COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Health Employers' Assn. of British Columbia v. British Columbia Nurses' Union,

 

2003 BCCA 608

Date: 20031113


Docket: CA026791

Between:

Health Employers' Association of British Columbia

on behalf of Castlegar & District Health Council

(Castlegar & District Hospital)

Appellant

And

British Columbia Nurses' Union

Respondent

 


 

Before:

The Honourable Madam Justice Southin

The Honourable Madam Justice Prowse

The Honourable Madam Justice Newbury

The Honourable Mr. Justice Mackenzie

The Honourable Mr. Justice Thackray

 

D. M. Sartison and J. D. Nichols

Counsel for the Appellant

J. D. Rogers and K. E. James

Counsel for the Respondent

Place and Date of Hearing:

Vancouver, British Columbia

3rd February, 2003

Written Submissions Received:

15th and 30th April, 1st and 14th May, 2003

Place and Date of Judgment:

Vancouver, British Columbia

13th November, 2003

 

Written Reasons concurring in the result by:

The Honourable Madam Justice Southin  (P. 3, para. 1)

Dissenting Reasons by:

The Honourable Madam Justice Newbury  (P. 55, para. 84)

Appendix  (P. 105)

Written Reasons of the Majority by:

The Honourable Mr. Justice Mackenzie  (P. 109, para. 140)

Concurred in by:

The Honourable Madam Justice Prowse

The Honourable Mr. Justice Thackray


Reasons for Judgment of the Honourable Madam Justice Southin:

[1]         The issue which this appeal requires us to decide is whether the judgment of this Court in Westmin Resources Ltd. v. C.A.W.-Canada, Local 3019 (1999), 70 B.C.L.R. (3d) 74, 1999 BCCA 534, rev'g. (1998), 62 B.C.L.R. (3d) 160 (Henderson J.), commonly known as Fording Coal, correctly interpreted ss. 99(1) and 100 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”):

99   (1)  On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)  a party to the arbitration has been or is likely to be denied a fair hearing, or

(b)  the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

* * *

100  On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99(1).

[2]         When I say "requires", I appreciate that my colleagues do not agree.  But as I am of the opinion that the issue properly arises and that it is in the interests of the orderly administration of justice that Fording Coal be overruled, at least in cases of appeals from arbitral awards in matters of discharge or suspension, I have so formulated it. 

[3]         There should in such cases be only one appellate tribunal – the Labour Relations Board.  With all respect to my colleague, Huddart J.A., who wrote the judgment in Fording Coal, a dual system of appeals in such cases creates for those who must choose the route of appeal a brain teaser of the highest order.  In my opinion, the Legislature, when, in 1975, it enacted what are now sections 99 and 100 of the Code, did not intend to create a system which demands of those who are governed by it, the skills in reasoning and capacity for subtlety of judges of this Court.  This was legislation which was supposed to be within the intellectual grasp not only of the legal profession, but also, and more importantly, of Union officials and their counterparts in management.

[4]         Lying beneath the surface of this appeal and its companion appeal, Canpar Industries v. International Union of Operating Engineers, Local 115, CA029791, but never directly broached by the appellants, is their, if not outrage, at least, disapproval of the new "principles" of arbitral jurisprudence of "culpable" and "non-culpable" breaches of duty, and now the "hybrid" breach described by Mackenzie J.A. with their remedy of "last chance agreements".  I, myself, educated in the common law of wrongful dismissal, find these new ideas somewhat surprising.

[5]         But whether they are a good thing or a bad thing is no business of this Court.  If the economic health of the body politic requires a different approach to management rights and arbitral jurisdiction in matters of suspension and dismissal, the Legislature must attend to such changes to the statute law of this Province as it thinks appropriate.

[6]         From, if not time immemorial, then at least since 1584, it has been correct in law to interpret legislation thus:

And it was resolved by them [Sir Roger Manwood, Chief Baron, and the other Barons of the Exchequer], that for the sure and true interpretation of all statutes in general (be they penal or beneficial, restrictive or enlarging of the common law,) four things are to be discerned and considered:-

     1st.  What was the common law before the making of the Act.

     2nd.  What was the mischief and defect for which the common law did not provide.

     3rd.  What remedy the Parliament hath resolved and appointed to cure the disease of the commonwealth.

     And, 4th.  The true reason of the remedy; and then the office of all the Judges is always to make such construction as shall suppress the mischief, and advance the remedy, and to suppress subtle inventions and evasions for continuance of the mischief, and pro privato commodo, and to add force and life to the cure and remedy, according to the true intent of the makers of the Act, pro bono publico.

                 [emphasis mine; footnotes omitted]

[Heydon’s Case (1584), 3 Co. Rep. 7a, 76 E.R. 637 at 638.]

[7]         I shall first state the facts of this case, next set out the present statutory provisions essentially enacted in 1975 by the Labour Code of British Columbia Amendment Act, 1975, S.B.C. 1975, c. 33, so that the reader may compare them with the statutory provisions in pari materia enacted in 1973, S.B.C. 1973, (2d Sess.), c. 122, a statute itself meant to effect a very substantial change in the law of this Province, and next give a brief account of the less than happy relation­ship between the judges and organized labour which led first to the Act of 1973 and then to the Act of 1975.  I shall follow that account with an account of the various judgments of this Court on ss. 99 and 100 and then give an account of the decisions of the Labour Relations Board which led up to Fording Coal, followed by my understanding of Fording Coal, and, finally, my opinion as to why it did not accord with the statute.

[8]         I approach this appeal thus because, in my opinion, it is neither necessary, that is to say, compelled by the words of the Act, nor useful in cases of discharge or suspension for appeals to come to this Court.

The Facts

[9]         The appeal is from the award of an arbitrator, Mr. Dalton Larson, Q.C., delivered the 10th January, 2000, in which he upheld a grievance brought by the respondent on behalf of an employee, Ronald Bergen, who was dismissed from his employment as a head nurse on 30th September, 1998, by a letter in these terms:

     In our meeting of Sept. 29th, 1998, you admitted that you have not remained abstinent from drugs since early September 1998, that you forged Hospital documents and that you misappropriated narcotics from the Hospital for your own use.  These actions are a breach of the conditions stated in Dalton Larson's Award of May 26, 1997 and the Last Chance Agreement of June 24, 1997.

     For these reasons, you are terminated from your full time position at Castlegar & District Hospital, effective immediately.

The Collective Agreement

[10]    By the Collective Agreement in force between the parties:

3.01  General Rights

     The management of the Employer's operations and the direction of the working forces, including the hiring, firing, promotion and demotion of employees, is vested exclusively in the Employer except as may be otherwise specifically provided in this Agreement.

* * *

9.01  Discussion of Differences

     If a difference arises between the Employer and an employee(s) or between the Employer and the Union concerning the interpretation, application, operation or any alleged violation of the Agreement, the employee(s) shall continue to work in accordance with the Agreement until the difference is settled.

* * *

9.04  Resolution of Employee Dismissal or Suspension Disputes

     The following procedure shall be used for the resolution of disputes relating to the dismissal or suspension of an employee(s):

Step 1

     Within ten (10) calendar days of notice of the dismissal or suspension, the Employer shall notify the head office of the Union of such termination.

Step 2

     Within a further fourteen (14) calendar days of receipt of notice in Step 1 of this Article, the Union may institute the grievance procedure at Step 3 of Article 9.02.

     If this time limit is not complied with, then the grievance shall be considered as being abandoned, unless the parties have mutually agreed, in writing, to extend the time limits.

* * *

10.01  Authority of the Arbitration Board

(A)  Either party may refer any grievance, dispute or difference unresolved through the procedures in Article 9 to a Board of Arbitration which shall have the power to determine whether any matter is arbitrable within the terms of the Agreement and to settle the question to be arbitrated.

(B)  The Arbitration Board shall issue a decision and the decision of the majority of such Board shall be final and binding upon the parties.

* * *

ARTICLE 31 – NON-DISCRIMINATION

(A)  The Employer and the Union subscribe to the principles of the Human Rights Code of British Columbia.

(B)  The Employer and the Union agree that there shall be no discrimination, interference, restriction or coercion exercised or practiced with respect to any employee for reason of membership or activity in the Union.

(C)  The Employer and the Union agree that there shall be no discrimination, interference, restriction or coercion exercised or practised with respect to any employee on the basis of sexual orientation.

(D)  The Union and the Employer recognize the right of employees to work in an environment free from sexual harassment, and the Employer shall take such actions as are necessary with respect to any person engaging in sexual harassment at the work place.

[11]    Mr. Larson did not uphold the grievance on the footing that the grievor was innocent of forgery and misappropriation.  Both were conceded.  He upheld it on the footing that the grievor, who had been dismissed for similar offences in 1996 or 1997 and given, by an award of 26th May, 1997, the opportunity to regain his employment (a so-called "last chance" agreement), should be given a further opportunity to recover from his addiction to Demerol which, in the arbitrator's opinion, is a "disability".

[12]    In the words of counsel for the appellant in her factum:

13.  The Hospital was successful on its appeal to the Labour Relations Board on one of the grounds advanced relating to internal inconsistency in the Second Arbitration Award.  The Labour Relations Board set aside two terms of the Second Arbitration Award and remitted those matters to the Arbitrator for clarification.

14.  The Labour Relations Board determined that the question of whether the Arbitrator erred in his analysis concerning the issue of undue hardship was one of general law that fell within the jurisdiction of the British Columbia Court of Appeal:

The Employer's remaining arguments assert an analytical error in the Arbitrator's determination of undue hardship.  It is debatable whether the Arbitrator analyzed undue hardship in the manner suggested by the Employer.  However, we believe the relationship between the culpability and undue hardship is a question of general law.  The answer to that question should not turn on whether the employee is represented by a trade union.  The Court of Appeal has jurisdiction to ensure that the principles of the Human Rights Code are uniformly applied to union and non-union workplaces: see Fording Coal Ltd., supra.

[13]    The appellant subscribes to the Board's conclusion.  The respondent does not.

[14]    Although, to my mind, the facts as I have stated them are all that are relevant for the disposition of this appeal, I do not disagree with Mackenzie J.A.'s detailed analysis of the proceedings before the arbitrator.

Relevant Statutory Provisions

[15]    In the Act of 1973, supra, arbitration was governed by a fasciculus of sections in Part VI, Arbitration Procedures, ss. 92-112, and, in the Act of 1975, supra, by Part VIII, Arbitration Procedures, ss. 81-114, now R.S.B.C. 1996, Part 8.  Relevant to the question of interpretation are these provisions:

1973 Provisions

R.S.B.C. 1996, c. 244

 

82 (1) It is the purpose of this Part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work.

  (2)  An arbitration board, to further the purpose expressed in subsection (1), must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute.

93. (1)       Every collective agreement shall contain a provision

(a)  governing the dismissal, discipline, or suspension of an employee bound by the agreement; and

(b)  for final and conclusive settlement without stoppage of work, by arbitration or such other method as may be agreed to by the parties, of all disputes between the persons bound by the agreement respecting its interpretation, application, operation, or any alleged violation thereof, including any question as to whether any matter is arbitrable.

  (2)  Where a collective agreement does not contain such a provision as is referred to in subsection (1), it shall be deemed to contain the following provision:

     Where a difference arises between the parties relating to the dismissal, discipline, or suspension of an employee, or to the interpretation, application, operation, or alleged violation of this agreement, including any question as to whether a matter is arbitrable, 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 determine the difference, and shall issue a decision and the decision is final and binding upon the parties and upon any employee or employer affected by it.

 

84 (1) Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.

  (2)  Every collective agreement must contain 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.

  (3)  If a collective agreement does not contain a provision referred to in subsections (1) and (2), the collective agreement is deemed to contain those of the following provisions it does not contain:

(a) the employer must not dismiss or discipline an employee bound by this agreement except for just and reasonable cause;

(b) if a difference arises between the parties relating to the dismissal or discipline of an employee, or to the interpreta­tion, application, operation or alleged violation of this agree­ment, including a question as to whether a matter is arbitrable, 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.

 

98. (1)  Where an arbitration board determines that an employee has been dis­missed, suspended, or otherwise disciplined by an employer for proper cause and the collective agreement does not contain a specific penalty for the infraction that is the subject matter of the arbitration, the arbitration board may substitute such other penalty for the dismissal, suspension, or discipline as the arbitration board considers just and reasonable in all the circumstances.

  (2)  Where, under this section an arbitration board, the board, or other body finds that an employee has been dismissed, suspended, or otherwise disciplined for other than proper cause, the arbitration board, the board, or other body may

(a)  direct the employer to reinstate the employee and pay to the employee a sum equal to his wages lost by reason of his dismissal, suspension, or other discipline, or such lesser sum as, in the opinion of the arbitration board, the board, or other body, as the case may be, is fair and reasonable; or

(b)  make such other order as it considers fair and reasonable, having regard to the terms of the collective agreement.

 

89  For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may

(a) make an order setting the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contraven­tion of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value,

(b) order an employer to reinstate an employee dismissed in contravention of a collective agreement,

(c) order an employer or trade union to rescind and rectify a disciplinary action that was taken in respect of an employee and that was imposed in contravention of a collective agreement,

(d)  determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,

(e)  relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement,

(f)  dismiss or reject an application or grievance or refuse to settle a difference, if in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference,

(g)  interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, and

(h) encourage settlement of the dispute and, with the agreement of the parties, the arbitration board may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

 

104.  The decision of an arbitration board is binding

(a)  upon the parties;

(b)  in the case of a collective agreement between a trade-union and an employers’ organization, upon the employers bound by the agreement who are affected by the decision;

(c)  in the case of a collective agreement between a council of trade-unions and an employer or an employers’ organization, upon the council of trade-unions, the constituent trade-unions comprising the council, and the employer or the employers covered by the agreement, as the case may be, who are affected by the decision; and

 

(d)  upon the employees bound by the collective agreement who are affected by the decision,

and such parties, employers, trade-unions, and employees shall comply in all respects with the decision.

 

95  The decision of an arbitration board is binding

(a) on the parties,

(b) in the case of a collective agreement between a trade union and an employers' organization, on the employers who are bound by the agreement and who are affected by the decision,

(c) in the case of a collective agree­ment between a council of trade unions and an employer or an employers' organization, on the council, the constituent trade unions in it and the employer or employers who are covered by the agreement and who are affected by the decision, and

(d) on the employees who are bound by the collective agreement and who are affected by the decision,

and they must comply in all respects with the decision.

 

97.  Where a difference arises during the term of a collective agreement, and delay, in the opinion of the board, has occurred in settling the difference, the board may, on the application of either party to the difference, or on its own motion, inquire into the difference, and make recommendations for settlement and, where the difference is arbitrable, order that it be immediately submitted to a specified stage or step in the grievance procedure provided under the collective agreement; or, whether the difference is arbitrable or not, request the minister to appoint a special officer.

99 (1) On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)  a party to the arbitration has been or is likely to be denied a fair hearing, or

(b)  the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

  (2) An application to the board under subsection (1) must be made in accordance with the regulations.

 

106.  Except as otherwise provided in this Part, the Arbitration Act applies to an arbitration under this Act.

107.  An arbitration board may, at any stage of the proceedings under an arbitration, state in the form of a special case, for the opinion of the Supreme Court, any question of law arising in the course of the arbitration.

108. (1)  Subject to sections 96 and 107, the Court of Appeal has exclusive jurisdiction in all arbitration cases under a collective agreement or under this Act; and may set aside a decision or award of an arbitration board, or remit matters referred to it to the arbitration board for reconsideration, or stay the proceedings before the arbitration board, on the following grounds only:

(a)  That an arbitrator misbehaved or was unable to fulfil his duties properly; or

(b)  That there was an error of law affecting the jurisdiction of the arbitration board; or

(c)  That there was an error of procedure resulting in denial of natural justice.

  (2)  An application to set aside or remit a decision or award, or stay the proceedings of an arbitration board, shall be made within fourteen days next after the decision has been made or the award has been issued.

  (3)  The rules governing appeals to the Court of Appeal from a decision of the Supreme Court apply to proceedings under this section.

  (4)  Section 14 of the Arbitration Act does not apply to an arbitration under this Act.

100   On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99(1).

109.  Except as provided in this Part, the decision or award of an arbitration board under this Act is final and conclusive and is not open to question or review in any court, and no proceedings by or before an arbitration board shall be restrained by injunction, prohibition, or any other process or proceeding in any court or be removable by certiorari or otherwise into any court.

101   Except as provided in this Part, the decision or award of an arbitration board under this Code is final and conclusive and is not open to question or review in a court on any grounds whatsoever, and proceedings by or before an arbitration board must not be restrained by injunction, prohibition or other process or proceeding in a court and are not removable by certiorari or otherwise into a court.

 

[There are some differences in wording between the 1975 amendments and the Act as it appears in the 1996 Revised Statutes.  Most reflect the penchant of the revisers for changing words, e.g. "shall" to "must", for no good reason that I have ever discovered.  However, none of the differences has any significance to the issues arising in this appeal.]

[16]    Also relevant is a section found elsewhere in the Code:

138  A decision or order of the board under this Code, a collective agreement or the regulations on a matter in respect of which the board has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.

[17]    Heydon’s Case, supra, says that the first thing to be discerned is, "What was the common law before the making of the Act."

[18]    In this context, I use the term "common law" to mean how, in practice, the courts of the Province dealt with labour matters.  It is a question, now of historic interest only, whether, at a time when judgments of the House of Lords were, by the courts of this Province, considered binding, the judges failed from 1942 to 1973 to appreciate the full implications of Crofter Hand Woven Harris Tweed Co. Ltd. v. Veitch, [1942] A.C. 435, [1942] 1 All E.R. 142 (H.L.).  It can be argued that there was nothing the matter with the "common law"; the problem was with those who administered it.

[19]    From about 1900 (the earliest days in this Province of men combining together to force employers to provide better pay and working conditions) until the mid-1970's, there was, on the part of organized labour, a perception that the courts were, at best, uncomprehending of and, at worst, antagonistic toward, the economic aspirations of members of trade unions.  That perception was not unreasonable.  See e.g. Hollywood Theatres Ltd. v. Tenney, [1940] 1 W.W.R. 337, 73 C.C.C. 160 (B.C.C.A.), and the account by Dr. A. W. R. Carrothers of labour injunctions in British Columbia, "A Study of The Operation of the Injunction in Labour-Management Disputes in British Columbia, 1946-1955", (Toronto: CCH Canadian Limited, 1956).  I leave it to the historians of ideas to consider whether and to what extent the judges of this Province from the 1920's onwards were, arising from the Winnipeg general strike, in a state of apprehensiveness of collective action.

[20]    The judgment of the Supreme Court of Canada in Aristocratic Restaurants (1947) Ltd. v. Williams et al, [1951] S.C.R. 762, on the interpretation of the Trade-unions Act, R.S.B.C. 1948, c. 342, first enacted 20th June, 1902, during the long and bitter dispute at Rossland (see Carrothers, supra, pp. 219 et seq) went a little way to restoring respect for the judges but, as I know from personal experience, not very far.

[21]    Thus, in 1973, the Legislature decided that labour relations in this Province should be largely removed from the jurisdiction of the courts.

[22]    As the Minister of Labour of the time said upon the introduction of the bill (Legislative Debates of British Columbia, 2d sess., 30th Plmt., Sept. 13-Oct. 19, 1973, pp. 398 and 400):

     The board will have the great advantage of being able to deal with the root causes of labour problems; it will not merely be a court by another name.  The board's jurisdiction will extend beyond the legalities of a dispute and allow for consideration of the motivations of the people involved.  In other words, it won't be dealing in a strictly legalistic sense as the courts have done in the past.  It will be looking at the issues with a view to curative approaches rather than punitive approaches.

* * *

     The courts of law can only really catch a glimpse of the overall labour picture.  Their interference in the past has been sporadic and fortuitous.  The judges lack the intimate knowledge of the very dynamic process of industrial relations and collective bargaining.  For these reasons, Part II of the new labour code has removed the courts' jurisdiction over labour disputes.  This does not substitute the board, but rather proposes a new approach.  The new law seeks an administrative rather than a judicial solution to labour disputes.

[23]    One of the precipitating causes was the judgment of the Supreme Court of Canada in Port Arthur Shipbuilding Co. v. Arthurs, [1969] S.C.R. 85, of which Mr. Paul Weiler, the first chairman of the new British Columbia Labour Relations Board, remarked in Wm. Scott & Company Ltd. v. Canadian Food and Allied Workers Union, Local P-162, B.C.L.R.B. No. 46/76 at pp. 11-12, [1977] 1 Can. LRBR 1:

Unfortunately, this indigenous arbitral solution [referring to Steel Equipment Co. Ltd. (1964) 14 LAC 356, at pp. 40-41] was abruptly aborted by the Supreme Court of Canada, when it reversed the Ontario Court of Appeal and the arbitrator in Port Arthur Shipbuilding....

... Canadian legislatures uniformly considered it necessary to overturn Port Arthur Shipbuilding by statutory reform.  Section 98(d) of the Labour Code, the provision under analysis in this case, is the vehicle through which the B.C. Legislature has sought to place on a contemporary, industrial relations footing the law of discharge under a collective agreement.

[24]    Of the 1973 provisions as to arbitration, Mr. H. W. Arthurs, then the Dean of Osgoode Hall Law School and, of course, the "Arthurs" of the Port Arthur case, in an article published in 1974 in 9 U.B.C. L. Rev. 280 at 298, was presciently critical:

     Turning, then, to the risks of legalism, the Code makes a very modest effort to mitigate the worst effects of court review.  What it does not do is to oust review altogether; rather the approach is to regularize it and to define its limits.

     In general terms, the Arbitration Act is made applicable to labour arbitration, with certain modifications.  A stated case procedure is put in place, presumably to expedite the decision of legal questions.  However, this procedure suffers from at least three defects:  it affords an opportunity for delay; it invites the interpretation of contractual language divorced from the factual environment of the case; and it permits the courts to mould arbitral jurisprudence by in terrorem rulings.

     So far as review per se is concerned, the Code does little to reassure those concerned with establishing or preserving the integrity of the arbitration process. The Court of Appeal, it is true, is given "exclusive jurisdiction in all arbitration cases" and to this extent some degree of predictability and consistency in the law of judicial review can be expected to emerge.  But the substantive grounds for review are virtually open-ended:  misbehaviour of the arbitrator, error of law affecting jurisdiction, and denial of natural justice.

     "Misbehaviour", when juxtaposed with the reference to natural justice, can only refer to some technical error such as the reception of inadmissible evidence.  No protection is likely to be afforded the arbitrator in such a case by his statutory mandate "to receive and accept such evidence...as in [his] discretion [he] considers proper, whether or not the evidence is admissible in a court of law.  The prognosis must be for repeated appeals to the court against relatively minor arbitral departures from familiar procedural and evidentiary rules in the direction of greater informality and flexibility.  There is, of course, no desire to license such departures where fundamental violations of natural justice occur, but the experience to date is that such violations have been relatively rare.

     The notion that limiting review to "error of law affecting jurisdiction" inhibits a full exploration of all legal issues, can only be described as naïve.  The ease with which virtually any issue can be translated into a jurisdictional issue has been the subject of rueful observation for at least twenty years.  And the draughtsmen of the Labour Code recognize this:  vide their elaborate efforts to protect the Labour Relations Board itself from review, even on jurisdictional grounds.

     Why, then, are arbitrators afforded so little shelter from the stormy blasts of judicial review?  A variety of possible answers may be suggested.  Unlike the Labour Relations Board, whose membership is carefully selected and almost certain to be of high quality, the ranks of arbitrators are open to anyone agreeable to the parties.  Hence arbitrators are more likely to be variable in skill and experience, to say nothing of legal knowledge.  The parties themselves are involved more frequently and more closely with arbitration than with labour relations board proceedings, the public visibility of arbitral awards is lower, and the adverse effects of either awards or judicial decisions can always be undone at the next set of negotiations.  For all these reasons, it might be argued that there is little at stake here for a government that seems otherwise committed to the notion of excluding judicial review.  But the result of the legislation may well be that review of arbitral awards is the major remaining judicial role in labour relations matters.  And review, whatever else it means, means cost, delay and legalism, none of which will make arbitration a more useful instrument in resolving labour-management differences.

[emphasis mine; footnotes omitted]

[25]    On 10th October, 1974, this Court delivered judgment in Valley Rite-Mix Ltd. v. Teamsters Local Union 213, [1975] 1 W.W.R. 685, in which it found that on the terms of the collective agreement there in issue, a board of arbitration had no power to substitute a suspension for a discharge.  By doing so, the Court held the arbitration board had committed an error of law "affecting the jurisdiction" and quashed the award.  Although no mention was made of the decision of the Supreme Court of Canada in Port Arthur Shipbuilding Co. v. Arthurs, supra, I think it right to assume that the Court was cognizant of it.

[26]    It is plain from the British Columbia Debates of 1975 that certain of the amendments of 1975 were a direct response to this Court's judgment in the Valley Rite-Mix case, supra.  Thus, the Minister of Labour, at p. 3975 of Debates of the Legislative Assembly of British Columbia, 18 February 1975-26 June 1975, Vol. 5, said:

In the proposed amendments to this bill, the government seeks to do two things basically.  First, we wish to clarify the precise line that divides the board's jurisdiction from that of the courts, in dealing with matters that are now under the exclusive jurisdiction of the board.  Second, and consistent with the same basic policy, we wish to ensure that the board is the final decision-making authority in the area of industrial and arbitration law.

[27]    Since then, the Board has developed its own very substantial body of jurisprudence, including its own standards for the review of arbitration awards.

The Judgments of this Court 

[28]    So far as I am aware, the first case decided under the present provisions was A.I.M. Steel Ltd. v. United Steelworkers of America, Local 3495, [1976] B.C.J. No. 6 (Q.L.) (B.C.C.A.).  In issue was an arbitration award founded on a grievance brought by a union asserting that an employer, A.I.M. Steel Ltd., had appointed a charge hand without first posting the assignment.  The issue under the terms of the collective agreement was whether such a position had to be posted.

[29]    In declining jurisdiction, Farris C.J.B.C., speaking for himself, Maclean and Taggart JJ.A., said:

[7]   It will be noted that under s. 109(1) this Court only has jurisdiction to review a decision or award "where the basis of the decision or award is a matter or issue of the general law".  It is my opinion that the basis of the award was not a matter or issue of the general law but the provisions of this particular collective agreement between these two parties.  The dictionary meaning of the word "basis" is "the main constituent".  The main constituent of this award was "the wording of this collective agreement".

[8]   It was asserted that what the Board did was to interpret the agreement.  It was contended that the interpretation of an agreement is a matter or issue of the general law as it involves the well-known canons of construction.  This contention overlooks the provisions of s. 92(2) and (3) of the Labour Code which read as follows:

"92. (2)  It is the intent and purpose of this Part that its provisions constitute a method and procedure for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work.

(3)  An arbitration board shall, in furtherance of the intent and purpose expressed in subsection (2), have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties thereto under the terms of the collective agreement, and shall apply principles consistent with the industrial relations policy of this Act, and is not bound by a strict legal interpretation of the issue in dispute." (emphasis supplied [by Farris C.J.B.C.])

[9]   In the face of the direction that an Arbitration Board is not bound by a strict legal interpretation of the issue in dispute, it cannot be successfully asserted that "the basis of the decision" of this Board in interpreting the wording of this collective agreement was "a matter or issue of the general law".  It could not have been intended that a decision made pursuant to this direction, should be subject to review by reference to the general law, by which the arbitrator is expressly instructed not to consider himself bound.

[30]    Two years later, in Western Mines Ltd. v. United Steelworkers of America, Local 954, [1978] B.C.J. No. 432 (Q.L.) (B.C.C.A.), the grievor had been "removed from the payroll as of March 29th, 1975."  He sought reinstatement with full seniority and lost wages.  The matter having gone to arbitration, the Arbitration Board held, among other things, "(t)here was no proper cause for his removal from the payroll as of March 29, 1975, ..."

[31]    The Labour Relations Board upheld the award by a decision of the 30th December, 1976.

[32]    The matter came to the Court of Appeal because, on the 16th December, 1976, a meeting of representatives of the appellant and of the Union had been held which concluded with a minute signed apparently by the Union in these terms:

     It was agreed, by all present, that if the description of his condition, as given by Mr. Hussey at the Compensation Board hearing, is correct, and the medical evidence is correct, then it was felt that with his present disability he would be unable to fill any of the three positions listed. [¶6]

[33]    The appellant asserted therefore that the parties had agreed there could be no reinstatement.

[34]    The Union then took the position that its representatives who were at the 16th December meeting had no authority to agree to any settlement.  The Arbitration Board reconvened although its jurisdiction was challenged by the appellant.  Its "decision" was described thus by this Court:

1.   The Board did not decide the question of fact whether a settlement had been agreed on at the December 16th, 1976 meeting.

2.   The Board did not decide the issue of fact whether the Union representatives at that meeting to the knowledge of the appellant had no authority to agree to a settlement.

3.   The Board did decide that the failure to give Mr. Pidgeon, counsel for the respondent, and through it representing Hussey throughout, any notice of the meeting had the effect of making the alleged settlement no settlement at all.

4.   The Board did decide that it still has jurisdiction and "we will continue this hearing upon the request of Mr. Pidgeon".

[35]    McFarlane J.A. held that the Arbitration Board's third reason was erroneous in law but, though it was erroneous in law, it did not attract the jurisdiction of this Court.

[36]    McIntyre J.A. concurred.

[37]    Robertson J.A. dissented, holding that the issue of the settlement or lack thereof was a "matter or issue of the general law".

[38]    In 1983, in Quesnel District 28 School Trustees v. United Brotherhood of Carpenters and Joiners of America, Local Union 2545 (1983), 42 B.C.L.R. 295 (C.A.), the facts as set out in the head note were these:

     Pursuant to the provisions of the Pensions (Municipal) Act, the employee elected, with the approval of the employer, to have her maximum retirement age remain at 60 rather than 65.  She subsequently reconsidered and requested the employer to extend her maximum retirement age to 65 under the provisions of the Act.  The employer refused the request and the respondent union filed a grievance on the employee's behalf.  The arbitration board held that the employer could make a private agreement with the employee regarding retirement and that while the employer retained a discretion to extend the retirement age of employees, its exercise of that discretion must be reasonable.  It held that the employer had failed to act reasonably in making its decision by failing, inter alia, to afford the employee an opportunity to express her reasons for making her application for extension.  The employer was directed to reinstate the employee and compensate her for her wage loss.  The employer appealed the board's decision.

[39]    Before the arbitration board, the respondent relied on s. 2(b) of the collective agreement (at p. 297):

     The Board shall always have the right to hire, discipline, demote and discharge employees for proper cause subject to this agreement; and to retire employees over sixty-five years of age.  No permanent employee shall be hired at the age of 65 years.

[40]    The Union contended that the provision prevented the Board from compelling the retirement of an employee under the age of 65 years and alternatively that an employee could not be compulsorily retired before the age of 65 because of the Human Rights Code, R.S.B.C. 1979, c. 186.  Thus, the Union argued that the refusal of the Board to extend the grievor's retirement date was discriminatory and unreasonable within the meaning of the Code.

[41]    In the upshot, Craig J.A. held that the decision really involved an interpretation of the collective agreement.  It was therefore not within the jurisdiction of the court.

[42]    Anderson J.A. expressed the issues between the parties in these terms, at p. 300:

Counsel for the appellant submitted:

     (1)  that the statutory rights of election and re-election under the Pension (Municipal) Act, R.S.B.C. 1979, c. 186 ("the Act"), and the discretionary powers of the employer set out in s. 2(4) of the Act fell outside the ambit of the collective agreement and that as a result the arbitration board was without jurisdiction;

     (2)  that the appellant could not in law fetter its discretion in the manner suggested by the board.

Counsel for the respondent submitted:

     (1)  that this court has no jurisdiction to hear this appeal because the basis of the award is not "a matter of general law not included in s. 108(1) of the Labour Code [R.S.B.C. 1979, c. 212]";

     (2)  that while the statutory election by the employee affected her rights under the pension scheme, her right to work continued to be governed by the terms of the collective agreement, which right to work extended to age 65;

     (3)  even if the statutory election made by the employee affected her right to work, the collective agreement, as amended by operation of law, continued to cover the employee;    

     (4)  the appellant had discriminated against the employee by refusing to continue her employment to age 65 contrary to the provisions of the Human Rights Code, R.S.B.C. 1979, c. 186; and

     (5)  the board was correct in holding as it did or, alternatively, we have no jurisdiction to interfere.

[43]    On the issue of jurisdiction, he said, at p. 304:

With respect to the issue of jurisdiction of this court to hear the appeal, I am clearly of the view that the question as to how the provisions of the Act should be interpreted is clearly a matter of "general law".  The Act deals with pension rights and obligations of a class of persons, and not merely the members of bargaining units.  In this case, as it turns out, we may not have acquired jurisdiction because, in my opinion, after full argument and a careful review of the facts, the "discretionary" section of the Act (s. 2(4)) should be construed as one of the terms of employment.  I think, however, that in order to properly consider the issue before us that it was necessary that we assume jurisdiction for the purpose of hearing this appeal.  We might, for example, have determined on an issue of "general law" that the conduct of the appellant and respondent relating to pension rights and obligations was governed by the provisions of the statute entirely outside the ambit of the collective agreement.  To refuse jurisdiction at the outset would be to deny the appellant the right to present a clearly arguable case.

[44]    Next in time is the decision of this Court, Government Employee Relations Bureau v. British Columbia Government Employees Union (1984), 58 B.C.L.R. 1, in which the Government Employee Relations Bureau sought to appeal from an award of an arbitrator, the second paragraph of which read, at p. 3: 

The Union alleges that the Employer is in violation of a Report recommended to the bargaining Principals (the Government and the Union) under article 28.02 of the Master Agreement and ratified by the Principals, in that the Employer failed to take immediate steps to negotiate with the Union to develop educational courses for the Health Care Worker classification.  The issue as stated in argument by Counsel for the Union is as follows:  "Has the Employer violated article 28.02 and the 28.02 Report by failing to negotiate and implement a training program for Health Care Workers?"

Taggart J.A., for the court, went on to say, at p. 3:

     In order to reach a conclusion, the arbitrator found it necessary to consider provisions of the collective agreement and reports of committees established pursuant to it.  He had also to determine whether provisions of the Public Service Act, R.S.B.C. 1979, c. 343, and of the Public Service Labour Relations Act, R.S.B.C. 1979, c. 346, had the effect of denying the respondent the right to bargain collectively for its members in respect of some or all of the matters in issue.

     On this appeal the error asserted by the appellant is put this way in its factum:

     The learned arbitrator erred in law in determining that the Government Employee Relations Bureau, on behalf of the Government of the Province of British Columbia, had the authority or jurisdiction to negotiate the matter of training programmes for Health Care Workers with the Respondent pursuant to the provisions of the Public Service Act, R.S.B.C. 1979, c. 343 and the Public Service Labour Relations Act, R.S.B.C. 1979, c. 346.

[45]    The appellant put its position on jurisdiction this way (at p. 4):

     Counsel for the appellant says the arbitrator was not primarily concerned with interpreting the collective agreement but with whether the provisions of the collective agreement could be implemented having regard for the Public Service Act and the Public Service Labour Relations Act.  He submits the matter or issue of general law decided by the arbitrator is whether the appellant had power to enter into a collective agreement as interpreted by the arbitrator.  It was argued that s. 13(d) and (e) of the Public Service Labour Relations Act do not express principles of labour relations.  Rather, they express the public interest in narrowing the ambit of collective bargaining in the public sector by excluding from collective bargaining the matters referred to therein.  From this it was argued that the issue before the arbitrator was not one relating to principles of labour relations but was a question of jurisdiction, i.e., could the appellant, having regard to the provisions of the Public Service Act and the Public Service Labour Relations Act, enter into the collective agreement when it ran contrary to the two Acts.

[46]    The Court upheld the preliminary objection, Taggart J.A. saying, at p. 5:

No doubt the arbitrator had to consider the two statutes but because he did so does not mean he was engaged merely in a statutory interpretation and was therefore dealing with a "matter or issue of general law not included in s. 108(1)" to use the language of s. 109(1) of the Labour Code. On the contrary, in my opinion, the arbitrator had before him issues requiring him to give consideration to a collective agreement and to two statutes which in whole or in part deal with labour relations.  Those statutes express principles of labour relations, albeit within a narrower field than the field covered by the Labour Code.

[47]    In 1985, in Kinsmen Retirement Centre Association v. Hospital Employees' Union, Local 180, 63 B.C.L.R. 292 (C.A.), the union's grievance which led to the award sought to be appealed to this Court was unusual in that it asserted the employer was bound by the terms of the collective agreement to do everything in its power to compel all its employees to join the pension scheme established under the Pension (Municipal) Act, R.S.B.C. 1979, c. 317, and its predecessor acts.

[48]    The reasons of the Court do not disclose why the union cared or whether the union asserted that the employer was bound to discharge an employee who refused to join.

[49]    Lambert J.A., speaking for the Court, said, at pp. 298-99:

My three conclusions relate to the mode of review where the award is challenged on some ground other than the fairness of the hearing.  My three conclusions are:

1.  That if the real substance and determinative constituent of an award is inconsistent with the principles expressed or implied in the Labour Code, or another Act dealing with labour relations, then, even if the real substance is or involves a matter or issue of the general law, and even if there are subsidiary aspects of the award which could not, in themselves, found jurisdiction in the board, the Labour Relations Board and only the Labour Relations Board has jurisdiction, and it can grant all or any of the remedies set out in s. 108(1);

2.  If the real substance and main constituent of an award is a matter or issue of the general law, and if the Labour Relations Board does not have jurisdiction, then this court has jurisdiction and can grant any appropriate remedy, notwithstanding that other subsidiary aspects of the award would not, in themselves, be a ground for giving this court jurisdiction;

3.  If the real substance of an award is not such as to give jurisdiction to either the Labour Relations Board or this court, then the award is final and conclusive.

It follows that it is not sufficient, in deciding whether there is a reconsideration jurisdiction available in any particular case, to ask whether a matter of the interpretation, application, operation or alleged violation of the collective agreement is involved.  Those matters, together with dismissal and whether the matter is arbitrable, are what Pt. 6 of the Labour Code is all about.  Instead, the matter in issue must be analyzed more completely and the real substance of the dispute must be identified.  Only in this way can the question of jurisdiction be answered.  I do not consider anything I have said is contrary to the binding decisions of this court in A.I.M. Steel, [[1976] B.C.J. No. 6]; B.C. Ferry Corp. [25 B.C.L.R. 255, [1981] 1 W.W.R. 248], Can. Kenworth Co. v. Can. Assoc. Indust., Mech. & Allied Wkrs., Loc. 14 (1982), 35 B.C.L.R. 1, 82 C.L.L.C. 14,173, Quesnel Dist. 28 Sch. Trustees v. United Brotherhood of Carpenters & Joiners of Amer., Loc. 2545 (1983), 42 B.C.L.R. 295, 145 D.L.R. (3d) 334, Govt. Employee Relations Bureau v. B.C. Govt. Employees Union (1985), 58 B.C.L.R. 1, and the other decisions collected and referred to by Taggart J.A. in the latter case.  Indeed, I consider that those decisions support the distinctions that I have made.

In this case, I am satisfied that the real substance of the dispute is the interpretation of the Pension (Municipal) Act. Once it is interpreted, there is a subsidiary question relating to its application to the employees covered by the collective agreement under the interpretation of s. 11 of art. XI of the collective agreement.  But, in my opinion, if this court can deal with the real substance of the dispute, then this court can also deal with the subsidiary question in deciding whether to grant any remedy.  To decide otherwise would stultify the rights of appeal given by both ss. 108(1) and 109(1).

[50]    The following year, in B.C. Govt. Employees' Union v. B.C. (Govt.) (1986), 4 B.C.L.R. (2d) 232 (C.A.), the facts, as set out in the head note, were:

     The first collective agreement between the parties was made in 1974.  Although it contained an article that provided income protection solely for employees who underwent job reclassification, the respondent employer consistently applied the provision both to reclassifications and involuntary changes in position.  The collective agreement was renegotiated in 1983 without the article being changed.  One month after the new collective agreement came into force, the respondent notified the employees that, in future, the article would be applied only as written, i.e., solely to reclassifications and not to involuntary changes in position.  An employee who was adversely affected by this change filed a grievance.  The arbitrator concluded that the union could rely on an estoppel but that it could be brought to an end immediately upon the employer giving notice that it intended to rely on the strict wording of the article.  The union appealed.

[51]    Speaking for the Court, Lambert J.A. said, at p. 236:

     The basis of the award is, therefore, a matter of general law, that is, the law of estoppel, and the notice required to bring the right to rely on an estoppel to an end.  It is this issue that confers jurisdiction on this court to hear this appeal.  But, once the court has jurisdiction because of that basic issue, the jurisdiction extends to all matters arising out of the basic issue.  I refer to Kinsmen Retirement Centre Assn. v. Hosp. Employees Union, Loc. 180 (1985), 63 B.C.L.R. 292 (C.A.).

[52]    In 1992, in Hospital Employees' Union, Local 180 v. Fraser-Burrard Hospital Society, 65 B.C.L.R. (2d) 363 (C.A.), at issue was a job reclassification.  The grievor felt his duties were characteristic of a more senior position than that to which he had been assigned.

[53]    The grievor, who was a pathology attendant I, sought reclassification as a pathology attendant III.  The arbitrator denied his claim.  The union asserted that in analyzing the words of the benchmark specifications for each post, the arbitrator erred in law by overstating the scope of the duties of a pathology attendant III to the point that only a pathologist, because of the implicit requirements of the Vital Statistics Act, R.S.B.C. 1979, c. 425, that autopsies be performed by a medical practitioner, could lawfully occupy the post of pathology attendant III, thereby depriving the grievor, who was not a pathologist, of the opportunity for reclassification.

[54]    Thus, the "general law" said to give jurisdiction to the court was the Vital Statistics Act.

[55]    The argument of the employer was that all that the arbitrator was doing was interpreting the collective agreement and that, therefore, if there were to be a review, it must go to the Labour Relations Board.

[56]    Goldie J.A., speaking for the Court, held, at paras. 16‑17:

I am prepared to accept, without agreeing, that Mr. Kinzie erred in law as claimed by the Union, either in his interpretation of the benchmark specifications or in failing to give effect to the statute law of the Province in his interpretation of them.

The question is whether the basis of Mr. Kinzie's award is an error in respect of a matter or issue of the general law not included in s. 108(1).

[57]    Goldie J.A. then answered the question "no", saying, at para. 21, that the basis of the award was:

... his interpretation of a document, a product of the collective bargaining process, in relation to the viva voce and documentary evidence of duties performed by a union member for his employer.

[58]    In Martin-Brower of Canada Ltd. v. General Truck Drivers and Helpers Union, Local 31 (1994), 87 B.C.L.R. (2d) 292 (C.A.), Finch J.A., as he then was, having described the nature of the dispute and having referred to the authorities up to that date, including the Kinsmen case, said, at p. 300:

26    One must then determine what is the "main or determining principle or ingredient" of this award.  There was a dispute between the employer and union.  A collective agreement was in place.  The union member grieved.  He said he was entitled to have overtime calculated in a certain way.  He relied upon the long-standing practice of the employer to support his claim.  The employer said the past practice was not based upon any requirement of the collective agreement, but was instead gratuitous.

27    The arbitrator said the employer was estopped by its conduct from unilaterally changing the practice.  In the context of this dispute, I understand that to mean that considerations of basic fairness, and consequently continued good relations between employer and employees, would not permit the unilateral change of such a long-standing practice, without adequate notice to the other side, and at least the opportunity to argue against the change.  In the language of s. 92(3), "... the real substance of the matter in dispute..." was entitlement to overtime pay of employees working under the terms of the collective agreement.

28    If the arbitrator were required to make "... a strict legal interpretation of the issue in dispute..." (again to use the language of s. 92(3)), then it would have been necessary to analyze the doctrine of estoppel, and identify the elements necessary to constitute an estoppel, as that term is used in a legal sense.  But s. 92(3) makes it clear, in express terms, that an arbitrator is "... not bound by a strict legal interpretation of the issue in dispute..." but "... shall apply principles consistent with the industrial relations policy of this Act..."

29    Those principles, as indicated in s. 27 quoted above, include "... securing and maintaining industrial peace and furthering harmonious relations between employers and employees..." and "... improving the practices and procedures of collective bargaining."

30    Those are therefore principles the arbitrator was required to consider in deciding whether to hold the employer bound to its earlier practice in calculating entitlement to overtime pay.  Rather than apply a strict legal analysis as to whether that practice created an estoppel, the arbitrator was required to look at a broader picture, to take into account continued good relations between the parties operating under the collective agreement, and to foster the openness and fairness each of them might expect of the other when negotiating a further collective agreement.

[59]    Later, he said, at p. 302:

It is clear from the legislative scheme for review of arbitration awards that not every "... issue of the general law ..." falls outside the ambit of review by the Industrial Relations Council under s. 108.  Nor will every error of law by an arbitrator found an appeal to this Court, even if the error in law is the basis of the award.  To found jurisdiction in this Court, to paraphrase s. 109(1), it must be shown that the basis of the award is an issue of the general law, and that that issue is one beyond the scope of review by the Industrial Relations Council, having due regard for its broad mandate under s. 108(1)(b) to provide remedies where "... the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Act..."

* * *

35    ... It was not the intention of the legislature that every time an arbitrator applies principles or concepts deriving from law of general application that an appeal should lie to this Court.  Such an interpretation overlooks entirely the closing words of s. 109(1) as well as s. 108 of the Act, and the important supervisory role conferred by the legislature upon the Industrial Relations Council.

36    With these considerations in mind, it cannot be said that the arbitrator's reference to estoppel, as a matter of the general law, constitutes "the basis of the ... award..." as those words are used in s. 109(1) of the Act.  Nor can it be said that the basis of the award is a matter of the general law "... not included in section 108(1)."

[60]    What led to a dual system of appeals being thought to exist in discharge and suspension cases was, curiously, a decision of this Court in a case not of discharge or suspension, British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, [1997] 9 W.W.R. 759, 37 B.C.L.R. (3d) 317 (C.A.), known, apparently, as the "PSERC case", in which the employer had appealed, relying upon s. 100, from an arbitration award which held that certain fitness tests being required of forest firefighters discriminated against women.  This Court reversed that finding.  The Union raised before this Court no issue as to jurisdiction.

[61]    From that decision, an appeal was taken to the Supreme Court of Canada which on 9th September, 1999 reversed this Court [[1999] 3 S.C.R. 3] and, thus, in the end, upheld the award of the arbitrator.  The Supreme Court of Canada did not address the question of whether this Court had jurisdiction.  One has to ask whether, if this Court had no jurisdiction, what jurisdiction did the Supreme Court of Canada have?  Thus, it is not beyond the bounds of legal possibility that a judgment of the Supreme Court of Canada which has had, like all its judgments, a profound impact, is without a jurisdictional root.

[62]    What some may think ironic is that in the upshot, after a great deal of time and money had been expended in attacking the award, it prevailed. 

[63]    Until the PSERC case, it appears never to have occurred to the Labour Relations Board that it did not have exclusive jurisdiction in all matters concerning discharge and suspension awards.

[64]    For me to recount the many decisions of the Board on appeals to it from arbitration awards in such cases from 1975 until the 7th August, 1997 (see para. 69), would turn these reasons into a book.  But worthy of note is the way in which the Board dealt with the question of the parol evidence rule which might be called a matter of "general law".  In Board of School Trustees, School District No. 57, Prince George v. International Union of Operating Engineers, Local No. 858, (John Baigent, Vice-Chairman) B.C.L.R.B No. 41/76, we find this, at p. 11:

     The evidence of the intent of the negotiators which was before the Board was unsatisfactory and the Arbitration Board would have been remiss in relying on it.  Had that evidence been clear and unambiguous an arbitration board would have been entitled to give it a weight uncommon in civil proceeding which traditionally disdain evidence of a party's intent.  But that is not the case here.  The Board sought help in determining which of two interpretations was correct.  The parole [sic] evidence tendered was not persuasive.  The Board then returned to the agreement and chose an interpretation which it felt to be the most correct.  That interpretation does no violence to the language of the collective agreement and is not one which this Board should set aside.

[65]    In a decision of the same day (P.C. Weiler, Chairman; P. Cameron and G. Leslie, Members), University of British Columbia v. Canadian Union of Public Employees, Local 116, B.C.L.R.B. No. 42/76, the Board commented, at pp. 7, 8-9, 10:

As the Court of Appeal made clear in its recent decision in A.I.M. Steel, this statutory provision has freed labour arbitrators from strict control by common law rules of contracts and their interpretation:

It is notable that ss.(3) of Section 92 frees arbitrators from the application of strict legal rules of interpretation in resolving disputes between parties to collective agreements.  This freedom is protected by s. 106 which now provides that the Arbitration Act no longer applies to arbitrations conducted under the Code.

But for that same reason, Section 92 requires arbitrators to fashion a jurisprudence of the collective agreement which is responsive to the modern world of industrial relations. 

* * *

     The collective agreement is thus a classic example of the type of contract, fully integrated in a written document, for which the common law developed the so-called "parole [sic] evidence" rule.  That rule puts drastic limitations on the permissible use of extrinsic materials in the interpretation of a contract, whether these be drawn from the original negotiations or practices which later develop under it.  Certain judges in the Supreme Court of Canada, in Metropolitan Toronto Police Association (1974) 74 CLLC 14,223, expressed an extreme version of that rule, as denying the labour arbitrator the power to consider any materials drawn from the bargaining process, even the written and signed memorandum of settlement:

I cannot escape from the view that he could not have reached his conclusion had he not relied upon this evidence which consists of a document expressing proposals made in the course of negotiations.

It matters not whether the arbitrator was right or wrong when he found ambiguity in the col­lective agreement he had to construe.  The use of this particular type of extrinsic evidence, if it became accepted, would render finally drafted and executed agreements perpetually renegotiable and would destroy the relative security and the use of the written form.

* * *

     In British Columbia labour law, arbitrators are no longer strictly bound by this common law approach, an approach which would keep out all evidence of negotiation history because of a well-founded distrust of such evidence upon occasion.  In our view, whatever might be the merits of such a doctrine for commercial contracts -- in which a battery of corporate lawyers may take months to fashion carefully-honed language to deal with just one business transaction -- it simply makes no sense for the world of industrial relations.

[66]    The Board went on then and gave the reasons, summing them up thus, at p. 12:

     For these reasons -- the inherent vagueness of contract language, the need in industrial relations to remain faithful to the real-life expectations of the parties, and the availability of useful material in the bargaining process -- labour law has gradually moved away from the strict rule of exclusion.

The Labour Relations Board decisions leading to Fording Coal

[67]    The convoluted history of Fording Coal must now follow.

[68]    It began in the courts with two applications for judicial review brought by unions essentially seeking orders in the nature of mandamus to require the Labour Relations Board to hear appeals which the Labour Relations Board had held it had no jurisdiction to entertain.  Those applications came on before Henderson J.  The respondent employers were Westmin Resources Limited and Fording Coal Limited, each of whom had dismissed an employee for excessive absences from work.  In each case, the union, asserting that the absences were caused by a disability which the employer had a duty to accommodate, took the dismissal to arbitration.  Each of the grievances having been dismissed, the unions had applied for a review by the Labour Relations Board of the arbitration award.  The Board set aside each of the arbitration awards and remitted the cases for further consideration.  Subsequently, the two employers applied pursuant to s. 141(1) of the Labour Relations Code for reconsideration.  It was the reconsidera­tion decisions which led to the applications for judicial review.

[69]    Upon the Westmin reconsideration, the Board, in its decision dated 7th August, 1997, Westmin Resources Ltd. (Re), [1997] B.C.L.R.B.D. No. 343 (Q.L.), BCLRB No. B343/97, held that the judgment of this Court in the PSERC case, supra, determined the scope of a s. 100 proceeding, for it said:

16    In this case, the Union argued that the basis of the Award - the real substance and determining constituent of the Award - was not the Employer's duty to accommodate but rather, whether there was just cause to dismiss the Grievor on the basis of innocent absenteeism.  Alternatively, it is arguable that it is a principle of the Code implicit in the just and reasonable cause requirement of Section 84 that employees covered by a collective agreement not be terminated for discriminatory reasons.

17    While these issues raise questions as to whether the Board or the Court of Appeal has the jurisdiction to review an award which emanates from a case in which an employee is terminated and claims that the employer has failed in its duty to accommodate him or her, the Court of Appeal has recently assumed jurisdiction to review such awards.  In Government of the Province of British Columbia, supra, the Court of Appeal allowed an appeal of a decision of an arbitrator which dealt with an employer's duty under the Human Rights Act to accommodate an employee.  The grievor in that case had been employed for a number of years by the Minister of Forests as a member of a forest fire fighting crew.  Her employment was terminated after she failed to pass a standardized aerobic fitness test which had been instituted by the employer.  The arbitrator determined that the standardized test was discriminatory as it had an adverse effect upon women because of the physiological differences in aerobic capacity between men and women.  The arbitrator went on to conclude that the employer had failed to accommodate the grievor to the point of undue hardship and therefore allowed the grievance and reinstated the grievor.  The Court of Appeal allowed the appeal finding that individual testing of employees is inherently non-discriminatory.  The Court rejected the union's position that a lesser standard could be set for women as this "could be labeled 'reverse/adverse effect discrimination.'" Although the Court did not directly advert to the question of the Court's jurisdiction, it did assume jurisdiction to review the award.

18    The respective jurisdiction of the Board and the Court under Sections 99 and 100 of the Code is exclusive.  There is no concurrent jurisdiction to review the award of an arbitrator.  Where the Court has jurisdiction, the Board does not:  Kinsmen, [infra], p. 297.  Therefore, given the Court's assumption of jurisdiction in a case which dealt with the termination of an employee who claimed to be entitled to be accommodated, we conclude that the Board does not have jurisdiction.  The decision of the Original Panel is set aside.

[70]    Subsequently, on 22nd December, 1997, in its decision cited as Fording Coal Ltd. (Re), [1997] B.C.L.R.B.D. No. 451 (Q.L.), BCLRB No. B451/97, another panel of the Labour Relations Board, following the decision of the panel in Westmin, also held it had no jurisdiction and if there was to be an appeal it must be to this Court, but the dissenting member, V.A. Pylypchuk, saw the matter very differently:

13    In my view, both the majority and the panel in Westmin have erred in assuming that because the Court of Appeal took jurisdiction the question of jurisdiction was decided.  The Supreme Court of Canada found that the simple assumption of jurisdiction by courts in the absence of the issue being argued is of little utility when the matter is squarely raised and finally has to be decided on its merits: St. Anne-Nackawic Pulp and Paper Co. Ltd. v. CPWU, Local 219 (1986), 28 D.L.R. (4th) 1, at page 4.  That case raised for the first time the question of whether a court of competent jurisdiction or an arbitrator has jurisdiction to award damages against a trade union for an illegal strike.  The Court recognized that courts have awarded damages in similar circumstances, but "in those cases the issue of the jurisdiction of the court to do so was not challenged by the parties" (p. 4).

14    Given the majority's conclusion in this case, the jurisdictional question has now been before the Board twice and has yet to be decided on its merits.  Moreover, I agree with the Union that the question of jurisdiction was never decided on its merits by the Court of Appeal.  The issue is squarely before the Board which has a duty, absent a determination on the merits of the issue by the Courts, to address the merits.  As it stands now, an important issue has been "decided" but no one can point to any substantive reason in support of the result.

* * *

16    Part of the debate in this matter centres on whether the Human Rights Act (now the Human Rights Code, R.S.B.C. 1996, c. 210) is a statute "dealing with labour relations": Section 99 of the Code.  I disagree with the Union and with the original panel that it is such a statute.  However, the focus on that question is misguided.  For the reasons below it is unnecessary to find that the Human Rights Act is an act dealing with labour relations in order to found the Board's jurisdiction under Section 99 of the Code.

17    Arbitrators are given the jurisdiction in accordance with Section 89(g) of the Code to "interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement ...".  The Human Rights Act (now Sections 11, 12, 13 and 14 of the Human Rights Code) expressly regulates employment relationships as well as employee/union relationships, in relation to prohibited grounds of discrimination.  It is by no means a stretch to say that the Human Rights Act is intended to regulate the relationship of persons bound by a collective agreement.  All of the jurisprudence which has arisen under that Act, and given it contextual body, (including the duty to accommodate), is equally applicable.

18    Thus, where an issue arises under a collective agreement which is affected by the Human Rights Act and related jurisprudence, an arbitrator is obliged to interpret and apply that Act.  That obligation is itself an express principle of the Code (Section 89(g)).  At a minimum, a failure by an arbitrator to take note of the Human Rights Act or any other relevant employment related statute (as opposed to the correctness of its interpretation or application) when the circumstances call for its application, would render the decision inconsistent with this express direction in the Code.

19    Moreover, just cause for dismissal has long been held by this Board to be a fundamental principle of the Code in numerous Board decisions going back as far as Wm Scott and Company Ltd., BCLRB No. 46/76, [1977] 1 Can LRBR 1, which prescribed a specific approach to its application to be followed by arbitrators.  A failure to follow that approach is a matter of statute reviewable by the Board under Section 99.  Just because part of the necessary analysis in an issue of dismissal for just cause engages the application of the Human Rights Act does not diminish the central issue before the arbitrator -- namely, whether there was just cause for dismissal -- and thus makes it no less reviewable under section 99 of the Code.  It is implicit in Section 89(g) of the Code, and indeed trite, that an arbitrator must apply the Human Rights Act correctly.  It follows that a failure to do so will render an arbitrator's decision inconsistent with the express just cause principle in Section 84(1) of the Code and the direction in Section 89(g) of the Code.  Indeed, if anything, Section 89(g) adds an additional Code dimension which makes the matter all the more reviewable under Section 99.

* * *

24    The question under Section 99 for the purposes of this case is and always has been whether the arbitration award is inconsistent with the principles expressed or implied in the Code.  In this case I have concluded that there are two express Code principles under which the award may be reviewed: the just cause principle in Section 84(1) and the requirement to correctly apply an employment related statute (the Human Rights Act) pursuant to Section 89(g) as it relates to the just cause principle.

25    In that regard, I accept the Union's argument that in the main, this case involves an issue of just cause. However, I am cognizant that these factual circumstances cannot be materially distinguished from Westmin.  The Arbitrator had to determine whether the grievor Wilcox was dismissed for just cause, that cause being excessive non-culpable absenteeism.  In making that determination the Arbitrator was obliged to consider and take into account the duty to accommodate as expressed in the Human Rights Act.  In interpreting and applying the Human Rights Act, the Arbitrator had to be correct.  If he was not correct, then effectively the Arbitrator would not be in compliance with his mandate under both Sections 84(1) and 89(g) of the Code and therefore, would have rendered a decision that is inconsistent with the principles expressed or implied in the Code.

* * *

29    I agree with the majority to this extent:  ultimately the Court will have to squarely address the issue of jurisdiction under Section 99 as it relates to the Human Rights Act and its application or interpretation in the context of the just cause principle and the Code's directive to arbitrators to apply employment-related statutes in the context of that principle.  However, until that issue is definitively resolved, I believe the analysis in Kinsmen supports my conclusion in this matter.  In this case the essential issue turned on whether the Employer had just cause to dismiss and the Arbitrator's decision turned on the interpretation and application of the just cause provision encompassing within that, in the circumstances of this case, a consideration of the Human Rights Act.

Fording Coal in the courts

[71]    Henderson J. granted the relief sought.  The ratio of his reasons, supra, is found in para. 30:

[30]  In my view, when an arbitrator is considering whether just and reasonable cause has been proven and the path of inquiry leads to a consideration of whether the employer's duty to accommodate has been discharged, the arbitrator is considering and applying principles implied in the Code.  The principle expressed in s. 84(1) that an employer must have just and reasonable cause for dismissal contains, by necessary implication, those subsidiary principles which are its constituent components.  The nature and extent of the duty to accommodate is one such subsidiary principle.  Where a duty to accommodate exists and has not been discharged, there is no just and reasonable cause.  That is so because the duty to accommodate is a component of the law of "just and reasonable cause" and a principle implied within s. 84(1) of the Code.

Thus, Henderson J. did not rest on s. 89(g).  By this passage, he implicitly held that even if the interpretation and application of the Human Rights Code is a "matter of general law" within the meaning of those words in s. 100, that "matter of general law", when it arises upon a question of "just and reasonable cause for dismissal", is a matter or issue of the general law included in s. 99(1).

[72]    From the orders pronounced by him, the employers appealed.

[73]    Their appeals were heard with an appeal brought by the Public Service Employee Relations Commission against an arbitrator's award, to which appeal the respondent was the B.C. Government and Service Employees' Union.

[74]    This Court allowed the appeals of Westmin and Fording Coal and dismissed the third appeal.  So far as I know, the Unions did not appeal the arbitrator's awards which had been before the Labour Relations Board to this Court.  Thus, there never was appellate review, either by the Board or by this Court, of the arbitrator's dismissal of the grievances which the Unions had brought.

[75]    Huddart J.A., writing for herself, Finch J.A. as he then was, and Hollinrake J.A., summed up her opinion thus (70 B.C.L.R. (3d) 74 at 80):

7     These reasons will explain my view that the Labour Relations Board does have jurisdiction to review awards involving the interpretation and application of the Human Rights Code, but not all such awards.  In my opinion, the substance of the decision or award in both Westmin and Fording was a question of general law regarding the duty to accommodate such as to bring the matter within this Court's jurisdiction unless excluded by s. 99(1).  Because the principle of general law at issue is not a principle implied in the Labour Relations Code, and because the Human Rights Code is not an act dealing with labour relations, a review by this Court is not excluded as coming within the exclusive jurisdiction of the Labour Relations Board.  It follows that in my view this Court has jurisdiction and the Labour Relations Board was right to refuse the review applications under s. 99(1).  In PSERC, however, this Court has no jurisdiction to review the award because its substance was not a question of general law, and therefore the application to review under s. 100 must be dismissed.

[76]    I take to be a central passage of her reasons this:

42    Westmin's primary submission is that the chambers judge erred "when he held a principle implied in the Code could be identified by reference to the overarching issue before the arbitrator."  In doing so he failed, Westmin alleges, to undertake the full analysis of the issues considered by the arbitrator to identify the real basis for the arbitrator's award. If he had done the proper analysis, Westmin submits, the chambers judge would have recognized that the interpretation of the Human Rights Act was the basis of the arbitrator's award.

43    I think the chambers judge reached just that conclusion. He recognized that the basis of the award was the arbitrator's finding that Mr. Bonneau had not established he was disabled, and that the duty to accommodate is engaged only when a request for accommodation is made. He understood these were issues about the scope and nature of the duty to accommodate and that these were matters of general law. The essence of Mr. Justice Henderson's decision was that the duty to accommodate a disabled employee was nevertheless a principle implied in s. 84(1) of the Labour Relations Code because the arbitrator's "path of inquiry" as to whether a dismissal was for just and reasonable cause inevitably led him to consider that duty.  Thus, in his opinion, an appeal came within s. 99 and was thereby excluded from s. 100.  In my opinion, his error, if any, is in that holding, not in his characterization of the substance of the arbitrator's award.  Had he not found the substance of the awards to be a question of general law, he would have had no need to consider s. 99.

44    The issues on any appeal from the arbitrator's award would be whether the arbitrator was correct in his understanding of the meaning of "disability" as it is used in the Human Rights Code, and in his finding that the duty to accommodate is predicated upon a request for accommodation, whether those issues are considered by the Labour Relations Board or by this Court:  A.C.T.R.A. v. Canadian Broadcasting Corp., [1995] 1 S.C.R. 157 at 187.  In my view, these are not questions inextricably tied to issues regarding the collective agreement or the industrial relations policy of the Labour Relations Code that are the focus of the Board's responsibilities.

45    Had the real substance of the arbitrator's decision been whether as a matter of fact Westmin had fulfilled its duty to accommodate, the appeal, if any, would have come within s. 99.  The substance of the appeal would have been what circumstances constitute reasonable cause for dismissal for the purposes of the collective agreement and the Labour Relations Code, as in O.T.E.U., Local 378 v. British Columbia (Industrial Relations Council) (1988), 56 D.L.R. (4th) 140 (B.C.C.A.)Moreover, whether an employer has fulfilled its duty to accommodate is a question of fact.  When that question of fact arises in the course of an arbitration concerning whether a dismissal is for just and reasonable cause, its resolution will be subsidiary to that primary issue, even if matters of general law are involved in the substance of the decision.

Opinion

[77]    With respect, I do not consider that this approach or interpretation is consonant with the Labour Relations Code when ss. 99-101 are read with s. 84 in mind.

[78]    To put it another way, when the issue committed to an arbitrator is whether an employer has just and reasonable cause for dismissal, the power to adjudicate upon an appeal relating thereto belongs not to this Court but to the Labour Relations Board.

[79]    I find myself unable to see how any statutory provision which is considered in the arbitrator's analysis can be said to be the "main ingredient" or "real substance".  The main ingredient is always s. 84.

[80]    In other words, I agree with the analysis of Henderson J.

[81]    In coming to this conclusion, I note that in none of the cases before Fording Coal in which the Court accepted jurisdiction had the issue before the arbitrator been whether the employer had just and reasonable cause to dismiss.  I think it fair to infer that until the Labour Relations Board, in 1997, some 22 years after the enactment of the sections in issue, took far more out of the judgment of this Court in the firefighters standard case, British Columbia (Public Service Employee Relations Commission) v. British Columbia Government and Service Employees' Union, supra, which was not a dismissal case, than was warranted, had it been doubted that the Board had exclusive jurisdiction in appeals from arbitral awards in dismissal cases.

[82]    That being so, Fording Coal, on its fundamental issue – where do appeals from arbitral awards rooted in s. 84 go? – must be overruled.  Whether it is in whole or in part good law in cases in which the origin of the dispute is not s. 84 is not before us.

[83]    This Court has no jurisdiction in this appeal which ought therefore to be quashed.  The respondent's application to adduce fresh evidence falls with the appeal.

 

 

 

 

 

“The Honourable Madam Justice Southin”

 


Reasons for Judgment of the Honourable Madam Justice Newbury:

[84]    When this appeal was originally brought to this court, the issues as stated in the appellant's factum were fairly narrow — had the arbitrator failed to consider the "effect of non-culpable conduct [of the grievor] in determining whether the [employer's] duty to accommodate to the point of undue hardship had been satisfied", and had he failed to determine "whether the risk of relapse posed a real risk to the employer's operations, patients and employees."  However, when this court questioned whether it had jurisdiction to review the arbitration award and specifically requested argument, both in this appeal and the appeal heard with it, Canpar Industries v. International Union of Operating Engineers, Local 115, CA029791, concerning the correctness of this court's decision in United Steelworkers of America, Local 7884 v. Fording Coal Ltd. (1999) 179 D.L.R. (4th) 284, 70 B.C.L.R. (3d) 74, the issues took on more general significance.

[85]    My colleague Madam Justice Southin, whose reasons I have had the opportunity to read, has concluded that Fording Coal was incorrectly decided.  In her view, whenever the question before an arbitrator is whether an employer had just and reasonable cause for dismissal, "the power to adjudicate upon an appeal relating thereto belongs not to this Court but to the Labour Relations Board. . . .  The main ingredient is always s. 84 [of the Labour Relations Code]."  I respectfully disagree with this conclusion, which in my view conflates the basis of the grievance in a dismissal case, with the basis of the award.  Where the award depends upon the statutory defence of "bona fide occupational requirement" (from which springs the principle of accommodation to the point of undue hardship) or on the employer's duty to accommodate, the terms of the collective agreement in particular, and labour relations principles (such as, for example, strict seniority rights) in general, are subordinated to this 'quasi-constitutional' law.  In my view, the basis of such an award is likely to be "a matter or issue of the general law" as referred to in s. 100 of the Code, and that "matter" is clearly distinguishable from the "principles expressed or implied in [the] Code" or in any other statute "dealing with labour relations", as referred to in s. 99. 

[86]    Before addressing the question of jurisdiction in more detail, however, I will review the facts giving rise to the arbitrator's decision in this case, and the result of the appeal taken by the employer to the Labour Relations Board prior to the appeal to this court.

Factual Background

[87]    The grievor, Mr. Bergen, is addicted to narcotic analgesic drugs.  He was dismissed in 1999 from his employment as a nurse by the Castlegar and District Hospital as a result of his theft of such drugs from his employer.  This had happened before, in November 1996.  Mr. Bergen mounted a grievance at that time and the arbitrator, Mr. Larson, had determined that:

. . . to terminate him in the circumstances would have been tantamount to a finding that his addiction was not a disease.  More specifically, on the issue of his conduct in obtaining the drugs I found that although he knew that what he was doing was wrong, he was not able to control his behaviour, without help.  I found that both the theft of the drugs and the falsification of the records were typical compulsive actions and were inextricably linked to the addiction.  Accordingly, I held that what he did to get the drugs was an integral part of his addiction and that those things must be seen to be essentially a manifestation of the illness. (at 2-3)

As a condition of his reinstatement and in accordance with the arbitrator's direction, Mr. Bergen and the Hospital signed a "Last Chance Agreement". The document incorporated various requirements for his gradual return to work as a head nurse, including his working one year as a general duty nurse.  Clause 13 stated that "In the event that the Employee shall not remain abstinent or shall not comply with these conditions, he may be forthwith terminated from his employment."  The agreement was to remain in force for a period of two years following Mr. Bergen's return to active employment.

[88]    The gradual resumption of the grievor's duties appeared to work well and he was reinstated to his head nurse position in July 1998.  However, in September of that year, after the discovery of discrepancies in the Hospital's narcotics records, it became apparent he had lapsed by taking prohibited drugs, which he had stolen from medication intended for patients.  He was again dismissed by the Hospital and again grieved the dismissal.

[89]    In the course of its argument before Mr. Larson, who was again the arbitrator, the Hospital naturally relied on the Last Chance Agreement.  As noted by the arbitrator in his award:

[Counsel for the Hospital] argued that the agreement was designed to do precisely what the title suggests, which was to give the grievor one final opportunity to demonstrate that he could be rehabilitated.  Having regard to the context in which the agreement was originally made, she expressed the view that such an approach was reasonable since it was seen to be inappropriate to expose patients to an ongoing risk that their care might be further compromised in the future.  In more technical terms, she argued that the use of the word 'may' instead of 'shall' in section 13 should be taken to reflect that the parties were content to leave it to the discretion of the Employer to decide whether to terminate him in the event that he were to fail to remain abstinent and that, once made, the jurisdiction of the arbitrator was intended to be limited, not to a review of the propriety of the decision, but to a determination of fact, whether a condition of the agreement was breached.  [at 7-8]

[90]    However, Mr. Larson noted that the grievor's medical expert, Dr. Baker, had expressed the view that:

. . . last chance agreements are not normally appropriate as part of an initial program of rehabilitation because with drug abuse, at least, relapse is the norm and not the exception.  He said that, in those circumstances, it would mean that the employee would almost invariably end up being dismissed if only one chance were made available to him.  . . . according to Dr. Baker, the more effective approach, which he says is becoming more common, is to require the employee to enter into a 'behavioral contract' which typically will provide a more deliberative or measured response to a relapse.  [at 8-9]

[91]    The arbitrator rejected the Hospital's contention that as a matter of law, the use of the word "may" in clause 13 of the Last Chance Agreement had left a discretion in the employer whether to discharge the grievor in the event of a relapse, and that therefore the issue of his dismissal was res judicata.  The arbitrator reviewed various cases dealing with 'last chance' and similar agreements, including Heather Steele and Summit Logistics Inc. and Retail Wholesale Union, Local 580 [1998] B.C.L.R.B.D. No. 546 (Q.L.), Re Cominco Ltd. and United Steelworkers of America, Local 651 (1993) 35 L.A.C. (4th) 430, and Re MacMillan Bloedel Ltd. and Industrial, Wood & Allied Workers Union, Local 1-217 (Regan) (1996) 61 L.A.C. (4th) 38.  With respect to the agreement entered into by the grievor, he noted there was no substantive difference between its terms and the terms set out in his earlier award.  In a passage which I confess I find puzzling, he said:

In particular, paras. 13-14 in the agreement, which are critical to my jurisdiction, are identical to the conditions set out in my award.  Could it be said that those conditions reflect that a decision was made prospectively that if the grievor were to relapse that he would be terminated?  Clearly not.  It is true, as Ms. Sartison argued that a discretion was left with the Employer whether to terminate in those circumstances.  The word 'may' in section 13 was purposefully selected instead of 'shall' to permit the Hospital to decide whether to dismiss the grievor in the event of a relapse.  But could it then be said that in the event that the Employer were to dismiss the grievor the decision would not be subject to arbitral review?  Once again, the answer is, no.  [at 16-17]

[92]    Thus Mr. Larson found that his jurisdiction was not limited to a determination of whether the grievor had breached the conditions of the first award, but that he had "full authority to decide whether [the grievor] was discharged for just and proper cause including the issue whether discharge was excessive in the circumstances."  Considering all the medical evidence, including Dr. Baker's opinion that a relapse in the grievor's initial program of treatment was "almost inevitable", the arbitrator stated that the strict terms of the Last Chance Agreement had in fact  become a partial cause of the grievor's difficulties:

     The point of that evidence is not to demonstrate that he indulged in a further act of deceit but rather to illustrate a point made by Dr. Baker that the requirement to report actually became an impediment to more appropriate and timely treatment because it gave rise to a fear in the grievor at the initial stage of relapse, when it would have been preferable to intervene, that he would be summarily terminated if the Employer were to find out.  In the result, once the relapse occurred, instead of immediately seeking help, which would have avoided the chicanery involved in his subsequent attempts to cover it up, he persisted in taking the drug under the delusion that he would be able to stop on his own.  Instead, he got caught and was terminated, which, in the view of Dr. Baker, was the reason why he failed to self-report in the first place.  [at 20]

[93]    The arbitrator referred to the evidence of Dr. Dickson, who testified on behalf of the Hospital that the grievor must be considered to be at "high risk of relapsing again" and that although some 80 percent of health care professionals recover from drug dependency, there is no test that can be given to determine whether a person will relapse.  Dr. Dickson's "personal bias" was said to be in favour of Last Chance Agreements right at the outset of discovery of the addiction, because in his opinion "to give the person several chances constitutes enabling activity which sustains the addiction rather than deters it."  (at 29-30.)

[94]    The arbitrator then turned to the legal issues, which he formulated as follows:

     The legal issues that arise on that evidence, whether the Employer ought to be exposed to the risk of another relapse, must turn on the principles that govern discharge for any chronic illness or, even more to the point, whether the Employer has discharged its duty to accommodate under the Human Rights Code.  The premise of the latter approach is that it is an offence to discriminate against an employee because of a disability which, in the case of adverse effect discrimination, gives rise to an obligation to accommodate the employee to the point of undue hardship.  [at 30]

In this regard, he reviewed the decision of the British Columbia Council of Human Rights in Handfield v. North Thompson School District No. 26 [1995] B.C.C.H.R.D. No. 4, where in a case of alcoholism, the Council held "there can be no blanket rule which justifies the termination of an alcoholic employee who relapses after receiving treatment previously considered adequate to sustain recovery and that it will always be necessary to consider all of the factors that lead to the relapse."  (at 32.)  A similar conclusion was reached in Re Norbord Industries and International Woodworkers of America-Canada, Local 1-2995 (Gravel) (1997) 67 L.A.C. (4th) 205 (Carrier), which had involved a last chance agreement similar to that in the case at bar.  There, the arbitrator had ruled that "While the parties may themselves have agreed that termination would follow, upon the employee's failure, that agreement cannot supersede the requirements of the [Human Rights Code]."  Turning then to this case, Mr. Larson continued:

     The main issue that arises on that analysis is whether the Employer has already suffered undue hardship in this case due to the manner in which the grievor's disease has manifested itself through what would ordinarily be considered serious workplace misconduct, which is to say, the misappropriation of drugs and falsifying records to cover up the resultant defalcation.  It is not to be forgotten, however, that drug addiction is to be treated as a disease no different from diabetes or arthritis, both of which are chronic illnesses capable of disablement but that can be effectively managed through proper medical therapies.  Any actions by the employee that are direct outcomes of the compulsive nature of the disease, meaning that the employee is unable to control his behaviour cannot, therefore, be counted as misconduct in any culpable sense although the amount of hardship that an employer must accommodate is less in positions that are safety sensitive: Re Toronto Transit Commission and Amalgamated Transit Union (Goebey) (1997) 72 LAC (4th) 109 (Shime); or involve a significant element of public interest: Re Canada Post Corp. and Canadian Union of Postal Workers (Sedorf) (1992) 25 LAC (4th) 104 (Joliffe).  [at 35; emphasis added.]

[95]    In the final analysis, Mr. Larson wrote, last chance agreements represent attempts to "secure the productivity and security interests of the employer while recognizing the entitlement of the employee who is suffering from a chronic illness not to be discharged except where it results in undue hardship."  (at 37-8.)  In the case at bar, he found "no evidence" to indicate that the Hospital would suffer undue hardship if Mr. Bergen were reinstated to his employment "following a single relapse in his addiction treatment program." He continued:

Apart from the obvious problems caused by the loss of drugs and the manner they were taken, the only evidence of hardship was that certain nurses were upset when they discovered that they might be displaced because he was going to be returned to his previous job.  Once that situation was worked out, they accepted his condition and supported his treatment program.  Moreover, I accept the evidence of Dr. Baker that the relapse suffered by the grievor was a powerful negative reinforcement, making it less likely that it will happen again.

     I do not consider this case to be in any way analogous to Canadian Airlines International Ltd. v. C.A.L.P.A. (1997) 39 B.C.L.R. (3d) 131) (B.C.C.A.), where the evidence was that a pilot had been in possession and use of marijuana while on layovers and had transported the drug on the airplane.  In that case the arbitrator determined that dismissal was an excessive penalty for his misconduct and ordered that he be admitted to a rehabilitation program as a condition of his reinstatement; but the court held that there was no basis to conclude that the relationship was reparable in the circumstances where the pilot had committed a serious breach of company policy while occupying a position that carried a high degree of trust.

     While I accept the evidence of Dr. Dickson that any action that may enable an addiction should not be undertaken, I do not accept that to reinstate the grievor in the face of the existing agreement would constitute enablement, precisely because I think he can be accommodated by making the conditions of the agreement tighter and more compelling, just as, in cases of misconduct, one might prescribe a program of progressive discipline with escalating penalties.  In the result, I find that on the evidence available to me in this case, the grievance should be sustained.  [at 38-9]

Accordingly, the arbitrator set out several conditions to be incorporated in a new agreement between the parties, including conditions that the grievor be credited with full seniority "as if there has never been any interruption in his employment status"; that he return to a general duty nurse position gradually; and (the "third term") that the agreement make it clear "that a decision has been made in advance by this arbitration board that in the event that the grievor should experience a further relapse that he may be summarily terminated, without recourse."  At the same time the arbitrator retained jurisdiction (in the "sixth term") to deal with any disputes that might arise under the agreement, "including any question whether the grievor . . . may be properly terminated from his employment for failing to comply" with the new agreement. (at 41-2.)

The LRB Appeal

[96]    On appeal to the Labour Relations Board, the Hospital advanced three grounds of appeal, two alleging that the award was inconsistent with principles expressed or implied in the Labour Relations Code, and the third alleging that the award was inconsistent with the principles of the Human Rights Code.  Evidently, it was agreed by both parties at this stage that the Board was the appropriate forum for review.

[97]    Since we need not concern ourselves with the first two grounds advanced before the Board, I will only summarize them.  First, the Hospital argued that the arbitrator had failed to find "strong and compelling reasons" to support his decision to vary the (first) Last Chance Agreement.  Instead, he had equated the agreement with a "step in the process of progressive discipline."  (para. 26.)  On this point, although the Board commented that the arbitrator's failure to find "compelling reasons" for departing from the first agreement was initially troublesome, it found the arbitrator had not committed a reviewable error.  At para. 37, the arbitrator was said to have effectively held that the Last Chance Agreement was "not valid" because it had not met the requirements of the Human Rights Code.  Therefore, the Board said, it had not been necessary for him to consider whether there were other "compelling reasons" for departing from the agreement.

[98]    The second ground was based on inconsistencies in the award and in particular, between two terms ordered to be included in the new agreement.  The Board sustained this objection, setting aside the third and sixth terms of the award and remitting them to the arbitrator for clarification.  Another deficiency alleged by the Hospital was resolved by the Board's inferring a finding by the arbitrator that requiring the Hospital to accommodate a second relapse would amount to undue hardship.

[99]    The third ground of appeal was that the arbitrator had failed to "make a determination regarding its duty to accommodate the Grievor to the point of undue hardship based on all of the evidence before him."  Specifically, it was said he had assessed undue hardship "in relation to the blameworthiness of the Grievor's conduct", whereas in the Hospital's submission, culpability or wilfulness was irrelevant to the question of undue hardship.  (para. 47.)  The Board characterized most of the employer's arguments under this rubric as essentially taking issue with "findings of fact and/or the conclusions reached by the Arbitrator based on his findings" and noted that it was not the Board's role to second-guess those judgments.  However, the Board noted that there were "remaining arguments" asserting an analytical error in the arbitrator's determination of undue hardship.  On this point, the Board said:

It is debatable whether the Arbitrator analyzed undue hardship in the manner suggested by the Employer.  However, we believe the relationship between culpability and undue hardship is a question of general law.  The answer to that question should not turn on whether the employee is represented by a trade union.  The Court of Appeal has jurisdiction to ensure that the principles of the Human Rights Code are uniformly applied to union and non-union workplaces: see Fording Coal Ltd., supra.  [para. 51; emphasis added.]

[100]       In the result, the Board dismissed "the employer's grounds for review" of the award, with the exception of the inconsistency regarding the terms in the (second) last chance agreement.  Those terms were set aside and the matter was remitted to the arbitrator for clarification.  The question of law incorporated in the third ground of appeal — "the relationship between culpability and undue hardship" — was not dealt with on the merits but was dismissed on the ground that it lay outside the jurisdiction of the Board and within the jurisdiction of the Court of Appeal. 

[101]       In accordance with the Board's ruling on jurisdiction, the Hospital next appealed to this court on the bases that  (1) the arbitrator had failed to consider the effects of the grievor's conduct, albeit (the Hospital said) "non-culpable", on the employer; and (2) the arbitrator had failed to apply the "proper test" to determine whether the Hospital had met its duty to accommodate the grievor to the point of undue hardship by "failing to decide whether there was a real risk of relapse and how that risk impacted the Hospital's operations, employees and patients."  On this occasion, the Hospital was obliged to take the position that the basis of the award was a question of general law not "included in" s. 99(1).  It submitted that the "main ingredient" of the arbitrator's award was "whether the duty to accommodate an employee to the point of undue hardship includes a consideration of the impact of the employee's non-culpable conduct in the workplace and the risk of another incident of such conduct" and further, that:

The main ingredient, or "basis" of the Award was a matter of general law.  The Arbitrator passed judgement on the interrelationship between the duty to accommodate under the Human Rights Code and the negative effects of ongoing, non-culpable behaviour.  [para. 27]

(I note parenthetically here that as Mr. Justice Mackenzie has pointed out in his Reasons, the Hospital characterized the grievor's conduct in this case as "non-culpable".  At other places in its factum, the Hospital used the phrase "arguably non-culpable".  I do not regard this assumption or concession (if such it was) as conclusive of the point, or as determinative of the question of "consequences" on the employer.)

[102]       The Hospital's  argument, of course, was contrary to the employer's previous position before the Board.  There, it had said the Board had jurisdiction to consider all three grounds of appeal, including those pertaining to human rights principles.  Counsel for the Hospital had written:

The "basis" of the Arbitrator's decision is his interpretation of an earlier award and consequent last chance agreement between the parties and the measure of the impact of the grievor's conduct in light of the same.  The "basis" of the award is not the interpretation of human rights law such that the appropriate forum for review is the B.C. Court of Appeal.  If the Board considers that there is an issue as to the appropriate forum for this review, the Applicant respectfully requests that that be addressed in a timely fashion to permit appropriate applications to the Court of Appeal.

[103]       Perhaps not surprisingly, the Union objected to this inconsistency.  It contended that the Hospital was seeking to ignore the adverse conclusions reached by the Board and was really seeking a retrial of the issues that had been before the arbitrator.  In its submission, the "question of culpability" was not the "focus" of the arbitrator's decision once he reached the stage of determining undue hardship.  Rather, culpability and "impact" or "consequences" were two different steps in a chain of reasoning.  The Union had adduced medical evidence to show that the grievor's conduct was the result of an addiction and therefore non-culpable.  It was then up to the Hospital to establish through evidence that the impact of the conduct resulted in undue hardship to it — an onus the Hospital had failed to discharge.

[104]       As I understand the Union's position, then, it would characterize "the basis of the award" as essentially a factual conclusion that the Hospital had failed to establish undue hardship on the evidence.  Critically, Mr. Larson had said there was "no evidence" the Hospital would suffer undue hardship if Mr. Bergen were reinstated, and that apart from the "obvious problems" cased by the loss of drugs and the manner in which they were taken, the only evidence of hardship was a trivial effect on certain nurses.  There was no evidence from any particular patient who had suffered unnecessary pain or inconvenience due to the theft of drugs, although the Hospital's Director of Patient Care Services had provided testimony to the effect that Mr. Bergen's conduct "presented an issue of patient safety and also raised a potential issue concerning the Hospital's responsibility and potential liability for failing to provide safe patient care." 

[105]       I agree with the Union that a high degree of deference must be accorded to the findings of an arbitrator.  It appears that the Board accorded such deference in its consideration of the Hospital's grounds of appeal.  However, the fact remains that the Board separated the "analytical error in the arbitrator's determination of undue hardship" alleged by the Hospital, from the other arguments subsumed in the third ground, which were characterized essentially as a challenge to factual findings.  As earlier noted, the remaining issue — "the relationship between culpability and undue hardship" — was not addressed by the Board because in its view this was a question of general law that fell outside its jurisdiction.  That is the question of law which the Hospital has pursued on appeal to this court.  Since no determination on the merits of that question was made, and since the Board declined jurisdiction on it, the Hospital is not precluded from doing so by its previous position or by res judicata.

[106]       Having determined that the employer is not precluded from pursuing its appeal, I turn next to the question of whether Fording Coal, which was relied on by the Board in declining jurisdiction to review the arbitrator's conclusion on this aspect, was correctly decided.

Sections 99 and 100

[107]       I begin by noting some features of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the "Code"), the relevant sections of which I have attached in their entirety as an appendix to these Reasons.  One begins with the principle, expressed at s. 82, that the labour arbitration system is intended to determine grievances and resolve disputes under collective agreements without resort to work stoppages.  For this purpose, arbitration boards are to "have regard to the real substance of the matters in dispute" and are not bound by a "strict legal interpretation of the issue in dispute."  An arbitration board may exercise a wide variety of remedies (listed in s. 89) and may "interpret and apply any Act intended to regulate the employment relationship" of parties to a collective agreement, "even though the Act's provisions conflict with the terms of the collective agreement." (s. 89(g).)

[108]       Also by way of general provisions, s. 84(1) requires that every collective agreement contain a provision to the effect that the employer must have "just and reasonable cause" for the dismissal or discipline of an employee.  This is a variation of the common law rule that where cause is shown, the employer is entitled to terminate the contract of employment without giving reasonable notice or damages in lieu.  The special feature added by the Code is to make reinstatement available as a remedy to an employee who has been dismissed "in contravention of a collective agreement."  (s. 89(b).)

[109]       The Code provides in ss. 99 and 100 for two mutually exclusive avenues of appeal from decisions of labour arbitrators — one to the Board and the other to the Court of Appeal.  Read together, the two provisions provide an appeal to this court where: (i) the basis of the decision or award is a matter or issue of the general law; and (ii) the matter or issue is "not included" in s. 99(1) of the Code.  The wording of s. 100 (especially the "not included") is very awkward, but it appears that, leaving aside s. 99(1)(a), in order for this court to have jurisdiction, the matter of the general law must be one other than an inconsistency with the principles expressed or implied in the Code or an inconsistency with "another Act dealing with labour relations".  On these matters, the Board has exclusive jurisdiction to review the arbitrator's award.  On all other matters, the arbitrator's decision is "final and conclusive" and not open to question or review "on any grounds whatsoever". (s. 101.) Thus as noted in Kinsmen Retirement Centre Assn. v. Hospital Employees' Union, Local 180 (1985) 63 B.C.L.R. 292 (B.C.C.A.), a decision or award which does not fall into either s. 99 or s. 100 may not be appealed, although judicial review by the Supreme Court of British Columbia may be available under the Judicial Review Procedure Act.

[110]       In dealing with appeals purportedly brought pursuant to s. 100, this court has followed the general policy, laid down in cases such as Weber v. Ontario Hydro [1995] 2 S.C.R. 929, of deferring to labour arbitrators and recognizing both the broad scope of their functions and their specialized expertise in dealing with workplace disputes.  As Madam Justice Southin has noted in her reasons, the Court has held that its jurisdiction does not extend to the question of whether a position had to be posted under the terms of a collective agreement (A.I.M. Steel Ltd. v. United Steelworkers of America, Local 3495 [1976] B.C.J. No. 6); nor to a dispute concerning the authority of a union representative to reach a settlement with an employer (Western Mines Ltd. v. United Steelworkers of America, Local 954 [1978] B.C.J. No. 432); nor to an employer's refusal to permit an employee to withdraw her election to have her maximum retirement age remain at 60 rather than 65 (Quesnel School District No. 28 School Trustees v. United Brotherhood and Joiners of America, Local Union 2545 (1983) 42 B.C.L.R. 295).  The majority in the latter case characterized the Board's decision to extend the retirement date as essentially a matter of interpretation of the collective agreement, which therefore lay within the Board's exclusive jurisdiction on appeal.

[111]       In Government Employee Relations Bureau v. British Columbia Government Employees Union (1984) 58 B.C.L.R. 1, this court also declined jurisdiction in a case involving the interpretation of a collective agreement together with two statutes which excluded certain matters from the collective bargaining process.  Taggart J.A. for the Court noted that those statutes expressed "principles of labour relations albeit within a narrower field than the field covered by the Labour Code."  The fact that the arbitrator had to consider and interpret the two statutes did not make the question into a matter or issue of general law not included in what is now s. 100 of the Code.

[112]       In Kinsmen, supra, the Union asserted an obligation on the part of an employer to compel its employees to join the pension scheme established under the Pension (Municipal) Act and its predecessors.  The Court carried out an extensive analysis of (then) ss. 108 and 109, which is set out at para. 49 of Southin J.A.'s reasons and which I will not repeat here.  At the conclusion of his analysis, however, Lambert J.A. summarized the operation of the two sections, and touched specifically on the meaning of "another Act dealing with labour relations" in the following passage:

     In this case, I am satisfied that the real substance of the dispute is the interpretation of the Pension (Municipal) Act.  Once it is interpreted, there is a subsidiary question relating to its application to the employees covered by the collective agreement under the interpretation of s. 11 of art. XI of the collective agreement.  But, in my opinion, if this court can deal with the real substance of the dispute, then this court can also deal with the subsidiary question, in deciding whether to grant any remedy.  To decide otherwise would stultify the rights of appeal given by both ss. 108(1) and 109(1).

     The interpretation of the Pension (Municipal) Act affects not only this employer, this union, and these employees, but also other employers, other unions, and other employees, union or non-union.  This court cannot reach a different interpretation in this dispute than it could reach in any other litigation involving the Act.  The Pension (Municipal) Act is no more a labour relations statute than the Landlord and Tenant Act would be if that Act was referred to in a collective agreement.  The Pension (Municipal) Act deals with employment relations in a general sense.  But it does not deal with labour relations, which are the relations between employers, on the one hand, and unions and the employees collectively represented by unions, on the other hand.  In this respect the Pension (Municipal) Act is not like the Public Service Labour Relations Act which was considered to be an Act dealing with labour relations in the Govt. Employee Relations Bureau case.  [at 299-300; emphasis added.]

(I note parenthetically that the Court equated the term "basis" with "main constituent" or "real substance and determinative constituent", and that it used the phrase "real substance of the dispute" interchangeably with "real substance of the decision or award", the latter being the wording of the statute.  Whether anything turns on the latter equation, I do not know; but with respect, I prefer to use the statutory language of "the basis of the decision or award" rather than to employ synonyms that may not be completely accurate or reflective of the Legislature's intention.  There may well be cases in which the basis of the award is quite different from the basis of the dispute.)

[113]       The final pre-Fording Coal decision of this court to which I will refer is Martin-Brower of Canada Ltd. v. General Truck Drivers' and Helpers' Union, Local 31 (1994) 87 B.C.L.R. (2d) 292.  There the issue was whether the employer was bound to calculate overtime in accordance with its long-standing practice, or could employ a different method.  Again, I will not quote at length from the judgment, since Madam Justice Southin has done so at para. 59 of her Reasons; but I note the following salient comments of Finch J.A. (as he then was) for the Court:

     Although the law of estoppel as a collection of legal principles may be said to be an area of "the general law" in a broad sense, I do not think one can say it is the basis of the award in this case.  While the appellant argued that the employer's conduct would have no consequences, and no legal remedy, but for application of the law of estoppel, it can equally be said that the law of estoppel would afford no remedy without the facts that were found by the arbitrator to be relevant.  One might say that the law of estoppel was a base of the decision or award but s-s.109(1) requires that it be "the basis of the decision".

     There will be many circumstances in which labour arbitrators are called upon to hear and to weigh legal arguments, and to reach conclusions as to what common-law principles, or statutory provisions, apply to the facts giving rise to the arbitration procedure.  It is clear from the legislative scheme for review of arbitration awards that not every "... issue of the general law ..." falls outside the ambit of review by the Industrial Relations Council under s.108.  Nor will every error of law by an arbitrator found an appeal to this Court, even if the error in law is the basis of the award.  To found jurisdiction in this Court, to paraphrase s-s.109(1), it must be shown that the basis of the award is an issue of the general law, and that that issue is one beyond the scope of review by the Industrial Relations Council, having due regard for its broad mandate under s-s.108(1)(b) to provide remedies where "... the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Act..."

* * *

It was not the intention of the legislature that every time an arbitrator applies principles or concepts deriving from law of general application that an appeal should lie to this Court.  Such an interpretation overlooks entirely the closing words of s-s. 109(1) as well as s.108 of the Act, and the important supervisory role conferred by the legislature upon the Industrial Relations Council.

     With these considerations in mind, it cannot be said that the arbitrator's reference to estoppel, as a matter of the general law, constitutes "the basis of the ... award..." as those words are used in s-s.109(1) of the Act.  Nor can it be said that the basis of the award is a matter of the general law "... not included in section 108(1)."   [paras. 31-2, 35-36; emphasis added.]

Accordingly, the Court again declined jurisdiction.

[114]       From these and other judgments of this court, it is clear that the fact an award entails the application or interpretation of a statute of general application or a common law rule of general application will not in and of itself attract the jurisdiction of this court on review.  The question in every case is the "basis" of the award.  Once the basis is found to be a matter of the general law, the fact that the award may involve other subsidiary matters which are not matters of general law does not mean that this court thereby loses jurisdiction.  On the other hand, if the basis of the award is an inconsistency with principles expressed or implied in the Code or in another "labour relations" statute, the fact that a matter of general law is somehow involved will not remove jurisdiction from the Board.

[115]       None of the foregoing cases, of course, dealt with the Human Rights Code or human rights principles.  As I mentioned in Canpar Industries, however, labour arbitrators have regularly applied such principles.  A good example relevant to this case is Re AirBC Ltd. and C.A.L.D.A. (1995) 50 L.A.C. (4th) 93, a decision of Mr. McPhillips, which provides a thoughtful analysis of the relationship between "reasonable cause" and non-culpable absenteeism.  He listed various factors relevant to whether the employer in that case had taken reasonable measures to accommodate the employee:

(1)  interchangeability of the workforce and facility;

(2)  whether the employee's job itself exacerbates the disability;

(3)  the extent of the disruption of a collective agreement;

(4)  the effect on the rights of other employees;

(5)  the effect on the morale of other employees;

(6)  costs to the employer of the proposed accommodation, including the impact on efficiency, wage increases, and other direct financial costs to be incurred (e.g., renovations), and

(7)  the impact on the safety of the individual, other employees or the general public. [at 117]

Neither party appealed the arbitrator's decision.

[116]       The issue of this court's jurisdiction on an appeal involving the Human Rights Code arose in 1998 in Fording Coal, which in fact dealt with two appeals from judgments of Mr. Justice Henderson — "Fording" and "Westmin", both reported at (1998) 62 B.C.L.R. (3d) 160, and "PSERC", a third appeal from an arbitrator's decision reported at (1998) 72 L.A.C. (4th) 309.  These came to the Supreme Court of British Columbia on applications for judicial review.  In Fording and Westmin, the Board had declined jurisdiction based largely on the fact that this court (and later, the Supreme Court of Canada) had heard the appeal in British Columbia (Public Service Relations Commission) v. British Columbia Government and Service Employees' Union [1997] 9 W.W.R. 759, rev'd at [1999] 3 S.C.R. 3 ("Meiorin"), without making any reference to the question of jurisdiction.  As stated by the Board in Re Westmin Resources Ltd. [1997] B.C.L.R.B.D. No. 343 (Q.L.):

     While these issues raise questions as to whether the Board or the Court of Appeal has the jurisdiction to review an award which emanates from a case in which an employee is terminated and claims that the employer has failed in its duty to accommodate him or her, the Court of Appeal has recently assumed jurisdiction to review such awards.  In Government of the Province of British Columbia, supra, the Court of Appeal allowed an appeal of a decision of an arbitrator which dealt with an employer's duty under the Human Rights Act to accommodate an employee.  The grievor in that case has been employed for a number of years by the Minister of Forests as a member of a forest fire fighting crew.  Her employment was terminated after she failed to pass a standardized aerobic fitness test which had been instituted by the employer.  The arbitrator determined that the standardized test was discriminatory as it had an adverse effect upon women because of the physiological differences in aerobic capacity between men and women.  The arbitrator went on to conclude that the employer had failed to accommodate the grievor to the point of undue hardship and therefore allowed the grievance and reinstated the grievor.  The Court of Appeal allowed the appeal, finding that individual testing of employees is inherently non-discriminatory.  The Court rejected the union's position that a lesser standard could be set for women as this "could be labelled 'reverse/adverse effect discrimination.'"  Although the Court did not directly advert to the question of the Court's jurisdiction, it did assume jurisdiction to review the award.

     The respective jurisdiction of the Board and the Court under Sections 99 and 100 of the Code is exclusive.  There is no concurrent jurisdiction to review the award of an arbitrator.  Where the Court has jurisdiction, the Board does not....  Therefore, given the Court's assumption of jurisdiction in a case which dealt with the termination of an employee who claimed to be entitled to be accommodated, we conclude that the Board does not have jurisdiction.  The decision of the Original Panel is set aside.  [paras. 17-8]

My colleague has quoted at length from the dissenting opinion of Mr. Pylypchuk in Re Fording Coal [1997] B.C.L.R.B.D. No. 451 on the same point. 

[117]       On review, Henderson J. ruled that the Board should have taken jurisdiction in the Fording and Westmin appeals.  The gist of his reasoning appears in this passage:

     In my view, when an arbitrator is considering whether just and reasonable cause has been proven and the path of inquiry leads to a consideration of whether the employer's duty to accommodate has been discharged, the arbitrator is considering and applying principles implied in the [Labour Relations] Code.  The principle expressed in s. 84(1) that an employer must have just and reasonable cause for dismissal contains, by necessary implication, those subsidiary principles which are its constituent components.  The nature and extent of the duty to accommodate is one such subsidiary principle.  Where a duty to accommodate exists and has not been discharged, there is no just and reasonable cause.  That is so because the duty to accommodate is a component of the law of "just and reasonable cause" and a principle implied within s. 84(1) of the Code.  [para. 30; emphasis added.]

[118]       On appeal, this court held that Henderson J. had erred.  In Huddart, J.A.'s analysis, it was wrong to say that:

. . . the construction and application of human rights legislation is necessarily subsidiary to the determination of whether an employer has established "just and reasonable cause" for dismissal of an employee within the meaning of s. 84(1) of the Labour Relations Code, and thus a part of the general law that is appropriate for decision under s. 99 by the Labour Relations Board.

 

     An arbitrator's consideration of matters of general law arises almost invariably within the context of issues presumptively within the arbitrator's jurisdiction - disputes respecting dismissal or discipline, or the interpretation, application, operation, or alleged violation of the collective agreement.  An arbitrator's consideration of a matter of general law in the context of the jurisdiction granted under the Labour Relations Code, in my opinion, does not render the matter of general law so considered a subsidiary component of the Code's requirement of just and reasonable cause for dismissal or its principles governing the interpretation of collective agreements.  If this were the case, there would be no principles of general law not included in s. 99. [paras. 47-8. emphasis added.]

Similarly, in the Fording appeal, Huddart J.A. wrote:

     The over-arching issue before the arbitrator was whether Fording had just and reasonable cause to terminate Mr. Wilcox's employment.  As a necessary part of his resolution of the dispute, the arbitrator was required to address the nature and scope of the duty to accommodate.

     As the original panel of the Labour Relations Board noted, had the main ingredient or substance of the arbitrator's decision been one of fact, whether the employer had accommodated his disability to the point of undue hardship, no appeal could have been brought to the Board.  Nor could one have been brought to this Court.  However, the main ingredient or substance of the decision was not one of fact. Rather, it was the arbitrator's opinion as to the nature and scope of the duty to accommodate, regardless of the factual circumstances. Fundamental to his decision was his view the duty to accommodate did not encompass irregular attendance.

     Thus, as in the Westmin decision, the main ingredient of the Fording decision was a principle of general law.  It was not the usual discipline case requiring decisions about general law incidental to a factual decision as to whether an employer had reasonable cause to dismiss an employee because he committed a crime, a tort, or a breach of fiduciary duty.  Nor was the decision, as the USW also submits, a consideration of the factual issue of whether Mr. Wilcox could return to work in any capacity in that workplace, under that collective agreement, without undue hardship for the employer and other employees.  The original panel of the Labour Relations Board remitted the grievance to the arbitrator so he could consider that issue; it was not the main ingredient or real substance of his award.  [paras. 56-8; emphasis added.]

[119]       On whether the duty to accommodate a disabled person to the point of undue hardship was a principle implied in the Labour Relations Code, Huddart J.A. quoted first from Henderson J.'s reasoning in the PSERC case as follows:

     To determine whether an employer had just and reasonable cause to dismiss an employee, an arbitrator must first determine the true reason for the dismissal.  One ground which can amount to just and reasonable cause is excessive absenteeism.  Where that is alleged, the arbitrator must determine how often the employee was absent from work and then decide whether such absences were excessive.   That will require a consideration of the circumstances in which the absences occurred, including the various reasons for them.

     In some cases, the absences will have been caused by a health problem which may amount to a disability.  In these instances, the arbitrator will have to go on to consider whether the evidence proves a "physical or mental disability" within the meaning of s. 8(1) of the Human Rights Act, S.B.C. 1984, c. 185.5.  If it does, the arbitrator must proceed to determine whether, in all of the circumstances, the employer has fulfilled its duty to accommodate to the point of undue hardship.  If so, then just and reasonable cause will have been established; if not, the dismissal is unwarranted.

     Each of these issues flows naturally from the identification and resolution of the issue before it.  Cumulatively, they amount to a chain of reasoning commencing with the question "is there just and reasonable cause for dismissal?" and ending with a conclusion as to whether any duty to accommodate has been discharged.  The issues are interdependent - questions decided at one step in the process will have relevance at another.  For example, the Supreme Court of Canada has pointed out in Renaud v. Central Okanagan School District No. 23, [1992] 6 W.W.R. 193, at p. 204, that an assessment of the degree of hardship caused by a particular accommodation may require a consideration of the provisions of the collective agreement.  The degree to which the accommodation departs from the normal terms of employment can provide insight into whether the hardship caused by the accommodation is "undue".  The question of whether the duty to accommodate has been discharged cannot be considered in isolation from the surrounding circumstances.  Such factors as the type of work the employee could perform and the ability of the employer to provide alternate work, which the employee is capable of performing, must be taken into account.  [at paras. 26-8 of the PSERC appeal, quoted by Huddart J.A. at para. 77; emphasis added.]

[120]       Again this court disagreed, ruling that although disputes about absenteeism and disability "will usually give rise to awards the real substance of which is not a question of general law", on occasions when "such interdependence is not present, when the essential ingredient of the award is a principle of general law", this court's jurisdiction is invoked.  (para. 78.)  Further:

     I can see no justification for inferring from such interdependence that the duty to accommodate is a component of s. 84(1), any more than the principles of the Charter, Criminal Code or Motor Vehicle Act are implied in that section, because in some cases the interpretation of their provisions may form a necessary part of an inquiry into whether there is just and reasonable cause.  Like those principles, the duty to accommodate is a principle of general law which the arbitrator must respect in arriving at his or her decision.  There is no need to imply a principle of human rights legislation into the Labour Relations Code for it to regulate the workplace.  Neither union nor employer may act unlawfully.

     And there is good reason for not doing so in the absence of such need, including the desirability of a correctness standard for the review of the principles of human rights legislation.  If human rights principles are seen as an integral part of the Labour Relations Code rather than flowing from an external statute, they would be subject to review only for patent unreasonableness.  Moreover, there is merit in a direct appeal to determine the correct­ness of a decision based on a principle of general law applicable to unionized and non-unionized employees alike, when the factual circumstances are not dominant.  As the reasons of Mr. McPhillips in AirBC, supra, demonstrate, the principles of just and reasonable cause and the duty to accommodate can be analyzed most effectively by being kept separate conceptually.  A separate consideration of the two concepts permits a focus on the decision, rule, or conduct alleged to be discriminatory and the response of the employer, union, or complainant to that conduct.  It is to be recalled that the duty to accommodate arises only where there has been discrimination.  [paras. 79-80; emphasis added.]

[121]       With respect to the argument advanced by Mr. Pylypchuk of the Labour Relations Board in his dissenting opinion in Fording that the duty to accommodate was a principle implied in the Code, the Court stated:

     This argument suffers from the same weakness as that based on the interdependence of the issues concerning the duty to accommodate and just and reasonable cause for dismissal.  It would deprive s. 100 of what I consider to be its significant purpose.  It would render all provisions of statutes regulating employment relationships a principle of the Labour Relations Code.  It would also render meaningless the inclusion of the words "another Act dealing with labour relations" in s. 99.  [para. 82]

Accordingly, the Court held that Henderson J. had erred in finding the "duty to accommodate" to be a principle implied in s. 84(1) of the Code.

[122]       Finally, the Court addressed the question of whether the Human Rights Code was "another Act dealing with labour relations" within the meaning of the second branch of s. 99(1)(b) of the Labour Relations Code.  Huddart J.A. referred to Douglas/Kwantlen Faculty Assn. v. Douglas College, [1990] 3 S.C.R. 570, which had made it clear that the Canadian Charter of Rights and Freedoms was an "Act intended to regulate the employment relationship" within the meaning of s. 89(g) of the Code.  She noted that like the Charter, the Human Rights Code must be considered by labour arbitrators in resolving labour disputes because it regulates and controls all workplaces and employee/employer and union/member relationships.  In her words:

It cannot be overridden by private agreement.  It is just as much a component of a labour dispute as is the Charter, and it is of fundamental importance to a worker's dignity and well-being.  The arbitrator has the power (from s. 89 of the Labour Relations Code) not only to interpret and apply the Human Rights Code, but also to fashion an appropriate remedy for its violation as part of the resolution of the labour dispute, as all parties agreed.  [para. 86]

[123]       This did not resolve the question of whether the Human Rights Code was "another Act dealing with labour relations" [emphasis added], however.  In Kinsmen, the Court had found the Pension (Municipal) Act not to be such a statute; Lambert J.A. had noted it did not deal with "labour relations, which are the relations between employers, on the one hand, and unions and the employees collectively represented by unions on the other hand."  Building on this definition of the phrase, Huddart J.A. found in Fording Coal that the difference in wording between s. 89(g) and s. 99 of the Code was significant, and that the review authority conferred by s. 99 was narrower than the interpretive authority of arbitrators under s. 89(g).  She suggested this approach was consistent with a "divided review jurisdiction designed to ensure that the Labour Relations Board has all the authority it requires to accomplish the purposes of the Labour Relations Code while ensuring equal application of general legal principles not essential to the integrity of the collective bargaining system."  (para. 88.)  It followed that the Human Rights Code was not "another Act dealing with labour relations."

[124]       I should note that the Court in Fording Coal appears not to have dealt with the decision of the Supreme Court of Canada in Meiorin, supra, which was released shortly before Fording Coal was released.  As Southin J.A. observes, the Supreme Court (like the Court of Appeal) did not raise or address the question of jurisdiction on that occasion.  Meiorin and its companion case, "Grismer" (British Columbia (Superintendent of Motor Vehicles) v. British Columbia (Council of Human Rights) [1999] 3 S.C.R. 868), are important for many reasons, especially the introduction of a new "unified approach" to the defence of bona fide occupational requirement referred to in the Human Rights Code.  The new approach made obsolete the distinction between "direct" and "adverse effect" discrimination.  More importantly for the purposes of this case, the Court confirmed the quasi-constitutional nature of human rights legislation and stated that such legislation must be interpreted liberally: see para. 44 of Meiorin; see also Insurance Corp. of British Columbia v. Heerspink [1982] 2 S.C.R. 145, at 157-8; Winnipeg School Board v. Craton [1985] 2 S.C.R. 150; and Ford Motor Co. of Canada v. Ontario (Human Rights Commission) (2001) 209 D.L.R (4th) 465 (Ont. C.A.) and the cases cited at para. 47 thereof.

Was Fording Coal Incorrectly Decided?

[125]       In its written submissions filed on the question of the correctness of Fording Coal, the Union submitted that this court had erred in concluding "that the issue of whether an employee was discharged for just and reasonable cause for excessive absenteeism, was a separate and discrete issue from whether an employer had failed to follow the provisions of the Human Rights Code and accommodate an employee whose absences were caused by disability."  In the Union's analysis, that separation is not realistically possible or desirable, given the superior ability of the Board (as opposed to the Court of Appeal) to consider the myriad of factors affecting the balance of interests in industrial relations in order to "determine, in an integrated fashion, whether, in all the circumstances, just cause and the duty to accommodate have been met."

[126]       The Union cited the decision of the Supreme Court of Canada in Toronto Board of Education v. Ontario Secondary School Teachers' Federation, District 15 [1997] 1 S.C.R. 487, where it was said that "A decision as to whether there is 'just cause' for discipline of an employee comes within the jurisdiction of an arbitration board, and therefore can only be set aside if it is patently unreasonable."  (para. 38.)  This proposition was not contested by counsel in the Toronto Board case and the Court emphasized that no new principle of law had arisen on the appeal. (para. 34.)  The only unique aspect of the case was that the grievor was a teacher, so that the arbitrator had been required to interpret a provision of the Education Act of Ontario, which sets out standards of conduct for teachers.  (Parenthetically, I also note that the Court stated:

It has been held on several occasions that the expert skill and knowledge which an arbitration board exercises in interpreting a collective agreement does not usually extend to the interpretation of "outside" legislation.  The findings of a board pertaining to the interpretation of a statute or the common law are generally reviewable on a correctness standard.  ...  An exception to this rule may occur where the external statute is intimately connected with the mandate of the tribunal and is encountered frequently as a result.  [para. 39])

[127]       The Union's submission seems to be that similarly in this case, the fact that the arbitrator was required to interpret and apply a provision of the Human Rights Code should not change the essential character of the award and is certainly not remarkable.  As stated by Vice-Chair Pylypchuk in his dissenting reasons in Fording Coal:

Just because part of the necessary analysis in an issue of dismissal for just cause engages the application of the Human Rights Act does not diminish the central issue before the arbitrator — namely, whether there was just cause for dismissal — and thus makes it no less reviewable under s. 99 of the Code.  It is implicit in s. 89(g) of the Code, and indeed trite, that an arbitrator must apply the Human Rights Act correctly.  It follows that a failure to do so will render an arbitrator's decision inconsistent with the express just cause principle in s. 84(1) of the Code and the direction in s. 89(g) of the Code.  Indeed, if anything, s. 89(g) adds an additional Code dimension which makes it all the more reviewable under s. 99.  [para. 19]

On a policy level, the Union also contends that this approach would lend greater certainty to labour relations and is consistent with the approach of "deference and restraint" taken by this court in considering its jurisdiction under s. 100: see Martin-Brower, supra, at para. 35. 

[128]       I appreciate that certainty of jurisdiction is a desirable goal of any labour legislation.  I also acknowledge that Fording Coal has been criticized as resting on an overly subtle distinction between awards "based on" human rights law and those based on findings of fact. (See in particular Phillip Bryden, "Principles for Allocating Jurisdiction over Human Rights Claims between Labour Arbitrators and Human Rights Agencies" in Human Rights: Disability Issues, Continuing Legal Education Society of British Columbia (November 1999), at 3.2.21).  With respect, I share Professor Bryden's scepticism as to whether the basis of most disputes will be 'factual' where the grievance concerns "non-culpable dismissal resulting from excessive absenteeism caused by disability".  (Fording Coal, para. 78.)  It may be that the Supreme Court of Canada's recent judgment in Housen v. Nikolaisen [2002] 2 S.C.R. 235 will provide more guidance on the question of the characterization of issues of this kind: see paras. 26-36.  Ultimately, however, the Court is required by the Labour Relations Code to take jurisdiction on an appeal where the "basis" of the award is a matter of the "general law" other than one "included" in s. 99(1).  The difficulty of making this determination, especially where issues of law and fact are "intertwined", does not obviate the obligation to do so.  If the approach taken by the courts does not accord with what was intended, it is obviously open to the Legislature to make the necessary amendments.

[129]       With respect to the Union's argument concerning the expertise of the Court of Appeal as compared to that of the Board in considering the many factors relevant to "workplace justice", I am not persuaded that that argument allows adequately for the unique and generalized nature of human rights legislation, or the differences between the purposes of such legislation and the purposes of the Code.  I have already referred to the comments of the Supreme Court of Canada in Meiorin to the effect that human rights legislation has the "status of fundamental law" similar to that of the Charter, at least where allegations of discrimination are involved.  Consistent with this quasi-constitutional aspect, s. 4 of the Human Rights Code expressly states that it prevails over other legislation.  In Canada (Attorney General) v. Mossop [1993] 1 S.C.R. 554 (in a passage quoted by this court in Fording Coal), La Forest J. made the following observations about the supervisory role of courts of law over human rights tribunals:

The superior expertise of a human rights tribunal relates to fact-finding and adjudication in a human rights context.  It does not extend to general questions of law such as the one at issue in this case.  These are ultimately matters within the province of the judiciary, and involve concepts of statutory interpretation and general legal reasoning which the courts must be supposed competent to perform.  The courts cannot abdicate this duty to the tribunal.  They must, therefore, review the tribunal's decisions on questions of this kind on the basis of correctness, not on a standard of reasonability.  [at 585]

[130]       In my view, the nature of human rights legislation in comparison to that of the Code supports the Hospital's argument in this case that "It is this court that properly has jurisdiction to review an arbitrator's decision which has, as its main ingredient, the interpretation of human rights principles (e.g., the scope of the duty to accommodate) that are not unique to the unionized workplace."  This appellate jurisdiction permits the Court to supervise the development of human rights jurisprudence in a manner that is consistent between unionized and non-unionized workplaces, and that does not vary according to the provisions of particular collective agreements.

[131]       As for the argument that wherever a grievance arises concerning the dismissal of an employee, the first branch of s. 99(1)(b) is engaged by reason of the provision that every collective agreement require "just and reasonable cause" for dismissal, I cannot agree.  Section 100 requires that the "basis of the decision or award" be determined in each instance – yet the approach suggested by the Union would pre-determine that question by reason of the occurrence of a dismissal.  On a more substantive level, the matters or issues referred to in subpara.(b) of s. 99(1) "carve out" of matters of general law, matters specifically concerned with "labour relations".  As I have already noted, "labour relations" were described by the Court in Kinsmen as "the relations between employers, on the one hand, and unions and employees collectively represented by unions, on the other hand."  No submission has been made calling these remarks into question, and if they are correct, the Human Rights Code does not come within the 'carved out' portion of general law issues.  Further, the dismissal of an employee from his or her employment is obviously not a phenomenon unique to the labour relations setting and indeed as earlier suggested, ss. 84(1) and (3)(a) are really a variation of the common law rule.  I am not persuaded that ss. 84(1) and (3)(a) are "principles" expressed in the Code.  Rather, they establish requirements applicable to collective agreements.

[132]       I remain of the view that Fording Coal was properly decided and that in order to determine whether this court has jurisdiction, it is not the factual background of the dispute or the remedy sought by the grievor, but the "basis" of the "decision or award" that must be determined.  I am not as confident as Huddart J.A. (Fording Coal, para. 78) that most grievances about dismissals resulting from absenteeism caused by disability are unlikely to give rise to awards "the real substance of which is . . . a question of general law"; but at the end of the day, that consideration cannot detract from the statutory mandate imposed by s. 100. 

The Basis of the Award in this Case

[133]       Having determined that Fording Coal was correctly decided, I return to the question of the characterization of the arbitrator's award in this case, with particular reference to the remaining question of law — which the Board characterized as "the relationship between culpability and undue hardship" — on which it declined jurisdiction.

[134]       The Union's argument was that the basis of the arbitrator's award was a factual determination that the risk of relapse posed by the grievor's conduct to the Hospital's operations was not shown to be serious — a conclusion not open to review by this court.  I might have agreed with this position but for the fact that the arbitrator also stated that "Any actions by the employee that are direct outcomes of the compulsive nature of the disease, meaning that the employee is unable to control his behaviour cannot, therefore, be counted as misconduct in any culpable sense although the amount of hardship that an employer must accommodate is less in positions that are safety sensitive . . . or involve a significant element of public interest . . . ."  (at 34-5; my emphasis.)  This suggests that the arbitrator was proceeding on the assumptions  that (i) the "outcomes" of behaviour must be considered differently according to whether the behaviour was culpable or not; and (ii) what would ordinarily be considered serious workplace misconduct could not be considered as such where the employee is unable to control his behaviour.  On this basis, he proceeded to find that there was "no evidence available" indicting undue hardship for the employer if the grievor were reinstated. 

[135]       It is not completely clear whether the latter conclusion was an independent one or was affected by a misapprehension that the duty to accommodate (which arises from a finding of non-culpability) effectively immunizes an employee from dismissal.  That it does not has been recognized in the arbitral jurisprudence: see Re Toronto Transit Commission and Amalgamated Transit Union (1998) 72 L.A.C. (4th) 109, cited in Canada Post Corp. and Canadian Union of Postal Workers (Zachar Grievance) [1998] C.L.A.D. No. 811, at para. 90, and more recently in British Columbia, Re Fraser Lake Sawmills Ltd. [2002] B.C.L.R.B.D. No. 390.  On balance, however, I am of the view that the "basis" of the arbitrator's decision in this case was that (what he regarded as) the non-culpability of the grievor's affliction removed the "outcomes" of his condition from the analysis of accommodation.  This was, as I read the award, a conclusion of (general) law about human rights principles, a matter "not included" in s. 99(1) of the Code.

The Merits of the Appeal

[136]       As far as the merits of the appeal are concerned, I also find that given the arbitrator's almost casual dismissal of the evidence before him, his misapprehension as to the significance of (what he regarded as) non-culpability as a matter of law affected his view of the "risk" posed to the employer (and its patients) by the grievor's conduct.  Applying a standard of correctness ─ which is indicated both by a consideration of the four factors comprising the "pragmatic and functional" approach to the review of decisions of administrative tribunals (see Pushpanathan v. Canada [1998] 1 S.C.R. 982 and the cases following it) and by cases (such as Mossop, supra) in the specific area of human rights ─ I find that he erred in this regard and that the appeal must be allowed.  It cannot be that in order to show undue hardship, the Hospital must show that the health of a patient has been seriously jeopardized, or even that a patient has died, before the point of undue hardship is reached in the case of a hospital employee who steals medicine and forges medication records.  The Supreme Court of Canada has stated that "where safety is at issue, both the magnitude of the risk and the identity of those who bear it are relevant considerations."  (Central Alberta Dairy Pool v. Alberta (Human Rights Comm.) [1990] 2 S.C.R. 489, at 520-1.) 

[137]       Further, McLachlin C.J.C. made it clear in Meiorin that accommodation to the point of undue hardship is to be approached in accordance with basic notions of balance, common sense and reasonableness.  (para. 63.) Recent arbitral decisions such as AirBC and Fraser Lake Sawmills, supra, confirm this important principle.  In the latter case, the Board recognized so-called "hybrid" cases — instances in which addiction has influenced the conduct of the employee but "has not dominated it to the extent that the employee's actions have been found to be totally non-voluntary" — and noted the "conceptual blurring between the traditional culpable and non-culpable approaches" in arbitral decisions.  The Board stated:

     This ordering of interests in the essential services designation provisions in the Code is also reflected in Section 2 of the Code, which requires that the public interest be properly considered.  In particular, Section 2 requires that the Board and arbitrators

(f)  . . . [minimize] the effects of labour disputes on persons who are not involved in those disputes;

     . . .; [and]

(g)  . . . [ensure] that the public interest is protected during labour disputes; . . . .

Patients in hospitals who require drugs, and the proper recording of the administration of those drugs, would be captured by both provisions.  In the essential services designation provisions of the Code, significant weight is placed on patient health, safety, and the public interest in the context of lawful conduct under the Code.  Taking drugs from patients and marking their charts as if they had received those drugs is seriously improper conduct, which inherently raises significant health, safety, and public interest concerns.  The seriousness of such concerns must be properly considered when an arbitrator weighs and balances the relevant factors in any arbitral review of an employer's decision to dismiss an employee in such circumstances.  Failure to do so where there is a reasonable possibility of recurrence, would not likely be consistent with the Code principles we have noted.  [para. 51]

[138]       Although the Hospital sought to have us determine the grievance if the appeal was successful, I would remit the case back to the arbitrator.  Having seen all the witnesses, he is in a better position to give appropriate consideration, notwithstanding the non-culpable element, to all factors relevant to the grievor's reinstatement, including risk to the Hospital and its patients.  I would also dismiss the Union's application to introduce new evidence in this court, as information regarding the grievor's present condition could make no difference to the questions of law raised by this appeal.

[139]       We are indebted to all counsel for their helpful submissions, both on the main appeal and on the correctness of Fording Coal.

“The Honourable Madam Justice Newbury”

 


Appendix

Purpose of Part

82   (1)  It is the purpose of this Part to constitute methods and procedures for determining grievances and resolving disputes under the provisions of a collective agreement without resort to stoppages of work.

(2)  An arbitration board, to further the purpose expressed in subsection (1), must have regard to the real substance of the matters in dispute and the respective merit of the positions of the parties to it under the terms of the collective agreement, and must apply principles consistent with the industrial relations policy of this Code, and is not bound by a strict legal interpretation of the issue in dispute.

* * *

Dismissal or arbitration provision

84   (1)  Every collective agreement must contain a provision governing dismissal or discipline of an employee bound by the agreement, and that or another provision must require that the employer have a just and reasonable cause for dismissal or discipline of an employee, but this section does not prohibit the parties to a collective agreement from including in it a different provision for employment of certain employees on a probationary basis.

(2)  Every collective agreement must contain 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.

(3)  If a collective agreement does not contain a provision referred to in subsections (1) and (2), the collective agreement is deemed to contain those of the following provisions it does not contain:

(a)  the employer must not dismiss or discipline an employee bound by this agreement except for just and reasonable cause;

(b)  if a difference arises between the parties relating to the dismissal or discipline of an employee, or to the interpretation, application, operation or alleged violation of this agreement, including a question as to whether a matter is arbitrable, 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.

* * *

Authority of arbitration board

89   For the purposes set out in section 82, an arbitration board has the authority necessary to provide a final and conclusive settlement of a dispute arising under a collective agreement, and without limitation, may

(a)  make an order setting the monetary value of an injury or loss suffered by an employer, trade union or other person as a result of a contravention of a collective agreement, and directing a person to pay a person all or part of the amount of that monetary value,

(b)  order an employer to reinstate an employee dismissed in contravention of a collective agreement,

(c)  order an employer or trade union to rescind and rectify a disciplinary action that was taken in respect of an employee and that was imposed in contravention of a collective agreement,

(d)  determine that a dismissal or discipline is excessive in all circumstances of the case and substitute other measures that appear just and equitable,

(e)  relieve, on just and reasonable terms, against breaches of time limits or other procedural requirements set out in the collective agreement,

(f)  dismiss or reject an application or grievance or refuse to settle a difference, if in the arbitration board's opinion, there has been unreasonable delay by the person bringing the application or grievance or requesting the settlement, and the delay has operated to the prejudice or detriment of the other party to the difference,

(g)  interpret and apply any Act intended to regulate the employment relationship of the persons bound by a collective agreement, even though the Act's provisions conflict with the terms of the collective agreement, and

(h)  encourage settlement of the dispute and, with the agreement of the parties, the arbitration board may use mediation, conciliation or other procedures at any time during the arbitral proceedings to encourage settlement.

* * *

Appeal jurisdiction of Labour Relations Board

99   (1)  On application by a party affected by the decision or award of an arbitration board, the board may set aside the award, remit the matters referred to it back to the arbitration board, stay the proceedings before the arbitration board or substitute the decision or award of the board for the decision or award of the arbitration board, on the ground that

(a)  a party to the arbitration has been or is likely to be denied a fair hearing, or

(b)  the decision or award of the arbitration board is inconsistent with the principles expressed or implied in this Code or another Act dealing with labour relations.

(2)  An application to the board under subsection (1) must be made in accordance with the regulations.

Appeal jurisdiction of Court of Appeal

100  On application by a party affected by a decision or award of an arbitration board, the Court of Appeal may review the decision or award if the basis of the decision or award is a matter or issue of the general law not included in section 99 (1).

Decision final

101  Except as provided in this Part, the decision or award of an arbitration board under Code is final and conclusive and is not open to question or review in a court on any grounds whatsoever, and proceedings by or before an arbitration board must not be restrained by injunction, prohibition or other process or proceeding in a court and are not removable by certiorari or otherwise into a court.

 


Reasons for Judgment of the Honourable Mr. Justice Mackenzie:

[140]       I have had the opportunity to read in draft the reasons of Madam Justice Southin and Madam Justice Newbury.  I agree with Southin J.A. that this appeal should be quashed for lack of jurisdiction, but the reasons for my conclusion do not require us to overrule the decision of this Court in United Steelworkers of America, Local 7884 v. Fording Coal Ltd. (1999), 70 B.C.L.R. (3d) 74, 179 D.L.R. (4th) 284, 1999 BCCA 534.

[141]       The facts are set out extensively in the reasons of my colleagues and I propose to summarize them only to the extent necessary to frame the issues as I see them.  The grievor was initially dismissed from his employment as head nurse at the Castlegar District Hospital (the "Hospital") in 1996.  The grievor was addicted to narcotic analgesic drugs.  He had taken Hospital narcotics to support his addiction and falsified patient records to cover the thefts. 

[142]       The union grieved the dismissal and the matter went to arbitration.  The arbitrator's award reinstated the grievor on conditions contained in a "last chance agreement" that provided for his gradual return to work, initially as a general duty nurse under supervision, and leading to eventual resumption of his position as head nurse.  The essential terms of the last chance agreement are referred to in paragraph 87 of the reasons of Newbury J.A. 

[143]       No appeal was taken from this award ("the first award") and the grievor was reinstated under the conditions of the last chance agreement.  Shortly after he resumed his position as head nurse, he relapsed and once more misappropriated narcotics and forged Hospital records.  He was again dismissed.

[144]       A second grievance was filed and the matter was returned to the arbitrator.  The appellant contended that the terms of the last chance agreement were conclusive in support of the termination following the relapse.  The arbitrator disagreed and ordered the grievor's second reinstatement on the terms of a revised or second last chance agreement ("the second award").

[145]       The Hospital appealed the second award to the Labour Relations Board on three grounds.  The Board addressed the first two grounds, which are not germane to the issues here, but it concluded that it did not have jurisdiction to deal with the third ground.  The Board stated the jurisdictional issue as: "the relationship between culpability and undue hardship is a question of general law [not within the jurisdiction of the Board under s. 99 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the "Code")].”  The appellant then launched the appeal to this Court under s. 100 of the Code.  All the statutory provisions relevant to this appeal are set out in the reasons of Southin J.A. and I need not reproduce them.

[146]       The appellant stated the issue of general law differently from the Board.  Its factum formulated the issue as:

The effect of non-culpable conduct [of the grievor] in determining whether the [employer’s] duty to accommodate to the point of undue hardship had been satisfied.

The Board refers to the relationship between culpability and undue hardship.  The appellant frames the issue as the relationship between non-culpable conduct and undue hardship. The two formulations are basically inconsistent. 

[147]       The explanation for the inconsistency lies in the procedural history of the proceedings outlined above.  The arbitrator found the grievor's conduct to be non-culpable in his first award.  The appellant did not appeal that award and consequently it has conceded that it is bound by that non-culpable finding on its appeal from the second award.  The statement of the issue by the appellant conforms to the record.  The issue as stated by the Board, the relationship between culpability and undue hardship, is precluded by the record.

[148]       The question then is whether the basis of the second award "is a matter or issue of the general law not included in s. 99(1)” [Code, s. 100] and within this Court's appellate jurisdiction on the appellant's formulation of the issue.  In exploring this question it is helpful to return to the finding of the arbitrator in the first award.  The arbitrator found the grievor's conduct to be non-culpable because the conduct was caused by the disease of drug addiction which rendered the grievor unable to control his behaviour.  He decided that the conduct "cannot, therefore, be counted as misconduct in any culpable sense although the amount of hardship that an employer must accommodate is less in positions that are safety sensitive."  This conclusion was reached against the background of the Human Rights Code, R.S.B.C. 1996, c. 210 which requires an employer to accommodate an employee's disability to the point of undue hardship.

[149]       The arbitrator appears to have regarded culpable and non-culpable conduct as mutually exclusive categories.  He may have had in mind arbitral decisions which held that conduct should be categorized as exclusively non-culpable where addiction "significantly impairs" the ability of the employee to engage in misconduct.

[150]       I pause here to note the Labour Relations Board’s recent decision in Fraser Lake Sawmills (2002), BCLRB No. B390/2002, decided after the decision of the Board before us.  In that case, the Board observed at paragraph 80 that “[t]here appears to be a growing arbitral consensus in which cases involving addiction and poor work performance are distinguished from cases involving dishonesty.”  The Board also noted, at paragraph 81:

[T]here is now a recognition that addiction differs from other diseases in some important respects.  Accordingly, it is necessary under Section 89(d) for arbitrators to take into consideration those special characteristics in approaching their task in reviewing discipline under a collective agreement, particularly in respect to the exercise of an arbitrator's remedial discretion.

This observation led the Board to reject the significant impairment test of exclusive non-culpability.  The Board noted that, while an addiction impairs the ability to choose, some element of choice remains, and the failure to exercise it appropriately is culpable.  The Board identified this combination of culpable and non-culpable elements as a hybrid category.

[151]       The failure of the arbitrator to recognize and weigh an element of culpability in the grievor's conduct is the appellant's real complaint, but the appellant is precluded by its concession from bringing that complaint through the front door of this appeal.  Its submission is essentially an attempt to insinuate the culpable element through the back door on the question of undue hardship rather than conduct.

[152]        In my view, this submission creates at least two problems.  First, it would contort the main meaning of "non-culpable".  Second, it risks confusing the clarity of the hybrid approach adopted in Fraser Lake Sawmills.  That decision correctly focuses the issue on culpability, to the extent that some element of volition remains in the grievor's conduct, and weighs that element in the assessment of just cause.  I think if we were to accede to the appellant's line of argument and address culpability indirectly as part of undue hardship we would add more doctrinal confusion to an area already overburdened with difficulty.

[153]       I agree with Newbury J.A. that the just and reasonable cause requirement, imported into all collective agreements by s. 84(1) and (3) of the Code, does not bring all appeals from grievance arbitrations involving just cause for dismissal within the s. 99(1) jurisdiction of the Board.  If an issue involving the nature and scope of a duty under the Human Rights Code is the basis or real substance of the award, that is an issue of general law not included in s. 99(1).  In my view, we are driven to this result by the express words of s. 99 and s. 100 and the line of authority including Kinsmen Retirement Centre Association v. Hospital Employees Union Local 180 (1985), 63 B.C.L.R. 292, [1985] B.C.J. No. 2299 (C.A.), which has not been questioned in this appeal.  While the line between the mutually exclusive jurisdictions conferred on the Labour Relations Board by s. 99 and the Court of Appeal by s. 100 may be “a brain teaser of the highest order”, in the words of Southin J.A., it is an unavoidable brain teaser imposed by the statute.  It follows that I am not persuaded that Fording Coal was wrongly decided.

[154]       In the result, however, I do not think that the award at issue on this appeal is based on an issue of general law outside s. 99(1).  One must be careful not to bring “every link in the chain of reasoning leading to the decision or award within the description ‘a matter or issue of the general law’.”: Kinsmen, para. 16.  The basis of an award does not mean “every constituent”: A.I.M. Steel Ltd. v. United Steelworkers of America, Local 3495 (1975), 111 L.A.C. (2d) 116 (B.C.C.A.).  Once the arbitrator found that the grievor’s conduct was exclusively non-culpable, I am satisfied that his articulation of the duty to accommodate was consistent with authority and did not raise any issue of general law.  The arbitrator then considered whether the employer fulfilled its duty to accommodate, an inquiry that Huddart J.A. in my respectful view correctly characterized as a factual issue in Fording Coal

[155]       As discussed above, I think that the gravamen of the appellant’s complaint is that the arbitrator failed to recognize a culpable dimension of the grievor's conduct and relate it to just cause.  That issue is foreclosed by the appellant's concession that the arbitrator's finding of non-culpability is not open to review.  If that issue were not foreclosed, in my view culpability would have been an issue of just cause not engaging the duty to accommodate under the Human Rights Code.  The balance between the culpable and non-culpable elements in any particular circumstance is primarily a question of fact for the arbitrator and, assuming no principled error in articulating the duty to accommodate under the Human Rights Code which is the basis or real substance of the award, the overall review of the award is not within s. 100.  Any appeal on that aspect, to the extent that it is reviewable at all, should go to the Board under s. 99(1), a jurisdiction recognized by the Board in Fraser Lake Sawmills.

[156]       It follows that I would quash this appeal on the ground that this Court is without jurisdiction.

 

“The Honourable Mr. Justice Mackenzie”

I agree:

“The Honourable Madam Justice Prowse”

I agree:

“The Honourable Mr. Justice Thackray”