Ophira Goldman Plaintiff v. Fraser Valley Aboriginal Children and Family Services Society (FVACFSS) doing business as Xyolhemeylh, 2019 BCSC 1349

IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Goldman v. Fraser Valley Aboriginal Children and Family Services, 2019 BCSC 1349 Date: 20190625 Docket: S35339 Registry: Chilliwack Between: Ophira Goldman Plaintiff And Fraser Valley Aboriginal Children and Family Services Society (FVACFSS) doing business as Xyolhemeylh Defendant Before: The Honourable Mr. Justice Dley in Chambers Oral Reasons for Judgment Counsel for the Plaintiff: J. Legaree, as agent for J. Meyers Counsel for the Defendant: N. Jategaonkar Place and Date of Trial/Hearing: Chilliwack, B.C.

June 25, 2019 Place and Date of Judgment: Chilliwack, B.C. June 25, 2019 [ 1 ] THE COURT: Ms. Goldman was terminated from her employment with the defendant. She has commenced this action for wrongful dismissal. [ 2 ] The defendant applies to have Ms. Goldman's action struck because, at the time of the termination, Ms. Goldman was part of a bargaining unit where the B.C. Government & Service Employees' Union (“the BCGEU”) was the certified bargaining agent.

At the time of termination, the BCGEU and the defendant had not yet concluded a first collective agreement. [ 3 ] The defendant argues that, pursuant to the provisions of the Labour Relations Code, R.S.B.C. 1996, c. 244 (“ Code ”), the only remedies available to Ms. Goldman are through the Labour Relations Board (“LRB”) and this court has no jurisdiction to intercede. [ 4 ] For the reasons that follow, I conclude that the action must be dismissed. Background Facts [ 5 ] Ms.

Goldman was employed by the defendant from December 11, 2006. [ 6 ] The BCGEU was certified on October 20, 2016 as the bargaining agent for the defendant's employees. [ 7 ] Ms. Goldman's employment was terminated on July 11, 2017. At the time of termination, Ms. Goldman was a member of the bargaining unit. [ 8 ] On November 30, 2018, Ms. Goldman commenced an action claiming damages for wrongful dismissal. [ 9 ] The first collective agreement for the bargaining unit was ratified on February 21, 2019. The Labour Relations Code

[10] The Code governs the relationship between an employer and union members. The following provisions of the Code are relevantto this application:

(1) A union certified as the bargaining agent for an appropriate bargaining unit has exclusive authority to bargain collectively for theunit. (Section 27)

(2) A trade union must not act in a manner that is arbitrary, discriminatory, or in bad faith in representing any of the employees in anappropriate bargaining unit. (Section 12)

(3) Every collective agreement must contain a provision governing dismissal of an employee and must contain a provision thatrequires the employer to have a just and reasonable cause for dismissal. (Section 84) Discussion [11] In order to determine whether the exclusive jurisdiction of the LRB is engaged, it is necessary to examine the "essentialcharacter" of the issues between the employer and employee: Weber v. Ontario Hydro, (SCC), [1995] 2 S.C.R. 929, atparas. 52-53. If the essential character of the dispute falls within the ambit of the collective agreement, then there is no question that theLRB retains exclusive jurisdiction.

Section 136 of the Code gives the LRB exclusive jurisdiction over matters that fall within its statutoryauthority. [12] There is no doubt that Ms. Goldman's dismissal fell within what would have been the terms of a collective agreement, if onehad been in force. [13]

Section 84 of the Code requires a provision in every collective agreement governing employee dismissal, and, if no suchprovision was included, then it is deemed to be included. Therefore, the essential character of the dispute, being that of a dismissal, fellwithin the ambit of a collective agreement. [14] The issue is thus narrowed to the present circumstances where a collective agreement had not yet been concluded. Ms. Goldmanargues that, because there was no collective agreement, she was entitled to seek an alternative remedy through the courts. [15] The law has evolved since the decision in Martin v.

Insurance Corp. of British Columbia, [1979] B.C.J. No. 1111, where thecourt retained jurisdiction in the absence of a collective agreement. That case has now been overtaken by recent decisions, includingMyrtezaj v. Cintas Canada Limited, 2008 ONCA 277, and Augustin v. Double Down (Langley) Ventures Ltd., 2014 BCSC 1657. In thosecases, the courts declined jurisdiction even though there was no collective agreement in place. [16] The considerations of not having a collective agreement in place are succinctly set out in Augustin, where Mr.

Justice Affleckmakes the following comments at paras. 37-38: [37] The Grand Villa plaintiffs submit Weber is distinguishable on its facts and ought not to be applied to the present application.Clearly Weber is distinguishable but the legal principles articulated in Weber and in numerous other cases, make clear that there is acompelling public policy interest found in the Code and in other labour relations legislation in Canada leaving the adjudication ofdisputes which in their essence are covered by collective agreements to the specialized tribunals mandated by that legislation.

In myopinion Weber and cases which have followed it are clear authority against the position of the Grand Villa plaintiffs. [38] The Grand Villa plaintiffs submit that none of the causes of action they plead are referred to in the Code or the collectiveagreement and all arose before there was a collective agreement. That is correct but in my view does not assist them.

Once the collectiveagreement was put in place all disputes inherent in the employment relationship must be resolved through the scheme found in the Code.The scheme and the policy reasons for its enactment would be compromised if an employee later bound by a collective agreement couldthwart the scheme simply by getting to the courthouse to institute a legal proceeding based on common law principles before beingbound by the collective agreement. [17] Ms. Goldman surrendered her individual employee vis-à-vis employer rights to the union when she became part of thebargaining unit.

She traded her personal rights for the benefits of the collective unit. [18] Ms. Goldman retained the ability to ensure that she was not unfairly treated through the duty imposed on the union to actappropriately. It was up to the union, as the bargaining agent, to cover off Ms. Goldman's dismissal as part of the ultimate collectiveagreement. If Ms.

Goldman has a grievance, it must be dealt with through the provisions set out in the Code and to which the LRB hasexclusive jurisdiction. [19] It is settled law that a member of a bargaining unit may only resort to remedies set out in the Code regardless of whether acollective agreement is in existence. There is no overlap between the courts and the LRB where there is a termination of a member of abargaining unit represented by a union.

The jurisdiction to determine whether an employee has been wrongfully dismissed liesexclusively with the board; the courts have no jurisdiction. [20] I, therefore, conclude that Ms. Goldman's dismissal was a matter exclusively to be dealt with within the jurisdiction of theboard. This action is dismissed pursuant to Rule 21-8, with costs. “S.D. Dley J.” DLEY J.