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BC Supreme Court: Employers Can Recover
July 20, 2000

The BC Supreme Court has struck down a reconsideration decision of the BC Labour Relations Board and confirmed that employers can recover overpayments to employees through grievance arbitration. The matter began when an arbitrator ruled denied an order for repayment by employees to PCL Constructors Pacific on the basis that there was not violation of the collective agreement. PCL appealed the award to the Labour Relations Board. The original panel of the Board found the arbitrator’s award was in error and referred it back to the arbitrator with directions to issue a remedy (BCLRB No. B209/98). The reconsideration panel of the Board overturned the original panel’s decision holding that under Section 89 an arbitrator is not entitled to award a remedy in the absence of a breach of a collective agreement (BCLRB No. B327/99).

The Court held that as Section 89 of the Code is a jurisdictional limiting provision, the Board’s interpretation of the provision should be subject to judicial review at the standard of correctness. The Court further found that properly interpreted Section 89 conferred upon an arbitrator the authority “to provide a final and conclusive settlement of a dispute, not simply a final and conclusive settlement of a contravention of a collective agreement.” It held that Section 89 should be interpreted broadly so as to permit the imposition of a monetary remedy in the absence of a breach of a collective agreement. The Court set aside the reconsideration panel’s decision and remitted the matter to the Board with respect to the remaining issues relevant to remedy.