2005 BCCA 42 Paramedical v. Health Employees

Before:	The Honourable Madam Justice Southin
	The Honourable Madam Justice Prowse
	The Honourable Mr. Justice Low

Oral Reasons for Judgment

L. McGrady, Q.C. J. Meyers	Counsel for the Appellant
E.J. Harris, Q.C. K. Hume	Counsel for the Respondent
Place and Date:	Vancouver, British Columbia
17 January 2005

[1] SOUTHIN J.A.: This is an appeal by the plaintiff below from the judgment of a chambers judge dismissing the plaintiff’s action on the footing that the issues raised in it were properly within the jurisdiction of the Labour Relations Board.

[2] The application had been brought under Supreme Court Rule 19(24) for an order:

1. All claims of the Plaintiff pled in the Amended Statement of Claim filed July 23, 2003 be struck out on the grounds that it discloses no reasonable cause of action; it is unnecessary, scandalous, frivolous or vexatious, and it is otherwise an abuse of process of the Court;

[3] I do not think it is useful to quote the whole of the amended statement of claim because it is very lengthy, and contains a number of improper allegations of law.

[4] In this Court, the respondent seeks to sustain the judgment below on two grounds; one, the grounds adopted by the learned judge, which might be called a “Weber” ground’; and the other that the statement of claim discloses no cause of action known to the law.

[5] Although I do not propose to quote all the statement of claim, it would be convenient to summarize what Mr. McGrady says it says. The plaintiff, has for many years, been the bargaining agent for a very large number of health care employees in British Columbia. A collective agreement was negotiated between the plaintiff and the defendant. After that collective agreement was negotiated, the Legislature passed a statute entitled “Health and Social Services Delivery Improvement Act”, SBC 2002, c. 2. That statute makes many amendments to collective agreements; for instance; in subsection 6(1)(4) we find:

A provision in a collective agreement requiring an employer to consult with a trade union prior to contracting outside of the collective agreement for the provision of non-clinical services is void.

[6] I would make the educated guess that a provision of that kind was in the agreement of the present appellant. There are other similar provisions. The thrust of the appellant’s case is that somehow or other, either before the collective agreement was made, or sometime after it, the respondent secretly, without any notice to the unions, importuned the Government to enact this legislation. The thrust of it is that the unions deserve to know what was going on, and that the failure to so inform them deprived them of their negotiating rights, perhaps of the right to strike, and of an opportunity to lobby on their own behalf, the government to do something different from what the Legislature did.

[7] The relevant paragraphs of the statement of claim are these:

51. While the Plaintiff and Defendant were negotiating regarding the terms of a new collective agreement during the period from January to August 9, 2001, the Defendant HEABC was required by the provisions of section 11 of the Code to bargain in good faith with the Plaintiff PPBA regarding the terms of a new collective agreement. The requirement to bargain in good faith was also imposed on the parties by section 4 of the Health Care Services Continuation Act, SBC 2001, c. 23 ^ August 9, 2001.

52. In addition, at all times material to this action the Defendant was under a duty to the Plaintiff and to the employees to treat the Plaintiff and the employees in good faith, and to deal with them fairly. That duty arose from the principles of procedural fairness, and from the application of the doctrine of legitimate expectation.

53. In addition, or in the alternative, a duty of good faith and fair dealing is implied from the nature of the employment relationship between the Defendant and its members, on the one hand, and the Plaintiff and the members of its constituent Unions on the other. The duty is owed by the Defendant to the Plaintiff and those employees when their very employment status, their job security, and their working conditions are deliberately, and secretly, being put at risk by their employer. The duties referred to in this and the preceding paragraph are referred to hereinafter as ‘the duty of good faith and fair dealing’.

54. During the period from May 2001 to January 27, 2002, the Defendant, through its officers, management personnel, and/or agents; and/or through its members, their officers, management personnel, and agents, secretly sought to persuade and did persuade the Province of British Columbia to pass legislation to void and/or vary certain terms of the Defendant’s collective agreement with the Plaintiff PPBA.

55. The Defendant’s conduct in secretly seeking to persuade, and persuading the Government of British Columbia to pass Legislation varying and/or voiding terms of the collective agreement between the Plaintiff and the Defendant was wrongful, and in violation of the duties referred to in paragraphs 51, 52, 61, and 69 to 74 of this Statement of Claim. Its conduct was intended to cause, and will cause the loss of employment for a number of employees; as well as a significant deterioration in the job security and in the working conditions of other employees. This conduct prevented, hindered, and/or interfered with, or rendered impossible, the performance of the contract in question, the collective agreement.

56. The conduct of the Defendant was intentional, wrongful, and without justification.

57. The Legislation relied on by the Defendants as justification for its conduct did not exist at the time of the conduct that is the subject of this claim; nor does the Legislation purport to be retroactive in effect.

58. ^ As a result of the conduct referred to in paragraphs 43 to 57, the Province of British Columbia passed Legislation voiding and/or varying certain provisions of the Defendant’s collective agreement with the Plaintiff PPBA. That Legislation and its effect are described in paragraphs 30 to 41 above.

59. As a result of its wrongful conduct, the Defendant and the Defendant’s members were relieved of a number of their most significant obligations under the terms of the collective agreement. The terms of the collective agreement affected by this conduct on the part of the Defendant are as set out in paragraphs 18 to 25 above.

60. These terms had been negotiated in a series of collective agreements during many hours and days of difficult negotiations over almost thirty years. The Plaintiff PPBA achieved these provisions by agreeing to certain equally valuable concessions required by the Defendant or its predecessor in bargaining.

[8] In my opinion these paragraphs disclose no action known to the common law. That being so, this statement of claim should be struck out under Rule 19(24)(a).

[9] What has caused the trouble here for the union is the Act of the Legislature of British Columbia, a statute duly enacted under the powers conferred upon the Legislature by s. 92 of the Constitution Act.

[10] I know of no authority whatever for the proposition that an action will lie against anyone for attempting to obtain and obtaining legislative intervention for some purpose of his own. Because no such action lies, the question of Weber does not truly arise. It may be, for all we know, that under the Labour Code, the Labour Relations Board would have some jurisdiction in its own mind to address the issues that arose here, because the law under the Code is different from the common law.

[11] So it is not necessary to address Weber; it is necessary only to say that no cause of action will lie here on the facts as pleaded by the appellant. That is not to say, and I repeat myself, that the Labour Relations Board may not have something to say about all of this. As to that, we have nothing to say.

[12] The appeal is dismissed.

[13] PROWSE J.A.: I agree

[14] LOW J.A.: I agree

“The Honourable Madam Justice Southin “

Citation:	*Paramedical v. Health Employees,*
	2005 BCCA 42