TK and UFCW, Local 247, Re
B89/2017
British Columbia Labour Relations Board
2017 CarswellBC 1592
APPLICATION by employee from judgment reported at Kingson and UFCW, Local 247, Re (2017), 2017 CarswellBC 185 (B.C. L.R.B.) dismissing complaint against union alleging union failed to fairly represent him in initial termination grievance.
Brent Mullin Chair, Bruce R. Wilkins Associate Chair, James Carwana V-Chair:
1 The Complainant applies under Section 141 of the Labour Relations Code (the “Code”) for leave and reconsideration of BCLRB No. B15/2017 [2017 CarswellBC 185 (B.C. L.R.B.)] (the “Original Decision”). The Original Decision dismissed the Complainant’s Section 12 complaint against the Union. In that complaint the Complainant alleged that the Union had failed to fairly represent him in his initial termination grievance, which had resulted in his reinstatement as an employee under a last chance agreement, and in respect to his subsequent termination for not meeting the terms of that last chance agreement.
2 The Complainant applies for reconsideration on the basis of denial of natural justice. He summarizes his position as follows:
Kingson submits that the original panel acted contrary to fundamental principle[s] of natural justice when it failed to refer to, consider and evaluate the evidence before it, including failing to resolve conflict[s] in the evidence on material points and, in particular, basing its decision on perjured testimony of the Union’s two witnesses, business representative, Mr. Bruce Jackson (“Jackson”), and Director of Bargaining, Mr. Dean Patriquin (“Patriquin”), and failing to provide reasons for doing so. The Decision of the original panel relied largely on Jackson’s and Patriquin’s testimony.
3 The Complainant takes issue with numerous findings in the Original Decision and in particular refers to the finding at paragraph 8 of the Original Decision that Jackson spoke to the Complainant prior to the disciplinary meeting on October 2, 2015. The Complainant says Jackson admitted he was wrong about this at the hearing and further notes in reply that the “Union admits this”.
4 The Complainant asks that the Board grant the remedies requested in his Section 12 complaint before the original panel, or in the alternative, that the matter be remitted to the original panel.
5 The Union responds in detail to the Complainant’s application. The Union contests the nature of the statutory declaration the Complainant filed with his leave and reconsideration application. The Union does so on the basis of the Board’s decision in Canpro Investigative Services Inc. and Construction and General Workers Union, Local 602, Re (April 9, 1998), Doc. B154/98 (B.C. L.R.B.), (Leave for Reconsideration of BCLRB No. B40/97 [(February 6, 1997), Doc. B40/97, 31574, 31621, 31722 (B.C. L.R.B.)]).
6 The Union goes on to cite the nature of the role of a reconsideration panel reviewing findings of fact and credibility determinations on the basis of the Board’s decisions in Robinson Little & Co. v. R.C.I.U., Local 1518, BCLRB #32/75, [1975] 2 Can. L.R.B.R. 81 (B.C. L.R.B.) (“Robinson, Little“) and Roberts Roofing & Sheet Metal Ltd. v. S.M.W.I.A., Local 280 [1994 CarswellBC 3725 (B.C. L.R.B.)], BCLRB No. B313/94 (Leave for Reconsideration of BCLRB No. B369/93 [1993 CarswellBC 3593 (B.C. L.R.B.)]) (“Roberts Roofing“) and the Supreme Court of Canada’s decision in Construction Labour Relations Assn. (Alberta) v. Driver Iron Inc., 2012 SCC 65 (S.C.C.), at para. 3 (“Driver Iron Inc.“).
7 Lastly, the Union responds in detail to what it submits were the key determinations in the Original Decision and says that the Original Decision in each instance both resolved the conflicts in the evidence on these material points and provided reasons for the determinations it reached.
8 The Employer also opposes the Complainant’s leave and reconsideration application. It too notes credibility findings in the Original Decision and relies on Robinson, Little and Roberts Roofing, further citing Western Canada Steel and IPSCO Inc., Re [1991 CarswellBC 3380 (B.C.I.R.C.)], IRC C185/91 (Reconsideration of C242/90 [Western Canada Steel v. C.A.I.M.A.W., Local 6 (1990), 91 C.L.L.C. 16,016(B.C.I.R.C.)]) (“Western Canada Steel“). The Employer says that the Complainant’s challenges to the determinations in the Original Decision are in respect to judgments of credibility requiring the weighing of conflicting versions of events and those types of challenges are not a proper basis for reconsideration.
9 In reply, among other submissions the Complainant reiterates his position that the Union’s case relied on perjured testimony and was a “fraud on the Board and a fraud on the Board’s process”.
10 We have reviewed and considered in detail the submissions of the parties.
11 An application under Section 141 must meet the Board’s established test before leave for reconsideration will be granted. An applicant must establish a good, arguable case of sufficient merit that may succeed on one of the established grounds for reconsideration: Brinco Coal Mining Corp. v. U.S.W.A., Local 1037, BCLRB No. B74/93 (Leave for Reconsideration of BCLRB No. B6/93 [1993 CarswellBC 3085 (B.C. L.R.B.)]), (1993), 20 C.L.R.B.R. (2d) 44 (B.C. L.R.B.).
12 For purposes of our analysis, we will deal first with the bulk of the Complainant’s application and, second, with a discrete point which we find should be addressed separately.
13 Turning to the parties’ arguments, we find we do not need to address the Union’s challenge to the nature of the statutory declaration the Complainant filed with his leave and reconsideration application. That is because we find that the Original Decision clearly resolved the credibility issues on the material points in the case. As well, while it did not directly address the Complainant’s perjury and fraud submissions, it clearly met the requirement of providing adequate reasons for the decisions it reached in respect to the credibility issues in the case.
14 The requirements on an original panel of the Board in writing reasons are set forth in the comments of the Supreme Court of Canada in Driver Iron Inc., as cited by the Union:
The Board did not have to explicitly address all possible shades of meaning of these provisions. This Court has strongly emphasized that administrative tribunals do not have to consider and comment upon every issue raised by the parties in their reasons. For reviewing courts, the issue remains whether the decision, viewed as a whole in the context of the record, is reasonable (Newfoundland and Labrador Nurses’ Union and Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708). (para. 3)
As well, the proper role of a reconsideration panel of the Board in terms of reviewing credibility determinations and findings of fact of an original panel are definitively set forth in Robinson, Little, Roberts Roofing, and Western Canada Steel. In short, as noted in Roberts Roofing:
In the vast majority of circumstances, the tests for the review of findings of fact will likely be met on the face of the original decision. It will be apparent, for instance, that there was some evidence on the basis of which the findings of fact were made. Within the deference to be exercised, in most circumstances that will end the enquiry. (p. 10)
Roberts Roofing goes on to note that “… if that is not the case, then on appeal the Board must ensure that natural justice has been satisfied in the proceedings”: ibid.
15 The law to be applied is not in dispute. What is in dispute is whether the Original Decision failed to resolve credibility issues on material points and also whether it failed to provide adequate reasons in respect to the issues before it.
16 We find that on the face of the Original Decision it is clear that it did not fail in either regard.
17 In respect to these claims, we accept the Union’s analysis of both the key credibility determinations in the Original Decision and the adequacy of the reasons provided in respect to them.
18 We add that we will refer to these determinations and the reasoning in the Original Decision in respect to them in summary form as to do more would in our view be disproportionate and inappropriate in respect to the merit of these arguments in the application.
19 In each instance, we will note the credibility point and the paragraphs in the Original Decision regarding the evidence heard at the hearing and then the determinations of credibility reached and reasons expressed in the analysis portion of the Original Decision. All of this is taken from the Union’s response submission to the leave and reconsideration application:
• Mr. Jackson was not motivated by a “friendship” with either Mr. Omeria or Mr. Miller – the evidence was set forth in paragraph 7 of the Original Decision, with the credibility determination and reasons provided in paragraph 42;
• Mr. Jackson was not dishonest with the Complainant in a way that affected the quality of the representation – this issue was central to the decision as a whole and thus the background in paragraphs 4 through 24 of the Original Decision are relevant, with the determination made being in paragraph 43 of the Original Decision and in its overall findings;
• The Complainant accepted the last chance agreement – the evidence on this issue was set out at paragraphs 12 through 14 of the Original Decision, with the original panel’s reasoning on it found in paragraph 44 of the Original Decision;
• After signing the last chance agreement, the Complainant did not ask the Employer for time off work to attend an anger management course – the evidence on this issue is set out in paragraphs 15 and 16 of the Original Decision, with the determination and reasoning in respect to it found in paragraphs 45 and 46. We note that in respect to this and the following issue, the Original Decision found in favour of the evidence of three witnesses, two from the Union and one from the Employer, in preference to the Complainant’s evidence;
• After being terminated, the Complainant did not tell Mr. Jackson that he asked the Employer for specific time off work to attend the anger management course and was denied – the evidence on this issue is set out in paragraphs 15, 16, 18, 19, and 27 of the Original Decision, with the determination and reasons being provided in paragraphs 45 and 46, with again the evidence of three witnesses being favoured over that of the Complainant. While credibility determinations are of course not simply a product of the numerical supremacy of the number of witnesses brought forward, we find there is clearly no error in the Original Decision preferring the evidence of the three witnesses noted, for the reasons given, to that of the Complainant;
• Mr. Jackson considered the relevant factors in his assessment of the merits of the last chance agreement grievance before he decided to withdraw it – the evidence on this issue is found in paragraphs 11 through 20 of the Original Decision, with the determination and reasoning at paragraph 47; and
• The Grievance Appeal Committee’s decision was motivated by appropriate considerations – the evidence on this issue is set out at paragraphs 20 through 24 of the Original Decision, with the determination and reasons being found at paragraph 46 and 48.
In all of these circumstances, we find that there is some evidence on the face of the Original Decision supporting the findings of fact and determinations of credibility, which satisfies the requirements here on review: see Roberts Roofing, p. 10, quoted in para. 13 above. We also find that the Complainant’s perjury and fraud submissions are overwrought and do not match the circumstances in the case.
20 In summary to this point, with the exception of the remaining point below, we find the Complainant’s reconsideration application unmeritorious and it is dismissed.
21 As noted earlier, there is a point raised in the application which should be addressed separately. It concerns the statement in paragraph 8 of the Original Decision that Jackson testified that he spoke to the Complainant prior to the October 2, 2015 meeting. All parties agree that this is in error, and Jackson did not speak to the Complainant prior to the meeting.
22 The Union and Employer argue nothing turns on this mistaken finding. The Employer argues it is of no consequence, given that Jackson took time during the meeting to speak to the Complainant. The Union’s more detailed submissions are to similar effect.
23 However, in our view, and in light of Judd v. C.U.P.E., Local 2000, BCLRB No. B63/2003, (2003), 91 C.L.R.B.R. (2d) 33 (B.C. L.R.B.), (“Judd“), paras. 62-64, we find this issue is sufficiently significant to justify remittal to the original panel. As also noted in Judd however (paras. 64 and 47), each case turns on its own facts. The particular significance of this issue in the relevant context is best assessed by the original panel.
24 We accordingly remit the Section 12 complaint to the original panel, to consider the matter afresh in light of the fact that Jackson did not speak to the Complainant prior to the October 2, 2015 meeting. It is up to the original panel to consider how its assessment of the evidence overall is affected, and to determine how to proceed, including whether further evidence is necessary. The original panel’s jurisdiction to decide all matters of fact, law and procedure concerning the complaint is revived in its entirety.
25 In the result, leave is granted, and the matter is remitted to the original panel to reconsider its decision in light of the error noted above. In all other respects, the application for reconsideration is dismissed.