Court File No.

: 39317

IN THE SUPREME COURT OF CANADA

(ON APPEAL FROM THE COURT OF APPEAL FOR BRITISH COLUMBIA)

BETWEEN:

BC GOVERNMENT AND SERVICE EMPLOYEES’ UNION (BCGEU)

Applicant
(Respondent)
- and –

BRYCE J. CASAVANT

Respondent
(Appellant)

- and –

LABOUR RELATIONS BOARD OF BRITISH COLUMBIA

Intervener
(Respondent)

RESPONDENT’S RESPONSE TO APPLICATION FOR LEAVE TO

APPEAL
(Pursuant to Rule 27 of the Rules of the Supreme Court of Canada)

Arden Beddoes
Beddoes Litigation
Suite 1700, 808 Nelson Street
Vancouver, BC V6Z 2H2
Tel: (604) 248-4744
Fax: (604) 248-4744
Email: arden@beddoeslitigation.com

Counsel for the Respondent

Jitesh M. Mistry, Thomas J. Yachnin & Colleen Bauman
Emily J. Luther
BC Government and Service Employees’ Goldblatt Partners
Union 30 Metcalfe Street, Suite 500
4911 Canada Way Ottawa, ON K1P 5L4
Burnaby, BC V5G 3W3 Tel: (613) 482-2463
Tel: (604) 291-9611 Fax: (613) 235-3041
Fax: (604) 291-7514 Email: cbauman@goldblattpartners.com
Email: Jitesh.Mistry@bcgeu.ca

Counsel for the Applicant Ottawa Agent for the Applicant

 i

TABLE OF CONTENTS

PAGE

PART I – OVERVIEW AND STATEMENT OF FACTS 1

PART II – STATEMENT OF ISSUES 3

PART III – STATEMENT OF ARGUMENT 3

ISSUE #1: THE COURT OF APPEAL CORRECTLY APPLIED 4

ESTABLISHED CASE LAW GOVERNING DISCIPLINARY
PROCEEDINGS AGAINST POLICE OFFICERS

ISSUE #2: THE COURT CANNOT DEVIATE FROM THE POLICE ACT 6
AND THE REGULATION ON THE BASIS THAT THE LABOUR
RELATIONS CODE PROVIDES A MORE “ROBUST” PROCEDURE
FOR POLICE DISCIPLINARY MATTERS

PART IV - SUBMISSIONS CONCERNING COSTS 7

PART V - ORDERS SOUGHT 8

PART VI – TABLE OF AUTHORITIES 9

PART VII – STATUTORY PROVISIONS 10

 1

PART I – OVERVIEW AND STATEMENT OF FACTS

1. In Casavant v British Columbia (Labour Relations Board), 1 the British Columbia Court of
Appeal (the “Court of Appeal”) found that Mr. Casavant’s (“Casavant”) dismissal as a Special
Provincial Constable stemmed from a disciplinary matter in the performance of his constabulary
duties. His dismissal was therefore governed by the Police Act 2 and the Special Provincial
Constable Complaints Procedure Regulation (the “Regulation”) 3 thereunder.

2. Critically, it was not disputed at the Court of Appeal “that conservation officers acting in
their capacity as Special Provincial Constables are governed by a distinct complaint and discipline
process under the Police Act and the Special Provincial Constable Complaint Procedure
Regulation”. 4 However, the BC Government and Service Employees’ Union (the “Union”) now
maintains that there exists a “long history of the parties dealing with dismissal and discipline
matters involving employees with Special Provincial Constable status under the Collective
Agreement”, 5 as opposed to the Police Act and the Regulation.

3. Accordingly, the Union now disputes the foundational principle which it chose not to
dispute at the Court of Appeal, and it makes sweeping new arguments despite having made only
perfunctory – and different – arguments at the Court of Appeal. Enclosed with this Memorandum
of Argument as Schedule “A” is the Union’s factum filed at the Court of Appeal. Enclosed as
Schedule “B” is the factum of the British Columbia Public Service Agency (the “BCPSA”), which
the Union explicitly supported. In providing these facta, Casavant relies on ss. 27(2)(b) and 25(4)
of the Rules of the Supreme Court of Canada.

4. The primary argument advanced by the BCPSA at the Court of Appeal, and supported by
the Union, was that Casavant’s dismissal was not disciplinary, but related to his “general

1
Casavant v British Columbia Labour Relations Board, 2020 BCCA 159 (“Casavant BCCA”);
Amended Application for Leave to Appeal of the Applicant, p. 68.
2
Police Act, RSBC 1996, c. 367 (the “Police Act”).
3
Special Provincial Constable Complaints Procedure Regulation, BC Reg. 206/98 (the
“Regulation”).
4
Casavant BCCA, para. 52.
5
Memorandum of Argument of the Applicant (“Applicant’s Argument”), para. 65.
 2

suitability” for employment. The Court of Appeal rejected this argument, finding that the
“disciplinary nature of the dismissal in the present case is self-evident”. 6

5. The law regarding police disciplinary procedure is settled. As the Court of Appeal rightly
noted, it stands for the general proposition that the B.C. Labour Relations Board lacks jurisdiction
in “police disciplinary matters governed by a distinct process”. 7 In this case, the Regulation
provides for a distinct process respecting the investigation and discipline of Special Provincial
Constables such as Conservation Officers.

6. The Union asserts that the settled law referenced by the Court of Appeal “involved police
officers (not Special Provincial Constables)”. 8 Aside from this being a new argument which the
Union did not make at the Court of Appeal, it also finds no support in the Police Act. “Police
officer” is not a defined term in the Police Act, except for in s. 21 which deals with the personal
liability of officers. In that section, “police officer” includes “a person holding an appointment as
constable”, which includes special provincial constables.

7. The Labour Relations Code 9 was not enacted to address police disciplinary matters, as
Justice Anderson noted in Carpenter. 10 Rather, section 74 of the Police Act provides the Lieutenant
Governor in Council with the power to make regulations “for the government of police forces”,11
including the “suspension, promotion, dismissal and punishment of members of police forces”. 12
The Regulation addresses these matters, and therefore governs the dismissal of Casavant for
disciplinary reasons.

6
Casavant BCCA, paras. 52-57.
7
Casavant BCCA, para 51.
8
Applicant’s Argument, para. 50.
9
Labour Relations Code, RSBC 1996, c. 244 (the “Labour Relations Code”).
10
Carpenter v Vancouver Police Board and Stewart (1985), 63 B.C.L.R. 310 (C.A.) [Carpenter],
para 46.
11
Police Act, s. 74(2)(c).
12
Police Act, s. 74(2)(u).
 3

8. Accordingly, this case does not raise an issue of public importance or an issue of “such a
nature or significance as to warrant decision” 13 by this Honourable Court. The Court of Appeal
applied settled law, including this Honourable Court’s previous decisions on jurisdictional issues
relevant to police officers in disciplinary proceedings. 14 This case does not raise any novel point
of law, nor is there any conflict within the decades of case law the Court of Appeal applied.

PART II – STATEMENT OF ISSUES

9. This case raises the following issues:

a. Does the case law cited by the Court of Appeal regarding disciplinary proceedings
against police officers apply to Mr. Casavant?

b. Can the Court substitute a different procedure from that which has been prescribed by
the Legislature on the basis that it is more “robust” or convenient?

PART III – STATEMENT OF ARGUMENT

10. The Union argues that as a result of the Court of Appeal’s decision “the more than 30 year
practice of the Union challenging Employer dismissal and discipline of Special Provincial
Constables using the comprehensive regime and procedural safeguards to challenge Employer
dismissal and discipline, including multiple grievance steps and neutral third-party grievance
arbitration, found in the collective agreement have been erased”. 15

11. The Union did not make this submission at the Court of Appeal. Rather, it stated that “[i]n
light of the scope of the issues on appeal and their limited applicability to the Union, the Union’s
submissions will be very brief”. 16 In fact, the Union submitted to the Court of Appeal that it “agrees

13
Supreme Court Act, RSC 1985, c. S-26, s. 40.
14
Regina Police Assn. Inc. v Regina (City) Board of Police Commissioners, [2000] 1 SCR 360
[Shotton].
15
Applicant’s Argument, para 53.
16
Factum of the Union at the Court of Appeal, Opening Statement, page 4; Schedule “A”.
 4

with and adopts the arguments set out in the factums of the [BC Public Service Agency] and the
[Labour Relations Board]”, and that its “role in this matter is no longer a live issue”. 17

12. The main thrust of the argument the Union adopted, and which the Court of Appeal soundly
rejected, was that the Police Act process does not apply in the circumstances of this case because
the complaint against Casavant related to his alleged general unsuitability, not to a matter of police
discipline. 18

ISSUE #1: THE COURT OF APPEAL CORRECTLY APPLIED ESTABLISHED CASE

LAW GOVERNING DISCIPLINARY PROCEEDINGS AGAINST POLICE OFFICERS

13. The Union argues that the Court of Appeal erred in finding that Casavant’s dismissal ought
to have been pursued under the Police Act and the Regulation. It argues that the case law relied on
by the Court of Appeal is distinguishable 19 and that disciplinary proceedings against Special
Provincial Constables have been dealt with pursuant to the Labour Relations Code for decades.
However, as the Court of Appeal correctly noted, the long-standing authorities stand for the
general proposition that the B.C. Labour Relations Board lacks jurisdiction in “police disciplinary
matters governed by a distinct process”. 20

14. In Carpenter, for example, the Police Board dismissed Mr. Carpenter from his position as
police officer based on “allegations of a poor employment record, involvement in possession of
stolen property, and continued association with known criminals” 21. Justice Anderson found as
follows: “[i]n my view, all internal disciplinary matters including dismissal for breach of discipline
fall strictly within the purview of the Police Act and regulations made pursuant thereto and the
Labour Code does not apply to such matters”. 22

17
Factum of the Union at the Court of Appeal, paras. 8, 10; Schedule “A”.
18
Casavant BCCA, paras. 52-57.
19
Factum of the Union at the Court of Appeal, para. 75; Schedule “A”.
20
Casavant BCCA, para. 51.
21
Cited in Casavant BCCA, para 42.
22
Carpenter, para. 44.
 5

15. The Labour Relations Code was not enacted to address police disciplinary matters. Section
74 of the Police Act provides the Lieutenant Governor in Council with the power to make
regulations “for the government of police forces”, 23 including the “suspension, promotion,
dismissal, punishment or discipline of a class of officers”. 24 In Carpenter, Justice Anderson
warned that “[a]ny other interpretation would cause delay, multiplicity of procedures, interference
with a specialized tribunal appointed for a specific legislative purpose, administrative chaos and
would also impair specific rights given to police constables by the Police Act and regulations”. 25

16. The Regulation was made pursuant to s. 74 of the Police Act, and it deals with the discipline
of Special Provincial Constables. In fact, the British Columbia Conservation Officer Service policy
entitled Complaints Against Conservation Officers Acting as Special Provincial Constables, which
is based on the Regulation, provides:

3.0 Procedure

All complaints made against conservation officers acting in the capacity of a Special
Provincial Constable or having identified themselves as such shall be handled in
accordance with BC Reg. 206/98, the Special Provincial Constable Complaint Regulation
attached to this procedure as Appendix 1. 26

17. To the extent the Union considers that the Regulation does not provide Special Provincial
Constables with adequate procedural protections when they are subject to disciplinary
proceedings, that is something that may be dealt with by further regulation.

23
Police Act, supra note 2, s. 74(2)(c).
24
Police Act, s. 74(2)(u).
25
Carpenter, para. 46.
26
Complaints Against Conservation Officers Acting as Special Provincial Constables policy,
referred to in Casavant BCCA, para. 30, first bullet.
 6

ISSUE #2: THE COURT CANNOT DEVIATE FROM THE POLICE ACT AND THE
REGULATION ON THE BASIS THAT THE LABOUR RELATIONS CODE PROVIDES A
MORE “ROBUST” PROCEDURE FOR POLICE DISCIPLINARY MATTERS

18. Where the legislature has clearly manifested an intent to address police disciplinary matters
through a distinct procedure, the court cannot deviate from that procedure based on convenience
or long-standing practice.

19. The Union argues that the process under the Labour Relations Code would provide Special
Provincial Constables with greater procedural protections than those afforded by the Regulation.
On this basis, it says the Labour Relations Code should govern the disciplinary action against
Casavant.

20. The Union says this has been the long-standing practice in British Columbia, and it points
to the decisions of two labour arbitrators – from 1988 and 1994 – where the arbitrator decided to
take jurisdiction of disciplinary proceedings involving Special Provincial Constables. 27 Neither of
these appear to have been subjected to court scrutiny. As canvassed by the Court of Appeal,
however, there is considerable case law from across the country affirming the Court of Appeal’s
precise holding. 28 That is, disciplinary proceedings involving police officers are not to proceed
under a Labour Relations Code where a distinct process exists elsewhere.

21. In Shotton, which also dealt with a disciplinary dismissal of a police officer, this
Honourable Court highlighted the importance of interpreting collective agreements in a manner
consistent with The [Saskatchewan] Police Act and its regulations. 29 In cases where a jurisdictional
dispute arises between two competing adjudicative fora, the Court held that the instructive question
is: “[w]hat is the essential character of the dispute, in its factual context, [that] arises either
expressly or inferentially from a statutory scheme”? 30

27
Applicant’s Argument, para 85.
28
Casavant BCCA, paras. 41-50.
29
Shotton, para. 30.
30
Shotton, para. 39.
 7

22. In 2004, the Saskatchewan Court of Appeal applied this Honourable Court’s reasoning in
Shotton in a case concerning the dismissal of two probationary members of the Saskatoon police
service. 31 The Saskatchewan Labour Relations Board had decided that it had jurisdiction to deal
with grievances resulting from the members’ dismissal arising out of disciplinary concerns. The
Saskatchewan Court of Appeal disagreed, finding that:

The decision of the arbitration board in this respect was wrong in law. The concept that a
dismissal for disciplinary reasons be subject to review by a labour arbitration board is
incompatible with the scheme of the Act as discussed at length in Shotton. 32

23. The Union argues that Special Provincial Constables would be denied a robust level of
procedural fairness were the Police Act and the Regulation to govern disciplinary proceedings. In
Shotton, Justice Jackson of the Saskatchewan Court of Appeal had expressed a similar concern,
stating that the dispute at issue should fall within the ambit of the collective agreement because
“Sgt. Shotton had no means of complaining under the Police Act”. 33 Justice Jackson also noted
that the Chief of Police failed to provide Shotton with written reasons for his dismissal.

24. This reasoning is remarkably similar to the Union’s in this case. However, commenting on
Justice Jackson’s concerns regarding procedural fairness at the Supreme Court of Canada, Justice
Bastarache expressed disagreement with Justice Jackson’s “interpretation of the Police Act in the
context of this dispute”. 34 In this case, the legislative intent is clear – the Police Act and the
Regulation should have governed Casavant’s dismissal.

PART IV - SUBMISSIONS CONCERNING COSTS

25. Casavant seeks his costs in responding to the Union’s application, particularly given that
the Union has raised new arguments in its application.

31
Saskatoon (Chief of Police) v Saskatoon Board of Police Commissioners, 2004 SKCA 3
[Saskatoon].
32
Saskatoon, para. 37.
33
Shotton, para. 33.
34
Shotton, para. 33.
 8

PART V - ORDERS SOUGHT

26. Casavant submits that this Honourable Court should dismiss the Union’s application for
leave to appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED.

__________________________
Arden Beddoes
Counsel for the Respondent
October 13, 2020
 9

PART VI – TABLE OF AUTHORITIES

CASE LAW PARAGRAPH

REFERENCE
Carpenter v Vancouver Police Board and Stewart (1985), 63 7, 14-15
B.C.L.R. 310 (C.A.)

Regina Police Assn. Inc. v Regina (City) Board of Police 8, 21-24

Commissioners, [2000] 1 SCR 360

Saskatoon (Chief of Police) v Saskatoon Board of Police 22

Commissioners, 2004 SKCA 3
 10

PART VII – STATUTORY PROVISIONS

LEGISLATION CITED AT

Labour Relations Code, RSBC 1996, c. 244 7, 13, 15, 19-20

Police Act, RSBC 1996, c. 367, ss. 74 (2)(c), 74 (2)(u) 1-2, 6-7, 12-16, 23-24

Special Provincial Constable Complaints Procedure Regulation, 1-2, 5, 7, 13, 16-17, 19,
BC Reg. 206/98, s. 4 & s. 8 23-24

Supreme Court Act, RSC 1985, c S-26, s. 40 8

Loi sur la Cour supreme, L.R.C. (1985), ch. S-26, art. 40
TAB A
SCHEDULE A
TAB B
SCHEDULE B
 INDEX
PAGE

CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION……………….……i

OPENING STATEMENT……………………………………………………………………….iii

PART 1 – STATEMENT OF FACTS..………………………………………………………..1

A. Factual context…………………………………………………………………………..1
B. The legislative framework…………………………………………………………...….4
C. The application for judicial review……..…………………...………………………….5
D. The decision of the chambers judge……………………………………………….....6

PART 2 – ISSUES ON APPEAL…………………………………………………………..….8

PART 3 – ARGUMENT………………………………………………………………………...9

A. Standard of review……….……………………………………………………………...9
B. The chambers judge did not err in applying the patent unreasonableness
standard of review ……...…………………………………………………………..…..9
C. The chambers judge did not err in declining to exercise her discretion to hear the
jurisdictional issue that was raised for the first time on judicial review ……....….11

i. The appellant did not raise the jurisdictional issue before the Board……………11

ii. The chambers judge did not err in declining to exercise her discretion to
consider the jurisdictional issue for the first time on judicial review.……………..18

PART 4 – NATURE OF ORDER SOUGHT………………………………………………...25

LIST OF AUTHORITIES……………………………………………………………………...26
 i

CHRONOLOGY OF THE RELEVANT DATES IN THE LITIGATION

July 2013 The Government of British Columbia (the “Employer”) makes Bryce
Casavant (the “appellant”) a conditional offer of employment as a
Conservation Officer within the B.C. Conservation Officer Service.

July 5, 2015 Sergeant Mike Newton, the appellant’s supervisor, orders the
appellant to euthanize a female bear and her two cubs. The
appellant euthanizes the sow but declines to euthanize the cubs
(the “bear cub incident”).

July 6, 2015 The Employer suspends the appellant, without pay, pending an
investigation into the bear cub incident.

July 8, 2015 The Employer changes the appellant’s suspension to one with pay.

July 12, 2015 The BC Government Service Employees’ Union (the “Union”), on
behalf of the appellant, files a grievance of the appellant’s
suspension.

August 25, 2015 The Employer informs the appellant that it has completed its
investigation into the bear cub incident and concluded that the
appellant is unsuitable for the job of a conservation officer. The
Employer transfers the appellant to a position within the Ministry of
Forests, Land, Natural Resource Operations and Rural
Development, at the same pay and in the same work location.

September 3, 2015 The Union files a grievance, on behalf of the appellant, of the
Employer’s decision to transfer the appellant to a different position.

January 18-19, The Union’s grievances come on for arbitration before Christopher
2016 Sullivan (the “Arbitrator”). At the arbitration, the Union raises a
preliminary objection to the scope of the evidence the Employer
can tender.

February 12, 2016 The Arbitrator dismisses the Union’s preliminary objection
regarding the scope of the Employer’s evidence (the “Scope
Award”).

February 19, 2016 The Union and the Employer settle the grievances by way of a
settlement agreement (the “Settlement Agreement”). The Union
withdraws its grievances as a term of the Settlement Agreement.

March 3, 2017 The appellant requests that the Arbitrator set aside the Scope
Award and the Settlement Agreement as they were obtained “on
an improper basis”.
 ii

April 18, 2017 The Arbitrator declines to set aside the Scope Award and the
Settlement Agreement (the “Standing Award”).

May 15, 2017 The appellant applies to the Labour Relations Board (the “Board”)
pursuant to s. 99 of the Labour Relations Code, RSBC 1996, c.
244 (the “Code”), seeking review of both the Scope Award and the
Standing Award.

July 21, 2017 The Board dismisses the appellant’s application for review (the
“Original Decision”).

July 26, 2017 The appellant applies to the Board, pursuant to s. 141 of the Code,
for leave to seek reconsideration and reconsideration of the
Original Decision.

September 14, 27 The appellant files additional submissions for consideration by the
and 29, 2017; Board, in support of his application under s. 141 of the Code.
October 13 and 23,
2017; November
24, 2017; and
January 4 and 16,
2018
November 6, 2017 The Board advises the appellant that he sought reconsideration of
the Original Decision and has not filed a complaint against the
Union, pursuant to s. 12 of the Code.

February 7, 2018 The Board dismisses the appellant’s application for reconsideration
(the “Reconsideration Decision”).

March 22, 2018 The appellant files a petition seeking judicial review of the
Reconsideration Decision.

May 15-16, 2019 The application for judicial review comes on for hearing before
Madam Justice MacNaughton in British Columbia Supreme Court.

August 23, 2019 Madam Justice MacNaughton renders her decision dismissing the
petition.

September 18, The appellant files a Notice of Appeal.

2019
 iii

OPENING STATEMENT

The present appeal engages foundational principles of administrative law recently

confirmed by this Court in Denton v. British Columbia (Workers’ Compensation Appeal
Tribunal). The appellant in this case asked the chambers judge to set aside the decision
of the Labour Relations Board (the “Board”) on the basis that the Board lacked jurisdiction
over the appellant’s labour dispute. The appellant argued that the investigation into his
conduct as a special provincial constable ought to have been conducted under the Police
Act and the Special Provincial Constable Complaints Procedure Regulation. The
appellant argued that the Public Service Act did not apply to him and that the Board lacked
jurisdiction from the outset.

The chambers judge declined to embark on a consideration of the jurisdictional issue on

the basis that the Board did not have the opportunity to engage with the issue at first
instance. This was the correct conclusion. The chambers judge committed no palpable
and overriding error in finding that the appellant had not raised the issue before the Board
and further, did not err in exercising her discretion to decline to hear the jurisdictional
issue for the first time on judicial review. The chambers judge followed recent
jurisprudence from this Court and in doing so, committed no error requiring appellate
intervention. The appeal ought to be dismissed.
-1-

PART 1 – STATEMENT OF FACTS

1. The Government of British Columbia, as represented by the B.C. Public Service

Agency, adopts and relies on the statement of facts in the factum of the Board and adds
the following.

A. Factual context

2. The appellant is a former Conservation Officer with the Government of British

Columbia (the “Employer”). In July 2015, the Employer suspended the appellant from his
Conservation Officer position pending investigation. Following the investigation, the
Employer laterally transferred the appellant from the Ministry of Environment to a position
with the Ministry of Forests, Land, Natural Resource Operations and Rural Development.

3. On behalf of the appellant, the B.C. Government and Service Employees’ Union
(the “Union”) grieved, inter alia, the Employer’s decisions to suspend and transfer the
appellant. The Union’s grievances were scheduled for arbitration before Arbitrator
Christopher Sullivan (the “Arbitrator”).

4. At arbitration, the Union raised a preliminary objection regarding the admissibility

of evidence the Employer sought to introduce in the course of arbitration regarding the
appellant’s “consistent pattern of being unwilling or unable to comply with instructions”.1
On February 12, 2016, the Arbitrator concluded the Employer’s evidence was admissible
and dismissed the Union’s preliminary objection (the “Scope Award”).

5. On February 19, 2016, the Union and the Employer settled the grievances (the
“Settlement Agreement”). As a term of the Settlement Agreement, the Union withdrew the
grievances. The appellant signed the Settlement Agreement.

1 Appeal Book (“AB”) at pp. 20-21.

-2-

6. On March 3, 2017, the appellant requested that the Arbitrator set aside the Scope
Award and the Settlement Agreement on the basis that they were “obtained on an
improper basis”.2

7. On April 18, 2017, the Arbitrator concluded there was insufficient “adversity and
conflict” between the appellant and the Union to justify granting the appellant separate
standing (the “Standing Award”). The Arbitrator also found he did not have jurisdiction
over the appellant’s claim as the Settlement Agreement provided that the Arbitrator only
remained seized of issues concerning the implementation of the Settlement Agreement.

8. On May 15, 2017, the appellant applied to the Board for a review of the Scope
Award and the Standing Award, pursuant to s. 99 of the Labour Relations Code, RSBC
1996, c. 244 (the “Code”). On July 21, 2017, the Board dismissed the appellant’s s. 99
application (the “Original Decision”).3

9. On July 26, 2017, the appellant applied to the Board for leave and reconsideration
of the Original Decision, pursuant to s. 141 of the Code. After filing his application for
reconsideration, the appellant submitted several other documents and submissions in
support of his application.

10. The Board, in a letter dated November 6, 2017, responded to one of the appellant’s
submissions. The Board noted that the appellant, in a submission dated October 23,
2017, alleged that the Union had breached its duty of fair representation. In response, the
Board advised that the only matter before it was the appellant’s application for
reconsideration of the Original Decision. The Board advised the appellant that if he
wanted the Board to consider a complaint against the Union he was required to comply
with the Board’s complaint process which governs complaints made pursuant to s. 12 of
the Code. The appellant never filed a complaint against the Union with the Board,
pursuant to s. 12 of the Code.

2 AB at pp. 44-47.
3 AB at pp. 153-161.
-3-

11. On February 7, 2018, the Board denied the appellant’s application for leave and
reconsideration of the Original Decision (the “Reconsideration Decision”). 4 In the
Reconsideration Decision, the Board concluded as follows:

a. The new evidence the appellant provided after filing his application for leave
and reconsideration did not meet the Board’s test for admission of new
evidence under s. 141(2)(a) of the Code and was therefore, not
considered.5

b. Subject only to the duty of fair representation under s. 12 of the Code, the
Union had exclusive carriage of the appellant’s grievance. Given that the
Union settled the grievance and opposed the appellant’s application to re-
open, the Board concluded the Original Decision correctly upheld the
Standing Award.6

c. Absent a complaint against the Union, pursuant to s. 12 of the Code, which

the appellant did not make, the Original Decision correctly relied on the
Board’s policy to not look behind settlement agreements.7

d. The Board in the Original Decision correctly concluded there was no denial
of a fair hearing in the context of the Scope Award as the Arbitrator heard
from both the Employer and the Union. Further, no procedural unfairness
arose as a result of the documents which the appellant alleged were
“improperly withheld”.8

e. The appellant’s constitutionally protected right to mobility would not be

hindered or infringed if the Original Decision were upheld. Further, the

4 AB at pp. 383-389.
5 AB at p. 388.
6 AB at p. 386.
7 AB at p. 387-388.
8 AB at p. 387.
-4-

Board found the appellant failed to raise the constitutional argument before
the original panel of the Board and therefore improperly raised it for the first
time on reconsideration.9

B. The legislative framework

12. The Board is an independent administrative tribunal, continued under s. 115 of the
Code. The Board has exclusive jurisdiction to decide matters arising under the Code and
its decisions are protected by a strong privative clause.10 Section 138 of the Code
provides:

[138] A decision or order of the board under this Code or a collective agreement
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.

13. Under s. 99 of the Code, the Board has jurisdiction over appeals of arbitration
decisions and awards:

[99] 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.

14. A party affected by a decision of the Board, including a decision made under s. 99
of the Code, may seek leave of the Board to apply for reconsideration.11 The Board may
grant leave if the party satisfies the Board that: (a) evidence not available at the time of

9 AB at p. 387.
10 Code, ss. 136, 137 and 139.
11 Code, s. 141.
-5-

the original decision has become available, or (b) the decision of the Board is inconsistent
with the principles expressed or implied in the Code or any other act dealing with labour
relations.12 If leave is granted, the Board, on reconsideration, “may vary or cancel the
decision that is the subject of reconsideration or may remit the matter to the original
panel”.13

15. On an application for judicial review, a court may review a reconsideration decision
of the Board; if so, the patent unreasonableness standard of review applies.14

C. The application for judicial review

16. On March 22, 2018, the appellant filed a petition for judicial review, seeking an
order from the B.C. Supreme Court setting aside the Reconsideration Decision and
remitting the matter to the Board for reconsideration.

17. On his application, the appellant advanced five grounds of review:

a. The Board “failed to act fairly and correctly regarding [the appellant’s]
Chartered rights to seek and pursue a livelihood”;

b. The Board “exceeded its jurisdiction” by rendering a decision relating to the

appellant’s standing;

c. The Board made a factual error in concluding the appellant did not raise the
issue of duress before the Board when it rendered the Original Decision;

d. The Board failed to “act fairly with regards to the application of common law
pertaining to matters of the rules of evidence”, the Charter, contractual
terms and conditions under the settlement agreement, and the issue of the
Arbitrator’s jurisdiction; and

12 Code, s. 141 (2).

13 Code, s. 141(7).
14 Code, s. 115.1; Administrative Tribunals Act, SBC 2004, c. 45, ss. 58(1) and (2).
-6-

e. The Board failed to consider the legislative framework applicable to public

servants in British Columbia, namely conservation officers and special
provincial constables.15

18. The Board, the Public Service Agency and the Union each filed responses to
petition.

19. In advance of the judicial review hearing, the parties exchanged written
submissions, which were provided to the chambers judge.16 The appellant, in his written
submissions, argued that the Reconsideration Decision ought to be set aside as the
“Board failed to properly assess its own jurisdiction”.17 More specifically, the appellant
argued that as a special provincial constable he was entitled to have any investigation
into the bear cub incident be conducted under the Police Act, RSBC 1996, c. 367 and the
Special Provincial Constable Complaints Procedure Regulation, BC Reg. 206/98 (the
“Regulation”). The appellant submitted the Public Service Act, RSBC 1996, c. 385 did not
apply to him.18 The appellant argued the chambers judge ought to set aside the
Reconsideration Decision on the basis the Board lacked jurisdiction from the outset.

D. The decision of the chambers judge

20. On August 23, 2019, the chambers judge issued her reasons for judgment,
dismissing the appellant’s petition for judicial review.

21. The chambers judge first addressed the appellant’s argument that the
Reconsideration Decision ought to be set aside on the basis that the “Board failed to
properly assess its own jurisdiction”.19 In so doing, the chambers judge considered

15 Appeal Record (“AR”) at pp. 9-10; Petition to the Court, filed March 22, 2018
(“Petition”) at para. 2(a)-(e).
16 Respondent’s Appeal Book (“RAB”) at pp. 1 to 70.
17 RAB at p. 7.
18 RAB at p. 6.
19 AR at p. 54; Reasons for Judgement of the Chambers Judge (“Reasons”) at para. 49.
-7-

whether the appellant had raised the jurisdictional issue before the Board or whether the
appellant was raising the issue for the first time on judicial review.

22. The chambers judge acknowledged that the appellant made reference to the
Police Act and the Regulation before the Board; however, she concluded the appellant
never raised the argument that the Board lacked jurisdiction before the Board. 20 To the
contrary, the chambers judge found the appellant “expressly asked the Board to exercise
its jurisdiction to reconsider the Original Decision” – a position which the chambers judge
found to be “arguably inconsistent” with the jurisdictional argument he raised on judicial
review.21

23. The chambers judge then considered whether she ought to exercise her discretion
to engage with the jurisdictional question at first instance. The chambers judge declined
to do so. Her decision was informed by the supervisory role of the court, the exclusive
jurisdiction of the Board under the Code, and a recognition that the Court did not have
the benefit of the Board’s experience and expertise regarding the jurisdictional issue
because the appellant had not raised the issue before the Board.22

24. The chambers judge then considered whether the Board’s decision was patently
unreasonable for the reasons expressed by the appellant and whether the Board denied
the appellant a fair hearing process. The chambers judge was not satisfied that the Board
erred in a manner that rose to the level of patent unreasonableness and concluded the
decision-making process was not unfair.

25. In the result, the chambers judge dismissed the petition.

20 AR at pp. 55 and 57; Reasons at paras. 51-52 and 62-64.

21 AR at p. 57; Reasons at para. 63.
22 AR at pp. 55-57; Reasons at paras. 53-61.
-8-

PART 2 – ISSUES ON APPEAL

26. The appellant raises two grounds of appeal said to flow from the chambers judge’s
decision. The appellant, however, mischaracterizes the second ground of appeal.

27. Properly framed, the two issues on appeal are as follows:

(a) whether the chambers judge erred in relying on the common law, rather
than s. 58(3) of the Administrative Tribunals Act, when applying the patent
unreasonableness standard of review; and

(b) whether the chambers judge erred in declining to consider the

jurisdictional issue for the first time on judicial review.

28. There is no merit to the appellant’s challenge to the chambers judge’s decision.
Section 58(3) of the Administrative Tribunals Act does not apply to the Board; as such,
the chambers judge did not err in considering the common law definition of the patent
unreasonableness standard of review. Further, the chambers judge did not err in
concluding the appellant did not raise the jurisdictional issue before the Board, nor did
she err in declining to consider the jurisdictional issue for the first time on judicial review.
-9-

PART 3 – ARGUMENT

A. Standard of review

29. The appellant suggests that the standard of review to be applied to the decision of
the chambers judge is one of correctness because “the primary issue in this case is one
of statutory interpretation”.23 This is incorrect.

30. Properly framed, the appellant’s grounds of appeal attract different standards of
review. The standard of review in this Court on an appeal of a judicial review decision is
correctness, except where the chambers judge was required to make findings of fact or
undertake an original exercise of discretion.24

31. The determination that the appellant did not raise the jurisdictional issue before the
Board is a finding of fact. Deference is shown to such findings by the application of the
palpable and overriding error standard of review.25

32. As a result of this finding of fact, the chambers judge declined to exercise her
discretion to consider the jurisdictional issue raised for the first time on judicial review.
This discretionary decision is owed deference and ought not to be interfered with unless
it is wrong in principle.26

B. The chambers judge did not err in applying the patent unreasonableness
standard of review

33. The chambers judge correctly applied the common law definition of the patent
unreasonableness standard of review to the Reconsideration Decision. Contrary to the
appellant’s submission, the chambers judge was not required to apply the statutory

23 Appellant’s factum at paras. 58-61.

24 Chen v. Surrey (City), 2015 BCCA 57 at para. 16.
25 Housen v. Nikolaisen, 2002 SCC 33 at para. 10.
26 Lafontaine v. University of British Columbia, 2018 BCCA 307 at para. 45.
- 10 -

definition of “patent unreasonableness” as set out in s. 58(3) of the Administrative

Tribunals Act because s. 58(3) does not apply to the Board.

34. Section 115.1 of the Code states that, inter alia, s. 58(1) and (2) of the
Administrative Tribunals Act apply to the Board. Section 58(1) and (2) of the
Administrative Tribunals Act provide as follows:

Standard of review with privative clause

58 (1) If the Act under which the application arises contains or incorporates a
privative clause, relative to the courts the tribunal must be considered to be an
expert tribunal in relation to all matters over which it has exclusive jurisdiction.

(2) In a judicial review proceeding relating to expert tribunals under subsection

(1)

(a) a finding of fact or law or an exercise of discretion by the tribunal in

respect of a matter over which it has exclusive jurisdiction under a
privative clause must not be interfered with unless it is patently
unreasonable,

(b) questions about the application of common law rules of natural justice
and procedural fairness must be decided having regard to whether, in all
of the circumstances, the tribunal acted fairly, and

(c) for all matters other than those identified in paragraphs (a) and (b), the
standard of review to be applied to the tribunal's decision is correctness.

35. Section 115.1 of the Code does not apply s. 58(3) of the Administrative Tribunals
Act to the Board. The chambers judge did not err in relying on the common law definition
of patently unreasonable to inform her analysis on the application for judicial review. This
Court has applied the common law definition of patent unreasonableness to decisions of
the Board.27 The appellant’s first ground of appeal ought to be summarily dismissed.

27 British Columbia Teachers’ Federation v. British Columbia Public School Employers’

Association (No. 2), 2016 BCCA 273 at paras. 52-54.
- 11 -

C. The chambers judge did not err in declining to exercise her discretion to hear
the jurisdictional issue that was raised for the first time on judicial review

36. The appellant frames his second ground of appeal as whether the chambers judge
erred in her interpretation of the Police Act, the Regulation, and the Environmental
Management Act, SBC 2003, c. 53. He argues the chambers judge’s interpretation “does
not create a harmonious interpretation of the statute as a whole or of other related
statutes”.28 However, the appellant mischaracterizes the chambers judge’s decision.

37. The chambers judge did not interpret the Police Act, the Regulation, or the
Environmental Management Act. Rather, the chambers judge considered the appellant’s
jurisdictional argument and the evidentiary record before the Board and concluded that
despite vague references to various regulatory frameworks, the appellant never raised
the jurisdictional argument before the Board. The chambers judge declined to exercise
her discretion to permit the appellant to raise this argument for the first time on judicial
review.

38. The appellant has not identified any palpable or overriding error in the chambers
judge’s conclusion that the jurisdictional issue was raised for the first time on judicial
review nor has he identified how the chambers judge erred in principle by declining to
consider the jurisdictional issue for the first time on judicial review.

i. The appellant did not raise the jurisdictional issue before the Board

39. Before the chambers judge, the appellant argued that he had, in fact, raised the
issue of the Board’s jurisdiction before the Board. The appellant maintains this position
on appeal; he argues that he raised this argument in his written submissions to the
Board.29

40. As found by the chambers judge, the record does not disclose that the appellant
raised the jurisdictional issue before the Board. There are, however, passages in the

28 Appellant’s factum at paras. 71-73.

29 Appellant’s factum at para. 45.
- 12 -

record before the Board where the appellant made vague references to the Police Act,
the Regulation, the Environmental Management Act, and the “proper investigation
process” that ought to have been followed:

Page Excerpts from record

No(s).30

180-181 Submission to Board dated September 14, 2017:

“…And it may be that this new evidence will show that the employer never
followed their legislated responsibilities under the Police Act, Special
Provincial Constable Complaint Procedure Regulation. Within the Special
Provincial Constable Complaint Procedure Regulation the employer is only
allowed to take certain actions in relation to a complaint against an SPC (I
was a fully and duly appointed Special Provincial Constable, and acting in
that capacity, when the bear cub situation happened – my supervisor filed
a complaint against me for dereliction of duty which prompted my
suspension without pay and eventual dismissal). The employer may
dismiss an SPC after considering the result of the investigation but must
provide the SPC a copy of the complaint and the results of the
investigation. If the initial workplace investigation report is deemed invalid
as a result of committee findings, and if the regulation was breached by
never providing a copy of the complaint and investigation findings – how
then can the arbitrator have actually considered all the information before
deciding on evidence admissibility?”

232-234 Submission to the Board, dated October 23, 2017:

“Please also find attached a copy of the COS complaints procedures and
examples of complaint investigation processes under the government
policies established pursuant to the Environmental Management Act S
106.

The documents attached constitute new evidence. The investigation report

attached is an example of how I was treated, with the Union’s knowledge,
at the very beginning.

The recent COS complaint decision reports are examples of what the
proper investigation process should have been.

I now allege, based on this new evidence, that the Union has breached its
duty of fair representation to myself.”

30 All page number references in this table are to the AB.

- 13 -

236-309 Documents provided to the Board on October 23, 2017, including:

• letter titled Conclusion of Proceedings (Pursuant to the

Conservation Officer Service Complaints Process), dated March
13, 2017, in an unrelated matter;
• document titled “Policy and Procedure – Conservation Officer
Service”, dated March 13, 2015;
• document titled “Complaints against conservation officers acting as
special provincial constables”, effective date 2002/05/17;
• Notice of Discipline Authority’s Decision, pursuant to the
Conservation Officer Service Complaints Policy, dated January 13,
2017, in an unrelated matter;
• Notice of Discipline Authority’s Decision, pursuant to the
Conservation Officer Service Complaints Policy, dated October 3,
2017, in an unrelated matter;
• Ministry of Forests, Lands, and Natural resource Operations,
Procedural Manual – Preventing and Responding to Conflicts with
Large Carnivores; and
• Ministry of Environment – Conservation Officer Service,
Investigation Report in an unrelated matter, dated 2017-01-05.

317-324 Correspondence from the appellant’s counsel to Don Wright, Deputy

Minister to Premier, Secretary to Cabinet and Head of Public Service, dated
January 4, 2018 and October 24, 2017:

“Ms. Halls confirmed that the established BC Conservation Officer Service

complaints process – which was established pursuant to section 106 of the
Environmental Management Act – applies to all complaints regarding
Conservation Officers, including the complaint that was made internally
regarding Mr. Casavant following the July 5, 2015 incident. As we noted
during the meeting, this procedure was clearly not followed with respect to
Mr. Casavant, and no explanation has ever been provided for why that
procedure was so flagrantly disregarded in this instance”.31

375-378 Letter from Don Wright, Deputy Minister to Premier, Secretary to Cabinet
and Head of Public Service to the appellant, dated January 15, 2018:

“With respect, based on all the information that has been provided to me, I
do not believe it would be appropriate for me to question the legitimacy of
the policies that applied to your conduct, and the actions that were taken
by the employer in response to your conduct, over two years after the
incident in question.

31 AB at pp. 317-318.
- 14 -

An important consideration for me in making my decision is that the

settlement agreement you voluntarily entered into was intended to be
binding on all the parties. Settlements of that nature tend to require
compromise from all of the parties involved which means that all of the
parties generally end up feeling that they did not get what they originally felt
they were entitled to. While I appreciate that you feel that you were
mistreated, many of the examples that have been cited, including that you
were not provided copies of the investigation and the ‘workplace
intervention’ reports at the time you made your decision and that your
investigation did not follow the regular complaint procedure, it is my
understanding that you were fully aware of these issues at the time you
agreed to settle.”32

379-381 Letter from the appellant’s counsel to Don Wright, Deputy Minister to
Premier, Secretary to Cabinet and Head of Public Service, dated January
16, 2018:

“Further, it was not until after the settlement agreement was executed that
Mr. Casavant discovered, through the Myhal Report and other means, that
the investigation process applied to him completely diverged from
established CO Service policy for investigating complaints against COs.
Importantly, Mr. Casavant has never received or reviewed a copy of the
original complaint that was made against him.”33

[Emphasis in original.]

41. While it is apparent that, at times, the appellant raised concerns about the “proper
investigation process”, the above passages do not disclose an argument that the Board
lacked jurisdiction over the appellant’s labour dispute. In considering this issue, the
chambers judge reviewed the record and found as follows:

[50] Mr. Casavant submits that, pursuant to the Police Act, the Public Service
Act, RSBC 1996, c. 385 does not apply to him. As a result, he submits that the
Reconsideration Decision ought to be set aside because the Board (and presumably,
the Arbitrator) lacked jurisdiction from the outset.

[51] Mr. Casavant raised this argument for the first time on this judicial review. It
was clearly of some importance to him as he spent considerable time dealing with it

32 AB at pp. 376-377.
33 AB at p. 380.
- 15 -

in his written and oral submissions, and his other arguments were framed as
“alternatives”.

[52] Without commenting on the merits of Mr. Casavant’s arguments with

respect to the applicability of the Police Act, neither he nor the Union raised this
argument when the complaint was filed against Mr. Casavant, when the Employer
imposed the original suspension, or when the transfer was effected. Nor was it raised
in the Union’s grievances filed in respect of the discipline. Finally, it was not raised
before the Arbitrator or the Board.34

42. There is no palpable and overriding error in this finding. A review of the passages
of the record excerpted above support the chambers judge’s conclusion that at no time
did the appellant raise the jurisdictional issues before the Board. The chambers judge’s
finding is also supported by a comparison of the appellant’s arguments before the Board
and the appellant’s arguments before the chambers judge on judicial review.

43. Before the Board, the appellant made vague references to the Employer’s alleged
failure to follow their legislated responsibilities under the Police Act and the Regulation.
The appellant argued that the Police Act and Regulation required the Employer to provide
him with a copy of the complaint made against him and the results of any investigations
relating to the complaint. The appellant never argued that the Board lacked jurisdiction as
a result of the application of the Police Act or the Regulation. In contrast, in his written
submissions on judicial review, the appellant stated as follows:

… the Public Service Agency had no jurisdictional authority to conduct a labour

investigation outside of the parameters provided by the Police Act regulation (an
example of a properly conducted investigation is provided in Affidavit #1 of Patricia
O’Brian [sic]).

The Board, at reconsideration, was required to assess if breaches of natural justice

had occurred. In order to provide that analysis the Board needed to assess
external legislation pertaining to Special Provincial Constables and the evidence
that was provided to the Original Panel. As it did not, the Board failed to properly
assess its own jurisdiction, if a breach of natural justice had happened, and if the
Original Decision carried forward serious procedural and jurisdictional errors.

34 AR at p. 55, Reasons at paras. 50-52.

- 16 -

The matter of jurisdiction over disciplining the Crown’s constables has been
covered in detail at common law. It has been held that the Police Act of a given
province is the only legislative scheme for constabulary discipline. It has been
confirmed at length that legislative intent is for disciplinary matters to be dealt with
under the Police Act and not the collective agreement…

The petitioner argues that is it clear that the employer’s actions were in regards to
his constabulary decision making with respect to the two bear cubs and therefore
not a dispute arising out of the collective agreement but rather a disciplinary action
about his decision making as a constable. Although a copy of the complaint has
yet to be seen, at no time has the board, the arbitrator, or the union, addressed the
petitioner’s allegations that the labour investigation process and investigative
product was contrary to the Police Act regulation and therefore unlawful as raised
in the materials before the Board at reconsideration. The Board has failed to
consider the issues raised by the petitioner regarding the legitimacy and lawfulness
of the labour processes and investigations that took place. As a result, the Board
has failed to consider the evidence before it and the legislative schemes respecting
the discipline of Special Provincial Constables. Due to this failure the Board has
not correctly conducted an assessment of its jurisdiction over this matter nor
properly considered the legislative framework of the Police Act and the due
process constables are owed. In this way, the Board has shown deference to
collective agreements rather than the fundamental principles of due process.

[Emphasis added.]35

44. When comparing the arguments the appellant advanced before the Board and
those he advanced before the chambers judge, it is clear the appellant raised the
jurisdictional issue for the first time on judicial review.

45. The chambers judge’s conclusion on this point is further supported by the fact that
the appellant originally sought relief from the Board through the reconsideration process
but later argued, on his application for judicial review, that the Board lacked jurisdiction
from the outset. The chambers judge expressly acknowledged the inconsistency in the
appellant’s position:

[63] … Mr. Casavant never argued that the Board lacked overall jurisdiction as a
result of the Police Act. Instead, in his written submission on the Reconsideration

35 RAB at pp. 6-9; see also: AR at p. 8, Petition to the Court, filed March 22, 2018 at
para. 41.
- 17 -

Decision, Mr. Casavant expressly asked the Board to exercise its jurisdiction to
reconsider the Original Decision, a position arguably inconsistent with the
argument he raises before me.36

46. The internal inconsistency in the appellant’s position is further evidence that he
only raised the jurisdictional issue for the first time on judicial review.

47. As no jurisdictional argument was raised before the Board, it is not surprising that
there is nothing in the Scope Award, the Standing Award, the Original Decision or the
Reconsideration Decision addressing an allegation that the Board lacked jurisdiction over
the appellant’s labour dispute. In fact, the Board considered the appellant’s October 23,
2017 submission about the Union and the alleged deviation from the proper investigation
policy but interpreted the appellant’s submissions as a potential complaint under s. 12 of
the Code. Accordingly, in a letter dated November 6, 2017, the Board responded to the
appellant’s submission, as it understood it:

… your October 23, 2017 letter states, among other things: “I now allege… that
the Union has breached its duty of fair representation to myself.”

What is currently before the Board is your application of reconsideration of the

Board’s decision BCLRB No. B130/2017, which dismissed your applications for
review of two arbitration awards under section 99 of the Code.

If you wish to file a complaint against your Union alleging it breached its duty of fair
representation under the Code, there are certain requirements. It must be
submitted on the Board’s Form 12 and provide the necessary information to satisfy
the Board’s filing requirements. …37

48. The appellant did not proceed with a s. 12 complaint under the Code against the
Union, nor did he respond to the Board’s letter clarifying his submission in such a way to
raise his jurisdictional concerns before the Board.

36 AR at p. 57, Reasons at para. 63.

37 AB at p. 311; See also AB at p. 101 where, in a letter dated March 10, 2017, the Union
advised the appellant and his counsel of his ability to file a complaint pursuant to s. 12 of
the Code.
- 18 -

49. While the appellant expressed concerns about the Employer allegedly withholding
certain documents before the Board, the evidentiary record makes clear that he did not
raise the jurisdictional issue before the Board. The chambers judge did not commit a
palpable and overriding error in concluding as such.

ii. The chambers judge did not err in declining to exercise her discretion to
consider the jurisdictional issue for the first time on judicial review

50. After concluding the appellant failed to raise the jurisdictional issue before the
Board, the chambers judge considered whether it would be appropriate to consider the
jurisdictional issue for the first time on judicial review. The chambers judge ultimately
declined to exercise her discretion to do so; she did not err in principle in doing so.

51. In deciding whether to exercise her discretion, the chambers judge considered the
narrow role of the court on an application for judicial review. She observed that the role
of the Court on judicial review is supervisory in nature; it is not a hearing de novo.38 The
chambers judge’s conclusions regarding the role of the court are consistent with this
Court’s decision in Jalloh v. Insurance Corporation of British Columbia:

[21] … I accept that judicial review is just that: judicial review. At its core, judicial
review involves a supervisory review by the court, generally on the record before
the tribunal. Judicial review is not an appeal. There are good policy reasons, well
reflected in the case law, that courts generally ought not to entertain arguments for
the first time on judicial review without the benefit of their consideration first by the
tribunal.39

52. The chambers judge also considered the underlying policy rationales for the
general rule that courts ought not to decide issues raised for the first time on judicial
review. The chambers judge correctly observed that the nature of judicial review generally
requires that there is a decision of a statutory tribunal for the court to review. If a decision-

38 AR at p. 55, Reasons at paras. 53-54.

39 Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501 at para. 21; Actton
Transport Ltd. v. British Columbia (Employment Standards), 2010 BCCA 272 at para. 23
[Actton Transport].
- 19 -

maker is not asked to consider an issue, and thus did not make a decision with respect
to it, it cannot be said that the decision-maker erred in law or otherwise lost jurisdiction.
As the chambers judge explained, “[a] statutory decision maker’s decision cannot be
patently unreasonable for failing to consider an argument that was not raised before
them.”40

53. The chambers judge also considered the fundamental difference between the role
of an administrative body and that of a reviewing court on judicial review. The chambers
judge observed that “a reviewing court does not have primary jurisdiction over the subject
matter of the dispute. The reviewing court’s role is to determine whether an administrative
decision maker acted within its jurisdiction.”41 This is consistent with this Court’s decision
in Denton v. British Columbia (Workers’ Compensation Appeal Tribunal).42

54. In Denton, this Court confirmed that constitutional questions must first be raised
before those administrative bodies with jurisdiction to consider them. In Denton, the Court
adopted the comments made by the Federal Court of Appeal in Forest Ethics Advocacy
Association v. Canada (National Energy Board), 2014 FCA 245 (“Forest Ethics”), setting
out the reasons why, as a general rule, it is inappropriate to raise Charter issues for the
first time on judicial review.43 In particular, this Court in Denton adopted the following
passage from Forest Ethics:

[43] The approach of placing the constitutional issues before the Board at first
instance respects the fundamental difference between an administrative decision-
maker and a reviewing court: here, the Board and this Court. Parliament has
assigned the responsibility of determining the merits of factual and legal issues –
including the merits of constitutional issues – to the Board, not this Court.
Evidentiary records are built before the Board, not this Court. As a general rule,
this Court is restricted to reviewing the Board’s decisions through the lens of the
standard of review using the evidentiary record developed before the Board and

40 AR at p. 56, Reasons at para. 58.

41 AR at p. 56, Reasons at para. 59.
42 Denton v. British Columbia (Workers’ Compensation Appeal Tribunal), 2017 BCCA 403
[Denton].
43 Denton at para. 51.
- 20 -

passed to it. See generally Association of Universities and Colleges of Canada v.

Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R.
297.

55. The underlying policy rationale expressed in this passage is not limited to
circumstances where an applicant seeks to raise a constitutional issue for the first time
on judicial review; it applies equally where an individual seeks to raise a non-constitutional
issue for the first time on judicial review.

56. Here, the Board is an independent administrative body established under the
Code. In providing the Board “exclusive jurisdiction” under s. 136 of the Code, the
Legislature clearly expressed its intention that it is the Board and not the courts that
should hear and determine an application or complaint under the Code. This is also
reflected in s. 138 of the Code, which provides that the Board’s decisions are “final and
conclusive” and “not open to question or review in a court on any grounds”. The question
of whether something is properly within the Board’s jurisdiction ought to have been raised
before the Board. The chambers judge’s decision to decline to consider this issue for the
first time is consistent with the guidance from this Court in Denton and respects the
exclusive jurisdiction of the Board – a highly specialized expert tribunal.44

57. The chambers judge also observed that “permitting a petitioner to raise new issues
for the first time on a judicial review denies the court the benefit of the statutory decision
maker’s experience and expertise.”45 This is consistent with this Court’s decision in
Denton where the Court adopted the following passage from Forest Ethics:

[44] Were it otherwise, if administrative decision-makers could be bypassed on

issues such as this, they would never be able to weigh in. On a judicial review,
administrative decision-makers do not have full participatory rights as parties or
interveners. They cannot make submissions to the reviewing court with a view to
bolstering or supplementing their reasons. They face real restrictions on the
submissions they can make. See generally Canada (Attorney General) v. Quadrini,
2010 FCA 246, [2012] 2 F.C.R. 3 at paragraphs 16-17. As a result, often their only

44 British Columbia Nurses’ Union v. Health Sciences Association of British Columbia,

2017 BCSC 343 at paras. 48-50.
45 AR at p. 57, Reasons at para. 61.
- 21 -

opportunity to supply relevant information bearing upon the issue – such as factual
appreciations, insights from specialization and policy understandings – is in their
reasons.

58. In referencing the benefit of having the Board’s insights and understandings of the
jurisdictional issue, the chambers judge relied on the Supreme Court of Canada’s
decision in Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 2016
SCC 47, where the Court described the expertise of the statutory decision-makers as
follows:

[33]... expertise is something that inheres in a tribunal itself as an institution: “…at

an institutional level, adjudicators… can be presumed to hold relative expertise in
the interpretation of the legislation that gives them their mandate, as well as related
legislation that they might often encounter in the course of their functions”. As this
Court has often remarked, courts “may not be as well qualified as a given agency
to provide interpretations of that agency’s constitutive statute that make sense
given the broad policy context within which that agency must work”.

[Citations omitted].
59. While the Supreme Court of Canada in Canada (Minister of Citizenship and
Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”) recently limited the relevance of a
statutory decision-maker’s expertise in the selection of the standard of review, the
chambers judge did not err in emphasizing the benefit of having the Board’s experience
and expertise when assessing the appellant’s jurisdictional argument.

60. In Vavilov, the Court concluded “the presumption of reasonableness review is no

longer premised upon notions of relative expertise. Instead, it is now based on respect
for the legislature’s institutional design choice, according to which the authority to make
a decision is vested in an administrative decision maker rather than in a court.”46 Here,
the legislature’s institutional design choice is clear – the Legislature intended for the
Board to determine all matters arising under the Code. Thus, the chambers judge’s
reference to the expertise of the Board is not affected by the Court’s commentary in
Vavilov – whether framed as an issue of tribunal expertise or legislative choice the

46 Vavilov at para. 46.

- 22 -

chambers judge did not err in declining to exercise her discretion where the Legislature
intended for the matter to be adjudicated by the Board.

61. Further, although the Court in Vavilov concluded there is no presumption of tribunal
expertise, courts across Canada have consistently recognized labour relations boards as
highly specialized expert tribunals. As the Supreme Court of Canada explained in
International Longshoremen's and Warehousemen's Union, Ship and Dock Foremen,
Local 514 v. Prince Rupert Grain Ltd., [1996] 2 SCR 432:

[24] It has often been very properly recognized that labour relations boards
exemplify a highly specialized type of administrative tribunal. Their members are
experts in administrating comprehensive labour statutes which regulate the difficult
and often volatile field of labour relations. Through their constant work in this
sensitive area, labour boards develop the special experience, skill and
understanding needed to resolve the complex problems of labour relations. There
were very sound reasons for the establishment of labour boards and the protection
of their decisions by broad privative clauses. Parliament and provincial legislatures
have clearly indicated that decisions of these boards on matters within their
jurisdiction should be final and binding. The courts could all too easily usurp the
role of these boards by characterizing the empowering legislation according them
authority as jurisdiction limiting provisions which would require their decisions to
be correct in the opinion of the court. Quite simply, courts should exercise
deferential caution in their assessment of the jurisdiction of labour boards and be
slow to find an absence or excess of jurisdiction.

62. On the application for judicial review, the appellant argued that the labour dispute
arose as a result of a disciplinary complaint and therefore ought to have been dealt with
under the Police Act; he argued that it fell outside the scope of the collective agreement,
and as a result, the Board lacked jurisdiction to adjudicate the matter. If the appellant had
raised this argument before the Board, the chambers judge would have had the benefit
of the Board’s analysis as to the essential character of the underlying grievances –
namely, whether they fell within the scope of the collective agreement or within the
provisions of the Police Act and its associated regulation. By raising this argument for the
first time on judicial review, the chambers judge was denied the benefit of the Board’s
expertise.

63. The chambers judge’s reasons for declining to exercise her discretion to consider
the jurisdictional argument on judicial review are consistent with the guidance of this Court
- 23 -

and the underlying policy rationales espoused therein. Further, the chambers judge did
not err in declining to exercise her discretion given the nature of the application for judicial
review and the state of the evidentiary record before her.

64. The appellant takes the position that the chambers judge ought to have considered
his jurisdictional argument on the application for judicial review. However, the appellant
overlooks a fundamental flaw in his position – the Union filed the grievance, the Union
maintained ownership of the grievance, and the Union settled the grievance. The
appellant lacked standing in and authority over his grievances.

65. In the Standing Award, the Arbitrator concluded the appellant had “no right to be
granted standing to pursue a matter in relation to the Settlement Agreement or the [Scope
Award], which were direct manifestations of the grievance procedure.” 47 The Board, in
the Original Decision, found the Arbitrator’s reasoning in the Standing Award to be
“properly grounded in the Code and the Union’s exclusive bargaining agency”.48 The
Board then dismissed the appellant’s application for reconsideration, finding that the
Original Decision correctly upheld the Standing Award.49 In so doing, the Board observed
that the grievance had been settled and that the Union, which had ownership of the
grievance, opposed the appellant’s application to re-open it.

66. Therefore, in order to consider the appellant’s jurisdictional argument, which the
Union did not advance in its grievances, the chambers judge would have had to first find
that the Board erred in concluding the appellant lacked standing. However, the chambers
judge reviewed the Reconsideration Decision and found that it was not patently
unreasonable and that the decision-making process was fair. The chambers judge did not
err in declining to consider an argument that was not advanced by the Union and only
advanced by the appellant, whom the Board had found lacked standing in and authority
over his grievances.

47 AB at p. 27.
48 AB at p. 161.
49 AB at pp. 386-387.
- 24 -

67. The chambers judge’s decision not to exercise her discretion was eminently
reasonable given the state of the evidentiary record before her. The only question for the
Court on the application for judicial review was whether the Reconsideration Decision
was patently unreasonable. While the arbitration awards and the Original Decision could
inform the court’s analysis, the chambers judge had no jurisdiction to review the Scope
Award, the Standing Award or the Original Decision as that jurisdiction rests exclusively
with the Board.50

68. In the appellant’s case, the Union settled its grievances; a hearing on the merits of
the grievances never occurred. As such, the record before the chambers judge was
limited in nature. The record did not include a copy of the Union’s grievances or a copy
of the applicable collective agreement under which the Union filed its grievances. While
the appellant would have preferred that the chambers judge consider whether the
underlying grievances fell within the scope of the collective agreement or within the
provisions of the Police Act, the paucity of the evidentiary record precluded her from doing
so.

69. In the event this Court concludes that the chambers judge committed a palpable
and overriding error by finding no jurisdictional issue had been raised before the Board,
or that she erred in principle in exercising her discretion, this conclusion would only
necessitate a remittal of the decision to the Board for consideration of the jurisdictional
issue. For the reasons set out above, and as expressed by this Court in Denton and
Actton Transport, this Court ought not to engage with this issue at first instance.

50 Howie v. British Columbia (Labour Relations Board), 2017 BCSC 1331 at para. 54,
citing Yellow Cab Company Ltd. v. Passenger Transportation Board, 2014 BCCA 329 at
para. 40; B.C. Ferry and Marine Worker’s Union v. B.C. Ferry Services Inc., 2012 BCSC
663 at para. 7 (aff’d 2013 BCCA 497), citing Northstar Lumber v. United Steelworkers of
America, Local No. 1-424, 2009 BCCA 173.
- 25 -

PART 4 – NATURE OF ORDER SOUGHT

70. The B.C. Public Service Agency seeks an order dismissing the appeal.

ALL OF WHICH IS RESPECTFULLY SUBMITTED

Dated this 3rd day of January 2020 at Victoria, British Columbia.

_______________________________________
Kaitlyn Chewka
Counsel for the B.C. Public Service Agency
- 26 -

LIST OF AUTHORITIES

Case Law Paragraph(s)

Actton Transport Ltd. v. British Columbia (Employment Standards), 2010 51, 69
BCCA 272
B.C. Ferry and Marine Worker’s Union v. B.C. Ferry Services Inc., 2012 67
BCSC 663, aff’d 2013 BCCA 497
British Columbia Nurses’ Union v. Health Sciences Association of British 56
Columbia, 2017 BCSC 343
British Columbia Teachers’ Federation v. British Columbia Public School 35
Employers’ Association (No. 2), 2016 BCCA 273
Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 59-61
65
Chen v. Surrey (City), 2015 BCCA 57 30
Denton v. British Columbia (Workers’ Compensation Appeal Tribunal), 53-54, 56-57,
2017 BCCA 403 69
Edmonton (City) v. Edmonton East (Capilano) Shopping Centres Ltd., 58
2016 SCC 47
Forest Ethics Advocacy Association v. Canada (National Energy Board), 54,57
2014 FCA 245
Housen v. Nikolaisen, 2002 SCC 33 31
Howie v. British Columbia (Labour Relations Board), 2017 BCSC 1331 67
International Longshoremen’s and Warehousemen’s Union, Ship and 61
Dock Foremen, Local 514 v. Prince Rupert Grain Ltd., [1996] 2 SCR 432
Jalloh v. Insurance Council of British Columbia, 2016 BCCA 501 51
Lafontaine v. University of British Columbia, 2018 BCCA 307 32
Northstar Lumber v. United Steelworkers of America, Local No. 1-424, 67
2009 BCCA 173
Yellow Cab Company Ltd. v. Passenger Transportation Board, 2014 67
BCCA 329

Legislation
Administrative Tribunals Act, SBC 2004, c. 45 15, 27, 28,
33-35
Environmental Management Act, SBC 2003, c. 53 36, 37, 40
Labour Relations Code, RSBC 1996, c. 244 8-15, 23, 34-
- 27 -

35, 47-48, 56,

60
Police Act, RSBC 1996, c. 385 19, 22, 36-37,
40-41, 43, 62,
68
Public Service Act, RSBC 1996, c. 385 19
Special Provincial Constable Complaints Procedure Regulation, BC Reg. 19, 22, 36-37,
206/98 40, 43, 62