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Forestry

BC Supreme Court does not have jurisdiction to undertake, directly, judicial review of labour arbitrators' decisions

Jurisdiction: - British Columbia
Sector: - Forestry

A five judge panel of the BC Court of Appeal ruled in Northstar Lumber v. United Steelworkers of America, Local No. 1-424, 2009 BCCA 17, that the BC Supreme Court does not have jurisdiction to undertake, directly, the judicial review of labour arbitrators' decisions.

While the five justices were in agreement on the outcome, separate reasons were written by Justice Chiasson (concurred by Justice Lowry), Justice Saunders (concurred by Justice Levine) and Justice Hall (who concurred with both Justices Chiasson and Saunders).

Background

The underlying facts of the case concerned the dismissal of night watchman at the appellant company's mill. The night watchman was represented by the United Steelworkers. The matter ended up in arbitration pursuant to the collective agreement. The arbitrator agreed that the company had just cause, but substituted a five month suspension for the dismissal.  read more »

Production Manager at pulp mill entitled to 20 months notice

Jurisdiction: - British Columbia
Sector: - Forestry

Mr. Zaitsoff was dismissed without cause from his position as a Production Manager at a pulp mill in Castelgar. He was 46 years old and had worked at the mill for 19 years. He had four people reporting directly to him and 215 indirectly reporting. He earned $142,000 per year.

Notice Period

In relation to the fourth "Ansari" principle, the plaintiff pointed to the lack of available jobs in the pulp and paper industry, particularly in the current economic downturn.

In awarding the plaintiff 20 months, the court stated that while the lack of available employment opportunities resulting from a depressed economy is a factor to be taken into account, it “must not be given undue emphasis”.

Discounted Notice Period
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"Senior's forced retirement found to be constructive dismissal by B.C.'s top court"

Jurisdiction: - British Columbia
Sector: - Forestry

Cristin Schmitz wrote an article entitled "Senior's forced retirement found to be constructive dismissal by B.C.'s top court". It appeared in the February 15, 2008, issue of The Lawyers Weekly. The article reviews the BC Court of Appeal's decision in Fisher v. Lakeland Mills Ltd., 2008 BCCA 42.

Is a successor employer bound by an estoppel created by the predecessor employer?

Jurisdiction: - British Columbia
Sector: - Forestry

In a decision issued on April 26, 2006, the BC Labour Relations Board, in upholding an arbitrator's decision, found that under section 35 of the Code a successor employer is bound by an estoppel created by the predecessor employer.

The employer had argued, inter alia, that such a finding would "bring chaos to the commercial transactions related to the disposition of unionized enterprises". The BCLRB stated that a successor employer was bound, nonetheless, by the rights employees would have been entitled to had no transfer taken place.

Hayes Forest Service Limited and United Steelworkers of America, Local No. 1-85, B99/2006

The Duty to Accommodate in 'Hybrid' Cases

Jurisdiction: - British Columbia
Sector: - Forestry

Published in Management Rights journal (Vol. VIII, No. 1, 2005), pp. 436

In its decision in Fraser Lake Sawmills, the B.C. Labour Relations Board stated that when faced with employee misconduct that is attributable to both an underlying addiction and to culpable factors ("hybrid cases"), the employer must fashion a response that addresses all circumstances of the case. This could include discipline for the culpable aspect of the misconduct while at the same time imposing administrative measures for the non-culpable aspect.

As I explain in the article (see the link below), the Board also stated that the underlying disability must be accommodated.

In the first decisions after Fraser Lake Sawmills dealing with addiction issues, the role of the duty to accommodate was generally overlooked as the labour relations community struggled with how the Board's decision should be applied in practice. However, in two arbitration decisions issued in 2005, the arbitrators discussed how the duty to accommodate should be addressed in hybrid cases.  read more »