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Judicial Review

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 »

Court finds that Attendence Management Program does not amount to systemic discrimination

Jurisdiction: - British Columbia
Sector: - Transportation

In a decision issued a few weeks ago - Coast Mountain Bus v. CAW-Canada, 2009 BCSC 396 - the BC Supreme Court found that Coast Mountain Bus' Attendance Management Program (AMP) did not amount to systemic discrimination and that the monitoring of absences of employees who are regularly off work is a bona fide occupational requirement (BFOR). In doing so, the court overturned much of the BC Human Rights Tribunal's February 2008 decision on the matter.

Coast Mountain's predecessor company had first introduced the AMP in 1997. It applied to all of the company's employees, including its approximately 3,000 unionized transit operators.

The AMP had previously been the subject of a labour arbitration in 2000. Subsequent to the arbitrator's award - which allowed certain aspects of the grievance - the union filed a complaint with the BC Human Rights Tribunal (BCHRT).  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 »

BC Supreme Court issues first judicial review of PIPA

Topics: - Judicial Review - Privacy
Jurisdiction: - British Columbia

Given that the BC Privacy Commissioner has issued only a very limited number of decisions under the Personal Information Protection Act (PIPA) in the more than four years since it has come into effect, there was a measure of anticipation regarding the decision in Sochowski v. British Columbia (Information and Privacy Commissioner), 2008 BCSC 1390, which was the BC Supreme Court's first judicial review of one of these decisions.

The underlying privacy issue centered on a complaint filed by a long serving employee of Finning Canada about its new policy that required employees to provide their "driver abstracts" and insurance claim histories to the company on an annual basis. (The drivers abstract contains some information contained on a person's drivers license, and some that's not). Finning's position was that the information was necessary for insurance purposes.  read more »

BC government releases discussion paper on the standard of review applicable to tribunal decisions, post Dunsmuir

Topics: - Judicial Review
Jurisdiction: - British Columbia

The BC Government Administrative Justice Office has released a discussion paper on The Standard of Review Applicable to Tribunal Decisions in British Columbia - The Implications of Dunsmuir v. New Brunswick. You can read the paper here.

Birth father must begin parental leave within 52 weeks after child's birth, not complete it within 52 weeks

The issue in British Columbia Securities Commission v. Burke, 2008 BCSC 1244 was whether:

  • a birth father's parental leave must be completed within 52 weeks after the child's birth, or
  • the leave only needs to begin within 52 weeks after the child's birth.

Section 51(1)(c) of the BC Employment Standards Act provides:

An employee who requests parental leave under this section is entitled to:

- - -

for a birth father, up to 37 consecutive weeks of unpaid leave beginning after the child's birth and within 52 weeks after that event.

The Employment Standards Tribunal had determined that the latter interpretation noted above was the correct one. On judicial review, the Court upheld the Tribunal's decision.  read more »