Spencer v. Interior Health Authority, 2020 BCPC 252

Citation: Spencer v. Interior Health Authority 2020 BCPC 252 Date: 20201209 File No: 42404 Registry: Clearwater IN THE PROVINCIAL COURT OF BRITISH COLUMBIA BETWEEN: DAWN BEACH SPENCER CLAIMANT AND: INTERIOR HEALTH AUTHORITY DEFENDANT REASONS FOR JUDGMENT OF THE HONOURABLE JUDGE M.R. ARMSTRONG Appearing on her own behalf: Dawn Beach Spencer Counsel for the Defendant: James Kondopulos and Bobby Sangha Place of Hearing: Kamloops , B.C.

Dates of Hearing: June 15, 2020 Date of Judgment: December 9, 2020 [ 1 ] The Claimant alleges that the Defendant wrongfully dismissed her on January 4, 2018 after 15 years of employment. The Defendant says that this court does not have jurisdiction to hear this claim because the parties are bound by a collective agreement which provides for a complete and exclusive dispute resolution mechanism through arbitration.

The matter was originally scheduled for argument on the issue of jurisdiction but the matter was adjourned due to COVID-19 and the parties appeared before me by telephone on June 15, 2020 for a pre-trial conference to address matters adjourned due to COVID-19. Because the issue of jurisdiction is a discrete

issue, I invited the parties to file and exchange written argument and affidavit material on the jurisdictional issue which they have done. [ 2 ] I would like to thank the parties for assembling their materials in a timely and organized fashion. I acknowledge the Claimant’s profound anxiety over the court process and her frank acknowledgement that she has no legal training. Despite that, the Claimant has provided this court with evidence in affidavit form, case law and legislative excerpts which I recognize required significant effort.

The Claimant has also navigated a workers’ compensation claim and an employment insurance claim.

I appreciate the significant time and energy that the Claimant has devoted to preparing her materials. [ 3 ] I have had the benefit of four affidavits in this matter: the Claimant’s affidavit filed on January 23, 2020 (the “First Affidavit”), her second affidavit filed September 16, 2020 (the “Second Affidavit”), the affidavit of Lorelei Rogers filed in support of the Claimant on September 16, 2020 (the “Rogers Affidavit”) and the affidavit of Norma Janes, filed on behalf of the Defendant on August 21, 2020 (the “Janes Affidavit”).

I have also been referred to a number of decisions and statutes by both parties which I have also read and considered. [ 4 ] At the outset, it is clear from the affidavit materials that the Claimant is extremely dissatisfied with the efforts of her union to rectify what she perceives as the Defendant’s unjustified handling of her grievances through the labour relations process. Additionally, she now advises that she intends to apply to have her claim transferred to the British Columbia Supreme Court pursuant to Rule 7.1(1)(

a) because her claim exceeds the monetary jurisdiction of this court. She has not made a claim in this court against her union but advises that she is suing her union for breach of contract which is “currently in abeyance pending exhaustion of internal remedies”. Evidence [ 5 ] There appears to be no dispute that the Claimant was a licenced practical nurse and was employed by the Defendant Health Authority. She worked at Forest View Place residential facility connected to the Dr. Helmcken Memorial Hospital in Clearwater, British Columbia, from approximately 2005-2018.

On January 4, 2018, the Defendant fired the Claimant and refused her a reference letter. [ 6 ] The British Columbia Nurses Union (“BCNU”) was the certified bargaining agent and exclusive representative for the Claimant’s bargaining unit. The BCNU set up an arbitration with respect to the Claimant’s grievances. The Claimant perceives that the “arbitration meeting” set up by her union to resolve her grievances was “cancelled” and believes that her union “wants to control the outcome” so that she will agree to sanctions which she had previously refused.

The Claimant says she is appealing her union’s decision to “abandon” her grievances. [ 7 ] In her written submission filed September 10, 2020, the Claimant agrees that she was a unionized employee. The Janes Affidavit appends table of contents of the collective agreement for April 1, 2019-March 31, 2022 between the Health Employers Association of BC and the Nurses’ Bargaining Association. I note that the appended agreement was not in play at the time of the Claimant’s employment or dismissal.

If the dispute resolution process in the operative collective agreement was the same as the current collective agreement, it would appear that: • the union was the exclusive bargaining agent for the Claimant by virtue of

Article 4; • the collective agreement sets out the terms and conditions of employment relating to remuneration, hours of work, benefits and general working conditions affecting employees by virtue of

Article 2; • the Defendant manages its operations including the direction of working forces, including hiring, firing, promotion and demotion of employees except as provided in the collective agreement by virtue of

article 3; • grievances concerning the

interpretation, application operation or any alleged violation of the Agreement proceed through the procedure set out in

Article 9, and in particular, disputes about dismissal are governed by

Article 9.06 In the event that the grievance is not resolved, it proceeds through arbitration in accordance with

Article 10. [ 8 ] Even if the operative collective agreements were different from the April 1, 2019 – March 31, 2022 collective agreement,

section 84 of the Labour Relations Code , R.S.B.C. 1996, c. 244 , as am., (the “Code”) requires every collective agreement to contain: • “a provision governing dismissal or discipline of an employee bound by the agreement”, and • “a provision for final and conclusive settlement without stoppage of work, by arbitration or another method agreed to by the parties, of all disputes between the persons bound by the agreement respecting its

interpretation, application, operation or alleged violation, including a question as to whether a matter is arbitrable”. [ 9 ] In the event that the collective agreement does not contain such provisions, the collective agreement is deemed to contain this language: if a difference arises between the parties relating to dismissal or discipline of an employee . . . either of the parties, without stoppage of work, may, after exhausting any grievance procedure established by this agreement, notify the other party in writing of its desire to submit the difference to arbitration, and the parties must agree on a single arbitrator, the arbitrator must hear and determine the difference and issue a decision, which is final and binding on the parties and any person affected by it.

Thus, even if there are differences between the April 1,2019-March 31, 2022 Collective Agreement and the collective agreement in place at the time of the Claimant’s dismissal, I am satisfied that the collective agreement then in place would have such a provision either in its language or deemed by the legislation.

Either way, there is a binding dispute resolution process in place to determine differences between the Claimant and the Defendant relating to her dismissal or discipline. [ 10 ] The Claimant agrees that her union filed a grievance on her behalf on November 7, 2017 alleging that the Defendant violated the Collective Agreement by disciplining the Claimant and issuing her with a five-day suspension without just and reasonable cause. Her union sought the removal of the suspension letter from her personnel file and other remedies and relief. The Janes Affidavit also appends

as Exhibit “I” the Claimant’s union’s second grievance filed in relation to her termination and seeking rescission of the termination andmaking her whole for lost wages and benefits and demanding the removal of the termination from her personnel file. The matter was setfor mediation on March 8, 2019 as per the letter of the mediator appended as Exhibit “J” to the Janes Affidavit. The matter was then setfor arbitration on October 21-24, 2019 as set out in the letter of the arbitrator dated September 23, 2019 and appended as Exhibit “K” tothe Janes Affidavit.

The Claimant’s union and the Defendant exchanged their respective particulars and witness lists in preparation forthe arbitration on October 11, 2019 as outlined in Exhibits “L” and “M” of the Janes Affidavit. The arbitration was adjourned by theparties as outlined in the email of the arbitrator attached as Exhibit “N” to the Janes Affidavit. Ms. Janes’ affidavit suggests that purposeof the adjournment was to pursue resolution. The Claimant perceives that the arbitration was “cancelled” and that her grievances werealso “cancelled” by her union.

The Claimant says she is appealing that decision outside these proceedings. The Law [11] Where the parties’ relationship is governed by a collective agreement which provides a binding dispute resolution process, thecourts do not retain concurrent jurisdiction over disputes covered by that process. The leading case is Weber v. Ontario Hydro, [1995] 2S.C.R. 929, . Mr. Weber had back problems. His employer thought he was malingering so hired a private investigator toconduct surveillance. The employer suspended Mr. Weber. His union grieved the suspension. Mr.

Weber sued his employer, alleging abreach of his rights under the Canadian Charter of Rights and Freedoms which Mr. Weber claimed took his complaint outside the ambitof the collective agreement. The Supreme Court of Canada rejected a model of concurrent jurisdiction as it would undercut the purposeof the arbitration regime. At paragraph 53, the court found that wrongful dismissal was within the exclusive jurisdiction of the arbitratoras was any claim of bad faith on the part of the union. The collective agreement was broad and expressly applied to regulate the conductat the heart of the dispute (para 71).

Although there is no claim against the union before me, the court also commented about the forumfor such claims in paragraph 74. The court did note that only disputes which expressly or inferentially arise out of the collectiveagreement are foreclosed to the courts (at para 54). [12] The Supreme Court of Canada issued a similar decision in New Brunswick v. O’Leary, [1995] 2 S.C.R. 967, ,albeit from the opposite perspective. The employer sought to sue the employee for damage done to a vehicle by driving on a flat tire. Thecourt found that the negligence of Mr.

O’Leary fell impliedly under the collective agreement and ought to have been dealt with under thegrievance procedure. [13] The Weber decision was applied in Elam v. Newnes, [1996] B.C.J. 2290 (P.C.). Mr. Elam sued for wrongful dismissal. TheProvincial Court had no jurisdiction to hear the case as it fell under the exclusive purview of the labour relations regime. The court notedat paragraph 14 that Mr. Elam chose to work in a unionized workplace with all of its attendant benefits. The court declined to require theDefendant to fight on “two fronts” (at para 15) and declined jurisdiction.

A similar result flowed in Webber v. Kelowna, 2001 BCSC 189, 2001 B.C.S.C. 189. At paragraph 43, the court noted that where the factual matrix is one of employer and employee under acollective agreement, the courts do not have concurrent jurisdiction. The “essential nature and character” of the matter concerned hisemployment under the collective agreement and the Labour Code (at para 57) and fall within the “exclusive jurisdiction of an arbitrator”(para 61). Even where the union had yet to conclude its first collective agreement, the court rejected jurisdiction in Goldman v.

FraserValley Aboriginal Children and Family Services, 2019 BCSC 1349 , 2019 B.C.S.C. 1349. At paragraph 11, the court looked tothe essential character of the issues and determined that Ms. Goldman had traded her personal rights for the benefit of a collective unitand noted the union’s duty to her. The court found that Ms. Goldman’s dismissal would have fallen under the collective agreement, hadthere been one, and accordingly the Labour Relations Board had exclusive jurisdiction. [14] A similar result flowed in Wang v.

Grace Canada Inc. 2017 BCSC 1932 , 2017 B.C.S.C. 1932 in which an employeesued her employer for sabotaging her employment insurance claim. The court found that the nature of the dispute was rooted in theemployment relationship as defined in the collective agreement and accordingly the court did not have jurisdiction. [15] The courts have accepted jurisdiction where the character of the dispute fell outside the collective agreement in the followingsituations: • In Piko v.

Hudson’s Bay Company (1998), 41 O.R.(3d) 729, (ONCA) where the dispute between anemployee and employer did not arise out of the collective agreement but rather the employer had caused the employee to be charged withfraud in the criminal courts. The employee sued for malicious prosecution. The court found that the employer “itself went outside thecollective bargaining regime when it resorted to the criminal process” and accordingly, could not “turn around and take refuge in thecollective agreement” when sued for maliciously instituting those criminal proceedings; • in Bennett v.

British Columbia, 2007 BCCA 5 , 2007 B.C.C.A. 5, where retirees claimed for benefits about whichthe collective agreement was silent. The court found that the factual context “clearly falls outside the ambit of any collective agreement,and the Retirees are no longer parties “with a connection to the agreement in question” (at para 37). At paragraph 47, the courtconcluded that the essential character of the dispute could not be said to arise from the

interpretation, application, administration orviolation of a collective agreement; • in Fasslane Delivery Services Ltd. v. Purolator Courier Ltd., 2005 BCCA 122 , 2005 B.C.C.A. 122 after the courtrelied upon assertions by counsel in staying the matter pending an arbitration about the nature of the employee’s role. Contrary to theassertions by counsel, the employer did not co-operate, but rather held to the time limitations which had passed. [16] The Claimant relies on Health Employers’ Association of B.C.(Kootenay Boundary) v.

BCNU, 2006 BCCA 57 , 2006B.C.C.A. 57 which dealt with the powers of the Court of Appeal where an arbitration is appealed. The jurisdiction of the Court of Appealis specifically provided for in s. 100 of the Code unlike the jurisdiction of the Provincial Court. In Senkiw v. Utility Glove

(1961) Ltd., (M.B.C.A.), officers of the union sought an accounting after the employer allegedly failed to collect dues. The issuewas the standing of the officers to bring the action which is different from the issue of the court’s jurisdiction. Standing was also at issuein British Columbia Nurses Union v. AGBC, 2008 BCSC 321 , 2008 B.C.S.C. 321 where the union sought an order ofmandamus from the Supreme Court with respect to the enforcement of the Medicare regime. It does not assist on the narrow issue ofjurisdiction.

Analysis [ 17 ] The claim here falls squarely in the realm of the collective agreement. The mechanism for resolving the claim has already been invoked, albeit delayed by the adjournment of the arbitration as described in Exhibit “N” to the Janes Affidavit. The essential nature and character of this dispute pertains to the dismissal of the Claimant which is governed by the actual or deemed language of her union’s agreement with the Respondent employer. Unlike the Piko v . Hudson’s Bay Company decision, the employer did not seek a criminal remedy against the Claimant.

Nor is this a dispute about something outside the collective agreement as occurred in Bennett v . British Columbia . The issues at play here are directly provided for in the collective agreement. Accordingly, this court has no jurisdiction to hear the matter. ___________________________ M.R. Armstrong Provincial Court Judge