Members for Democracy Archive

What a great find! I shall use this as collateral in court for the hearing of my next judicial review against the BC Board.

Actually, whoever wrote this on behalf of a business association is to be commended, however I believe what the Board has done with respect to its initial handling of DFR cases is actually significantly more perverse than this commentary concludes.

The "Judd" decision didn't alter anything. It was merely intended to formalize what the Board has been doing for years, which was never in keeping with a proper and legal interpretation of the legislature's intent as embodied in the Labour Code.

The "evidentiary basis" referred to in the article, that the Board has long been using is actually "res ipsa loquitur", whereas the proper Section 13 standard is "prima facie". I have just found an excellent explanation of the two at Wikipedia.

In 1992, when Section 13 was introduced with the new Labour Code, it used the term "prima facie". The recognized legal meaning of that term places an overwhelming onus on the adjudicator to justify dismissing a case based merely on the plaintiff's initial submission. That was not what the trade unions were expecting from Section 13.

In 1996, the NDP government revised Section 13 slightly, removing "prima facie" and substituting the phrase "sufficient evidence of an apparent contravention". It is debatable whether or not this phrase is synonymous with "prima facie". It certainly wasn't intended to be. I'd say it is deliberately vague and susceptible to subjective interpretation, which was evidently the reason for making the change. The Board has subsequently interpreted it to be synonymous with "res ipsa loquitur". So Mr. Mullin's words in "Judd" were merely meant to justify what the Board has been doing since at least 1996.

There is however a problem in this for the Board. A statutory revision is not passed by the legislature. It is handled by some kind of committee. In keeping with that fact, revisions (as opposed to amendments) can make cosmetic changes but cannot alter the substance in any way. So legally the Board is still required to comply with the "prima facie" standard. And contrary to what Mr. Mullin implied in "Judd", there is only one "prima facie" standard.

In my view this all adds up to a deliberate deception and a potentially serious legal issue for the Board. The Board's sensitivity to this fact is evident in various ways. It appears to have stopped using the term "prima facie" a long time ago in DFR decisions that are denied using Section 13 (1) (a). However, it still uses the term in many other places, including its annual reports. The labour relations community has evidently relied on the assumption that self-represented complainants would never stumble onto the truth. I guess the Internet didn't figure into their calculations.

Since September, by the way, almost all DFR decisions from the BC Board have been rendered by the same Vice Chair, someone who was appointed only in July and for a term of just six months (which may or may not be renewed). Every other Vice Chair has a minimum three year appointment, so who knows what this indicates.

The Labour Ombudsman idea is a red herring. It's a term that has been kicking around since the 1970's. Every time someone in government or the labour relations community wants to pretend they are being innovative, they drag it out, but they've never explained how such an office would function. If anyone ever gets serious about the concept they'll have to do a little bit more work than that.