T-1423-88
Sedpex, Inc. (Applicant)
v.
Dennis M. Browne, Adjudicator appointed under
section 61.5, Division V.7, Part III of the Canada
Labour Code (Respondent)
and
John Devereaux (Respondent)
INDEXED AS: SEDPEX, INC. V. CANADA (ADJUDICATOR
APPOINTED UNDER THE CANADA LABOUR CODE)
Trial Division, Strayer J.—St. John's, Newfound-
land, November 8; Ottawa, November 18, 1988.
Judicial review — Prerogative writs — Prohibition —
Availability of judicial review, in spite of privative clause, to
examine labour adjudicator's preliminary decision as to own
jurisdiction — Scope of judicial review in ':jurisdictional
issue" cases.
Federal Court jurisdiction — Trial Division — Prohibition
sought to prevent adjudicator under Canada Labour Code
from hearing complaint of unjust dismissal based on argument
adjudicator lacked jurisdiction — Matter properly before
Trial Division as preliminary conclusions as to jurisdiction not
"decision or order" within Federal Court Act s. 28.
Labour relations — Complaint of unjust dismissal —
Prohibition sought to prevent adjudicator from hearing com
plaint — Adjudicator's finding employee laid off not for lack
of work but for incompetence justified by evidence.
The respondent, Devereaux, was an assistant driller on the
applicant's offshore drilling rig operating off the coast of
Newfoundland. In April 1986, his employment was terminated.
Devereaux filed a complaint under section 61.5 of the Canada
Labour Code, alleging unjust dismissal. Sedpex raised a prelim
inary objection that the adjudicator appointed to hear the
complaint lacked jurisdiction because the lay off was due to
"lack of work" and the Code precluded consideration of a
complaint in such cases. After hearing evidence on that point,
the adjudicator found that the respondent's employment was
not terminated due to lack of work and that the hearing could
resume. Sedpex applied for prohibition to prevent the adjudica
tor from hearing the complaint.
Held, the application should be dismissed.
The adjudicator's decision that he had jurisdiction was not a
"decision or order" within the meaning of section 28 of the
Federal Court Act. It was therefore appropriate to apply to the
Trial Division for prohibition. With the help of a judicially
expanded concept of jurisdictional error, it has long been
established that, notwithstanding privative clauses such as those
found in subsections 61.5(10) and (11) of the Code, if a
tribunal has exceeded its jurisdiction, the judicial review of its
decision is permissible on the jurisdictional issue.
While the reviewing court must satisfy itself that the decision
of the tribunal as to its jurisdiction was correct both as to the
law and the facts, a court should embark with some caution on
assessment of the "correctness" of jurisdictional facts deter
mined by a tribunal. A court should not, with respect to
findings of facts, substitute its view for that of the tribunal
unless it can be demonstrated to be manifestly wrong. In this
case, the adjudicator made no error of law when he asked
himself whether the actual operative and dominant reason for
the termination of employment was "lack of work" and con
cluded that the alleged reason of "lack of work" was a "sham".
Nor was there any reviewable error of fact. It was open to the
adjudicator on the basis of the evidence to conclude that the
real reason for the dismissal was the company's belief that
Devereaux was not competent to do the job or not as competent
as another worker.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5 (as
enacted by S.C. 1977-78, c. 27, s. 21; 1980-81-82-83,
c. 47, s. 27; 1984, c. 39, s. 11).
Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss.
18, 28.
CASES JUDICIALLY CONSIDERED
APPLIED:
Paul L'Anglais Inc. v. Canada Labour Relations Board,
[1979] 2 F.C. 444 (C.A.); Canadian Human Rights
Commission v. British American Bank Note Co.,
[1981] 1 F.C. 578 (C.A.); Attorney General of Canada v.
Gauthier, [ 1980] 2 F.C. 393 (C.A.); Eskasoni School
Board and Eskasoni Band Council v. Maclsaac et al.
(1986), 69 N.R. 315 (F.C.A.); Jarvis v. Associated
Medical Services Inc. et al., [1964] S.C.R. 497; Syndicat
des employés de production du Québec et de l'Acadie v.
Canada Labour Relations Board et al., [1984] 2 S.C.R.
412; Stein et al. v. "Kathy K" et al. The Ship, [1976] 2
S.C.R. 802; Koehring Canada Ltd. v. Owens-Illinois Inc.
et al. (1980), 52 C.P.R. (2d) 1 (F.C.A.); Capitol Life
Insurance Co. v. R., [1986] 2 F.C. 171 (C.A.); Jacmain
v. Attorney General (Can.) et al., [1978] 2 S.C.R. 15.
REFERRED TO:
Anisminic, Ltd. v. The Foreign Compensation Commis
sion, [1969] 1 All E.R. 208 (H.L.); Service Employees'
International Union, Local No. 333 v. Nipawin District
Staff Nurses Association et al., [1975] 1 S.C.R. 382;
Segal v. City of Montreal, [1931] S.C.R. 460.
COUNSEL:
Evan J. Kipnis for applicant.
Nicholas P. A. Westera for respondent John
Devereaux.
SOLICITORS:
Chalker, Green and Rowe, St. John's, New-
foundland, for applicant.
Stack, Westera, St. John's, Newfoundland,
for respondent John Devereaux.
The following are the reasons for order ren
dered in English by
STRAYER J.:
Introduction
This is an application for a writ of prohibition to
prevent Dennis M. Browne, an adjudicator
appointed under section 61.5 [as enacted by S.C.
1977-78, c. 27, s. 21; 1980-81-82-83, c. 47, s. 27;
1984, c. 39, s. 11] of the Canada Labour Code,'
from proceeding further with hearing the com
plaint of John Devereaux that he was unjustly
dismissed by the applicant Sedpex, Inc.
Background Facts
Mr. Devereaux was hired in March, 1983 as a
derrickman on an offshore drilling rig, Sedco 710,
operating off the coast of Newfoundland. He was
originally hired by Sedco Inc., a sister corporation
of Sedpex and his contract was transferred to
Sedpex in May, 1983. He was promoted to the
position of assistant driller on that rig on April 5,
1984. He was one of four assistant drillers
employed on that rig. On any given shift there
would be a driller and an assistant driller on duty
with another similar team on board available to
work alternate shifts. This would continue for
three weeks and then those two teams would be
replaced by two other teams who would in the
'R.S.C. 1970, c. L-1.
meantime have been onshore and off duty for three
weeks.
Devereaux continued working as an assistant
driller on this rig until February, 1986. While off
duty and onshore he was involved on February 14,
1986 in an automobile accident which rendered
him unfit to return to work at the time he was due
back, namely on February 28, 1986. During Deve-
reaux's absence Sedpex arranged for Alan Lange-
vin, a driller on a rig operated by Sedco Forex
(Sedpex's parent corporation) in the North Sea, to
be transferred temporarily to Sedco 710 to work as
an assistant driller in place of Devereaux. On April
7, 1986, Devereaux's doctor advised Sedpex that
Devereaux would be fit to return to work on April
11, 1986. On April 9, 1986 Sedco 710 received
instructions from Sedpex headquarters in the
United States advising that the Sedco 703 drill rig
in the North Sea from which Langevin had come
was idle "with no near work prospects" so "that
unit is no longer able to provide Allen [sic] a job".
The telex went on to direct Sedco 710 to offer
Langevin a permanent position on Sedco 710 if he
was prepared to accept a reduction in status from
driller to assistant driller. The telex further said:
To maintain 710 staffing levels within your authorized comple
ment, this would require laying off one individual presently
assigned to the rig, who should probably be your weakest
assistant driller.
As a result Devereaux was advised orally on April
11th, and by letter on April 14th, that his service
with Sedpex, Inc. was being terminated at once.
Soon thereafter Devereaux filed a complaint under
section 61.5 of the Canada Labour Code, alleging
unjust dismissal. In October, 1986, the Minister of
Labour appointed Dennis M. Browne to be an
adjudicator to hear this complaint. The adjudica
tion hearing commenced at St. John's, Newfound-
land on August 13, 1987 and was continued on
September 15, 1987. Sedpex raised a preliminary
objection that the adjudicator was without juris
diction to hear the matter because Devereaux had
been "laid off because of lack of work" as referred
to in paragraph 61.5(3)(a) of the Code, which
would preclude consideration of a complaint in
such circumstances. The adjudicator heard the
evidence of Joe Bryant, District Manager of
Sedpex, Inc. for eastern Canada in April, 1986,
who was examined and cross-examined before him.
He also received a number of exhibits put in
through Mr. Bryant. He delivered a written deci
sion on January 20, 1988 dealing only with this
preliminary issue. He concluded that Devereaux
was not terminated due to lack of work and that
therefore he was not precluded from hearing the
complaint. He sought to continue the hearing of
the complaint but Sedpex, Inc. brought these pro
ceedings for prohibition to prevent him from doing
so.
Legislative Framework
Section 61.5 was inserted in the Code to provide,
in effect, a grievance procedure for federally-
regulated employees not protected by collective
bargaining agreements, allowing them to file com
plaints with respect to unjust dismissal. Where
such a complaint is filed and the matter is not
otherwise settled the Minister can appoint an
Adjudicator. If the Adjudicator after holding a
hearing concludes that the person was unjustly
dismissed he can order compensation or reinstate
ment of that person or some other appropriate
remedy. Subsection 61.5(14) specifically provides
that no civil remedy which an employee may have
against his employer is suspended or affected by
this section. The most relevant subsections for the
purposes of the present proceeding are the
following:
61.5...
(3) No complaint shall be considered by an adjudicator
under subsection (8) in respect of a person where
(a) the person has been laid off because of lack of work or
because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or
under this or any other Act of Parliament.
(7) An adjudicator to whom a complaint has been referred
under subsection (6)
(a) shall consider the complaint within such time as the
Governor in Council may by regulation prescribe;
(b) shall determine his own procedure, but shall give full
opportunity to the parties to the complaint to present evi
dence and make submissions to him and shall consider the
information relating to the complaint referred to him under
subsection (6); and
(c) has, in relation to any complaint before him, the powers
conferred on the Canada Labour Relations Board, in relation
to any proceeding before the Board, by paragraphs 118(a),
(b) and (c).
(8) An adjudicator to whom a complaint has been referred
under subsection (6) shall consider whether the dismissal of the
person who made the complaint was unjust and shall render a
decision thereon and send a copy of the decision with the
reasons therefor to each party and to the Minister.
(10) Every order of an adjudicator appointed under subsec
tion (6) is final and shall not be questioned or reviewed in any
court.
(11) No order shall be made, process entered or proceeding
taken in any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise, to question, review,
prohibit or restrain an adjudicator in any of his proceedings
under this section.
Scope and Criteria for Judicial Review Herein
It should first be noted that this is an applica
tion to the Trial Division for prohibition under
section 18 of the Federal Court Act [R.S.C. 1970
(2nd Supp.), c. 10] and not an application to the
Federal Court of Appeal for judicial review under
section 28 of that Act. It appears to me that the
application is properly made to this Division. The
conclusion reached by the adjudicator that he had
jurisdiction was not a "decision or order" as
referred to in subsection 28(1) of the Federal
Court Act. It was not a final decision but only a
preliminary assumption upon which the adjudica
tor would proceed to a determination of the com
plaint before him. Such preliminary conclusions as
to jurisdiction have been held not to be "decisions"
at a11. 2 When a final determination of a complaint
has been made by an adjudicator that determina
tion then becomes subject to review under section
28 3
It is also important to note the privative clauses,
subsections 61.5 (10) and (11) quoted above. While
subsection 61.5(10) might in any event be irrele
vant as no "order" has been made by the adjudica
tor, subsection 61.5 (11) which purports to pre
clude any court process "to ... prohibit or restrain
an adjudicator in any of his proceedings" might be
thought to apply. However, it has long been estab
lished that, notwithstanding such privative clauses,
if a tribunal has exceeded its jurisdiction then
judicial review of its decision is permissible on the
jurisdictional issue. 4 Further, the courts have
greatly expanded the concept of jurisdictional
error to include decisions made in bad faith, deci
sions made on irrelevant material, decisions made
without regard to relevant material, misinterpreta
tions of statutes, and breaches of natural justice.'
Where a court thus has to determine a tribunal
acted within its jurisdiction it has been held that
scrutiny must be beyond the mere determination
that the tribunal's decision was not patently unrea
sonable. As stated by Beetz J. in Syndicat des
employés de production du Québec et de l'Acadie
v. Canada Labour Relations Board et a1.: 6
2 See e.g., Paul L'Anglais Inc. v. Canada Labour Relations
Board, [1979] 2 F.C. 444 (C.A.); Canadian Human Rights
Commission v. British American Bank Note Co., [1981] 1 F.C.
578 (C.A.).
3 See e.g., Attorney General of Canada v. Gauthier, [ 1980] 2
F.C. 393 (C.A.); Eskasoni School Board and Eskasoni Band
Council v. MacIsaac et al. (1986), 69 N.R. 315 (F.C.A.).
4 See e.g., Jarvis v. Associated Medical Services Inc. et al.,
[1964] S.C.R. 497.
5 See e.g., Anisminic, Ltd. v. The Foreign Compensation
Commission, [1969] 1 All E.R. 208 (H.L.); Service
Employees' International Union, Local No. 333 v. Nipawin
District Staff Nurses Association et al., [1975] 1 S.C.R. 382,
at p. 389.
6 [1984] 2 S.C.R. 412, at pp. 441-442.
Once a question is classified as one of jurisdiction, and has
been the subject of a decision by an administrative tribunal, the
superior court exercising the superintending and reforming
power over that tribunal cannot, without itself refusing to
exercise its own jurisdiction, refrain from ruling on the correct
ness of that decision, or rule on it by means of an approximate
criterion.
This is why the superior courts which exercise the power of
judicial review do not and may not use the rule of the patently
unreasonable error once they have classified an error as
jurisdictional.
In theory, this means that the reviewing court
must satisfy itself that the decision of the tribunal
as to its jurisdiction was correct both as to the law
and the facts. One must, of course, recognize that
"correctness" is a relative, not an absolute, term.
Questions of law are always open to debate, but we
accept as the "correct" determination of law that
which is, in our legal system, the most authorita
tive. Thus for both functional and doctrinal rea
sons courts are viewed as being the most authorita
tive in determining what is the law. It follows that
a judicial opinion, perhaps clarified and sanctified
by the appeal process, is deemed to be the "cor-
rect" view of what the law is for purposes of
determining the jurisdiction of the tribunal.
With respect to the "correctness" of facts, how
ever, it must be recognized that neither a tribunal
nor a court ever can be said to have pronounced
incontestably the correct version of past events.
Those events can never be reproduced. What fact-
determination bodies produce, instead are findings
of fact which must stand in place of the facts
themselves. Depending on the processes involved in
reaching them, such findings may to a greater or
lesser degree correspond to what actually hap
pened. It is pushing judicial self-esteem beyond the
bounds of decency to assume that courts will
always be in a better position to make such find
ings. The legal system recognizes that some proce
dures and institutions are more likely to produce
accurate findings of fact than are others. Thus for
example appellate courts normally defer to the
factual findings of trial courts, particularly where
there are issues of credibility which are thought to
be better assessed by the judge who hears and sees
the witness, unless such findings of fact are "clear-
ly wrong".' Further, it has been said that even
where there are no such issues of credibility
An appellate court is not, however, even in that circumstances,
entitled to substitute its views for those of the Trial Judge
simply because it would have concluded differently; the appel
late court must conclude that he was wrong. 8
It will be noted that appellate courts take this
cautious approach, even though they typically have
before them a complete transcript of the evidence
taken before the trial court.
This suggests that a court should embark with
some caution on assessing the "correctness" of
jurisdictional facts determined by a tribunal. This
is particularly true where, as in the present case, I
do not have before me a transcript of the oral
evidence taken before the adjudicator, nor as far
as I can see do I have any new evidence before me
that was not before the adjudicator. Indeed, the
only evidence before me consists of two affidavits
sworn by employees of the applicant which briefly
describe the evidence that was put before the
adjudicator much more fully and by viva voce
evidence. Dickson J. stated it thus in Jacmain v.
Attorney General (Can). et al. 9
The intractable difficulty is this. It is hard to conceive that a
legislature would create a tribunal with a limited jurisdiction
and yet bestow on such tribunal an unlimited power to deter
mine the extent of its jurisdiction. On the other hand, if the
correctness of every detail upon which the jurisdiction of the
tribunal depends is to be subject to re-trial in the Courts and
7 See e.g., Stein et al. v. "Kathy K" et al. The Ship, [1976] 2
S.C.R. 802, at p. 806; Koehring Canada Ltd. v. Owens-Illinois
Inc. et al. (1980), 52 C.P.R. (2d) 1, at p. 21 (F.C.A.).
8 Capitol Life Insurance Co. v. R., [1986] 2 F.C. 171, at p.
177 (C.A.).
9 [1978] 2 S.C.R. 15, at p. 29. While this statement was
made in the context of a dissenting judgment with which
Laskin C.J. and Spence J. concurred, the same principle was in
effect endorsed by Pigeon J. on behalf of himself and Beetz J.,
ibid at p. 42. See also Segal v. City of Montreal, [1931] S.C.R.
460, at p. 473.
the opinion of a judge substituted for that of the tribunal, then
the special experience and knowledge of the members of such a
tribunal and the advantage they have of hearing and seeing the
witnesses may be lost. The power to review jurisdictional
questions provides the Courts with a useful tool to ensure that
tribunals deal with the type of issues which the Legislature
intended. It enables the Courts to check unlawful attempts at
usurpation of power. But the Courts, in my opinion, should
exercise restraint in declaring a tribunal to be without jurisdic
tion when it has reached its decision honestly and fairly and
with due regard to the material before it. The Court should
allow some latitude in its surveillance of jurisdictional findings.
It should ask whether there is substantial evidence for decisions
of fact and a rational basis for decisions of law, or mixed
decisions of fact and law. The error must be manifest. The role
of the Court is one of review, not trial de novo.
Consistently with this approach, I believe that it
would be inconsistent witl1. the purposes of section
61.5 if the Trial Division of this Court were to
make de novo and routine factual determinations
for the purposes of paragraph 61.5(3)(a) as to
whether a person has been laid off because of lack
of work, prior to the adjudicator having the oppor
tunity to hear all the evidence and make a final
decision which can be reviewed by the Federal
Court of Appeal under section 28.
I therefore conclude from the foregoing that
paragraph 61.5(3)(a) does involve a question of
jurisdiction and that I can review the conclusions
of the adjudicator for the purpose of determining
whether he has jurisdiction to proceed with the
complaint. In doing so it is open to me to form my
own opinions as to the relevant questions of law
but that with respect to his findings of fact I
should not substitute my own view for his unless
his can be demonstrated to be manifestly wrong. 10
Conclusions
The most relevant portion of the adjudicator's
findings with respect to whether Mr. Devereaux
was dismissed because of lack of work, and there
fore whether the adjudicator had jurisdiction to
proceed with hearing the complaint, was as
follows:
In this instance, the Complainant was dismissed from his
permanent employment as an Assistant Driller because the
Respondent preferred to hire on a permanent basis the
10 Ibid.
employee who had been replacing the Complainant while the
latter was on sick leave. The Employer witness did make
reference to a slow down in the North Sea operation which may
have resulted in a lack of work but there was no evidence
whatsoever of a slow down or lack of work in the offshore area
in which the Sedco 710 was operating at the time this com
plaint was made. There is no evidence that other employees on
the Sedco 710 were affected in any way by the slow down in the
North Sea operation. The only employee who appears to have
been affected by a lay-off seems to have been the Complainant.
The scenario that the Employer presents of having five Assist
ant Drillers for four positions was essentially the Employer's
own creation. Thus, there was no lack of work per se on the
Sedco 710 based on legitimate considerations. To this end, I
find that the termination of the Complainant based on lack of
work was, in fact, a sham. If the Respondent were to succeed in
these circumstances, the recourse offered employees through
Division V.7, Part III of the Canada Labour Code could be
reduced to a nullity.
I find based upon the evidence that the Complainant was not
terminated due to lack of work but because the Respondent
preferred to retain the Complainant's replacement when the
Complainant returned from sick leave. The Respondent has not
discharged its burden of satisfying this adjudicator that there
was a lack of work ...
The applicant contends that these findings
involved errors of fact and law. I do not agree.
With respect to a possible error of law, it
appears to me that the adjudicator has properly
interpreted paragraph 61.5(3)(a). It is implicit in
his conclusions that a person should not be con
sidered to have been "laid-off because of lack of
work" unless that was the real, essential, operative
reason for the termination of his employment. It is
obvious that employees' jobs are frequently ter
minated for a combination of reasons. That does
not mean that because one factor in dismissal is.
the fact that there is another person available to do
the job, the termination is automatically due to
"lack of work". Nor does it mean that because the
employer says that he no longer needs the
employee in question the termination of employ
ment must automatically be regarded as due to
"lack of work". Difficult as it may be in some
cases, the question which the statute requires to be
answered, in my view, is as to whether the actual
operative and dominant reason for the termination
was "lack of work". I am satisfied that that is the
question which the adjudicator put to himself in
this case when he concluded that the alleged
reason of "lack of work" was a "sham".
Nor can I find any reviewable error of fact
committed by the adjudicator. As noted earlier, I
am limited in the extent to which I can substitute
my view of the facts for that of the adjudicator.
He heard the only witness to be called as yet, Mr.
Bryant, who was District Manager of Sedpex, Inc.
during the period in question. The adjudicator
heard the examination and cross-examination of
Mr. Bryant, and his explanations with respect to
the exhibits. I have heard none of these nor do I
have a transcript of his evidence. I am unable to
say that the adjudicator had no evidence or no
substantial evidence upon which he could conclude
that the reason for the termination of Devereaux's
employment was the preference of Sedpex, Inc. to
employ Langevin instead. The adjudicator correct
ly held—and the applicant does not dispute this—
that the burden was on Sedpex, Inc. to show that
the reason for the lay-off was lack of work. It was
certainly open to the adjudicator to find that this.
burden of proof had not been met. Throwing seri
ous doubt on any such contention by the employer
were several documents put into evidence by the
employer itself demonstrating that the employer
for some time had serious doubts as to Devereaux's
competence to be an assistant Driller. There were
unfavourable evaluations on him as assistant Drill-
er as early as May, 1985 and a memorandum at
about that time from the drilling superintendent to
Mr. Bryant saying in part concerning Mr.
Devereaux,
1 think we should start looking at replacing him as asst
Driller soon.
A note sent to him on November 10, 1985 from
another drilling superintendent advised Mr. Deve-
reaux that:
This is your final warning, any further incidents will lead to
dismissal!
These were followed by other negative comments
on the file by his supervisor, and a personnel
evaluation of March 3, 1986 of over fifty
employees on the Sedco 710 drill rig of which
Devereaux received the lowest rating. Further, the
evidence showed that after Devereaux's automo
bile accident Mr. Langevin was brought in on a
temporary basis and he was not offered a perma
nent position on Sedco 710 until the company had
been advised by Devereaux's doctor that Deve-
reaux could return to work. It was at that point
that Langevin was offered a permanent position.
Once Langevin accepted this position the result
was that if Devereaux returned there would be five
assistant drillers to occupy four positions. At that
point Devereaux was terminated. It was certainly
open to the adjudicator on the basis of this evi
dence to conclude that the real, operative, reason
for Devereaux's dismissal was the company's belief
that he was not competent to do the job or not as
competent as Langevin.
It is precisely that belief which can be explored
if the adjudicator continues with the hearing. In
declining to reject the conclusion of the adjudica
tor that Devereaux's dismissal was not due to lack
of work and in holding that the adjudicator has
jurisdiction to hear the complaint, I am of course
in no way prejudging the result of the hearing by
the adjudicator on the merits. Counsel for the
applicant, in his thorough and lucid argument,
referred me to several decisions of adjudicators
which had favoured employers. Some stress was
placed on "management rights" to determine who
shall work and who shall not. I do not question the
right of management to dismiss for just cause and
it remains open to the applicant here to challenge
Devereaux's complaint that his dismissal was
unjust. But I am not prepared to prohibit the
adjudicator from addressing that question because
I do not believe the applicant has demonstrated
that the adjudicator has, in assuming jurisdiction,
committed any reviewable error of law or of fact.
The application will therefore be dismissed. The
respondent requested that, if I dismissed the
application, I order costs against the applicant on
a solicitor and client basis. Counsel based this
request on the insubstantiality of the applicant's
case. Normally costs should not be awarded on a
solicitor and client basis just because of the lack of
merits in the case of the losing party, but instead
because of the manner in which the proceedings
have been conducted. I can find nothing reprehen
sible in the way the applicant has conducted its
case. It is regrettable for the due administration of
section 61.5 that these proceedings will have
delayed the adjudicator for a year or so in dealing
with the merits. But this was a recourse which the
applicant was legally entitled to pursue because of
the supervisory role courts have assured for them
selves in matters of jurisdiction. I therefore award
costs against the applicant, but only on a party and
party basis.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.