Casavant v. British Columbia (Minister of Environment and Climate Change Strategy)

2022 BCSC 1573 Casavant v. British Columbia (Minister of Environment and Climate Change Strategy) IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Casavant v. British Columbia (Minister of Environment and Climate Change Strategy), 2022 BCSC 1573 Date: 20220907 Docket: S211700 Registry: Vancouver Between: Bryce J. Casavant Petitioner And Her Majesty the Queen in Right of the Province Of British Columbia as Represented by the Minister of Environment and Climate Change Strategy, the Minister of Environment and Climate Change Strategy (B.C. Conservation Officer Service) and the Chief Conservation Officer Respondents Before: The Honourable Justice McDonald On judicial review from: A decision of the Chief Conservation Officer of the Conservation Officer Service, Ministry of Environment, dated August 25, 2015. Reasons for Judgment Counsel for the Petitioner: A.M. Beddoes J.M. Wiebe Counsel for the Respondents: K. Chewka B. Wagner Place and Date of Hearing: Vancouver, B.C. March 7-9, 2022 Place and Date of Judgment: Vancouver, B.C. September 7, 2022 Table of Contents Introduction. 3 Factual Overview.. 3 Issues. 5 The Court is bound. 5 The exercise of discretion related to the relief sought. 7 Legal Principles. 7 Analysis. 8 Disposition. 14 Introduction [1] This petition raises the question of whether this Court should grant the remedies sought by Mr. Casavant on judicial review. Mr. Casavant contends that in light of the Court of Appeal's decision allowing, in part, his appeal from the order dismissing his previous judicial review application, I should provide him with the remedies he seeks. [2] For reasons that I will explain, I have decided not to exercise my discretion to provide a remedy on this judicial review based on the particular and unusual circumstances that arise on this petition and the history of the parties' interactions to date. Factual Overview [3] In 2015, Mr. Casavant, was dismissed from his position as a conservation officer and Special Provincial Constable (the "Dismissal). [4] Following the Dismissal, there were numerous steps taken by Casavant, or on his behalf, to challenge what happened to him, including grievance and arbitration procedures, as well as judicial review and appeal proceedings. [5] Specifically, grievances were filed in respect of the Dismissal and an arbitration was commenced. On February 19, 2016, Mr. Casavant's employer (the "Conservation Officer Service"), the union representing employees of the employer (the "BC Government & Service Employees' Union [BCGEU]"), and Mr. Casavant signed a memorandum of settlement and release (the "Settlement Agreement"). [6] During the arbitration, the arbitrator made certain rulings, known as the "Scope Award" and the "Standing Award". In 2017, Mr. Casavant sought to have the Labour Relations Board of British Columbia (the "Board") review the Scope Award and the Standing Award. Mr. Casavant's request for review was dismissed. He then sought a reconsideration. [7] In 2018, the Board dismissed Mr. Casavant's reconsideration application. Mr. Casavant then sought judicial review of the Board's reconsideration decision. His application for judicial review was refused on August 23, 2019. Mr. Casavant then filed an appeal to the British Columbia Court of Appeal. [8] Approximately two and half years after signing the Settlement Agreement, on August 6, 2019, Mr. Casavant gave notice that he was resigning from the public service. [9] The Court of Appeal, in its decision in Casavant v. British Columbia (Labour Relations Board), 2020 BCCA 159 [Casavant BCCA], leave ref'd 2021 CarswellBC 120 (S.C.C.), set out a detailed and succinct summary of the history of the proceedings and it is not necessary for me to repeat it here. [10] On June 4, 2020, the Court of Appeal allowed, in part, Mr. Casavant's appeal from the denial of his application for judicial review, stating as follows: [60] Mr. Casavant seeks a declaration that the [Labour Relations] Board did not have jurisdiction over his dismissal -- but the question arises as to the practical effect of that declaration given that the settlement agreement the parties entered into has governed their relationship for more than four years. This question was not addressed on appeal by any party, other than to acknowledge that the issue was "complicated". [61] 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 [Regulation], and to leave the parties to sort out the consequences of those declarations, if any, on the settlement agreement. Casavant BCCA, at paras. 60-61. [11] The parties were unable to sort out the consequences of the Court of Appeal's declaration. On February 23, 2021, Mr. Casavant filed this petition seeking, among other things, an order declaring the Settlement Agreement is void and of no force and effect as it relates to him, and, that he remains a conservation officer entitled to all emoluments, including full pay and allowances. Issues [12] The petition raises the following issues: a) Is this Court bound by the Court of Appeal's declarations? b) Is it appropriate to grant the relief sought? [13] I conclude I am bound by the decision in Casavant BCCA. I also conclude it is not appropriate to grant the relief sought by Mr. Casavant because of the particular circumstances the parties find themselves in, including the terms of the executed Settlement Agreement and Mr. Casavant's resignation from the BC Public Service. The Court is bound [14] The respondents submit that Casavant BCCA is not binding on me in respect of this petition because the Court of Appeal lacked the benefit of a complete evidentiary record when it made its decision. [15] When the matter was before the Court of Appeal, the decision under review was the reconsideration decision of the Board. Here, the decision under review is the Chief Conservation Officer's August 25, 2015 decision to transfer Mr. Casavant from his position as a conservation officer and Special Provincial Constable. That decision is also known as the Dismissal. [16] In the respondents' view, I am entitled to consider the record that is before me and potentially come to a different conclusion than the Court of Appeal did. More specifically, they urge me to conclude that the August 25, 2015 decision related to Mr. Casavant's general unsuitability for employment as a conservation officer is a matter governed by the collective agreement and not the Regulation. [17] In Casavant BCCA, the Court of Appeal considered the issue of the contents of the record before it in light of the respondents' argument that the Police Act process was inapplicable. There, the respondents argued unsuccessfully that the complaint concerned Mr. Casavant's general unsuitability for employment and as such, it was governed by the collective agreement. [18] Prior to dismissing the respondents' argument that the question of jurisdiction should be remitted to the Board, the Court of Appeal referred to the matter of the record: [54] The Collective Agreement does not form part of the record, so neither the Ministry nor the Union particularized their argument that the issues raised by Mr. Casavant's dismissal were governed by its terms. Mr. Casavant agrees that some aspects of the employment of Special Provincial Constables are governed by the Collective Agreement, such as hours of work, wages, and general expectations. However, he submits that all of the conduct put in issue by the Ministry related to the performance of constabulary duties. I agree with that assessment. [55] It is the essential character of the matters raised that is determinative, not the employer's characterization of the complaints as "unsuitability for employment": Deighton v. Vancouver Police Board (1986), [1987] B.C.W.L.D. 278 (S.C.). Casavant BCCA at paras. 54-55 [19] In my view, the Court of Appeal's conclusion that the disciplinary nature of the Dismissal was self-evident means that nothing more is required. In other words, as it relates to this conclusion, nothing turns on the contents of the record, including the content of the record that is before me. [20] I conclude I am bound by the Court of Appeal's findings that: a) The disciplinary nature of the Dismissal is self-evident: Casavant BCCA para. 57. b) There is no point in remitting the jurisdictional question to the Board because it lacks jurisdiction to address the Dismissal under the collective agreement: Casavant BCCA para. 59. c) The proceedings before the arbitrator and Board are a nullity: Casavant BCCA para. 61. d) The Dismissal should have been addressed under the Police Act, Special Provincial Constable Complaint Procedure Regulation: Casavant BCCA para. 61. [21] As support for the relief sought, Mr. Casavant relies on a series of decisions involving Mr. Carpenter, who was dismissed from his position as a constable with the Vancouver police force: Carpenter v. Vancouver (City) Commissioners of Police, (1985), 63 B.C.L.R. 310 (C.A.) [Carpenter No. 1]; Carpenter v. Vancouver Police Board (1986), 9 B.C.L.R. (2d) 99 (C.A.), leave to appeal ref'd, 12 B.C.L.R. (2d) xxxvi (note) (S.C.C.) [Carpenter No. 2]; and, Carpenter v. Vancouver Police Board (1988), 33 B.C.L.R. (2d) 182 (S.C.) [Carpenter BCSC]. In Casavant BCCA, the Court of Appeal referred to Carpenter No. 1 and Carpenter No. 2 in deciding to allow, in part, Mr. Casavant's appeal. [22] In this case, unlike in Carpenter, there are no orders or declarations stating that the Dismissal is set aside or that Mr. Casavant is reinstated as a conservation officer with entitlement to pay and allowances. Those findings were made following Carpenter No. 2 and they were referred to in Carpenter BCSC at pp. 7-8. The exercise of discretion related to the relief sought [23] Having concluded that I am bound by the Court of Appeal's findings and the declarations made, I turn now to consider Mr. Casavant's requests for relief and whether I ought to exercise my discretion to provide a remedy. Legal Principles [24] Even when, on the merits, an applicant establishes a case for judicial review, there is an overriding discretion on the part of the reviewing court to refuse relief: Strickland v. Canada (Attorney General), 2015 SCC 37 at para. 37 [Strickland]. [25] In ISH Energy Ltd. v. British Columbia (Minister of Finance), 2017 BCCA 62 at para. 23, the Court of Appeal described the nature of this overriding discretion as follows: 23 Thus, on an application for judicial review, it is open to a reviewing judge, in the exercise of his or her discretion, to decline to provide a remedy where the circumstances warrant. This discretion is manifest in the Judicial Review Procedure Act, R.S.B.C. 1996, c. 241, which provides in s. 2(2) that: On an application for judicial review, the court may grant any relief that the applicant would be entitled to in any one or more of the proceedings for: (a) relief in the nature of . . . certiorari; [emphasis added] and in s. 8(1) that: If, in a proceeding referred to in section 2, the court had, before February 1, 1977, a discretion to refuse to grant relief on any ground, the court has the same discretion to refuse to grant relief on the same ground. [26] In exercising discretion, all relevant factors should be taken into account and the factors are not distilled into a checklist or statement of general rules: Strickland para. 45. [27] The situations where a court may decline to grant relief include, for example, circumstances where granting the remedy sought would serve no purpose or make no practical difference to the parties: ISH paras. 24 and 25. Such circumstances militate against granting the relief sought. Analysis [28] The parties acknowledge the Court of Appeal's description of the complications that arise in terms of assessing the practical effect of their declarations: Casavant BCCA para. 60. [29] It seems to me that I must balance the reality that the Dismissal has not been addressed pursuant to the Regulation, with the existence of the Settlement Agreement, which the Court of Appeal observed has governed the parties' relationship for many years now. [30] In my view, the Settlement Agreement and its effect, if any, is a relevant factor that needs to be taken into account in deciding whether to exercise my discretion to grant the relief sought. [31] On February 19, 2016, the employer, the union and Mr. Casavant signed the Settlement Agreement. It states, in relevant part: Whereas: The Union filed the following grievances on behalf of the Employee: Therefore, this agreement is made between the parties without precedence or without prejudice to any current or future matters between the parties. The parties have mutually agreed to resolve the above noted Grievances as follows: 1. The Employer confirms that the following documents will no longer be on the Grievor's personnel file: the letter dated July 8, 2015 suspension pending investigation letter and the letter dated August 25, 2015 letter. No other documents related to this matter have been or will be on his personnel file. The Conservation Officer Service and any other Ministry of Environment employees will ensure that all the above noted documents will be destroyed from ministry records including the psychologist report by Keith Forshaw and other investigation materials. 2. No discipline will be issued to the Grievor regarding the issues during his employment with the Conservation Officer Service. 3. The Grievor accepts the Senior Compliance and Enforcement Officer Specialist position with the Ministry of Forests, Lands and Natural Resource Operations (FLNRO) He will not return to the Conservation Officer Service now. 4. The Union will withdraw the outstanding grievances of the Grievor. 5. The Grievor will withdraw all other employment-related complaints relating to his former position with the Conservation Officer Service He agrees not to file any further complaints or grievances pertaining to matters during his employment with the Conservation Officer Service. 6. Provided the Grievor enrolls in a formal program of study in areas related to the government's priorities, he will receive the maximum eligible amount of reimbursement to upgrade his employment-related skills as an educational expense up to four years at the most. Eligible reimbursable expenses are tuition. The Grievor must satisfactorily complete coursework for each eligible year in order to receive the reimbursement. If he fails to do so, he must repay the COS the full amount. 10. The Employer will provide a letter of support and all documentation that may be necessary for the purposes of obtaining admission to an educational program. 12. At no time will the Conservation Officer Service state that they would not rehire the Grievor. 13. The Conservation Officer Service will instruct their employees not to comment on the Grievor's employment record. 14. The parties hereby release one another from any liability with respect to any claims (grievances, actions, disputes, complaints, etc.), which have arisen or may arise regarding the Grievor's employment with the Conservation Officer Service including any claims or potential claims arising under the Employment Standards Act, the Labour Relations Code, the Human Rights Code, the Workers Compensation Act, other statutes or at common law. The Grievor releases both the Employer and the Union from any liability in regard to the above. 15. The terms of this agreement do not constitute an admission of legal liability or wrongdoing by any of the parties; 17. The Grievor acknowledges that the terms of this Agreement have been explained to him by his Union representative and are fully understood. The Grievor further agrees that the terms of the Agreement are accepted voluntarily for the purpose of making a full and final settlement. 18. This agreement constitutes a final, enforceable and binding settlement of all of these matters. [32] Mr. Casavant advances a number of arguments with respect to the Settlement Agreement. For example, Mr. Casavant submits that since the arbitration proceedings are a nullity, the Settlement Agreement, as it relates to him, is void and of no force and effect, while at the same time, arguing that it continues to bind the employer and the union. [33] Mr. Casavant also submits that since he is not a party to the Settlement Agreement, it is not binding on him. In support of this, Mr. Casavant points out that during the appeal, the union's counsel conceded that he is not a party to the Settlement Agreement. [34] The respondents did not argue that the Settlement Agreement is a nullity, void ab initio, or that it is impacted by some mutual or unilateral mistake. Rather, the respondents assert that the signatories relied on the terms of the Settlement Agreement and performed all of their obligations under it and are, therefore, bound by its terms. [35] A plain reading of the Settlement Agreement indicates that it was a resolution of more than just the arbitration and the underlying grievances, which we now know is a nullity. [36] The Settlement Agreement sets out obligations on the part of Mr. Casavant that, in my view, are personal to him and outside the control of the union. For example, Mr. Casavant agrees that he will personally repay the educational reimbursement in certain circumstances. [37] According to the hearing transcript (Affidavit #2 of B. Casavant made January 28, 2022, Ex. J, p. 60), the union's counsel was asked to confirm whether its position was that "it was not necessary for Mr. Casavant to sign the settlement agreement as a party". The counsel responded by saying: "No. The only parties to the settlement agreement - or rather to the grievance are the union and the employer." [38] Mr. Casavant provided a May 10, 2021 letter to his counsel from the union stating that the union takes the position that the only parties to the Settlement Agreement were the Ministry and the union. While that may be the union's position, it does not necessarily follow that Mr. Casavant is not a party to the Settlement Agreement or that I should disregard the Settlement Agreement in deciding whether to exercise my discretion. [39] There is no dispute that Mr. Casavant was not a party, in his own right, to the arbitration proceedings. In the labour relations context, the union files a grievance on behalf of an employee alleging a violation of the collective agreement and the employer and union are the parties to an arbitration proceeding. [40] Nonetheless, Mr. Casavant clearly had an interest in the outcome of the grievance. It is true that Mr. Casavant had no legal representation of his own during the arbitration, including when he signed the Settlement Agreement. However, he was assisted by his union representative. [41] The Settlement Agreement includes an acknowledgement that the terms were explained to Mr. Casavant and he fully understood them. The Settlement Agreement also states that Mr. Casavant voluntarily accepts the terms "for the purpose of making a full and final settlement". [42] In the Settlement Agreement, it states that Mr. Casavant releases both the employer and the union from any liability in respect of any current or future claims related to his employment with the Conservation Officer Service (emphasis added). It is clear the Settlement Agreement provides for a release going well beyond the grievances and arbitration. [43] When I consider all of the circumstances, I find that Mr. Casavant is a party to and bound by the Settlement Agreement. I do not find that the Settlement Agreement is a nullity or void including as against Mr. Casavant, due to the effect of the Court of Appeal's declaration, or otherwise. [44] In my view, the declarations of the Court of Appeal in Casavant BCCA do not necessarily require me to conclude that the Settlement Agreement is a nullity or void ab initio. If I am incorrect about that, I would also have declined to exercise my discretion to grant the relief sought because of the difficulties, if not impossibility, of unwinding the Settlement Agreement in the circumstances. [45] My findings are also based, among other things, on Mr. Casavant being a signatory and receiving consideration under the Settlement Agreement. For example, he received reimbursement for his educational expenses, in exchange for his full and final release of all claims related to his employment with the Conservation Officer Service. [46] I also find that the signatories acted on the Settlement Agreement. For example, the employer paid substantial reimbursements for Mr. Casavant's educational expenses. The employer was required to destroy records and to commit to not discipline Mr. Casavant, which could impact a consideration of the Dismissal pursuant to the Regulation, which Mr. Casavant agrees is not technically statute-barred. [47] For his part, Mr. Casavant continued working in the BC Public Service following the Settlement Agreement. As a continuing employee, he had the benefit of ongoing salary and benefits including the employer's contribution to the public service pension on his behalf. It was more than two years after the Settlement Agreement was signed, that Mr. Casavant gave notice of his resignation from the BC Public Service. [48] There were clearly disputes concerning compliance with the Settlement Agreement. For example, Mr. Casavant contacted the Chief Conservation Officer concerning conduct that he regarded as "a direct violation of our legal agreement". Both the union and the employer filed applications alleging violations of the Settlement Agreement. [49] In a memorandum dated June 13, 2016, the arbitrator (who, by agreement, was seized on issues related to the implementation of the Settlement Agreement), noted that: "At the hearing, it was acknowledged that all of the parties including Mr. Casavant continue to be bound by the terms of the February 19, 2016 settlement agreement, which provides for various reciprocal obligations." (Affidavit #1 of A. Merritt, made April 19, 2021, Exhibit K, pp. 414-415). [50] In light of the particular and somewhat unique facts before me, I have concluded that the circumstances are such that they warrant my decision to decline to provide the remedies sought on judicial review. My decision is based, in part, on my concern that granting the remedies sought would serve no purpose or make no practical difference to the parties for reasons that include the numerous years during which the Settlement Agreement governed the parties' relationship and Mr. Casavant's eventual resignation from the BC Public Service. Disposition [51] By consent, the style of cause of this proceeding is amended pursuant to Rule 6-1 of the Supreme Court Civil Rules, B.C. Reg. 168/2009 to remove "Her Majesty the Queen in Right of the Province of British Columbia" as a party. [52] The petition is dismissed with costs. "E. McDonald J."