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BC Court of Appeal

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).


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 »

BC Court of Appeal further defines standard of review for arbitrations under the Canada Labour Code

Jurisdiction: - Canada/Federal
Sector: - Transportation

In a case handed down last week, the BC Court of Appeal further defined the standard of review that applies to a labour arbitrator's decision, in light of the Supreme Court of Canada's (SCC's) decision in Dunsmuir v. New Brunswick, 2008 SCC 9.

The employer in this case was a federally regulated trucking company, meaning that the Canada Labour Code was the governing legislation.

In response to a judicial reveiw application, the BC Supreme Court had set aside the arbitrator's decision as it related to the scope of the grievance, and remitted the matter back to the arbitrator.

On appeal by the employer, the BC Court of Appeal noted that in Dunsmuir the SCC had concluded that there were now only two standards of review: correctness and reasonableness. The SCC further noted that, based on the jurisprudence, the reasonableness standard applies where:  read more »

Court has jurisdiction over defamation action brought by unionized employee against employer

Jurisdiction: - British Columbia
Sector: - Education

The BC Court of Appeal has overturned a lower court decision that held that a public school teacher's defamation action against his principal and school board was a matter that arose under the collective agreement and was thus not within in the court's jurisdiction.


The teacher, while off on a medical leave, attended the school and caused a disturbance that resulted in criminal charges and disciplinary action by the BC College of Teachers. (The College's disciplinary action was subsequently overturned by the court on the basis that the teacher had been incompetent due to his medical condition).

As part of the same court action, the teacher brought the defamation action in relation to comments the principal had allegedly made to a police officer.  read more »

BC Court of Appeal hands down decision in "political protests" case

Jurisdiction: - British Columbia
Sector: - Education

In a decision handed down on February 4, 2009 - British Columbia Teachers' Federation v. British Columbia Public School Employers' Assn., 2009 BCCA 39 - the BC Court of Appeal ruled that the political protests/work stoppages conducted by members of the BC Teachers Federation and the Hospital Employees Union in 2002 were "strikes" in contravention of the BC Labour Relations Code.

In dismissing the appeal, the Court of Appeal ruled that while the definition of "strike" in section 1 of the BC Labour Relations Code infringes the freedom of expression guarantees in Section 2(b) of the Canadian Charter of Rights and Freedoms, the infringment is justified under Section 1 of the Charter.

The Court of Appeal further ruled that the defnition of "strike" does not infringe Section 2(c) or Section 2(d) of the Charter.

The Court of Appeal's decision upholds - in the result - previous decisions of the BC Labour Relations Board and the BC Supreme Court (2007 BCSC 372).

BC Appeal Court reviews law on notice period for short service employees and rights under stock option plans

Jurisdiction: - British Columbia
Sector: - High Tech

In Saalfeld v. Absolute Software Corporation, 2009 BCCA 18, the BC Court of Appeal addressed:

  1. the notice period owed to a short service employee; and
  2. an employee's entitlment to stock options during the notice period.

Notice Period

The employee's employment was terminated without cause after approximately nine months of service. She had held a senior software sales position, was 35 years old and earned a base salary of $60,000 with target earnings of $100,000 inclusive of commissions.

The BC Court of Appeal upheld the trial judge's award of a five month notice period, finding that it was not unreasonable given that it took the employee nine months to secure new employment.

However, in a statement that will bring comfort to employers, Madam Justice Huddart  also stated that:  read more »