



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Cole v. British Columbia Nurses Union,









2014 BCCA 2




Date: 20140107

Docket: CA040829

Between:

Neil Cole
(a.k.a. Norbert Nowik)

Respondent/
Appellant on Cross Appeal

(Petitioner)

And

British Columbia
Nurses Union

Appellant/
Respondent on Cross Appeal

(Respondent)

And

Vancouver Coastal
Health Authority and
Workers Compensation Appeal Tribunal

Respondents

(Respondents)




Before:



The Honourable Mr. Justice Donald

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry




On appeal from:  An
order of the Supreme Court of British Columbia,
dated March 26, 2013 (
Cole v. Workers Compensation Appeal Tribunal
,
Vancouver Docket S091513).




Counsel for the Appellant:



S. Anderson





Appearing on his own behalf:



N. Cole





Counsel for the Respondent,
Vancouver Coastal Health Authority:



M. N. Peirce





Counsel for the Respondent,
Workers Compensation Appeal Tribunal:



J. T. Lovell and M. Bennett





Place and Date of Hearing:



Vancouver,
  British Columbia
December 4, 2013





Place and Date of Judgment:



Vancouver, British
  Columbia

January 7, 2014









Written Reasons by:





The Honourable Mr. Justice Donald





Concurred in by:





The Honourable Madam Justice Newbury

The Honourable Mr. Justice Lowry
















Summary:

The chambers judge refused
to grant an order dismissing a petition for judicial review for want of
prosecution.  The decisive factor in her analysis was the petitioners
self-represented status.  Held: Appeal allowed.  It is right and just to
accommodate self-represented litigants in procedural and evidentiary matters.  However,
in this case the delay was not attributable to a misunderstanding of court
rules or a mere slip related to lack of legal counsel.  The delay was tactical
and strategic.  The judge was wrong to consider self-represented status as
determinative.  The petition for judicial review should be dismissed.







Reasons
for Judgment of the Honourable Mr. Justice Donald:

[1]

The motion of the British Columbia Nurses Union (the Union) to strike
out Mr. Coles judicial review petition for want of prosecution was
dismissed by the chambers judge for the sole reason that Mr. Cole was a
self-represented litigant.  The judge found the delay was inordinate,
deliberate and prejudicial, but nevertheless decided that on the balance of
justice criterion of the applicable test, Mr. Coles self-represented
status should permit him one more opportunity to proceed with his case.

[2]

The Union brings this appeal on the ground that since Mr. Coles
self-representation did not cause the delay, the judge acted on an irrelevant
factor in dismissing the motion.  I agree.  I would allow the appeal and grant
the motion to dismiss the petition.

Background

[3]

Mr. Cole, a registered nurse and member of the Union, came into
conflict with his supervisor at Vancouver General Hospital in and around 2003
and 2004.  In May 2004, the conflict escalated and Mr. Cole filed
grievances with the Union, alleging, amongst other things, that harassment by
his supervisor had created a toxic work environment.  He took a medical leave
from work and is now on long-term disability.

[4]

The Union pursued several grievances on behalf of Mr. Cole.  In
December 2004, after mediation and discussions between the parties, the
employer, Vancouver Coastal Health Authority, proposed a settlement agreement. 
A significant feature of the agreement was Mr. Coles transfer to a new worksite,
Lions Gate Hospital.  Mr. Cole informed the Union that he did not wish to
accept the proposal; nonetheless, the Union and employer settled as per the
proposed agreement.

[5]

Mr. Cole refused to report to Lions Gate Hospital.  His employer
and the Union informed him that if he did not, he could face termination.

[6]

Mr. Cole complained to WorkSafeBC, the agency that administers the
Workers
Compensation Act
, R.S.B.C. 1996, c. 492, that the actions of his
employer and his Union were discriminatory within the meaning of the
Act
. 
Mr. Cole argued that he could not return to work at Vancouver General
Hospital because it was psychologically unsafe and forcing him to change worksites
violated the
Act
s prohibition against discriminatory actions involving
a worker who reports unsafe working conditions.  Why, he reasoned, should he be
reassigned to a distant hospital just because he complained of harassment by
management?

[7]

The complaint was dismissed by a WorkSafeBC adjudicator on May 22,
2007 (Worker Complaint of Discriminatory Action Decision, Reference
2005-D-183). Mr. Cole then filed an appeal with the Workers Compensation
Appeal Tribunal (WCAT).  In an extensive and detailed decision dated December
19, 2008, the Vice Chair of WCAT dismissed the appeal (WCAT-2008-03834).

[8]

On February 27, 2009, Mr. Cole filed a petition for judicial review
of the WCAT decision.  There is a great deal of dispute concerning whether Mr. Cole
also filed an application for reconsideration with the tribunal and, if so,
whether it was in process when the application to dismiss his judicial review
was heard.

[9]

Mr. Cole asserts before this Court that he has now, as he did at the
time of the chambers hearing, an outstanding application for reconsideration
before WCAT and that the reconsideration holds in abeyance the judicial review
process.  The Union asserts that Mr. Cole had done nothing to advance the
reconsideration until the hearing here under appeal had begun.  The record is
confused about various aspects of the reconsideration application.  With
respect, WCATs position on the status of the reconsideration matter lacks
clarity.

[10]

Regardless, central to understanding the prolonged nature of this
dispute is Mr. Coles insistence that Vancouver Coastal Health Authority
and the Union have not disclosed documents necessary for him to make his case.  He
appears to take the view that he is entitled to the kind of document discovery
that pertains to civil actions in the Supreme Court, encompassing anything that
may
be relevant.  He has made this case before WorkSafeBC and WCAT.

[11]

Both tribunals have refused Mr. Coles document demands, insisting
that he demonstrate relevance before entertaining any request for production. 
This put Mr. Cole at a standoff with the tribunal: he insisted that he
could not say whether any particular document was relevant until he inspected
it; and the tribunals insisted on relevancy as a pre-condition for ordering
production.

[12]

Mr. Cole dealt with the WCAT ruling against his demand for
discovery of documents by applying to the Office of the Information and Privacy
Commissioner (OIPC) under the
Personal Information Protection Act
,
S.B.C. 2003, c. 63, for copies of his personal records kept by the Union
and Vancouver Coastal Health Authority.

[13]

The OIPC process, at least as it pertains to Vancouver Coastal Health
Authority, is yet to be completed.  It is the single most significant
contributor to the delay in proceeding with the judicial review.  Mr. Cole
has refused to advance the judicial review until he is satisfied he has the
documents he needs.

[14]

It is against years of delay that the Union wrote to Mr. Cole on
September 30, 2011, warning him that if he did not press on with the
reconsideration application or the judicial review within 10 days, it would
move to strike out the petition for judicial review.  The Union filed an
application to dismiss Mr. Coles judicial review for delay and want of
prosecution on January 12, 2012, amended May 9, 2012.  It is that
order that Mr. Cole appeals.

The Decision Under Appeal

[15]

The chambers judge correctly cited this Courts decision in
0690860
Manitoba Ltd. v. Country West Construction Ltd.
, 2009 BCCA 535, as setting
out the test for determining whether to dismiss an action for want of
prosecution.  She described the factors in this way:

[5]         The court must weigh the following four factors
in a want of prosecution application: (1) the length of the delay and whether
it was inordinate; (2) any reasons for the delay; (3) whether the delay has
caused serious prejudice to the defendant in presenting a defence, and if there
is such prejudice, whether it creates a substantial risk that a fair trial is
not possible; and (4) whether, on balance, justice requires dismissal of the
action.

[6]        In
0690860 Manitoba
,
the Court of Appeal held that the final factor was the most important and
decisive question of all (para. 29).

[16]

The judges analysis of the four factors is brief.  In pertinent part,
the reasons say:

Disposition

Length
of the Delay and Whether it was Inordinate

[7]        I find the delay has been both lengthy and
inordinate. Mr. Cole commenced his application for judicial review in
February 27, 2009. Yet, this proceeding arises from events that transpired in
his workplace in 2004. Administrative proceedings in the labour relations
context must be dealt with expeditiously, which Mr. Cole has failed to do.
As support for this proposition, I note that s. 57(1) of the
Administrative
Tribunals Act
, S.B.C. 2004, c. 45 [
Act
] provides that unless
this
Act
or the tribunals enabling legislation provides otherwise, an
application for judicial review of a final decision of a tribunal must be
commenced within 60 days of the date the decision is issued. To date, Mr. Cole
has not proceeded with this judicial review. This is not expeditious conduct.

Reasons
for the Delay

[8]        Mr. Coles delay was strategic and tactical.
It was a means of forcing an order for production of documents, which has
already been denied by WCAT. I note that his application for reconsideration of
that decision was considered withdrawn by WCAT.

Prejudice
to BCNU

[9]        The delay in this proceeding has given rise to
some prejudice toward the applicant. While I am not satisfied this prejudice is
irreparable, I am certain that the delay will impose additional costs upon the
applicant to have its now retired Executive Director return to Vancouver to
provide evidence.

[10]      Of greater significance, the delay is prejudicial
to the applicant by virtue of the impact the passage of time will have upon the
reliability of the evidence. While the respondents in the petition are large
organizations that have the capacity to preserve records, the individuals that
may be called upon to give evidence may find it difficult to recall events that
are important for the determination of the matter.

Balance
of Justice

[11]      All the same, the final factor, on balance of
justice, militates against dismissing the petition for want of prosecution. I
find that for much of the duration of Mr. Coles case, he has acted on his
own behalf. Dismissing his case for want of prosecution would indeed be a
draconian remedy in view of his
self-represented status
.

* * *

[18]      I expect Mr. Cole
will consider his position extremely carefully, because I have come within a
hairs breadth of dismissing his case for want of prosecution. The submissions
of the applicant were compelling, and it is really only
his status
as an
unrepresented litigant that has led me to give him this final opportunity. He
shall move to set down the date for trial immediately.

[Emphasis
added.]

Issue

[17]

The Union alleges three errors:

[i.]        The Chambers Judge erred in the exercise of her
discretion by a) making an error wrong in principle; and b) taking
into account an irrelevant consideration, namely Coles status as a
self-represented litigant.

[ii.]       Further, the Chambers Judge erred in the exercise
of her discretion by according Coles status as a self-represented litigant as
the most important and decisive factor, thereby trumping all relevant
considerations.

[iii.]       The Chambers Judge
must exercise her discretion in accordance with the applicable legal principles
that govern the exercise of judicial discretion.

Discussion

Standard of Review

[18]

The Union acknowledges this is a discretionary decision entitled to a
high degree of deference.  It is well settled that this Court may interfere
with a discretionary decision where the judge failed to give weight to all
relevant considerations or committed an error of principle:
Reza v. Canada
,
[1994] 2 S.C.R. 394 at 404;
Friends of the Oldman River Society v. Canada
(Minister of Transport)
, [1992] 1 S.C.R. 3 at 76-77; and
Harelkin v.
University of Regina
, [1979] 2 S.C.R. 561 at 587-88.

[19]

Here, the Union says that the judge gave weight to an irrelevant factor,
Mr. Coles self-representation, or erred in principle in giving it
dispositive effect when it had no bearing on the substantive factors of delay,
excuse and prejudice.

Cross Appeal

[20]

Mr. Cole has filed a cross appeal with the intention of questioning
the judges findings on the factors of excuse and prejudice.  He did not need
to file a cross appeal to do this; he is entitled to support the dismissal
decision on any ground in the record.  A cross appeal is only required if the
respondent requests a different order, which Mr. Cole does not.

[21]

It is convenient to deal with the arguments for the appeal and cross
appeal together.

Delay

[22]

There is no dispute Mr. Coles delay in prosecuting the judicial
review has been inordinate.  The question is whether he has a reasonable
excuse.  Mr. Cole argues that the clock stopped on the judicial review
while the WCAT reconsideration application was pending and because he must
first exhaust his internal remedies; and, secondly, his case was tied up with
the OIPC which has been slow in dealing with his document requests.  Mr. Cole
submits that in light of this, the judge was wrong to blame him for the delay
and wrong to label the delay as strategic or tactical.

[23]

The record does not support the first contention.  When the hearing of
the motion began, Mr. Coles only activity in the reconsideration process had
been quarrelling with the WCAT over document discovery and disputing the fact
that he had actually made an application for reconsideration.  The Union gave
him fair notice to deal with reconsideration, if that was his intention, and he
did nothing about it.

[24]

The second point must also fail.  The Union submits that the OIPC
application is an abuse of process as it amounts to a collateral attack on the
WCATs decision refusing him document discovery.  Since that was one of the
decisions sought to be reviewed in the petition and could be reconsidered by
the WCAT itself, the Union says that Mr. Cole cannot excuse his inaction
because of the slow pace of the OIPC process.  I prefer not to offer an opinion
about abuse of process but I consider the point well taken that Mr. Cole
should have proceeded expeditiously in the forum he chose rather than to pursue
new proceedings elsewhere.

[25]

In my opinion, the judge reasonably concluded that Mr. Coles delay
was strategic and tactical  in other words, intentional, calculated and not
inadvertent or as a result of unsophistication in legal matters.  Before the
chambers judge, Mr. Cole did not seek to justify his delay by reason of
self-representation as a lay person.  His lack of legal sophistication is not
in issue.  WCATs assessment of his capacity was as follows:

[8]        In this case I have decided not
to grant the workers request for an oral hearing. The worker is unrepresented,
but is highly intelligent and articulate  his extensive written submissions
reflect those qualities. The employer and union are each represented by
lawyers; written submissions provided in these proceedings by the lawyers on
their clients behalf are equally thorough. I have found that the read and
review process of exchanging written submissions did not prejudice any of the
parties in this case in their ability to present their respective cases.

Prejudice

[26]

Mr. Cole submits that the test to dismiss an action for want of
prosecution requires serious prejudice and the judge found only some
prejudice, not irreparable.  He argues that fading memories are not an adequate
basis for dismissal, especially since, to this point, the case has been dealt
with in writing rather than by oral hearings.

[27]

My reading of the judges reasons indicates that she found sufficient
prejudice to support the motion, hence her concluding words that she found
[t]he submissions of the applicant were compelling and only Mr. Coles
status led to the dismissal of the motion.

[28]

As the Union argues, the labour relations context informs the evaluation
of prejudice.  Problems in that field get much worse with delay, to everyones
detriment.  The words of Cory J. in
Dayco (Canada) Ltd. v. CAW-Canada
,
[1993] 2 S.C.R. 230 at 306-07 are apposite:

Unresolved disputes
fester and spread the infection of discontent.  They cry out for resolution. 
Disputes in the field of labour relations are particularly sensitive.  Work is
an essential ingredient in the lives of most Canadians.  Labour disputes deal with
a wide variety of work related problems.  They pertain to wages and benefits,
to working conditions, hours of work, overtime, job classification and
seniority.  Many of the issues are emotional and volatile.  If these disputes
are not resolved quickly and finally they can lead to frustration, hostility
and violence.  Both the members of the work force and management have every
right to expect that their differences will be, as they should, settled
expeditiously.  Further, the provision of goods and services in our complex
society can be seriously disrupted by long running labour disputes and
strikes.  Thus society as a whole, as well as the parties, has an interest in
their prompt resolution.

[29]

This passage was cited by the Ontario Divisional Court which dismissed
an application for judicial review of an Ontario Labour Relations Board
decision after a two-year delay:
International Union of Bricklayers and
Allied Craftworkers v. Ontario Provincial Conference of the International Union
of Bricklayers and Allied Craftworkers
(2000), 132 O.A.C. 87 at paras. 16
and 18.

[30]

I am persuaded the judge found that the Union satisfied the test of
prejudice and did not err in doing so.

Balance of Justice

[31]

In my opinion, the imperative of expedition in labour disputes bears on
both the last and general factor, the balance of justice, and prejudice.  Delay
can disturb the balance and impede a satisfactory outcome for all concerned. 
The parties need to know, within a reasonable time, where they stand on the
dispute so they can get on with their affairs.  The judge recognized this
element at para. 7 of her reasons.

[32]

In his cross appeal, Mr. Cole submits that two other features of
the case should be considered under balance of justice:  the importance of the
case to workers generally and an allegation that the Union seeks a
discretionary remedy without clean hands.

[33]

In brief, the first point is related to the argument Mr. Cole
proposes to make on judicial review.  He intends to argue that WorkSafeBC and
WCAT imported a fault element into the
Acts
discrimination provision,
that is, an intention to discriminate, whereas he says that analysis leaves out
injurious effect discrimination, which is open to him in the present case. 
Without delving into statutory interpretation at this stage, wherever he is
importing human rights theory into workers safety legislation I can only say
that the point is of doubtful merit and I fail to see how his complex set of
facts is likely to have any general impact on the workforce at large.

[34]

The second point accuses the Union and employer of wrongfully
withholding documents and hence having unclean hands.  As such, they are, Mr. Cole
submits, not entitled to the favourable exercise of the Courts discretion in
dismissing the petition.  In my view, this cannot be entertained as it is
unsupported by any determination by the WorkSafeBC adjudicator or WCAT, having
exclusive jurisdiction in the matter, that either the Union or employer
defaulted in producing relevant documents.

[35]

Finally, I turn to the self-representation issue.  As I earlier stated,
I think the judge erred in dismissing the motion on the ground of Mr. Coles
status in the absence of any nexus between his status and the delay.

[36]

It is right and just to accommodate self-represented litigants on
procedural matters, recognizing their relative disadvantage in an unfamiliar
setting.  In 2006, the Canadian Judicial Council adopted a Statement of
Principles on Self-represented Litigants and Accused Persons.  It contains
advice to participants in the justice system, including this admonition to the
judiciary:  Judges should ensure that procedural and evidentiary rules are not
used to unjustly hinder the legal interests of self-represented persons (at 7).

[37]

The Statement also includes the following commentary under the heading
Promoting Equal Justice (at 5):

2.         Judges
must exercise diligence in ensuring that the law is applied in an even-handed
way to all, regardless of representation. The Councils statement of
Ethical
Principles for Judges
(1998) has already established the principle of
equality in principles governing judicial conduct. That document states that,
Judges should conduct themselves and proceedings before them so as to ensure
equality according to law.

* * *

4.         Self-represented persons, like
all other litigants, are subject to the provisions whereby courts maintain
control of their proceedings and procedures. In the same manner as with other
litigants, self-represented persons may be treated as vexatious or abusive
litigants where the administration of justice requires it. The ability of
judges to promote access may be affected by the actions of self-represented
litigants themselves.

[38]

The delay in the present case is not a mere slip or misunderstanding of
time requirements brought about by Mr. Coles unfamiliarity with court
practice.  Courts routinely extend some latitude to self-represented litigants
on time limits, as they should, while trying to maintain a balance of interests
and an orderly process.  The test for dismissal for want of prosecution
requires
inordinate
delay.  Even making a generous allowance for Mr. Cole
as a layperson, the Court must take into account the delay he created by his
stubborn preoccupation with document discovery, which was inordinate, as the
judge found.  The Union gave Mr. Cole full notice of its intention to move
to strike out his petition if he did nothing.  His decision to do nothing is
not related to being self-represented.  It was, in my respectful opinion, wrong
for the judge to use his bare status as a basis for dismissing the Unions
motion.

[39]

I would allow the appeal and dismiss the petition.

The Honourable Mr. Justice Donald

I agree:

The
Honourable Madam Justice Newbury

I agree:

The
Honourable Mr. Justice Lowry


