Administrative Law Case Law Update 2013 2014 The

Administrative Law Case Law Update 2013 – 2014 The Year in Review 3 rd Floor, 195 Alexander Street Vancouver, BC V 6 A 1 B 8 T 604 -689 -4457 F 604 -689 -4467 1 -888 -689 -4457 www. unionlawyers. com

British Columbia (Ministry of Public Safety and Solicitor General) v. Mzite, [2014] B. C. J. No. 1122 (BCCA)

• Decision illustrates growing trend of deference to discretionary decisions of the BCHRT • HRT exercised discretion to accept late-filed complaint (2012 BCHRT 53). Complainant was an HIV positive prisoner in provincial correctional facilities. Complained that he was denied regular access to anti-retroviral medications.

• HRT held that it was in the public interest to accept the complaint. In doing so, considered a number of factors, including: o the long delay in filing (18 -22 months), o the reasons for that delay, many of which related to the unique obstacles faced by a prisoner in getting legal advice, o the vulnerabilities of the complainant, and o the public interest in the systemic issues raised by the complaint.

• Ministry applied for JR. BCSC overturned decision, holding decision to be patently unreasonable (2013 BCSC 1116): o the evidence did not support a reasonable explanation for the delay, and o HRT placed undue weight on systemic issues raised by the complaint, suggesting an improper purpose • Complainant appealed. On appeal, BCCA overturned the BCSC decision, and remitted complaint to HRT to hear on the merits.

• BCCA held: o On prematurity issue argued by complainant – Chambers judge exercised discretion to hear petition properly. o Judge identified the correct standard of review, but misapplied it. o Interestingly, BCCA, while citing s. 59 of the ATA, which mandates review on the standard of patent unreasonableness, referred to the applicable standard as reasonableness (simpliciter). Correct question on review stated to be: “is there a reasonable basis, in law or on the evidence, for the Tribunal’s conclusion that the late filing of the complaint should be permitted in the public interest? ”. …

• BCCHA held: o Held that BCSC failed to pay respectful attention to the reasons of the HRT. Tribunal must be given significant latitude in assessing whether it is in the public interest to accept a late-filed complaint, a matter within its knowledge and expertise. Tribunal must be taken to know the law. • NB: Ministry has applied for leave to appeal to the SCC ([2014] S. C. C. A. No. 358).

Silver Campsite Ltd. v. James, [2013] B. C. J. No. 1302 (BCCA)

BCHRT, after full hearing, upheld complaint filed on behalf of mentally disabled adult man, alleging discrimination in the area of tenancy on the basis of both mental disability and source of income (2011 BCHRT 370 ; and 2012 BCHRT 141). Tribunal ordered $10, 000 in compensation for the injury to the complainant’s dignity, feelings and self-respect.

Respondent trailer park sought JR of decision on a number of grounds. BCSC rejected most grounds but accepted two (2012 BCSC 1437). Most important of the two was its finding that the Tribunal's award of compensation was arbitrary because: o It was not based on any objective evidence of the effect of the discrimination on Mr. James's dignity, feelings and self-respect; and o That the decision to award compensation was an exercise of discretion for an improper purpose; namely, to punish the respondents rather than to compensate Mr. James. o Central to BCSC’s decision was the fact that the mentally disabled complainant did not give evidence and that the Tribunal relied on his mother’s evidence about the effect of the discrimination on Mr. James.

Complainant appealed to BCCA. Court overturned BCSC’s decision and restored decision of HRT in its entirety: o Damages for injury to dignity are discretionary, and subject to most deferential standard of review. Decision must be assessed in light of remedial purposes of the Code. o Tribunal entitled to take judicial notice of effect of discrimination on mentally disabled complainant. Inferences about the effect of the discrimination are a matter of common sense. …

Complainant appealed to BCCA. Court overturned BCSC’s decision and restored decision of HRT in its entirety: o Tribunal is entitled to accept evidence that would be inadmissible in court, including hearsay evidence. Tribunal was entitled to accept and rely upon mother’s evidence about the effect of the discrimination on her son. Not necessary for the complainant to testify to establish compensable injury. o Award was compensatory, not punitive.

Mc. Cormick v. Fasken Martineau Du. Moulin LLP, [2014] S. C. J. No. 39

• Case illustrates the limits of deference. Question of law, assessed on a correctness standard of review. • Very high profile complaint file by equity partner in Faskens alleging that mandatory retirement required under partnership agreement was discriminatory on the basis of age. • Faskens applied to have the complaint dismissed on a preliminary basis on the basis that it was outside the jurisdiction of the Tribunal because Mc. Cormick, as a partner, was not in an employment relationship with the firm. Therefore, s. 13 of the Code did not apply.

• HRT denied preliminary application (2010 BCHRT 347). Applying the Crane factors of utilization, control, financial burden, and remedial purpose, the HRT held that the parties were in an employment relationship for the purposes of the Code, and that accordingly, the complaint was within its jurisdiction. • On JR, BCSC affirmed HRT’s decision ([2011] B. C. J. No. 999), and on appeal the BCCA overturned it ([2012] B. C. J. No. 1508).

SCC upheld the BCCA’s decision quashing the HRT’s decision: o Crane factors may be useful in determining if employment relationship present, but cannot be applied formulaically. o “Deciding who is in an employment relationship for purposes of the Code means, in essence, examining how two synergetic aspects function in an employment relationship: control exercised by an employer over working conditions and remuneration, and corresponding dependency on the part of a worker. In other words, the test is who is responsible for determining working conditions and financial benefits and to what extent does a worker have an influential say in those determinations? ” …

SCC upheld the BCCA’s decision quashing the HRT’s decision: o In most cases, partners will not be employees of their firm, because control over workplace conditions and remuneration lies with the partners. o Does not mean that in every case partners will not be in an employment relationship, but usual elements of control would have to be greatly diminished to reach that conclusion. o Does not necessarily mean partners are without recourse for discrimination – s. 22 of the Partnership Act applies.

United Steel Paper and Forestry Rubber Manufacturing Energy Allied Industrial and Service Workers International v. British Columbia (Ministry of Mines), [2014] B. C. J. No. 1945 (BCSC)

One of a series of recent cases in which trade unions and others have sought to challenge the use of temporary foreign workers under the federal government’s Temporary Foreign Worker Program. Demonstrates the limits of judicial review as a means of trying to address policy issues related to the temporary foreign worker program. There was a previous case in Federal Court filed by another trade union challenging the decision to issue positive Labour Market Opinions, which enabled HD Mining to obtain Temporary Foreign Worker Permits, entitling it to bring in Chinese workers to work in the Murray Mine (Construction and Specialized Workers' Union, Local 1611 v. Canada (Minister of Citizenship and Immigration), [2013] F. C. J. No. 553). The union in that case had been granted public interest standing to challenge the issuance of the Labour Market Opinions, but was unsuccessful in its challenge to the merits of that decision.

Here, the Steelworkers filed a JR challenging decision(s) of the Chief Inspector of Mines with respect to the Murray Mine. The substance of the Steelworkers’ concern was that these foreign workers will not speak English and that may impair communication and safety in the mine.

Three questions decided in JR: o Should the Steelworkers be granted to public interest litigant standing to challenge the decisions of the CIM? o Is an email written by the CIM to HD Mining discussing English language requirements in the mine a decision properly subject to JR? o What are the merits of the JR with respect to the decision by the CIM’s delegate to issue an Amendment to HD Mining’s permit allowing it to carry out certain work at the mine?

In respect of the first question, the Court declined to grant Steelworkers’ public interest standing: o No serious justiciable issue. Court relied on petitioners’ own submission that “the nature of the issues under review are yet inchoate” to drive home the point that the petition failed to define a serious justiciable issue. o Accepted that Steelworkers have a serious and genuine interest in mine safety, but held that they had no real interest in the particular decision(s) under review. o Steelworkers’ real concern – the effect of language on mine safety – is not actually engaged by the decision(s) under review. They can address that concern through their work on a committee responsible for reviewing regulations to the Mines Act. So JR is not an effective and reasonable means to bring the challenge before the Court.

• In respect of the second question, the Court held that the CIM’s email is not a decision properly subject to JR: o Communication between two governmental authorities is not a decision. o Court is critical of petitioners’ failure to identify the email as a decision under review in its petition. o Real subject of attack is the decision of Citizenship and Immigration Canada to issue the temporary foreign worker permits to HD Mining. Seeking to JR email written by CIM to CIC and HD Mining was really a collateral attack on the CIC decision.

• Given the analysis on the first two questions, answer to third, alternative, question a foregone conclusion – the petition was doomed to fail in any event.

Ontario (General Manager, Ontario Health Insurance Plan) v. Clarke, [2014] O. J. No. 1569 (Ont. Div. Ct. )

Case illustrates some of the perils to which temporary foreign workers may be exposed while working in Canada, and the limits of administrative law in remedying them. Two workers were working in Canada under the Seasonal Agricultural Worker Program. Signed standard from employment agreement under SAWP whereby their employer was obligated to provide them medical and occupational health and safety coverage. Two days into their employment, the workers were seriously injured in a MVA while riding in a van operated by their employer.

As a result of their injuries, required medical care in Canada that extended past the end date of their work permits. Applied for extended visitor status, which federal government granted. Applied for extended OHIP coverage, which was denied. The workers appealed that decision to the Health Services Appeal and Review Board, which held they were residents of Ontario and as such entitled to OHIP coverage.

OHIP appealed that decision. The Ontario Divisional Court overturned the decision of the Review Board. The case turned on the interpretation of s. 1. 3(2) of Health Insurance Act Regulation, which reads, in part: The following persons are residents, even if they do not meet the other requirements in this Regulation, and they are not affected by any of the other rules in this Regulation regarding recognition as a resident, other than the requirements under sections 3 and 4: 4. People who are present in Ontario because they have a work permit issued under the program of the Government of Canada known as the "Seasonal Agricultural Worker Program".

The Court held that the Review Board’s interpretation of that Regulation was unreasonable in light of the plain and ordinary meaning of the words used. After the expiry of their work permits, the workers could no longer be said to “have a work permit”. The Board erred in considering the SAWP agreement as an external interpretive aid, both because the language in the Regulation was unambiguous, and because it wasn’t a proper interpretive aid in any event given that the Ontario government is not a party to it. Any resulting gap in coverage “cannot be filled by a contrived interpretation of an existing regulation”.

Bernard v. Canada (Attorney General), [2014] S. C. J. No. 13

• As described by the Court, the self-represented appellant in this case “is the protagonist in a legal odyssey which has found its way through three administrative tribunal proceedings, two rounds of judicial review in the Federal Court of Appeal and now an appeal to this Court. ” • Bernard is a member of the federal public service who objects to being represented by PIPS, the Union which has the exclusive bargaining rights for her bargaining unit. She is a “Rand Formula employee” – not a member of the Union, but obliged to pay union dues, and with the Union obliged to represent her. • Over many years and in many legal proceedings, Bernard has objected to her employer giving the Union her home contact information, information the Union says it needs in order to communicate with her and represent her.

• Office of the Privacy Commissioner issued an opinion that the Union was not entitled to this information under the Privacy Act. As a result, employer ceased providing it. After some legislative changes, Union filed complaint with the Public Service Labour Relations Board alleging that employer’s conduct was an unfair labour practice. The Board agreed and the Union and the Employer entered into a consent order, the terms of which were communicated to all affected employees, including Bernard.

• Bernard filed for JR of the consent order in Federal Court. She argued: o Board’s order forced employer to breach Privacy Act; o The Board should defer to the Privacy Commissioner; o She should have been given notice; and o The Board’s order breached her Charter freedom not to associate.

• Matter bounced back and forth between the Federal Court of Appeal and the Board, with Board, affirmed by the Court of Appeal, ultimately holding that there was no breach of the Privacy Act in disclosing home telephone numbers and addresses to bargaining agents because that disclosure was consistent with the purpose for which the information was obtained and was, as a result, a "consistent use" of the information under s. 8(2)(a) of the Privacy Act. • Bernard sought and obtained leave to appeal to the SCC.

• Applying a reasonableness standard of review, the SCC upheld the decisions below with respect to the disclosure of employees’ contact information being a consistent use and thus permissible under the Privacy Act. The labour relations context, and the principle of majoritarian exclusivity, were important considerations in reaching this conclusion. • No adjudicative bodies below had ever considered Bernard’s freedom from association argument. The SCC decided it at first impression, in order to bring finality to this journey. It determined those arguments were without merit, as the provision of contact information, like the payment of union dues by Rand employees, was a necessary incident of the union’s representational obligations.

• In an interesting partial dissent, Rothstein J. would have held that the Board made an error of law in failing to exercise its jurisdiction to decide the Charter arguments at first instance.

Lindsay M. Lyster 3 rd Floor, 195 Alexander Street Vancouver, BC V 6 A 1 B 8 T 604 -689 -4457 F 604 -689 -4467 1 -888 -689 -4457 lindsaylyster@unionlawyers. com www. unionlawyers. com