Northstar Lumber v. United Steelworkers of America, Local No. 1-424 et al., 2009 BCCA 173

• Judge: Hall, Saunders, Levine, Lowry and Chiasson, JJ.A.
• Court: Court of Appeal (British Columbia)
• Case Date: April 22, 2009
• Jurisdiction: British Columbia
• Citations: 2009 BCCA 173;(2009), 271 B.C.A.C. 78 (CA)

Northstar Lumber v. USWA (2009), 271 B.C.A.C. 78 (CA);

    458 W.A.C. 78

MLB headnote and full text

Temp. Cite: [2009] B.C.A.C. TBEd. JN.019

Northstar Lumber, a Division of West Fraser Mills Ltd. (appellant/petitioner) v. United Steelworkers of America, Local No. 1-424 and the Labour Relations Board (respondents/respondents)

(CA035866; 2009 BCCA 173)

Indexed As: Northstar Lumber v. United Steelworkers of America, Local No. 1-424 et al.

British Columbia Court of Appeal

Hall, Saunders, Levine, Lowry and Chiasson, JJ.A.

April 22, 2009.

Summary:

An employee grieved his dismissal. The matter was sent to arbitration pursuant to the provisions of the collective agreement. The arbitrator concluded that the employer had just cause to discipline, but held that dismissal was too severe. The arbitrator ordered a five month suspension. The employer appealed to the Labour Relations Board, which upheld the arbitrator's decision. The employer's application for leave for reconsideration by the Board was denied. The employer applied for judicial review of all three decisions: the arbitrator's award, the appeal and the refusal to reconsider.

The British Columbia Supreme Court, in a decision reported at [2008] B.C.T.C. Uned. 102, considered the arbitrator's decision and held that, pursuant to the decision in Stark v. Vancouver School District No. 39 (B.C.C.A.), it did not have jurisdiction to undertake directly the judicial review of decisions of labour arbitrators. Alternatively, on the basis that there was jurisdiction, the court determined that the arbitrator was correct. The employer appealed.

The British Columbia Court of Appeal dismissed the appeal.

Arbitration - Topic 7901

Judicial review (incl. appeals) - Jurisdiction of the courts - General - [See Labour Law - Topic 7111 ].

Constitutional Law - Topic 8606

Judicial power - Appointment of judges (s. 96) - Provincial labour relations legislation - An employee grieved his dismissal - The matter was sent to arbitration pursuant to the provisions of the collective agreement - The arbitrator allowed the grievance - The employer appealed to the Labour Relations Board, which upheld the arbitrator's decision - The employer's application for leave for reconsideration by the Board was denied - The employer applied for judicial review of all three decisions: the arbitrator's award, the appeal and the refusal to reconsider - The chambers judge considered the arbitrator's decision and held that he did not have jurisdiction to undertake directly the judicial review of decisions of labour arbitrators - The employer appealed, asserting that s. 99 of the Labour Relations Code, which entrusted the direct review of labour arbitrators' decisions to the Board, was unconstitutional where it violated s. 96 of the Constitution Act - The employer submitted that this power was an impermissible grant of a core jurisdiction of the Supreme Court - The British Columbia Court of Appeal, per Chiasson and Lowry, JJ.A., dismissed the appeal - The decisions of labour arbitrators were not insulated from the supervisory jurisdiction of the superior court - There were two avenues for the review of labour arbitrators' awards: one direct; the other indirect - Section 100 of the Code provided for an appeal to this court on questions of general law; s. 99 gave a right of appeal to the Board; and s. 138 left open judicial review of decisions of the Board on matters of jurisdiction, including its decisions on appeals from arbitral decisions or reconsiderations of those decisions - Further, there was clear authority that granting a review of appellate power was not per se impermissible - See paragraphs 42 to 61.

Constitutional Law - Topic 8606

Judicial power - Appointment of judges (s. 96) - Provincial labour relations legislation - An employee grieved his dismissal - The matter was sent to arbitration pursuant to the provisions of the collective agreement - The arbitrator allowed the grievance - The employer appealed to the Labour Relations Board, which upheld the arbitrator's decision - The employer's application for leave for reconsideration by the Board was denied - The employer applied for judicial review of all three decisions: the arbitrator's award, the appeal and the refusal to reconsider - The chambers judge considered the arbitrator's decision and held that he did not have jurisdiction to undertake directly the judicial review of decisions of labour arbitrators - The employer appealed, asserting that s. 99 of the Labour Relations Code, which entrusted the direct review of labour arbitrators' decisions to the Board, was unconstitutional where it violated s. 96 of the Constitution Act - The employer submitted that the grant of authority to the Board failed to meet the tests stated in Reference Re Residential Tenancies Act, 1979 (S.C.C. 1981), as reformulated in Reference re Amendments to the Residential Tenancies Act (N.S.) (S.C.C. 1996): "1. does the power conferred 'broadly conform' to a power or jurisdiction exercised by a superior ... court at the time of Confederation? 2. if so, is it a judicial power? 3. if so, is the power either subsidiary or ancillary to a predominantly administrative function or necessarily incidental to such a function?" - The British Columbia Court of Appeal, per Chiasson and Lowry, JJ.A., dismissed the appeal - The jurisdiction exercised by the Board in its review of labour arbitrators' decisions and in any reconsideration of the results of such a review was not an authority analogous to the jurisdiction exercised by superior courts at the time of Confederation - It was doubtful whether the authority was judicial - Finally, an examination of the mandate of arbitrators operating under the Code showed clearly their importance to the legislative purpose and scheme - See paragraphs 62 to 76.

Constitutional Law - Topic 8606

Judicial power - Appointment of judges (s. 96) - Provincial labour relations legislation - An employee grieved his dismissal - The matter was sent to arbitration pursuant to the provisions of the collective agreement - The arbitrator allowed the grievance - The employer appealed to the Labour Relations Board, which upheld the arbitrator's decision - The employer's application for leave for reconsideration by the Board was denied - The employer applied for judicial review of all three decisions: the arbitrator's award, the appeal and the refusal to reconsider - The chambers judge considered the arbitrator's decision and held that he did not have jurisdiction to undertake directly the judicial review of decisions of labour arbitrators - The employer appealed, asserting that s. 99 of the Labour Relations Code, which entrusted the direct review of labour arbitrators' decisions to the Board, was unconstitutional where it violated s. 96 of the Constitution Act - The British Columbia Court of Appeal, per Saunders and Levine, JJ.A., dismissed the appeal - The question posed was whether, in entrusting review of labour arbitration decisions to the Labour Relations Board, s. 99 had impermissibly interfered with the jurisdiction of the Supreme Court of British Columbia - The court held that where, as here, the labour arbitrator's role was novel, and, historically, the courts did not superintend an analogous role prior to Confederation using the prerogative writs, there was no basis upon which to say powers of a s. 96 court had devolved to the Board - The statutory scheme itself encouraged an approach that retained valuable flexibility in the details of labour relations, but preserved to the court, through judicial review of decisions of the Board and the appeal provisions for questions of general law, those aspects that were the hallmark of a s. 96 court - See paragraphs 80 to 112.

Labour Law - Topic 7111

Industrial relations - Collective agreement - Enforcement - Arbitration - Judicial review - General - An employee grieved his dismissal - The matter was sent to arbitration pursuant to the provisions of the collective agreement - The arbitrator allowed the grievance - The employer appealed to the Labour Relations Board, which upheld the arbitrator's decision - The employer's application for leave for reconsideration by the Board was denied - The employer applied for judicial review of all three decisions: the arbitrator's award, the appeal and the refusal to reconsider - The chambers judge considered the arbitrator's decision and held that, pursuant to the decision in Stark v. Vancouver School District No. 39 (B.C.C.A.), he did not have jurisdiction to undertake directly the judicial review of decisions of labour arbitrators - The employer appealed, asserting that while Stark foreclosed some judicial review of labour arbitrators' decision, it left open judicial review of arbitral decisions for alleged errors of jurisdiction because that power was not granted to the Board - The British Columbia Court of Appeal dismissed the appeal - There was nothing in Stark and nothing in s. 99 of the Labour Relations Code to suggest that the Board's authority was limited to non-jurisdictional error - In addition to ensuring the fairness of hearings, the Board had the authority to require arbitral decisions to conform to the principles expressed or implied in the Code and similar legislation, an authority that encompassed the full ambit of the jurisdiction of labour arbitrators - See paragraphs 36 to 41.

Cases Noticed:

Stark v. Board of School Trustees of School District No. 39 (Vancouver) et al. (2006), 226 B.C.A.C. 85; 373 W.A.C. 85; 2006 BCCA 124, appld. [paras. 2, 82, 113].

James v. Labour Relations Board (B.C.) et al. (2007), 235 B.C.A.C. 118; 388 W.A.C. 118; 2007 BCCA 30, refd to. [para. 12].

Compass Group Canada (Health Services) Ltd. v. Hospital Employees' Union et al. (2007), 240 B.C.A.C. 161; 398 W.A.C. 161; 2007 BCCA 237, refd to. [para. 12].

MacMillan Bloedel Ltd. v. Simpson et al., [1995] 4 S.C.R. 725; 191 N.R. 260; 68 B.C.A.C. 161; 112 W.A.C. 161; 130 D.L.R.(4th) 385, refd to. [paras. 15, 98].

Reference Re Residential Tenancies Act of Ontario - see Residential Tenancies Act of Ontario, Re.

Residential Tenancies Act of Ontario, Re, [1981] 1 S.C.R. 714; 37 N.R. 158; 123 D.L.R.(3d) 554, refd to. [paras. 15, 98].

Reference Re Residential Tenancies Act (N.S.), [1996] 1 S.C.R. 186; 193 N.R. 1; 149 N.S.R.(2d) 1; 432 A.P.R. 1; 131 D.L.R.(4th) 609, refd to. [paras. 15, 98].

Kinsmen Retirement Centre Association v. Hospital Employees' Union Local 180 (1985), 63 B.C.L.R. 292 (C.A.), refd to. [para. 26].

New Brunswick (Board of Management) v. Dunsmuir, [2008] 1 S.C.R. 190; 372 N.R. 1; 329 N.B.R.(2d) 1; 844 A.P.R. 1; 2008 SCC 9, refd to. [para. 36].

Crevier v. Quebec (Attorney General) and Aubry; Crevier v. Quebec (Attorney General), Cofsky and Alberta (Attorney General), [1981] 2 S.C.R. 220; 38 N.R. 541; 127 D.L.R.(3d) 1, refd to. [paras. 44, 99].

Noël v. Société d'énergie de la Baie James, [2001] 2 S.C.R. 207; 271 N.R. 304; 2001 SCC 39, refd to. [para. 44].

Manz v. Sundher - see Manz v. Workers' Compensation Appeal Tribunal (B.C.) et al.

Manz v. Workers' Compensation Appeal Tribunal (B.C.) et al. (2009), 267 B.C.A.C. 99; 450 W.A.C. 99; 2009 BCCA 92, refd to. [paras. 48, 99].

Farrah v. Quebec (Attorney General) and Transport Tribunal, [1978] 2 S.C.R. 638; 21 N.R. 595, refd to. [para. 52].

Dupont v. Inglis, [1958] S.C.R. 535, refd to. [para. 59].

John East Iron Works Ltd. v. Labour Relations Board (Sask.) - see East (John) Iron Works Ltd. v. Labour Relations Board (Sask.).

East (John) Iron Works Ltd. v. Labour Relations Board (Sask.), [1949] A.C. 134; [1948] 4 D.L.R. 673 (P.C.), refd to. [paras. 64, 106].

Brewer v. Fraser Milner Casgrain LLP et al. (2008), 432 A.R. 188; 424 W.A.C. 188; 2008 ABCA 160, leave to appeal refused (2008), 391 N.R. 396 (S.C.C.), refd to. [para. 99].

Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85; 70 D.L.R.(2d) 693, refd to. [para. 103].

Howe Sound Co. v. International Union of Mine, Mill and Smelter Workers (Canada), Local 663, [1962] S.C.R. 318; 33 D.L.R.(2d) 1, refd to. [para. 104].

Young v. Canadian Northern Railway Co., [1931] A.C. 83; [1931] 1 D.L.R. 645 (P.C.), refd to. [para. 105].

Statutes Noticed:

Labour Relations Code, R.S.B.C. 1996, c. 244, sect. 99 [para. 29].

Counsel:

D.J. Jordan Q.C., for the appellant;

C.D. Bavis and J. Mistry, for the respondent, United Steelworkers of America;

D.W. Garner and K. Koles, for the respondent, Labour Relations Board;

E.W. Hughes, for the Attorney General of British Columbia.

This appeal was heard on January 14 and 15, 2009, at Vancouver, B.C., by Hall, Saunders, Levine, Lowry and Chiasson, JJ.A., of the British Columbia Court of Appeal. The judgment of the Court of Appeal was delivered on April 22, 2009, and the following opinions were filed:

Chiasson, J.A. (Lowry, J.A., concurring) - see paragraphs 1 to 79;

Saunders, J.A. (Levine, J.A., concurring) - see paragraphs 80 to 112;

Hall, J.A. - see paragraph 113.