With the next provincial election in British Columbia not being held until Tuesday, May 14, 2013, the Provincial Government has sought the input and recommendations of the BC Law Institute on the subject of workplace dispute resolution. The term “super‐tribunal” has been used to describe a radically different model proposed for the adjudication of disputes that arise in the workplace. Under one proposal, a single tribunal would be responsible for adjudicating all disputes under the B.C. Labour Relation Code, Employment Standards Act and Human Rights Code (the “Legislation”). At present, disputes that arise under the Legislation are adjudicated by separate and distinct Tribunals that were each created in order to administer a separate piece of legislation. The Employment Standards Tribunal, the BC Human Rights Tribunal and the B.C. Labour Relations Board (the “B.C. Workplace Tribunals”) each have separate and distinct jurisdiction granted to them pursuant to their enacting legislation.
In 2002, the Provincial Government established the Administrative Justice Reform Project (the “Project”) which led to considerable reform of the legislative framework governing administrative tribunals in the Province of British Columbia. It was recognized that legislation was needed to create a framework in which administrative tribunals would operate. As a result of the Project, the Administrative Tribunals Act [SBC 2004 Chapter 45] was introduced on May 20, 2004 dealing with a range of matters relating to the operation of administrative tribunals, including the appointments of members, terms in office and appeals of decisions of the tribunals.
The introduction of administrative tribunals in Canada was intended to provide for the administration of justice in certain areas that would be informal, cost effective and, most importantly, accessible to individuals who are not represented by legal counsel. The proliferation of administrative tribunals was, in part, recognition that the Courts were not an appropriate place to resolve disputes in certain areas, including the labour and employment area. As a result, a wide range of tribunals exist in British Columbia and Canada, generally, that are responsible for administering legislation that is important to the proper functioning of our society, including labour, employment and human rights legislation.
The B.C. Workplace Tribunals have separate and distinct rules, procedures and forms to be utilized by those involved in disputes under the Legislation, and websites where the public has access to the decisions of the Tribunals and other information. Considerable information is available to the public through the websites to explain the nature of each piece of legislation, and how it is administered and interpreted.
Concern has been expressed that the procedural rules governing proceedings under the Legislation are complex and add a level of formality that is inconsistent with the goal of accessibility. Although the adjudication process is informal in the sense that hearings conducted by the B.C. Workplace Tribunals occur in an informal setting, litigants are required to deal with complex evidentiary and legal issues. The decisions rendered by the Tribunals are often lengthy in addressing the evidence presented by the parties, in addition to the extensive jurisprudence relevant to the legal issues raised. The decisions of the B.C. Workplace Tribunals are subject to judicial review.
Since the Legislation and the B.C. Workplace Tribunals deal with different substantive legal rights and remedies, it is not uncommon for a litigant to proceed with more than one complaint arising from the employment relationship and one dispute. Where a complainant proceeds with more than one complaint, there is a significant risk that the Tribunals will make inconsistent findings of fact and that additional procedural issues will be raised that may defeat the intended goals of efficient, expedient and inexpensive adjudication.
The extensive litigation that has occurred in Canada in the past 20 years regarding jurisdictional issues is evidence that the current patchwork of administrative tribunals may not be the most efficient means of administering justice in this area. An example that illustrates the problem of overlapping jurisdiction is evident when a bargaining unit employee files a complaint with the B.C. Human Rights Tribunal alleging discrimination against the employer. Although the bargaining unit employee will have rights pursuant to the collective agreement and the dispute resolution mechanism under that agreement, a bargaining unit employee may decide to proceed directly to the Human Rights Tribunal with a complaint. In that instance, the employer is required to deal with the complainant directly, while at the same time, the employer is required to deal with the trade union acting on behalf of all bargaining unit employees. The law is settled that labour arbitrators have jurisdiction to address not only labour relations, but also human rights issues that arise under a collective agreement. The Labour Relations Code contemplates that the lawful representative of the bargaining unit employee is the trade union. It is the union that has the right to file a grievance on behalf of the employee. An employer in this example is faced with not only having to defend the human rights complaint, but also a possible grievance under the collective agreement. In this way, the employer is required to deal with a legal claim in the proceeding that does not contemplate the involvement of the trade union representing the bargaining unit employee. Given the complexity of the legislation and lack of clarity in the law with respect to the limits on jurisdiction, employers are vulnerable to the process being misused, and multiple legal proceedings being initiated that all relate to the same employment and one dispute. To compound the problem, a litigant may choose to initiate legal proceedings in the Courts in addition to filing complaints and initiating separate proceedings under the Legislation.
The BC Human Rights Coalition has voiced its opposition to the proposed super‐tribunal idea but has suggested changes to the current rules in order to address some of the areas of concern identified. The BC Business Council has considered the proposal but there is no consensus in the business community or this subject at this time. The discussion of law reform in this area is at an early stage. The review of this subject by the BC Law Institute will be thorough and will likely ignite more discussion and debate by stakeholders.
The B.C. Workplace Tribunals were created at a time when our economy and society were fundamentally different. There have been many significant changes in the past 20 years that would justify a careful review of the existing legislative framework for workplace dispute resolution to ensure that it meets the needs of our society. Given the strong case that can be may made that some efficiency may be achieved in having one adjudicative body determine workplace disputes, changes may occur in British Columbia in this area. British Columbia has not been reluctant in the past to take innovative approaches in connection with the resolution of workplace disputes. A new approach to the administration of justice in this area and a different legislative framework may be on the horizon in British Columbia.