Counsel:

       Bruce M. Greyell, for the applicant.

I.  NATURE OF APPLICATION

¶ 1      The Applicant applies for leave to apply for reconsideration of BCLRB No. B252/2003 (the "Original Decision"), under Section 141 of the Labour Relations Code, R.S.B.C. 1996 c. 244 (the "Code").

II.  MERITS OF THE LEAVE REQUEST

¶ 2      To obtain leave to apply for reconsideration, an applicant "must demonstrate a good arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration":  Brinco Coal Mining Corporation, BCLRB No. B74/93 (Leave for Reconsideration of BCLRB No. B6/93), 20 CLRBR (2d) 44, 93 CLLC [paragraph] 16,043 ("Brinco"), p. 11. Briefly stated, those grounds are:  (i) the original decision is inconsistent with the principles expressed or implied in the Code (or another Act dealing with labour relations); (ii) a party was denied natural justice; or (iii) new evidence has emerged that is likely to have a material and determinative effect on the original decision.

¶ 3      Having reviewed the application and the Original Decision, we find the Applicant has not demonstrated a "good arguable case" based on the grounds for reconsideration, and leave is therefore denied.

¶ 4      That is all we intend to say concerning the merits of the application for leave.  As this represents a change from the Board's general practice in recent years, this change, and the reasons for it, will be explained below.  In brief, when the Board denies a party leave to apply for reconsideration it will no longer, as a general practice, give reasons addressing the party's grounds for reconsideration on their merits.

       A.   Background:  requirement for leave

¶ 5      Section 141(1) of the Code provides that the Board may grant leave to a party to apply for reconsideration.  The requirement for leave to apply was adopted in 1993, following the recommendations of the Sub-Committee of Special Advisers (the "Sub-Committee") commissioned by the government to advise on labour law reform.  At the time, the Industrial Relations Act (the predecessor of the Code) allowed a party to appeal a decision of the Industrial Relations Council (the predecessor of the Board) to another panel of the Council.

¶ 6      In its report to government entitled "Recommendations for Labour Law Reform", the Sub-Committee explained its rationale for recommending a leave provision:

¶ 7      The Sub-Committee appended to its report a draft Labour Relations Code that included, pursuant to its recommendations, a draft Section 141 with provisions requiring leave to apply for reconsideration.  Those provisions were adopted unamended by the Legislature, and have continued in force to this day.  Section 141 provides as follows:

¶ 8      The effect of subsections (1) and (2) is that certain prerequisites must be satisfied in order to persuade the Board to grant leave, but otherwise it is left to the discretion of the Board.  In Brinco, supra, the Board's first (and so far only) policy decision concerning the leave requirement, the Board determined both the process it would follow and the substantive test it would apply in exercising its discretion.

¶ 9      The substantive test is the one summarized at the beginning of this decision.  To obtain leave, a party "must demonstrate a good arguable case of sufficient merit that it may succeed on one of the established grounds for reconsideration":  Brinco, pp. 11 and 14.  This "requires an applicant to go beyond establishing a prima facie case, by raising a serious question as to the correctness of the original decision":  Ibid, pp. 14-15.  The established grounds for reconsideration are:

¶ 10      This has been the established test of the Board ever since.  Where an application raises a "good arguable case" based on one of the established grounds for reconsideration, leave is granted.  Where it does not, leave is denied.

¶ 11      The process issue in Brinco essentially concerned whether the Board should adopt a two-stage process such as that employed by the courts (i.e., where leave to appeal, and the appeal itself, are argued in separate stages).  The Brinco panel decided against adopting such a process under Section 141, for two reasons.  First, it noted that under Section 141 the basis for granting leave will inevitably be intertwined with the grounds for reconsideration on the merits.  [See Note 1 below]  This is unlike, for example, the threshold question of national importance applied by the Supreme Court of Canada in its leave decisions:  Brinco, p. 5.  Second, labour relations disputes should be decided in a manner that is expeditious and final.  Appeals can be antithetical to that objective.  In that regard, the Brinco panel cited with approval the Board's comments in Corporation of the District of Burnaby, BCLRB No. 25/74, [1974] 1 Can LRBR 128:

   Note 1:  The statutory grounds for leave in Section 141(2)(b) reflect grounds for reconsideration established by the Board in the prior exercise of its discretionary reconsideration power:  see Brinco.

¶ 12      The Brinco panel noted that these concerns remained valid.  It concluded they would only be exacerbated by adopting a two-stage process for leave and reconsideration. Accordingly, it adopted a one-stage process:  a party wishing leave to apply for reconsideration would set out its full submissions on the merits of its reconsideration application. Because reconsideration applications are typically decided without an oral hearing, this process allows a reconsideration panel to consider an applicant's full submissions in assessing whether it has established a "good arguable case" and, if it has, to move on to the merits of the reconsideration application without delay.  (Hence, it is often referred to as an application "for leave and reconsideration".)  The same panel of the Board decides both the leave application and the application for reconsideration on its merits.  Generally speaking, this is the process that has been followed to date.

       B.   The Board's experience with the leave requirement

¶ 13      Brinco did not expressly address the issue of whether reasons were required for denying leave; however, it did say that decisions concerning leave would normally be "quite brief".  A number of decisions in the years immediately following Brinco were in fact quite brief, often saying no more than the three paragraphs at the outset of this decision (see for example, C-Tron Systems Corp., BCLRB No. B81/95; Lake City Casinos Limited, BCLRB No. B295/95; Westbank Indian Band Development Company Limited, BCLRB No. B337/95; and Island Medical Laboratories Ltd., BCLRB No. B252/96).

¶ 14      Over time however, a number of the Board's decisions began to address an applicant's substantive grounds for reconsideration, even where they denied the applicant leave to apply for reconsideration.  While this development may seem odd on its surface, in the circumstances it was quite understandable.  As the Brinco panel noted, the grounds for reconsideration and the grounds for leave to apply are "inevitably intertwined".  The leave threshold is whether the applicant has made out a "good arguable case" on one of the established grounds for reconsideration.  Because of the one-stage Brinco process, the panel deciding leave has the applicant's full application for reconsideration before it. It is natural for the panel to be inclined to explain why, in its view, each of the arguments submitted by the applicant is unmeritorious.  It is difficult to address an argument only partially.  As well, the practice is self-reinforcing:  panels denying leave are likely to give reasons addressing an applicant's grounds for reconsideration where previous panels have done so.

¶ 15      The result however is that in practice, the leave provision became more or less irrelevant.  Decisions denying leave to apply for reconsideration became virtually indistinguishable from decisions granting leave but dismissing the application for reconsideration on its merits.  Each would review and discuss the applicant's arguments and why they were unmeritorious.  At the end of the decision, the unsuccessful applicant would be told whether it had failed to raise a good arguable case, or alternatively, had raised one which ultimately failed on its merits:  in practical terms, a distinction without a difference.

¶ 16      Due to a number of factors, writing reasons for denying leave has become a major and inordinate part of the Board's workload.  The Board's records show that over the past five years, it received approximately six hundred applications for leave and reconsideration.  In approximately four hundred of those, leave was denied.  In other words, approximately two-thirds of the applications for leave and reconsideration were found to raise no "good arguable case".

¶ 17      This large volume of unmeritorious applications for leave and reconsideration is likely to continue. Experience has shown that there are few disagreements with an original decision that cannot, with sufficient effort and ingenuity, be presented as arguments concerning natural justice or inconsistency with principles expressed or implied in the Code.  Thus, while the limited grounds for leave under Section 141 significantly limit the number of applications that are successful, they do not have the same effect on the number that are made.

¶ 18      Applications for leave and reconsideration are also often more labour-intensive than other types of applications.  First, they are typically decided by a panel of three Vice-Chairs.  [See Note 2 below]  Second, reconsideration applications are often lengthy and complex. It is not uncommon for the Board to receive applications for leave and reconsideration of 30 to 60 pages, alleging five or more grounds for reconsideration.  In the Board's experience, these types of applications are particularly likely to raise no "good arguable case":  if there is a genuine denial of natural justice or inconsistency with the Code, it can usually be identified with a brief, focused application.  Many reconsideration applications extensively review the evidence and argument before the original panel, to support arguments that relevant material was not considered, or that the decision departed from principles of the Code.  Applicants tend to expect the reconsideration panel to revisit the issues in dispute and answer their disagreements with how those issues were decided by the original panel.  This is so even if leave to apply for reconsideration is denied.

   Note 2:  "Vice-Chairs" includes the Chair, Associate Chair and Registrar for this purpose.

¶ 19      In our view, the practice we have described above is not how the leave provision was intended to operate.  It in fact gives the leave provision essentially no effect at all. (Certainly, the leave provision was not required to allow the Board to summarily dismiss a reconsideration application:  the Board has that power under Section 133(4) with respect to all applications and complaints under the Code.)  While the reasons this practice has developed are, as we have said, perfectly understandable, in our view it does not give effect to the legislative intent behind the enactment of the provision.

¶ 20      It also causes unnecessary delay.  This is evident on the face of the Board's prior decisions denying leave over the past decade.  For the Board, it is not just a matter of the time it takes to write the reasons:  the Board must frequently divert its attention to more urgent applications that arise with little or no warning, thereby further delaying the leave decision.  The delay means the parties to the reconsideration application must live with continuing uncertainty regarding their dispute.  As well, given the Board's finite adjudicative resources, writing reasons for denying leave also causes delay in its original decisions.  Parties therefore must wait longer for resolution of their labour relations disputes.

¶ 21      In sum, the value of the Board's reconsideration power is that it allows the Board an opportunity to address errors by original panels and to set consistent policy.  The drawback is its potential to engage the Board in addressing pointless re-litigation of matters it has already appropriately decided.  The leave provision, in our view, was an attempt to eliminate the negative aspects of the reconsideration power, while preserving the positive ones. That intention should be given effect.

¶ 22      We have considered the alternative possibility of giving very brief reasons that address only some aspects of the grounds for reconsideration.  As a general practice however, that would be impractical.  The applications for leave and reconsideration received by the Board typically rely on a number of factors, many of which are often interconnected.  Addressing only some of the arguments in an application, or some of the factors relied on, would likely generate more controversy than it would resolve.  In our view, given that the Board has already fully addressed the dispute on its merits, the practice of denying leave to apply for reconsideration without reasons (beyond those given at the outset of this decision) best attains the purpose of the leave provision and the objects of the Code.

       D.   Are reasons legally required for denying leave?

¶ 23      Of course, if the Board is legally required to provide reasons addressing an applicant's grounds for reconsideration when it denies leave, the question of whether it ought to adopt a different practice is moot.

¶ 24      The Supreme Court of Canada addressed the issue of reasons in Baker v. Canada (Minister of Citizenship and Immigration) (1999), 174 D.L.R. (4th) 193 ("Baker").  The appellant Baker, who had Canadian-born dependent children, was ordered deported.  She applied for an exemption from the requirement that an application for permanent residence in Canada be made from outside the country, based on humanitarian and compassionate grounds under Section 114(2) of the Immigration Act, R.S.C., 1985, c. I-2.  She was advised by letter that her application was denied.  No reasons were given.  She applied for judicial review, arguing among other things that the duty of procedural fairness required that she be given written reasons for the decision to deny her application.  Her judicial review application was dismissed, as was her appeal from that decision, and she appealed to the Supreme Court of Canada.

¶ 25      The Court took the opportunity to address the requirement to provide reasons in administrative law generally.  Traditionally, there was no common law requirement to give reasons.  As a result, reasons were generally only required where stipulated by statute.  The Court acknowledged this traditional position, but also observed that the value of reasons had been recently emphasized by a number of courts and commentators.  It noted that the law in Canada and other common law jurisdictions had been developing toward imposing a requirement to provide reasons in certain circumstances, such as where the decision had considerable importance to the individual affected, or was subject to a statutory right of appeal.  L'Heureux-Dubé J., writing for the Court, concluded:

¶ 26      Subsequent lower court decisions have provided some elaboration on Baker.  None, however, have addressed the type of situation at hand:  a statutory provision requiring leave to apply for reconsideration of an earlier decision, for which reasons have already been given.

¶ 27      In our view, the duty of procedural fairness does not require the Board to give reasons for decisions denying leave to apply for reconsideration pursuant to Section 141(1) of the Code.  The most important reason for that conclusion is the nature of the statutory leave provision itself.  The leave provision establishes that reconsideration is not an automatic second step, but one that is optional at the discretion of the Board.  It is clear that it was introduced so that a party could no longer automatically re-engage the Board's adjudicative process, in respect of a dispute it had already decided.  That legislative purpose would be substantially undermined by a requirement to give reasons addressing a party's grounds for reconsideration whenever leave to apply for reconsideration is denied.

¶ 28      The concept of "leave" also supports this view of the legislative intention.  It was likely borrowed from "leave to appeal":  a concept typically associated with appellate courts, particularly the Supreme Court of Canada.  At the time the leave provision was enacted, that Court had (and still has) a well-known practice of denying leave without reasons. The drafters of the legislation can be assumed to have been aware of that practice when adopting similar language for the Code.

¶ 29      Reconsideration by the Board is, of course, very different from an appeal in the courts.  But that difference also supports our interpretation.  Unlike an appeal to an appellate court, reconsideration is done by the same tribunal that decided the matter in the first place. [See Note 3 below] As well, the Board, as a labour relations tribunal, is intended to be more expeditious and informal than the courts.

   Note 3:  As such, an application under Section 141(1) is not a separate "proceeding or matter" under Section 140.  The proceeding before the Board remains the underlying application:  National Automobile, Aerospace and Agriculture Implement Workers Union of Canada (CAW-Canada) v. British Columbia (Labour Relations Board), [1995] B.C.J. No. 1207 (S.C.).

¶ 30      The rationales set out in Baker also provide little support for a requirement to provide reasons for denying leave to apply for reconsideration.  There is no doubt that many of the Board's decisions are important to those affected by them.  However, that criterion in Baker must be read in light of its rationale -- i.e., that "[i]t would be unfair for a person subject to a decision such as this one which is so critical to their future not to be told why the result was reached" (at p. 220).  At the reconsideration stage, applicants have already been given a decision, with full reasons, on the merits of their dispute.  The Board has told them why it reached the result it did.

¶ 31      There is also no statutory right of appeal from a decision denying leave for reconsideration.  To the contrary, the Code stipulates the Board's decisions are not open to question or review on any grounds:  Section 138.

¶ 32      Although the Court in Baker was clear that there remains no general requirement for administrative decision-makers to give reasons, it might be argued that the possibility of judicial review may also serve as a factor militating in favour of giving reasons.  Again, however, in these circumstances the Board has already given reasons for its decision on the merits of the dispute.  That is the decision an applicant would challenge on judicial review.  A decision denying leave simply reflects the Board's view that its original decision is not inconsistent with the principles of natural justice or the Code.  [See Note 4 below]  It is not obliged to revisit the matter and discuss it again.  To the contrary, the Code contemplates that the Board will decide the matter in dispute between the parties, and, if it is satisfied as to certain prerequisites, may then revisit the matter in its discretion:  see Section 141(1)-(2).

   Note 4:  The "new evidence" ground for reconsideration is distinguishable from the others, since it involves matters that have not yet been adjudicated.  As we will note further on, the Board will continue to give reasons concerning that ground (which is raised only rarely).

¶ 33      Though it is rare, an applicant may also wish to challenge the Board's exercise of its discretion to deny leave, separate from any challenge to its decision on the merits.  However, there is no mystery as to the basis on which the Board exercises its discretion.  As we have explained, the Board has followed the Brinco test since it was introduced. (While it is always open to a reconsideration panel, for appropriate reasons, to exercise its discretion on some different basis, it would be required to give reasons for that departure, even under the policy we are enunciating here.) The Board's jurisprudence over the past decade has clearly established the parameters of the test -- for example, the principle that reconsideration is not a vehicle to advance new evidence or arguments which could have been put before the original panel:  Brinco, p. 15.  Thus, while we have articulated our view in terms of the Board being entitled to deny leave "without reasons", it could just as easily be expressed in terms of the reasons provided being adequate (i.e., that the application does not meet the Brinco test).

¶ 34      On balance, a policy of denying leave without reasons is in fact likely to give more practical efficacy to a party's right to judicial review.  In the context of labour relations, delay is an important factor in that regard. Absent clear and strong reasons for not doing so, a party is required to exhaust the reconsideration process before applying for judicial review:  Carriere v. British Columbia (Labour Relations Board), [1995] B.C.J. No. 2927 (S.C.). Where the Board denies leave for reconsideration, the applicant's dispute on judicial review will be with the Board's original decision.  Delaying that opportunity while the Board writes reasons for denying leave to apply for reconsideration means the parties continue to live with uncertainty over the issues in question.  It may also attenuate the practical utility of any remedy that is ultimately awarded.  Reconsideration continues to be a valuable mechanism for the Board, both to fix errors without the necessity for judicial review, and also in appropriate cases to give its labour relations perspective before judicial review is sought.  However, where the Board decides not to exercise that option, it is appropriate for an applicant seeking judicial review to be able to do so without unnecessary delay.

¶ 35      Finally, there is the express legislative emphasis on the expeditious and final resolution of disputes in the Code.  That legislative emphasis includes Section 2(e):

               ...

¶ 36      We have indicated earlier in this decision how a requirement to provide reasons for denying leave, for applications that raise no "good arguable case", conflicts with this objective.  The Board's mandate for expeditious dispute resolution supports the proposition that it is not required to provide reasons for denying leave to apply for reconsideration of a matter it has already decided.

¶ 37      We also note that our view on this subject finds some support in a decision of the British Columbia Supreme Court.  In Bakery, Confectionary and Tobacco Workers' International Union, Local 468 v. British Columbia (Labour Relations Board), [2000] B.C.J. No. 2153, 2000 BCSC 1325, the Board had granted leave and ultimately allowed the reconsideration application, overturning the original decision.  The applicant for judicial review argued that the reconsideration panel erred by failing to follow the requirements of Section 141(2) in granting leave.  The Court rejected this argument, and held:  "There is no practice of the board, nor any good reason why a reconsideration panel should have to give full reasons or provide an analysis, nor a separate hearing for leave to appeal" (at para. 4).  We say this statement provides "some support" for our view because it was made in a different context:  the reconsideration panel had given reasons for overturning the original decision which obviously would have captured its views as to why the reconsideration application raised a "good arguable case".  In that circumstance however, the reconsideration process was engaged:  the Board had decided to exercise its option to grant leave to apply for reconsideration.  In our view, where a reconsideration panel denies leave to apply for reconsideration, having concluded no "good arguable case" has been made, it is not thereby obliged to revisit the merits of the dispute and discuss it again.  The Code does not require the Board to decide everything twice.

¶ 38      For the foregoing reasons, we conclude that the law does not require the Board to provide reasons for denying leave to apply for reconsideration.  Denial of leave to apply for reconsideration under Section 141(1) does not require that a party's arguments for reconsideration be addressed on their merits.

       E.   The Board's policy of denying leave without reasons

¶ 39      The Board will generally no longer provide reasons for denying leave to apply for reconsideration.  It has already begun this practice, albeit on a limited scale: the Board has issued a number of such decisions over the past several months.  The practice will now be applied more generally.

¶ 40      An exception to this practice will be the "new evidence" ground for reconsideration.  The Board receives very few reconsideration applications on this ground.  It is different from the other grounds in that it is alleged that something genuinely new has been introduced, which was not considered by the original panel.  Where a reconsideration panel denies leave with respect to this ground, brief reasons are appropriate, at least to the extent of identifying whether the application is rejected because the evidence could have been obtained earlier through due diligence, or because it is not likely to have a material and determinative effect on the original decision.  We emphasize that these reasons may be brief.

¶ 41      It is of course open to individual panels to give reasons for denying leave in other types of cases if they wish to do so.  There may also be cases where a panel decides reasons are necessary, such as natural justice arguments analogous to the "new evidence" ground, in that the matters relied upon have genuinely not been considered by the original panel.

¶ 42      We should note that the present application for leave was not chosen for this exposition because of any particular feature of the application or any perceived lack of importance in its subject matter.  The policy is intended to apply to important matters (where they were appropriately decided by the original panel), as well as those that are less so.  Avoiding unnecessary delay is an important objective in both cases.  Further, in both cases, the Board's efforts are best focused on providing timely and just decisions resolving parties' labour relations disputes, rather than discussing challenges to those decisions that raise no good arguable case.

IV.  SUMMARY AND CONCLUSION

¶ 43      While it remains open to individual panels to give reasons for denying leave to apply for reconsideration, as a general practice, the Board will not provide reasons for denying leave.  In our view, this practice gives effect to the legislative intention behind the leave provision in Section 141, and best advances the objectives of the Code.

M. FLEMING, ASSOCIATE CHAIR
M.J. BROWN, VICE-CHAIR AND ACTING REGISTRAR
K. SAUNDERS, VICE-CHAIR

QL Update:  20031120
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