Whelehan v. Laidlaw Environmental Services Ltd.

Winterburn v. Domtar Inc., 2002 BCSC 1418

Wells v. Patina Salons Ltd., 2003 BCSC 1731

Mr. Justice Chiasson states for the Court:

Summary

[100] In my view, the learned chambers judge erred in concluding that rights granted by employment standards legislation are incorporated into employment contracts as a matter of law regardless of the intentions of the parties. The cases relied on by the chambers judge do not support such a conclusion.

[101] The proper analysis begins with Orpen: did the legislators intend that conferred rights could be enforced by civil action? The answer to the question requires consideration of the legislation as a whole. If it affords effective enforcement of the rights, the general proposition, that statutorily-conferred rights are to be enforced not by court action, but by a statutory mechanism, applies. If the legislation does not afford effective enforcement, the exception to the general rule applies and the rights can be enforced in a civil action. The civil action will be based on recognized causes of action. In the case of rights conferred on employees through employment standards legislation, the rights will be implied terms of the employment contract and enforced through an action for breach of contract.

[102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for a right of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcement is through the statutory regime and no civil action is available.

[103] In this case, the ESA provides a complete and effective administrative structure for granting and enforcing rights to employees. There is no intention that such rights could be enforced in a civil action.

This authority is not inconsistent with the caselaw that holds an employer cannot contract for less than the minimum statutory notice periods.

The ruling also has a very useful summary of jurisdictional issues and decision making powers.

The decision is one of the first that deals with the application of Dunsmuir. In doing so the Court re-emphasizes that standards of review are to be developed in the complete context of the tribunal being reviewed.

There isn’t really any single quote to be taken from the decision. You have to read the whole thing.

The lower Court dismissed the plaintiff’s case on a summary trial hearing on the basis that that it was obvious that the plaintiff’s case would fail in the face of section 533 protection. The Court of Appeal held that it was not obvious that the case would fail and that the application of section 533 was a matter for the trial Court to determine in a trial of the matter. The case has a useful summary of the law regarding traffic sign placement issues, policy decision protection and the relation between statutory protection and common law duties imposed on the municipality.

The judgment gives a definitive outline of a bias recusal analysis and is well worth the succinct read on this often misunderstood topic.

89 Accordingly, if the wording of s. 58(2)(a) of the ATA is to apply then the standard of review of the WCAT decision of October 28, 2003 is patent unreasonableness where findings of fact or law or the exercise of discretion are involved.

90 I recognize that the Supreme Court of Canada in Dunsmuir v. New Brunswick, [2008] SCC 9, March 7, 2008, collapsed the common law two standards of review of patent unreasonableness and reasonableness simpliciter, on judicial reviews, into one standard of “reasonableness”, leaving only the two standards of reasonableness and correctness, but the court did not suggest that the patent unreasonableness standard never existed. In fact it was its very existence that required the court to deal with it in its decision.

91 While the court said that the new standard of reasonableness for judicial review would apply even where an administrative tribunal has a strong privative clause, the court did not specifically deal with the situation where the privative clause is backed by a provincial statute such as the ATA that specifically assigns the standard of patent unreasonableness to tribunals which are making findings of fact or law or exercising discretion in matters where they have exclusive jurisdiction under privative clauses.

92 The court did say that the courts can rely on jurisprudence that has already determined in a satisfactory manner the degree of deference to be accorded with regard to a particular category or question.

93 There were cases in this court prior to Dunsmuir that applied the standard of patent unreasonableness in the ATA to decisions of WCAT (Basura v. British Columbia (Workers’ Compensation Board), [2005] B.C.J. No. 590, Daniel v. British Columbia (Workers’ Compensation Appeal Tribunal), 2007 BCSC 1005, and Wyant v. British Columbia (Workers’ Compensation Board), [2006] B.C.J. No. 986), and there is at least one decision in this court that has continued to apply the standard in the ATA after Dunsmuir (see Carter v. Travelex Canada Ltd., 2008 BCSC 405).

94 However, in Howe v. 3770010 Canada Inc., 2008 BCSC 330, the learned trial judge determined that she could not use the definition of “patently unreasonable” found in s. 58(3) of the ATA because it was restricted to discretionary decisions of the tribunal.

95 Instead, she determined that it was necessary to look to the common law for the definition of “patently unreasonable” and she referred to Dunsmuir where “reasonableness” became the standard. She then applied that standard of reasonableness to the tribunal’s decision in her case.

96 This decision did not consider the fact that s. 58(2)(a) mandates a standard of patent unreasonableness for findings of fact or law or an exercise of discretion even if there is no definition of it for those purposes found in the section.

97 I accept that the learned trial judge was correct in looking to the common law for the definition of patently unreasonableness, but I conclude that its definition must be as it existed prior to the new standard of reasonableness established by Dunsmuir. The words of s. 58(2)(a) requiring a standard of “patently unreasonable” cannot be ignored.

98 Having the luxury of two competing decisions of this court to choose to follow, I choose to follow the Carter decision and apply the standard of patent unreasonableness to the October 28, 2003 decision of WCAT here, regardless of the decision in Dunsmuir, along with the ATA standard of fairness for natural justice and procedural fairness.

99 It may be the case that the ATA can be considered as part of the existing jurisprudence that the Supreme Court of Canada in Dunsmuir said can be used by the courts to determine the degree of deference to be accorded to a tribunal, but it is unnecessary to decide that here.

100 The WCAT review decision of February 8, 2007 will be considered on the correctness standard of whether it was correct in concluding that the WCAT decision of October 28, 2003 was not patently unreasonable and was procedurally fair.