West Coast Vibe

The B.C. Court of Appeal on reconsiderations vs appeals and the potential impact of election promises on the justice system here and abroad

I recently returned from a brief trip to Vancouver Island, visiting Victoria and Tofino. Definitely a Spring vibe there - and returned to an April snowstorm in Ottawa. In this newsletter, I will focus on British Columbia with a case comment on a recent BC Court of Appeal decision.

Election update, of sorts

I said I would keep a watching brief on the federal election and any promises related to administrative law and justice. I was not hopeful that there would be much discussion about administrative justice and I have been mostly right.

The Conservatives have released a platform promise related to criminal justice, including bail reform. The platform includes mandatory minimums and “three-strikes and you’re out”. I am not qualified to comment on criminal law, including bail. There are critical procedural fairness and justice issues related to Pierre Polievre’s previous comments on bail reform (“jail not bail”) that have recently been well-argued. Some lawyers have argued that most of the Conservative’s criminal law proposals are unconstitutional.

The Liberals response to these proposals include restrictions on bail, including establishing a reverse onus on those seeking it. The Liberal platform also includes “toughening sentencing guidelines” for offences such as car theft, violent crime and organized crime.

Another Conservative policy proposal relates to federal funding of post-secondary institutions — promising an “end to the imposition of woke ideology in the federal civil service and in the allocation of federal funds for university research.” In his speech announcing the promise, Pierre Poilievre said that a Conservative government would ensure that funding for university research goes to science and technology and not to “radical political ideology.”

There are few details on what this promise would mean for federal funding of research on access to justice issues and policy. If the Conservatives adopt the current American approach to university research funding, the effects could be significant.

It is also not clear what the promise would mean for the federal public service. Some have suggested that it might result in the elimination of gender-based analysis of government policies or even the elimination of employment equity legislation and policies. However, there is so little detail in this general promise it is too early to tell what impact it might have on access to justice and employment equity.

The Conservatives have also promised significant cuts to foreign aid. Again, there are few details on what aid programs would be on the chopping block. However, Canada uses foreign aid to promote democracy, public institutions and the Rule of Law in many countries around the world.

Reconsideration by tribunal or judicial review - procedural recommendation from the BC Court of Appeal

Many tribunals have a process for reconsideration of their decisions and the question sometimes arises as to whether a party must first seek a reconsideration before proceeding to a judicial review. The British Columbia Court of Appeal recently addressed this issue in Rehn Enterprises Ltd. v. United Steelworkers, Local 1-1937, 2025 BCCA 116.

The BC Labour Relations Code sets out the following process for challenging decisions of labour arbitrators appointed to hear grievances under a collective agreement:

Appeal jurisdiction of Labour Relations Board

99 (1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a) a party to the arbitration has been or is likely to be denied a fair hearing, or

(b) the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

(2) An application to the board under subsection (1) must be made in accordance with the regulations.

Appeal jurisdiction of Court of Appeal

100 On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law

(a) unrelated to a collective agreement, labour relations or related determinations of fact, and

(b) not included in section 99(1).

This provision only came into force in 2019. Prior to the amendment, s. 100 read:

On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1).

The Court of Appeal noted that the amendment imposes an additional qualification to the concept of “a matter or issue of the general law”. Before the court can assume jurisdiction, the basis of the arbitrator’s decision must be a matter of general law “unrelated to a collective agreement, labour relations or related determinations of fact”.

The jurisprudence under the former version of these sections had relied on a three-part test set out in Health Employers Assn. of B.C. v. B.C. Nurses’ Union, 2005 BCCA 343:

[49] …

1. Identify the real basis of the award;

2. Determine whether the basis of the award is a matter of general law;

3. If the basis of the award is a matter of general law, determine whether it raises a question or questions concerning the principles of labour relations, whether expressed in the Labour Relations Code or another statute.

[50] If the answer to the third question is affirmative, then review of the award lies within the jurisdiction of the Labour Relations Board. If it is negative, review lies within the jurisdiction of this Court.

In this case, the court noted that the 2019 amendment signaled “a legislative intent to grant the Board jurisdiction in all but the most exceptional of cases” (para. 37). Given the clear language in the new s. 100(a), the court restated the test as follows (at para. 38):

a) Identify the real basis of the award.

b) Determine whether the basis of the award is a matter of general law. If it is not, the Board has jurisdiction.

c) If the basis of the award is a matter of general law, determine whether that matter of general law is related to a collective agreement, labour relations or related determinations of fact. If it is, the Board has jurisdiction. If it is not, the Court has jurisdiction.

On the facts of the case, the court determined that the appeal clearly fell within the exclusive jurisdiction of the Board.

The Court of Appeal continued to discuss a procedural issue arising out of the appeal (although it was not determinative). The court described the position it was in as “unique and somewhat troubling”. Sections 99 and 100 of the Code establish mutually exclusive, non-concurrent jurisdictions for the court and labour board on applications to review decisions of labour arbitrators. These parallel processes mean that it has always been possible for a party to simultaneously seek review of an arbitrator’s decision before both the board and the court. In the past, the board would often defer hearing an application for a review pending the outcome of the appeal to the court. However, in this case the board accepted jurisdiction under s. 99 and dismissed Rehn’s review application on the merits prior to the Court of Appeal hearing Rehn’s appeal.

The court noted that with the 2019 amendment, the board is less likely to defer applications for review of an arbitration award pending resolution of the appeal at the Court of Appeal. The court noted:

[48] The problem posed by this situation should be evident. A party in Rehn’s position is asking this Court to decide the same questions that the Board, another adjudicative body, has already determined, even though the Board’s decision is not directly challenged before this Court. In the present case, the problem is compounded by the fact that Rehn has not sought leave to apply for reconsideration of the Board decision under s. 141 of the Code. Accordingly, the Board’s decision, both on the jurisdictional and substantive issues, is final as Rehn has exhausted its administrative review procedures.

[49] Although the Code creates two possible avenues of review, pursuit of the appeal to this Court following a final decision of the Board raises questions about the waste of judicial resources and the prospect of inconsistent results. Permitting appeals to proceed in these circumstances could violate “such principles as judicial economy, consistency, finality and the integrity of the administration of justice”: Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63 at para. 37. Although the Union has not taken this position, I am concerned that these circumstances could be seen to be an abuse of process.

In the circumstances, the court declined to exercise its inherent power to prevent misuse of its proceedings, in part because this particular procedural issue had not arisen before. However, the court expressed the view that should a similar circumstance arise in the future, the following process should be followed:

[52] … where the Board accepts jurisdiction and determines the review on its merits, it would be preferable for the party who sought review to pursue its administrative remedies by seeking a reconsideration of the Board’s decision pursuant to s. 141 of the Code, rather than attempting to invoke this Court’s jurisdiction under s. 100. If unsuccessful in obtaining reconsideration, that party could then pursue an application for judicial review to the British Columbia Supreme Court and, ultimately, an appeal of the judicial review into this Court. The advantage of these procedures is that the reviewing court would have the benefit of the record and decision of the Board before it. It would also guard against the potential risk of this Court declining to hear the appeal to prevent an abuse of process.

Links of interest