period.

[20]

This does not appear to be a strong ground of
appeal but I am unable to say that it is devoid of merit and is bound to fail.

[21]

Having regard to the casual manner employed by
both sides in perfecting this appeal, the existence of an arguable ground of
appeal and the absence of prejudice to the respondent, it is in the interests
of justice to permit the appeal to proceed to a resolution on the merits.

[22]

There will be an order removing the appeal from
the inactive list, on terms.  The appellant will file and serve his factum
within 14 days of this decision being pronounced.  The appeal will then be
ready for hearing in accordance with R. 28(1) and the appellant thereafter will
comply with R. 28(3), R. 28(5) and R. 28(7).

[23]

The costs of each motion before me will be to
the respondent in the appeal.

The Honourable Mr. Justice Low


