Procedural Fairness in Reconsideration Decisions

The British Columbia Supreme Court held that the principle that an appellate body should only raise a new issue when failing to do so would risk an injustice applies in a flexible and contextually appropriate manner to appeals and reconsiderations from administrative decision makers

Administrative law – Decisions reviewed – Employment Standards Tribunal – Remuneration – Judicial review – Procedural requirements and fairness – Standard of review – Patent unreasonableness

Champ’s Fresh Farms Inc. v. British Columbia (Employment Standards Tribunal), [2023] B.C.J. No. 1216, 2023 BCSC 1075, British Columbia Supreme Court, June 22, 2023, L. Blake J.

The petitioner, Champ’s Fresh Farms Inc. (“Champs”) is a mushroom producer that pays its mushroom pickers under a pay system pursuant to which employees receive (i) the minimum piece rate legislated under the Employment Standards Regulation, B.C. Reg. 396/95 [Regulation], which is currently set at $0.29 per pound; and (ii) the graded piece rates under the pay system, which pays different piece rates for different quality grades of mushroom.

Champ’s sought an order quashing the reconsideration decision (the “Reconsideration Decision”) of a panel of the Employment Standards Tribunal (the “Tribunal”) determining that Champ’s pay system failed to comply with the Employment Standards Act, R.S.B.C., 1996, c. 113 [ESA] or, in the alternative, an order quashing the reconsideration decision and remitting the matter to be heard by a freshly constituted panel.

A confidential complaint was filed against Champ’s pursuant to the ESA, and the Director of Employment Standards (the “Director”) concluded that Champ’s had contravened s. 18(1) of the Regulation by paying its employees below the minimum piece rate (the “Determination”). An appeal of the Determination by Champ’s was granted, with the appeal panel noting that Champ’s topped up its employees’ wages to the statutory minimum (the “Appeal Decision”). The Director applied to the Tribunal for a reconsideration. In the Reconsideration Decision, the panel confirmed the Determination, and in doing so, based its analysis on s. 18(2) of the Regulation.

On judicial review, Champ’s took the position that the Reconsideration Decision was patently unreasonable as the panel failed to apply the common law rules of natural justice and procedural fairness by basing its decision on s. 18(2) of the Regulation when this was not the basis for the Determination or the Appeal Decision. Champ’s argued that the panel had fundamentally “moved the goal posts” and inappropriately introduced the new issue of compliance with s. 18(2) of the Regulation.  The British Columbia Supreme Court (the “Court”) agreed, citing R. v. Mian, 2014 SCC 54 (“Mian”) for the principle that an appellate body should only raise a new issue when failing to do so would risk an injustice. While the approach in Mian was directed at appeal courts, the same concepts should be approached in a flexible and contextually appropriate manner to appeals and reconsiderations from administrative decision makers. The ultimate focus must be on ensuring procedural fairness to all of the parties.

The Court set aside the Reconsideration Decision and ordered that the matter be heard by a freshly constituted panel of the Tribunal.

This case was digested by Ellie Einarson, and first published in the LexisNexis® Harper Grey Administrative Law Netletter and the Harper Grey Administrative Law Newsletter.  If you would like to discuss this case further, please contact Ellie Einarson at eeinarson@harpergrey.com.

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