JUMP TO HOME PAGE

ANATOMY OF A SWEETHEART DEAL

employeescasecanada.com

This excellent legal tome written by Ottawa legal counsel, Paul Conlin, in 1999 will be of interest to everyone with a legal bent in the Labour movement.

 

CALLOW ARGUMENT

FIRST ASPECT OF THE COMPLAINT - THE PROPOSED ALTERNATIVE

SETTLEMENT STRATEGY

     The nub of part one of the Petitioner's complaint before the British Columbia Labour Relation Board ("the Board") was that the Association failed to provide a fully considered response to his request that the Association review, deliberate upon, and assess the merits of his proposed alternative settlement strategy. The factual assertions underlying this part of his complaint are set out in paragraphs 16 through 21 of the Petitioner's outline. The assertions that are particularly germane are as follows:

(a) The Association  through Mr. Yorke (see letter of February 24, 1997) promised to "carefully consider )Mr. Callow's) views concerning settlement";

(b) The Association had not previously (i.e. before the Petitioner's request of July 14, 1997) considered the alternative strategy;

(c) Mr. Laughton provided a "preliminary view" of the strategy only. His preliminary response was given without knowledge of any legal support for the strategy, and with a promise to "revisit" the issue on receipt of such authority;

(d) The Association (Mr. Laughton) never indicated one way or the other, after being advised of the legal foundation of the strategy might have merit despite three written requests from the Petitioner's counsel.

     While the Board accepted (with hesitation) that the Association had an obligation to respond to the Petitioner's request "in a manner that accorded with its duty of fair representation", it did not accept the Petitioner's factual assertions underlying the complaint as it was required to do in making a S. 13 determination. Rather the Board found "there is no evidence from which it could be inferred that Laughton did not review, or failed to be persuaded by, the Philip (SIC) authority either arbitrarily or for reasons attributable to bad faith..." There clearly was evidence (or factual assertions) as indicated in (a)(b)(c) & (d) above from which it could be inferred that no full consideration of the strategy in light of the legal authorities ever occurred, and that, if it did, the results were not communicated to the Petitioner. In either case arbitrariness or bad faith must be implied to Mr. Laughton. The only evidence that Mr. Laughton did review the strategy was his initial response (Laughton letter of October 2, 1997) given with an admitted lack of knowledge of the legal basis for the strategy. It is patently unreasonable to interpret that response as satisfying the Association's duty to respond (a duty which the Board found to exist) without arbitrariness or bad faith.

     Having thus denied the Petitioner's factual underpinnings and having determined, without jurisdiction, that the Association did provide a meaningful response, the Board went on to conclude that the "response" was reasonable.

     In doing so, because there was no Association response to the legal foundational elaboration of the strategy set out in Conlin's letter of October 2, 1997, the Board had to review Mr. Laughton's "preliminary view" following his cursory introduction to the strategy (see Laughton letter of September 22, 1997). Here also the Board, misinterpreted the Petitioner's factual position as being the success of the alternative strategy rested on either a judicial/arbitral finding of liability, or an admission of liability. The Board's reasoning appears to be that since the Association had a right not to pursue arbitration (which the Board concluded was the only means of determining liability) and since the School Board was not likely to admit liability, the Association's refusal to pursue the alternative settlement strategy was reasonable.

     The Labour Board based its finding that the Association had a right not to pursue arbitration on its own determination of the issues in the Petitioner's first complaint. There the Board concluded that the Petitioner's complaint about the failure of the School Board to pursue arbitration to gain the Petitioner's reinstatement was untimely. No decision has been made by any judicial authority on the merits of the first complaint. The Board's decision on the first complaint is under judicial review but no date for a hearing has yet been set. The Board's conclusion that its decision has been confirmed by the Supreme Court and Court of Appeal is therefore erroneous, both in relation to the procedural (timeliness) issue,and in relation to the merits of whether the Association had a right not to pursue arbitration.

     If the Board, when referring to Court confirmation of the Association's right not to pursue arbitration, was alluding to the decisions of the British Columbia Supreme Court and Court of Appeal in proceedings initiated by the Petitioner not involving the Board, it was mistaken as to any such confirmation. All such decisions by either the Supreme Court of British Columbia or the Court of Appeal involved other issues and were decide on the basis that the Petitioner, as a member of a collective bargaining unit, had no status to pursue his claims. Far from determining that the Association had a right not to pursue arbitration or that arbitration was precluded, Mr. Justice Spenser (1995) suggested a method of getting arbitration back on the rails. Further, because the circumstances giving rise to the Petitioner's layoff grtievance predated the Association's certification and the mandatory applicability of the labour Relations Code to the Petitioner's complaint, it is open to the Petitioner to have the unsolved issue of the merits of his complaint determined in Court, quite apart from the judicial review of the Board's untimeliness decision on that complaint.

     The Board's error in finding that the Association's action in refusing to pursue the alternative strategy was reasonable goes beyond the Board's mistaken premise that the Association had a right not to pursue arbitration in aid of reinstatement. It compounded its error by extending its approval of the Association's decision not to pursue arbitration in aid of reinstatement to the Association's decision not to pursue arbitration in aid of compensation. It did so even though in finding that the second complaint was timely, it carefully distinguished the actions of the Association in pursuing reinstatement on the one hand, and financial settlement on the other (see paragraph 31 of decision). It correctly found that the two remedies were independent of each other. Similarly the means of achieving those remedies ought also to have been viewed independently.

     The conclusion therefore reached by the Board that the Association acted reasonably in deciding not to pursue the alternative strategy was based on a faulty premise, namely, that the Association had a right not to pursue arbitration and, by extension, that the Association was under no obligation to have liability determined under any circumstances.

    To say that it is reasonable to be unwilling to determine liability by some mechanism, should the School Board take a position of no liability or an unreasonable position on compensation, is really to say that the whole exercise in getting monetary compensation for Mr. Callow, no matter which strategy is pursued, is either futile or entirely dependent on the benevolence of the School Board. The Board's conclusion is therefore patently unreasonable.

    Parenthetically, the School Board has failed to demonstrate any such benevolence. In fact in negotiation with the Association it initially denied Mr. Callow's right to any interest on any compensation that might be agreed to, and later offered a partial payment only of court order interest. That was subsequently withdrawn. Both the School Board and the Association seem more intent on immediate collection of legal costs awarded against Mr. Callow as a result of his effort to achieve fair compensation than they are in providing fair compensation to him.

SECOND ASPECT OF COMPLAINT - CONFLICT OF INTEREST

     In 1988, following the School Board's unsuccessful appeal of Madam Justice Southin's determination that the original arbitration was flawed and her direction that the matter go back to the original arbitration  for reconsideration, a scheduled hearing (scheduled without consultation as to Mr. Callow's availability) was arranged for a date in July of 1988. At the Petitioner's request the hearing was adjourned to October of 1988. Unknown to the Petitioner, the Association's legal representative Mr. Laughton apparently made an agreement with the School Board as a condition of the School Board's consent to the adjournment that "there would be no financial prejudice to Board...occasioned by the adjournment of the hearing up to the date of publication of Mr. Lindholm's award". Mr. Laughton, in advising the Petitioner, after the fact, of the arrangement described same as an agreement "to suspend the running of damages from July 1, 1988 to the new hearing date." At that moment in time the remedy being pursued with reinstatement and the School Board, in the event that arbitration confirmed reinstatement, did not want to pay the salary and other benefits Mr. Callow would have been entitled to during the adjournment period.

     Unfortunately, the hearing, which had been rescheduled to October, 1988 could not proceed at the time because Mr. Lindholm, the Arbitrator, had a conflict. Mr. Lindholm subsequently died before a new court hearing could be rescheduled. The School Board now seeks to extend the adjournment agreement made in context of the reinstatement remedy to the compensation remedy currently being pursued. This in spite of the intervening unforeseen events that were not in contemplation of either party at the time the agreement was struck. Mr. Laughton, who was put in the difficult position of defending an unfortunate agreement he partially authored, on the one hand, and acting in the interests of the Petitioner, on the other hand, appears to have chosen to concur with the School Board's questionable interpretation of the agreement. But, it was not until September of 1997 that Mr. Laughton communicated his position on the applicability of the agreement to the compensation issue to the Petitioner. The Board in deciding on the timeliness of this aspect of the complaint completely ignored this critical fact (the timing of Mr. Laughton communication of his position) underlying the complaint. In doing so it acted without jurisdiction and in a patently unreasonable manner.

 

ADDENDUM:

A) The above theme culminated in the second appeal to the Supreme Court of Canada in 2004 (not heard) under the 'ultimate remedy' provisions of the collective bargaining agreement where compensation - in whatever amount - must change hands. (No compensation has been paid in close to 30 years.) In the Preamble to the SCofC, it was for a first time asserted that this Plaintiff was the target of a massive conspiracy including court processes.

B) The next phase of the B.C. Justice System is epitomized by the 'MacKenzie Creed' (October 2010) and the Cullen Creed (July 2013) in which these two Deputy Associate Judges of the B.C. Supreme Court on their own recognizance, without taking legal argument nor quoting pertinent laws, would - for reasons best known to themselves - expel this targeted plaintiff from the B.C. Courts in this unresolved legal matter.

C) The claimed fraudulent activity in B.C. Courts has since been compounded by irregularities in the Federal Court of Canada and in Ottawa Superior Court as well as Ontario Appeal Court as reported to the respective oversight bodies. There is never any response on this level.

D) It is maintained in the current Federal Court filing (#T-2360-14) filed on November 12-2014 alleging fraud against both the Respondents and the court processes across 3 separate court systems in B.C., Federal Court, and Ontario court, that those courts are in a conflict of interest. Only the Supreme Court which insists on a lower Appeal Court decision before proceeding is competent to handle that accusation. Hence not only myself as the afflicted party is held in limbo but the entire Canadian Justice System as well is in a state of suspension until this case is resolved.

 

cc SCofC Hon. Suzanne Coté