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  • authored by remote viewer
  • published Sun, Aug 21, 2005

And Justice for Us

And Justice For Us

Six years ago Chris Budgell, former City of Vancouver employee and member of CUPE Local 15, began an odyssey through the labour relations system - that mysterious quasi-legal (and possibly illlegal) labyrinthe where the rights of unions and employers matter and workers' rights exist only as a concept.

One of many thousands of workers whose duty of fair representation complaints are dismissed each year by provincial Labour Relations Boards, Budgell is one of a very small number of workers to challenge a provincial LRB in court and win. Dismissed from his information technology job in 1999 for reasons that never added up to a hill of real beans, Budgell's union dropped the ball on his dismissal grievance in ways that really broke new ground.

Pressured by a union staff lawyer to accept an offer to resign in exchange for $7500, Budgell refused. One day before his arbitration hearing, his union tossed his case to an outside lawyer. With little time to prepare for the hearing and an arbitrator who was unabashedly hostile towards him, Budgell lost the arbitration. He would learn later on that the lawyer CUPE retained for him was terminally ill at the time of the hearing.

With a kean sense that injustice had been done, Budgell filed two DFR complaints with the BC LRB. Both were dismissed without a hearing. He headed off to court.

Early in 2003, the BC Supreme Court overturned the BC Labour Relations Board's decision to dismiss his DFR complaints. The last minute appointment of the outside lawyer and insufficient preparation time were factors that weighed in his favour. But the victory was snatched away when the CUPE and its management partners were able to get the decision quashed by the Court of Appeal.

Disappointed by the outcome, Budgell isn't finished with "the system". Along the way he's gained a lot of insight into the way that it operates and its twisted logic. Among other things, he's discovered The Labour Relations System's Fundamental Flaw

  • posted by reuther
  • Sun, Aug 21, 2005 8:37pm

Thanks RV,

Excellent writing Chris, I hope to see more.

quote:


it turns out a key to the injustice that they served up was substituting the definition of the legal Latin term "res ipsa loquitur" for the legitimate definition of "prima facie".


Chris, can you please elaborate on this point?

quote:


another Court of Appeal justice was making a presentation to the annual conference of the BC Coalition of Administrative Tribunals (liberally attended by labour board Vice Chairs and staff) entitled "Surviving the Unrepresented Litigant". I subsequently wrote to that justice and requested a copy of his paper. He wrote back and refused to provide one, saying such materials were not intended for public consumption.


Shouldn't there be a way we can get our hands on a copy of this paper? Labour Relations Acts are supposed to be a matter of public policy, what is this BC Coalition all about?

Reuther

  • posted by gbuddy
  • Sun, Aug 21, 2005 10:44pm

quote:


posted by reuther:
Thanks RV,

Excellent writing Chris, I hope to see more.

quote:


it turns out a key to the injustice that they served up was substituting the definition of the legal Latin term "res ipsa loquitur" for the legitimate definition of "prima facie".

 

Chris, can you please elaborate on this point?
Reuther


I'll get to your second comment tomorrow.

On the first one I'd be more than happy to hear from any lawyers or other experts on this issue, but here's my understanding.

The legal Latin term "prima facie" has been at the heart of my case all along, because it was specifically used in the original, 1992 version of Section 13 of BC's Labour Code to refer to the preliminary assessment of a Duty of Fair Representation complaint that would be conducted by a labour board adjudicator without asking the union (or employer) to respond. This provision by the way, as far as I know, is unique in all the legal world to the BC Labour Relations Code.

Section 13 was deliberately worded so that the intent was less than entirely clear on a first reading. The idea was that many complaints would be dismissed without any real consideration, on the rationale that they failed to present a "prima facie" case. The union and employer would never be asked to respond, thus among other things avoiding the risk of providing the complainant with material that might actually support the complaint. The Labour Board immediately began to dismiss a significant number of complaints using this mechanism, but the strategy was inherently flawed because the Board was relying on the fact that unrepresented complainants would not know the legitimate definition of the term that has long been accepted in our legal system.

In fact when I went to court in 2002 (resulting in a judgement in my favour issued in January 2003) I was not aware of the existing legal decisions and judgements that fully and properly define "prima facie". (I owe that discovery to another DFR complainant from Ontario.) I was trying to work with the inadequate and ambiguous definitions in Black's Law Dictionary, which the LRB itself had selectively quoted in a 1994 "leading" decision to construct its own definition. It is now clear that the 1994 decision was part of an elaborate ruse involving the adjudicators at the Board and other participants. They came up with a definition that placed an onus on the complainant to provide in the initial application compelling evidence sufficient to make a finding against the union "in the absence of contradictory evidence". So even if a case passed this first hurdle, the Board could rely on the "contradictory" evidence to dismiss the case (but that's another matter).

The initial hurdle was already ridiculously high, because "prima facie" essentially means nothing more than allegations that make sense. It turns out that the Ontario Labour Relations Board has been routinely making this point in its own DFR decisions, in which it cites a 1990 Supreme Court of Canada judgement to support that position. Ironically the SCC judgement is regarding a case that originated in BC and makes specific reference to BC Supreme Court Rule 19 (24) which also refers to a "prima facie" determination (though it doesn't actually use that term). "Prima facie" is an example of legal shorthand. In any given instance a lawyer or adjudicator may or may not choose to use it, but if they do they are expected to understand what it really means in practice.

The Ontario LRB and the SCC are both clear that in practice there is an overwhelming obligation on an adjudicator to justify dismissing a case on a "prima facie" basis.

That would not have served the purpose for which Section 13 was conceived. The BC labour relations community wanted a heavy onus placed on the unrepresented complainant. Therefore the BCLRB's adjudicators invented a new definition, "sufficient evidence that the contravention apparently occurred".

A standard Latin dictionary translates "prima facie" as "on first view". The definitions in legal dictionaries are a little more elaborate, but in fact problematic. "On first view" actually gives an appropriate sense of the proper legal meaning. When a complainant or "plaintive" initiates a legal action they only have to present basic allegations, so that the case makes sense. The next step is normally for the respondent party to answer the initial allegations. The record of decisions of the Ontario Labour Relations Board seems to indicate that it is up to the respondent party to assert that the complainant has not presented a "prima facie" case, and on rare occasions that Board will agree. Also, it evidently uses the same standard for all types of cases, whereas at paragraph 99 of the BC Board's "Judd" decision issued one month after my win in court, the Chair and his two colleagues claim that the BC legislature has mandated a special, higher "prima facie" standard exclusively for DFR cases. That is unfortunately for them not true. They specifically quote the "sufficient evidence" language, implying these are the words debated and passed by the legislature. They are not. Somehow the language of Section 13 was revised in 1996, replacing "prima facie" with "sufficient evidence that the contravention apparently occurred". I am still trying to find out how that was done. There is a Hansard record of an extensive debate of the original language of Section 13 from 1992, but I've found nothing further in the record.

"Res ipsa loquitur" is another piece of legal shorthand that means "the thing speaks for itself", in other words a case based on evidence that is sufficient to make a finding against the defendant (unless subsequently overcome by contradictory evidence). By focusing exclusively on the "late appointment of counsel" in my case, the Court of Appeal judges were able to turn this notion around and use it against me. They essentially said that I could not successfully argue that the late appointment in itself resulted in the lost arbitration. Whereas, what I actually said about the late appointment was that it was the culmination of more than seven months of incompetence and duplicity. My position therefore was that the union had breached Section 12 (the DFR provision) before the arbitration ever took place, and its actual outcome was irrelevant.

I think it is highly unlikely that those three BC Court of Appeal justices were unaware of the 1990 Supreme Court of Canada judgement on a case that had been dealt with by their own colleagues.

This is all about creating a double standard, and disguising it using proprietary language.

  • posted by sheila
  • Mon, Aug 22, 2005 5:00pm

Quote: gbuddy

The conundrum that I spoke about at the beginning of this thread is that the labour relations regime believes individual rights for employees are incompatible with collective rights. I would argue that in the real world you cannot have one without the other, because the result is either anarchy or tyranny.

Agreed.

To take gbuddy's arguments one step
further, in my view the bigger issue that I see
is Charter of Rights violations by the labour relations
regimes. If the labour relations regimes believe that
indiviudal before them does not have indiviudal rights, but only collective rights due to their being
a unionized worker, then one would be looking at
a section 15 Charter violation (discrimination),
section 7 violation (due process and natual justice)
and section 1 (security of the person).

Labour relations regimes cannot take the position
that an individual only has collective rights without
violating the Charter rights of the individual. Just
as the labour relations regimes could not take the position that a unionized worker only has indiviudal rights without breaking labour laws.

However, as gbuddy has correctly indicated, labour
relations regimes have consistently taken the
position that indiviudal unionized workers only have
collective rights; which means then that labour boards have consistently violated the Charter rights of DFR applicants/complainants.

The Charter of Rights and Freedoms governs
the relationship between the indiviudal and the
state (government). The Charter was intended to
put limits on the governments power over the
individual.

A union is considered one person in the eyes of
the law. Therefore, given labour boards view that
the individual only has collective rights, it would
mean then that an individual such as gbuddy, would not be seen as having individual rights. For
a labour board to recognize his individual rights,
the board would have to recognize the person.
But because he was a unionized worker, he would not be recognized as a person, and in turn his individual rights not recognized either. The only
rights that the board recognized is the one person -
union; collective rights.

Labour Boards recognition of collective rights only is
a clear violation of the Charter rights of the individual. What it does is slants labour boards decisions in favour of the one person - union, to the detriment of the individual person whose
individual rights guaranteed under the Charter of Rights and Freedoms the labour boards do not recognize contrary to the law of Canada.

If labour boards do not recognize the individual
rights of the applicant/complainant (which they don't) , then they are breaking the law (which they
have been doing for decades.)

The benefits to only recognizing collective rights
is that it gives the state a means of controlling
workers via the unions. The benefit to unions is
that they are free to do as they please via the
government. The employers are free to do as they
please via the unions and government. At the end
of the day, the traitor is the unions, but the real
enemy is the government that use the unions to
controll the workers by only recognizing collective
rights.

It's my opinion that the only way to change the
situation for unionized workers and all workers, is
for workers to file a class action suit pursuant to
section 15, 7 and 1 of the Charter of Rights and
Freedoms against their provincial government
and/or federal government.

The only point at which a labour board recognzes the indiviudal and his/her rights is at the point of filing their DFR application. It's after that point, filing, that the recognition of the indiviudal by a
labour board ends. Collective rights prevail and
the individual is treated as if they are not a party
in the proceeding.

The only rights the labour boards recognized after filing a DFR, is the union's (the one person) and employer's. With that said, a DFR complainant is seen as nothing more than a nuisance.

Labour boards are only interested in their own
existence and require indiviudals to file DFRs to help ensure their survival. Labour boards may complain publicly about the high number of DFR complaints, but you and I know, that the labour boards are the root cause of the high number of DFR complaints.

Contrary to what they would like the public
to believe they need individuals to file DFR complaints to ensure that they have a reason to
for being.

The only use that labour boards have for DFR applicants; to ensure appointed positions for their cronies at taxpayers expense and their continued existence. DFR complainants are simply just a means to end. To serve the selfish and insatiable needs of the chosen few at the taxpayers expense.

Quote: gbuddy

However, self-represented litigants are making progress. On the day I stood before three justices of the BC Court of Appeal, facing lawyers for three powerful bureaucracies, another Court of Appeal justice was making a presentation to the annual conference of the BC Coalition of Administrative Tribunals (liberally attended by labour board Vice Chairs and staff) entitled "Surviving the Unrepresented Litigant". I subsequently wrote to that justice and requested a copy of his paper. He wrote back and refused to provide one, saying such materials were not intended for public consumption.

I believe that is a strong indication of the profound concern the judicial and quasi-judicial communities have that ordinary citizens are making progress in seeking justice. The legal community is busy trying to shore up the walls around their domain while the foundations are collapsing. Time and determination are on our side.

Agreed.

Unrepresented litigants (non-lawyers) are threat to the status quo. If you've made any kind of impact,
as in damage to their false image, watch your
back, your job, your bank account anything that
they believe is of value to you. They are takers not givers. And will take and take until there is nothing left to take.

Since they conveniently don't recognize the individual rights of the worker, they'll destroy a worker's life by taking everything from them without feeling any guilt whatsoever or concern
of consequences for their actions. Who is going to hold them accountable, if those who are suppose to be enforcing the law are breaking the law themselves.

It seems to me that it is the unrepresented litigant
(non-lawyers) that is becoming the de facto independent supervisors of these government agencies and they appear to be really resentful
about it. Ordinary citizens were not suppose to be
knowledgeable enough or even intellingent enough to challenge them.

The shit that labour boards have dished out to the
ordinary janes and joes is coming back full circle on
labour boards. The ordinary jane and joe is shovelling labour boards shit right back at them.

  • posted by sheila
  • Mon, Aug 22, 2005 5:00pm

sorry - i meant to edit, not post twice.

  • posted by gbuddy
  • Tue, Aug 23, 2005 1:45am

quote:


posted by sheila:
Quote: gbuddy
Labour relations regimes cannot take the position
that an individual only has collective rights without
violating the Charter rights of the individual.


I've heard other people suggest that the Canadian Charter of Rights might have some application in an effort to challenge the labour relations regime(s). I have no expertise whatsoever in Charter issues and haven't looked at it because what little I've read indicates that the courts have no interest in seeing it used with respect to "purely economic" rights, which is how they prefer to characterize employment.

However, perhaps the issue of collective versus individual rights is a separate matter in itself. The other point that you make seems to be valid: that apart from allowing workers to file DFR complaints, the labour boards and the regimes they represent simply do not in practice recognize individual rights. In fact strong evidence to support that very contention is readily available in the language used throughout the regime.

Have a look for example at what the BC Board Resourcing Office has to say about the Labour Relations Board. In the opening paragraphs of this document it refers to two, and only two parties to the regime: employers and employees. This is conventional thinking. Despite the amendment made to Section 2 of the Code a few years ago that specifically identified "employees" as a third party, the term is otherwise consistently used to mean unions. Only Sections 10 and 12 provide for union members to challenge the collective interest represented by unions. Elsewhere in the Code there is no hint of any individual rights.

Perhaps we need someone with extensive expertise in Charter issues to take a closer look at this, however it seems apparent that the political / legal establishment is afraid of the consequences of allowing a Charter challenge that impacts on labour or employment rights.

Your observation that the statutory DFR provision exists as a token necessary to legitimize the regime is also interesting. What will happen if the message that the Duty is a sham gets out to the entire working population and we decide to simply boycott the boards (and send all DFR complaints instead directly to the Ministers of Labour)? Their lack of legitimacy would then be obvious.

  • posted by gbuddy
  • Tue, Aug 23, 2005 1:54am

Fortunately I have in front of me a copy of the above cited Board Resourcing document that I had printed some time ago. Now that I've again accessed it, I find the opening language has been altered. How very odd. Government bureaucrats do not make such changes because they have nothing better to do. More on this later.

  • posted by sheila
  • Tue, Aug 23, 2005 6:10am

quote:


posted by gbuddy:
[QUOTE]posted by sheila:
[qb]Quote: gbuddy

Your observation that the statutory DFR provision exists as a token necessary to legitimize the regime is also interesting. What will happen if the message that the Duty is a sham gets out to the entire working population and we decide to simply boycott the boards (and send all DFR complaints instead directly to the Ministers of Labour)? Their lack of legitimacy would then be obvious.


Now that's a good idea. Do you think the Ministers
of Labour would get the hint or would we have to
spell out to them. Like write in block letters on
the DFR application "IS THIS A JOKE?"

gbuddy, did you notice how the Vice-Chairs
change hats at will during the proceeding.
One moment the Vice-Chair is the neutral and impartial adjudicator ( or rather purports to be), the next moment, the Vice-Chair is your
adversary (opponent) and next moment the Vice-Chair is the legal counsel for the union and sometimes the employer. Wherever the weakness is in their case, the union and employer can always count on the Vice-Chairs to cover their asses in the decisions.

The unions and employers don't need a lawyer
to represent them before a labour board. The
Vice-Chairs who are lawyers will represent them.
Even if they are represented by counsel, the Vice
Chairs will fill in any holes left by their lawyers.
They are so pathetic!

  • posted by gbuddy
  • Tue, Aug 23, 2005 4:52pm

quote:


posted by sheila:
gbuddy, did you notice how the Vice-Chairs
change hats at will during the proceeding.
One moment the Vice-Chair is the neutral and impartial adjudicator ( or rather purports to be), the next moment, the Vice-Chair is your
adversary (opponent) and next moment the Vice-Chair is the legal counsel for the union and sometimes the employer.


I never got to experience a true hearing of my own case at the LRB as all its four or five decisions were the result of "paper" hearings (which in my view have no legitimacy at all). I did attend several DFR hearings for other cases and observed that the Vice Chairs seemed to be conducting an orchestrated performance for which they and the other lawyers had memorized the score. A major part of the Vice Chair's role was to discipline the self-represented complainant every time they played a dissonant note.

I can attest to witnessing the judges in both the BC Supreme Court and BC Court of Appeal doing exactly what you describe. In fact I would say that the other parties need not have sent their counsel at all. The judges were clearly acting as advocates for the other side, and since there was no one there to witness it except me, they made no real effort to disguise that fact. On at least one occasion a judge explained to me that in his previous comments he had merely been acting as a "devil's advocate". I was tempted to suggest he join an amateur theatrical group so he could get it out of his system where it might be appreciated. At another point just before a break, this same judge instructed me to go to the court library and look up "res judicata" (which is legal Latin for "your goose is cooked already"). The CUPE lawyer who was sitting to my right dutifully wrote the term down on a piece of scrap paper and handed it to me.

Arguably this sad state of affairs has developed because Canadians have meekly accepted that the members of the political and legal establishment are our superiors and we should never question the assumptions about how they run the system. As the document you cited earlier shows, we ought to be vigorously questioning ALL the assumptions.

I also believe that a full boycott of all the LRB's by working Canadians is something we should seriously consider organizing. They do not serve our interests in any respect. We could simply redirect complaints to the politicians who have refused to reform the system, each one accompanied by a statement about our cause. If every working person also refused to respond to the LRB's summonses to hearings on other matters, I believe we would then have a dynamite campaign of civil disobedience. Let's see if they would have the guts to jail us all.

  • posted by CUPE_Reformer
  • Tue, Aug 23, 2005 9:45pm

posted by gbuddy

quote:


I also believe that a full boycott of all the LRB's by working Canadians is something we should seriously consider organizing. They do not serve our interests in any respect. We could simply redirect complaints to the politicians who have refused to reform the system, each one accompanied by a statement about our cause. If every working person also refused to respond to the LRB's summonses to hearings on other matters, I believe we would then have a dynamite campaign of civil disobedience. Let's see if they would have the guts to jail us all.


gbuddy:

The employers and the unions might refuse to reinstate the grievances which have exceeded the time limits in collective agreements. Employers might terminate the employment of employees who have refused to attend LRB hearings. Neither employers nor most unions want to help DFR complainants.

In my opinion the only solution is union public review boards. The existing union public review boards can be significantly improved.

  • posted by timidsumo
  • Tue, Aug 23, 2005 11:44pm

quote:


posted by CUPE_Reformer:
In my opinion the only solution is union public review boards.


With abject apologies for my (almost total) ignorance, what's a Union public review board?

  • posted by CUPE_Reformer
  • Wed, Aug 24, 2005 6:47am

posted by timidsumo

quote:


what's a Union public review board?


timidsumo:

UAW Public Review Board: a sometime deterrent

CAW Public Review Board

  • posted by gbuddy
  • Wed, Aug 24, 2005 8:49am

So the Canadian and U.S. auto workers' unions have established a semi-independent appeals process. On first blush it sounds like an idea with some merit, but it is not an alternative to resolving the larger problems with incompetence, corruption and a lack of accountability in both the labour movement and our legal systems. These are profound and deeply ingrained problems that demand radical solutions.

By acquiescing to anything less than real solutions we simply grant the perpetrators another lease to carry on with their agenda. In Canada for example, every time the politicians begin to feel some heat from the public about the DFR problem, they roll out an alleged solution called the "labour ombudsman". Try a Google search on this term. The last email I received from former BC NDP leader Joy MacPhail proposed this notion as if it was something new.

If we were to allow the government to finally create such an office (which I doubt they have ever actually defined), what do you suppose the result would look like?

By all means encourage the unions and their various federations to put some better oversight in place. However, we will never see a real solution until it is one that incorporates personal accountability. That means in addition to the ability to reverse outcomes, the ability to impose sanctions. There are, I am sure, cases that warrant jail time.

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