



COURT 
    OF APPEAL FOR BRITISH COLUMBIA




Citation:


James 
          v. British Columbia (Labour Relations Board),







2007 
          BCCA 30



Date: 20070110





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 Boards 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 Boards 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 Employees 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 appellants 
    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 Boards 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


