



COURT OF APPEAL
        FOR BRITISH COLUMBIA




Citation:



Weyerhaeuser
                Co. Ltd. v. IWA-Canada, Local 2171,









2004 BCCA
            6




Date: 20040108





Docket: CA030105

Between:

Weyerhaeuser
      Company Limited

Canadian
      White Pine and K3 Divisions

Appellant

(
Employer
)

And

I.W.A.-Canada,
      Local 2171

Respondent

(
Union
)












Before:



The Honourable
            Mr. Justice Hall





The Honourable
            Mr. Justice Thackray





The Honourable
            Mr. Justice Hollinrake









G. Hume, Q.C. and
T.A. Sigurdson



Counsel for the Appellant





M. Gropper, Q.C. and
N.J. Hain



Counsel for the Respondent





Place and
            Date of Hearing:



Vancouver, British Columbia





23 October 2003





Place and
            Date of Judgment:



Vancouver, British Columbia





8 January 2004









Written
              Reasons by
:





The Honourable
            Mr. Justice Hall





Concurred
              in by:





The Honourable
            Mr. Justice Thackray

The Honourable
            Mr. Justice Hollinrake





Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This
        is an appeal by Weyerhaeuser Company Limited ("Weyerhaeuser")
        from a decision of an arbitrator pronounced 21 August 2002 in an arbitration
        between Weyerhaeuser and I.W.A.-Canada, Local 2171 (the "Union").  The
        Union was the bargaining agent for employees of Weyerhaeuser at two manufacturing
        plants, Canadian White Pine Manufacturing Unit ("CWP") and K3
         Specialty Board Unit ("K3").  The Specialty Board Unit, one
        of three divisions in the operation, manufactured particle board.  About
        370 Union members worked at CWP in 2000 and 2001 and just under 100 Union
      members were employed at the K3 particle board facility.

[2]

It
        was a difficult time in the lumber industry in 2001.  The industry was
        negatively affected by fibre supply problems and the ongoing softwood lumber
        dispute between Canadian and American producers.  As this year progressed,
        large numbers of employees were being placed on layoff.  The numbers
        laid off were proportionately higher at the larger operation, CWP, than
        at the
      K3 operation.

[3]

Eventually,
        by the fall of 2001, Weyerhaeuser decided that the decline in business
        affecting the above-noted manufacturing units made it no longer economically
        feasible to continue the operations.  Weyerhaeuser decided to terminate
        operations at the two plants.  Weyerhaeuser communicated this decision
        to the employees, the Union representing the employees and the responsible
        Minister of the government on 14 November 2001.  The notice given relative
        to CWP advised of the plant closure effective in early March 2002 and
        the notice given relative to the K3 particle board operation advised
        of the
      plant closure effective 14 January 2002.

[4]

The
        notices were apparently designed to comply with notification provisions
        set out in the applicable legislation, the
Employment Standards Act
,
        R.S.B.C. 1996, c. 113 (the "
Act
").  For an operation
        with the number of employees employed at CWP, sixteen weeks' notice was
        mandated and for an operation of the size of the K3 particle board operation,
        eight weeks' notice was mandated.  The relevant statutory provisions
      of the
Act
in force in November 2001 read as follows:

64
(1)   If
        the employment of 50 or more employees at a single location is to be
      terminated within any 2 month period, the employer must give written notice
      of group
      termination to all of the following:

(a)   each employee
      who will be affected;

(b)   a trade union
        certified to represent, or recognized by the employer as the bargaining
      agent of, any affected employees;

(c)   the minister.

(2)   The notice of group termination must specify all of the following:

(a)   the number of employees who will be affected;

(b)   the effective
      date or dates of the termination;

(c)   the reasons
      for the termination.

(3)   The notice of
      group termination must be given as follows:

(a)   at least 8 weeks before the effective date of the first termination,
      if 50 to 100 employees will be affected;

(b)   at least 12 weeks before the effective date of the first termination,
      if 101 to 300 employees will be affected;

(c)   at least 16
        weeks before the effective date of the first termination, if 301 or more
      employees will be affected.

(4)   If an employee
        is not given notice as required by this section, the employer must give
        the employee termination pay instead of the required notice or a combination
      of notice and termination pay.

(5)   If an employee
        is not covered by a collective agreement, the notice and termination
      pay requirements of this section are in addition to the employer's liability
      to the employee under section 63.

(6)   This section applies whether the employment is terminated by the
      employer or by operation of law.

. . .

67
(1)   A notice given to an employee under
      this Part has no effect if

(a)   the notice period coincides with a period during which the employee
        is on annual vacation, leave, strike or lockout or is unavailable for
      work due to a strike or lockout or medical reasons, or

(b)   the employment
      continues after the notice period ends.

(2)   Once notice
        is given to an employee under this Part, the employee's wage rate, or
      any other condition of employment, must not be altered without the written
      consent of

(a)   the employee, or

(b)   a trade union
      representing the employee.

[5]

In
        May 2002, the legislature passed the
Employment Standards Act
,
2002
,
        S.B.C. 2002, c. 42 (the "May 2002
Act
").  Sections
        64 and 67 of the
Act
were amended by ss. 31 and 33 of the
        May 2002
Act
, respectively.  Relevant to this appeal, s.
        33 of the May 2002
Act
added the words "temporary layoff" to
      s. 67(1)(a) of the
Act
.

[6]

Many
        of the CWP and K3 employees to whom the notices were given in November
        2001 had been on temporary layoff for considerable periods in the year
        2001.  The arbitrator noted in his award, at p. 18, the following provision
        of the applicable collective agreement relating to compensation for employees
      terminated because of the closure of the plant:

The
        Agreed Statement of Facts (at paragraph 22) contains a reference as well
        to Article XXXIII of the collective agreement.  In part, Article XXXIII
      states that:

Employees terminated
        by the employer because of permanent closure of a manufacturing plant...
        shall be entitled to severance pay equal to seven (7) days' pay for each
        year of continuous service and thereafter in increments of completed months
      of service with the Company.

[7]

Weyerhaeuser
        appeals to this Court because of the following conclusion of the learned
      arbitrator:

...[W]hile making
        their various references to the collective agreement, both parties acknowledged,
        as they must, that the benefit here in issue is a statutory benefit which,
        in the final analysis, is payable or not according to a proper interpretation
      and application of the words and phrases as used in the statute itself.

I
        go back, then, to the statutory definitions.  The phrase "termination
        of employment" is defined as "...includ(ing) a layoff other than
        a temporary layoff".  Two points arise from that definition.  The
        first is that the word "includes", in context of the definition
        as a whole, clearly signals a legislative intention that a long-term layoff
        can amount to a "termination of employment"
in addition
        to an event or circumstance ordinarily coming within the phrase "termination
        of employment"
.  The second is that a situation properly characterized
        as a layoff is not included in the statutory meaning of "termination
      of employment" if the layoff is a "temporary layoff".

Going
        now to the definition of "temporary layoff", one finds in both
        subsections (a) and (b) that a "temporary layoff" is a "layoff" not
        exceeding a certain duration.  Thus, a "temporary layoff" must
      in the first place be a "layoff".

The
        word "layoff" is nowhere defined in the statute.  On its face,
        the definition of "termination of employment" is to enlarge the
        meaning of the phrase beyond the meaning that might otherwise be given
        it, but not excluding the ordinary meaning.  Accordingly, the word "layoff" should
        be given ordinary meaning; the phrase "termination of employment" should
        also be given ordinary meaning in addition to its enlarged meaning; and
        in my view, an event unequivocally comprising a "termination of employment" in
        ordinary parlance was not also intended to comprise a "layoff" for
        statutory purposes  particularly where such characterization would defeat
        the public policy reflected in a provision of the
Act
(in this case,
      Section 64).

Here,
        what occurred on November 14, 2001, to all intents and purposes, was
      the more-or-less instantaneous termination of employment of large numbers
      of
        employees.  On that date, the employer told the affected CWP and K3 employees
        that their working lives at those manufacturing plants were at an end;
        and for most of them that was quite quickly the fact.  Referring to Section
        64(3) of the
Act
, there was essentially no notice prior to the effective
      date of the first termination at either plant.

It
        is true that the affected employees had recall rights under the collective
        agreement.  But for the vast majority, those contractual rights were deprived
        of any potential application by the employer's closure decisions and notices
        in November, 2001.  No doubt, the workers would have regarded themselves
        as having been terminated by such decisions and notices.  Equally without
        doubt, that characterization would have been shared by the workers' families
        and by the community generally.  On the facts of the case, were I to
        describe the situation as a layoff for purposes of the
Act
, it would be an
        illusion effectively defeating the substantive content of Section 64; and
      I decline to do so.

I
        find and declare that at both CWP and K3, the employer did not give notice
        as required by Section 64 of the
Act
, thus giving rise to obligations
      of termination pay pursuant to Section 64(4)....

[Emphasis in original.]

[8]

As
        can be seen from a perusal of the statutory provisions of the
Act
and
        the May 2002
Act
, if the notices had been given after the
        amendment was in force, they would not have been effective because, in
        addition to proscribing the giving of effective notice at a time when
        an employee is on annual vacation, on medical or other leave or on strike
        or locked out, the amending legislation provided that notice of termination
        could not be effectively given at a time when an employee was on temporary
        layoff.  But the terminology "temporary layoff" was not contained
        in s. 67(1)(a) of the
Act
when the notices were given in
      November 2001.

[9]

Weyerhaeuser
        submits that the arbitrator erred in law in his determination that the
        notices were ineffective; it seeks an order reversing the decision of the
        arbitrator and asks this Court to hold that the notices were effective
      and in compliance with the then provisions of the
Act
.

[10]

The
        Union submits that the arbitrator did not err.  It further submits that
        in any event deference should be shown to the conclusion of this experienced
        arbitrator, that the decision is reasonable or in any event not patently
      unreasonable.  The Union seeks an order that the appeal be dismissed.

Discussion

[11]

A
        threshold issue dividing the parties is the applicable standard of review.  As
        a preliminary argument, the Union submits that the Court does not have
        jurisdiction to entertain this appeal because the basis of the arbitrator's
        award is not an issue of general law.  Under s. 100 of the
Labour
        Relations Code
, R.S.B.C. 1996, c. 244 (the "
Code
"),
        only matters of general law may be appealed from an arbitration board to
        the Court of Appeal.  Otherwise, appellate jurisdiction resides in the
        Labour Relations Board under the provisions of s. 99 of the
Code
:
        see
United Steelworkers of America, Local 7884 v. Fording Coal Ltd.
(1999),
        70 B.C.L.R. (3d) 74, 179 D.L.R. (4th) 284, 1999 BCCA 534 [
Fording
],
Health
        Employers' Association of British Columbia v. British Columbia Nurses'
        Union
, 2003 BCCA 608 [
B.C.N.U.
] and
Canpar
        v. International Union of Operating Engineers
, 2003 BCCA 609 [
Canpar
].  This
        submission was perhaps pressed less strongly than the above-noted submissions
      concerning deference and standard of review.

[12]

Weyerhaeuser
        submits that the applicable standard of review is that of correctness.  It
        argues that central to the decision of the arbitrator was the issue of
        the proper construction of the relevant sections of the
Act
.  Counsel
        for Weyerhaeuser made reference to,
inter alia
,
Kinsmen Retirement
        Centre Association v. Hospital Employees' Union Local 180
(1985),
        63 B.C.L.R. 292 (C.A.) [
Kinsmen
], and
Ross v. New Brunswick
        School District No. 15
, [1996] 1 S.C.R. 825, 133 D.L.R. (4th)
        1.  Although
        the Union acknowledges that the arbitrator was required to consider the
        provisions of the
Act
, it nonetheless argues that the "basis" of
        the award was the factual determination by the arbitrator that what occurred
        in November 2001 was the mass termination of the employees of these manufacturing
        plants: see
Martin-Brower of Canada Ltd. v. General Truck Drivers & Helpers,
      Local 31
(1994), 87 B.C.L.R. (2d) 292, 112 D.L.R. (4th) 191 (C.A.).

[13]

In
        two recent decisions, the Supreme Court of Canada has indicated that courts
        should take a pragmatic and functional approach in determining the appropriate
        standard of review of a decision of a board or tribunal: see
Dr.
        Q. v. College of Physicians and Surgeons of British Columbia
, [2003]
        1 S.C.R. 226, 223 D.L.R. (4th) 599, 2003 SCC 19 and
Law Society of
        New Brunswick v. Ryan
, [2003] 1 S.C.R. 247, 257 N.B.R. (2d) 207,
        2003 SCC 20.  Although the
Act
deals with employment, it
        is not a statute relating to only employees and employers who are in
        a collective bargaining relationship; it applies generally to employees
        and
        employers in the province.  For instance, s. 63 of the
Act
provides
      quite detailed provisions for payment of severance to terminated employees:

63
(1)   After 3 consecutive months of employment,
        the employer becomes liable to pay an employee an amount equal to one
      week's wages as compensation for length of service.

(2)   The employer's
      liability for compensation for length of service increases as follows:

(a)   after 12 consecutive months of employment, to an amount equal to
      2 weeks' wages;

(b)   after 3 consecutive
        years of employment, to an amount equal to 3 weeks' wages plus one additional
        week's wages for each additional year of employment, to a maximum of
      8 weeks' wages.

(3)   The liability
      is deemed to be discharged if the employee

(a)   is given written notice of termination as follows:

(i)   one week's notice after 3 consecutive months of employment;

(ii)  2 weeks' notice after 12 consecutive months of employment;

(iii) 3 weeks' notice
        after 3 consecutive years of employment, plus one additional week for each
      additional year of employment, to a maximum of 8 weeks' notice;

(b)   is given a combination of notice and money equivalent to the amount
      the employer is liable to pay, or

(c)   terminates
      the employment, retires from employment, or is dismissed for just cause.

(4)   The amount the
        employer is liable to pay becomes payable on termination of the employment
      and is calculated by

(a)   totalling all the employee's weekly wages, at the regular wage,
        during the last 8 weeks in which the employee worked normal or average
      hours of work,

(b)   dividing the total by 8, and

(c)   multiplying
      the result by the number of weeks' wages the employer is liable to pay.

(5)   For the purpose of determining the termination date, the employment
        of an employee who is laid off for more than a temporary layoff is deemed
      to have been terminated at the beginning of the layoff.

[14]

I
        consider that
Kinsmen
, a previous judgment of this Court,
        is of direct applicability in the circumstances of this case.
Kinsmen
addressed
        a grievance launched by a union concerning whether or not the collective
        agreement provided for optional or compulsory membership in a pension scheme
        under the
Pension (Municipal) Act
, R.S.B.C. 1979, c. 317.  The
        issue came before an arbitration board for decision.  The board was not
        unanimous in its decision.  The union applied to the Court of Appeal for
        a review of the decision of the arbitration board.  The appeal was taken
        to this Court under then s. 109 (now s. 100 of the
Code
)
        of the
Labour Code
, R.S.B.C. 1979, c. 212.  In
Kinsmen
Mr.
      Justice Lambert said this at 299:

In
        this case, I am satisfied that the real substance of the dispute is the
        interpretation of the Pension (Municipal) Act.  Once it is interpreted,
        there is a subsidiary question relating to its application to the employees
        covered by the collective agreement under the interpretation of s. 11 of
        art. XI of the collective agreement.  But, in my opinion, if this court
        can deal with the real substance of the dispute, then this court can also
        deal with the subsidiary question, in deciding whether to grant any remedy.  To
        decide otherwise would stultify the rights of appeal given by both ss.
      108(1) and 109(1).

The interpretation of the Pension (Municipal) Act affects not only this
          employer, this union, and these employees, but also other employers,
          other unions, and other employees, union or non-union.  This court
          can not reach a different interpretation in this dispute than it could
          reach
        in any other litigation involving the Act
....

[Emphasis added.]

Mr. Justice Lambert then went on to consider the proper
        test or scope of review of the decision appealed from.  He said this
      at 304:

Counsel
        for the union argued that there were three alternative tests that could
        be applied by this court in deciding what to do in our review of the
      arbitration award under s. 109(1) of the Labour Code.  He described the
      three alternative tests as:

1.    The
      Correctness Test;

2.    The
      Reasonableness Test;

3.    The Patently Unreasonable
      Test.

. . .

The
        question of which test is the correct one with respect to the issue of
        real substance in this case is, in my opinion, correctly set out in the
        reasons of Laskin C.J.C., with whom Spence J. and Beetz J. concurred, in
McLeod
        v. Egan,
[1975] 1 S.C.R. 517 at 518...
Where the issue is the
        construction and application of a general public enactment which applies
        to a class
        or classes of person not covered by the arbitration award, as well as
        to those covered by the award, there is no place for a policy of curial
        deference.  The
      only possible test is the correctness test.

[Emphasis added.]

[15]

In
        my opinion, a question of statutory construction lies at the heart of this
        appeal; namely, what is the proper interpretation to be given in this case
        to ss. 64 and 67 of the
Act
?  Of course, when I speak of
        the proper interpretation of these sections, I refer to an interpretation
        of these provisions as they stood in November 2001.  Because this is
        a question of the construction of a statute of general application, in
        my
        opinion we are here dealing with a question of the general law and an
        appeal properly lies to this Court: see
Fording
,
B.C.N.U.
and
Canpar
,

supra
.  Having
        regard to the above-noted comments of Mr. Justice Lambert in
Kinsmen
,
        it seems apparent to me that the standard of review of the decision of
      the learned arbitrator ought to be one of correctness.

[16]

Provisions
        requiring that substantial notice periods be given to individuals (and
        other interested parties) where mass termination of employment is contemplated
        by an employer appear to have originated in the
Employment Standards
        Act
, R.S.B.C. 1995, c. 38 (the "1995
Act
").  Section
        67 of the 1995
Act
is the same as s. 67 of the
Act
.  The
        concept of temporary layoff was known prior to the enactment of the 1995
Act
because,
        for instance, the phrase "temporary layoff" was defined in
        s. 41 of the
Employment Standards Act
, R.S.B.C. 1980, c.
        10 (the "1980
Act
").  The 1980
Act
replaced
        the
Labour Regulation Act
, R.S.B.C. 1979, c. 213 and the
        earlier
Employment Standards Act
, R.S.B.C. 1979, c. 107.  When
        the legislature specified, in s. 67 of the
Act
, certain
        periods or situations during which a valid notice of termination could
        not be given
        to employees, the legislature did not see fit to include, as one of the
        proscribed periods, a period of temporary layoff.  However, as noted
        above, in the May 2002
Act
, by way of s. 33, the legislature did
      add such a provision to s. 67.

[17]

The
        Union argues in this Court (as it did before the learned arbitrator)
      that the omission of "temporary layoff" in s. 67 prior to May 2002
        was probably a legislative oversight.  For support, the Union makes reference
        to an interpretation circular emanating from the Employment Standards Branch
        which appears to suggest that valid notice under s. 64 could not have been
        given when an employee was on temporary layoff.  It is, however, common
        ground that such phraseology was not contained in s. 67 in November 2001,
        the time when the notices were given in this case.  Having regard to
        the categories set out in s. 67(1)(a) of the
Act
as it
        stood in November 2001, it might be thought that generally the legislature
        was
        seeking to provide for a form of what I would term working notice to
        employees in s. 64.  But the fact remains that in November 2001 there was no reference
        in s. 67(1)(a) to temporary layoff as being a situation in which valid
        notice under s. 64 could not be given by an employer to its employees.  It
        seems a fair rule of statutory interpretation that, unless there is ambiguity,
        a court need go no further than the plain words of the statute to discern
      the meaning of a particular provision.

[18]

As
        the arbitrator observed, having regard to the situation in the industry,
        those employees who received notices of the proposed plant closures had
        little basis for any hope that they would likely ever be recalled to
      work in those plants.  Nonetheless, at the time these notices were given
      a great many of the employees were in a status of temporary layoff.

[19]

While
        the situation at the plants gave scant reason for optimism about any
      future employment, it appears that one of the underlying purposes of the
      mass
        termination notice provisions enacted by the legislature was to engage
        all involved in a process to determine if there could be any salvage
      of employment at affected plants.  Upon the giving of notice under s. 64,
        the minister could require the employer to establish an adjustment committee
        composed of employee and employer representatives and others considered
        suitable.  This adjustment committee is charged with considering whether
        an operation can be salvaged in whole or in part: see s. 71 of the
Act
.  If
        the operations of these plants could have been revived, or if alternative
        employment could be arranged for CWP or K3 employees, there would be the
        possibility of recall from layoff for some or all of the employees.  I
        note that in the Agreed Statement of Facts there was reference to the
        circumstance that ongoing discussions were occurring under s. 54 of the
Code
,
      a section that has parallels to s. 71 of the
Act
.

[20]

At
        the time that Weyerhaeuser gave the notices in November 2001, it was not,
        by anything contained in s. 67 of the
Act
, proceeding in
        a manner that was noncompliant with the statute.  I do not consider that
        there could be any well-founded suggestion in this case that the employer
        was acting in some colourable way in an attempt to evade the statute.  In
        his award, the arbitrator gave examples of what might be thought to be
        colourable attempts to evade the statutory provision.  But those examples
      do not, in my view, accurately describe this case.

[21]

I
        do not consider that the arbitrator here was entitled to read into the
        statute a provision that was not then contained in it.  This arbitrator
        has wide experience in labour disputes.  But what was at issue in this
        case was a matter of statutory construction.  As the Supreme Court of
        Canada observed in
Canada (Attorney General) v. Mossop
, [1993] 1
        S.C.R. 554, 100 D.L.R. (4th) 658, where the issues involve concepts of
        statutory interpretation and general legal reasoning, the court is not
      to defer to the tribunal but must review a decision on the basis of correctness.

[22]

In
        the recent case of
Toronto (City) v. C.U.P.E., Local 79
,
        2003 SCC 63 [
Toronto (City)
], Arbour J., giving the judgment
      of the majority, said:

14    Doherty
          J.A. was correct to acknowledge patent unreasonableness as the general
          standard of review of an arbitrator's decision as to whether just cause
          has been established in the discharge of an employee.  However, and as
          he noted, the same standard of review does not necessarily apply to every
          ruling made by the arbitrator in the course of the arbitration.  This
          follows the distinction drawn by Cory J. for the majority in
Toronto (City) Board of Education v. O.S.S.T.F.,
          District 15
, [1997] 1 S.C.R.
        487
, where he said, at para. 39:

It has been
        held on several occasions that the expert skill and knowledge which an
        arbitration board exercises in interpreting a collective agreement does
        not usually extend to the interpretation of "outside" legislation.
The
        findings of a board pertaining to the interpretation of a statute or the
        common law are generally reviewable on a correctness standard.
...  An
        exception to this rule may occur where the external statute is intimately
        connected with the mandate of the tribunal and is encountered frequently
      as a result.  [Emphasis added.]

15    In this
          case, the reasonableness of the arbitrator's decision to reinstate the
          grievor is predicated on the correctness of his assumption that he was
          not bound by the criminal conviction.  That assumption rested on his
          analysis of complex common law rules and of conflicting jurisprudence.  The
          body of law dealing with the relitigation of issues finally decided in
          previous judicial proceedings is not only complex; it is also at the
          heart of the administration of justice.  Properly understood and applied,
          the doctrines of
res judicata
and abuse of process govern the
          interplay between different judicial decision makers.  Theses rules and
          principles call for a judicial balance between finality, fairness, efficiency
          and authority of judicial decisions.  The application of these rules,
          doctrines and principles is clearly outside the sphere of expertise of
          a labour arbitrator who may be called to have recourse to them.  In such
          a case, he or she must correctly answer the question of law raised.  An
          incorrect approach may be sufficient to lead to a patently unreasonable
          outcome.  This was reiterated recently by Iacobucci J. in
Parry Sound
          (District) Social Services Arbitration Board v. O.P.S.E.U.,
Local 324
,
        2003 SCC 42, at para. 21.

16    Therefore I agree with the Court of Appeal that
          the arbitrator had to decide correctly whether CUPE was entitled, either
          at common law or under a statute, to relitigate the issue decided against
        the grievor in the criminal proceedings.

[23]

Although
Toronto
            (City)
considered a tribunal decision dealing with the general
            common law relating to
res judicata
and the policy against relitigation
            of decided issues, in my view, the same principles apply when a tribunal
            interprets an external statute as this likewise raises a question of
            law.
In such circumstances, the Supreme Court of Canada
            has held that a correctness standard of review is the applicable
          standard of review.

[24]

In
        my respectful opinion, the arbitrator erred in law in this case when
      he concluded that the notices given by the employer Weyerhaeuser were invalid.  By
        the provisions of the
Act
, as it then stood,
Weyerhaeuser
was legally entitled to give the notices it did in
        November 2001.  I cannot conclude, therefore, that the notices given were
        invalid.  I consider the arbitrator erred in law in his conclusion, cited
supra
,
        at para. 5, that "the employer did not give notice as required by
        Section 64 of the Act".  Having reached that conclusion, it appears
        to me that the proper order here is to allow this appeal and to hold that
        the notices of November 2001 were valid.  Accordingly, I would allow
      this appeal.



The Honourable
Mr. Justice Hall

I Agree:

The Honourable
Mr. Justice Thackray

I Agree:

The Honourable
Mr. Justice Hollinrake


