Administrative Law: Jurisdiction; Dismissal of Conservation OfficerCasavant v. British Columbia (Labour Relations Board), 2020 BCCA 159 (CanLII)
Keywords: Jurisdiction; Conservation Officer; Bear Cubs
The Ministry of Environment receives a complaint about a female bear and two cubs coming onto private property, eating garbage and food from an outdoor freezer. The Appellant, who works as a Conservation Officer, is ordered to euthanize the bears. The reason being they have “become habituated to human food.”
The Appellant euthanizes the sow but refuses to euthanize the two cubs after the complainant advises only the sow was eating garbage. Instead of complying with the kill order, he takes the cubs to a veterinarian for assessment and they are eventually released to the wild. The Appellant’s understanding of Ministry policies is that conservation officers are obliged to conduct an independent assessment of the situation and to decline unlawful orders to discharge firearms. (See para. 11).
For the Ministry, trust is broken – “We could never trust that if you disagreed with the direction given by a supervisor, that you would follow the direction given or follow the proper procedures”. (See para. 7). Following an investigation, the Ministry transfers the Appellant to a position with the Ministry of Forests, Land, Natural Resource Operations and Rural Development. Same work location, and same pay but without the designation of Special Provincial Constable; “[l]oss of conservation officer status is defined in the Ministry of Environment Conservation Officer Service Code of Professional Conduct as a dismissal.” (See para. 6).
The Union files a grievance on the Appellant’s behalf, but enters into a settlement agreement. The Appellant then retains his own lawyer, obtaining reports which reveal a number of concerns in the process – namely, the Appellant was not provided information the employer had relied upon to remove him from his position, contrary to the Collective Agreement.
The Appellant’s applications to an Arbitrator and to the Labour Relations Board are all dismissed. In a further application for judicial review, the Appellant repeats his “cornucopia of arguments”. (See para. 16). This application is also dismissed. However, the Court of Appeal allows the Appellant’s appeal in part and holds the proceedings before the Board a nullity.
First of all, the Court of Appeal cleared up a question as to the applicable standard of review. Citing British Columbia Teachers’ Federation v. British Columbia Public School Employers’ Association (No. 2), 2016 BCCA 273 at paras. 46 and 52–54, the Court of Appeal affirmed that the common law definition of patent unreasonableness applies to decisions of the Labour Board. (See para. 23).
An interesting question arose on the issue of jurisdiction. Since the Appellant was a Conservation Officer, should his conduct have been addressed by the specific process mandated by the Police Act? For the Court of Appeal, complaints against Conservation Officers “acting in their capacity as a constable are subject to a different process mandated by the Police Act Special Provincial Constable Complaint Procedure Regulation”. (See para. 31).
Quoting from Dunsmuir v. New Brunswick, 2008 SCC 9, the Court noted that this jurisdictional question was a “true question of jurisdiction or vires”, but quoted the Supreme Court of Canada in noting the concept of jurisdiction in administrative law is inherently “slippery”. (See para. 38). The Court of Appeal cited a number of decisions in which an Arbitration Board had determined it lacked jurisdiction to deal with police officer misconduct because the matter is governed by the Police Act. (See paras. 42-50). Following this review of authorities, the Court of Appeal provided a significant legal determination:
Although the cases above involve municipal police officers and various provincial statutes, they stand for the principle that a labour board does not have jurisdiction to deal with a police disciplinary matter governed by a distinct process. (See para. 51).
The Court of Appeal concluded that the jurisdiction question should not be remitted to the Board; that the “inevitable answer” is that the Board and Arbitrator below lacked jurisdiction to address the Appellant’s dismissal under the Collective agreement. (See para. 59). For the Court, the Appellant’s dismissal should have been addressed under the Police Act. As to the appropriate outcome, however, the Court of Appeal left that to the Parties to resolve:
As McLachlin J.A. noted in Carpenter No. 2, the court must do its best with the tangled knot created by the parties in adopting a flawed procedure. In my view the best that can be done in these circumstances is to declare that the proceedings before the arbitrator and Board were a nullity, to confirm that Mr. Casavant’s dismissal should have been addressed under the Police Act, Special Provincial Constable Complaint Procedure Regulation, and to leave the parties to sort out the consequences of those declarations, if any, on the settlement agreement. (See para. 61).
The Appellant appearing in person: Bryce Casavant
Counsel for the Respondent Labour Relations Board of B.C.: Jennifer O’Rourke (British Columbia Labour Relations Board, Vancouver)
Counsel for the Respondent B.C. Public Service Agency: Kaitlyn Chewka (Lovett Westmacott, Victoria)
Counsel for the Respondent B.C. Government and Service Employees’ Union: Jitesh Mistry & M. Lin (Articled Student) (British Columbia Government & Service Employees Union, Burnaby)