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Labour Board Decision Quashed Due to Bias
June 12, 2009

The BC Supreme Court recently quashed a decision of the Labour Relations Board on the basis that the decision gave rise to a reasonable apprehension of bias. The allegations of bias arose during a hearing into a complaint of unfair labour practices committed by an employer involved in constructing the Canada Line. The union alleged that the employer increased wages during the statutory freeze period pending finalization of a collective agreement contrary to section 45 of the Labour Relations Code. In addition, the union claimed that the employer intended to transfer employees to Brazil in order to discourage them from becoming members of the union and fabricated evidence to support the need for the transfer.

Once the complaint was filed, the employer decided not to transfer the employees and a collective agreement was finalized. As a result, the employer brought an application to have the union’s complaints dismissed as moot. At the hearing, the union attempted to advance evidence and argument concerning allegations of fraud. However, the Board characterized the union’s submissions as “unhelpful” and went on to state that the fraud issue was collateral to the main issue of whether the employer had breached section 45 of the Code. At the conclusion of the hearing, the Board dismissed the union’s complaints.

The union brought an application for reconsideration, arguing that the comments of the original panel suggested bias in that the outcome of the case had already been decided in the mind of the panel. The reconsideration application was dismissed and the union applied for judicial review.

The Court found that the Board’s comments did reveal a reasonable apprehension of bias as they suggested the merits of the complaints had been decided before all of the evidence and submissions of the parties had been tendered. The Court noted that it is vital for the Board’s processes to be viewed as impartial and procedurally fair. On that basis, the Court ordered a new hearing into the union’s complaints.

(Click here for copy of Decision)