Bennett v. British Columbia,

• Jurisdiction: British Columbia
• Judge: Newbury, Levine and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Citation: (2007), 234 B.C.A.C. 180 (CA),2007 BCCA 5
• Date: 02 January 2007

Bennett v. B.C. (2007), 234 B.C.A.C. 180 (CA);

    387 W.A.C. 180

MLB headnote and full text

Temp. Cite: [2007] B.C.A.C. TBEd. JA.020

Frederick Bennett (respondent/plaintiff) v. Her Majesty The Queen in Right of the Province of British Columbia (appellant/defendant)

(CA033624; CA033628; 2007 BCCA 5)

Indexed As: Bennett v. British Columbia

British Columbia Court of Appeal

Newbury, Levine and Chiasson, JJ.A.

January 2, 2007.

Summary:

The plaintiff sought certification of a class action against the Province on behalf of 27,000 retirees of the Province, Crown corporations and other Crown-related bodies for breach of contract and breach of fiduciary duty. All retirees received premium-free health care benefits after retirement until the Province statutorily repealed its obligation to pay 100% of the premiums. The plaintiff claimed a vested, post-retirement contractual right to premium-free health benefits. No collective agreement had ever dealt with subsidized health care benefits to retirees, the benefits were external to any collective agreement and retirees were not parties having a connection with the collective agreement. Although retirees had a remedy to force their former union to pursue a grievance, the union would have a conflict of interest given its obligation to current members. The Province moved to dismiss the action on the ground that the matter fell within the exclusive jurisdiction of an arbitrator.

The British Columbia Supreme Court, in a judgment reported [2005] B.C.T.C. 1673, dismissed the Province's motion, finding that the court had jurisdiction to hear the action and, if jurisdiction was concurrent, a class action was the preferable procedure. The court defined the class (all former employees of the Province, Crown corporations and other Crown-related bodies), defined the issues (breach of contract and/or breach of fiduciary duty) and appointed the plaintiff as the representative plaintiff. The Province appealed, submitting that the court erred in failing to find that the dispute fell within the exclusive jurisdiction of one or more labour arbitrators and erred in permitting retirees not directly employed by the Province to be included in the class.

The British Columbia Court of Appeal affirmed that the court had jurisdiction to hear the action. The dispute was not within the exclusive jurisdiction of an arbitrator, as the essential character of the dispute did not arise from the interpretation, application, administration or violation of a collective agreement. The collective agreement did not deal explicitly or implicitly with the facts in dispute. The court allowed the appeal to the limited extent of deleting those retirees not directly employed by the Province (those employed by Crown corporations or related Crown bodies) from the class of plaintiffs in the breach of contract claim. All retirees remained in the class of plaintiffs in the breach of fiduciary claim. Finally, even if there was concurrent jurisdiction, a class action was the preferable procedure.

Labour Law - Topic 9076

Public service labour relations - Remedies - Civil action - When available - The plaintiff had certified a class action against the Province on behalf of 27,000 retirees of the Province, Crown corporations and other Crown-related bodies for breach of contract and breach of fiduciary duty - All retirees received premium-free health care benefits after retirement until the Province statutorily repealed its obligation to pay 100% of the premiums - The plaintiff claimed a vested, post-retirement contractual right to premium-free health benefits - No collective agreement had ever dealt with subsidized health care benefits to retirees, the benefits were external to any collective agreement and retirees were not parties having a connection with the collective agreement - Although retirees had a remedy to force their former union to pursue a grievance, the union would have a conflict of interest given its obligation to current members - The British Columbia Court of Appeal affirmed that the court had jurisdiction to hear the action - The dispute was not within the exclusive jurisdiction of an arbitrator, as the essential character of the dispute did not arise from the interpretation, application, administration or violation of a collective agreement - The collective agreement did not deal explicitly or implicitly with the facts in dispute - The court allowed the appeal to the limited extent of deleting those retirees not directly employed by the Province (those employed by Crown corporations or related Crown bodies) from the class of plaintiffs in the breach of contract claim - All retirees remained in the class of plaintiffs in the breach of fiduciary claim - Even if there was concurrent jurisdiction, a class action was the preferable procedure.

Labour Law - Topic 9102

Public service labour relations - Grievances - Matters referable to adjudication - [See Labour Law - Topic 9076 ].

Labour Law - Topic 9655

Public service labour relations - Collective agreement - Civil action - Jurisdiction - [See Labour Law - Topic 9076 ].

Practice - Topic 209.3

Persons who can sue and be sued - Individuals and corporations - Status or standing - Class or representative actions - Certification - Considerations (incl. when class action appropriate) - [See Labour Law - Topic 9076 ].

Cases Noticed:

Weber v. Ontario Hydro, [1995] 2 S.C.R. 929; 183 N.R. 241; 82 O.A.C. 321, refd to. [para. 23].

Fasslane Delivery Services Ltd. v. Purolator Courier Ltd. (2004), 199 B.C.A.C. 262; 326 W.A.C. 262; 30 B.C.L.R.(4th) 95; 2004 BCCA 300, refd to. [para. 23].

Kranjcec v. Ontario, [2004] O.T.C. 14; 69 O.R.(3d) 231 (Sup. Ct.), refd to. [para. 26].

Ormrod et al. v. Hydro-Electric Commission of Etobicoke (City), [2001] O.T.C. 149; 53 O.R.(3d) 285 (Sup. Ct.), refd to. [para. 26].

Haight-Smith v. Neden et al. (2002), 164 B.C.A.C. 236; 268 W.A.C. 236; 98 B.C.L.R.(3d) 260; 2002 BCCA 132, refd to. [para. 30].

Elkview Coal Corp. v. United Steelworkers of America, Local 9346 et al. (2001), 156 B.C.A.C. 244; 255 W.A.C. 244; 92 B.C.L.R.(3d) 62; 2001 BCCA 488, refd to. [para. 30].

Haynes v. British Columbia Teachers' Federation et al., [2005] B.C.T.C. 627; 2005 BCSC 627, refd to. [para. 30].

Ancheta v. Joe et al., [2003] B.C.T.C. 93; 11 B.C.L.R.(4th) 348; 2003 BCSC 93, refd to. [para. 30].

Regina Police Association Inc. and Shotton v. Board of Police Commissioners of Regina, [2000] 1 S.C.R. 360; 251 N.R. 16; 189 Sask.R. 23; 216 W.A.C. 23; 2000 SCC 14, refd to. [para. 31].

Bisaillon v. Concordia University, [2006] 1 S.C.R. 666; 348 N.R. 201; 2006 SCC 19, dist. [para. 32].

J.M. Asbestos Inc. v. Lemieux, [1986] Q.J. No. 613 (C.A.), refd to. [para. 33].

Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), [1993] 2 S.C.R. 230; 152 N.R. 1; 63 O.A.C. 1, dist. [para. 38].

Government Employee Relations Bureau v. British Columbia Government Employees' Union (1984), 58 B.C.L.R. 1 (C.A.), refd to. [para. 43].

British Columbia Government Employees Union v. British Columbia (1987), 12 B.C.L.R.(2d) 97 (C.A.), refd to. [para. 43].

Health Employers Association of British Columbia v. British Columbia Nurses' Union (2005), 214 B.C.A.C. 66; 353 W.A.C. 66; 45 B.C.L.R.(3d) 245; 2005 BCCA 343, refd to. [para. 43].

Loyalist College of Applied Arts and Technology v. Ontario Public Service Employees Union (2003), 169 O.A.C. 116; 63 O.R.(3d) 641 (C.A.), refd to. [para. 46].

Claxton v. BML Multi Trades Group (2003), 177 O.A.C. 190; 27 C.C.E.L.(3d) 161 (C.A.), refd to. [para. 46].

Mainland Sawmills Ltd. et al. v. Industrial Wood and Allied Workers of Canada, Local 1-3567 et al. (2005), 208 B.C.A.C. 270; 344 W.A.C. 270; 36 B.C.L.R.(4th) 310; 2005 BCCA 89, refd to. [para. 46].

Cominco Pensioners Union v. Cominco Ltd., B.C.L.R.B. No. 49/79, refd to. [para. 48].

Bohemier et al. v. Centra Gas Manitoba Inc. et al. (1999), 134 Man.R.(2d) 85; 193 W.A.C. 85; 170 D.L.R.(4th) 310 (C.A.), refd to. [para. 48].

Washer v. British Columbia Toll Highways and Bridges Authority (1965), 53 D.L.R.(2d) 620 (B.C.C.A.), refd to. [para. 50].

Perehinec v. Northern Pipeline Agency, [1983] 2 S.C.R. 513; 50 N.R. 248, refd to. [para. 50].

Statutes Noticed:

Labour Relations Code, R.S.B.C. 1996, c. 244, sect. 84(2), sect. 84(3) [para. 4].

Pension Statutes Amendment Act, S.B.C. 1994, c. 54, sect. 61(2) [para. 11].

Public Service Labour Relations Act, R.S.B.C. 1996, c. 388, sect. 12 [para. 42].

Authors and Works Noticed:

Blouin, R., and Morin, F., Droit de l'arbitrage de grief (5e éd. 2000), generally [para. 34].

Gagnon, Robert P., Droit du travail du Quebec: pratiques et theories (5th Ed. 2003), p. 506 [para. 32].

Counsel:

J.G. Morley, D.C. Prowse and T. Callan, for the appellant;

P. Waldmann, M. Zigler and A. Peeling, for the respondent.

This appeal was heard on October 19-20, 2006, at Vancouver, B.C., before Newbury, Levine and Chiasson, JJ.A., of the British Columbia Court of Appeal.

On January 2, 2007, the judgment of the Court was delivered and the following opinions were filed:

Newbury, J.A. (Levine, J.A., concurring) - see paragraphs 1 to 53;

Chiasson, J.A. - see paragraphs 54 to 72.