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LABOUR RELATIONS BOARDS - Appeals and judicial review

Friday, March 02, 2018 @ 8:39 AM  


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Appeal by the petitioner from an order striking her petition for judicial review. The petitioner was a school teacher employed by the District. Her employment was terminated in December 2012. The Union grieved the termination. An arbitrator upheld the termination, finding just cause based on misconduct and dishonesty related to a sick leave claim. The petitioner had taken sick leave every Friday between 2006 and her termination in 2012. She claimed she suffered from a chronic sleep disorder that necessitated sick leave. The arbitrator characterized the petitioner's sick leave abuse as deliberate and persistent. The BC Labour Relations Board affirmed the decision on review, and refused two further requests by the petitioner for leave for reconsideration based on new medical evidence. The petitioner sought judicial review. The District and the BC Public School Employers' Association applied to strike the petition. The reviewing court found it plain and obvious that the petition was bound to fail. The petitioner appealed and sought to introduce new evidence alleging confirmation bias and perceived political influence on the part of the Board.

HELD: Appeal dismissed. The reviewing court applied the standard of review correctly, and correctly answered the question of whether it was plain and obvious the petition for judicial review was bound to fail. As found by the court below, the petition sought to impugn the underlying arbitration and review decisions, both of which fell within the exclusive jurisdiction of the Board. To the extent that the petition for judicial review could be characterized as impugning the reconsideration or final decision, there was no arguable case that either was patently unreasonable in any relevant respect. The chambers judge did not err in striking the petition. None of the proffered fresh evidence met the test for admission.

Zakreski v. British Columbia Public School Employers' Assn., [2018] B.C.J. No. 180, British Columbia Court of Appeal, D.C. Harris, S. Stromberg-Stein and P.M. Willcock JJ.A., January 26, 2018. Digest No. TLD-February262018011