



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



Zakreski v. British Columbia Public School Employers
  Association,









2018 BCCA 43




Date: 20180126

Docket: CA44545

Between:

Donna Zakreski

Appellant

(Petitioner)

And

British Columbia
Public School Employers Association,
The Board of School Trustees of School District No. 68 (Nanaimo),

British Columbia
Labour Relations Board

Respondents

(Respondents)

Correction:
The front cover was corrected on March 19, 2018.




Before:



The Honourable Mr. Justice Harris

The Honourable Madam Justice Stromberg-Stein

The Honourable Mr. Justice Willcock




On appeal from: An order
of the Supreme Court of British Columbia, dated
June 8, 2017 (
Zakreski v. British Columbia Public School Employers
Association
,
2017 BCSC 1038, Vancouver Registry S153161).

Oral Reasons for Judgment




K. Zakreski appearing as agent for the appellant D.
  Zakreski






Counsel for the Respondents BC Public School Employers
  Association & The Board of School Trustees of School District No. 68
  (Nanaimo):



P.A. Csiszar





Counsel for the Respondent BC Labour Relations Board:



J. ORourke





Place and Date of Hearing:



Vancouver, British
  Columbia

January 23, 2018





Place and Date of Judgment:



Vancouver, British
  Columbia

January 26, 2018




Summary:

This is an appeal of an order
dismissing a petition for judicial review because it is plain and obvious the
petition is bound to fail. Held: Appeal dismissed. The judge did not err in his
analysis that the petition is bound to fail because, for the most part and in
substance, it attempted to review decisions falling within the exclusive
jurisdiction of the Labour Relations Board. To the extent the petition impugned
decisions subject to judicial review, it is plain and obvious that the relevant
decisions were not patently unreasonable. Applications to admit new evidence
were also dismissed.

[1]

HARRIS J.A.
: This is an appeal of an order dismissing a petition
for judicial review, pursuant to Rule 9‑5(1) (
Supreme Court Civil
Rules
), on the basis that it is plain and obvious that the petition is
bound to fail.

[2]

The context of this appeal can be summarized briefly.

[3]

The appellant was a schoolteacher. Her employer terminated her
employment for cause alleging misconduct and dishonesty relating to her claims
for sick leave.

[4]

The appellant was a member of a union. The union grieved the decision to
terminate her employment. Further to the collective agreement, the grievance
was referred to arbitration. After a 10‑day arbitration, the arbitrator
denied the grievance, concluding that the employer had just cause for
discipline and termination. The arbitrator applied the settled
Wm. Scott
(Wm. Scott & Co. (Re)
, [1976] B.C.L.R.B.D. No. 98) test
in reaching her conclusion. The basis of the arbitrators decision is rooted in
findings of credibility adverse to the appellant.

[5]

The union applied to the B.C. Labour Relations Board (the Board) for a
review of the arbitrators decision. Such a review is provided for by s. 99(1)
of the
Labour Relations Code
, R.S.B.C. 1996, c. 244 [
Code
],
which stipulates the grounds on which the Board may set aside the award or
provide other relief. That section reads:

99 (1) On application by a party affected by the decision or
award of an arbitration board, the board may set aside the award, remit the matters
referred to it back to the arbitration board, stay the proceedings before the
arbitration board or substitute the decision or award of the board for the
decision or award of the arbitration board, on the ground that

(a) a party to the arbitration has
been or is likely to be denied a fair hearing,

or

(b) the decision or award of the arbitration board is
inconsistent with the principles express or implied in this Code or another Act
dealing with labour relations.

[6]

The grounds on which an arbitration decision may be reviewed by the
Board are circumscribed by the section.

[7]

The application for review alleged that the decision denied a fair
hearing to a party and that the decision was inconsistent with the principles
expressed in the
Code
. In support of these arguments, the union
contended that the arbitrator made determinations of the appellants medical
condition appropriately made by a medical professional, the decision was
inconsistent with the
Human Rights Code
, R.S.B.C. 1996, c. 210, the
arbitrator improperly relied on a perceived difference between medical
accommodation and sick leave to the appellants detriment, and she confused two
separate questions, namely, whether the appellant was entitled to medical leave
and whether the appellant was deliberately dishonest. For the most part, the
issues now raised on judicial review were not advanced before the Board on
review.

[8]

The Board dismissed the application for review on December 11,
2014. It concluded that the arbitrators decision was not inconsistent with
express or implied principles in the
Code
including human rights
principles, there was no denial of a fair hearing, nor any palpable and
overriding error in the arbitrators findings of fact. The Board recognized the
extent to which the arbitration decision turned on a credibility assessment
underlying a finding of dishonesty.

[9]

At this point, the union ceased to be involved in the appellants case.
Acting on her own behalf, though now claiming to be an agent of the union, the
appellant applied for leave to apply for a reconsideration of the Boards
review decision as permitted by s. 141(1) of the
Code
. It is
important to note that the application is for leave to reconsider the Boards
review decision. It is not directly an application for a second review of the
arbitration decision. Again, the section circumscribes the grounds on which a
party affected by a decision may apply for leave. It provides:

141 (1) On application by any party affected by a decision of
the board, the board may grant leave to that party to apply for reconsideration
of the decision.

(2) Leave to apply for reconsideration of a decision of the
board may be granted if the party applying for leave satisfies the board that

(a) evidence not available at the
time of the original decision has become available, or

(b) the decision of the board is
inconsistent with the principles expressed or implied in this Code or in any
other Act dealing with labour relations.

(3) Leave to apply for reconsideration of a decision of the
board under this section may be granted only once in respect of that decision.

(4) Subsection (1) does not apply to a decision of the board
to grant or deny leave under subsection (2) or to a decision made by the board
on reconsideration.

(5) An application under
subsection (1) must be made within 15 days of the publication of the reasons
for the decision that is the subject of the application.

[10]

It
is of some moment to note that subsequent to her application, but out of time,
the appellant filed further submissions. The Board, for reasons I will come to,
dismissed the appellants application for leave for a reconsideration on
January 30, 2015. I will refer to this decision as the reconsideration
decision. Subsequently, on February 10, 2015, the appellant filed a
second application with the Board for leave to apply for reconsideration under
s. 141. That application was dismissed on February 19, 2015, on the
basis that the statute provided for only one application for leave for
reconsideration. I will refer to this decision as the final decision.

[11]

On April 20, 2015, the appellant filed a petition seeking judicial
review of the arbitrators decision, the review decision, the reconsideration
decision and the final decision. The petition was amended on September 13,
2016. The orders sought on judicial review are:

a. an order declaring that BCLRB erred in law or exceeded its
jurisdiction by making patently unreasonable decisions, or both, in making the
Review Decision, Reconsideration Decision and Final Decision;

b. an order that the Boards Decisions (i.e., the
Review Decision, Reconsideration Decision and Final Decision) be set aside and
quashed;

c. an order that the Arbitrators Decision be set aside and
quashed, or alternatively, remitting the Unions s. 99 application to the
original panel that made the Review Decision for reconsideration with
directions; and

d. an order granting the
appellant permission to enter and recover all personal property remaining at
her former employers offices.

[12]

The
grounds alleged to support the petition are:

1)         The Board erred in law or exceeded its
jurisdiction by making patently unreasonable decision, or both, when it:

a.   upheld the
Korbin award as consistent with the principles expressed or implied in the
Labour
Relations Code
;

b.   denied an
agent to the grievance to proceed with a grievance under the
Code
;

c.   erred in
recognizing confirmation bias in the
William Scott & Co.
test;

d.   determined
that arbitrators and the Board are competent medical diagnosticians; and

e.   did not recognize
FOIPPA
as
a statute dealing with labour law.

[13]

The
petition was filed outside the 60‑day statutory limitation period to seek
judicial review of the reconsideration decision, but within the limitation
period to apply for judicial review of the final decision. In striking the
petition as disclosing no reasonable claim for judicial review, the judge
elected not to rely on the effluxion of the limitation period as a basis to
dismiss the petition, even though on the record that would have provided a
proper basis to dismiss the petition insofar as it related to the
reconsideration decision. Rather, he chose to strike the petition on what he
characterized as substantive grounds. I will proceed on the same basis.

[14]

The
judge recognized that only the reconsideration decision and final decision were
subject to judicial review. The Court had no jurisdiction directly to review
the arbitration decision or the review decision since these matters by
legislation fall within the exclusive jurisdiction of the Board. He identified
the applicable standard of review as patent unreasonableness, not as the
appellant argued before us, correctness. He then identified the test to apply
on the application; namely, whether it is plain and obvious, assuming the facts
alleged in the petition to be true, that the petition is bound to fail.

[15]

On
the appeal of the order of the chambers judge, our first task is to determine
whether the reviewing judge had chosen the correct standard of review. No
deference is owed to the reviewing judge in relation to whether he selected the
appropriate standard of review nor on the question of the test to be applied on
the application before him. The judge answered each of these questions
correctly (
B.C. Ferry and Marine Workers Union v. B.C. Ferry Services Inc.
,
2012 BCSC 663, affirmed 2013 BCCA 497;
Stark
v. Vancouver School District No. 39
, 2006 BCCA 124
at paras. 4, 6, 7;
Canada
(Attorney General) v. Public Service Alliance of Canada
, [1991] 1 S.C.R.
614;
Gorenshtein v. British Columbia (Employment Standards Tribunal)
,
2016 BCCA 457 at paras. 24‑26;
Hunt v. Carey Canada Inc.
,
[1990] 2 S.C.R. 959;
R. v. Imperial Tobacco Canada Ltd.
, 2011
SCC 42).

[16]

The
next question is whether the judge applied the standard of review correctly,
and correctly answered the question whether it is plain and obvious the
petition for judicial review is bound to fail. In my opinion, he did.

[17]

The
judge concluded that the petition is bound to fail because the arguments
advanced were, for the most part, properly understood to be in substance an
attack on the arbitration or review decisions, not on those decisions the court
has a jurisdiction to review. Those arguments in a variety of ways all call
into question the fairness of the arbitration decision or the review decision.
That is true in respect of the suggestion that the test applied by the
arbitrator is inherently contaminated by confirmation bias, that privacy
principles were not properly recognized in the arbitration, that there was no
evidence in support of the arbitrators findings in relation to malingering,
and that the appellant could resile from an agreement made by the union and the
employer to call one witness to give medical evidence. I see no error in the
judges conclusion and share the view that the petition seeks to impugn the
arbitration and review decisions, both of which fall within the exclusive
jurisdiction of the Board. As a result, the judge correctly concluded that it is
plain and obvious the petition is bound to fail to the extent in substance it
sought to impugn those decisions and, in effect, to attempt to reargue the case
before the arbitrator.

[18]

Beyond
this I propose to make only a few additional comments in respect of the reconsideration
and final decision and the issue of new evidence. The grounds on which the
Board may grant leave to apply for a reconsideration are either that evidence
not available through reasonable diligence at the time of the original decision
has become available, or that the decision of the Board is inconsistent with
the principles expressed or implied in the
Code
or any other
Act
dealing with labour relations. In denying the appellants application, the
Board recognized, at para. 11 of its reasons, that the onus is on an
applicant to establish a good, arguable case of sufficient merit that may
succeed on one of the established grounds for reconsideration.

[19]

The
reconsideration Board dismissed the arguments advanced after the initial
application on the basis that they were advanced out of time. Having reviewed
the record, it is apparent that the Board was correct. That conclusion disposes
of several of the arguments the appellant advanced and attempts to support her
series of new evidence applications, including the
Freedom of Information
and Protection of Privacy Act
, R.S.B.C. 1996, c. 165 [
FOIPPA
],
argument, the confirmation bias argument, and the agency argument. Confirmation
bias was not raised before the review Board. The paragraph in the union
submission the appellant refers to suggesting it was in substance raised offers
no support for her argument. Similarly, the
FOIPPA
argument was not
raised, even if the union expressed its concern about the use made of social
media evidence by the arbitrator in support of her credibility findings. The
reconsideration Board expressed its view that these arguments were, in any
event, without merit. I am satisfied that it is plain and obvious that a
judicial review impugning those conclusions, either that the submissions were
out of time or were unmeritorious, is bound to fail.

[20]

The
reconsideration Board examined whether the appellant could resile from the
agreement entered into by the union. It concluded she could not. The Board did
not prevent the appellant carrying on the grievance. Whether she did so as an
agent would not, in any event, affect the Boards reasoning that the appellant
could not resile from the agreement made by the union. The Boards reasoning is
cogent and rooted in the purposes and objectives of the statutory scheme. It is
not patently unreasonable. It is plain and obvious that the judicial review is
bound to fail.

[21]

The
reconsideration Board also denied leave in respect of the proposed new evidence
on the basis that the appellant could not meet the test for its admission
because it was available by the exercise of reasonable diligence at the time of
the arbitration and, in any event, was not sufficiently material to the issue
before the arbitrator, given that the material issues related to adverse
credibility findings. The reasoning in the decision is not patently
unreasonable. It is plain and obvious that the petition is bound to fail. The
same conclusion applies in respect of the final decision based on the
application of s. 141(3) which dictates that there may be only one
application for leave to reconsider the review decision.

[22]

To
the extent that the petition for judicial review can be characterized as
impugning the reconsideration or final decision, there is no arguable case that
either is patently unreasonable in any relevant respect. It is plain and
obvious that the petition is bound to fail. The chambers judge did not err in
striking the petition.

[23]

I
turn now to the various applications to introduce new evidence relating to such
issues as alleged confirmation bias, perceived political influence with the
Board, the assertion that the appellant acted as the unions agent, as well as additional
medical evidence bearing on the appellants medical condition and the perceived
benefits of quilting. None of this evidence meets the test for admitting new
evidence. All of it could have been tendered to the arbitrator or the review
board, if it were admissible. An attempt to put the thrust of the new evidence
before the reconsideration Board was rejected. No error in that conclusion has
been demonstrated. Much of the evidence is in the nature of expert opinion
evidence and has not, in any event, been tendered in admissible form. The
proposed evidence fails the
Palmer
(
Palmer v. The Queen
,
[1980] 1 S.C.R. 759)

test in a
number of ways: it is not new evidence, it was available at the material time,
it is not sufficiently material to the matters in dispute before the arbitrator
so as to have likely affected the outcome, and it could not affect the outcome
of the judicial review application. In any event, and quite apart from all of
these deficiencies in the proffered evidence, I would decline in the
circumstances of this case to exercise my discretion to admit any of the
evidence on a judicial review, which generally is based on the record before
the tribunal.

[24]

The
appellant expresses frustration about the scheme for resolving disputes of the
kind she became involved in. She contends that there is no adequate forum to
raise the issues that concern her, particularly as they relate to a perceived
unfairness or some kind of inherent or institutional bias. She considers the labour
relations scheme to be unfair. But there are opportunities to raise valid
concerns about procedural fairness, the test that should be applied in
determining whether termination is for just cause, or to raise new issues if
genuinely new evidence emerges. Those fora are before the arbitrator and then
the review board with a limited right of reconsideration if leave is granted. If
the appellant considered the test the arbitrator applied to be intrinsically
flawed, the time to raise that issue was before the arbitrator. If a test was
applied in a procedurally unfair manner, then the issue could be canvassed
before the Board on a review. The union, in its representational capacity,
chose the grounds it considered had sufficient merit to advance on review. It
did not take the points the appellant wishes now to advance. The appellants
complaint is either with the way the union represented her at the arbitration or
on review or with the legislative scheme which confers exclusive jurisdiction
to review arbitration awards on the board. The appellant did not challenge the
constitutionality of the legislative scheme in a timely manner. The issue came
up in reply: far too late and without proper notice.

[25]

For
the foregoing reasons, no reviewable error has been demonstrated to underlie
the judges order. It is plain and obvious that the judicial review is bound to
fail. I would dismiss the appeal.

[26]

Costs
ordinarily follow the event as a result of s. 23 of the
Court of Appeal
Act
, R.S.B.C. 1996, c. 77. Typically, therefore, this Court does not
comment on costs in its reasons for judgment. Here, the issue of costs was
raised before us. I see no reason to depart from the ordinary rule.

[27]

The applications to admit new evidence are dismissed. The appeal is
dismissed. The ordinary rule as to costs applies.

[28]

STROMBERG-STEIN J.A.
: I agree.

[29]

WILLCOCK
J.A.
: I agree.

The Honourable Mr. Justice Harris


