An Open Letter to the Members of the Canadian Union of Public Employees, Local 15
Dear Members,
The purpose of this letter is to inform you about an ongoing legal dispute between Local 15 and a former member who was employed by the City of Vancouver. The litigation in this matter has been protracted. It began with a labour arbitration hearing in March, 2000 and has since gone through four legal proceedings at the BC Labour Relations Board and two in the BC Superior Courts (the Supreme Court and Court of Appeal). It is currently the subject of yet another proceeding at the Labour Board with the prospect of further action in the courts.
It would be impossible to do this saga justice in a letter as short as this one. At a more appropriate time I intend to issue an account of the full story, however matters have now reached a juncture at which I believe the membership ought to be made aware of certain issues.
On September 7, I attended a short hearing at the BC Court of Appeal in which Local 15's legal counsel, two lawyers from a firm called Granville and Pender Labour Law Office, applied for assessment of legal costs against me. The amount they claimed was $9102.25. The Court Registrar granted them $8,374.93. Presumably then this is money which I now owe to you, my former brothers and sisters in Local 15.
As the substance of the continuing litigation makes clear, my position is that if the CUPE National staff assigned to investigate my termination grievance, prepare for the arbitration and represent me in the hearing, had properly fulfilled their obligations then I would most likely still have a job at the City, for which an expenditure of eight or nine thousand dollars would be a small price to pay. As it was, no one from CUPE National even attended the hearing, and for that and the lack of preparation I hold the officials of Local 15 fully responsible.
I took my claims against Local 15 to the BC Labour Relations Board in July 2000 and it has since denied those claims three times in decisions that are publicly accessible on the Internet. In it's first two deliberations (here and here) the Board determined that my case had no substance whatsoever and that therefore it would not "invite" Local 15 to respond. The legal terminology for this is a prima facie determination, which the Board is authorized to make on the basis of Section 13 of the Labour Relations Code. In effect, this provision, which the Board relies on frequently, grants the unions complete immunity.
Throughout this process I was unable to find a lawyer to assist me. Eventually I took the unprecedented step of proceeding without a lawyer to petition the BC Supreme Court for judicial review of the Labour Board's decisions. Following a two day hearing in which I faced counsel representing Local 15, the City of Vancouver, and the Labour Relations Board, the Court issued a judgement that found the Board's prima facie determination to be "patently unreasonable". The Court instructed the Board to resume adjudication of the matter by inviting Local 15 to respond to my original application to the Board.
The Court did one other thing that I did not anticipate and which was of little consequence to me at the time. In all such proceedings it is customary for the parties to request costs, that is an order by the court that one or more of the losing parties pay for the legal costs of the winning party (or parties). Apparently such costs are implied in a judgement if they are not explicitly articulated. In keeping with the standard language, I had requested costs (although I had no counsel and no idea what that meant in practice for a self-represented litigant). The Supreme Court judgement explicitly allowed costs but found them, not against the Labour Board as I would have expected, but against Local 15. I still do not comprehend the rationale for that, but in any case I never pursued the matter.
The important issue for me was that the Labour Board was compelled to proceed with my complaint and invite Local 15 (and the City) to respond. Had Local 15 refused to respond, as legally it could have done, I believe the Board would have had little choice but to make a finding against the union and grant me the new arbitration I was (and am) seeking.
I expected the Board to proceed expeditiously with its own process, but it did not. As it turned out, the priority for all three of the other parties was to challenge the Supreme Court judgement in the BC Court of Appeal. The Board however did not apply for that appeal. Local 15 itself took that initiative, making it the "appellant", while the Board and the City participated as "respondents".
The appeal application was made in February, 2003 and the hearing took place in November. Meanwhile the Board proceeded to engage the parties in a dialogue about whether or not its own proceedings should be placed in "abeyance" until the appeal was heard. This, I knew, was not a legitimate option, but it still took from January till May 2003 to convince the Board to proceed with the long-delayed "invitation". Local 15 finally provided its response in July, 2003. The City declined to submit a response.
In August 2003 the Board, rather than make a final determination on the case, decided on the basis of all materials then before it (including a fifty page affidavit I had prepared for the Supreme Court hearing), to schedule a full "oral" hearing. This is a process similar to a trial, with witnesses, oral testimony, cross-examination, etc., and is a daunting undertaking for a self-represented "complainant". I had expressed to the Board that the facts of my allegations were unchallenged by Local 15's response and a hearing was unnecessary, however the prospect of a hearing at which all the details of CUPE's conduct would be revealed was one that I welcomed.
Among other things, I formally requested from Local 15's counsel production of all relevant documents and I provided the Board and the other parties with a preliminary list of witnesses I intended to call. Local 15's counsel refused my request and the Board's adjudicator ignored, in fact failed to acknowledge, my correspondence regarding that and related matters.
The Board sent a written invitation to the counsel for the other parties requesting their "preference" for hearing dates, communications from which I was specifically excluded (but which I found out about by chance). The Board then scheduled the precise dates that Local 15's counsel requested, which not surprisingly was long enough after the date for the Court of Appeal hearing to ensure that decision would be rendered.
I protested this action in writing, which the Board also failed to acknowledge.
The Court of Appeal judgement gave Local 15 and the other parties what they were seeking. The Supreme Court decision was "quashed", thereby "restoring" the Labour Board's original prima facie finding. However, it was my view all along that the Court of Appeal hearing was "moot" (that is of no practical consequence), because by receiving Local 15's response (and other materials) and by then making the decision to proceed with an oral hearing (a rare event in these cases) the Board had effectively rendered a new decision that superseded it's earlier one.
However, I anticipated what the Board and the other parties would do (in fact I had told the three Court of Appeal Justices what would happen). And as I expected Local 15's counsel requested cancellation of the oral hearing, which after some dialogue on the matter (strictly for appearances sake) the Board readily granted, issuing another decision throwing my case out for the third time.
I immediately made the "reconsideration" application to the Board that is mandatory before one can proceed back to court in a situation of this nature. That application, filed on January 2, 2004, is still before the Board.
Also in January, I received from CUPE's counsel a letter requesting that I forward to that law firm a cheque for $9,102.25, made out to the Canadian Union of Public Employees (not to Local 15). I had reason to believe at that point that Local 15's executive board had refused to pay for the legal cost of the appeal and this discrepancy seemed to verify that. I don't know whether any legal implications result from that situation.
I ignored the letter and anticipated that I would hear nothing more on the matter. In August however, the costs assessment hearing was scheduled. As CUPE will only communicate with me through their counsel I don't know the union's real agenda on that issue.
Whether or not you, the members of Local 15, are currently out of pocket to the tune of $9,102.25 (or $8,374.93) I do not know. The executive board members should be able to answer that question.
Meanwhile the litigation is ongoing, and will continue until I have exhausted all legal options. I should add that even following my termination I would have had this matter resolved without venturing into any adversarial processes. Except for serving once as a jury member in a criminal trial, I had never before been involved in any litigation. With this matter, I have now already endured eight (8) legal proceedings (and counting) and have been heard before twelve (12) adjudicators with three more currently deliberating. Regardless of what CUPE itself has spent, this has no doubt already cost the taxpayers a considerable sum.
It has also been a substantial learning curve for me. And I intend to share what I have learned with others facing similar difficulties. My determination is based partly on how much is at stake but also premised on my confidence in the fundamental merits of my case.
There are of course a number of City of Vancouver employees familiar with the original background to this story. I expect that this account will be news to most Local 15 members at the City. I am not seeking any support in my endeavor. However, if I am ultimately successful, I will again become a CUPE Local 15 member. I am therefore offering this information because if my experiences are typical of how Local 15 is representing its members, and how their dues are being spent, then as a member I would want to be far better informed than I was while previously employed at the City.
Sincerely,
Chris Budgell
Vancouver, BC
cbudgell@smartt.com