



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Stark v. Board of School Trustees of School District
  No. 39 (Vancouver),









2012 BCCA 41




Date: 20120127

Docket: CA033181

Between:

Robert Allen Stark

Appellant

(Petitioner)

And

Board of School
Trustees of the School District No. 39
Vancouver, International Union of Operating Engineers Local 963
and James E. Dorsey, Q.C.

Respondents

(Defendants)




Before:



The Honourable Mr. Justice Chiasson





(In Chambers)




On appeal from: 
Supreme Court of British Columbia, June 23, 2005
(
Stark v. Board of School Trustees of School District No. 39 (Vancouver)
,
2005 BCSC 931, Vancouver No. L033177)




Appellant:



In person





Counsel for the Respondent,
School Board:



R.P. Fairweather





Place and Date of Hearing:



Vancouver, British Columbia

January 13, 2012





Place and Date of Judgment:



Vancouver, British Columbia

January 27, 2012








Reasons for Judgment of the
Honourable

Mr. Justice Chiasson
:

Introduction

[1]

This appeal illustrates the tension that often develops between the role
of this Court and the focus of self-represented litigants on establishing a
position that has been advanced and rejected in proceedings previous to an
appeal.  Where it is feasible to do so, it is incumbent on this Court to
communicate to litigants in practical terms why decisions adverse to their
interests were made.  It is necessary for self-represented litigants to
understand and appreciate not only the role of this Court, but the processes
available to address their interests.

[2]

Mr. Starks employment with the Vancouver School Board was terminated on
 July 19, 2002.  He considered and still considers the termination to have been
improper.  He states that his quest has been and remains to have a fair hearing
of his position.

Background

[3]

On August 31, 2002, an arbitrator appointed pursuant to the provisions
of the collective agreement that governed Mr. Starks relationship with his
employer upheld his dismissal.  In February 2003, Mr. Stark sought a review by
the Labour Relations Board of the arbitrators award under s. 99 of the
Labour
Relations Code
, R.S.B.C. 1996, c. 244.  The Board dismissed Mr. Starks
application and upheld his dismissal.  Pursuant to s. 141 of the
Code
,
in April 2003 Mr. Stark sought leave for a reconsideration of the Boards
decision.  Leave was refused.

[4]

Mr. Stark then brought judicial review proceedings in which he sought
various forms of relief.  Madam Justice Ballance described the situation at
para. 32 of her reasons dismissing the judicial review (
Stark v. Board of
School Trustees of School District No. 39 (Vancouver) et al.
, 2005 BCSC
931):

In his Petition Mr. Stark asks
that the Settlement Agreement, the June Award and the August Award be set aside
and that the matter of his dismissal be referred back to the tribunal pursuant
to the
Judicial Review Procedure Act
, R.S.B.C. 1996, c. 241. He does not
explicitly seek relief in relation to the three decisions of the Labour Board,
however he criticizes them in the body of his Petition and throughout his
written submissions. Recognizing that the Petition and accompanying written
materials were drawn by a layperson, I think it reasonable to interpret the
Petition as seeking review of the decisions of the Labour Board. Indeed, in
their respective submissions, the Union, School Board and Labour Board
proceeded on that footing as did Mr. Stark in his submissions. Accordingly, I
consider the prudent course is to approach the Petition on the basis that it
seeks judicial review of the Settlement Agreement, the two arbitration awards
as well as the three decisions of the Labour Board.

Justice Ballance dismissed the judicial review of the Boards decisions
on the basis they were not patently unreasonable.

[5]

Mr. Starks appeal to this Court raised two issues: first, whether the
Supreme Court has the jurisdiction on judicial review to quash the award of an
arbitrator appointed pursuant to the terms of a collective agreement; second,
whether Ballance J. was correct in holding that the decisions of the Board were
not patently unreasonable.

[6]

The judgment of this Court was short and dealt mainly with the
jurisdictional issue.  Justice Ballance had considered the arbitration award
and found it acceptable.  This Court held that there is no judicial review of a
labour arbitrators award concurrent with Board review under s. 99 of the
Code
. 
It also upheld the judges determination that the Boards decisions were not
patently unreasonable, stating that she was correct in reaching that
conclusion.  Mr Starks appeal was dismissed (
Stark v. Vancouver School
District No. 39
, 2006 BCCA 124).

[7]

Mr. Stark did not apply for leave to appeal to the Supreme Court of
Canada from the dismissal of this appeal.  It was and remains his view that
redress lies with this Court.

[8]

On October 27, 2011, Mr. Stark attempted to file a notice of motion, the
operative portion of which I reproduce:

1.         That
the Court of Appeal review the award of James E. Dorsey made the 31st of August, 2002, for errors of general law not included in section 99(1) of the Labour
Relations Code.

2.         That
the Appellant's Factum filed herein on November 18, 2005, be considered as the statement of arguments on the application.

3.         That
the Respondent be granted 30 days to file a factum or argument in reply.

4.         That
the Appellant be granted 15 days to file any rebuttal argument.

The
Appellant will rely upon the following rules or enactments:

1.         The
Labour Relations Code, 1996, RSBC, c. 244, section, 100.

2.         The
Law and Equity Act, 1996 RSBC, c. 253, sections, 4, 9, 10, 24, and 44.

3.         Court of
Appeal Civil Rules, rule 33(1).

The Registry refused to accept the application.

[9]

There followed a series of correspondences between Mr. Stark and
representatives of this Court which culminated in the application before me. 
The substance of the application is set out in a notice of motion filed December 20, 2011, which states in operative part:

1.         That
under section 10 (2) (d) of the Act, the presiding justice extend any time
constraints that are applicable and provided for in the Court of Appeal rules
for the filing and service of this Notice of Motion and supporting affidavit so
as to permit the application herein to proceed and be heard in its merits.

2.         That
a justice of the Court of Appeal review the order or direction of the registrar
of the Court

of Appeal set out in the Registrar's letter of December 13,
2011, and, after reviewing said order, vary the order or direction by directing
that the Registrar direct the court registry staff to accept for filing the
Notice of Motion of the Appellant and his supporting affidavit
,
copies
of which as appended to the

affidavit of the Appellant sworn December
20, 2011, and filed herein and that the registrar set down a convenient date
for the hearing of the Appellant's application before a justice.

The
Applicants will rely upon the following rules or enactments:

1.         Court
of Appeal Civil Rules 35 (and 52 if necessary).

2.         Court
of Appeal Act section 10 (3).

3.         The
Law and Equity Act, 1996 RSBC, c. 253, sections, 4, 9, 10, 24, and 44.

4.         Court
of Appeal Civil Rules, rule 33(1).

5.         The Labour
Relations Code, 1996, RSBC, c. 244, section, 100.

[10]

The December 13, 2011 letter of the Registrar of this Court stated:

I am in receipt of your letters of November 1, 2011 and December 7, 2011.

With respect to both of these letters, there
is nothing further to add to the comments you have already received from the
Court of Appeal staff.

As discussed in the letter from Timothy
Outerbridge on 15 September 2011, the above appeal has been heard by a division
of the Court and an order has been issued. This matter is concluded in the
Court of Appeal. If you seek further remedies, I suggest that you contact a
lawyer for further advice. The registry staff is not in a position to offer you
legal advice. They are also not permitted to accept material that is not
properly before the Court.

A lawyer may
advise you as to the merits and methods of any further litigation.   If you
cannot afford a lawyer at this stage, then you may seek assistance from
agencies such as the Access Pro Bono Society of British Columbia or the
Canadian Bar Association, B.C. Branch, who can help you find a lawyer who might
assist you for a reduced or no fee. You may call Access Pro Bono at
604-878-7400 or the Canadian Bar Association at 604-687-3221.

Discussion

[11]

This application raises a number of issues, some legal and some
practical.  I begin by addressing Mr. Starks understanding of what this Court
said on his appeal.

[12]

In the hearing before me on January 13, 2012, Mr. Stark pointed to comments of Madam Justice Southin at para. 10 of her reasons for judgment, which
he quotes as stating, the result is that the record for this court is
deficient and a deficient record is not a sound basis for this court to
consider issues of law.  He asserts that these comments show that through no
fault of his own, he was denied his day in court.  This assertion is based on a
misunderstanding of what this Court said.

[13]

I quote paras. 9 and 10 of Southin J.A.s reasons:

With respect, the learned judge should have put it to the
petitioner below that if he wanted to seek Judicial Review of the decisions of
the Labour Relations Board, he must first seek an amendment to his petition and
should have refused to address the Labour Relations Board decisions unless and
until the petition was amended.

Her approach was kindly meant,
but the result is that the record for this Court is deficient. A deficient
record is not a sound basis for this Court to consider issues of law.

[14]

Placed in context, the comments of Southin J.A. were directed at the
inclusion of the decisions of the Board in the judicial review proceedings
before Ballance J.  Justice Southin considered the review procedure to have
been flawed, but went on to state at para. 11 that, [f]ortunately, this case
is so simple that we are able to do so, that is, able to consider the necessary
issues.  This Court did go on to consider the judicial review of the Boards
decisions and upheld the decision of Ballance J.  The observations of Southin
J.A. at para. 10 did not in any way deprive Mr. Stark of any aspect of his appeal
hearing.

[15]

The jurisdictional aspect of this Courts decision helps put Mr. Starks
concerns into legal context.  There are two streams for the review of labour
arbitration awards, set out respectively in ss. 99 and 100 of the
Code
.

[16]

The former section provides for the process that was followed in this
case.  It allows the review of arbitral awards by the Board, with potential
judicial review by the Supreme Court of the Boards final decision (
Northstar
Lumber v. United Steelworkers of America, Local No. 1-424,
2009 BCCA 173,
308 D.L.R. (4th) 22;
United Steelworkers, Paper and Forestry, Rubber,
Manufacturing, Energy Allied Industrial and Service Workers International
Union, Local 2009 v. Auyeung
, 2011 BCCA 527).  Section 100 provides for
review by this Court if the basis of the decision or award is a matter or
issue of the general law not included in s. 99 (1).

[17]

In this case, Mr. Stark followed the process made available to him under
s. 99.  His position has been considered by an arbitrator, twice by the
Board, by the Supreme Court and by this Court.  By the scheme of the
legislation and the mandate of the courts, the scope of review narrows as the
process progresses.  This is because the Legislature has established the Board
as a specialized tribunal and the legislation recognizes the specialized nature
of labour arbitration.  That being said, Mr. Starks position has been
considered to the full extent of the law in the process he followed.

[18]

That process ended when this Court gave its judgment, which was entered
on May 23, 2006.  The Registrars December 13, 2011 letter accurately describes Mr. Starks position and options.

[19]

In his letter to the Registrar and in his notices of motion, Mr. Stark
refers to s. 100 of the
Code
.  He asks that I direct the Registry
to accept for filing his October 27, 2011 notice of motion which seeks a s. 100
review in the appeal proceedings that were brought to an end in 2006.  In my
view, it is not possible for me to do so.  That appeal is over.  This Courts
jurisdiction on that appeal is spent.

[20]

There is no proceeding in this Court in which Mr. Stark may pursue
relief pursuant to s. 100 of the
Code
.  He is, of course, long out of
time for the initiation of such proceedings.  In addition, Mr. Stark asks that
his factum on the 2006 appeal be used to support his application to review the
arbitral award for errors of general law.  I have looked at that factum and
question whether it identifies any errors of general law.

[21]

It is my hope that with a better understanding of the process that was
available to and followed by Mr. Stark and with a more clear appreciation of
what this Court did and did not decide on his appeal, Mr. Stark will put this
unfortunate situation behind him and move forward with his life.

[22]

Mr. Starks application to file his October 27, 2011 notice of motion is dismissed.

The
Honourable Mr. Justice Chiasson


