An application of the British Columbia Securities Commission to quash the decision of the Employment Standards Tribunal confirming the Determination of the Director’s delegate was denied. The Court concluded that despite Director’s delegate’s, at times, inappropriate submissions before the Tribunal, the petitioner was afforded the required level of natural justice. The finding that s. 51 of the Employment Standards Act, which conferred a right to a parent to take 37 consecutive weeks of absence from work, required that the leave of absence had to begin, but not end within 12 months after the child’s birth, was upheld.

25. November 2008 0

Administrative law – Decisions of administrative tribunals – Employment Standards Tribunal – Powers of director – Jurisdiction – Employment law – Benefits – Parental leave – Judicial review – Standard of review – Reasonableness simpliciter – Patent unreasonableness – Procedural requirements and fairness – Compliance with legislation – Interpretation of legislation – Privative clauses

British Columbia Securities Commission v. Burke, [2008] B.C.J. No. 1754, 2008 BCSC 1244, British Columbia Supreme Court, September 16, 2008, A.F. Cullen J.

The petitioner, British Columbia Securities Commission (“BCSC”), brought an application for an order quashing a Determination of the Delegate of the Director of Employment Standards, and the decision of the Employment Standards Tribunal confirming the Determination. The petitioner also sought a declaration regarding the correct interpretation of section 51(1)(c) of the Employment Standards Act, R.S.B.C. 1996, c. 113 (“ESA”).

The determination of the Delegate followed a complaint made by the respondent, an employee of BCSC, as a result of BCSC’s refusal to allow him unpaid parental leave for 37 consecutive weeks pursuant to s. 51 of the ESA, following the birth of his child.

The leave sought by the respondent was to commence within 12 months of his child’s birth, but would have ended after the child’s first birthday. BCSC took the position that s. 51 of the ESA provided that he was entitled to 37 consecutive weeks of parental leave, provided it began and ended within the 12 months following his child’s birth.

The determination of the Director’s delegate was that s. 51 of the ESA did not require the 37 consecutive weeks to begin and end within 12 months after the child’s birth. The leave only had to begin within that time frame.

The petitioner’s appeal of the decision to the Tribunal was unsuccessful. The petitioner’s application for a reconsideration of the Tribunal’s original decision upholding the delegate’s findings was also unsuccessful.

Before the Court, the petitioner argued that the decisions of the Director and the Tribunal should be quashed because of a failure to afford the petitioner the requisite level of natural justice and because the decisions were unreasonable.

Natural Justice

In its submissions on the fairness issue, the petitioner contended that the delegate “exceeded the scope of her reasonable permissible participation” in the original appeal before the Tribunal, compounding her failure to observe the principles of natural justice in making her original determination through the “aggressive and adversarial nature” of her submissions and by making submissions on the issue of natural justice.

The essence of the petitioner’s submission was that the original panel’s failure to find that the delegate exceeded her permissible participation and its failure to disregard the submissions said to be excessive constituted a breach of the natural justice and procedural fairness. Similarly, the petitioner argued that the reconsideration panel’s failure to find an error in the original panel’s decision and to overturn it, also constituted a breach of procedural fairness.

The petitioner further contended that by denying a fair procedure, the Tribunal’s original panel and the reconsideration panel, acted outside their jurisdiction and their decisions should therefore be quashed.

Although the Court agreed that the Director’s delegate’s submissions to the original panel were, in part, inappropriate and tinged with undue advocacy on behalf of a position (as opposed to a party), the process that unfolded thereafter did not justify the Court’s interference in the Tribunal’s exercise of its jurisdiction to determine the nature and scope of a provision of the ESA. Thus, the Court concluded that, insofar as the petitioner relied on the deficiencies of the process before the Director’s delegate and the original Tribunal as a foundation for asserting breaches of procedural fairness or natural justice, they were cured by the reconsideration process.

As to the question of whether the Director’s participation before the reconsideration panel constituted a breach of the principles of natural justice, the Court concluded that the issue must be viewed in a broader context than that advanced by the petitioner.

In the Court’s view, the circumstances fell short of establishing a breach of the principles of natural justice that would justify setting aside the decision of the reconsideration panel for the following reasons.

Firstly, the ESA has a strong privative clause (in s. 110), which gives the Tribunal exclusive jurisdiction over matters in issue, including the availability of an appeal and reconsideration for a breach of natural justice in the Director’s determination. Thus, the Tribunal is entitled to some deference in its choice of procedures in disposing of assertions of breach of the principles of natural justice.

Secondly, while the petitioner may have had to contend with an inappropriate submission by the Director’s delegate before the original Tribunal and the reconsideration panel, it could not be said that the petitioner was deprived of an opportunity to address or respond to evidence or issues cogent to the impugned decisions. The petitioner had full opportunity to make its case and to respond to any countervailing concerns, issues or submissions.

Thirdly, the ultimate decision at issue rested entirely upon an interpretation of s. 51(1)(c) of the ESA, and did not call for a controversial finding of fact or the exercise of discretion. Although the petitioner was exposed to a fine, it was not the petitioner’s conduct that was at the heart of the dispute, it was its interpretation of the relevant section, and it was secondary to the main issue concerning the proper scope of s. 51(1)(c) of the ESA, which affects the rights of employees and obligations of employers across the province. As such, the issue at bar was not akin to that which required a “high standard of justice”.

Finally, the legislative scheme of the ESA expressly contemplates some involvement from the Director or the delegate in the appellate process, even to the extent of authorizing the director to apply for a reconsideration of a Tribunal’s order or decision. In doing so, the Court noted that the legislature had effectively conferred a protagonist status on the director, at least before the Tribunal at the reconsideration stage, to ensure that cases significant to the proper interpretation of the ESA are properly considered.

The totality of these circumstances, including the fact that the complainant was unrepresented at the hearing before the director, and that he did not participate before the original Tribunal or the reconsideration panel, led the Court to deny the petitioner’s application to quash the reconsideration decision on the basis of breach of the principles of natural justice.

Review of the Merits of the Decision

It was common ground between the parties that by virtue of s. 103 of the ESA, the judicial review of the Tribunal’s decisions confirming the Delegate’s findings is subject to s. 58 of the Administrative Tribunals Act, R.S.B.C. 2004, c. 45 (“ATA”). Accordingly, the parties agreed that, because s. 58(3) defined patent unreasonableness as it applies to the exercise of discretion, that standard of review was not affected by developments in relation to the common law standards of judicial review.

On the other hand, the petitioner argued that, since s. 58(2)(a) simply refers to the patently unreasonable standard of review in connection with findings of fact or law, without attempting to define it or in any way distinguish it from the common law standard, developments in the common law affected the scope of that section.

Thus, the issue before the Court was whether the standard of review relating to the substantive merits (findings of fact or law) of the Tribunal’s decisions, remained one of patent unreasonableness as provided for in s. 58(2)(a), or whether, in the wake of the decision of the Supreme Court of Canada in Dunsmuir v. New Brunswick, 2008 SCC 9, it has evolved into one of reasonableness.

The Court noted that the phrase “patently unreasonable” in s. 58(2)(a), as it applies to a finding of fact or law, is nowhere defined in the ATA, and could only be given meaning and effect by reference to the common law. Therefore, the Court agreed with the petitioner that the effect of the Dunsmuir decision, which collapses the common law “patent unreasonableness” standard of review into one standard of “reasonableness”, is to similarly change the meaning and effect of the phrase “patent unreasonableness” as it is defined in relation to findings of fact and law in s.58(2)(a), ATA, but not as it is used and defined in relation to the exercise of discretion in either s. 58 or s. 59 of the ATA.

Considering both the articulation of the panel’s reasons, and the outcome of its decision in light of the qualities of justification, transparency and intelligibility enunciated in Dunsmuir, the Court concluded that the Tribunal’s decision fell within the range of possible acceptable outcomes and was defensible in respect of the law, and, therefore, reasonable.

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