WorkSafe BC's March/April 2008 magazine came across my desk to-day and the headline at page 17 blares "Crown prosecutes logging company and owner".
My first thought, of course, was that British Columbia had followed the lead of Quebec and laid its first charge under the Criminal Code for negligence causing death of a worker.
The story is about how, following an investigation into the death of a skidder operator employed by Aaron Goenhuysen Mechanical Ltd.(AGM), WorkSafe BC referred the matter to Crown counsel to pursue prosecution.
WorkSafe had taken this unusual step because it found that "this was an egregious departure from the standard of care required by employers."
The conduct was so bad that it "warranted the stigma of prosecution."
Families of workers killed on the job and unions who advocate for safe workplaces know too well how unusual prosecution is in such cases. The wording of WorkSafe makes a direct reference to negligence (a breach of the standard of care is one element of negligence). It was open to the provincial Attorney-General's office(acting on behalf of the Crown) to choose to prosecute the company and its owner under the Criminal Code. That's what the Quebec Attorney-General did late last year. (see my March 21, 2008 posting on R. v. Transpave).
But British Columbia's prosecutors instead chose the lesser "stigma" of breach of the Occupational Health and Safety Regulation. The company and its owner/supervisor plead guilty before a provincial court judge who fined them $60,000 and $20,000 respectively.
In Quebec, the Transpave case involved an equally "egregious a departure from the standard of care required by employers". That death attracted the stigma of criminal prosecution with its attendant criminal record and criminal fine
($110,000.00 in total).
Parliament added the "corporate murder" provision to the Criminal Code to address exactly these kinds of cases. Why is the Criminal Code not being used in British Columbia when workers are killed on the job due to the employer's negligence? And why was it not used in this case?
Check out page 17 of the March/April 2008 WorkSafe magazine at the following url:
http://www.worksafebc.com/publications/newsletters/worksafe_magazine/default.asp
Friday, April 18, 2008
Saturday, April 5, 2008
Is this the final chapter in the 2004 Telus labour dispute?
The latest in a long list of judgments dealing with contempt proceedings from the bitter lockout at Telus was issued on April 3, 2008, three years after the dispute ended. The BC Court of Appeal struck down a part of the order that the TWU members and supporters who had been found in contempt of a picketing injunction must pay the court costs awarded against them personally.
Originally 71 persons were arrested for breach of the order of Mr. Justice Burnyeat of the BC Supreme Court that restricted picketing. By the time things worked themselves through the justice system, eleven persons were found guilty of contempt and in March 2006 the sentences were handed down. These ranged from fines of $300 to $1000 payable to designated charities and 50 hours of community service. One person was given a one month suspended sentence, a fine of $1500 and ordered to provide a written apology. Costs were ordered against each of the eleven individuals. In response to a question from the judge, the union stated that it intended to assist with payment of the costs, but not the fines. So, the judge included in his order a stipulation that the fines and costs could not be paid by anyone other than the individuals themselves.
The individuals appealed the order for costs.
The Court of Appeal ruled that the stipulation that the indivuals themselves had to pay the costs was not appropriate in the circumstances.
The appeal court stated that there was no suggestion that the TWU had encouraged the individuals to breach the injunction and it disagreed with the judge's view that the union's payment of the court costs might be interepreted as condonation of the misconduct.
In his reasons the trial judge had also opined that the majority of union members might not approve of using union funds to pay the court ordered costs. This consideration, said the court of appeal, was not appropriate for a court and it was best left to the union members and their executive.
One of the interesting, and troubling, features of the legal saga around this strike is the extent of judicial activism in the prosecution of the contempt by the BC Supreme Court. The Court of Appeal makes reference to it at paragraph 33
"Here, the trial judge was advised by counsel that these parties had not been engaged in a labour dispute of this magnitude for over 25 years. The parties settled their dispute, and it was only at the behest of the trial judge that Telus pursued an order for costs. It did not seek an order in the terms of paras. 16 and 17. In our view, there is nothing in these facts to give rise to a real concern that members of the union would be encouraged to engage in further contumacious conduct simply because the TWU expressed a willingness to pay the costs of the appellants in this case." (emphasis added).
I regularly advise union locals that it is good practice, where there have been injunctions and there are actual or potential contempt proceedings, to seek to include in the back to work agreement a provision for a joint submission in the court proceedings. Specialized labour relations tribunals such as the LRB and labour arbitrators understand that, at the end of a labour dispute, the main objective of the parties is to get the business up and running by getting everyone back to work and start to rebuild the damaged labour/management relationship. Consequential court proceedings that drag on for years and that impose on the parties remnants of discord are not very helpful to this objective.
The case may be found at the following link:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/01/2008BCCA0144.htm
Originally 71 persons were arrested for breach of the order of Mr. Justice Burnyeat of the BC Supreme Court that restricted picketing. By the time things worked themselves through the justice system, eleven persons were found guilty of contempt and in March 2006 the sentences were handed down. These ranged from fines of $300 to $1000 payable to designated charities and 50 hours of community service. One person was given a one month suspended sentence, a fine of $1500 and ordered to provide a written apology. Costs were ordered against each of the eleven individuals. In response to a question from the judge, the union stated that it intended to assist with payment of the costs, but not the fines. So, the judge included in his order a stipulation that the fines and costs could not be paid by anyone other than the individuals themselves.
The individuals appealed the order for costs.
The Court of Appeal ruled that the stipulation that the indivuals themselves had to pay the costs was not appropriate in the circumstances.
The appeal court stated that there was no suggestion that the TWU had encouraged the individuals to breach the injunction and it disagreed with the judge's view that the union's payment of the court costs might be interepreted as condonation of the misconduct.
In his reasons the trial judge had also opined that the majority of union members might not approve of using union funds to pay the court ordered costs. This consideration, said the court of appeal, was not appropriate for a court and it was best left to the union members and their executive.
One of the interesting, and troubling, features of the legal saga around this strike is the extent of judicial activism in the prosecution of the contempt by the BC Supreme Court. The Court of Appeal makes reference to it at paragraph 33
"Here, the trial judge was advised by counsel that these parties had not been engaged in a labour dispute of this magnitude for over 25 years. The parties settled their dispute, and it was only at the behest of the trial judge that Telus pursued an order for costs. It did not seek an order in the terms of paras. 16 and 17. In our view, there is nothing in these facts to give rise to a real concern that members of the union would be encouraged to engage in further contumacious conduct simply because the TWU expressed a willingness to pay the costs of the appellants in this case." (emphasis added).
I regularly advise union locals that it is good practice, where there have been injunctions and there are actual or potential contempt proceedings, to seek to include in the back to work agreement a provision for a joint submission in the court proceedings. Specialized labour relations tribunals such as the LRB and labour arbitrators understand that, at the end of a labour dispute, the main objective of the parties is to get the business up and running by getting everyone back to work and start to rebuild the damaged labour/management relationship. Consequential court proceedings that drag on for years and that impose on the parties remnants of discord are not very helpful to this objective.
The case may be found at the following link:
http://www.courts.gov.bc.ca/Jdb-txt/CA/08/01/2008BCCA0144.htm
Wednesday, April 2, 2008
Court upholds permanent last chance agreement
In a decision issued on March 26, 2008 the Honourable Madam Justice Lynn Smith upheld the award of Arbitrator Blasina in CUPW -and- Canada Post to "suspend" an employee's termination so long as he complied with the terms of a last chance agreement that was to last during the rest of the grievor's employment.
The union sought judicial review of the decision arguing that making the last chance agreement permanent was contrary to the Canada Human Rights Code because it subjected the grievor to higher standard of conduct than other employees on the basis of his disability. In addition the union challenged the power of the arbitrator to take into account expert evidence he had heard in other cases about the nature of addiction.
The judge ruled against the union on both grounds. The most interesting ground, for the purpose of labour relations, is the human rights discussion, brief as it is, in the judgment. The judge found that the decision of the arbitrator was "intelligible and fell within the range of possible, acceptable outcomes which are defensible in this case".
The factual underpinnings of this conclusion are set out in paragraph 62:
"The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer. "
The case is also important as it contains a good discussion of the impact of the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that case, the SCC eliminated the "patently unreasonable" test that had plagued legal minds for eons. Madame Justice Smith discusses how in the remaining "reasonableness test" there are gradations of deference and quotes from the relevant passage from the SCC decision:
"Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
The decision may be found at
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/03/2008BCSC0338.htm
The union sought judicial review of the decision arguing that making the last chance agreement permanent was contrary to the Canada Human Rights Code because it subjected the grievor to higher standard of conduct than other employees on the basis of his disability. In addition the union challenged the power of the arbitrator to take into account expert evidence he had heard in other cases about the nature of addiction.
The judge ruled against the union on both grounds. The most interesting ground, for the purpose of labour relations, is the human rights discussion, brief as it is, in the judgment. The judge found that the decision of the arbitrator was "intelligible and fell within the range of possible, acceptable outcomes which are defensible in this case".
The factual underpinnings of this conclusion are set out in paragraph 62:
"The Grievor had, over a five-year period, received accommodation for his disability and assistance in overcoming it. He had told the employer that he continued to have a problem with his addictions, and that he did better when he was subject to terms and conditions. The reasoning process of the arbitrator was sufficiently clear. There was evidence before him (without reference to the evidence from other hearings that he mentioned) upon which he could reasonably conclude that the remedy he fashioned amounted to reasonable accommodation as that concept is defined in human rights jurisprudence. There was evidence before the arbitrator upon which he could reasonably conclude that conditions of shorter duration would be ineffective and would impose undue hardship on the employer. "
The case is also important as it contains a good discussion of the impact of the recent Supreme Court of Canada decision in Dunsmuir v. New Brunswick, 2008 SCC 9. In that case, the SCC eliminated the "patently unreasonable" test that had plagued legal minds for eons. Madame Justice Smith discusses how in the remaining "reasonableness test" there are gradations of deference and quotes from the relevant passage from the SCC decision:
"Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law."
The decision may be found at
http://www.courts.gov.bc.ca/Jdb-txt/SC/08/03/2008BCSC0338.htm
Subscribe to:
Posts (Atom)
