2005 BCSC 14 Breeden v. Corporation of the District of West Vancouver et al

IN THE SUPREME COURT OF BRITISH COLUMBIA

Citation:

Breeden v. Corporation of the District

of West Vancouver et al,

2005 BCSC 14

Date: 20050112
Docket: L032793
Registry: Vancouver

IN THE SUPREME COURT OF BRITISH COLUMBIA
IN THE MATTER OF THE LABOUR RELATIONS CODE, RSBC 1996. C. 244
AND IN THE MATTER OF DECISIONS MADE BY THE LABOUR RELATIONS
BOARD OF BRITISH COLUMBIA DATED DECEMBER 2, 2002 AND JUNE 13, 2003
AND IN THE MATTER OF THE JUDCIAL REVIEW PROCEDURE ACT, RSBC 1996,
C. 241, AS AMENDED

BETWEEN:

JACK L. BREEDEN

PETITIONER

AND:

CORPORATION OF THE DISTRICT OF WEST VANCOUVER,
WEST VANCOUVER PROFESSIONAL FIRE FIGHTERS’ UNION, LOCAL 1525
AND BRITISH COLUMBIA LABOUR RELATIONS BOARD

RESPONDENTS

Before: The Honourable Mr. Justice Burnyeat

Reasons for Judgment
(In Chambers)

Counsel for Mr. Breeden	C.B. Coutts
Counsel for The District of West Vancouver	T.A. Sigurdson
Counsel for Labour Relations Board	S.L. Basarab
Counsel for The West Vancouver Professional Fire Fighters’ Union	F.A. Schroeder
Date and Place of Hearing:	December 7, 2004
	Vancouver, B.C.

[1] Pursuant to the Judicial Review Procedure Act, R.S.B. 1996, c. 241 (“Act”), Mr. Breeden requests that two decisions of the Labour Relations Board (“Board”) be set aside and that his complaints be returned to the Board for reconsideration under s.(12)(1) of the Labour Relations Code, R.S.B.C. 1996, c. 244 (“Code”) so that the Board can give full consideration to all of the facts relating to the grievances of Mr. Breeden and the proper interpretation of s. 2 of the Code.

BACKGROUND

[2] On July 17, 1978, Mr. Breeden was hired by The Corporation of the District of West Vancouver (“West Vancouver”) and became a First Class Fire Fighter. Mr. Breeden was in the bargaining unit represented by the West Vancouver Fire Fighters’ Union, Local 1525 (“Union”). Mr. Breeden had no disciplinary record until June 21, 2000.

[3] In the spring of 2000, West Vancouver delegated training to “The Training Department and Station Officers”. Previously, training had been the responsibility of a specific manager excluded from the bargaining unit. Mr. Breeden was of the opinion that training should not be conducted by his peers and other members of the bargaining unit because it violated the “chain of command” and created what he believed to be a “conflict”. As other bargaining unit employees in their capacity as trainers would be required to review his performance and report it to management, Mr. Breeden believes that all training ought to be delivered by a superior Officer.

[4] On June 12, 2000, Mr. Breeden advised his immediate supervisor that he would prefer not to participate in a scheduled training session being conducted by a member of the same bargaining unit but would participate if ordered to do so. Mr. Breeden submits that he made it very clear that he had no intention of disobeying an order given to him by his superiors. Mr. Breeden was ordered to participate in the training.

[5] Mr. Breeden received a June 20, 2000 disciplinary letter confirming a June 19, 2000 “verbal warning for being unwilling to participate in training unless ordered to do so.” He also received a written warning for having “to be ordered to participate”. Shortly after receiving the disciplinary letter, Mr. Breeden asked the Union to file a grievance regarding the discipline set out in that letter and was advised that the Union would do so.

[6] On July 6, 2000, Mr. Breeden was advised that a further training session was scheduled to be given by two bargaining unit members. Mr. Breeden spoke with his Captain and advised him that he would prefer not to attend the training session unless ordered to do so. Mr. Breeden was excused from the training exercise and was not ordered by his Captain to attend the training session. Mr. Breeden was suspended by the District Chief for four-and-a-half hours without pay for not participating in the training session on July 6, 2000. Mr. Breeden’s Captain was also disciplined because he had excused Mr. Breeden’s participation in the training session. Mr. Breeden asked the Union to file a grievance regarding the discipline set out in the letter and Union representatives indicated that a grievance would be filed.

[7] On July 21, 2000, a grievance meeting was held. In attendance were the Fire Chief, the Assistant Fire Chief, the District Chief, three representatives of the Union, and Mr. Breeden. The Fire Chief indicated that the suspension had been revoked and the suspension would be removed from the personnel record of Mr. Breeden. One of the Union representatives stated that he had not heard Mr. Breeden accept the withdrawal of the suspension. Mr. Breeden told his Union representatives that he wanted to think about the effect of withdrawing the suspension given that West Vancouver had not agreed that there was anything unfair in issuing it in the first place.

[8] On July 24, 2000, the Fire Chief sent a memorandum to a payroll clerk reaffirming the four-and-a-half hour suspension. On August 7, 2000, Mr. Breeden told the Union that he did not wish his grievance to be resolved simply by West Vancouver withdrawing the suspension and that he wanted West Vancouver to deal with the training issue and hopefully recognize that it was not improper for him to expect that he receive an order from a superior Officer to participate in training provided by other bargaining unit members. A letter was sent to West Vancouver indicating that Mr. Breeden wished to proceed with the grievance.

[9] Mr. Breeden submits that, between August 7 and October 16, 2000, the Union did not make any attempts to process his two grievances. On October 16, 2000, the Union attempted to settle the grievance with West Vancouver by accepting the offer to revoke the suspension.

[10] On October 19, 2000, West Vancouver advised the Union that, “since the offer was not accepted, it was withdrawn. The suspension therefore remains in effect.”

[11] On November 2, 2000, Mr. Breeden was asked by the District Chief to produce his driver’s licence. Because of a collective bargaining dispute over who should pay for the medical certificate required before a driver’s licence could be renewed, Mr. Breeden called the Secretary of the Union and received the advice that he should advise the District Chief that he would speak to him regarding his request in due course. Mr. Breeden so advised the District Chief. Mr. Breeden states that the District Chief did not order him to produce his driver’s licence. On November 3, 2000, Mr. Breeden received an eight hour suspension for his failure to produce his driver’s licence the previous day. Mr. Breeden asked the Union to grieve this discipline and the Union indicated that they would do so.

[12] On November 4, 2000, Mr. Breeden received a letter from the Union indicating that he should follow the “work now, grieve later” principle or they would be unable to assist him. On that day, the District Chief again asked Mr. Breeden to produce his driver’s licence. Mr. Breeden produced an “obscured version” of it in order to protest what he described as the dispute about which party was required to pay for the medical certificate as well as the way in which his June and July training grievances were being processed.

[13] On November 5, 2000, Mr. Breeden was suspended for two days because he had produced only an obscured driver’s licence. Mr. Breeden requested that the Union grieve this discipline and was advised that it would do so.

[14] On November 7, 2000, the Union advised West Vancouver that it wished to proceed to Step 1 of the grievance procedure regarding the suspensions of Mr. Breeden on November 3 and 5, 2000. Mr. Breeden submits that a Step 1 meeting was never held. Mr. Breeden says that, without his knowledge, the Union and West Vancouver met to discuss him on November 9, 2000 and that an agreement was reached that he should be required to accept “Interlock” counselling, being a private counselling service offered to employees of West Vancouver. The Union was advised that, unless he agreed to attend such counselling, Mr. Breeden would continue to be disciplined if he did not produce a driver’s licence.

[15] On November 10, 2000, the Union advised West Vancouver that it intended to proceed with the grievance regarding the July, 2000 suspension concerning training.

[16] On November 11, 2000, Mr. Breeden returned to work and produced his driver’s licence. However, Mr. Breeden was given a “formal referral” to Interlock and his workplace location was reassigned. Mr. Breeden took that position that he was opposed to the Interlock counselling session because it was not confidential, it was an “invasive process” in which he would be required to discuss “confidential matters with an unknown third party”, and it was improper for West Vancouver to issue a formal referral because there were no outstanding disciplinary actions. Mr. Breeden states that the Union refused to accept his grievance regarding the referral to Interlock and that he received a recommendation from the Union that he should accept the counselling.

[17] On November 14, 2000, an “informal grievance meeting” was held to discuss the failure of Mr. Breeden to produce his driver’s licence. That meeting was held without Mr. Breeden.

[18] On December 12, 2000, a “First Responder” training session was scheduled. Mr. Breeden advised the Trainer that he would prefer not to participate in the training as the Trainer was also a First Class Fire Fighter as well as the Secretary of the Union who had advised Mr. Breeden about not producing his driver’s licence and had recommended to Mr. Breeden that he accept the formal referral to Interlock. Despite his reservations, Mr. Breeden attended the class and states that he considered the information and read the training manual.

[19] On December 12, 2000, Mr. Breeden received a four day suspension for not responding in the training session in the manner that West Vancouver expected. Mr. Breeden asked the Union to grieve the four day suspension.

[20] On December 18, 2000, the Union advised West Vancouver that it wished to proceed to Step 2 regarding the grievances over the discipline provided in July and the two suspensions in November, 2000. The Acting Fire Chief indicated that it was the belief of West Vancouver that the grievances were out of time and advised that West Vancouver would raise time limits as a technical objection if the grievances were submitted to arbitration.

[21] On December 20, 2000, a further First Responder Training was scheduled. Mr. Breeden attended the class and states that he “considered the information, and reviewed the manual”.

[22] On December 20, 2000, the employment of Mr. Breeden was terminated for refusing “to participate in training and for other instances of uncooperative behaviour, as outlined in earlier correspondence.”

[23] On December 21, 2000, the Union wrote to West Vancouver to indicate that it intended to continue with the July grievance and intended to initiate a grievance regarding the suspension given on December 12, 2000, as well as the grievance concerning the termination of the employment of Mr. Breeden.

[24] On December 28, 2000, the Union wrote to Mr. Breeden and advised that: “... since we have no apparent legal grounds to fight your suspensions and termination, it is imperative that we succeed in convincing the Municipal Manager that there has been some error in process or administration of discipline.” In that letter, the Union indicated that it had two legal opinions indicating that it would lose the arbitration if it proceeded. By that date, Mr. Breeden had not been shown the two legal opinions.

[25] On January 3, 2001, a Step 2 meeting was held regarding all of the outstanding disciplinary matters including the discharge of Mr. Breeden.

[26] On January 9, 2001, the Union advised Mr. Breeden that it was dropping all of his grievances suggesting that it had “one option left” and that would be to “ask” West Vancouver to agree to a mediator.

[27] In a February 5, 2001 letter, West Vancouver offered Mr. Breeden two options: (a) he could resign and be provided with a “tombstone” letter of reference, an outplacement package of $1,750 and the possibility of competing for a further position after a two-year period provided he “successfully deals with the matters that resulted in the termination of his employment”; and (b) parties could proceed under the normal arbitration provisions of the collective agreement.

[28] In a February 13, 2001 letter, Mr. Breeden was advised by the Union that he was no longer a member of the Union and “no longer afforded the rights and entitlements of a member”. In a February 15, 2001 letter, the Union advised Mr. Breeden it was not pursuing his grievances to Step 3.

[29] On March 7, 2001, Mr. Breeden wrote directly to the Union and West Vancouver to explain his actions, admit that he had been wrong, apologize for the irritation he had caused, and ask for another chance to prove himself. On March 21, 2001, West Vancouver wrote to deny the request of Mr. Breeden and stated that it was “unfortunate that [his] commitment to improve [his] conduct and performance was not made while the employment relationship still existed.”

[30] On June 1, 2001, West Vancouver advised the Union that it “deemed the grievance to be abandoned” and, on August 31, 2001, the Union wrote to Mr. Breeden indicated that its membership did not support going to arbitration over his termination and that his file had been closed.

PROCEEDINGS BEFORE THE BOARD

[31] A Panel of the Board heard the complaint of Mr. Breeden pursuant to ss. 12 and 13 of the Code that the Union breached its duty of fair representation in failing to properly pursue his grievances and that the conduct of the Union violated s. 12 of the Code. The Panelist was Catherine R. McCreary, the Vice-Chair of the Board. Mr. Coutts appeared for Mr. Breeden, Mr. Schroeder appeared for the Union, and Ms. Mitchell appeared for West Vancouver.

[32] After hearing 6 days of evidence, the Panel rendered a decision on December 2, 2002 dismissing the complaint of Mr. Breeden for the following reasons: (a) the behaviour of the Union did not constitute a breach of the Code; (b) there was no evidence that the Union failed to examine or negligently examine the facts regarding the grievances; (c) Mr. Breeden had acted against his own best interest despite all advice to the contrary; (d) Mr. Breeden was “unrepentant” and did not accept the right of West Vancouver to organize the workplace or the importance of the “work now, grieve later” rule; and (e) the Union did not fail to follow the procedures set out in the collective agreement.

[33] In dealing with the argument raised on behalf of Mr. Breeden, the Panel went through this “analysis”:

As described in Donato Franco, BCLRB No. B90/94 (Reconsideration of IRC NO. C244/92). (1994) CLRBR(2d) 281, a union conducts an adequate investigation where:

... it makes sure it is aware of the circumstances, of the possible merits of the grievance, puts its mind to the case and comes to a reasoned decision whether to proceed ...

In reaching its conclusion, the Board regards the conduct of the union as a whole, rather than focusing on single aspects of the union’s conduct ... (p. 291)

A Section 12 inquiry analyzes the conduct of the union. It does not assess the merits of a grievance or the potential of success should the matter be pursued to arbitration: Joseph Kobescak, IRC No. C178/89 (Reconsideration of IRC No. C134/89).

If a union takes a reasonable view of the problem and arrives at a thoughtful judgment about it, the union has the right to control grievance procedures. It may choose to settle, or abandon a grievance with or without the approval of a grievor: Marie A. Ellison, IRC No. C38/92 (Reconsideration of Letter Decision December 10, 1991). A grievor does not have an absolute right to have a grievance pursued to arbitration: Donato Franco, supra. I am mindful of the principle that the Board will exercise more intense scrutiny if the matter involves dismissal of the complainant: Noel v. Societe d’energie de la Baie James, [2001] 2 S.C.R. 207.

[34] Mr. Breeden applied for a reconsideration of the decision of the Panel pursuant to s. 141 of the Code. Counsel for Mr. Breeden submitted that the Panel acted contrary to the express or implied principles of the Code by failing to recognize the rights Mr. Breeden had as an employee under the Code, by failing to consider the merits of his grievances, and by denying him a fair hearing and thereby acting contrary to the Code by failing to consider reasonably the evidence before the Panel and the arguments made on behalf of Mr. Breeden.

[35] The Reconsideration Panel was Mark J. Brown, Vice-Chair of the Board. Mr. Coutts appeared for Mr. Breeden.

[36] On June 13, 2003, the Reconsideration Panel rendered its decision and dismissed his application on the following grounds: (a) the revised wording of s. 2 of the Code did not indicate a legislative intent to alter the policy of the Board with respect to the relevance of the merits of the grievance in s. 12 of the Code complaint; (b) there was sufficient analysis of the grievances and their merits by the original Panel in relation to the s. 12 complaints; (c) the original Panel subjected the conduct of the Union to an appropriately high level of scrutiny in the circumstances; (d) the Panel did not fail to give Mr. Breeden a fair hearing; (e) the Panel did not err in its analysis of the policy of the Board regarding s. 12 of the Code complaints or in the application of that policy to the facts in the case; and (f) the Panel did not fail to consider the evidence or the arguments put forward on behalf of Mr. Breeden.

[37] The Panel set out the following “Analysis”:

The Applicant submits that the original panel erred in principle by failing to consider the merits of his grievances. He submits that the original panel could not determine whether the Union had met its duty of fair representation to him without considering the merits of the grievances. He submits that the original panel erred in law when it stated that a Section 12 inquiry “does not assess the merits of a grievance or the potential of success should the matter be pursued to arbitration” (paragraph 37). The Applicant submits that, in failing to assess the merits of his grievances, the original panel failed to recognize his rights as an employee under the recently revised duties provision of the Code (Section 2). He further submits that, even if the revision to Section 2 did not change the appropriate standard of review under Section 12, the original panel still erred by applying a standard lower than the Board normally applies in the context of a grievance concerning the dismissal of a long-term employee.

The Board’s policy with respect to the relevance of the merits of a grievance in the context of a Section 12 complaint has been stated many times. For example, in L. Elouise Lord, BCLRB No. B433//97 the panel stated:

Under Section 12 of the Code, the Board’s inquiry is limited to ascertaining whether the Association’s actions are “arbitrary, discriminatory or in bad faith”. In considering Section 12, the Board’s focus is on the conduct of the Union. It does not determine the merits of the grievance or the potential success should the matter be pursued at arbitration. The Board does consider the nature of the grievance and in a case involving loss of employment, the conduct of the union will come under closer scrutiny. This does not mean, however, that the grievor has an absolute right to have a matter pursued to arbitration (see Donato Franco, BCLRB No. B90/94 (Reconsideration of IRC No. C244/92), (1994) 22 CLRBR (2d) 281). (para. 33; emphasis added)

Similarly, in Marlene Gladstone, BCLRB No. B95/2000 (upheld on reconsideration, BCLRB No. B159/2000) the panel stated:

I begin my analysis with a brief overview of the applicable principles. Under Section 12 the Board’s mandate is to examine the union’s conduct. The focus is not on the grievance or complaint itself, but on the union’s conduct: Rodney J. Philippson, BCLRB No. B424/93 (Upheld on Reconsideration BCLRB No. B189/94). The Board’s role is not to second-guess the union’s judgment on the merits of the grievance, but rather to ensure that the union has taken a reasonable view of the issue and arrived at a thoughtful judgment about what to do. The Board’s inquiry is limited to determining whether the union acted in an arbitrary, discriminatory or bad faith manner in representing an employee. In making that assessment, the Board evaluates the union’s conduct as a whole, rather than looking at one or more incidents in isolation. (para. 49; emphasis added)

The merits of the grievance may be a relevant consideration for the purpose of determining whether the Union has breached Section 12. However, it is not correct that the Board must in every case consider the merits of the grievance as part of the process for deciding whether Section 12 has been breached. As stated by the panel in Deborah J. Weisberg, BCLRB No. B112/2000 (Leave for Reconsideration of BCLRB No. B471/99):

... while the merits of a grievance are not at issue in a Section 12 determination, they may be of some relevance. The less meritorious the claim, the less onerous the burden on the union to prove it has discharged its obligations. Rene Poulin, BCLRB No. B46/97. It can be difficult to differentiate between the union’s conduct and the merits of the grievance itself. Where that is the case, some assessment of the incident leading to the grievance may be necessary in order to properly evaluate the union’s handling of the grievance and its decision not to proceed to arbitration: see Milton K. Yerex, IRC No. C233/88, at p. 14 (para. 19)

The Board’s jurisprudence to the effect that the merits of the grievance may (but not must) be a relevant consideration in adjudicating a Section 12 complaint is confirmed by the decision of our Court of Appeal in Aujla v. British Columbia (Labour Relations Board), 2001 BCCA 611:

The appellant’s primary ground in this Court, as in the Supreme Court, was that the Board must consider the merits of the grievance in determining whether the s. 12 complaint is valid.

The chambers judge said (at para 24):

Although the board has recognized in some previous decisions that in some instances the strength or likelihood of success of a grievance may be relevant to the adjudication of a s. 12 complaint, I agree with the original panel in this case that the merits of the grievance itself will usually be irrelevant to a determination by the board of a complaint that a union has acted in an arbitrary or bad faith manner in deciding not to pursue arbitration of a grievance.

In my view, that statement overstates the principle somewhat. A s.12 complaint cannot be determined without considering whether the union acted reasonably and that will require some reference to the factual context of the grievance. To what extent the merits are relevant will depend on the circumstances of the particular case. The authorities cited by the Board in its decisions and by the appellant on this appeal clearly establish that principle. (paras. 10-12: emphasis added)

Furthermore, in a recent Board decision, James W.D. Judd, BCLRB No. B63/2003, the panel reviewed the Section 2 amendments and set out a detailed analysis of the scope of inquiry under Section 12. At paragraph 46 of the decision the panel confirmed the Board’s policy as set out above in the previous cases:

Second, Section 12 concerns the duties of unions to the employees they represent. It is not a forum for complaints against the employer. Often, complainants focus on the wrongs they believe they have suffered in the workplace. While events in the workplace may form a part of the relevant background of a Section 12 complaint, the focus is on the union’s response to those events. The Board does not decide the merits of an employee’s grievance against the employer. Perceived injustice by the employer does not provide grounds for a Section 12 complaint against the union. It is the union’s conduct that is at issue.

Accordingly, I conclude there is nothing in the recently revised wording of Section 2, the duties provision of the Code, which suggests a legislative intention to change the Board’s long-standing policy with respect to the relevance of the merits of the grievance to a Section 12 complaint.

ERRORS ALLEGED BY MR. BREEDEN

[38] Although Mr. Breeden has requested that the decision of the Panel be set aside, I am satisfied that it would be inappropriate to do so. I am satisfied that it is only appropriate to review the decision of the Reconsideration Panel so that, if I am satisfied that this decision should be set aside and the complaints of Mr. Breeden returned to the Board for further consideration, the Board could then review the decision of the Panel taking into account the reasons for my conclusion that the Reconsideration Panel came to an incorrect conclusion. Even if I am incorrect in coming to this conclusion, I am satisfied that, if I reviewed both decisions, my decision would be no different than my decision after reviewing only the decision of the Reconsideration Panel.

[39] Mr. Breeden submits that the Reconsideration Panel committed the following errors:

(a) The Panel’s decision dismissing the application for reconsideration was incorrect in that the Panel failed to adhere to the express or implied principles of the Code by failing to recognize the rights of employees, or alternatively, the Panel’s decision dismissing the application for reconsideration was unreasonable in that the Panel failed to adhere to the express or implied principles of the Code by failing to recognize the rights of employees; and

(b) The Panel’s decision dismissing the application for reconsideration was incorrect in that it acted contrary to the express or implied principles of the Code by failing to examine the Board’s “policy” regarding Section 12 complaints, or alternatively, the Panel’s decision dismissing the application for reconsideration was unreasonable in that it acted contrary to the express or implied principles of the Code by failing to examine the Board’s “policy” regarding Section 12 complaints.

WHAT IS THE APPROPRIATE STANDARD OF REVIEW?

[40] There are three standards of review of administrative tribunal decisions: correctness, reasonableness simpliciter, and patent unreasonableness. Counsel for Mr. Breeden submits that the correctness standard of review should be applied here. After reviewing the decisions that all counsel have referred to, I am satisfied that the decisions of the Board are properly reviewed by using the “patently unreasonable” standard of review.

[41] The question before the Panel was whether the Union breached its duty of fair representation under s. 12 of the Code. The question before the Reconsideration Panel was whether Mr. Breeden had raised a good arguable case that the decision of the Panel was inconsistent with the principles of the Code. I find that both of these questions are squarely within the realm of labour relations, engage the area of expertise of the Board, and fall within the exclusive jurisdiction of the Board.

[42] The approach for determining which standard of review should apply upon judicial review of an administrative tribunal decision has been to determine whether the question before the tribunal was one the Legislature intended to be determined by the tribunal as opposed to the courts: U.E.S., Local 398 v. Bibeault, [1988] 2 S.C.R. 1048. The standard of review is determined by considering the four “contextual” factors set out in Dr. Q. v. College of Physicians and Surgeons of British Columbia [2003] 1 S.C.R. 226:

... the presence or absence of a privative clause or statutory right of appeal; the expertise of the tribunal relative to that of the reviewing court on the issue in question; the purposes of the legislation and the provision in particular; and, the nature of the question – law, fact, or mixed law and fact. The factors may overlap. The overall aim is to discern legislative intent, keeping in mind the constitutional role of the courts in maintaining the rule of law. (at para. 26)

[43] British Columbia courts have repeatedly applied the pragmatic and functional approach upon judicial review of Board decisions to find that the application of s. 12 of the Code is a matter within its exclusive jurisdiction and reviewable applying the patently unreasonable standard: (a) Speckling v. British Columbia (Labour Relations Board), [2002] B.C.J. (Q.L.) No. 1676 (B.C.S.C.), affirmed [2003] B.C.J. (Q.L.) No. 909 (B.C.C.A.); (b) Atwal v. British Columbia (Labour Relations Board), [2002] B.C.J. (Q.L.) No. 1372 (B.C.S.C.); (c) Callow v. British Columbia (Labour Relations Board) [1999] B.C.J. (Q.L.) No. 3205 (B.C.S.C.) upheld [2001] B.C.J. (Q.L.) No. 397 (B.C.C.A.) (d) Aujla v. British Columbia (Labour Relations Board), [2000] B.C.J. (Q.L.) No. 2273 (B.C.S.C.), affirmed [2001] 94 B.C.L.R. (3d) 80 (B.C.C.A.); (e) Budgell v. British Columbia Labour Relations Board et al., [2003] B.C.J. (Q.L.) No. 153 (B.C.S.C.); [2003] B.C.J. (Q.L.) No. 2662 (B.C.C.A.) and (f) Bakery, Confectionary and Tobacco Workers’ International Union, Local 468 v. Labour Relations Board and Weston Bakeries Ltd. [2000] B.C.J. (Q.L.) No. 2153 (B.C.S.C.).

[44] Based on the role given to the Board, I reject the submission of counsel for Mr. Breeden that the standard of review that should be applied to the decision of the Reconsideration Panel is one of correctness.

[45] I also reject the submission that the standard of review that should have been applied by the Reconsideration Panel was one of correctness. The standard of review to be applied on judicial review of the application of s. 141 of the Code by the Board in deciding whether leave should be granted is also the patently unreasonable standard: Bakery, Confectionary and Tobacco Workers’ International Union, Local 468 v. Labour Relations Board and Weston Bakeries Ltd. (11 Feb. 2000), Vancouver Registry No. A992142 (BCSC).

[46] In reviewing both decisions, I am satisfied that I should apply the patent unreasonableness test as described in Law Society of New Brunswick v. Ryan [2003] 1 S.C.R. 247:

In Southam ... [Canada (Director of Investigation and Research) v. Southam Inc. [1997] 1 S.C.R. 748], at para. 57, the Court described the difference between an unreasonable decision and a patently unreasonable one as rooted “in the immediacy or obviousness of the defect”. Another way to say this is that a patently unreasonable defect, once identified, can be explained simply and easily, leaving no real possibility of doubting that the decision is defective. A patently unreasonable decision has been described as “clearly irrational” or “evidently not in accordance with reason” (Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at pp. 963-64, per Cory J.; Centre communautair jurdique de l’Estrie v. Sherbrooke (City), [1996] 3 S.C.R. 84, at paras. 9-12, per Gonthier J.). A decision that is patently unreasonable is so flawed that no amount of curial deference can justify letting it stand.

(pp. 269 – 70)

[47] In applying the patent unreasonableness standard of review of a s. 12 of the Code decision of the Board, the Court of Appeal stated in Budgell, supra,:

The task of the chambers judge was to determine whether the Board’s decision was rational and reached in accordance with the rules of natural justice, not to determine the issue afresh: Health Sciences Assn. of British Columbia et al. v. Versa Services et al. (1992), 91 D.L.R. (4th) 582 (B.C.C.A.).

It is not appropriate for this Court, nor was it appropriate for the chambers judge, to consider whether the Board’s decision was wrong. The Board is entitled to be wrong in the eyes of a court if it acts within its jurisdiction: Canadian Assn. of Industrial, Mechanical and Allied Workers, Local 14 v. Paccar of Canada Ltd., (1989) 2 S.C.R. 983; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941 [PSAC]; Aujla v. British Columbia Labour Relations Board et al., [2000] B.C.J. No. 2731 [Q.L.], 2000 BCSC 1896, aff’d [2001] B.C.J. No. 2187 [Q.L.], 2001 BCCA 611; Speckling v. LRB et al., [2002] B.C.J. No. 1676 [Q.L.], 2002 BCSC 1083, aff’d [2003] B.C.J. No. 909, 2003 BCCA 240. (at para. 8)

[48] I can not come to the conclusion that the decisions of both Panels were clearly irrational, not in accordance with reason, or so flawed that no amount of curial deference can justify letting the decisions stand. Even if I am incorrect in coming to the conclusion that the standard of review is one of patent unreasonableness, I reach the conclusion that the decisions of both Panels were correct.

DID THE PANELS PROPERLY REVIEW THE MERITS OF THE GRIEVANCES OF MR. BREEDEN?

[49] I am satisfied that both Panels gave appropriate consideration to the merits of the grievances of Mr. Breeden when considering the complaints of Mr. Breeden that the Union had not acted in accordance with the obligations imposed upon it by s. 12 of the Code.

[50] Aujla, supra, involved a judicial review challenging the established policy of the Board about the relevance of the merits of grievances in s. 12 of the Code complaints. Baker J. found this matter to fall: “... squarely within the Board’s exclusive jurisdiction” and applied the “patently unreasonable” standard of review. (at paras. 11, 23 and 24). I also make that finding.

[51] Mr. Breeden has challenged the policy of the Board and the consideration that the Panels gave to the merits of the grievances of Mr. Breeden submitting that, as a result of amendments to s. 2 of the Code, the Panel should have given greater consideration to the merits of the grievances of Mr. Breeden. I cannot accede to this submission.

[52] Section 2 of the Code now provides:

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

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

[53] Prior to 2002, s. 2 of the Code provided:

2.(1) The following are the purposes of the Code:

(a) to encourage the practice and procedure of collective bargaining between employers and trade unions as the freely chosen representatives of employees;

(b) to encourage cooperative participation between employers and trade unions in resolving workplace issues, adapting to changes in the economy, developing workforce skills and promoting workplace productivity;

(d) to promote conditions favourable to the orderly, constructive and expeditious settlement of disputes between employers and trade unions;

(e) to ensure that the public interest is protected during labour disputes;

(f) to encourage the use of mediation as a dispute resolution mechanism.

(2) The board shall exercise the powers and perform the duties conferred or imposed on it under this Code having regard to the purposes set out in subsection (1).

[54] The submission before the Reconsideration Panel was that the change to s. 2 of the Code produced a requirement that the Panel should have given greater relevancy to the merits of the grievances of Mr. Breeden and that the obligations on the Union were greater as a result of the change to s. 2 of the Code made in 2002.

[55] I am satisfied that the introduction of s. 2(a) of the Code did not and does not require the Board to change its policies regarding s. 12 of the Code complaints. I am satisfied that the duty of fair representation imposed upon the Union has not changed and that the 1975 decision in Rayonier Canada (B.C.) Ltd. BCLRB No. 40/75 [1975] 2 CAN LRBR 196 referred to in the decision of the Panel continues to apply.

[56] No obligations on a Union or rights of a member of a Union have been changed as a result of the introduction of s. 2(a) of the Code. I find this to be the case despite the combined effect of ss. 7(2) and 8 of the Interpretation Act, R.S.B.C., 1996, c. 238 which provide:

7(2) If a provision in an enactment is expressed in the present tense, the provision applies to the circumstances as they arise.

8. Every enactment must be construed as being remedial, and must be given such fair, large and liberal construction and interpretation as best ensures the attainment of its objects.

[57] The enactment of s. 2 of the Code was remedial in that the section now sets out a comprehensive view of labour relations which is to be followed by the Board and others who exercise powers and perform duties under the Code. However, the “rights and obligations of ... trade unions ....” under s.2(a) the Code do not change. Rather, the existing rights and obligations of the Union as established by practice, decisions of the Board and decisions of the Court continue to apply.

[58] Nothing in the amendments to s. 2 of the Code would allow me to conclude that the inclusion of s. 2(a) imposes greater obligations on unions than what were previously imposed upon them or grants greater rights to employees than what was previously available to them. It would require a specific statutory change to impose new obligations on trade unions and grant new rights to employees in order to expand the existing obligations on the Union and the rights of Mr. Breeden so as to require the Panels to override the decision of the Union not to carry through with the grievances of Mr. Breeden or to require the Reconsideration Panel to give a different consideration to the merits of the grievances of Mr. Breeden.

[59] The decision of the Board in Judd and the Communications, Energy and Paperworkers Union of Canada, Local 2000 (February 21, 2003), BCLRB No. B63/203 correctly addresses the rights, obligations and processes under s. 12 of the Code in light of the guiding principles of s. 2 of the Code and correctly confirms that the test set out in Rayonier continues to apply. In Judd, the Panel set out the following obligations of a union and rights of members of a union:

Once employees have chosen a union as their exclusive bargaining agent, any decisions regarding the negotiation and administration of the collective agreement are the union's to make. Thus, for example, if an employee feels he was denied a promotion in violation of the collective agreement, or disciplined or dismissed without just and reasonable cause, it is up to the union to decide what to do about that. Generally, it is up to the union to decide whether to file a grievance against the employer on behalf of an employee. Once a grievance is under way, it is up to the union to then decide whether to abandon the grievance, try to negotiate a settlement with the employer, or take the grievance to arbitration. Such decisions are not up to the employee. However, the employee is responsible for making the union aware of potential grievances and asking the union to act on his or her behalf. ....

A union must also be able to direct its resources so that they achieve maximum effect. Union resources are limited. If, for example, an employee could insist that his or her dismissal grievance go to arbitration even where on a reasonable assessment there is no case, this could waste tens of thousands of dollars of the union's resources, which come from employees' dues.

Through the control of its resources, a union can leverage them to achieve maximum results for minimum expenditure. An employer knows that the union could take any given case to arbitration if it wished. It also knows that the union is likely to accept a reasonable settlement if one is offered. With that type of relationship, the employer may be motivated to make reasonable offers to settle some matters by agreement, without litigating every issue. In that way, employees achieve the greatest gain with the least expenditure. By contrast, if individual employees could take every grievance to arbitration whenever they wished, the amount of litigation in the workplace would multiply and employees would very quickly find their collective resources depleted. This type of situation would be detrimental to the workplace and, for employees and the union, unaffordable. It may also place an excessive demand on the employer, affecting the business as a whole. ....

For these reasons, among others, unions must act as a single entity in order to represent the employees effectively. They must be able to make decisions even where individual employees in the bargaining unit may disagree. In fact, unions are able to exercise collective power because employees cannot simply do whatever they wish individually. It is that characteristic which gives unions their bargaining power on behalf of the employees.

[60] The Union had two legal opinions to the effect that the pursuit of the grievances of Mr. Breeden would be unsuccessful. The Union was fully conversant with the factual background leading to the grievances of Mr. Breeden. In those circumstances, the Union was correct to advise Mr. Breeden that it was no longer prepared to pursue his grievances. Even if I was satisfied that the standard of review was one of correctness, I could come to the conclusion that the Panel was correct in coming to the conclusion that the obligations of the Union had been met even though the Union was not prepared to proceed and that the Reconsideration Panel was correct in coming to the conclusion that there should be no review of that initial decision.

[61] I am also satisfied that the Reconsideration Panel was correct in concluding that the s. 2 amendments did not have any impact on the interpretation to be given to s. 12 of the Code and that Mr. Breeden had not raised a good arguable case that might succeed on reconsideration. The Reconsideration Panel was also correct in concluding that the decision of the Board in Judd, supra, correctly confirmed the policy of the Board under s. 12 of the Code including the weight to be given to a consideration of the merits of the grievances and in concluding that this policy has not changed as a result of the amendments to s. 2 of the Code.

[62] The following passage from Judd which was quoted by the Reconsideration Panel correctly states the duties and obligations on unions:

... Section 12 concerns the duties of unions to the employees they represent. It is not a forum for complaints against the employer. Often, complainants focus on the wrongs they believe they have suffered in the workplace. While events in the workplace may form a part of the relevant background of a Section 12 complaint, the focus is on the union’s response to those events. The Board does not decide the merits of an employee’s grievance against the employer. Perceived injustice by the employer does not provide grounds for a Section 12 complaint against the union. It is the union’s conduct that is at issue.

RESULT

[63] The Petition of Mr. Breeden is dismissed. The Respondents will be entitled to their Party and Party (Scale 3) costs payable forthwith after assessment of the same.

“G.D. Burnyeat, J.”
The Honourable Mr. Justice G.D. Burnyeat