Legal News

BC Court of Appeal: Appeals of Arbitration Awards Dealing With Culpability Issues Are Within Board’s Jurisdiction
November 21, 2003

In a November 13, 2003 judgment, the BC Court of Appeal has ruled that its jurisdiction to review arbitration awards is limited and does not extend to reviewing issues of employee culpability or non-culpability.

The decision is the latest chapter in a prolonged legal dispute concerning the reinstatement of an addicted nurse who was dismissed for stealing narcotics from the hospital which employed him. In an earlier award, the arbitrator reinstated the nurse on the basis of a “last chance” agreement. Shortly after he resumed his position, the nurse relapsed and was dismissed for forging hospital documents and stealing narcotics. The union grieved the dismissal and the matter was heard before the same arbitrator, who again reinstated the nurse with a new last chance agreement. The hospital applied to the Labour Relations Board to review the arbitrator’s award.

The Labour Relations Board refused to overturn the award on two of the grounds advanced by the employer. However, the Board concluded that it did not have jurisdiction to deal with the third ground, which was the relationship between an employee’s culpability and an employer’s duty to accommodate the employee’s disability up to the point of undue hardship. The Board decided that this was a question of general law, which fell within the jurisdiction of the Court of Appeal.

The majority of the Court of Appeal disagreed with the Labour Relations Board, and ruled that it did not have jurisdiction to review the award. Mr. Justice Mackenzie, writing for the majority of the Court, concluded that the relationship between culpability and undue hardship did not arise because the employer had not appealed the first arbitration award in which the arbitrator concluded the nurse’s conduct was non-culpable because it was based on the disease of drug addiction. The employer had, therefore, conceded that the conduct was non-culpable.

The Court of Appeal concluded that the issue of culpability in general is part of the just cause analysis, which falls within the review jurisdiction of the Labour Relations Board and not the Court of Appeal. That is, when the issue addressed by an arbitrator is whether an employer has just and reasonable cause for dismissal, the power to adjudicate an appeal of the award belongs to the Labour Relations Board.

Health Employers Association of British Columbia (on behalf of Castlegar & District Health Council) v. British Columbia Nurses’ Union, 2003 BCCA 608, November 13, 2003.

(click here for full text of decision)