COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Compass Group Canada (Health Services) Ltd. v. Hospital Employees' Union,
2007 BCCA 237
Date: （略）
Docket: CA34090
Between:
Compass Group Canada (Health Services) Ltd. dba Crothall Services Canada and/or Morrison Healthcare Food Services and/or Morrison Management Specialists
Appellants
(Petitioners)
And
Hospital Employees' Union and United Steelworkers of America, Local 1-3567 and Labour Relations Board of British Columbia and The Attorney General of the Province of British Columbia
Respondents
(Defendants)
Before:
The Honourable Madam Justice Rowles
The Honourable Madam Justice Kirkpatrick
The Honourable Mr. Justice Chiasson
D.D. Chesman
Counsel for the Appellant
D.W. Tarasoff
Counsel for the Respondent,
Hospital Employees' Union
S.I. Banister
Counsel for the Respondent,
United Steelworkers
E.F. Miller
Counsel for the Respondent,
Labour Relations Board
Place and Date of Hearing:
Vancouver, British Columbia
11 December 2006
Place and Date of Judgment:
Vancouver, British Columbia
26 April 2007
Written Reasons by:
The Honourable Madam Justice Rowles
Concurred in by:
The Honourable Madam Justice Kirkpatrick
Concurring Reasons by:
The Honourable Mr. Justice Chiasson (p. 33, para. 64)
Reasons for Judgment of the Honourable Madam Justice Rowles:
I. Overview
[1] The issue on this appeal is whether, in proceedings brought under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, the chambers judge erred in her application of the principles derived from Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471 (“Larocque”) when she concluded that the appellant, Compass Group Canada (Health Services) Ltd. (“Compass”), had not been denied procedural fairness in a certification hearing before the Labour Relations Board even though some evidence the appellant had put forward was not taken into account by the hearing panel.
[2] The appeal is brought from the order of Madam Justice Wedge dated 20 April 2006, dismissing Compass’s petition for judicial review of a decision of the Board dated 30 September 2005. The Board’s decision dismissed an application brought by Compass under s. 141 of the Labour Relations Code, R.S.B.C. 1996, c. 244 (the “Code”) for leave to reconsider the decision made by Vice-Chair Sharon Kearney (the “Vice-Chair”) in BCLRB No. B200/2005 (the “Original Decision”) dated 8 August 2005, certifying a bargaining unit of Compass employees proposed by the respondent, the Hospital Employees’ Union (“HEU”) at four health care facilities in Vancouver.
[3] On its application to the Board for leave for reconsideration of the Original Decision (B200/2005), Compass argued it had been denied a fair hearing, contrary to the rules of natural justice, because the Vice-Chair ignored or failed to properly weigh some evidence Compass had put forward in addition to the facts found in an earlier decision (BCLRB No. B194/2004) that were, by agreement, before the original panel. Compass said the additional evidence was relevant to the fifth and sixth factors used to determine bargaining unit appropriateness set out in Island Medical Laboratories Ltd. and Health Sciences Association of British Columbia, BCLRB No. B308/93 (Leave for Reconsideration of IRC No. C217/92 and BCLRB No. B49/93), (1993), 19 C.L.R.B.R. (2d) 161 (“I.M.L.”). The Board did not accept Compass’s argument that it had been denied a fair hearing and refused leave for reconsideration. The Board’s decision on the leave for reconsideration application is at BCLRB No. B263/2005.
[4] On the judicial review hearing, HEU argued that the original panel had considered the additional evidence put forward by Compass but, in the circumstances of the case, the panel had found it to be of no assistance in determining the appropriateness issue. In the alternative, HEU argued that even if the original panel had overlooked the evidence in question, Compass was not denied a fair hearing.
[5] After observing that the question of whether the original panel had failed to consider the additional evidence had been a matter of considerable debate on the hearing of the petition and that the Vice-Chair’s reasons were not without ambiguity on the matter, the chambers judge concluded that, for the purpose of determining the judicial review petition before her, she was prepared to accept the position of Compass that the Vice-Chair had not considered the evidence. The issue before the chambers judge then became whether the failure to consider the additional evidence resulted in an unfair hearing.
[6] The standard of review that applies on judicial review of decisions of the Board is found in the Administrative Tribunals Act, S.B.C. 2004, c. 45 (the “ATA”). The Code, which contains a strong privative clause, provides in s. 115.1 that s. 58(1) and (2) of the ATA applies to the Board. Those subsections of the ATA provide:
58 (1) If the tribunal's enabling Act contains a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction.
(2) In a judicial review proceeding relating to expert tribunals under subsection (1)
(a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable,
(b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and
(c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness.
[Underlining added.]
[7] The chambers judge concluded that even if the original panel had not considered the additional evidence, Compass had not been denied a fair hearing, and dismissed Compass’s petition for judicial review of the Board’s leave for reconsideration decision. The result was to leave in place the certification order granted in the Original Decision by the Vice-Chair. The judge’s reasons for dismissing Compass’s judicial review petition may be found at 2006 BCSC 618.
[8] In my opinion, the chambers judge did not err in law in her application of the principles that may be derived from Larocque in determining the question of whether Compass was denied a fair hearing on the certification application. My reasons for reaching that conclusion follow.
II. Background
[9] Before 2002, non-clinical support services such as laundry, housekeeping, dietary and food services in hospitals and other health care facilities were performed by employees of the public health authorities in British Columbia. In most of those facilities, all unionized workers performing support services were in one bargaining unit and the HEU represented the majority of those workers. Nurses and paramedical professionals were, as a general rule, in separate bargaining units and were represented by other unions. The granting of a separate bargaining unit for each of the three groups of employees was a reflection of the Board’s recognition that employees in the separate units shared a distinct community of interest.
[10] In 2002, the provincial government enacted the Health and Social Services Delivery Improvement Act, S.B.C. 2000, c. 2, which overrode certain provisions in the collective agreements between the health authorities and the unions representing their employees. As a result of the legislation, hospitals and other public health care providers governed by collective agreements were no longer prohibited or restricted from contracting out the non-clinical support services. Companies in the business of supplying private support services were permitted to bid on contracts to provide these services to the health authorities. The legislation has generated a considerable amount of litigation including a constitutional challenge brought by HEU and other unions which was heard and reserved by the Supreme Court of Canada on 8 February 2006: Health Services and Support Facilities Subsector Bargaining Assn. v. British Columbia, 2003 BCSC 1379, 2004 BCCA 377, leave to appeal to S.C.C., [2004] S.C.C.A. No. 587 (QL).
[11] Contracts to provide support services, made after the legislation was in place, vary in their scope. In some contracts, the work has been contracted to different companies by the health authority on a facility by facility basis. In others, the health authority has contracted with one company to provide support services to several of its facilities under one or more contracts.
[12] Compass is one of several companies providing support services and has been successful in obtaining a number of contracts to perform the work previously performed by employees of the health authorities. Sodexho MS Canada Limited and ARAMARK Canada Ltd. are Compass’s main competitors. Compass carries on business through several different divisions which operate fiscally as independent entities. The “Morrison” division provides food services, or a combination of food, laundry and housekeeping services, to health care facilities. The “Crothall” division provides housekeeping and laundry to health care and educational facilities.
[13] After the legislation was in place permitting the contracting out of support services, a number of unions including the HEU and the United Steelworkers of America, Local 1-1367 (“USWA”) began organizing employees of the contracting companies. The scope of the certifications for which the unions applied varied but generally depended on the scope of the particular contract between the contractor and the health authority.
[14] In its decisions, the Board had long recognized that all-employee units of non-clinical support services workers were appropriate for collective bargaining. However, as a result of legislation permitting public health authorities to contract out support services, the Board was called on to consider anew the question of appropriate bargaining units for these workers.
[15] Prior to the application for certification that led to the judicial review proceedings in the court below, the same parties were before the Board on an application for certification in which bargaining unit appropriateness was in issue. On 12 March 2003, HEU had applied under s. 142 of the Code to vary its certification covering Compass employees who provided food and housekeeping services at the privately-owned Renfrew Care Centre in Vancouver to include a group of Compass employees who provided housekeeping services at a number of publicly-operated Vancouver Coastal Health Authority (“VCHA”) locations, mainly located on the site of the Vancouver General Hospital.
[16] The application to vary the certification to extend beyond the Renfrew site was dismissed by the Board (the panel consisting of Sharon Kearney, Vice-Chair) in BCLRB No. B194/2004, but the Vice-Chair stipulated that no findings were being made that would exclude consideration of a further application by HEU for certification of other sites where such services were performed by Compass employees. I will refer to BCLRB No. B194/2004 as the First Compass Decision.
[17] The HEU then applied on 5 March 2004 to represent Compass employees who performed food and housekeeping services at four facilities operated by the Provincial Health Services Authority (the “PHSA”) located in Vancouver, that is, B.C. Women’s Hospital, B.C. Children’s Hospital, Sunny Hill Health Centre and the B.C. Cancer Agency. The PHSA had entered into two contracts with Compass, one through its Crothall division and the other through its Morrison division, which covered all four facilities. Compass employees under one contract provided food services and, under the other, provided laundry and housekeeping services.
[18] The question before the Board, the panel being the same Vice-Chair who had heard the earlier application, was whether a bargaining unit of housekeeping and food service workers employed by the same company and working together in the same health care facilities was appropriate.
[19] Compass objected to the proposed bargaining unit containing all of its employees under the two contracts with PHSA. Compass argued that the two divisions within Compass’s corporate structure had separate contracts and, as a result, there ought to be separate bargaining units for the employees of each of the two divisions.
[20] USWA also opposed the HEU’s application. Shortly before the application was heard, USWA had entered into voluntary recognition agreements with Compass for separate bargaining units to reflect the separate contracts with the two divisions at the same facilities.
[21] On the hearing, the parties agreed that they could rely on the facts found in the First Compass Decision (B194/2004), including the facts concerning the fifth and sixth I.M.L. factors (that is, the history of bargaining between the parties and the history and practice of collective bargaining in the industry or sector). The agreed facts, which are several pages in length, are set out in the Original Decision (B200/2005) of the Vice-Chair at para. 24.
[22] At the hearing Compass advanced some additional evidence that post-dated the hearing in the First Compass Decision (B194/2004) (the “additional evidence”) which Compass asserted was relevant to the fifth and sixth I.M.L. factors.
[23] The Vice-Chair decided that the proposed bargaining unit was appropriate and granted certification of the unit to HEU. In finding the bargaining unit appropriate, the Vice-Chair referred to I.M.L. and rejected Compass’s argument that the bargaining unit should reflect its corporate divisions. The Vice-Chair explained how the facts on the application before her differed from those in HEU’s earlier application in the First Compass Decision (B194/2004) at paras. 40 and 43:
[40] . . . In the earlier Compass case, the facilities in question – Renfrew and VGH – were geographically separate. More importantly, the two facilities in question were owned and operated by two different clients of Compass, one in the private sector and one in the public sector. As already noted, here the Morrison and Crothall division employees perform their respective services at the same sites and the sites are all operated by PHSA. Thus, although the employees in question perform services for different divisions of Compass, they are working at the same sites. . . .
* * *
[43] In this case, the Morrison and Crothall division employees provide services at the same sites, (B.C. Women’s Hospital, B.C. Children’s Hospital, Sunny Hill Health Centre and the B.C. Cancer Agency), for the same employer (Compass), for the same client (PHSA). Consequently, I find that, unlike in the earlier Compass case, the commercial contracts in this case have a common purpose - they allow for the provision of services to the same people, at the same sites, for the same client. . . .
[24] Compass subsequently applied to the Board under s. 141(1) of the Code for reconsideration of the Vice-Chair’s decision on the ground that the Vice-Chair had denied it a fair hearing by ignoring or overlooking the additional evidence it had tendered concerning the fifth and sixth I.M.L. factors. Section 141 of the Code provides:
141 (1) On application by any party affected by a decision of the board, the board may grant leave to that party to apply for reconsideration of the decision.
(2) Leave to apply for reconsideration of a decision of the board may be granted if the party applying for leave satisfies the board that
(a) evidence not available at the time of the original decision has become available, or
(b) the decision of the board is inconsistent with the principles expressed or implied in this Code or in any other Act dealing with labour relations.
* * *
(7) On reconsideration under this section the board may vary or cancel the decision that is the subject of reconsideration or may remit the matter to the original panel.
[25] On 30 September 2005, a panel of the Board, including the Board’s Chair and Associate Chair, dismissed Compass’s application for leave for reconsideration thus letting stand the Original Decision (B200/2005) granting certification to HEU. In the same decision, the panel granted leave to HEU for reconsideration of the First Compass Decision (B194/2004) (the initial decision of the Vice-Chair on the appropriateness of the additional sites being included with the Renfrew site) but dismissed the reconsideration.
[26] Compass then applied under the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, to have both the Original Decision (B200/2005) granting certification to HEU and the leave for reconsideration decision set aside on grounds that Compass had been denied a fair hearing before the original panel. In asserting that it had been denied natural justice, Compass argued that the original panel had ignored or overlooked the additional evidence going to the fifth and sixth factors referred to in I.M.L.
[27] The chambers judge was of the view that the additional evidence was of “marginal relevance” and that Compass had not been denied a fair hearing even if the evidence was overlooked. The chambers judge decided that, “[o]n the facts of this case, it was open to the Vice-Chair to conclude, as she did, that neither of the two [I.M.L.] factors provided assistance with respect to the appropriateness issue” (at para. 40). Compass’s judicial review petition was dismissed and it is from that judgment that the appeal is now brought.
III. The alleged error in judgment and the position of the parties on the appeal
[28] In its factum, Compass asserted that the chambers judge erred “in holding that the Board’s failure to consider the [additional evidence] did not breach natural justice and that the Original Decision (B200/2005) was, therefore, not patently unreasonable on the basis that the [additional evidence] could have been of little assistance to the Board.” On the hearing of the appeal, Compass provided to the Court, without objection from the other parties, a brief styled “Appellant’s Oral Argument”. The brief, which revised some of the arguments in Compass’s factum, was said to narrow the issue on appeal to the following question:
Having regard to the issue of bargaining unit appropriateness, as defined by the Board, was the [additional evidence] of some significance?
[29] What Compass’s argument now comes down to is that the chambers judge erred in law by misapplying the principles that may be derived from Larocque about the effect of the refusal to admit relevant evidence on the fairness of a tribunal hearing. In making that argument, Compass contends that the additional evidence was relevant to the fifth and sixth factors referred to in I.M.L. and therefore was of some significance in determining bargaining unit appropriateness.
[30] Compass seeks an order that the appeal be allowed, the decision of the chambers judge set aside, and the matter referred back to the Board.
[31] The respondent Board takes the following position on the issues on appeal:
The Board submits that the fundamental issue on appeal is whether the Chambers Judge erred in law in applying the Larocque decision to the present matter and holding that, even if it is assumed the Board failed to consider certain relevant evidence, the question remains whether this failure amounted to a breach of natural justice.
The Board submits that, if the Chambers Judge did not err in her interpretation and application of Larocque to the present matter, then a secondary issue on appeal is whether the Chambers Judge was correct (or not clearly wrong) in concluding that the Board’s failure did not amount to a breach of natural justice because the evidence not considered was of such marginal relevance that it would have provided little or no assistance on the issue of bargaining unit appropriateness that was before the Board in this case.
[32] HEU’s position, as set out in its factum, is as follows:
The Respondent HEU submits that the Chambers Judge correctly concluded that even if the Board overlooked certain evidence in finding that the impugned bargaining unit was appropriate for collective bargaining, the Appellant was not denied a fair hearing because the evidence that was overlooked was of marginal relevance and of little significance.
The Respondent HEU submits in the alternative that even if the Chambers Judge erred in concluding that the Appellant was not denied a fair hearing when the Board overlooked the evidence, this Honourable Court should dismiss the appeal nonetheless and decline the Appellant’s request to refer the matter back to the Board on the basis that there is no practical utility in doing so.
[33] The foundation for HEU’s alternative submission is a subsequent certification, upheld on reconsideration, of the same kind of unit that was certified here: BCLRB No. B6/2006, upheld on reconsideration, BCLRB No. B71/2006, coupled with the decision of the Supreme Court of Canada in Mobil Oil Canada Ltd. v. Canada-Newfoundland Offshore Petroleum Board, [1994] 1 S.C.R. 202. HEU submits that in view of the group of cases considered in BCLRB No. B6/2006, this Court has the unusual opportunity to know with near certainty what will happen if the matter is referred back to the Board and therefore there is no practical utility in doing so.
[34] The respondent USWA, Local 1-3567 supports the arguments of Compass.
[35] I will begin by examining what the Supreme Court said in Larocque and will then make reference to the Board’s framework for determining bargaining unit appropriateness.
IV. The decision in Larocque
[36] In Larocque, the Supreme Court considered whether the refusal by a labour arbitrator to admit relevant evidence resulted in a breach of natural justice. The case before us does not involve the refusal to admit evidence but presents an analogous situation in that the additional evidence that Compass argues is relevant in determining the question of bargaining unit appropriateness was not taken into account by the Vice-Chair in the Original Decision (B200/2005).
[37] In Larocque, the Government of Quebec and the respondent Université had entered into an agreement whereby research was to be conducted by the Université. The Université hired two research assistants for a period of 14 months but before that period ended, the two assistants were advised that "as the result of a lack of funds" the Université was forced to terminate their contracts. The employees filed grievances challenging this decision. At the hearing, the Université sought to introduce evidence that the two employees had done their work badly and therefore it had been necessary to hire, from the research funds provided for in the agreement, another experienced person who would be able to redo the work by the required deadline. The Université argued it was this additional expenditure which led to the shortage of funds to pay the two assistants. The arbitrator disagreed with the Université and agreed with the assistants’ argument that the Université was trying to add to or alter the grounds relied on in the notices of termination of employment. The arbitrator found that the Université had not established a lack of funds, but even if there had been a lack of funds, that lack could not be a valid reason for breaching the term contract with the assistants, since "[i]t is a cause which is not within the employee's control, but is due to an agreement between the University and a third party". The arbitrator awarded the assistants their full salaries for the full term of the contract. On judicial review of the arbitrator’s decision, the Superior Court found that the arbitrator’s refusal to hear the evidence offered by the Université constituted an excess of jurisdiction and ordered that the case be re?heard before another arbitrator. The assistants’ appeal to the Quebec Court of Appeal was dismissed and their further appeal to the Supreme Court of Canada was also dismissed.
[38] The first issue before the Court in Larocque was “whether the refusal by a grievance arbitrator to admit evidence is a decision subject to judicial review, and in particular whether the Superior Court was justified in exercising its review power in the case at bar.” (at 484).
[39] In considering that issue, Lamer C.J. first distinguished, on the basis of the context in which it appeared, a passage from the reasons for judgment of Chouinard J. in Roberval Express Ltée v. Transport Drivers, Warehousemen and General Workers Union, Local 106, [1982] 2 S.C.R. 888, in which it was stated that “. . . A refusal to hear admissible and relevant evidence is so clear a case of excess or refusal to exercise jurisdiction that it needs no further comment.” Lamer C.J. then stated, at 485:
When thus seen in their context it is not clear that Chouinard J.’s remarks can be used to dispose of this case. Accordingly, this Court must examine the question presented to it on the basis of the particular circumstances of this case, the arguments made by the parties and the general principles governing judicial review in the field of grievance arbitration.
[Underlining added.]
[40] Lamer C.J. first made plain that it was within the grievance arbitrator’s exclusive jurisdiction to define the scope of the issue presented to him, as the arbitrator had primarily to interpret the collective agreement, and in that regard “only a patently unreasonable error or a breach of natural justice could give rise to judicial review.” (at 485). After referring to cases which began the Supreme Court’s effort to limit the scope of the theory of preliminary questions, and to favour instead a functional and pragmatic approach to identifying questions of jurisdiction, Lamer C.J. said, at 487:
In view of the foregoing, I have no hesitation in concluding that the arbitrator had complete jurisdiction to define the scope of the issue presented to him, and that only an unreasonable error on his part in this regard or a breach of natural justice could have constituted an excess of jurisdiction. I also think, though in my opinion it is not necessary to decide this point in the case at bar, that the necessary corollary of the grievance arbitrator's exclusive jurisdiction to define the issue is his exclusive jurisdiction then to conduct the proceedings accordingly, and that he may inter alia choose to admit only the evidence he considers relevant to the case as he has chosen to define it.
[41] The Chief Justice then turned to the Université’s argument that “even within the issue as defined by the arbitrator - that is, an issue limited to the cause relied on in the notices of dismissal, the lack of funds - this evidence was relevant since its very purpose was to establish the reason for this lack of funds.” It was Université’s submission that the refusal to admit relevant and admissible evidence infringed the rules of natural justice and for that reason constituted an excess of jurisdiction.
[42] Under the heading, “Refusal to Admit Relevant Evidence and Natural Justice”, Lamer C.J. began by posing a question, at 488:
The only rule of natural justice with which the Court is concerned here is the right of a person affected by a decision to be heard, that is, the audi alteram partem rule. The question is whether there is a breach of that rule whenever relevant evidence is rejected by a grievance arbitrator. In order to answer this question, we must determine whether judicial review should be available whenever an arbitrator errs, regardless of the seriousness of his error, in declaring evidence submitted by the parties to be irrelevant or inadmissible.
[43] Lamer C.J. observed the “tension existing between the quest for effectiveness and speed in settling grievances on the one hand, and on the other preserving the credibility of the arbitration process, which depends on the parties' believing that they have had a complete opportunity to be heard”: the audi alteram partem rule of natural justice (at 488). In respect of the tension between these goals, Lamer C.J. rejected the proposition that any refusal to admit evidence in a grievance arbitration would give rise to a breach of natural justice, as this would seem incompatible with the wide measure of autonomy accorded to arbitrators by the Legislature to settle disputes in a final and exclusive way. Yet he also cautioned that “it is clear that the confidence of the parties bound by the final decisions of grievance arbitrators is likely to be undermined by the reckless rejection of relevant evidence” and offered some practical advice, at 490-491:
. . . A certain caution is therefore unquestionably necessary in this regard. As Professor Garant observes:
[TRANSLATION] A tribunal must be cautious, however, as it is much more serious to refuse to admit relevant evidence than to admit irrelevant evidence, which may later be rejected in the final decision. The practice of a tribunal taking objections to evidence "under advisement" where possible, and when the party making them does not absolutely insist on having a decision right then, is usually advisable; it does not in any way contravene natural justice.
(P. Garant, Droit administratif, vol. 2, Le contentieux (3rd ed. 1991), at p. 231.)
[44] The Chief Justice went on to reject the notion of an automatic breach if relevant evidence is excluded, at 491:
For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievance arbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, in the guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice.
[45] With regard to the circumstances of the case before the Court, however, Lamer C.J. determined there had been a breach of natural justice by the refusal to admit the evidence. In the context of a hearing involving a dismissal due to lack of funds, the Université’s evidence regarding the funding source being depleted because another researcher was hired to correct the poor quality work of the original two assistants was, in the words of Lamer C.J., “prima facie crucial” to determining the grievance. As the Chief Justice noted, the arbitrator had taken a paradoxical position by finding that the Université could not establish a lack of funds yet expressly refused to hear “any evidence whatsoever from the respondent on the point” (at 492, emphasis in original).
[46] Lamer C.J. went on to caution against using ex poste facto reasoning to justify upholding the result of an arbitrator's decision.
V. The principles the Board applies and the framework it has developed for determining bargaining unit appropriateness
[47] It is undisputed that I.M.L. is the Board’s leading decision on bargaining unit appropriateness. In I.M.L., the Board referred to some of its earlier decisions on bargaining unit appropriateness and considered them in light of the two fundamental principles the Board applies on applications for certification, that is, access to collective bargaining and industrial stability. The Board then restated its jurisprudence on the question of bargaining unit appropriateness, concluding with a summary of the factors discussed in its decision.
[48] The Board’s summary of the factors to be considered with respect to bargaining unit appropriateness appears at 192-193:
1. There are two fundamental principles in the Code regarding the determination of appropriate bargaining units: access to collective bargaining and industrial stability. These principles are always present in any determination of appropriateness.
2. Community of interest is the test for determining an appropriate unit. An appropriate unit must have a rational and defensible boundary.
3. On an initial application for certification, community of interest is determined by the following factors:
(a) similarity in skills, interests, duties and working conditions;
(b) the physical and administrative structure of the employer;
(c) functional integration; and
(d) geography.
Access to collective bargaining is the most important principle in determining appropriateness on an initial application.
4. In a traditionally difficult sector to organize, the community-of-interest factor on an initial application for certification is "relaxed".
5. To establish that a sector or industry or group of employees is traditionally difficult to organize, the evidence can include the following:
(a) the Board's own records – i.e., collective agreements and certifications;
(b) evidence of individuals with experience in the sector or industry; and
(c) expert evidence concerning the sector or industry.
The evidence should establish a low-union density either in the particular industry or among the group of employees which reflects structural or systemic aspects of the workforce which have made it difficult to organize.
6. At the second or additional stage of certification (i.e., where there is already at least one collective bargaining regime in place), the community-of-interest factors are expanded to include the following two (for a total of six factors):
(a) the practice and history of the current collective bargaining scheme; and
(b) the practice and history of collective bargaining in the industry or sector.
Industrial stability is the most important principle in determining appropriateness at the second or additional stage of certification. There is a presumption against multiple bargaining units. This presumption markedly increases with the number of units….
[Emphasis in original.]
VI. Analysis
[49] Larocque points the way to an analysis that avoids labelling as a jurisdictional error any failure to consider evidence that might be relevant to a determination being made by a tribunal. From her reasons, it is apparent that the chambers judge recognized that Larocque eschews such a categorical approach.
[50] In her reasons, the chambers judge considered the nature of the evidence that had been before the Vice-Chair on HEU’s initial application in the First Compass Decision (B194/2004), the nature of the additional evidence Compass put forward in the Original Decision (B200/2005), and the reasons Compass gave for putting the evidence forward, and then she considered what relevance the additional evidence might have in determining whether the bargaining unit HEU proposed was appropriate, taking into account the principles and policy articulated by the Board in I.M.L.
[51] In Larocque, Lamer C.J. was firm in stating that the arbitrator “had complete jurisdiction to define the scope of the issue presented to him”. In this case, the issue before the Vice-Chair was bargaining unit appropriateness in the context of an application for certification for service workers in four facilities in close proximity to one another. The scope of the issue before the Vice-Chair was informed by the Board’s policy, reflected in the decision in I.M.L., which provides the foundation for the determination of appropriate bargaining units.
[52] Compass’s position, both on the initial decision hearing in which HEU sought a variance to include Compass employees at locations other than Renfrew leading to the First Compass Decision (B194/2004) and on the subsequent hearing leading to the Original Decision (B200/2005), was that certification of bargaining units ought to correspond to the contracts it had made through its corporate divisions, Crothall and Morrison.
[53] It is clear from its discussion in I.M.L. that, in furtherance of the goal of industrial stability, the Board regards single bargaining units to be preferable to multiple bargaining units. One of the Board’s observations in I.M.L. points to the rationale for that preference, at 187:
… It is axiomatic in labour relations that a proliferation of bargaining units increases the potential for industrial instability. Multiple bargaining units per se raise a serious concern about industrial stability. Instead of one strike, there may be several strikes. Each union may potentially whipsaw the employer by trying to leapfrog the last set of negotiations….
[54] In her analysis directed to the question of whether the Board had denied Compass a fair hearing by failing to consider the additional evidence, the chambers judge began by making reference to the Board’s long-standing presumption against multiple bargaining units in a single employer structure, based on its potential to have an adverse impact on industrial stability. The judge noted that it was only where employees shared a distinct community of interest sufficient to override the presumption against multiple bargaining units that the Board had permitted more than one bargaining unit within a single employer and that the bargaining unit configuration in public health care had historically consisted of three units: non-clinical support workers, paramedical professionals and nurses.
[55] With respect to the Vice-Chair's consideration in the First Compass Decision (B194/2004) of the fifth and sixth factors in I.M.L., the chambers judge said:
[25] In a decision dated June 4, 2004, a Vice-Chair of the Board dismissed HEU’s application to vary the Renfrew unit to include the VCHA employees of Compass (BCLRB No. B194/2004). In doing so, the Vice-Chair considered the six factors described in I.M.L., including the fifth and sixth factors. She concluded that the practice and history of the bargaining structure between Compass and HEU (the fifth factor) was of little assistance. There was evidence of two applications by HEU to represent Compass employees, one which ended in decertification and another which ended when the contract was not renewed. Simply put, there was no bargaining history between the parties.
[26] On the sixth factor (practice and history in the industry or sector), the Vice-Chair took note of certifications of Compass employees held by various unions at various locations. There were 29 certifications listed, and all were location specific. That is to say, Compass held separate contracts at each location, and each location had been certified as a separate bargaining unit. Notably, most of the certifications listed do not involve health care employers or the health care sector. They involve a variety of entities contracting with Compass in a spectrum of industries, including Telus, B.C. Hydro, community colleges and correctional facilities. On the basis of these certifications, the Vice-Chair concluded that the practice or history in the “industry” (apparently referring to the business of Compass providing support services in a variety of industries or sectors) was “contract/location specific certifications” (B194/2004 at para. 34).
[27] The Vice-Chair concluded she could decide the case solely on the basis of the separate contracts at the two unrelated sites of Renfrew and VCHA, and that, accordingly, she was not required to address the issue of bargaining unit appropriateness in the sector generally (B194/2004 at para. 43). Instead, the Vice-Chair concluded that HEU’s variance application was inappropriate in the circumstances of the case because it sought to combine separate business operations under distinct contracts at unrelated sites (B194/2004 at paras. 74 and 79).
[Underlining added.]
[56] The chambers judge then turned to describe the background to the application made by HEU for certification of a bargaining unit of Compass employees working at the four health care facilities operated by the PHSA located in Vancouver, along with Compass’s objection to the proposed bargaining unit:
[28] The Original Decision (BCLRB No. B200/2005), which is the first of the two decisions under review, has as its origins an application by HEU in March of 2004 to be certified for a bargaining unit of Compass employees working at four health care facilities operated by the PHSA and located in Vancouver. The four facilities were B.C. Women’s Hospital, B.C. Children’s Hospital, Sunny Hill Health Centre and the B.C. Cancer Agency. The PHSA had entered into two contracts with Compass, one through its Crothall division and the other through its Morrison division. The contracts covered all four facilities, with Compass employees under one contract providing food services and, under the other, providing laundry and housekeeping services.
[29] Compass objected to the proposed bargaining unit containing all of its employees under the two contracts with PHSA. It argued that the two divisions within Compass had separate contracts and, as a result, there ought to be separate bargaining units for the employees of each of the two divisions. USWA had entered into voluntary recognition agreements with Compass for separate bargaining units to reflect the separate contracts with the two divisions.
[57] The chambers judge made reference to the agreement of the parties that they could rely on the facts in the First Compass Decision (B194/2004) and then outlined the additional evidence before the Vice-Chair at the subsequent hearing:
[30] At the hearing of the matter, the parties agreed that the Vice-Chair could rely on the facts outlined in the B194/2004 decision, including the evidence concerning the fifth and sixth I.M.L. factors (that is, the history of bargaining between the parties and the history and practice of collective bargaining in the industry or sector). Compass also advanced some additional evidence concerning the fifth and sixth factors that post-dated the hearing in B194/2004. It is this evidence Compass says the Vice-Chair ignored or overlooked when deciding the appropriateness of the unit proposed by HEU.
[31] The additional evidence concerning the fifth factor (the history of bargaining between Compass and HEU) consisted of correspondence by the Board reflecting the course of collective bargaining at a continuing care facility, Beacon Hill Lodge, where HEU was certified for a unit of Compass employees. Compass tendered this evidence to demonstrate that bargaining difficulties between Compass and HEU at Beacon Hill did not adversely affect the other two bargaining units of Compass employees certified to HEU.
[32] The additional evidence concerning the sixth factor (history of collective bargaining in the industry or sector) consisted of a number of certifications and pending applications for certification concerning Compass employees filed with the Board since the hearing of B194/2004. These certifications and applications for certification, like the 29 certifications listed in B194/2004, disclosed bargaining units whose scope tended to mirror that of the commercial contracts held by Compass.
[58] With reference to what the Vice-Chair concluded in the Original Decision (B200/2005), the chambers judge said:
[33] With respect to the fifth and sixth factors in I.M.L., the Vice-Chair said the following at paras. 35 and 36 in the Original Decision:
The parties presented no new evidence in this case with respect to the fifth IML factor-- practice and history of collective bargaining between the parties -- and therefore I similarly conclude that this factor continues to be of little assistance.
Likewise, the parties presented no new evidence with respect to the practice and history of collective bargaining in the industry-- the sixth IML factor -- and I again note that the industry practice and history appears to be one of a multi-bargaining unit design. However, the evidence with respect to the sixth IML factor is now dated and there has been many changes in the contract sector industry since the introduction of Bill 29. Consequently, I find that I am unable to draw any conclusion in this case regarding the practice and history of collective bargaining in the industry.
[34] The Vice-Chair went on to observe that the facts in the present case differed significantly from those in B194/2004. At para. 40 in the Original Decision, she noted the following:
In the earlier Compass case, the facilities in question – Renfrew and VGH – were geographically separate. More importantly, the two facilities in question were owned and operated by two different clients of Compass, one in the private sector and one in the public sector. As already noted, here the Morrison and Crothall division employees perform their respective services at the same sites and the sites are all operated by PHSA. Thus, although the employees in question perform services for different divisions of Compass, they are working at the same sites.
[35] Similarly, at para. 43 the Vice-Chair said:
In this case, the Morrison and Crothall division employees provide services at the same sites, (B.C. Women’s Hospital, B.C. Children’s Hospital, Sunny Hill Health Centre and the B.C. Cancer Agency), for the same employer (Compass), for the same client (PHSA). Consequently, I find that, unlike in the earlier Compass case, the commercial contracts in this case have a common purpose - they allow for the provision of services to the same people, at the same sites, for the same client.
[36] After considering the various factors concerning appropriateness, the Vice-Chair concluded at para. 49 in the Original Decision that the unit proposed by HEU was appropriate for collective bargaining:
As set out above, I have concluded that in this case, IML factors five and six are of no assistance, IML factors two and three are neutral, and IML factors one and four favour a finding of appropriateness. I note that the ultimate conclusion on appropriateness comes down to a matter of judgment and weight. However taking into consideration all of the IML factors, the relative importance of the factors, and the weight of my findings on each factor, I conclude that [the] unit sought in the primary application is an appropriate bargaining unit.
[59] Under the heading “The Reconsideration Decision”, the chambers judge summarized what had occurred on the application brought by Compass to reconsider the Original Decision (B200/2005):
[37] Compass applied for reconsideration of the Original Decision on the basis that the Vice-Chair had denied it a fair hearing by overlooking or ignoring the additional evidence it had tendered at the hearing concerning the fifth and sixth I.M.L. factors. In the Reconsideration Decision (BCLRB No. B263/2005) a three person panel of the Board, including the Board Chair and Associate Chair, dismissed the application. The panel said the following at paras. 31 and 33-34:
We are not persuaded the original panel breached natural justice or fair hearing requirements.
. . .
In this case, Compass essentially challenges the panel’s weighing of the evidence and of the IML factors. The Board is particularly reluctant to interfere with the weighing of evidence absent a palpable and overriding error, which we do not find.
We further find the panel made a judgment applying the IML factors to the facts and reached a conclusion that was reasonably open to it. That decision reflects the particular facts of the case. We find the original panel clearly and sufficiently distinguished the specific facts before her in B200/2005 from the specific facts in BCLRB No. B194/2004.
[60] The chambers judge then referred to the question of whether the Vice-Chair had failed to consider the additional evidence and articulated how she proposed to frame the issue:
[38] Whether the Vice-Chair failed to consider the additional evidence led by Compass concerning the fifth and sixth I.M.L. factors was a matter of considerable debate in the hearing of the petition. The reasons of the Vice-Chair are not without ambiguity on that issue. For purposes of this judicial review, I am prepared to accept the position of Compass that the Vice-Chair did not consider the evidence. The issue, however, is whether the failure to consider the evidence affected the fairness of the hearing. I am satisfied that it did not.
[39] As observed in Larocque at p. 491, a reviewing court must be satisfied that the failure of the tribunal to consider the evidence has had “such an impact on the fairness of the proceeding” as to lead “unavoidably to the conclusion that there has been a breach of natural justice”.
[61] The judge then set out her reasons for concluding that Compass was not denied a fair hearing even assuming the evidence was overlooked:
[40] In my view, the evidence in question was of marginal relevance. Compass was not denied a fair hearing even if the evidence was overlooked. On the facts of this case, it was open to the Vice-Chair to conclude, as she did, that neither of the two factors provided assistance with respect to the appropriateness issue.
[41] It is not surprising that consideration of the fifth I.M.L. factor (the history of bargaining between the parties) could not assist the Vice-Chair in determining the appropriateness of the bargaining unit proposed by HEU. At the time of the hearing that resulted in B194/2004, HEU held only two certifications with Compass, one at Berwick and another at Renfrew. By the time of the hearing that resulted in the Original Decision, the Renfrew unit had no employees and the Berwick unit had decertified. The additional evidence of Compass concerned a third, recently acquired certification at Beacon Hill, which was apparently advanced by Compass to illustrate that a separate unit at Beacon Hill did not negatively affect labour relations at the Berwick and Renfrew units. Given the state of the latter two units, the fact of a separate unit at Beacon Hill was of little -- if any -- probative value.
[42] In any event, it is questionable that a handful of recently acquired certifications could constitute a “history” of the bargaining relationship between the parties. There is as yet no history between these parties to speak of.
[43] The sixth I.M.L. factor concerns the practice and history of collective bargaining in the industry or sector. Compass relied on the 29 contract specific certifications that had been entered in evidence at the hearing resulting in the B194/2004 decision. In addition, Compass provided a list of certifications and applications for certification that were not yet in existence at the time of the B194/2004 decision. This additional evidence was designed to demonstrate that nothing had changed since the decision in B194/2004; that is, bargaining units granted by the Board or applied for by unions continued to mirror the scope of the contracts between Compass and the contracting entity.
[44] Whether or not the Vice-Chair overlooked the additional evidence, it was tendered for a proposition that was not disputed. It was common ground that these certifications have generally reflected the scope of the contract between companies supplying support services and their clients. The Vice-Chair made that finding in the Original Decision at para. 36: “[A]nd I again note that the industry practice and history appears to be one of a multi-bargaining unit design.”
[45] Moreover, reading the Original Decision as a whole, it is my view that the Vice-Chair concluded the sixth I.M.L. factor could provide little, if any, assistance on the issue of bargaining unit appropriateness in the instant case because the unit applied for by HEU consisted of Compass employees working side by side in the same facilities providing support services to the same patients. The appropriateness of such a bargaining unit had not arisen since the passage of the Act opened the door to the contracting out of support services in the health sector.
[46] As with the fifth I.M.L. factor, it is not apparent how the evidence advanced by Compass concerning the sixth factor could be of any assistance to the Vice-Chair in her determination of the appropriateness of the unit in question. The contracting out of non-clinical support services is a recent phenomenon in the public health care sector. Contractors such as Compass may have some history of providing food, laundry and housekeeping services to clients in other sectors, but until the passage of the Act, they had no presence in facilities operated by the public health authorities.
[47] The issue now facing the Board, in the wake of the Act, is industrial stability in health care facilities in light of the ability of health authorities to contract out the services it provides to its patients. Now, employees of more than one employer, and employees of the same contractor working under different contracts, are working together in the same health care facilities. Evidence of bargaining between private contractors such as Compass and entities in other industries or sectors could be of little assistance in determining the appropriateness of units of Compass employees in the health sector.
[48] The additional evidence advanced by Compass consisted of certifications and certification applications concerning continuing care and acute care facilities post-dating the hearing that resulted in B194/2004. As noted earlier, this evidence was advanced by Compass to establish that the “pattern” continues to be one that mirrors the commercial contracts. None of the certifications or applications involved multiple bargaining units of Compass employees performing support services in the same workplace. In light of the facts in the instant case, that evidence could have been of little assistance.
[49] As the Board has stated on many occasions, the cornerstones of appropriateness are community of interest and industrial stability. Those cornerstones, as they are applied in initial applications for certification and subsequent applications, were described by the Board at p. 187 of the I.M.L. decision:
[A]t the initial stage of certification, the design of the bargaining unit must ensure the viability of collective bargaining. The Board would not put into a single bargaining unit employees whose communities of interest directly conflict; further, no bargaining unit would be created that cuts across a particular classification, where all members are in the same physical location, resulting in half of the employees in that classification in the bargaining unit and the other half out of the bargaining unit. Both these situations would not be conducive to the settlement of collective bargaining disputes.
Industrial stability, however, has different facets, depending upon whether one is at the initial stage of certification or at the second or additional stage of certification. At the initial stage of certification, the concern with industrial stability is with the design of the bargaining unit. The focus is on a single unit – one union, one employer. However, at the second or additional stage of certification the concern is threefold: first, the design of the bargaining unit; second, the proliferation of bargaining units; and third, the relationship not just between the second or additional units and the employer but between the units themselves. As the number of units increases, so does the potential for industrial instability.
[Emphasis in original]
[50] The Board in I.M.L. went on to describe certain factors whose application would assist in testing the presence or absence of community of interest and industrial stability in any certification application. That is the context in which the oft-cited six factors were articulated. As the Board has observed in decisions it has rendered since I.M.L., those factors are not ends in themselves. They must be applied in a pragmatic way bearing in mind the widely varying contexts in which bargaining unit appropriateness falls to be determined.
[51] In the Original Decision, the Vice-Chair observed more than once that unlike other certification applications filed since the passage of the Act, the unit proposed by HEU in this case consisted of employees of the same employer (albeit under two contracts) performing food, cleaning and laundry services -- all non-clinical support services -- in the same facilities. In those circumstances, the fact that bargaining units in other facilities are contract specific was of little assistance. As noted by a panel of the Board in a subsequent decision rendered on facts almost identical to those underlying the Original Decision, to create separate bargaining units of employees in these circumstances would run counter to the Board’s stated preference for large, employer-wide bargaining units (Compass Group Canada (Health Services) Ltd. v. Hospital Employees’ Union and United Steelworkers of America, Local 1-3567, BCLRB No. B6/2006 at para.137, aff’d on reconsideration, BCLRB No. B71/2006).
[62] In my opinion, the chambers judge did not err in law in applying what the Supreme Court of Canada said in Larocque to the facts of the case before her. The judge gave full and cogent reasons for concluding that the additional evidence Compass tendered was of marginal significance in determining the issue of bargaining unit appropriateness and that the Vice-Chair’s assumed failure to take the evidence into account therefore did not result in an unfair hearing.
VII. Conclusion
[63] For the reasons stated, I would dismiss the appeal from the order of the chambers judge dismissing Compass’s petition for judicial review of the Board’s refusal to grant leave to reconsider the decision of the Vice-Chair certifying HEU as the appropriate bargaining unit for Compass employees in the four Vancouver Health Care Facilities.
“The Honourable Madam Justice Rowles”
I agree:
“The Honourable Madam Justice Kirkpatrick”
Reasons for Judgment of the Honourable Mr. Justice Chiasson:
[64] In this case, two decisions of the Board were the subject of an application for judicial review: the Original Decision which granted certification and the Board’s refusal to grant leave for a reconsideration of the Original Decision.
[65] In the court below and at the outset of the hearing of this appeal, the focus was on the Original Decision. In response to questions from the Court, during the hearing the parties discussed the Reconsideration Decision and the reasons given by the Board for it.
[66] In James v. British Columbia (Labour Relations Board), 2007 BCCA 30, a case heard subsequently to this case, I had this to say:
I agree with the disposition of the appeal as proposed by Mr. Justice Donald, but wish to express a concern I have with respect to judicial review proceedings of decisions of the Labour Relations Board.
The legislature has established a complete code to address matters of industrial relations in the Province. Part of that code is a mechanism for the resolution of disputes related, inter alia, to union representation of members. The mechanism includes determinations by the Board at first instance and a process for review by way of a reconsideration with leave of the Board.
The reconsideration process is addressed in s. 141 of the Labour Relations Code, RSBC 1996, c 244. It provides specific criteria for granting leave for a reconsideration and the remedies available to the Board if there were a reconsideration.
In this case, the appellant sought judicial review of a second decision at first instance, which occurred as a result of the Board’s reconsideration of a first decision at first instance.
The appellant applied unsuccessfully for leave for a reconsideration of the second decision.
Although it appears to be the practice in these matters often to seek judicial review of a decision at first instance or of it and a refusal by the Board to grant leave to have the decision reconsidered, considering the scheme of the legislation and the specialized jurisdiction of the Board, I am inclined to the view that the decision that should be the subject of judicial review should be the refusal to grant leave for a reconsideration and not the decision at first instance. [At paras. 20-25.]
[67] I remain of that view, but these issues were not presented to or addressed by the chambers judge. Although they were discussed orally on the hearing of the appeal, they were not dealt with in the factums of the parties. I consider the issues potentially to be of significance to parties, members of the labour bar, the Board and the courts. They merit further analysis and full argument in an appropriate case.
[68] Focusing on the Reconsideration Decision, although the Board’s reasons for refusing leave in this case are sparse they were delivered in conjunction with the Board’s ruling on a related previous original decision. A consideration of both decisions satisfies me that the Board adequately addressed the criteria in s. 141 and I would dismiss this appeal.
[69] Insofar as the judicial review focuses on the Original Decision, I agree with the analysis of Madam Justice Rowles and the chambers judge and also for that reason I would dismiss this appeal.
“The Honourable Mr. Justice Chiasson
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