Citation:
James v. British Columbia (Labour Relations Board),
2007 BCCA 30
Date: （略）
Docket: CA034111
Between:
Nicholas James
Appellant
(Petitioner)
And
Labour Relations Board of British Columbia,
Professional Employees’ Association,
University of Victoria
Respondents
(Respondents)
Before:
The Honourable Chief Justice Finch
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Chiasson
Oral Reasons for Judgment
W.J. Andrews
Counsel for the Appellant
E. Miller
Counsel for the Respondent Labour Relations Board of B.C.
L. Terai
Counsel for the Respondent Professional Employees’ Association
P. Gilligan-Hackett
P.A. Murray
Counsel for the Respondent University of Victoria
Place and Date:
Vancouver, British Columbia
10 January 2007
[1] DONALD, J.A.: Nicholas James complained to the Labour Relations Board that his Union, the Professional Employees Association (PEA), failed to represent him fairly when it refused to continue with an arbitration of his several grievances against his employer, University of Victoria (the Employer).
[2] The Union dropped the grievances because they did not like James's chances in the arbitration and because he refused two offers from the Employer the Union thought were better than anything he could achieve at arbitration.
[3] The Board dismissed the complaint which James brought under s. 12 of the Labour Relations Code, R.S.B.C. 1996, c. 244. He petitioned for judicial review. The matter went before Mr. Justice Sigurdson who, for reasons cited as 2006 BCSC 784, dismissed the petition.
[4] This appeal focuses on the allegation that the Board breached its duty of fairness in refusing to entertain four points of argument advanced in support of the s. 12 complaint and the reviewing judge erred in not so finding. James seeks an order quashing the Board's decision and remitting the complaint for a rehearing.
[5] I am not persuaded the reviewing judge was wrong in dismissing the petition.
[6] The judge set out the background circumstances fully and I need not repeat them here in any detail. As I see it, the essence of the appeal involves the power of the Board to control its processes.
[7] Section 12 offers protection for the individual employee in a collective environment but complaints under that provision can consume much time and energy and many create vexing administrative challenges for the tribunal and for the respondents to the complaint. This is reflected in the observations concerning the Board's experience in Judd (Re), [2003] B.C.L.R.B.D. No. 63 (QL), BCLRB Letter Decision No. B63/2003:
? 24 Employee rights under Section 12 of the Code are rights contemplated by Section 2. Those rights in turn form the obligations owed by unions to employees under Section 12. However, it is important to recognize that a union also has an overall right and obligation to represent all of the employees in the bargaining unit: Section 27 of the Code. An employee's Section 12 rights, and the union's concomitant obligations, must be interpreted in the context of the union's obligations to the rest of the bargaining unit it represents. It is not consistent with the overall purposes of the Code for any single employee, or group of employees within the larger unit, to be allowed to inordinately monopolize or drain a union's resources through excessive and unwarranted demands for representation.
? 25 Every year the Board receives a far greater number of Section 12 complaints than are justified on the facts. This has resulted in excessive demands being placed on the resources of unions and the labour relations system as a whole, including the resources of the Board. While in part this may be due to an increased level of sophistication amongst employees in the workforce in general, in our view it may also flow from a fundamental misconception regarding the nature of the rights and obligations arising under Section 12.
? 26 Section 12 contains a narrow right and protection. It has long been interpreted that way in this as well as other jurisdictions and that interpretation has been upheld by the Courts. Despite that, Section 12 complainants often have expectations far beyond what is provided for by the Legislature. This has resulted in a consistently large number of unmeritorious complaints, which is contrary to the goals of the labour relations system identified earlier, and diverts critical resources both from unions and from the system as a whole.
[8] James filed a complaint of extraordinary length. It consisted of 153 closely typed pages with 146 documentary exhibits attached.
[9] The first Vice-Chair (constituting a single person panel) to tackle this case prepared a four page summary which distilled the complaint to manageable proportions. It was used by the second Vice-Chair (again a single person panel) in the case, who conducted a rehearing into the complaint after the first decision – dismissing the complaint – was overturned on an internal reconsideration ([2002] B.C.L.R.B.D. No. 69 (QL), BCLRB Letter Decision No. B69/2002): judicial review dismissed (Professional Employees' Assn. v. James, 2002 BCSC 736); appeal dismissed (Professional Employees' Assn. v. James, 2003 BCCA 181). At the argument stage of the second hearing, counsel for the respondents objected to a series of arguments proposed by James, which they submitted lay outside the scope of the issues settled by the summary. The Vice-Chair upheld the objection on the basis that it would be unfair to the respondents to allow James to elaborate a new theory after the hearing had been conducted on a different footing and the respondents elected to call no evidence.
[10] James applied for leave to reconsider this decision, which was denied: [2004] B.C.L.R.B.D. No. 135 (QL).
[11] The reviewing judge found no breach of natural justice in the refusal to entertain the additional arguments. He said in his reasons:
[64] The Vice-Chair had an obligation to manage the case in order to conserve the resources of the Board. Here the Vice-Chair was faced with an enormous and unmanageable complaint and, with at least the initial agreement of the parties, simplified the issues while still leaving the petitioner with a substantial complaint. This case cried out for case-management. The petitioner himself requested that the Board define the boundaries of the hearing and limit the issues. In determining the role that Summary was to play, which was to limit and focus the complaint, the Vice-Chair was responding both to her obligation to conserve the Board’s resources and to the submissions of the parties. It was a ruling that she was entitled to make. I also think that, having made the ruling, it was open to her to not allow the petitioner to argue different theories than appeared in the Summary.
[12] On appeal, James alleges that the judge failed to recognize that the arguments in question went to the core of his complaint. The arguments are these:
1. Ground A. The Union's conduct was unconscionable in setting up the Appellant to be disciplined for harassment as the bait in the Union's trap for the Employer; and then unilaterally abandoning the arbitration.
2. Ground C. The Union's handling of the Appellant's employment issues was grossly negligent in that the Union deliberately 'snowballed' more and more grievances (and issues not specifically grieved) into the arbitration instead of even considering attempting to resolve specific issues with the Employer.
3. Ground G. The Union is estopped by its own conduct from asserting what would otherwise be its right to abandon the arbitration for its own reasons. The Union led the Appellant to believe that if he withheld certain exculpatory witness statements until after he had been disciplined the Union would vigorously pursue the harassment arbitration to completion and that it would not exercise whatever right the Union might otherwise have had to abandon the arbitration prematurely. That was a promise intended to be relied upon, and the Appellant did rely on it, to his detriment.
4. Ground H. The Union's conduct as whole shows the Union improperly using the Appellant's employment issues as a vehicle for attacking the Employer, arbitrarily abandoning the Petitioner's employment issues, then reacting with hostility and retaliation toward the Petitioner, and conducting a fatally flawed, hence arbitrary, form of appeal.
[13] James did not articulate these grounds in his complaint nor are they encapsulated in the summary. He made no objection that the arguments did not appear in the summary. The judge found that the substance of his complaint was before the Vice-Chair and I cannot say he was wrong in taking that view.
[14] James asserts that he understood the summary to be a guide only and did not circumscribe the limits of his case. The Board found against him on that point and I view the finding as not patently unreasonable and therefore unassailable.
[15] This is a classic illustration why pleadings or an informal substitute like the pre-hearing definition of issues that occurred in this case are so important. Here, James alleges that he was denied a fair hearing when points he did not formulate at the outset were not considered at the close of evidence. However, his complaint was so wide reaching and unfocussed that he could make virtually any argument on the basis of it. Unless the tribunal imposed some sense of order, the respondents would have to take aim at an ever moving target. The hearing had to be fair to all parties.
[16] James also submits that the reviewing judge failed to recognize that there was evidence supporting the questioned grounds. He says that since a party should be able to advance any argument based on the evidence in the record, it was clearly wrong for the Vice-Chair to refuse to entertain these grounds.
[17] I think, with respect, that this argument fails to distinguish between evidence and issues. Issues determine relevancy and guide the parties in their preparation of the case and the calling of witnesses. Evidence could relate to a number of potential subjects, but it only has significance in relation to the subject matter of the dispute. If it were open to a party to argue anything to which the evidence might relate, his opponents would have to respond with evidence in answer to all possible issues arising. This would defeat the ends of the administrative process reflected in Rule 1(2) of the Labour Relations Board Rules:
The purpose of these Rules is to secure the just, speedy and inexpensive settlement and adjudication of every proceeding having regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to the proceeding.
[18] In my opinion, the Board had ample authority to impose reasonable limits on the scope of the hearing and did not fail to address "the real substance of the matters in dispute". It follows that I see no basis for interfering with the reviewing judge's decision and I would accordingly dismiss the appeal.
[19] FINCH, C.J.B.C.: I agree.
[20] CHIASSON, J.A.: I agree with the disposition of the appeal as proposed by Mr. Justice Donald, but wish to express a concern I have with respect to judicial review proceedings of decisions of the Labour Relations Board.
[21] The legislature has established a complete code to address matters of industrial relations in the Province. Part of that code is a mechanism for the resolution of disputes related, inter alia, to union representation of members. The mechanism includes determinations by the Board at first instance and a process for review by way of a reconsideration with leave of the Board.
[22] The reconsideration process is addressed in s. 141 of the Labour Relations Code, RSBC 1996, c. 244. It provides specific criteria for granting leave for a reconsideration and the remedies available to the Board if there were a reconsideration.
[23] In this case, the appellant sought judicial review of a second decision at first instance, which occurred as a result of the Board’s reconsideration of a first decision at first instance.
[24] The appellant applied unsuccessfully for leave for a reconsideration of the second decision.
[25] Although it appears to be the practice in these matters often to seek judicial review of a decision at first instance or of it and a refusal by the Board to grant leave to have the decision reconsidered, considering the scheme of the legislation and the specialized jurisdiction of the Board, I am inclined to the view that the decision that should be the subject of judicial review should be the refusal to grant leave for a reconsideration and not the decision at first instance.
[26] Recognizing that the Board has not delivered a separate factum in this appeal and adopts the position of the respondent Professional Employee’s Association, I do not think it appropriate to do more in this case than identify the issue.
[27] I add the following comments on the merits on the appeal.
[28] In this case, the Board on the first reconsideration directed the appellant’s complaint be, “remitted to a new panel for determination on the basis of the statement of facts agreed to by the parties before the original panel”.
[29] Counsel agree that there was no “statement of facts agreed to by the parties” and that the Board was referring to the Summary.
[30] Although there was a judicial review of the Board’s reconsideration decision, it did not address this aspect of the decision.
[31] I find it difficult to think that the second panel denied the appellant natural justice by following the direction given to it by a three-member panel of the Board as a result of the reconsideration process.
[32] For these reasons and for the reasons expressed by Mr. Justice Donald, I would dismiss this appeal.
[33] FINCH, C.J.B.C.: The appeal is dismissed.
“The Honourable Mr. Justice Donald”
“The Honourable Mr. Justice Chiasson”
