



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


Ancheta 
          v. Ready,







2006 
          BCCA 23



Date: 20060120





Docket: CA030769

Between:

Andres 
    Ancheta

Appellant

(
Petitioner
)

And

Vincent 
    L. Ready, Labour Arbitration and Mediation Services

Ltd., 
    College Printers Ltd., Graphic Arts International Union, and

British 
    Columbia Labour Relations Board

Respondents

(
Defendants
)












Before:


The 
          Honourable Chief Justice Finch




The 
          Honourable Madam Justice Newbury




The 
          Honourable Mr. Justice Hall








Mr. Ancheta, appearing on his own behalf







S.A. Dawson


Counsel for the Respondent,
College Printers Ltd.




P.D. McLean


Counsel for the Respondent,
Graphic Arts International Union




Place 
          and Date of Hearing:


Vancouver, British Columbia




16 December 2005




Place 
          and Date of Judgment:


Vancouver, British Columbia




20 January 2006








Written 
          Reasons by
:




The 
          Honourable Mr. Justice Hall




Concurred 
          in by:




The 
          Honourable Chief Justice Finch

The 
          Honourable Madam Justice Newbury





Reasons for Judgment of the Honourable Mr. Justice Hall:

[1]

This is an application by Mr. Ancheta to vary an order of Southin J.A.  
    On 23 September 2005, Southin J.A. ordered the appeal of the appellant 
    dismissed because of his failure to post security of $5,000 before 2 September 
    2005, as had been ordered by Ryan J.A. on 19 April 2005.

[2]

The factual background of this matter is that the applicant was employed 
    for about 19 years by the respondent, College Printers Ltd., between 
    1980 and the date of his dismissal by College Printers Ltd. effective 7 December 
    1999.  Up to the year 1998, he had a generally good work record, but beginning 
    in that year Mr. Ancheta seems to have run into increasing difficulty 
    with his fellow employees, his employer and the representatives of his union, 
    Graphic Arts International Union (the "Union").

[3]

In early 1998, he began to complain about a great many matters and 
    he filed a series of grievances which the Union declined to proceed with.  
    In a letter of 11 May 1998, the Union wrote to the grievor a letter which 
    included the following passage, I dont know if you are hell-bent on placing 
    your employment in jeopardy, whether you're receiving advice from someone 
    who only has part of the information, or someone who has no idea what they 
    are advising you about.  Later that year, Mr. Ancheta was involved in 
    an incident with a shop steward, as a result of which he commenced a civil 
    lawsuit against the shop steward.  Between 7 October 1998 and 31 January 
    1999, Mr. Ancheta was off work due to stress leave.  He returned to work 
    at College Printers Ltd. on 1 February 1999.

[4]

On 2 November 1999, there was a highly publicized incident in 
    Honolulu, Hawaii, where an individual who was employed with a company shot 
    and killed several employees of the company.  The following day, an employee 
    at a company in Seattle, Washington, was also involved in a workplace shooting.  
    On the evening of 3 November 1999, the applicant attended at College 
    Printers Ltd. and discussed newspaper articles concerning these incidents 
    with a number of co‑workers.  He apparently made suggestions to those 
    he spoke with that he might do something along these lines.  Needless to say, 
    this caused grave alarm to his employer and to his fellow employees.  He was 
    immediately suspended by his employer and on 10 December 1999, the employer 
    wrote to him as follows:

This letter will confirm that you are terminated effective 
    December 7, 1999.

On the evening of November 3, 1999, you made reference 
    to causing deadly violence to other employees and to yourself.

Out of our concern that your continued presence in the 
    workplace may have caused a risk to the safety and health of our employees 
    and possibly yourself, we suspended you with pay effective November 4, 
    1999.  We provided you with an opportunity to give us by December 6, 
    1999, a full and detailed written explanation of your conduct in the workplace 
    on November 3, 1999.  You declined the opportunity and instead the lawyers 
    for your Union responded and attached a medical report without any submission 
    that provided an excuse for your conduct.

We directed you to attend a psychiatric assessment and 
    you failed to attend.

You have provided us with no justification for your conduct 
    in the workplace on the evening of November 3, 1999.  The only medical 
    documentation that we have received suggests that you were not suffering from 
    any psychosis or medical health condition which would justify your totally 
    unacceptable conduct.  Your decision to not attend at the scheduled appointment 
    with the psychiatrist has only compounded matters.

Based on your recent conduct and our interview with you 
    on November 4, 1999, it is clear to us that you are a disgruntled and 
    frustrated man.  It is also clear to us that you chose a most alarming and 
    frightening way to express your frustration.  You threatened to kill your 
    co-workers and you have provided no justification for this extreme misconduct.  
    Given the gravity of your conduct we have no choice but to terminate your 
    employment for cause effective immediately.

[5]

The applicant grieved his dismissal and the Union represented him on 
    this grievance.  The grievance alleging unjust discharge came before an arbitrator, 
    Vincent L. Ready, and following a hearing that occurred between March 12 
    and 16, 2001, Mr. Ready, in a decision rendered on 4 October 2001, 
    dismissed the grievance.  The decision of Mr. Ready can be found at (2001), 
    101 L.A.C. (4th) 193.  Mr. Ready expressed his conclusion thus, at p. 217 
    of the report:

On the evidence, and in light of the seriousness of the 
    offence, I do not believe that the Employer and its employees should be required 
    to endure the return of even a 19‑year employee after the events of 
    November 3, 1999.  Put another way, it is my finding that the employment 
    relationship, which in this case would include the ability of the grievor 
    to work side-by-side with his co-workers who experienced the threatening comments 
    and testified as to their feelings about his return to College Printers, is 
    irreparably damaged and reinstatement would not be appropriate.

[6]

Following upon the dismissal of the grievance, there ensued what J.W. Williams J. 
    characterized as a "cascade of litigation":  see
Law Society 
    of British Columbia v. Dempsey
, [2005] B.C.J. No. 1985 at para. 51 
    (QL), 2005 BCSC 1277.  Mr. Ancheta, the applicant, applied to the Labour 
    Relations Board (the "Board") seeking to set aside the decision 
    of Mr. Ready on the ground of bias and he also filed a complaint against 
    the Union alleging that it had failed to properly represent him at the hearing.  
    The Board dismissed both the application and the complaint.

[7]

In October 2001, the applicant commenced an action in the Supreme Court 
    against a number of parties, including the present respondents and a number 
    of his former co-workers.  Most of these claims were dismissed by Sigurdson J. 
     see [2003] B.C.J. No. 112 (QL), 2003 BCSC 93.  An application to extend 
    the time to file an appeal from the order of Sigurdson J. was dismissed 
    by Newbury J.A. on 9 January 2004.

[8]

Meanwhile, in June 2002, the applicant had filed a petition in the 
    Supreme Court seeking judicial review of the dismissal of his grievance and 
    he sought an order for reinstatement of his employment.  Many of the same 
    defendants that were originally included in the action before Sigurdson J. 
    were included in this proceeding, as was the Board.  After a hearing, Lowry J., 
    (as he then was), dismissed the petition.  From this decision, Mr. Ancheta 
    brought the current appeal.

[9]

During the currency of this appeal, he applied to amend his notice 
    of appeal to expand the grounds of appeal.  This application was dismissed 
    by Low J.A. on 13 February 2004.  Low J.A. observed on that 
    occasion that the whole matter was being over litigated by the appellant at 
    substantial cost to various parties.  I understand that an application was 
    filed to vary that order of Low J.A., but nothing further has been done 
    about that.

[10]

A year ago, in January 2005, College Printers Ltd. and the Union, the 
    current respondents, brought on an application before the Court for security 
    for costs with respect to this appeal.  In her decision rendered in April 
    2005, found at [2005] B.C.J. No. 851 (QL), 2005 BCCA 232, Ryan J.A. 
    concluded that it was appropriate to order that the applicant should post 
    security for costs of the extant appeal in the sum of $5,000.  By her order 
    dated 19 April 2005, Ryan J.A. directed that the appellant had to 
    post this security before 2 September 2005.

[11]

The appellant did not post the security prior to 2 September 2005, 
    as required and on 23 September 2005, the respondent, College Printers 
    Ltd., supported by the respondent Union, made application to dismiss the appeal.  
    Southin J.A. ordered the appeal of the appellant dismissed with costs 
    payable to the respondents.  On 14 October 2005, the appellant filed 
    an application to vary this order of Southin J.A.

[12]

The test to be applied in a proceeding of this nature is that set forth 
    in the case of
Frew v. Roberts
(1990), 29 B.C.L.R. (3d) 34, 
    [1990] B.C.J. No. 2175 (B.C.C.A.) (QL), where it was said that this Court 
    should not interfere with a decision of a chambers judge unless satisfied 
    that the chambers judge was wrong in the legal sense and not merely that the 
    chambers judge exercised a discretion incorrectly.

[13]

In the more recent case of
Haldorson v. Coquitlam (City)
, 
    [2000] B.C.J. No. 2532 (QL), 2000 BCCA 672, Lambert J.A. said:

[7]        It comes to this:  that the review hearing is not 
    a hearing of the original application as if it were a new application brought 
    to a division of the court rather than to a chambers judge, but is instead 
    a review of what the chambers judge did against the test encompassed by asking:  was 
    the chambers judge wrong in law, or wrong in principle, or did the chambers 
    judge misconceive the facts.  If the chambers judge did not commit 
    any of those errors, then the division of the court in review should not change 
    the order of the chambers judge.

[14]

In my opinion, there is no error disclosed in the decision of Southin J.A. 
    to dismiss this appeal.  This application seeking to vary the order of Southin J.A. 
    is without merit and ought to be dismissed.  I would so order.



The 
    Honourable Mr. Justice Hall



I 
    Agree:



The 
    Honourable Chief Justice Finch



I 
    Agree:



The 
    Honourable Madam Justice Newbury




