



COURT OF APPEAL FOR
BRITISH COLUMBIA




Citation:


Breeden 
          v. West Vancouver (District),






2006 
          BCCA 33



Date: 20060126

Docket: CA032651

Between:

Jack 
    L. Breeden

Appellant

(Petitioner)

And

Corporation 
    of the District of West Vancouver,
West Vancouver Professional Fire Fighters' Union, Local 1525
and British Columbia Labour Relations Board

Respondents

(
Respondents
)








Before:


The 
          Honourable Madam Justice
Southin




The 
          Honourable Mr. Justice Smith




The 
          Honourable Mr. Justice Lowry






C. 
          B. Coutts


Counsel for the Appellant




T. A.
Sigurdson


Counsel for the Respondent,
District of West Vancouver




F. A. Schroeder


Counsel for the Respondent,
West Vancouver Professional Fire Fighters' Union, Local 1525




S. L.
Basarab


Counsel for the Respondent,
British Columbia Labour Relations Board




Place and Date of Hearing:


Vancouver, British Columbia




January 12, 2006




Place 
          and Date of Judgment:


Vancouver, British Columbia




January 26, 2006











Written 
          Reasons by
:




The 
          Honourable Mr. Justice Lowry




Concurred 
          in by:




The 
          Honourable Madam Justice
Southin

The Honourable Mr. Justice Smith



Reasons for Judgment of the Honourable Mr. Justice Lowry:


[1]


Jack Breeden was 
    employed as a firefighter by the Corporation of the District of West Vancouver 
    for 22 years.  He was, throughout, a member of the West Vancouver Professional 
    Firefighters Union, Local 1525.  In December 2000, his employment was terminated 
    for insubordination.  The Union informed Mr. Breeden that it could not, in 
    the circumstances, succeed in grieving his termination and it declined to 
    pursue such to arbitration.  In March 2001, Mr. Breeden wrote an apology for 
    his actions that led to his employment being terminated, but the District 
    told him it was too late.  The Union closed his file in August of that year.  
    The question that underlies this appeal is whether the Union failed to represent 
    its member fairly.


[2]


In September 2001, 
    Mr. Breeden filed a complaint under s. 12(1) of the
Labour Relations 
    Code
, R.S.B.C. 1996,
c
. 244 with the Labour 
    Relations Board.  The section provides:

12
(1)   A trade union or council of trade unions 
    must not act in a manner that is arbitrary, discriminatory or in bad faith

(a)
in
representing 
    any of the employees in an appropriate bargaining unit, or

(b)
in
the referral 
    of persons to employment

whether
or not the employees or persons are members of the trade union or a constituent 
    union of the council of trade unions.


[3]


Mr. Breedens contention 
    is that the Union acted arbitrarily in representing him.  The complaint was 
    considered under s. 13 by Catherine R. McCreary, a Vice-Chair of the Board.  
    After a six-day hearing that commenced in June and concluded in October 2002, 
    she rendered a decision in December 2002 dismissing the complaint, BCLRB No. 
    B376/2002.  Mr. Breeden promptly applied for reconsidera­tion of the decision 
    under s. 141 of the
Code
in an attempt to raise an arguable 
    case that what Ms. McCreary decided was inconsistent with the principles of 
    the
Code
.  His application was considered by Mark J. Brown, 
    also a Vice-Chair of the Board, and was dismissed in June 2003, BCLRB No. 
    B189/2003.  In October 2003, Mr. Breeden made application for judicial 
    review of both of the Boards decisions.  His application was heard by Mr. 
    Justice
Burnyeat
in December 2004 and was dismissed 
    the following month.  This appeal is taken from that decision.


[4]


The circumstances 
    that led to Mr. Breedens employment being terminated are fully set out in 
    the reasons, 2005 BCSC
14,
the judge gave for his 
    disposition of the application.  They need only be summarized here.


[5]


At the root of what 
    led to what his employer considered to be Mr. Breedens insubordination was 
    a change the employer made in the spring of 2000.  The employer delegated 
    training to the Training Department and Station Officers who were part of 
    the bargaining unit.  Previously, training had been the responsibility of 
    a manager, a superior officer, who was part of the non-union personnel.  The 
    majority of the members of the bargaining unit of perhaps 70 firefighters 
    supported the change, but Mr. Breeden saw training by his peers to be a violation 
    of the chain of command that created what he perceived to be a conflict 
    because, as trainers, other members of the bargaining unit would be reviewing 
    his performance.  He made it clear that he would not participate in training 
    sessions unless specifically ordered to do so.  He was ordered and did attend 
    a training session in June.  He was excused from attending a training session 
    in July.


[6]


The position taken 
    by Mr. Breeden led to disciplinary measures being imposed on him which in 
    turn led to the Union initiating grievances.  However, in July, the Union 
    obtained a legal opinion that stated it would not succeed in arbitrating the 
    grievances.  Counsel advised the Union that under the Collective Agreement 
    the employer had the right to determine who would provide training and that 
    Mr. Breedens conduct constituted a refusal of normal co-operation which 
    amounted to insubordination and employment misconduct justifying discipline 
    and, if it continued, discharge.  The advice was unequivocal.  It is accepted 
    that Mr. Breeden was given a copy of the opinion when it was received.


[7]


In the fall, Mr. 
    Breeden refused to produce his drivers licence to the employer when asked 
    to do so.  His refusal related to a collective bargaining dispute over who 
    was to pay the expense of a medical certificate required for the renewal of 
    the licence.  Mr. Breedens refusal led to further disciplinary measures being 
    taken against him and a further grievance being initiated by the Union.  Again, 
    the legal advice obtained by the Union was that the Union would not succeed 
    in arbitration.  Counsel advised that Mr. Breedens conduct amounted to insubordination 
    and that, if his acts of insubordination persisted, he would be fired and 
    the termination of his employment would be upheld in arbitration.  His record 
    of discipline was said to be very serious.  The Union maintains that Mr. Breeden 
    was also given a copy of this opinion when it was received, but he claims 
    he did not receive it until after he was dismissed.  Ms. McCreary appears 
    to have accepted what the Union says in this regard.


[8]


Mr. Breeden attended 
    a training session in November but he was disciplined for his lack of participation 
    during the session.  He was suspended for four days.  He attended another 
    training session in December.  His employment was terminated that day for 
    refusing to participate in training and for the earlier instances of uncooperative 
    behaviour.


[9]


The judge reviewed 
    each of the two decisions of the Board, quoting from them at some length.  
    He considered the standard of review which he was to apply and the standard 
    which the Board ought to have applied in disposing of Mr. Breedens application 
    for reconsideration in accordance with the decision of the Supreme Court in
Dr. Q v. College of Physicians and Surgeons of British Columbia
, 
    [2003] 1 S.C.R. 226.  He concluded that the standard to be applied throughout 
    was that of patent unreasonableness because the questions before both Ms. 
    McCreary and Mr. Brown were squarely within the realm of labour relations, 
    as reflected in the several decisions of the courts of this province that 
    he cited (
para
. 43).  They engaged the expertise 
    of the Board and fell within its exclusive jurisdiction.  He then considered 
    the reasoning advanced in both decisions on that basis and concluded neither 
    decision could be said to be patently unreasonable.  He went on, however, 
    and concluded that, even if the decisions were reviewed on a standard of correctness, 
    they were correct.


[10]


Mr. Breeden contends 
    that the principles that govern a s. 12 complaint are largely contained in 
    s. 2 of the
Code
and that the standard of review to be applied 
    on his application for reconsideration and on his application for judicial 
    review was one of correctness, at least insofar as the applicability of s. 
    2 is concerned because that is a question of law.  He attaches particular 
    importance to s. 2 having been amended (proclaimed in force September 1, 2002).  
    He emphasizes that where s. 2 once merely provided a statement of the objects 
    of the
Code
, it now imposes obligations on those who exercise 
    powers and perform duties under the
Code
.  In material respects, 
    the section provides:

2
The board and other persons who exercise powers 
    and perform duties under this Code must exercise the powers and perform the 
    duties in a manner that

(a)
recognizes
the rights and obligations of employees, 
    employers and trade unions under this Code, ...


[11]


Mr. Breeden puts 
    his case on this appeal, as he did before the judge, on the proposition that 
    the amendment to s. 2 has altered the scope of what the Board must take into 
    account when considering whether a union has acted arbitrarily in representing 
    one of its members.  In particular, Mr. Breeden contends that, while the Board 
    has been seen to be justified in having only limited regard for the merits 
    of an employees dismissal when considering a s. 12 complaint against a union 
    (see
Aujla
v. British Columbia (Labour Relations 
    Board)
, 2000 BCSC 1896,
affd
(2001), 94 
    B.C.L.R. (3d) 80 (C.A.)), as did Ms. McCreary in this case, the Board is now 
    required to weigh the merits of the termination of the employment to determine 
    whether a unions conduct in representing one of its members can be said to 
    have been arbitrary.  This is said to be so because the amendment recognizes, 
    and requires that much greater effect be given to, the rights of an employee 
    who must rely on a union to grieve the termination of his employment, such 
    being his only recourse in the event of his having been wrongfully dismissed.


[12]


Mr. Breeden maintains 
    that his acts of insubordination did not warrant his dismissal such that if 
    the termination of his 22 years of employment was considered on its merits, 
    as it had to be for the proper disposition of his s. 12 complaint to be correct 
    in law, Ms. McCrearys determination that the Union did not fail to represent 
    him fairly is not supportable even if otherwise reviewed on a standard of 
    patent unreasonableness.


[13]


The judge did not 
    accede to this argument.  He reasoned that the amendment to s. 2 of the
Code
did not enhance the rights of employees and that the Board was not 
    required to consider the merits of a dismissal to any greater extent than 
    recognized in the
Aujla

case in the disposition 
    of a s. 12 complaint (
paras
. 55-59).  While, in 
    my view, there is much to commend his analysis, it is unnecessary to decide 
    whether s. 2, as amended, has the effect for which Mr. Breeden contends in 
    order to dispose of this appeal.  That is because, as the Union maintains, 
    it appears to have done all that it could have been expected to do for Mr. 
    Breeden in the circumstances.


[14]


Assuming without 
    deciding that what Mr. Breeden says about the effect of the amendment to s. 
    2 is correct, and that, viewed on its merits, Ms. McCreary was bound to find 
    that his insubordination did not justify dismissal, it does not follow that 
    Mr. Breeden was not fairly represented because the Union acted arbitrarily 
    in not pursuing the grievances, and in particular the grievance of the termination 
    of his employment, to arbitration.


[15]


There is no suggestion 
    that the Union did not fully investigate each of the incidents that led to 
    grievances with respect to Mr. Breedens insubordination, including his dismissal, 
    or that it showed any disregard or disinterest in the action that the employer 
    took, first to discipline Mr. Breeden, and ultimately to terminate his employment.  
    There can be no suggestion that the Union did not obtain and pay for sufficient 
    legal advice on Mr. Breedens behalf.  It obtained two legal opinions that 
    left no question that Mr. Breeden had given the employer
cause
to discipline him and that further acts of insubordination 
    could lead to his being fired.  The Union shared counsels views with Mr. 
    Breeden and he was warned about the tenuous nature of his employment, but 
    he chose to persist with conduct that he knew could lead to his dismissal.


[16]


The Union entered 
    into discussions with the employer and endeavoured more than once to negotiate 
    a resolution of the grievances predating Mr. Breedens dismissal, but he was, 
    throughout, less than co-operative.  Ms. McCrearys
description 
    of the events following his dismissal are
particularly telling.  She 
    said, at
paras
. 26-31:

On December 21, 2000, the Union grieved both the December 12, 2000 four-day 
    suspension and the termination of December 20, 2000.  With the agreement of 
    all parties, all of Breeden's grievances went to a Step II meeting
with  the
Municipal Manager on January 3, 2001.

The Union met with Breeden to get his assistance for the strategy they should 
    adopt in the meeting.  Similar to his past behaviour, Breeden did not provide 
    much assistance merely reiterating to the Union representatives that it was 
    their job to represent him.  He did not provide a reason or excuse for his 
    behaviour.  He said the Union had made errors in the past but provided no 
    details.

During the January 3, 2001 meeting, David Stuart, the Municipal Manager said 
    that if he heard from Breeden that he was prepared to co-operate normally 
    with training in the future he would reconsider the termination.  Immediately 
    after the statement was made the Union caucused with Breeden and urged him 
    to accept the "olive branch" being extended by Stuart.  The Union 
    told Breeden that it could not win any arbitration of his grievance.  Breeden 
    refused to make such a commitment because to do so would compromise his principles.  
    In the absence of such a commitment, Stuart upheld the termination and prior 
    discipline.

The Union and the Employer met with an industrial psychologist and described 
    Breeden's behaviour to him.  As a result of the meeting the Employer proposed 
    settlement that included an assessment by the psychologist and the resignation 
    of Breeden with possible re-employment after two years.  Also, because of 
    the meeting with the psychologist, Gary Howard, the Union president, thought 
    there might be a medical explanation for Breeden's behaviour.

Breeden appeared to be engaged in the attempt to get his job back.  He wrote 
    a letter, apologizing for his behaviour.  He looked like he was working with 
    Howard to try to get a medical assessment.  Howard undertook much effort to 
    try to arrange such an assessment.

Breeden's attempts were not sincere.  Howard testified that 
    the assessors told him Breeden said that he was just trying to get medical 
    certification so he could get his job back.  An attempt to go to mediation 
    was rejected by Breeden because the Union said he would have to speak for 
    himself to convince the Employer he was committed to a change in behaviour.  
    Breeden rejected the Union's advice and refused to speak because of the Union's 
    role as his exclusive bargaining agent.  Breeden testified that his letter 
    was insincere.


[17]


Ms. McCreary concluded 
    as follows, at
para
. 57:

It is difficult to imagine what more the Union could have 
    done in the face of Breeden's position.  Nevertheless, the Union persisted 
    in trying to determine if there was a medical reason for the behaviour.  This 
    attempt also was fruitless due to Breeden's refusal to fully co-operate.  
    Breeden's letter apologizing for his behaviour is admittedly insincere.  From 
    his evidence and demeanour at the hearing I conclude that he is unrepentant.  
    He still does not appear to accept the Employer's right to organize the workplace 
    or the importance of the "work now, grieve later" rule.


[18]


I consider the efforts 
    the Union made in taking legal advice and entering into discussions with the 
    employer, on the one hand, and Mr. Breedens insincerity and lack of co-operation 
    with the Union, on the other, entirely undermine his contention that the Union 
    acted arbitrarily and did not fairly represent him.  I, too, do not see what 
    else the Union could have been expected to do, particularly in light of the 
    legal advice about Mr. Breedens position it had obtained.  He simply had 
    no cause for
a
s. 12 complaint and there is 
    no basis on which Ms. McCrearys conclusion can be said to have been wrong.


[19]


I would dismiss the 
    appeal.

The Honourable Mr. Justice Lowry

I agree:

The Honourable 
    Madam Justice
Southin


I agree:

The Honourable Mr. Justice Smith"


