Union appealed decision dismissing application for want of prosecution, in relation to judicial review petition, on grounds the employee petitioner was self-represented

Administrative law – Decisions of administrative tribunals – Workers Compensation Boards – Disclosure of records – Labour law – Working conditions – Practice and procedure – Dismissal for want of prosecution – Judicial review – Delay – Self-representation

Cole v. Workers’ Compensation Appeal Tribunal, [2014] B.C.J. No. 5, 2014 BCCA 2, British Columbia Court of Appeal, January 7, 2014, I.T. Donald, M.V. Newbury and P.D. Lowry JJ.A.

Mr. Cole, the respondent, is a registered nurse and a member of the British Columbia Nurses’ Union, the appellant. He came into conflict with his supervisor at Vancouver General Hospital in and around 2003 and 2004. In May 2004, Mr. Cole filed grievances with the union. The union pursued these grievances on his behalf. After mediation, the union and employer entered into a settlement agreement. Mr. Cole informed the union that he did not wish to accept the proposal. He refused to act on the terms of the settlement agreement.

Mr. Cole complained to WorkSafeBC, the agency that administers the Workers Compensation Act, R.S.B.C. 1996, c. 492, that the actions of the employer and union were discriminatory. A WorkSafeBC adjudicator dismissed the complaint. Mr. Cole filed an appeal with the Workers Compensation Appeal Tribunal (“WCAT”). WCAT dismissed the appeal.

In 2009, Mr. Cole filed a petition for judicial review of the WCAT decision. Mr. Cole made various demands for production of documents from WorkSafeBC and WCAT. The tribunals insisted that he demonstrate relevance before entertaining any request for production. Mr. Cole refused to advance the judicial review petition until he was satisfied he had the documents he deemed necessary to proceed with judicial review.

After several years of delay, in September 2011, the union advised Mr. Cole it intended to move to dismiss the petition for judicial review. In 2012, the union filed an application to dismiss the petition for delay and want of prosecution. The chambers judge hearing the application properly identified the test for determining whether to dismiss an action for want of prosecution; however, notwithstanding a finding the delay was lengthy and inordinate, the reason for the delay was strategic and tactical, and there was some prejudice to the applicant although not irreparable, the chambers judge found the balance of justice militated against dismissing the petition for want of prosecution because Mr. Cole was self-represented and dismissal would be a draconian remedy in view of his self-represented status. The chambers judge dismissed the application for dismissal for want of prosecution.

The union appealed to the British Columbia Court of Appeal. The union acknowledged the chambers judge’s decision was a discretionary decision entitled to a high degree of deference; however, it asserted the judge gave effect to an irrelevant factor, Mr. Cole’s self-representation, or erred in principle in giving it dispositive effect when it had no bearing on the substantive factors of delay, excuse, and prejudice.

The Court of Appeal allowed the appeal and dismissed the petition. It held Mr. Cole’s delay was inordinate and had no reasonable excuse because it was strategic and tactical, in other words, intentional, calculated, and not inadvertent or as a result of his unsophistication in legal matters. It held that in the labour relations context, delay in resolving disputes works to all parties’ detriment. Therefore, there was prejudice to the appellant. Having regard to that consideration, the Court held the imperative of expedition in labour disputes bears on the balance of justice. Delay can disturb the balance and impede a satisfactory outcome for all concerned. The Court held the judge erred in dismissing the motion on the ground of Mr. Cole’s self-represented status in the absence of any nexus between his status and the delay. While it is right and just to accommodate self-represented litigants on procedural matters, recognizing the relative disadvantage in an unfamiliar setting, the delay was not a mere slip or misunderstanding brought about by Mr. Cole’s self-represented status, but created by his stubborn preoccupation with document discovery, which was inordinate, and his failure to respond to the union’s notice of its intent to move for dismissal. The Court held it was wrong for the chambers judge to use Mr. Cole’s bare status as a self-represented litigant for dismissing the union’s motion.

This case was digested by Joel A. Morris of Harper Grey LLP. If you would like to discuss this case further, please feel free to contact him directly at jmorris@harpergrey.com or review his biography at http://www.harpergrey.com.

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