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WRONGFUL DISMISSAL - Civil procedure - Jurisdiction

Tuesday, December 01, 2020 @ 6:41 AM  

Appeal by the plaintiff, Goldman, from an order striking her wrongful dismissal claim against the defendant, the Fraser Valley Aboriginal Children and Family Services Society. The plaintiff worked for the defendant as a child protection social worker between 2006 and 2017 pursuant to a written employment agreement. She was terminated without notice. Prior to her dismissal, the BCGEU was certified as the bargaining agent for the defendant’s employees. Although the plaintiff would have been within the bargaining unit, no collective agreement was negotiated as of the date of her dismissal. Approximately 18 months later, the plaintiff commenced a court action seeking damages for wrongful dismissal. Three months later, the union and employer ratified their first collective agreement. One month later, the defendant applied to dismiss the plaintiff’s claim. The chambers judge found that the court had no jurisdiction to consider the claim, as the plaintiff’s sole recourse was through the Labour Relations Board given the existence of the collective agreement. The plaintiff appealed.

HELD: Appeal allowed. The chambers judge erred in deciding that the Board had exclusive jurisdiction over the parties’ dispute. The judge erred in concluding that the dispute fell within the ambit of a collective agreement and erred in finding that upon certification of the union, there were no circumstances under which a member of a bargaining unit had recourse to common law remedies. The plaintiff was dismissed after the statutory freeze post-certification, and prior to negotiation of the collective agreement. Given that timing, she had no ability to take the dispute to mediation and arbitration, and the Board had no jurisdiction to entertain her claim of wrongful dismissal. Failure to recognize the court’s jurisdiction in such circumstances denied the plaintiff any effective redress. The order below was set aside.

Goldman v. Fraser Valley Aboriginal Children and Family Services (c.o.b. Xyolhemeylh), [2020] B.C.J. No. 1699, British Columbia Court of Appeal, R.J. Bauman C.J.B.C., D.C. Harris and G.B. Butler JJ.A., October 30, 2020. Digest No. TLD-November302020003