Administrative law – Decisions of administrative tribunals – Employment Standards Tribunal – Employment law – Termination of employment – Working conditions – Hearings – Conduct of hearings – Disclosure – Judicial review – Compliance with legislation – Procedural requirements and fairness – Natural justice – Standard of review – Patent unreasonableness
Taiga Works Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards),  B.C.J. No. 1269, British Columbia Supreme Court, June 26, 2009, B.M. Preston J.
The Petitioner was a garment manufacturer that had been in a dispute with some of its former employees about whether there had been a substantial alteration in their conditions of employment resulting in a termination of the employment. The Applicant applied for an order in the nature of certiorari quashing a decision of the Employment Standards Tribunal.
The decision at issue (the “Reconsideration Decision”) was the third in a series of four decisions preceding the judicial review application. The first of the four decisions was a determination by a delegate of the Director of Employment Standards that the changes in the employees’ conditions of employment had amounted to a termination of employment. The Director’s delegate found that the Petitioner was required to pay the employees vacation pay and compensation for length of service pursuant to the Employment Standards Act, R.S.B.C. 1996, c. 113. That decision was appealed to the Tribunal pursuant to section 112 of the Act. The appeal was heard by a single Tribunal member who held that the Petitioner’s rights to have the Hearing conducted according to the requirements of natural justice had been breached. The Tribunal member found that the Delegate did not disclose all relevant information to the Petitioner to enable it to fully respond, and that the Delegate did not consider the Petitioner’s final submission on its response to the alleged breaches of the Act. However, the member found that, as she had reviewed and considered those documents provided on appeal, it was unnecessary to remit the matter back to the Delegate for reconsideration. She noted that the Tribunal had held that breaches of natural justice may be cured on appeal and, in this case, having reviewed the submissions, any procedural defects had been addressed.
The Petitioner sought and obtained a reconsideration before a single Tribunal member. In the Reconsideration Decision, the Tribunal member found that it was not entirely clear that the Petitioner had been given the opportunity to reply in respect of the documents first provided during the appeal process. He held that there was no disagreement that the Tribunal was capable of curing a breach of procedural fairness in the complaint process by ensuring the party adversely affected by the breach was provided with a fair Hearing. He rejected the Petitioner’s argument that the breach of procedural fairness in this case could only be cured by a full oral hearing into the merits of the complaints. He held that procedural fairness could be ensured in this case by referring the matter back to the Tribunal member and providing the Petitioner with an opportunity to make a complete submission in respect of the previously undisclosed documents.
A re-hearing proceeded before the Tribunal member who had made the original decision. She dealt with the matter on the basis of the comments made in the Reconsideration Decision and on further submissions by counsel and rendered a decision confirming her original decision.
On judicial review of the Reconsideration Decision, the Court noted that the Act contained a strong privative clause. In view of the privative clause governing judicial review of the Tribunal’s decisions, the Court had accorded the highest level of deference to the Tribunal with respect to matters within its jurisdiction both before and after the passage of the Administrative Tribunals Act in 2004. The standard to be applied to decisions made by the Tribunal in its exercise of discretion under the Act is patent unreasonableness. However, the matter before the Court fell within the ambit of s. 58(2)(b) of the Administrative Tribunals Act, which governs questions of natural justice and procedural fairness. For such questions, the standard to be applied is fairness: in all of the circumstances did the Tribunal act fairly?
The issue before the Court was as follows: when a breach of the rules of natural justice or procedural fairness has taken place, does the Tribunal have the power at common law to cure the Director’s breach of the rules of natural justice within the appeal process set out in the Employment Standards Act, or must the matter be referred back to the original decision maker? The Court cited authority from both the B.C. Court of Appeal and Supreme Court which decided that defects of natural justice or procedural fairness could be cured in the course of the Tribunal process. Both cases relied upon International Union of Operating Engineers, Local 882 v. Burnaby Hospital Society (1997), 46 B.C.L.R. (3d) 97 (C.A.), where the Court of Appeal had observed that there was no general rule about whether appeal proceedings can cure a failure of natural justice or a defect in the proceedings before the original tribunal.
The Court concluded that, in this case, the Tribunal’s enabling statute, the Employment Standards Act, made it clear that the Tribunal is to be accorded the highest level of deference. It has broad powers to choose its own procedures. On the facts of the case, the Applicant had taken the opportunity to make full submissions concerning the defects of natural justice and procedural fairness that it had encountered earlier in the proceedings. The Tribunal remitted the matter to the Tribunal member who had made the original decision with instructions to deal with the outstanding procedural fairness defect. The Court concluded that, in all the circumstances, the Reconsideration Panel acted fairly. The process and hearing afforded to the Applicant accorded with the rules of natural justice and procedural fairness.
In the result, the application was dismissed.
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