COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

R. v. Pedersen; R v. Serrano-Hernandez,

2014 BCCA 16

Date: 20140117

Docket
Nos.:  CA039278; CA039536

Docket No.: CA039278

Between:

Regina

Respondent

And

Scott Everett
Pedersen

Appellant

- and -

Docket No: CA039536

Between:

Regina

Respondent

And

Vincente
Serrano-Hernandez

Appellant

Restriction on Publication: A
publication ban has been imposed under s. 486.5 of the
Criminal Code
restricting the publication, broadcasting or transmission in any way of
evidence that could identify an undercover officer.
This publication ban applies
indefinitely unless otherwise ordered.

Before:

The Honourable Mr. Justice Frankel

(In Chambers)

On appeal from:  An
order of the Supreme Court of British, dated July 20, 2011 (
R. v.
Pedersen & Serrano-Hernandez
, Victoria Registry No. 149340).

Counsel for the Appellant, Pedersen:

R.A. Mulligan, Q.C.

Counsel for the Appellant,

Serrano-Hernandez

M.F. Allen

Counsel for the Respondent:

R.D. Leong

Place and Date of Hearing:

Victoria, British
  Columbia

November 29, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 17, 2014

Summary:

Applications granted under s.
684 of the Criminal Code appointing counsel to act on conviction appeals. As
some of the proposed grounds of appeal are not considered arguable, counsel are
authorized to order only a limited transcript and appeal book.

Reasons for Judgment of the Honourable
Mr. Justice Frankel:

Introduction

[1]

Following a lengthy trial in the Supreme Court of British Columbia,
Scott Everett Pedersen and Vincente Serrano-Hernandez were convicted by a jury of
possessing 1001 kilograms of cocaine for the purpose of trafficking. Each was
sentenced to 14 years and 7 months imprisonment; effectively 16 years having
regard to pre-sentence custody.

[2]

Mr. Pedersen and Mr. Serrano filed appeals from both
conviction and sentence and sought legal-aid funding from the Legal Services
Society. Funding was approved for the sentence appeals, but refused for the
conviction appeals. They now apply, pursuant to s. 684(1) of the
Criminal
Code
, R.S.C. 1985, c. C-46, for the appointment of counsel for the
purpose of advancing their conviction appeals. If such an appointment is made,
then the fees and disbursements of counsel will be paid by the Attorney General
of Canada: see s. 684(2).

[3]

For the reasons that follow, I would grant Mr. Pedersens and Mr. Serranos
respective applications on terms. As I will explain, I consider that the
interests of justice warrant the granting of state funding, for some, but not
all, of their proposed grounds of appeal.

General Background

[4]

On the evening of March 5, 2010, the Huntress, a sailing vessel
owned by Mr. Pedersen, was observed by a surveillance aircraft in the
vicinity of Scott Islands at the north end of Vancouver Island. That aircraft
had been deployed at the request of the Royal Canadian Mounted Police in
response to information provided by a confidential source that a vessel
containing 1,000 kilograms of cocaine had departed Panama for a location off
the west coast of Vancouver. That vessel was expected to arrive in March. The
flight crew was of the view that the Huntress was suspicious because it was unusual
to see a sailboat in that area in March due to the weather conditions. As well,
it was running without night-time running lights.

[5]

A male with a North American accent responded to a hail from the
aircraft, identified the vessel as the Huntress, but was unable to provide
the vessels call sign or registration. The male identified his last port as
Panama and his destination as Port Hardy, British Columbia.

[6]

Early the following morningMarch 6, 2010the aircraft returned to
the area and again located a vessel the crew believed was the Huntress. Flying
at a high-altitude, the aircraft followed the vessel using a forward-looking
infrared camera (FLIR). At approximately 4:00 a.m., the vessel was
observed to change course and turn towards Shushartie Bay on the east coast of
Vancouver Island. A small Zodiac-like vessel was observed travelling from the
shoreline to the vessel and back to shore several times. Based on the use of
FLIR, it appeared to the crew of the aircraft that after the final trip there
was one person on shore and two on the vessel.

[7]

The officer-in-charge of the investigation believed that what the
aircrafts crew had observed was a mother ship drug offload. As a result, he
gave instructions to arrest those onboard the vessel when it arrived in Port
Hardy.

[8]

The Huntress pulled into Port Hardy Bay and docked at approximately
9:00 a.m. on March 6, 2010. Mr. Pedersen disembarked and was walking
on the dock when he was approached by a police officer. In answer to questions
from the officer, Mr. Pedersen said he had just come from Panama and
pointed out the Huntress as his vessel. At this point he was arrested.

[9]

Mr. Serrano was seen by the police in the cockpit area of the Huntress.
He was ordered off the vessel and arrested.

[10]

The police then did a security-sweep of the Huntress to ensure that no
one else was onboard and to look for weapons. As I will discuss later in these
reasons, the police re-boarded the Huntress several times to search for
evidence and for other investigative purposes.

[11]

Several hours after the arrests, police officers made their way to
Shushartie Bay, where they found 37 duffel bags each containing between 25 and
30 individually wrapped bricks of cocaine covered with a camouflage tarp. A
Zodiac-style boat was located nearby. Hand-held radios were also found.

[12]

The trial lasted some 76 days. Approximately half that time was taken up
with various motions and
voir dires
which took place prior to the jury
being empanelled. The grounds of appeal which Mr. Pedersen and Mr. Serrano
wish to advance relate, for the most part, to a number of those rulings,
including a challenge to the lawfulness of the search of the Huntress and the
admissibility of evidence found on board. They do not challenge any aspect of
the trial judges charge to the jury.

Proceeding Leading Up
to the Present Application

[13]

The trial judge sentenced Mr. Pederson and Mr. Serrano on
July 27, 2011. She also ordered the Huntress forfeited to the Crown.

[14]

On August 15, 2011, Robert A. Mulligan, Q.C., who acted for
Mr. Pedersen at trial and continues to represent him, filed a notice of
appeal against conviction, sentence and forfeiture. The Legal Services Society
agreed to fund the sentence appeal but not the conviction appeal. That refusal
was not for financial reasons. On February 16, 2012, Mr. Pederson,
acting on his own behalf, filed an application for the appointment of counsel
to advance his conviction appeal.

[15]

On December 8, 2011, Martin F. Allen, who now represents Mr. Serrano
but did not act at trial, filed a notice on behalf of Mr. Serrano,
appealing sentence only. At the same time, Mr. Allen filed an application
for an extension of time within which to file the sentence appeal. The
affidavit filed in support of the extension of timesworn by an articled
student with the Legal Services Societysets out that: (a) within weeks of
being sentenced Mr. Serrano applied for legal aid funding to appeal both
conviction and sentence; (b) on November 18, 2011, funding was
approved for the sentence appeal only; and (c) on November 19, 2011,
a referral was issued to Mr. Allen for the sentence appeal. The refusal
with respect to the conviction appeal was not for financial reasons.

[16]

On October 24, 2012, Mr. Allen filed an amended notice of
appeal on behalf of Mr. Serrano, appealing both conviction and sentence,
together with an application for an order under s. 684 appointing counsel
to act on the conviction appeal.

[17]

In early January 2013, I was assigned to case-manage these appeals. On
January 11, 2013, I made interim orders under s. 684 in connection
with both conviction appeals, appointing counsel (in effect Mr. Mulligan
and Mr. Allen) to act for the limited purpose of advancing full s. 684
applications. At that time, Mr. Mulligan suggested the interim appointment
should provide him and Mr. Allen with authority to order the entire trial
record, including all motions and
voir dires
. However, I declined to
make such an order and, indeed, specifically included a term in my orders
stating that counsel were not authorized to order any transcripts and appeal
books. What I did include in my orders was a term that required defence counsel
and Crown counsel,

[to] cooperate to ensure that
material already produced, and in particular all
voir

dire
rulings, transcripts and the written charge to the jury from trial, are
provided to each other and be made available for the hearing of the full
application under section 684 of the
Criminal Code
.

As a result, when the present
applications were argued counsel and I had in hand eight
voir dire
rulings,
counsels jury addresses, the written jury charge, the sentencing proceedings,
and the reasons for sentence.

Regularizing
Mr. Serranos Appeals

[18]

Although this matter has been proceeding on the basis that Mr. Serrano
has conviction and sentence appeals outstanding before this Court, in the
course of preparing these reasons it came to my attention that his application
for an extension of time has never been spoken to. At my request, the registry
contacted Mr. Allen and Crown counsel, Raymond D. Leong, to inquire how
they wished to deal with that matter. In response, Mr. Leong indicated the
Crown does not oppose an extension being granted. Accordingly, I order the time
for the filing of Mr. Serranos amended notice of appeal be extended to
October 24, 2012.

Test for the
Appointment of Counsel

[19]

Section 684(1) of the
Criminal Code
provides:

A court of appeal or a judge of
that court may, at any time, assign counsel to act on behalf of an accused who
is a party to an appeal or to proceedings preliminary or incidental to an
appeal where, in the opinion of the court or judge, it appears desirable in the
interests of justice that the accused should have legal assistance and where it
appears that the accused has not sufficient means to obtain that assistance.

[20]

The approach to be taken in considering an application under s. 684
is well known. It was summarized as follows by Madam Justice MacKenzie in
R.
v. Silcoff
, 2012 BCCA 463:

[20]      The
overriding purpose of s. 684 of the
Code
is to protect the right to
be heard and to ensure the fairness of the proceedings:
R. v. Barton
and Federici
, 2001 BCCA 477 at para. 7.

[21]      Appointment
of counsel under s. 684 is subject to a two-part test, generally
considered in the following order:

1.   The accused must have
insufficient means to obtain legal assistance; and

2.   Appointment of counsel must be in
the interests of justice.

[22]      According
to
Applications for a Court-Appointed Lawyer Under Section 684 of the
Criminal Code
(Criminal Practice Directive, 19 September 2011), applicants
should generally be able to show that 1) they cannot afford to retain
counsel for the appeal; and 2) they applied to the Legal Services Society
for legal aid and were refused.

[23]      The
factors to be considered under the requirement of interests of justice were
summarized in
International Forest Products Ltd. v. Wolfe
, 2001 BCCA 632
at para. 6 and 13, 94 B.C.L.R. (3d) 67 (Levine J.A. in Chambers).
They are as follows:

a.   The points to be argued on
appeal;

b.   The complexity of the case;

c.   Any point of general importance
in the appeal;

d.   The applicants competency to
present the appeal;

e.   The need for counsel to find
facts, research law or make argument;

f.    The nature and extent of the
penalty imposed; and

g.   The merits of the appeal.

[24]      As
to the merits of the appeal, the threshold requirement is an arguable appeal:
R. v. Donald
,
2008 BCCA 316 at para. 15, 258 B.C.A.C. 117 (Saunders J.A. in
Chambers).

[25]      In
determining whether an appeal is arguable, regard must be had to the applicable
standard of review on the proposed appeal:
Lin v. British Columbia (Adult
Forensic Psychiatric Services)
, 2008 BCCA 518 at paras. 17-18
(Frankel J.A. in Chambers).

[26]      Even
where other factors favour the appointment of counsel, it will not be in the
interests of justice to appoint counsel where an appeal has no merit:
R. v. Hoskins
,
2012 BCCA 51 at paras. 30-32, 315 B.C.A.C. 238 (Garson J.A. in
Chambers).

[27]      The
Court may consider the opinion

of the Legal Services Society that an
appeal has no prospect of success, however, the opinion of the Legal Services
Society is only one factor:
R. v. Chan
, 2001 BCCA 138 at
para. 8 (Finch J.A., as he was then, in Chambers);
R. v. Butler
,
2006 BCCA 476 at paras. 7 and 10 (Rowles J.A. in Chambers).

See also:
R. v. Bath
, 2013 BCCA 126 at para. 12
(Chambers), 335 B.C.A.C. 144.

[21]

As discussed in greater detail below, in this case the critical issue is
whether Mr. Pedersen and Mr. Serrano have arguable grounds of appeal.
The Crown accepts they do not have either the financial ability to
independently obtain legal assistance or the ability to present their appeals
without the assistance of counsel.

[22]

One further point that should be mentioned is that I am of the view it is
open to a judge who makes an order under s. 684, to limit the contents of
the transcript and the appeal book to that which is necessary to advance the
grounds of appeal found to be arguable. In other words, an appointment of
counsel will not necessarily carry with it authority to order the entire trial
record at public expense:  see
R. v. Bernardo
(1997), 121 C.C.C. (3d)
123 at paras. 33  37 (Ont. C.A.). For example, if there does not appear to be
any merit in a proposed challenge to a
voir dire
ruling, then permission
to order the record of that
voir dire
need not be granted.

Proposed Grounds of
Appeal

[23]

Mr. Pedersens submissions relate to several proposed grounds of
appeal, some of which are specific to him. Mr. Serrano limited his submissions
to the ground challenging his arrest, the search of the Huntress and the
admissibility of what was found on board. However, Mr. Serrano did express
support for the grounds put forward by Mr. Pedersen which, if successful,
would benefit him.

Drug-Detection Dog
Evidence

[24]

Some 11 days after the Huntress was seized a police dog handler went
on board with a dog trained to detect seven different drugs, namely marihuana,
Cannabis resin, cocaine, crack cocaine, methamphetamine, heroin and psilocybin
(magic mushrooms). The handler testified the dog reacted in a manner consistent
with detecting the scent of one or more of those drugs near some drawers and at
the back of the vessel. However, the handler could not say what drug or drugs
the dog detected. The police did not find any drugs on the vessel.

[25]

Mr. Pedersen and Mr. Serrano objected to the admission of the
dog handlers evidence on two bases:  (a) the officer did not have
sufficient expertise and experience; and (b) its probative value was low
and its potential prejudicial effect high. The trial judge overruled those
objections and allowed the Crown to tender the evidence
:
Oral Reasons
re
Voir Dire
No. 9 (Evidence of Corporal Calibaba) (June 22,
2011). She gave the jury a special caution before it heard the evidence and
repeated that caution in her charge.

[26]

On appeal, Mr. Pedersen only seeks to raise the
probative/prejudicial point. He submits the evidence of the presence of the
odour of some unidentified drug or drugs on board the Huntress is of dubious
value and ought not to have been heard by the jury. The Crown supports the
trial judges ruling and the manner in which she dealt with the evidence in her
charge.

[27]

In my view, the issue of the admissibility of the dog handlers evidence
is an arguable ground of appeal that Mr. Pedersen should be permitted to
advance before a division of this Court.

[28]

Although the next matter might have been for me to decide what part of
the record is required to argue this issue, the position taken by the Crown has
obviated the need for me to do so. This is because Mr. Leong indicated
that if this Court determines that the impugned evidence should not have been
admitted, then the Crown will seek dismissal of these appeals under s. 686(1)(b)(iii)
of the
Criminal Code
, i.e., on the basis that the admission of that
evidence did not give rise to a substantial wrong or miscarriage of justice. Mr. Leong
says to advance that argument the Crown will require the complete record of the
case before the jury.

[29]

Accordingly, the appointment of counsel will include authority to order
transcript that include the entirety of the trial proper (i.e., evidence and proceedings
before the jury and submissions/discussions in the absence of the jury), and an
appeal book containing all exhibits tendered before the jury, Oral Reasons re
Voir
Dire
No. 9, and the written charge to the jury.

[30]

As the entirety of the proceedings before the jury will be filed on the
appeal, I need not discuss another ground proposed by Mr. Pedersen which concerns
the admissibility of evidence as to how he reacted during a post-arrest
interview. This is because I have already authorized the ordering of the record
needed to advance this ground.

[31]

If upon reviewing the above-mentioned transcript and appeal book Mr. Mulligan
and Mr. Allen determine there are other grounds of appeal to be raised on
behalf of their respective clients, they are, of course, at liberty to do so.

Arrests, Search of the Huntress/Admissibility
of Evidence

[32]

As previously mentioned, Mr. Pedersen and Mr. Serrano were
arrested shortly after the Huntress docked in Port Hardy on March 6,
2010. Immediately following those arrests, the police did a security sweep of
the vessel for weapons. Later that day, the vessel was searched and a number of
items seized. Thereafter, the police re-boarded the Huntress on the following
dates:

March 7, 2010:          seizure of
hand-held radios discovered during the first search but not seized at that
time;

March 9, 2010:          seizure of diving
equipment and photographs taken of the interior of the vessel;

March 17, 2010:       Huntress now in
dry dock, vessel searched, measurements and photographs taken; drug dog taken
on board;

April 6, 2010:             seizure
of compact discs and documents.

[33]

At trial, Mr. Pedersen and Mr. Serrano asserted the police did
not have reasonable grounds to arrest them and that, as a result, the searches
of the Huntress were unlawful. They sought the exclusion of all of the
evidence obtained from the vessel pursuant to s. 24(2) of the
Canadian
Charter of Rights and Freedoms
, Part I of the
Constitution Act
,
1982, being Schedule B to the
Canada Act 1982
(U.K.), 1982,
c. 11.

[34]

The trial judge found that Mr. Pedersen and Mr. Serrano were
lawfully arrested, and that the searches of the Huntress on March 6 and
7, 2010, were lawfully conducted pursuant to the common-law power to search
incidental to arrest. Although the judge found the subsequent searches unlawful,
she nevertheless, in what she described as a close call, admitted the
evidence obtained as a result of those searches
:
Oral Reasons for
Judgment on
Voir Dire
No. 1 (March 10, 2011); Oral Reasons for
Judgment,
Voir Dire
No. 1  Section 24(2) Hearing (May 9,
2011).

[35]

Mr. Pedersen and Mr. Serrano contend that the trial judge
erred in finding their arrests lawful. Their position is that objectively
reasonable grounds did not exist. They further contend that if their arrests
were not lawful, then all of the evidence obtained from the Huntress should
be excluded. In response, the Crown says that the trial judges finding that
the arrests were lawful is supported by the record. The Crown further says that
the judges decision to admit the evidence she found had been improperly
obtained is entitled to considerable deference.

[36]

Based on what is presently before me, I cannot say that the points
Mr. Pedersen and Mr. Serrano seek to raise are not arguable. Accordingly,
the appointment of counsel will include authority to order the transcript of
Voir
Dire
No. 1, and include in the appeal book the two
Voir Dire
No. 1 Rulings mentioned above, and any relevant
voir dire
exhibits
that have not otherwise been ordered reproduced.

[37]

It should be noted that one of the issues Mr. Pedersen and Mr. Serrano
indicate they wish to raise concerns the trial judges refusal to compel
disclosure of the name of the police officer who provided the lead investigator
with information from the confidential source. That request was made during
Voir
Dire
No. 1 and renewed later in the trial:  see, e.g., Oral Reasons
for Judgment on
Voir Dire
No. 5  Right to Counsel and Abuse of
Process, Scott Everett Pedersen (May 9, 2011) at paras. 67  71. If this disclosure
point is pursued, then that ruling and any others in which the trial judge
dealt with this issue should be included in the material filed on the appeal.

Issues Relating to Mr. Pedersens
Statements

[38]

The trial judge conducted a
voir dire
to determine the
voluntariness of three statements made by Mr. Pedersen. The first
statement was made at the time of and shortly after his arrest. The second
statement was made during a 45 minute interview that took place on
March 7, 2010, while Mr. Pedersen was in custody in Port Hardy. The
third statement was an interview that lasted approximately three and one-half
hours. That interview took place at the Vancouver Island Regional Correctional
Centre after Mr. Pedersen had been remanded into custody, and after he had
retained counsel. The trial judge was satisfied beyond a reasonable doubt that
all of those statements were voluntary:  Oral Reasons for Judgment on
Voir
Dire
No. 2  Statements of Scott Everett Pedersen (March 31,
2011).

[39]

Subsequent to the ruling given by the trial judge on
Voir Dire
No. 2, Mr. Pedersen applied to the trial judge for exclusion of his
statements and a judicial stay of proceedings on the basis of abuse of process.
A further
voir dire
was conducted at which two witnesses were called. However,
in adjudicating the issues raised by Mr. Pedersen, the judge took into
consideration evidence that had been presented on other
voir dires
. The judge
dismissed Mr. Pedersens application:  Oral Reasons for Judgment on
Voir
Dire
No. 5  Right to Counsel and Abuse of Process, Scott Everett
Pedersen (May 9, 2011).

[40]

Mr. Pedersen seeks to argue on appeal that the police violated his
rights by interviewing him at the Vancouver Island Regional Correctional Centre
without first notifying his counsel and in the absence of his counsel. He also
seeks to argue that the police improperly attempted to persuade him to become
an informer.

[41]

In rejecting those submissions, the trial judge found as a fact that
Mr. Pedersen understood his right to counsel and his right to silence, and
had no difficulty in exercising his right to silence. She further held, having
regard to
R. v. Sinclair
, 2010 SCC 35, [2010] 2 S.C.R. 310,
R. v.
McCrimmon
, 2010 SCC 36, [2010] 2 S.C.R. 402, and
R. v. Ashmore
, 2011
BCCA 18, 267 C.C.C. (3d) 108, leave refd [2012] 1 S.C.R. v, that there had
been no violation of Mr. Pedersens rights. Last, the judge was not
satisfied that Mr. Pedersen had proven, on a balance of probabilities,
that the police attempted to recruit him as an informer.

[42]

In my view, Mr. Pedersen has failed to demonstrate his proposed
arguments have any prospect of success. Given that a trial judges findings of
fact are entitled to considerable deference on appealthe standard of review is
palpable and overriding errorit is not sufficient simply to assert error in
the abstract. In this regard, I note that Mr. Pedersen has not suggested
there was no evidence to support the judges findings.

[43]

As for the alleged breach of Mr. Pedersens rights, the trial
judges decision is in accord with the authorities upon which she relied. I see
no prospect that a division of this Court would hold otherwise.

[44]

In the result, I do not authorize the ordering of those portions of the
record that relate only to raising the issues I have just discussed.

The Post-Arrest Press
Conference

[45]

Approximately one week after Mr. Pedersen and Mr. Serrano were
arrested and charged the police conducted a press conference. Senior law
enforcement and military officers addressed the media, as did the provincial
Solicitor General. At trial, Mr. Pedersen sought a stay of proceedings on
the basis this conference amounted to a contempt of court and prejudiced his right
to a fair trial. The trial judge dismissed that application:  Oral Reasons for
Judgment on
Voir Dire
No. 5  Right to Counsel and Abuse of
Process, Scott Everett Pedersen (May 9, 2011). However, during jury
selection, she conducted a challenge for cause hearing at which prospective
jurors were asked the following question:

Can you judge this case fairly
based soley on the evidence presented in court, despite anything you have read,
seen, or heard outside court in the media, including radio, television,
newspapers, and the internet, even if what you have read, seen, or heard came
from high ranking government officials and police officers?

[46]

Mr. Pedersen describes what occurred as a trophy press
conference. He seeks to argue that the conduct of those who participated in
the conference was unacceptable and warrants judicial disapprobation. The
Crowns position is it could never be said that this press conference, which
took place more than a year before the jury was empanelled, warranted a remedy
as drastic as a stay of proceedings. It further says that any possible
prejudice was appropriately dealt with by the challenge for cause procedure.

[47]

I find it unnecessary to determine whether this issue independently reaches
the threshold of an arguable ground. I say that because:  (a) the evidence
relating to the press conference was tendered during
Voir Dire
No. 1,
the record of which I have already found should be produced; and (b) I
have already found the ruling on
Voir Dire
No. 5 should be produced.
As a result, what is necessary to advance this ground will be before the Court
in any event.

Disposition

[48]

In the result, I order:

(a)           the time for the filing
of Mr. Serranos amended notice of appeal be extended to October 24,
2012;

(b)           the appointment of
counsel for Mr. Pedersen to conduct his conviction appeal, counsels fees
to be paid in accordance with the prevailing legal-aid tariff;

(c)           the appointment of counsel
for Mr. Serrano to conduct his conviction appeal, counsels fees to be paid
in accordance with the prevailing legal-aid tariff;

(d)           that counsel for
Mr. Pedersen and Mr. Serrano are authorized to obtain, file, and
serve, a common transcript and appeal book, containing:

(i)         the complete evidentiary record
of
Voir Dire
No. 1 (i.e., the arrest of the appellants and the
searches of the Huntress);

(ii)        Oral Reasons for Judgment on
Voir
Dire
No. 1 (March 10, 2011);

(iii)       Oral Reasons for Judgment,
Voir
Dire
No. 1  Section 24(2) Hearing (May 9, 2011);

(iv)       Oral Reasons for Judgment on
Voir
Dire
No. 5  Right to Counsel and Abuse of Process, Scott Everett Pedersen
(May 9, 2011), and any other rulings in which the trial judge affirmed her
decision refusing to order disclosure of the name of the police officer who
provided information obtained from the confidential source; and

(v)        the complete record of the
trial before the jury, including the agreed upon challenge for cause question, Oral
Reasons re
Voir Dire
No. 9 (Evidence of Corporal Calibaba) (June 22,
2011), and the written charge to the jury; and

(e)          that
for the purpose of determining the timelines for these appeals under the
Pilot
Project Regarding Criminal Conviction/Acquittal Appeals
Practice Directive,
the date these reasons are released is to be treated as the date on which
Mr. Pedersen and Mr. Serrano filed their respective notices of
appeal.

[49]

If counsel for Mr. Pedersen and Mr. Serrano are of the view
that additional parts of the record are needed to advance the grounds of appeal
I have found to be arguable, then they are at liberty to order those, provided
they obtain the prior written approval of Crown counsel. In the event such
approval is not given, arrangements can be made through the registry to have
this matter brought back before me. Such arrangements can also be made if any
counsel considers further case-management would assist in moving this matter
forward for hearing.

The
Honourable Mr. Justice Frankel


COURT OF APPEAL FOR BRITISH COLUMBIA

Citation:

Ferrari v. University of British Columbia,

2014 BCCA 18

Date: 20140121

Docket: CA040195

Between:

Lee Ferrari

Appellant

(Plaintiff)

And

University of
British Columbia

Respondent

(Defendant)

And

Association of
Administrative and Professional Staff

Intervenor

Before:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Garson

The Honourable Madam Justice Stromberg-Stein

On appeal from:  An
order of the Supreme Court of British Columbia, dated August 3, 2012, (
Ferrari
v. University of British Columbia
, 2012 BCSC 1173, Vancouver Docket No. S115870).

Counsel for the Appellant:

J. Coutts

Counsel for the Respondent:

M. Korbin

Counsel for the Intervenor

A.E. Black, Q.C. and
  S.T. Mayor

Place and Date of Hearing:

Vancouver, British
  Columbia

September 16, 2013

Place and Date of Judgment:

Vancouver, British
  Columbia

January 21, 2014

Written Reasons by:

The Honourable Madam Justice Garson

Concurred in by:

The Honourable Mr. Justice Frankel

The Honourable Madam Justice Stromberg-Stein

Summary:

The
appellant Ferrari appeals from an order staying his civil claim for wrongful
dismissal against the University of British Columbia (UBC).  UBC applied to
the Supreme Court for an order staying the action on the basis that arbitration
was the only remedy available to Mr. Ferrari in the face of an arbitration
agreement between him represented by the Association of Administrative and
Professional Staff (AAPS or the Association) and the University.  The
Supreme Court judge stayed the action pursuant to s. 15(2) of the
Commercial Arbitration Act, R.S.B.C. 1996, c. 55, on the basis that the
Court lacked jurisdiction to hear the dispute because of the exclusive
arbitration clause in the employment agreements that govern the employment
relationship between Mr. Ferrari and UBC.  The judge found that the
agreement containing the arbitration clause was incorporated within the terms
of Mr. Ferraris employment.

On
appeal, Mr. Ferrari appeals on the basis that the order staying his civil
claim deprives him of any legal remedy to challenge his wrongful dismissal.

Held:
Appeal dismissed.

The
terms of his employment include, and he is bound by, the arbitration
agreement.  The fact that his representative association refused to carry
forward his grievance does not render the agreement to arbitrate null and void,
inoperative, or incapable of being performed within the meaning of s. 15(2)
of the Act.

Reasons
for Judgment of the Honourable Madam Justice Garson:

1.       Introduction

[1]

This is an appeal of an order staying Mr. Ferraris civil claim for
wrongful dismissal against the University of British Columbia (UBC).

[2]

UBC applied to the Supreme Court for an order staying the action.  UBC
argued that arbitration was the only remedy available to Mr. Ferrari in
the face of an arbitration agreement between the Association of Administrative
and Professional Staff (AAPS or the Association) and the University.  The
Supreme Court judge stayed the action pursuant to s. 15(2) of the
Commercial
Arbitration Act
, R.S.B.C. 1996, c. 55, on the basis that the Court
lacked jurisdiction to hear the dispute because of the exclusive arbitration
clause in the employment agreements that govern the employment relationship
between Mr. Ferrari and UBC.

[3]

Mr. Ferrari appeals the judges order on the grounds that it deprives
him of any legal remedy to challenge his wrongful dismissal.

[4]

For the reasons that follow, I would dismiss the appeal.

2.       Background Facts

[5]

In 1990, Mr. Ferrari began working at UBC as a labourer in the
Department of Plant Operations.  His employment was governed by a collective
agreement between the University and the trade union of which he was a member.

[6]

Effective November 1, 1999, Mr. Ferrari was permanently appointed
to the position of Asset & Material Management Supervisor, a non-union
position.

[7]

As a condition of his appointment, Mr. Ferrari was required to
become a member of AAPS, a non-union organization whose membership consists of
non-faculty management and professional employees of the University.  AAPS is
the recognized bargaining agent for its members, which includes being the
exclusive representative of its members in grievance proceedings against the
University.

[8]

By letter dated November 24, 1999, the University confirmed the terms of
Mr. Ferraris employment and asked him to sign two copies of the letter
indicating his acceptance of those terms.  Mr. Ferrari signed the letter,
which read in part:

Congratulations on your new appointment with the University
of British Columbia.  This letter will confirm our offer and your acceptance of
the position of Asset & Material Management Supervisor in the Department of
Plant Operations (Municipal & Business Services) effective 1999 November 01.

Please take time to familiarize yourself with the Agreement
for Management and Professional Staff, and the Framework Agreement between the
University and the Association of Administrative & Profession Staff (AAPS),
which include the terms of your employment with the University.

As a condition of employment you are required to become a
member of the Association of Administrative and Professional Staff (AAPS).
This Association represents you in dealings with the University.  Please attend
the AAPS information session which occurs alternate Fridays (see attached
schedule) from 8:45 a.m. to 9:00 a.m. at Human Resources, Room 350 of the
General Services Administration Building.

There are two copies of this letter enclosed.  The first is
for your records, the second is to be signed by you to acknowledge your
acceptance of our offer of employment and to indicate your agreement with the
terms outlined in the letter.  Please return the signed copy to Financial
Services at your earliest convenience as it is required to initiate your new
paycheque.

[9]

In an affidavit filed on the application to stay his action, Mr. Ferrari
stated that he did not recall receiving copies of the agreements referred to in
the above letter.  At para. 20 of his reasons for judgment, the chambers
judge noted that there was no evidence that Mr. Ferrari requested copies
of the agreements if, in fact, they had not been provided to him with the
November 24 letter.  The chambers judge disregarded Mr. Ferraris claim
that he did not receive the agreements as a ground for denying their
applicability to him.  Mr. Ferrari has not appealed that finding and I
need say no more about it.

[10]

Below, I set out the pertinent sections of the Agreement on Conditions
and Terms of Employment (the ACTE) and the Framework Agreement (the FA) as
well as the bylaws that govern AAPS.  Of importance to this appeal are the
grievance and arbitration clauses applicable to the termination of an
employees employment.

[11]

The University terminated Mr. Ferraris employment on September 28,
2010, by letter of the same date.  That letter provides as follows:

This letter is further to our meetings with you of September
21 and 24, 2010 and its purpose is to inform you that your employment with the
University will be terminated for cause effective immediately. Our decision to
terminate your employment is based on the findings from the Universitys recent
investigation into your fraudulent use and sale of University vehicles.

You used the Universitys 2001 Cavalier & 2006 Toyota
Prius for personal use without authorization over several years beginning in
2003. Your actions are tantamount to theft considering the benefit you derived
by the University assuming the cost of the gas, towing charges, insurance, and
lease payments. Furthermore, you knowingly and repeatedly drove the vehicle
off-campus without the appropriate insurance coverage. In fact you continued
this practice despite the Universitys policy, which you helped develop, that
explicitly states University vehicles are not to be used for personal use.

When interviewed, your explanations were inconsistent and you
were dishonest and deceitful. Your actions amount to fraud and are completely
incompatible with maintaining your ongoing employment with the University. You
have fundamentally breached the trust required between the University and our
employees.

As a result of the investigation, it is evident you owe the
University for gas and other expenses. The total amount is still to be
determined. We will contact you by separate letter to advise you of this amount
and to provide you with instructions on repayment.

You will receive a lump sum
payment for any outstanding vacation you may have as of todays date.

[12]

After the termination of his employment, Mr. Ferrari contacted AAPS
to initiate a grievance.  In follow-up to a prior conversation, Mr. Ferrari
wrote to AAPS on November 11, 2010, and requested AAPS advise him as to whether
it would pursue a grievance on his behalf.  On November 15, 2010, AAPS responded
that it would not file a grievance nor arbitrate his termination.  The letter
notifying him of the Associations decision is partially reproduced below:

As outlined to you verbally by our Member Services Officer
Sharon Cory, AAPS will not be filing a grievance in this matter. In deciding
whether or not to file a grievance two overriding matters need to be discerned
[
sic
]; first, was the employee afforded due process in the investigation
process? Second, is the sanction reasonable in light of the offence? In both
cases we feel the University has met its burden. You were afforded
representation in the disciplinary meeting at which you were questioned about
excessive personal use

of a UBC vehicle. Having offered no credible
reason for having used the vehicle for substantial personal use we are of the
belief that the University was reasonable in concluding that the employment
relationship had been irrevocably severed. In discussions with Sharon about the
investigation meeting she reported that no credible explanation was ever offered
for the use of the vehicle. In considering whether or not to grieve a
termination AAPS must be convinced of the merits of the case and that there is
some reasonable prospect of prevailing at arbitration. Given the lack of explanation
about your use of the vehicle, neither condition is met here.

While I understand how difficult
this decision will be for you, please be assured that I have carefully
consulted with our legal counsel and the Chair of our advocacy committee in
coming to the decision not to grieve this termination.

[13]

Mr. Ferrari denies the truth of UBCs allegations against him.  He argues
that if he is unable to pursue his wrongful dismissal action in a court, he
will have no remedy at all for the wrongful termination of his employment.  Mr. Ferrari
filed a Notice of Civil Claim against the University on September 6, 2011.  In
response, on October 26, 2011, the University filed an application under
s. 15 of the
Commercial Arbitration Act
to stay the proceedings.  That
application was granted on August 3, 2012.

3.       Reasons for Judgment of the Chambers Judge: 2012 BCSC 1173

[14]

The chambers judge found that the terms and conditions of Mr. Ferraris
employment were set out in two agreements negotiated between the University and
AAPS: the ACTE and the FA.  He found that the ACTE and FA were incorporated by
reference into the terms of Mr. Ferraris employment contract and that Mr. Ferrari
was bound by the agreements.  The chambers judge further held that the legal
proceedings commenced by Mr. Ferrari were in respect of a matter that was
subject to arbitration pursuant to those agreements. The fact that the dispute
did not go to arbitration because AAPS declined to proceed did not negate the
fact that Mr. Ferrari was a party to the arbitration agreement as defined
by the
Commercial Arbitration Act
.

[15]

The chambers judge summarized the parties arguments at paras. 1416
of his reasons for judgment:

[14]      UBC submits that it has satisfied the prerequisites
for a stay of proceedings which have been stated by the Court of Appeal in
Prince
George (City) v. McElhanney Engineering Services Ltd.
(1995),  9 B.C.L.R.
(3d) 368 (B.C.C.A.), (leave to appeal to S.C.C. denied) at para. 22:

1)         a party to an arbitration
agreement has commenced legal proceedings against another party to the
agreement;

2)         the legal proceedings are in
respect of a matter agreed to be submitted to arbitration; and

3)         the application has been
brought in a timely manner, i.e. before the applicant has taken a step in the
proceedings.

[15]      Mr. Ferrari agrees that these tests are
applicable but says that he was not a party to an arbitration agreement and, in
any event, the agreement is void, inoperative or incapable of being performed
because AAPS refused to proceed to arbitration.

[16]      Mr. Ferrari also
says that employees should not be prevented from pursuing a claim regarding
dismissal from employment by reason of their membership in AAPS. If these
proceedings are stayed, he argues, he will be left without any recourse for his
wrongful dismissal.

[16]

The chambers judge concluded at para. 32 that the test in
McElhanney
had been satisfied.  He noted Mr. Ferraris argument that the
arbitration agreement was inoperative or incapable of being performed because
AAPS refused to advance his claim to arbitration.  The judge found that the
decision by AAPS not to advance a grievance was one that was open to it under
the provisions of the FA and did not render the arbitration agreement incapable
of being performed.

[17]

As to the question of whether Mr. Ferrari was left without a
remedy, the chambers judge held at para. 40:

[40]      Unlike
disputes which are governed by the
Labour Relations Code
, where an
employee may file a complaint under s. 12 of that
Code
if a union
decides not to advance a grievance to arbitration, Mr. Ferrari does not
have the right to complain to the Labour Relations Board about AAPS decision
not to advance his grievance to arbitration. However, I agree with UBC that Mr. Ferrari
is not left without a remedy. In my view it was, and may still be, open to him
to proceed against AAPS and allege that AAPS failed in its duty of representing
him as his agent, or for breach of its fiduciary duty, in deciding not to
advance his grievance.

[18]

In the result, the chambers judge stayed the action and awarded costs to
the University.

4.       Grounds of Appeal

[19]

Mr. Ferrari argues that the chambers judge erred by:

1.         Determining
that the Appellant was a party to an arbitration agreement because he was bound
by the ACTE and FA and despite having no control over the arbitration process
or the ability to compel the Respondent to arbitrate his dismissal;

2.         Determining
that the arbitration agreement was not void, inoperative or incapable of being
performed, despite AAPSs refusal to proceed to arbitration in respect of the
Appellants wrongful dismissal; and

3.         Determining
that it is in the interests of justice to deny the Appellant a remedy against
the Respondent for his wrongful dismissal.

[20]

UBC states the issues on appeal somewhat differently:

1.         The
Respondent submits that the Chambers Judge did not err by determining that the
Appellant was a party to the arbitration agreement or by determining that the
arbitration agreement was not void, inoperative, or incapable of being
performed.

2.         Contrary to paragraph 13(c) of
the Appellants Factum, the Chambers Judge did not make any determination about
the interests of justice, nor was he required to do so.  Rather, in
supporting his decision to grant the stay, the Chambers Judge noted that the
dispute resolution procedure in the FA and the ACTE has similarities to a
collective agreement, applies to some 3,000 AAPS members, and allows for
disputes to be resolved efficiently and economically.  He concluded that
allowing the Appellant to proceed with his civil action against the Respondent
would circumvent and defeat the objectives of this dispute resolution procedure
and undermine the purpose of section 15 of the [
Commercial Arbitration Act
]
and of this dispute resolution procedure.  The Respondent submits that the
Judge did not err in so concluding.

[21]

The intervenor, AAPS, supports the position taken by UBC.

5.       Application of the Intervenor AAPS

[22]

AAPS was not a party to the proceedings below.  This Court granted AAPS
intervenor status.

[23]

First, AAPS asserts that the chambers judge appears to have decided that
an action against AAPS for failure to represent Mr. Ferrari, or for breach
of fiduciary duty, is open to the plaintiff despite the fact that AAPS was not
a party to the action and had no opportunity to argue against the availability
of those remedies.  Second, AAPS wishes to explain to this Court its
perspective on Mr. Ferraris argument that he is entitled to a common law remedy
for wrongful dismissal, notwithstanding that his employment agreement appoints
AAPS  his exclusive representative to pursue, or not, a grievance.

[24]

Finally, AAPS submits that there are internal remedies available to Mr. Ferrari
to dispute its decision not to grieve on his behalf and that he failed to
exhaust those remedies before commencing his civil action.  That argument was
not made before the chambers judge below.  Given that it was not heard by the
court below and since AAPS is an intervenor before this Court, not a party to
the dispute, it is my view that this Court ought not entertain its internal
remedies argument:
Faculty Association of the University of British Columbia
v. University of British Columbia
, 2008 BCCA 376 at para. 15.

6.       The Agreements, Bylaws and Constitution of AAPS

a.       Bylaws

[25]

As noted by the chambers judge, there are two agreements that govern the
terms of employment between Mr. Ferrari, the University and AAPS.  I would
add that the Associations constitution and bylaws are also relevant.  To begin
I will review those bylaws important to this case.

[26]

Article, XIII is the provision of the bylaws that sets up the AAPS Advocacy
Committee.  The Advocacy Committee is responsible for representation of its
members in employment disputes.  The provision reads in pertinent part:

4.         The Advocacy Committee shall:

a.         assist and advise management
and professional staff on their rights regarding terms and conditions of
employment;

b.         provide Association
representation regarding employment disputes and grievances.

8.         Subject to the Constitution and
By-Laws, the Executive Board may direct the exercise and performance of all
powers and duties specified in articles XII to XIII-5 inclusive.

[27]

Neither the bylaws nor the constitution contain an explicit provision
permitting the appeal or review of decisions made by the Advocacy Committee.

b.       Agreement on Conditions and Terms of Employment (ACTE)

[28]

The first of the two agreements negotiated between the University and
AAPS was the ACTE.  The relevant portions of that agreement are set out in the
following paragraphs.

[29]

The parties to the ACTE are defined as AAPS and UBC.  One of the grounds
upon which Mr. Ferrari appeals, is that he is not defined as a party to
the agreement and cannot therefore be bound by it.  I will discuss this
argument further below.

[30]

Article 2 includes the following provision respecting the applicability of
common law employment principles:

Common law employment principles
apply to the employment relationship between the University and employees
unless specifically modified by this Agreement.

[31]

Article 4, Grievance and Arbitration Procedures provides as follows:

The parties
shall
resolve grievances in accordance
with the negotiated procedures in Section 7.7 of the Framework Agreement.

[Emphasis added.]

[32]

Article 8, Discipline and Termination includes the following
provisions:

8.1       Progressive
Discipline

The University and AAPS subscribe to the principles of
progressive discipline in cases of culpable behaviour, conduct or performance
including, without limiting the generality of the foregoing:

Discipline is intended to be corrective in nature, not punitive;

Discipline is applied with consideration given to the circumstances
of a situation including, without limiting the generality of the foregoing, the
nature and severity of the misconduct, the position and level of responsibility
of the employee, the employees work history and any mitigating circumstances;

Discipline is applied in an escalating manner, appropriate to the
nature and severity of the misconduct; and

Discipline is not progressive in the event of severe misconduct
warranting termination for cause.

8.2       Proof of Just Cause

Disciplinary action will be taken only where just cause
exists. The burden of proof of just cause rests with the University.

8.3       Right to Representation

An employee shall have the right to have a representative
from AAPS present at any disciplinary meetings.

8.6       Termination of Employment for Just Cause

The University may terminate the
employment of any employee without notice for just cause.

8.7       Grievances

Grievances arising from the
suspension or termination of an employee shall commence at Step 2 (Formal
Complaint to a Vice President/Dean) of the grievance procedure (refer to
Section 7.7.5 of the Framework Agreement).

c.       The Framework Agreement (FA)

[33]

The Framework Agreement (FA) is also an agreement between AAPS and UBC.
It too defines parties as meaning UBC and AAPS.  The purpose of the agreement is
stated in s. 3.1:

The purpose of this Agreement is
to establish a framework for discussing and formally negotiating the terms and
conditions of employment of management and professional staff in a manner which
exemplifies the vision shared by the University and AAPS.

[34]

Section 3.3 provides for the recognition of AAPS as a bargaining agent:

The University recognizes AAPS as
the exclusive representative for all members as defined in Section 4.

[35]

Section 4.0, Scope of Bargaining Unit and Exclusions, states in part:

AAPS represents all management
and professional employees, except for the following excluded positions

[36]

With respect to grievances and settlement of disputes, s. 7.7
provides:

7.7.1    Interests of Parties

The parties have a clear and direct interest in a procedure
that provides for timely resolution in the event that their agreement is
violated.

An effective procedure must emphasize:

·

a problem solving approach,

·

a means for interest reconciliation as close as possible to the
point of original,

·

a mechanism for finality.

While individuals may initiate grievances,
AAPS will
decide whether to advance, settle or arbitrate them
.

Time limits and other requirements for the performance of
this grievance procedure may be extended/amended by mutual consent of the
parties.

7.7.7    Step 3  Arbitration

An arbitrator will be selected by mutual agreement of the
parties.  If the parties fail to agree on an arbitrator within fourteen days,
the Chief Justice of the Supreme Court of British Columbia will be requested to
make the selection.

The provisions of the
Commercial Arbitration Act
apply
to an arbitration, with the exception of the provisions in the Act relating to
costs.

Each party to the arbitration will be responsible for its own
costs and will pay one half of the costs of the arbitrator and any shared
arbitration expenses.

[Emphasis added to clause 7.7.1]

7.       Analysis

[37]

The overarching issue in this case is whether, as a consequence of the
operation of the agreements which govern his employment relationship, Mr. Ferrari
is left without a remedy for what he asserts is a wrongful dismissal and, if
so, is he entitled to maintain his action for wrongful dismissal against his
former employer.

[38]

Section 15 (1)−(2) of the
Commercial

Arbitration Act
,
governs this appeal.  Those provisions provide:

15 (1) If a party to an arbitration agreement commences legal
proceedings in a court against another party to the agreement in respect of a
matter agreed to be submitted to arbitration, a party to the legal proceedings
may apply, before filing a response to civil claim or a response to family
claim or taking any other step in the proceedings, to that court to stay the
legal proceedings.

(2) In an application under subsection (1),
the court must
make an order staying the legal proceedings unless it determines that the
arbitration agreement is void, inoperative or incapable of being performed.

[Emphasis added.]

[39]

In
McElhanney
, Cumming J.A., speaking for this Court, set out the
requirements for granting a stay of proceedings under s. 15.  This passage
from
McElhanney
is set out above, in my summary of the chambers judges
reasons, but for convenience I repeat it here:

[22]      There are three prerequisites to the application of
s. 15. They are:

(a)   the
applicant must show that a party to an arbitration agreement has commenced
legal proceedings against another party to the agreement;

(b)   the
legal proceedings must be in respect of a matter agreed to be submitted to
arbitration; and

(c)   the application must be brought
timely, i.e. before the applicant takes a step in the proceeding. (
Gulf
Canada Resources Ltd. v. Arochem International Ltd
.,
supra
, at
119-120).

[40]

Only the first of these three prerequisites is at issue in this appeal.

a.       Is Mr. Ferrari a party to the arbitration agreement?

[41]

I turn to Mr. Ferraris first ground of appeal: did the chambers
judge err in finding him to be a party to an arbitration agreement with UBC, a
prerequisite to the application of s.15 of the
Act
.  If he is not, UBC
cannot rely on s. 15 to stay Mr. Ferraris claim.  In my opinion, the
chambers judge did not err; Mr. Ferrari is a party to the arbitration
agreement.

[42]

Mr. Ferrari questions how he can be said to be a party to an
arbitration agreement if he has no means to commence a grievance and
arbitration.

[43]

In response, UBC says that Mr. Ferrari became a party to the
arbitration agreement by agreeing that the FA and ACTE were incorporated into
his terms of employment.  Having been incorporated by reference into the terms
of his employment agreement, he must logically be a party to the arbitration
agreement.

[44]

The chambers judge concluded that because the FA and the ACTE contain an
arbitration agreement, and because that arbitration agreement was incorporated
by reference into Mr. Ferraris terms of employment with UBC, Mr. Ferrari
was bound by the arbitration agreement as a term of his employment with UBC: See
University of British Columbia v. Wong
, 2006 BCCA 491 at paras. 30−31.

[45]

In other words, similar to collective agreements in a union context, Mr. Ferrari
granted AAPS exclusive representation rights as part of the consideration of
his membership in that organization.  I am in full agreement with UBC on this
point.  I do not see that much more can be said on this question.  I would not
accede to this ground of appeal.  Mr. Ferrari was bound by, and is a party
to, the arbitration agreement; thus, the first prerequisite of s. 15 is
met.

b.       Is
the arbitration agreement void or inoperative pursuant to s. 15?

[46]

Now, I turn to the second ground of appeal; whether the arbitration
agreement is void or inoperative in circumstances where, as Mr. Ferrari
argues, the enforcement of the arbitration clause leaves him without legal
redress for his alleged wrongful termination.  He says that in such
circumstances there must be a residual discretion for the court to refuse to
enforce that agreement.  Or, he argues, in a slightly different way, that it
cannot be said the requirements of s. 15 are met if the arbitration
agreement fails to provide any legal redress.  As I discuss below, in my view
this arbitration agreement does provide adequate redress: the deficiency, if
any, is in the Associations own bylaws.  However, those bylaws are not a
matter involving UBC. In my view,
McElhanney
clearly establishes that there
is no residual discretion for the court to refuse to stay an action if the
conditions of s. 15 are met.  I can find no authority to the contrary and
to hold otherwise would seem inconsistent with the whole statutory scheme of
respect for the arbitral process.

[47]

Although s. 15 provides a statutory bar to court proceedings that
is applicable to this case, it is helpful in my view to examine some of the
historical labour relations jurisprudence that trace the courts deference to
the exclusivity of the arbitration process.

[48]

To begin, there is a well-recognized line of authority, beginning with
Webber
v. Ontario Hydro
, [1995] 2 S.C.R, 929 which holds that Disputes arising
under collective bargaining agreements must be resolved through the grievance
and arbitration process established under the agreements, not by lawsuits in
the courts:
Pleau Litigation Guardian v. Canada (Attorney General)
,
1999 NSCA 159 at para. 1.

[49]

Importantly,
Pleau
also held that the dispute resolution process
must provide effective redress if the jurisdiction of the court is to be excluded:
at para. 21.  It is important to consider the facts of that case in order
to understand why it is inapplicable to Mr. Ferraris situation.

[50]

Pleau
queried the true nature of the dispute between the parties;
specifically, whether the dispute fell within the employment relationship and
thus the exclusive arbitration provision of the collective agreement.  Mr. Pleau
had reported what he considered to be evidence of misconduct in the operation
of a government facility.  He was dismissed from his employment.  He grieved
his dismissal successfully but then commenced an action claiming, among other things,
conspiracy to cause him damage.  The defendants conceded that the claims could
not be referred to an adjudicator as they were outside the subject matter of
disputes covered by the agreement to arbitrate.  Mr. Pleau argued that the
claim was actionable by him.  It was in this context that Cromwell J.A., as he
then was, described three interrelated considerations that underpin the
Weber
line of authority concerning the exclusiveness of the arbitration process.  At paras. 19−21
he held:

[19]      The first consideration relates to the process for resolution
of disputes.  Where the legislation and the contract show a strong preference
for a particular dispute resolution process, that preference should, generally,
be respected by the courts.  While it takes very clear language to oust the
jurisdiction of the superior courts as a matter of law, courts properly decline
to exercise their inherent jurisdiction where there are strong policy reasons
for doing so.

[20]      If the legislature and the parties have shown a
strong preference for a dispute resolution process other than the court
process, the second consideration must be addressed.  It concerns the sorts of
disputes falling within that process.  This was an important question in the
Weber decision.  The answer given by Weber is that one must determine whether
the substance or, as the Court referred to it, the essential character, of
the dispute is governed, expressly or by implication, by the scheme of the
legislation and the collective agreement between the parties.  Unlike the first
consideration which focuses on the process for resolution of disputes, the
second consideration focuses on the substance of the dispute.  Of course, the
two are inter-related.  The ambit of the process does not exist in the
abstract, but is defined by the nature of the disputes to be submitted to it.

[21]      The third consideration
relates to the practical question of whether the process favoured by the
parties and the legislature provides effective redress for the alleged breach
of duty.  Generally, if there is a right, there should also be an effective
remedy.

[51]

In the case at bar, there is no question that the nature of the dispute
falls squarely within the terms of Mr. Ferraris employment agreement,
thus the decision in
Pleau
is clearly distinct in that respect.  However,
Mr. Ferrari relies on
Pleau
to argue that he has
no effective
remedy
, and therefore the requirements of s. 15(2) of the
Act
are not met.  He says that if the chambers judge is correct, the result is that
neither an arbitrator nor the courts would have jurisdiction to determine the
rights of the parties:
Pleau
at para. 91 citing
Nova Scotia
Union of Public Employees v. Halifax Regional School Board
(1999), 171
N.S.R. (2d) 373 at 379−80 (C.A.).

[52]

The distinction between this case and
Pleau
is that this dispute
is
arbitrable.  It falls squarely within the subject matter of the
grievance/arbitration process.  It is the result of that process to which Mr. Ferrari
objects.  Mr. Ferrari is in no different position than an employee who is dissatisfied
with the terms of settlement of a grievance made by his representative
association.  In both cases the grievance procedure has been applied, but it is
the result to which the employee objects.

[53]

In
Pleau
, at para. 91, Justice Cromwell quotes from his
earlier judgment in
Nova Scotia Union of Public Employees, Local 2 v.
Halifax Regional School Board
, in which he in turn cites
Weber,
for
the proposition that arbitral and court jurisdiction are not always the mirror
image of each other; the correlation is not exact.  In some cases, court action
may be barred even though there is no remedy available through the arbitration
process.  In the result, Cromwell J.A. held in
Pleau
that because an
employee had the right to grieve but no access to test the outcome by
adjudication under the provisions peculiar to that scheme there was no
effective redress.

[54]

Here, Mr. Ferrari objects to the fact that his representative
declined to proceed with a grievance and on to arbitration if necessary, not
that he had no access to arbitration under the agreements to which he was bound.

[55]

In
General Motors v. Brunet
, [1977] 2 S.C.R. 537 at 548
,
the
Supreme Court of Canada held that, where a collective agreement provides the
union with the sole responsibility for deciding whether it will pursue a
grievance to arbitration, there is no jurisdiction for a court to hear an
employees claim simply because the union fails to carry the grievance to
arbitration.  The Court conceded that the situation might be different if the
union acted in bad faith but noted that good faith is to be presumed.  In
General
Motors
there was no allegation of bad faith.

[56]

Weber
,
Pleau
and
General Motors
are all cases
involving unions and collective agreements but, in my view, the principles I
have drawn from these cases are applicable to this case insofar as they outline
the limited jurisdiction of the courts to decide disputes that, either by
legislation or agreement, are to be resolved by arbitration.

[57]

Mr. Ferrari also argues that there is another basis to find that
this arbitration agreement, at least as it pertains to him, is not one to which
s. 15 of the
Act
applies.  He says that AAPS, unlike a union, is
not independent of the employer.  He argues that his position cannot be likened
to a union member who has the benefit of a remedy under s. 12 of the
Labour
Relations Code
, R.S.B.C. 1996, c. 244.  Mr. Ferrari says that in
the unionized context, for those disputes that fall within its ambit, s. 12
is an effective means by which an employee can apply to have the unions duty
of fair representation scrutinized by a tribunal.

[58]

This argument can be resolved by resort to consideration of the duty of
fair representation.  The corollary of the exclusive authority to arbitrate, or
not arbitrate, is the representatives duty of fair representation.  A
representative must exercise its authority with care, skill and diligence.  It
is impermissible for an exclusive bargaining agent to act in a manner that is
arbitrary, discriminatory or in bad faith when representing employees:
Canadian
Merchant Service Guild v. Gagnon et al
., [1984] 1 S.C.R. 509;
Gendron v.
Supply & Services Union of the Public Service Alliance of Canada, Local
50057
, [1990] 1 S.C.R. 1298;
Judd (Re)
, [2003] B.C.L.R.B.D. No. 63.

[59]

In
Gendron
, LHeureux Dubé J. cited with approval the description
in
Gagnon
of the principles that underpin the duty of fair
representation.  After noting that the principles were drawn from statutory
formulations and the common law, she quotes from
Gagnon
at 1327−1328:

The following principles, concerning a unions duty of representation
in respect of a grievance, emerge from the case law and academic opinion
consulted.

1.         The exclusive power conferred on a union to act as
spokesman for the employees in a bargaining unit entails a corresponding
obligation on the union to fairly represent all employees comprised in the
unit.

2.
When, as is true here and is generally the
case, the right to take a grievance to arbitration is reserved to the union,
the employee does not have an absolute right to arbitration and the union
enjoys considerable discretion.

3.         This discretion must be exercised in good faith,
objectively and honestly, after a thorough study of the grievance and the case,
taking into account the significance of the grievance and of its consequences
for the employee on the one hand and the legitimate interests of the union on
the other.

4.         The unions decision must not be arbitrary,
capricious, discriminatory or wrongful.

5.         The representation by the union must be fair,
genuine and not merely apparent, undertaken with integrity and competence,
without serious or major negligence, and without hostility towards the
employee.

[Emphasis added.]

[60]

In my view, these principles apply in a general way to a non-union
employee association such as AAPS, just as they do a certified trade union:
Radhakrishnan
v. University of Calgary Faculty Assn. (c.o.b. TUCFA)
, 1999 ABQB 713 at paras. 98−102,
affd 2002 ABCA 182;
Angus (Re)
, [1989] B.C.L.R.D. No. 200.  Indeed,
AAPS acknowledges that it owes a duty of fair representation to Mr. Ferrari.
 The question that remains is whether that duty of fair representation
constitutes sufficient legal redress for a breach of an employment agreement.

[61]

By accepting employment in an AAPS position, Mr. Ferrari agreed to appoint
AAPS his exclusive bargaining agent with the power to decide whether to
advance, settle, or arbitrate grievances.  This does not mean that he is not a
party to the arbitration agreement; rather, this means that he is a party to
the arbitration agreement in which the power to decide whether to advance,
settle, or arbitrate grievances is given to his exclusive bargaining agent,
just as he gave the power to his exclusive bargaining agent to negotiate the
terms and conditions of his employment that he enjoyed for 13 years prior to
his termination.  The fact that AAPS, and not Mr. Ferrari, had the
authority to determine whether to advance a grievance or not, is entirely
consistent with the nature of the relationship between them  i.e., the
relationship of members of a labour organization and the exclusive bargaining
agent that represents those members.

[62]

As argued by UBC and APPS, there is a trade-off in union and employee association
collective agreements.  In consideration for granting control over the grievance
and arbitration process, the employee receives the negotiated benefits of being
a member of such an association.

[63]

As between the University and Mr. Ferrari, the terms of his
employment are covered by the ACTE and the FA.  The Framework Agreement sets
out an acceptable stepped process to deal with complaints through the grievance
procedure, up to and including arbitration.  The fact that AAPS refused to
carry forward a grievance does not, on the face of it, render the agreement to
arbitrate null and void, inoperative, or incapable of being performed within
the meaning of s. 15.

[64]

As between Mr. Ferrari and AAPS, it may well be that the
Associations bylaws are inadequate to ensure the necessary scrutiny of its decision
not to proceed with his grievance.  However, that is not an issue that arises
between Mr. Ferrari and UBC such that Mr. Ferrari should cease to be
bound by the arbitration clause.

[65]

Mr. Ferrari says that if the above is true his only remedy lies in
a possible common law claim against AAPS for its failure to properly represent
him fairly.  Mr. Ferrari notes that in an action against AAPS he would
carry the burden of proof whereas in a wrongful dismissal action where
termination for cause is alleged the burden of proof is on the employer.  Mr. Ferrari
asserts that leaving him at the mercy of a management-dominated association is
not an adequate replacement for access to the courts.  Nevertheless, he is not
without a remedy and there is no reason to think that it is an inadequate one,
if he chooses to pursue it.

[66]

As the chambers judge noted, Mr. Ferrari may well have a claim
against AAPS based in the duty of fair representation.  Such a claim might
embrace the alleged inadequacies of the bylaws under which AAPS considered his
grievance.  The absence of any stepped internal review or appeal process might well
factor into such an analysis.

[67]

In summary, it is well recognized in the history of labour relations
that the model of exclusive representation of employees by their association or
union carries with it a correlative transfer of authority over the grievance
process subject only to the associations duty of fair representation:
Vaca
v. Sipes
(1967), 55 L.C. 11;
Fisher v. Pemberton et al
. (1969), 8
D.L.R. (3d) 521 (B.C.S.C.);
Rayonier Canada (B.C.) Ltd. v. International
Woodworkers of America
, Local 1-217, [1975] B.C.L.R.B. No.42;
Gagnon
.
 In my view, to accede to Mr. Ferraris argument would be inconsistent
with this long accepted trade-off.  In the circumstances of his case, Mr. Ferraris
remedy lies in a claim against his association.  As to the merits of such a
claim, I, of course, express no view, nor do I express a view as to whether
there is a fiduciary relationship between Mr. Ferrari and AAPS.  These
issues would be for a court hearing such an action.  Mr. Ferraris complaint
about the inadequacies of the AAPS bylaws cannot be foisted on the University
of British Columbia such that the agreed to arbitration provision is not
binding on Mr. Ferrari and UBC.

[68]

I conclude that the arbitration agreement is not void or inoperative
pursuant to s. 15 of the
Act.

8.       Disposition

[69]

I would dismiss the appeal with costs to UBC.

[70]

The intervenor, AAPS, is not entitled to costs.

The Honourable Madam Justice Garson

I agree:

The
Honourable Mr. Justice Frankel

I agree:

The Honourable Madam Justice
Stromberg-Stein