COURT OF APPEAL FOR BRITISH COLUMBIA
Citation:
Atco Lumber Ltd. v. Leech,
2007 BCCA 238
Date: （略）
Docket: CA034015
Between:
Atco Lumber Ltd.
Appellant
(Plaintiff)
And
Keith Leech, Dwayne Leskewitch, Mike Bryce,
Tom Getzie, Wade Fisher, Vern McGregor,
Dave Tones and Darrell Wong
Respondents
(Defendants)
Before:
The Honourable Chief Justice Finch
The Honourable Mr. Justice Donald
The Honourable Mr. Justice Smith
Oral Reasons for Judgment
J. J. McIntyre
Counsel for the Appellant
C. Ferris
Counsel for the Respondents
Place and Date of Hearing:
Vancouver, British Columbia
19 April 2007
Place and Date of Judgment:
Vancouver, British Columbia
April 20, 2007
[1] DONALD, J.A.: This appeal is taken from an order dismissing the action as having no triable issue under Rule 18(6) of the Rules of Court.
[2] The reasons for judgment are cited as 52 C.C.P.B. 131, 24 E.T.R. (3d) 17, 2006 BCSC 524.
[3] The appellant is a lumber manufacturer which contributes to a long term disability plan (Plan) for the benefit of its employees covered by a collective agreement between the appellant's employers' organization and the United Steelworkers of America, formerly I.W.A. Canada, (Union).
[4] The respondents are trustees of the Plan.
[5] The appellant brought this action to enforce the duty of the trustees to administer the Plan properly. Paragraph 12 of the statement of claim alleges the following breaches of the duty:
12. Atco says as the fact is that as far as the Plaintiff is aware, starting in June, 2002 the Trustees breached their duties referred to above.
Particulars of breaches
a. terminating the contract of an independent third party adjudicator of claims;
b. setting up an "in-house" adjudicator of claims known as the Forest Industry Disability Adjudication Service ("FIDAS") with an inherent bias to accepting claims by union members;
c. failing to establish any or any adequate procedures to weed out fraudulent and dubious claims by union members;
d. failing to establish guidelines or any adequate guidelines for the hire by FIDAS of adjudicators;
e. in the absence of an independent third party adjudicator of claims, failing to establish processes for the disclosure to Participating Employers of information relating to the acceptance of specific claims;
f. in the absence of an independent third party adjudicator of claims, failing to provide for procedures to allow Participating Employers to challenge the adequacy or completeness of information leading to the acceptance of specific claims, including rights of appeal.
[6] The judge found that:
(1) the trustees owed no such duty to the appellant under the trust agreement;
(2) there was no basis in contract for the claim; and
(3) in the circumstances, which were not in dispute, the appellant failed to make out a fiduciary duty owed by the trustees to the appellant.
[7] The rationale for the decision was, briefly:
(1) that on well-established trust principles, a settler (assuming the appellant is akin to a settler as a "Participating Employer" under the Plan) cannot intervene in the administration of a trust unless the power to do so was expressly reserved in the trust instrument and no such reservation exists in this case;
(2) as the trust was created and is funded through collective bargaining arrangements between the employers' organizations and the Union, the appellant has no privity of contract and cannot enforce obligations arising from those arrangements; and
(3) it cannot be said that there arises in the relationship between the appellant and the trustees any vulnerability, one of the three essential features of a fiduciary duty, such as that concept was understood by the authorities: Frame v. Smith, [1987] 2 S.C.R. 99, because the appellant has avenues of redress through its bargaining agent if the trustees fail to administer the Plan appropriately.
[8] The appellant argues that since the decision under appeal was rendered, the legal landscape has changed as a result of the decision by the Supreme Court of Canada in Buschau v. Rogers Communications Inc., [2006] 1 S.C.R. 973, 2006 SCC 28. Referring to paragraphs 27 through 32 of that decision, the appellant says that it is now open to a party in the position of an employer with an interest in maintaining the integrity of a trust plan to assert a right to intervene in the administration of the trust, without an express reservation in the plan. This, in the appellant's submission, supports an arguable point of sufficient merit and accordingly the summary dismissal under Rule 18(6) ought to be set aside.
[9] As an alternative position, the respondents asked the judge to find that only the Labour Relations Board has the jurisdiction to deal with this dispute. The judge found it unnecessary to consider this alternate point. I would dismiss the appeal on the jurisdictional ground advanced by the respondents. I prefer not to express any opinion as to the effect of Buschau on the issues in this case.
[10] In my judgment, the subject matter of the dispute and the appropriate remedy for the appellant's complaints lie within the collective bargaining regime governed by the Labour Relations Code, R.S.B.C. 1996, c. 244.
[11] The Plan was created by collective bargaining. It is funded by contributions set by the collective agreements as negotiated from time to time; the employee and the employer each contribute an equal amount per hour worked. The employers' organizations (there are three: Forest Industrial Relations Limited, for the Coastal Area; Interior Forest Labour Relations Association, for the Southern Interior; and North Cariboo Forest Labour Relations Association, for the Northern Interior) and the Union appoint an equal number of trustees to run the Plan. The day-to-day administration of the Plan is conducted by an internal agency created by the parties to the collective agreements.
[12] The essence of the appellant's complaint is that it is not getting fair value for its contributions because of the alleged maladministration of the Plan. On the statutory scheme, this must be taken up with the appellant's bargaining agent, the Interior Forest Labour Relations Association. In Bisaillon v. Concordia University, [2006] 1 S.C.R. 666, 2006 SCC 19, the court found that a dispute concerning a pension under a collective agreement came within the exclusive jurisdiction of a grievance arbitrator pursuant to the Quebec Labour Code, R.S.Q., c. C-27. For the majority, LeBel J. wrote at paras. 30-31:
[30] I will begin by reviewing the subject-matter aspect of the jurisdiction of grievance arbitrators. The Labour Code gives the grievance arbitrator exclusive jurisdiction over "any disagreement respecting the interpretation or application of a collective agreement" (ss. 1(f) and 100.1 L.C.). To determine whether a dispute arises out of a collective agreement, it is necessary to follow the analytical approach adopted by this Court in Weber [v. Ontario Hydro, [1995] 2 S.C.R. 929]. As McLachlin J. explained, "The question in each case is whether the dispute, in its essential character, arises from the interpretation, application, administration or violation of the collective agreement" (Weber, at para. 52).
[31] The first stage of this approach consists in identifying the essential character of the dispute. On this point, the Court has stressed that what must be done is not limited to determining the legal nature of the dispute. On the contrary, the analysis must also take into account all the facts surrounding the dispute between the parties: Regina Police Assn. Inc. v. Regina (City) Board of Police Commissioners, [2000] 1 S.C.R. 360, 2000 SCC 14, at paras. 25 and 29.
Here, the facts necessary to determine jurisdiction are undisputed.
[13] The Interior Forest Labour Relations Association has the obligation to deal fairly with the appellant's grievance under the duty of fair representation provided in the Labour Relations Code:
Duty of fair representation
12 ....
(3) An employers' organization must not act in a manner that is arbitrary, discriminatory or in bad faith in representing any of the employers in the group appropriate for collective bargaining.
[14] Since the Plan is under the control of joint trustees, it lies in the power of management to effect changes in the administration of the Plan if persuaded such changes are necessary.
[15] If the appellant is dissatisfied with the employers' organization's handling of the grievance, it can file a complaint with the Labour Relations Board which is authorized under s. 13(2) of the Labour Relations Code to determine whether the organization failed in its duty and to provide a remedy. The relevant provisions are:
Procedure for fair representation complaint
13 ....
(2) If the board is satisfied that the trade union, council of trade unions or employers' organization contravened section 12, the board may make an order or direction referred to in section 14 (4) (a), (b) or (d).
* * *
Inquiry into unfair labour practice
14 ....
(4) If, on inquiry, the board is satisfied that any person is doing, or has done, an act prohibited by section 5, 6, 7, 9, 10, 11 or 12, it may
(a) make an order directing the person to cease doing the act,
(b) in the same or a subsequent order, direct any person to rectify the act, ...
[16] The Code assigns exclusive jurisdiction to the Labour Relations Board over any matter that may be the subject of a complaint under the Code. The exclusivity is protected by a strong privative clause:
Jurisdiction of board
136 (1) Except as provided in this Code, the board has and must exercise exclusive jurisdiction to hear and determine an application or complaint under this Code and to make an order permitted to be made.
* * *
Jurisdiction of court
137 (1) Except as provided in this section, a court does not have and must not exercise any jurisdiction in respect of a matter that is, or may be, the subject of a complaint under section 133 or a matter referred to in section 136, and, without limitation, a court must not make an order enjoining or prohibiting an act or thing in respect of them.
* * *
Finality of decisions and orders
138 A decision or order of the board under this Code, a collective agreement or the regulations on a matter in respect of which the board has jurisdiction is final and conclusive and is not open to question or review in a court on any grounds.
Jurisdiction of board to decide certain questions
139 The board has exclusive jurisdiction to decide a question arising under this Code and on application by any person or on its own motion may decide for all purposes of this Code any question, including, without limitation, any question as to whether
* * *
(r) a trade union, council of trade unions or employers' organization is fulfilling a duty of fair representation, ...
[17] I would dismiss the appeal on the ground that the Supreme Court has no jurisdiction to entertain the action.
[18] FINCH, C.J.B.C.: I agree.
[19] SMITH, J.A.: I agree.
[20] FINCH, C.J.B.C.: The appeal is dismissed.
“The Honourable Mr. Justice Donald”
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