The first of the two articles in the Sunday issue focuses on the case of Margaret Christopherson, a teacher who refused to participate in the recent strike and who crossed the picket lines. According to Mr. Smyth the executive of her local, the Nicola Valley Teachers’ Union, has since declared her and three of her colleagues “members in bad standing” and has sent them letters informing them that they will remain in bad standing and therefore not be able to participate in union elections, until they pay to the BCTF the money they earned during the strike.

Evidently one of the recipients of that letter has already acquiesced. However Ms. Christopherson then wrote to BCTF President, Jinny Sims, whose written response is published in the paper. The article also reports that Ms. Christopherson has brought an action against the BCTF before the Labour Relations Board and in the following paragraphs implies that the case is unprecedented:

"Christopherson alleges the union has contravened the B.C. Labour Code by demanding a financial penalty from a member who refused to break the law.

The case may be precedent setting. Mark Brown, registrar of the LRB, said Christopherson is the only teacher in B.C. to lay such a complaint.

The BCTF faces an April 28 deadline to file a statement of defence in the case, Brown said. After that, the dispute will be turned over to an adjudicator, who may order a hearing. A decision in the case is expected within weeks."

However, in order to ensure their decisions do not challenge the status quo, the Labour Board tends to avoid anything that might constitute a real precedent, and so despite the attention it has now received from the mainstream media, this case sounds like a storm in a teacup.

At the hands of their unions, previous applicants to the Board have had their careers brought to an abrupt end. In this instance a member, who is characterized as working part-time and nearing retirement, has apparently lost nothing more than the right to vote or to run in union elections. Well, I hope Ms. Christopherson at least stands her ground and forces the BC Labour Relations Board to write another one of its legendary, precedent setting pieces of jurisprudence.

[ 23 April 2006: Message edited by: gbuddy ]

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Originally posted by S1m0n:
If the management side gets to make up unequal rules and impose penalties on the opposition in their dispute--and this is exactly what they did--then the Union isn't being any less fair in doing the same with respect to the rules they're entitled to enforce.

The difference is that the Union can't pass laws fining Gordie Campbell.

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The reason the strike happened in the first place and the reason why this little dispute will be dragged out is because we have a feudal labour relations regime. The current Premier didn’t have a hand in creating that regime (the current Code was written in 1992). He and his colleagues are merely maintaining it.

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Originally posted by gbuddy:

The NDP had a golden opportunity to invent a regime under which there would be no need to declare strikes illegal, but instead they gave the unions what they wanted. We continue to live with the result.

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Originally posted by S1m0n:

Huh? The strike was illegal because the union got what it wanted?

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In 1992, the newly elected NDP government made a big deal about the labour relations regime. The previous Socred government, for reasons I have not yet figured out, had done away with the LRB and the Code that had been initially put together by an NDP government in the 1970’s.

The Socred government introduced a new Labour Relations Statute and replaced the LRB with an Industrial Relations Council. The unions were very unhappy with the new statute and tribunal and the labour relations game became even more confrontational. In fact I believe the unions actually implemented a “boycott” of the IRC, or at least made major noises about doing so.

So, when the Harcourt government took power, there was an opportunity to really accomplish something. The record shows they blew it. I’ve spent a good deal of time reading the Hansard records from 1992 of the lengthy debate about the new Code. Lots of empty rhetoric, but little else. The unions and the union-friendly government then had years to assess what they had wrought and improve on it. (Moe Sihota was the first and I believe Joy MacPhail the last of six NDP Ministers of Labour, which is a good indication of their lack of interest in accomplishing anything worthwhile.)

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Originally posted by gbuddy:

That's not the point I was trying to make...[snip]

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Originally posted by S1m0n:
If any of that was the point you were trying to make, at least as far as last year's teacher's strike goes, it sure isn't obvious.

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Originally posted by Jacob Two-Two:
You're not making any sense. Unions are unified, hence the name. If you don't show solidarity, and comply with the job actions that the membership vote to perform, then you get penalised. All unions act this way. All organisations act this way.

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The Bible is the Word of God. End of discussion. Union means we are unified. End of discussion. Why do you bother pretending that you are prepared to discuss anything?

To provide a more explicit answer to your comment, I am not specifically critical of the BCTF or its decision to proceed with a labour action that the courts subsequently deemed illegal. I just happen to believe that on both sides of such disputes, the people calling the shots are not acting based on any fundamental integrity. It is all a calculated but foolish game, and from what I have witnessed the union members never benefit; they just pay for it all.

For a number of years I have fought a legal battle with another major union, CUPE. I have dealt with their officials, their paid staff and the lawyers representing them, and with their allies, the employer and the Labour Relations Board. The endlessly duplicitous behaviour I have witnessed from this veritable army of mercenaries is just sickening, and I can be very specific. In due course I will release a detailed account of the entire sordid story. On this forum I have been insulted because I took a stand and have spoken the truth, not because I crossed a picket line or did anything to undermine “solidarity”.

My story however, is just one of many. Jinny Sims’ letter to Ms. Christopherson demonstrates the same fundamental lack of integrity. She refers to an opinion she evidently sought from “our Federation legal counsel” to legitimize her suggestion that Ms. Christopherson “donate” her earnings from the time of the strike to the union. On the same page that The Province has printed that letter, Michael Smyth also talks about the issue of the incomes enjoyed by the BCTF staff that has now apparently raised the ire of many teachers. Too whom would Ms. Christopherson be “donating” her earnings?

The problem with Ms. Sims and it seems most of the other union “leaders” is they don’t use basic common sense. They too rely entirely on dogma to justify behaviour that is clearly self-serving.

Had I been a teacher during this recent dispute and chosen not to cross a picket line, that decision would likely have been more of a pragmatic one than one based on principle. We do not know Ms. Christopherson's reasons for her decision, but I doubt it was one she took lightly. Mr. Smyth is right about one thing. Ms. Sims and her colleagues should put the dispute behind them. By bringing actions against their own members they are achieving nothing except demonstrating the hypocrisy of their claims about solidarity.

I don’t buy the sales pitch about solidarity. There is no solidarity in the Canadian labour movement. The unions are constantly selling out their own members. If there was true solidarity they would have organized the entire country by now. The labour and employment laws in this country are antiquated, but the NDP had almost an entire decade in B.C. to change that and what did they do? Even with those antiquated laws the employers don’t have a secret weapon that makes organizing workers impossible. Both sides rely on the same empty rhetoric and the public just isn't buying it anymore.

[ 24 April 2006: Message edited by: gbuddy ]

It's full of bitterness, old resentment, and innuendo, to the point of incoherence.

Can you spell out exactly what you think is wrong with the BC labour relations regime, why that's a problem, how this problem relates to the BCTF, and whose fault you think this is?

Then you say:

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I just happen to believe that on both sides of such disputes, the people calling the shots are not acting based on any fundamental integrity.

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Originally posted by S1m0n:
Can you spell out exactly what you think is wrong with the BC labour relations regime, why that's a problem, how this problem relates to the BCTF, and whose fault you think this is?

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More specifically there is the labour relations community, which includes the LRB, a significant number of labour lawyers and arbitrators, who profit handsomely from the system and are determined to prevent any reforms.

The opinions I have expressed are based on six years of experience contending with the labour relations regime. Less than eighteen months after I first became a union member I sat through a labour arbitration hearing that ended my career and was probably the most stressful two days I have ever experienced.

CUPE should have been there in force to match the substantial team sent by the employer. No one, let me repeat that – no one – from CUPE even showed up for the hearing. That’s because they had done no preparation whatsoever during the entire seven months that they had allowed to transpire since my termination. And that was despite my relentless efforts to get them to do that preparation.

I could write a lot more about that particular experience (and I did – in a fifty page affidavit) but I shouldn’t need to.

Months before the arbitration, I had discovered, exclusively through my own efforts, the Labour Relations Board, and had made a point of meeting with their Information Officer and a Special Investigating Officer. They were well apprised of what was going on, but advised me to take no action until CUPE and the employer had played their last cards. That was not good advice. They could and should have advised me to put all my concerns in writing to them on an ongoing basis so that the resulting record could have been used in the subsequent formal complaint. The role of the Special Investigating Officer is supposed to include precisely that kind of thing.

Ten of that Board’s Vice Chairs have since pretended to deliberate on my case and have issued five formal decisions which are, collectively, a load of bullshit. None of those Vice Chairs ever intended to set eyes on me. Despite a “full oral hearing” being scheduled to commence at the end of November 2003, there was never going to be a hearing. The agenda was to ensure that the facts, that had never been presented at the arbitration, would never be aired anywhere.

As I’ve mentioned elsewhere on this site, I have assembled incontrovertible evidence that Section 13, which was used to throw out my case (and several hundred others) was surreptitiously and illegally altered in 1996 to allow the Board to justify those dismissals. That action was a contempt of parliament and part of an ongoing political conspiracy to deny the citizens of this province their entitlement to a fair hearing.

The BC LRB, either alone or in concert with other parties, instigated that conspiracy. To carry it out they needed the cooperation of employees in the Ministry of Labour and elsewhere in government. Many people undoubtedly knew what was going on and have said nothing. The government and the opposition has heard from me repeatedly about this (e.g. my Open Letter to the Legislature) and they both continue to stonewall me because they cannot deny the truth.

If any of what I have uncovered should be put before a jury I have no doubt the judgement will be severe. Only a regime that is morally and intellectually bankrupt would need to resort to such criminal conduct.

quote:

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Originally posted by gbuddy:
The opinions I have expressed are based on six years of experience contending with the labour relations regime. Less than eighteen months after I first became a union member I sat through a labour arbitration hearing that ended my career and was probably the most stressful two days I have ever experienced.

CUPE should have been there in force to match the substantial team sent by the employer. No one, let me repeat that – no one – from CUPE even showed up for the hearing. That’s because they had done no preparation whatsoever during the entire seven months that they had allowed to transpire since my termination. And that was despite my relentless efforts to get them to do that preparation.

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Originally posted by S1m0n:
OK, so it is (as I suspected) bitterness and old resentment, unrelated to the BCTF or really the current status of the law.

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Originally posted by gbuddy:
Less than eighteen months after I first became a union member I sat through a labour arbitration hearing that ended my career and was probably the most stressful two days I have ever experienced.

CUPE should have been there in force to match the substantial team sent by the employer. No one, let me repeat that – no one – from CUPE even showed up for the hearing.

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Originally posted by gbuddy:
The current status of the law is that (despite the public admissions by the presidents of CUPE BC and the BCNU that it should be removed from the Code) the illegally re-engineered Section 13 remains on the books so that the LRB can continue to provide all the unions, including the BCTF, with blanket immunity.

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Originally posted by ouroboros:
So, CUPE okayed an arbitration and then didn't send anyone? Who paid for the arbitration?

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Originally posted by gbuddy:

I did, with my career.

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Originally posted by ouroboros:
Perhaps, I don't know your case so I can't say. However, someone must have paid (money) for the arbitration. Who paid the money for the arbitration?

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On the other hand, why do I get the impression that either you think you know the answer to every question you pose or you don’t care about the answer? Have you taken the time to read the material I posted that answers your previous question? Judging by the time stamp on your latest posting, that doesn’t seem likely.

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Originally posted by gbuddy:

You’re right. You don’t know anything about my case, and I’ll wager you never will.

On the other hand, why do I get the impression that either you think you know the answer to every question you pose or you don’t care about the answer? Have you taken the time to read the material I posted that answers your previous question? Judging by the time stamp on your latest posting, that doesn’t seem likely.

Just for the record, since I am speaking from some practical experience, what specific experience do you have with the conduct of arbitrations? Presuming that you do know something about the process, who do you think paid for the one that cost me my career?

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I just haven't heard of a union okaying a arb. and not sending anyone.

But after reading the LRB docs I see that the union did send a third party lawyer.

Have you taken the time to read the material I posted that answers your previous question? Judging by the time stamp on your latest posting, that doesn’t seem likely.

I will give you that at the time of my last post I hadn't. I have now.

Just for the record, since I am speaking from some practical experience, what specific experience do you have with the conduct of arbitrations? Presuming that you do know something about the process, who do you think paid for the one that cost me my career?

I have sat for a union in a few succesful ones and I'm betting the union paid for it.

I have read the LRB rulings. But I'm not going to comment on them. I don't know the whole story and haven't seen your submissions to the LRB.

As you note, you haven’t seen my submissions, and I learned a long time ago that the BC Board’s decisions are not intended to be a reasonable reflection of what they have received from the complainant. Everyone who has seen my original DFR complaint and subsequent submissions has commented very favourably on them, and my intention is at some point to post those materials online.

In fact it is the consensus of the many experienced DFR applicants with whom I have spoken that the BC Board simply constructs its decisions to achieve the end it always has in mind. On the very rarest of occasions it has declared that a union breached its Duty, but I believe these are token cases that are carefully selected and managed so that there are no substantial consequences for the union and so that no useful precedents are set. It’s a straightforward, though time-consuming, process to review both the statistics on and substance of the Board’s DFR decisions. The entire record, in my view, is simply disgraceful.

As for my own arbitration, yes, when the CUPE National staff refused to show, Local 15’s Secretary-Treasurer, evidently in a complete panic, started phoning around the Vancouver labour law community and found someone. I recall she told me he was with Victory Square. He was not and never had been. He wasn’t with any firm, but I have since learned a bit about his background (which includes some indications that he was in the habit of picking up these last minute assignments and going in unprepared). As I have mentioned before, he appeared to me to be clinically depressed, and I later learned why. Fourteen months after the arbitration he died from ALS, an incomparably worse fate than my own. So I do not harbour any ill-will towards him.

I would suggest though that may be a reasonable explanation for his willingness to proceed in this instance without any preparation. I have a copy of the sole materials CUPE provided to him. Everything in the binder is what I provided to CUPE. There’s nothing else. They did no preparation whatsoever, because they had no expectation that the hearing would take place. It’s hard to say who screwed up more: Local 15 or the CUPE National staff. I guess its a tie. I subsequently heard there was a lot of internal finger-pointing going on.

At the arbitration, the City arrived with their lawyer, two HR staff, the two witnesses against me (one a manager, the other the coworker who had engineered my termination), and the department’s Acting Director who had actually fired me. My own manager was not there (hint). Nor were the two other coworkers whose alleged hostility towards me was used as hearsay evidence (hint).

It was a classic kangaroo court. With what I have since learned about arbitrations and advocacy, I could have done a far better job than what was ostensibly done on my behalf, even without the time for adequate preparation. Consider the larger implications of the position the union put itself in, where it did not have an advocate for the hearing until one day before it was set to commence. That simple fact is evidence to support my contention that there had been no intention to go through with the hearing and therefore no preparation whatsoever. Therefore, the union breached its Duty long before the hearing and I can assure you I would have filed a DFR complaint even if by some fluke it had been successful. Secondly, what would have happened if they had not been able to find anyone, which I believe was a distinct possibility, since I’m sure very few lawyers would be foolish enough to proceed under those circumstances? These people had no idea what they were doing. The train was entirely off the rails.

Who paid for it? Well obviously I didn’t. But, knowing the true merits of my case I would have willingly done so if that would have given me standing in the hearing and control over my own advocacy. Of course CUPE would never have agreed to such a proposal (I was effectively told that on the day I was fired).

I heard before the hearing took place that after her staff refused to show, the CUPE Regional Director, Cynthia Wishart, had told the Local that they would not pay for any hearing (from which I presumed that is what should have happened). Obviously though, Local 15 or the National office picked up the union’s half of the bill.

There’s much more to this bizarre story, and I do intend to post the entire account at some point.

The larger issue for me now is that what I presented to the LRB was far more than what was necessary to establish a “prima facie” case. But at the time I accepted (reluctantly) the impression being given to DFR complainants by the Board that “prima facie” was merely a loose shorthand term for the bogus “standard” it had established. That is not the case. “Prima facie” is a legal term of art, which means it has a precise meaning established by jurisprudence. A consequence of that meaning is that there is a very high onus on an adjudicator to justify a “prima facie” dismissal. That is why the Board’s adjudicators redefined it in 1994 and arranged to alter the provision itself two years later. As I have said elsewhere, for any person or agency other than the legislature to alter the substance of a statutory provision is a contempt of parliament.

That is what I am calling a conspiracy. If anyone I have implicated in this affair doesn’t like the allegation they are welcome to bring a defamation lawsuit against me. I’d be thrilled to have it heard by a jury.

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Originally posted by gbuddy:
It has always amused me that trade unions and many of North America’s Christian organizations have shown enmity for each other, because your response demonstrates something about the mindset of many, if not most, trade unionists. It is just another religion. It is pure dogma.

]

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This statement is a clear indication that you lack an understanding of the labour movement's history. The idea of solidarity has nothing to do with dogma, but rather has been realized as a necessary ingredient for success in the working class struggles through many many years of concrete experience going back a few hundred years.

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Originally posted by rbil:
This statement is a clear indication that you lack an understanding of the labour movement's history. The idea of solidarity has nothing to do with dogma, but rather has been realized as a necessary ingredient for success in the working class struggles through many many years of concrete experience going back a few hundred years.

Cheers.

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I will modify the statement you have quoted and say that the process of the labour movement morphing into just another religion is not yet complete. But your response indicates to me that it may not have far to go.

You are correct that I am not an expert on labour history. It is one of the subjects about which I would like to know more. Somewhere on that list too is a desire to study the entire history of Christianity. I think that could prove to be a worthwhile venture – when I have the time. However, I long ago decided that the stories on which that faith are based must for the most part be consigned to the category of mythology and I would not expect to change my mind.

The situation with labour is a little different. The history to which you refer is recent enough that the facts are no doubt accurately and thoroughly recorded. Yet the process of mythologization has already begun.

“Solidarity” for example is now an incantation. Too often this word is used to immunize those who use it from any debate, any question of their rigid view of the world.

I do not doubt that the under the solidarity banner there have been many worthy and even noble struggles since that word became a call to arms. (The fairly recent and famous one in Poland comes immediately to mind.) However, I think the self-anointed “leaders” of today’s labour “movement” in this country have largely betrayed the principle, and I think that fact is self-evident.

In my last post I spoke about very recent history. What do you suppose posterity will have to say about the actions of labour leaders who were prepared to have democracy itself usurped in order to immunize themselves from any accountability to the people they claim to lead and to represent? Is that solidarity?

In the first piece of correspondence I received from CUPE regarding my workplace problems, I was addressed as “Dear Brother” and the closing was “In Solidarity”. That continued to be the case. I was somewhat bemused and also a little uncomfortable with this practice. What I have since experienced explains that discomfort.

After the arbitration hearing and the issuance of the “award” that confirmed my termination I delayed the filing of a DFR complaint and first proceeded with the filing of a Section 99 application to the LRB challenging the substance of the award. It was a given that CUPE would not take such an initiative or support me in that effort.

I do not recall whether it was before or after the LRB decision dismissing that first application, but in any case there was one final letter from Local 15’s Secretary –Treasurer in which she said CUPE would do nothing more on my behalf.

Of course I could just ignore you, or we could continue exchanging sarcastic remarks. With the second option I simply lower myself to your level, and I don’t think that bodes well for the future of online debate.

Maybe the reality is that Babble was never intended to rise above the level at which you operate. Maybe that’s why it is called Babble. I took a look at the site’s founding partners, which include CUPE and the BCTF.

Here’s a tentative theory for you to attack. The unions have lots of dues money to spend but they are not entirely confident that they will be able to hang on to that revenue stream. Using that money to provide real service to their members would be the smart thing to do, but instead they spend most of the money on themselves. Some of it however is used to buy what they think amounts to protection. They buy politicians for example. They also make it known to members of the self-proclaimed “alternative” press and what I call Canada’s faux Left that there is money available in exchange for various forms of PR (the most insidious form of which is self-censorship).

I’m not talking about a conspiracy SS. This kind of behaviour is as old as humanity, or at least as old as money.

So, I’m suggesting that maybe Rabble and Babble are faux Left organs that tolerate debate only so long as it does not touch on sensitive issues, and that they thereby act as PR vehicles for the establishment.

quote:

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3. Budgell began employment with the City as a network technician in November of 1998. When he was hired Budgell was informed he would serve a six month probationary period. On May 21, 1998, a few days before the end of his probationary period, Budgell was informed that his probation period was being extended for a further three months. The Union grieved the extension of Budgell's probationary period. The grievance, dated June 25, 1999, advanced through Step 1 and 2 of the grievance procedure by the end of August of 1999.

4 Budgell was dismissed on August 19, 1999, a few days before the expiration of the continuation of his probationary period. The Union grieved Budgell's dismissal. The grievance, dated August 29, 1999, advanced through Step 1 and 2 of the grievance procedure by the end of November of 1999.

5 On December 9, 1999, Budgell wrote Chris Merrick, a Union National Representative, indicating that he was not satisfied with the manner in which the Union was handling his case. He indicated that he was not willing to tender his resignation with the City, something Merrick had asked him to consider during a telephone conversation on December 6, 1999. Budgell reiterated that his grievances would only be settled by going to arbitration.

6 By letter dated December 13, 1999, Merrick advised the Employer that the Union would be advancing both grievances to arbitration and put forward the names of three arbitrators for the Employer's consideration. Merrick also advised that he would be acting as counsel for the Union.

7 In a letter dated December 15, 1999, Merrick wrote to Budgell outlining the Union's position. The letter also responded to Budgell's December 9, 1999 letter that Merrick had received on December 14, 1999. In the letter, Merrick indicated that it was his job to advise members as to the possible outcome of their grievances and to explore
all avenues to a resolve. He also confirmed that the Union was continuing to pursue the grievances but that the matter would be considered by the Union's Grievance Committee as it is the Committee that makes the determination as to the disposition of all of the Union's grievances.

8 On January 6, 2000, Budgell mailed the Union indicating that his case deserved to be prosecuted expeditiously. He indicated that he had waited patiently, as instructed, for several months for any signs of progress. He noted that he did not consider the Stage 1 and 2 grievance meetings to be progress.

9 The Union's Grievance Committee met on January 12, 2000. The Committee considered a report from Merrick dated January 6, 1999, in which he indicated that the Union would have about a fifty-fifty chance of success with the grievances. Merrick based this assessment on his discussions with Conni Kilfoil (Union legal representative), his reading of the files, the Collective agreement, and his review of the jurisprudence in the area. Merrick nevertheless recommended to the Committee that the Union take Budgell's grievances to arbitration.

10 In a letter dated January 24, 2000 from Brenda Coombs, Union Secretary Treasurer, Budgell was advised that the Grievance Committee had decided to proceed to arbitration. It agreed with Merrick's recommendation to proceed with both grievances together but that the probation grievance should be heard first and, if successful on the probation grievance, the dismissal grievance second.

11 In a letter dated January 26, 1999, Budgell wrote to Coombs indicating that he would like to appeal the Grievance Committee's motion to proceed with the dismissal grievance only if the Union obtained a favourable outcome on the probation grievance.

12 By letter dated February 4, 2000 to Coombs, Budgell indicated that although Coombs had advised him verbally that his two grievances would likely be heard as one, he was still concerned about the Grievance Committee's recommendation. He also
advised that he had not been given an adequate opportunity to discuss the facts of his case with anyone. In addition, he expressed concern that unless he received new representation his case would not be adequately prepared or presented. He asked that the Union seriously consider providing him with new representation.

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I haven't read your arbitration award but you lost. That happens even with good cases. If you hadn't been hired into a union shop you would have got know help and it would have taken you about the same amount of time to go through the court system.

Union's are members organizations that are governed by those members. You were a member for a few months and expected the union to expend its members resources not only to fight your case but to fight it as you wanted it to. The grievance belongs to the union because all your coworkers have to foot the bill. The labour board doesn't pay for arbitrations neither does the govenment the members pay for them and they elect people to run the union and provide services like a grievance board to decide on how members money should be spent.

Your expectations of what a union can do for you are not based in the real world. If you had no union you would have been a short term employee that a non-union employer could have terminated without cause at any time. Other than exceptions like human rights cases the only way you can be rehired if an employer fires you is through a collective agreement. The courts outside of a collective agreement have no power to order reinstatment.

If you managed to convince a judge that the employer did not have cause to fire you then you would have recieved at minimum the Employment standards one week or maybe a month or two of salary.

The only problem with getting more than the minimum out of an employer is you would have to take them to court.

You worked for the city for less than a year and eight years later it still cosumes you. Maybe you need to move on perhaps councelling would help.

[ 25 April 2006: Message edited by: kropotkin1951 ]

And what’s with the extract from the LRB decision? Believe it or not I’ve read it before, and besides it’s a purported description of events I experienced by someone who wasn’t there and certainly had no interest in determining the truth about anything. The LRB adjudicators are paid out of my taxes. I expect them to do their job in good faith.

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Originally posted by gbuddy:
You should take a breath every now and then when you are typing. That might improve your punctuation and lower your blood pressure.

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Members expect that their money will be spent properly and judiciously.

You will never be happy it is apparent. Every advocate, lawyer, adjudicator and government official is in your view negligent and possibly conspiring against you personally. I don't buy it I think you didn't like the outcome and have decided to blame everyone you have come into contact with. You should try posting this in one of the right wing forums where they love bashing unions you would likely get the reaction yopur looking for.

I don't believe unions always do a good job but I also know that there is no conspiracy and that the unions are not in collusion with the current right leaning labour board.

The section 12 stuff is a matter of public/private policy. If you belong to the Liberal party or Tories or a charitable organization and for instance if they don't deal with an issue around internal elections properly the courts pretty much only look at whether the constitution of the orgainization has been followed in good faith. Because they are an independent group it is not for the courts to determine whether they are right or wrong only whether they are fololowing the rules.

Section 12's similarily only look at whether the riules the representation was not arbitrary, discriminatory or made in bad faith. You propose to have judges who often would know nothing about labour and unions decide whether the decisions made on behalf of the membership are correct. That is not the standard of review I want to give to a third party. The membership is the place to bring your concerns too not a judge. That's what democracy inside an orgainization means.

First let’s dispose of the personal stuff, because it’s not a very productive line of discussion. More of a distraction. I am not a conspiracy theorist. Was there in fact a conspiracy against me? The answer is not all that important and it might depend on your definition of the term. I opened my original DFR complaint with an allegation of an “orchestrated charade” conducted by my employer and union. I have used the term “collusion” as well. The classic definition of a conspiracy requires an explicitly articulated plan. However, I think a common, dishonest, and self-serving agenda pretty much fits the bill too.

In any case what I have more recently uncovered is clearly a conspiracy, and I have been specific about how it unfolded. The victims of that conspiracy are all of the citizens of this province (and by extension this country) who would choose democracy and justice over tyranny and repression. That, apparently, doesn’t include you.

It is certainly true to say that I consider the many lawyers, adjudicators, bureaucrats and officials (both union and government) that I have had to deal with as negligent. In fact I do not hesitate to say in most cases grossly and chronically so. Among the many people with whom I have discussed such issues over the last few years, the majority have expressed very similar sentiments. Unfortunately it seems that most people in Canada are resigned to accepting the situation. Obviously I am one of those who are not.

For years the media has been reporting on a daily basis the corruption that has engulfed this nation. That doesn’t make Canada inherently different from most countries on this planet, but contrary to what the Canadian faux Left seems to believe, the corruption elsewhere doesn’t eclipse or excuse the corruption here. The fundamental problem I and so many others have identified with the labour and employment regime is one of the stories the media have steadfastly refused to discuss (see my earlier comments about self-censorship), and sadly too they still refuse to connect the dots. They need headlines but they’re afraid to do any honest analysis, perhaps because then they’d have to start talking about solutions. Not expensive soap operas like the Gomery enquiry. Real solutions.

The situation I am talking about is self-evident. We have already moved beyond debating whether it is real or a figment of someone’s imagination. The evidence is copious, material, indisputable and, thanks now to the Internet, readily accessible. The specific case that I finally assembled and summarized in the Open Letter posted last November is just one example. Sooner or later cases such as that one are going to be put before a jury. What then will you invoke to disparage the judgement, the alignment of the planets?

Like you I am not a typist by profession. Nor do I have any professional background in law, labour relations, political science or a number of other disciplines that I have been compelled to begin learning about. The learning process has often been painful but always been rewarding. And as a result I can now confidently tackle challenges that I would once have considered beyond my reach.

I said before that the word “solidarity” had become an incantation. The incessant invocation of “left” and “right” is another example of linguistic voodoo. The fascists and communists who set out to take over the world and nearly destroyed it had identical methodologies and agendas. The techniques today are more sophisticated but its not good versus evil. Its dumb versus dumber (and you can take your pick which is which).

That’s all I have time for tonight. I’ll try to pick this up again tomorrow. Thanks for the invite.

[ 27 April 2006: Message edited by: gbuddy ]

The BCTF and the Local have every right to go after these scabs...

Hell they are lucky I am not in charge because I would tell them that since they AGREED to take 0,0,1 from Grodo, then that's what you get for the next three fucking years and that difference will go back to the workers that fought for them...

Maybe try Jim Sinclair at the Fed. You sound like just the guy they're looking for.

Oh, and SS, whatever you took at Concordia you should have added remedial English and counting. It's "alumnus" not "alumni".

quote:

---

Originally posted by gbuddy:

Oh, and SS, whatever you took at Concordia you should have added remedial English and counting. It's "alumnus" not "alumni".

http://www.wsu.edu/~brians/errors/alumnus.html

---

That would be remedial LATIN, dude. In English, the plural and singular forms are being regularized, exactly as in parallel terms like media and data.

quote:

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Originally posted by gbuddy:
Hey PoCDude, you should'a sent your resume and MO in to Jinny Sims before she caved in.

---

I would have thought it obvious to even BCTF...but...point well taken.

quote:

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Originally posted by S1m0n:
That would be remedial LATIN, dude. In English, the plural and singular forms are being regularized, exactly as in parallel terms like media and data.

---

You’ve been staying far away from my indictment. “Prima facie”. English or Latin?

What does it mean? Is it a legal “term of art”? If so, what does that imply? “Res ipsa loquitur”? Is it a “term of art”?

Bonus points: explain thoroughly the difference between the two.

These are some of the questions I had to first recognize as crucial to my case. It was a multi-faceted learning process, and one of the things I have learned is that the legal community prides itself on its ability to deceive and obfuscate with an array of linguistic tools. Now that practice is going to catch up with them.

In 1994, when Mullin, Hall, and Devine wrote the Norris decision, they had no reason to consider the consequences of having it readily accessible on the Internet. Only the complainant (with whom I have spoken) and the union and employer would have seen it. Interesting though that Keith Oleksiuk, another Vice Chair who subsequently became the Chair (and then dumped his friend Mullin), cited the Norris decision in another one issued just four days later. The Norris decision then became a “leading case” so that it could be cited every time a DFR complaint was dismissed prima facie. After they slipped the bogus definition into the statute in 1996 the plan was to stop using prima facie in the actual decisions, but it continued to appear until sometime in 1998 because (in stark contrast to the practice at the OLRB) they couldn’t come up with any satisfactory boilerplate language to explain their “standard”. That’s still the case. The latest approach is to say the complaint doesn’t present an “apparent” case. That’s it. No reference to “sufficient evidence” because that makes it even more problematic. What constitutes “sufficient” evidence? And what does “apparent” mean?

The question that the courts had to answer when I took the matter to judicial review was:

“Was it patently unreasonable for the Board to dismiss the complaint because it found it did not provide sufficient evidence that the union had apparently acted arbitrarily, discriminatorily, or in bad faith?”

This is just bursting with weasel words. There’s no way to nail it down.

That changes however if you restore prima facie and deal with the provision as it was actually debated and passed by the legislature. It’s still ugly as hell (intentionally so), but it then becomes extremely difficult to avoid answering the question in the affirmative for the vast majority of DFR cases.

That’s what happens when you try to build a layer cake out of bullshit.

Now how about taking a break from attacking me and try answering this indictment.

[ 27 April 2006: Message edited by: gbuddy ]

[ 27 April 2006: Message edited by: gbuddy ]

quote:

---

Originally posted by gbuddy:

You've been staying far away from my indictment.

---

Yeah, no kidding. Your obsession with it is mildly amusing from a psychological curiousities point of view--especially considering that this episode concerns a job you held for less than a year, nearly a decade ago, but which you characterise as having cost you your career--because it appears to have consumed you. I'm willing to bet that what actually made you unemployable in that field wasn't getting let go, but the fact that you've fixated on this shitty little tribunal as the meaning for your existance.

The actual specifics of the case, however, are sure to be deathly boring.

~~

You lost a labour arbitration that, to quote your words, ended your career. This was one of the shortest careers on record, lasting less than nine months in all. In my opinion, your biggest mistake was not accepting the $7,500 severance payment offer.

As for your "indictment", it amounts to a complaint that the expression "that the complaint discloses a prima facie case that the contravention has occurred" was replaced by “that the complaint discloses a case that the contravention has apparently occurred" (and other similar changes) in Section 13 of the Labour Relations Code. You claim that this was a "substantive change" in the meaning of the Section and that it was done without any amendment being passed by the Legislature.

The most likely explanation for what happened was that in 1996 the BC government revised and consolidated its statutes - a process that is done periodically in every common-law province of Canada. This process of revision and consolidation is done pursuant to the provisions of the Statute Revision Act of BC. It often involves editorial changes to legislation - for example, eliminating gender-specific language, renumbering sections, correcting references to other provincial or federal legislation whose names may have changed since the original enactment, and other matters of style and presentation. See Section 2 of the Act for further details.

In the Revised Statutes of British Columbia, 1996, as they are officially known, BC made a point of replacing certain instances of Latin legal terminology with plain language English words and phrases, in the interests of making the statutes more accessible to the lay public. In the process, the term prima facie was replaced with English words intended to express the same thing, in all statutes where the Latin term appeared. In my opinion, the change in the case of the Labour Relations Code was not a substantive one. The change was made, in any event, in accordance with the procedures set out in the Statute Revision Act.

Thank you. I am familiar with the Statute Revision Act and you are not the first person to cite it to me. The words of interest are those in section 2 (e) that say “make minor amendments to clarify the intent of the Legislature”.

This will not be a viable defense. At best it could be described at this point as an alibi and it will not survive scrutiny. The amendment was not a minor one. That it involves few words is irrelevant. Copious evidence says it was substantive and highly consequential. What was the intent of the Legislature in choosing to rely upon prima facie in 1992? The only source I can identify is the Hansard record, which you might find worth reading. Who subsequently assessed the intent of the Legislature and how did they do so? A speculative answer will not suffice.

Presuming the defence gets that far was the alteration a clarification? I will argue very cogently it was deliberate obfuscation.

You suggest that sometime between 1992 and 1996 a decision was made to replace prima facie with plain English in order to make the statutes more accessible to the lay public. Could you please identify the other statutes in which that change was made, so that we can see if the result was consistent with the change made to Section 13.

I'm curious about your interest in this matter. Since it is clear you are aware of the process whereby the wording of the statute was changed, I can only surmise that you are motivated by paranoia rather than ignorance.

Anyone following this thread knows perfectly well what I am seeking: a political system that is a reasonable facsimile of democracy and that includes a component that provides universal access to real justice. I can’t personally deliver all of that on my own but I’m working with what I’ve been given. That is my interest.

So again I ask what is yours?

I have answered one of your questions. Now I will answer one of mine you pointedly evaded. It’s likely there wasn’t any other instance of prima facie being replaced in 1996. Let me also point out that beyond the fraction of Section 2(e) I cited, there is nothing else in the Statute to assist the government. There’s nothing in there for instance specifically mandating the process you suggest about replacing terms such as prima facie with “plain English”. I already have a very good sense of the discipline that is a requirement of the revision process, and I know nothing is supposed to just happen on an ad hoc basis. Above all, any process of consequence must be documented. A speculative alibi needs real evidence before it has any prospect of becoming a viable defence.

As for your last comment, yes I think it’s fair to say that I believe those who have conspired against the Rule of Law should be brought to account. You seem to be suggesting that only someone who is paranoid or overwhelmed by a sense of personal failure would be interested in such an outcome. The reality is that I have presented a serious indictment, and I do not intend to see it ignored, whether you like it or not. Your assessment of my character is irrelevant. The indictment stands on its own, which is why you won’t go near it.

[ 29 April 2006: Message edited by: gbuddy ]

quote:

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Originally posted by gbuddy:
From your first post I had hoped you might be enticed into some actual discourse. I am disappointed.

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quote:

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Originally posted by gbuddy:
The indictment stands on its own, which is why you won't go near it.

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quote:

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In April 1997 British Columbia adopted a new format for all its statutes. The revision consolidated all BC statutes to 31 December 1996. The specific goal of the revision was to improve readability using plain language principles, both in matters of format and layout, and in drafting technique. Source (.pdf file, at page 10)

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To take an example of just one other BC statute, the Securities Act, Latin terms were eliminated in the 1996 revision process:

quote:

---

In addition to the renumbered sections, the Revised Act reflects a large number of wording changes intended to introduce plain language and gender-neutral terms. These changes affect the wording of most sections but do not change the meaning or legal effect of the provisions.

For example, Latin terms have been replaced by English terms or simply deleted. In particular, the words "bona fide" have been deleted in several sections as the term is considered unnecessary....

---

[ 29 April 2006: Message edited by: M. Spector ]

Did you really have to go all the way to Australia to find the first one?

I note your extract from the second one contains an assertion that is key to my case: "These changes affect the wording of most sections but do not change the meaning or legal effect of the provisions."

More specifically, it is a fundamental principle of our democratic system that changes effected by revision, and thus not specifically authorized by the legislature, cannot alter the meaning or legal effect of any provision.

The issue to be tried then is did the change to Section 13 alter the meaning or legal effect. I can demonstrate that it did, and that it was intended to do so.

When you have some time, study paragraph 99 of the LRB's Judd decision, which was key to helping me assemble this case. This paragraph is an artfully constructed but ultimately foolish attempt to deceive the uninformed.

You are trying to practice law without a legal education, and you are in way over your head.

quote:

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99 While trying to be accessible to individuals who are unrepresented is very important, simply passing these types of complaints through to the next step without fully engaging the Section 13 requirements is, in our view, inconsistent with the legislative emphasis of that section. Despite the Board's existing statutory ability to dismiss any complaint or application at any time for failure to make out a prima facie case (Section 133(4)), the Legislature has set a special mandatory threshold for Section 12 complaints. It has established a minimum that must be done before respondents are put to the difficulty and expense of being engaged in litigation. The Legislature has in fact emphasized the requirement of sufficient evidence of an apparent contravention at two points in the Section 13 process for Section 12 complaints. That legislative policy should be given effect.

---

quote:

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Originally posted by kropotkin1951:
You don't like the law but c'est la vie n'est pas?

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says spector,, brings to mind the rejoinder " and when will one have enough learning to be out of danger"

The apologists for the unions and the apologists for the legal profession have much in common. Unions and lawyers depend on monopolies that are enforced by law, and without which they would be unable to sustain their power and incomes. Where the two regimes intersect we find labour lawyers, whose conduct would be difficult to convey to anyone who has not actually had to contend with them.

Another thing unions and lawyers have in common is the feeble excuse they use to justify their monopolies. They are necessary they claim in order to prevent their actual or prospective “clients” being victimized by employers or incompetent, unregulated legal practitioners. The truth is that incompetence and victimization are the inevitable result of such monopolies.

If you don't think it is a good idea to perform surgery on yourself then you probably shouldn't handle your own law suits either.

As far as the union disciplining teachers for actually going to work, here is another latin phrase for you: ex turpi causa.

Attempting to equate advocacy with surgery is ridiculous. Even surgeons do not operate on themselves. As a general rule anyone (even lawyers) should be able to represent themselves in court.

Officially at least, the B.C. judicial community is now actually encouraging people to do so – see the Supreme Court Self-Help Information Centre. I recently attended a class organized by the Centre on the subject, “Proving Your Case in Supreme Court”.

quote:

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Originally posted by gbuddy:
Officially at least, the B.C. judicial community is now actually encouraging people to do so.

---

Judges hate it when people appear before them without a lawyer. It's one of the things they complain about most when they talk about the problems of the legal system.

The Self-Help Information Centre is a response to this concern about unrepresented litigants. It's an attempt to mitigate some of the worst aspects of people who think they can play Perry Mason. Do not mistake it for an encouragement to go to court without legal representation.

Everyone has the right to represent themselves in court, just as you have the right to refuse medical treatment recommended by a doctor or the right to simply not go to the doctor at all. It's not a question of rights, it's a question of prudence.

quote:

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Originally posted by gbuddy:
...I suggest we dispense with the gratuitous use of pseudo Latin.

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It's not equivalent, you say? Well, please explain concisely how the legal significance of the English phrase differs from that of the Latin phrase:

Latin: that the complaint discloses a prima facie case that the contravention has occurred

English: that the complaint discloses a case that the contravention has apparently occurred

quote:

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Originally posted by M. Spector:
Um, isn't that exactly what the Legislature did when they authorized the revision of s. 13 of the Labour Relations Code to replace "prima facie" with equivalent English wording?

. . . .

I can assure you the judge will ask you the same question, so you might as well practice your answer on us.

---

In December I wrote to the Attorney General. Two weeks ago I finally received a response in which he says “there is nothing improper about the amendment to the Code about which you have expressed concerns”. I believe this statement is appropriately characterized as a “bald assertion”, a term that the LRB Vice Chairs are very fond of using on DFR applicants.

The remainder of the letter is just a distraction, including for example a suggestion that I avail myself of a document called “Discover more about how laws are made” that is posted on the Legislature’s web site. Naturally, it offers no information that would be relevant to the case I have assembled.

(iv) Analysis

¶ 12 Section 13(1) of the Code has been amended under the Statute Revision Act, R.S.B.C. 1996, c. 440 to now state:

13(1) If a written complaint is made to the board that a trade union, council of trade unions or employers' organization has contravened section 12, the following procedure must be followed:

(a) a panel of the board must determine whether or not it considers that the complaint discloses a case that the contravention has apparently occurred;

(b) if the panel considers that the complaint discloses sufficient evidence that the contravention has apparently occurred, it must

(i) serve a notice of the complaint on the trade union, council of trade unions or employers' organization against which the complaint is made and invite a reply to the complaint from the trade union, council of trade unions or employers' organization, and

(ii) dismiss the complaint or refer it to the board for a hearing.

¶ 13 The first determination to be made under the Code in respect to a Section 12 complaint is what was the "prima facie" requirement under Section 13(1). That provision now expresses the prima facie requirement as a determination that "the complaint discloses sufficient evidence that the contravention has apparently occurred" (Section 13(1)(b)). However, the Statute Revision Act, R.S.B.C. 1996, c. 440 provides that such changes presumptively are not substantive changes (i.e., are not intended to change the meaning of the provision). As a result, I will address the Section 13(1) requirement in terms of the Board's established approach regarding the prima facie requirement.
....
(v) Decision

¶ 19 In light of the above, the Complainants' Section 12 applications are dismissed under Section 13(1)(a) of the Code, as they do not establish a case that the Union's Section 12 obligations have apparently (or prima facie) been breached.
--------------

In other words, the Labour Board was using the same test that they always did. Another example was in Horn (Re), also from 1998:

¶ 6 Section 13 of the Code requires that a complaint filed pursuant to Section 12 establishes that a contravention of Section 12 has apparently occurred. That is, a complaint must establish a prima facie case that there is a breach of the duty of fair representation.

I am surprised, after all that I have experienced with this matter, to find that the Board had explicitly acknowledged the change (and had described it as an amendment). It will be interesting to see how that fits into the larger context of this matter. It could well shed some more light on what was actually going on.

As I noted before, it appeared to me that the term prima facie disappeared from the Board’s decisions sometime in 1998. Perhaps I need to determine exactly when the revision took effect and then review the subsequent Board decisions more thoroughly than I have to date.

That a single decision contains a statement that seems to equate “apparently” with prima facie is of no consequence. There is no sense or consistency to the Board’s decisions.

Take a look at the following paragraph from the initial dismissal of my own DFR application. I had read this a number of times without understanding that it fundamentally invalidated the entire decision. That only became apparent when I solved the larger puzzle.

Under Section 13, I make the assumption that a complainant's allegations and supporting particulars are true and rely on those before receiving submissions from the Union. On that basis, I determine whether the Complainant has made out a case that demonstrates that a contravention of Section 12 has apparently occurred. I must test those submissions against the standard the Board uses to find a breach of Section 12. In saying that, I note that the Board's standard for determining if there has been a breach of Section 12 is extremely high and much of a union's conduct is protected from a finding of a breach of Section 12.

I have never seen anything quite like this particular purported explanation of the Section 13 “standard”, even from Vice Chair Junker. However, I also note that the Board has never been able to settle on a consistent explanation, and I have a special interest in this example, so there may be others that are equally absurd.

The problem starts with the use of “apparently” in the second sentence. However, the real deception lies in the next sentence, where Ms. Junker deliberately confuses what she claims is the Board’s "extremely high" “standard” for making a final Section 12 determination with the “standard” embodied in Section 13 (which we know is actually prima facie). Note also that there is no reference to prima facie in this paragraph nor anywhere in the decision. (In contrast “apparent” or “apparently” appear thirteen times.)

With an awareness of the context the deception becomes obvious, however although I was troubled by this paragraph even on a first reading, I went through a judicial review without challenging it, because I did not suspect the truth about the change to Section 13 and did not know that the prima facie “standard” is in fact well established and is an extremely low one.

This deception was not inadvertent. It is part of the copious evidence of the agenda at the Labour Board to deny DFR applicants any prospect of a fair hearing.

A final point about the use of "apparent(ly)". In David Mellinkoff's book that I cited earlier, Appendix F is a list of "flexible" words, about which he says, "The words in this sampling are often useful. The only thing wrong is in using them as though they were precise."

Among those words are "arbitrary", "sufficient" and "apparently". Given the expertise of the professionals directly responsible for the statutory drafting processes, how could the imprecision introduced by the change to Section 13 have been anything but deliberate?

[ 09 May 2006: Message edited by: gbuddy ]

[ 09 May 2006: Message edited by: gbuddy ]

quote:

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Under Section 13, I make the assumption that a complainant's allegations and supporting particulars are true and rely on those before receiving submissions from the Union.

---

There is no counter-evidence nor is your evidence tested in cross-examination.

When the member writes of a "high standard" he or she is referring to a standard of conduct. Now, I don't know enough about labour law to say what that standard is, but the gist of this is that the union would have to do something particularly nasty to constitute a breach of the DFR.

So what that seems to suggest is that even if the union did everything you accused them of doing, they were still able to meet their duty of fair representation despite that conduct.

--
I went back and read the initial decision and it seems that my first instincts were correct.

What book of Mellnikoff did you cite and where?

[ 09 May 2006: Message edited by: BlawBlaw ]

quote:

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Originally posted by BlawBlaw:
There is a confusion about the word "standard". You are correct that a prima facie case is a low standard, but that is a standard of proof. The member explained it this way:

There is no counter-evidence nor is your evidence tested in cross-examination.

When the member writes of a "high standard" he or she is referring to a standard of conduct. Now, I don't know enough about labour law to say what that standard is, but the gist of this is that the union would have to do something particularly nasty to constitute a breach of the DFR.

So what that seems to suggest is that even if the union did everything you accused them of doing, they were still able to meet their duty of fair representation despite that conduct.

---

Rubbish!

Your profile says you are a lawyer. What kind of lawyer? You not only have no knowledge of labour law, you have no knowledge of law, period!

Let's get the entire story straight, shall we?

Section 13 was conceived by who? Obviously more than one person, but we can certainly identify one of the leading guilty parties - the NDP's official village idiot Moe Sihota. Try reading the Hansard record.

The clumsy wording of Section 13 was necessary because it was conceived in bad faith. It's purpose was to provide the unions with immunity.

As you note the result is that no counter-evidence is called for. That's how a summary dismissal works. The reason legitimate courts shy away from summary dismissals is because they look bad. When a tribunal is given a licence to indulge in such a practice without waiting for a submission from a respondent, how do you provide any guaranty that the tribunal is not acting as the respondent's advocate?

Well let's see now. How about appointing adjudicators that exclusively represent the interests of the respondents? Nope, sorry that makes matters worse.

The Labour Code is a fraud and the Board is a monument to corruption and incompetence.

I pity your clients. Assuming you have any!

[ 09 May 2006: Message edited by: gbuddy ]

But here are some references for you:

Here

And here

Quoting the above:

quote:

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In particular, comments that infringe on one's professional reputation . . . are the sort that permit one to sue at law for damages.

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[ 09 May 2006: Message edited by: BlawBlaw ]

I am gratified to find that it is another one signed by the Board’s Chair, Brent Mullin. He’s beginning to look like Captain Ahab in the scene where he goes down lashed to the back of the white whale.

Another decision I looked at today, B317/2001, provides the following.

At the outset of the analysis portion of the Original Decision, the panel noted that under the Board’s established jurisprudence, Section 13 (1)(a) requires a Section 12 complaint to set out specific information and details sufficient to establish, if uncontradicted, a breach of the duty of fair representation on an evidentiary basis.

An “evidentiary basis”. Is this not talking about proof? No one (not even a lawyer) can provide in an initial pleading sufficient evidence to prove a case. That is, unless they can argue "res ipsa loquitur". When we are working with vague terms like "arbitrary", "discriminatory", or "in bad faith" the tribunal or court must recognize that the respondent likely has exclusive possession of key evidence (which includes testimony). The effect of Section 13 summary dismissals is that the unions enjoy absolute immunity.

quote:

---

Originally posted by BlawBlaw:
But here are some references for you:

Here

And here

[ 09 May 2006: Message edited by: BlawBlaw ]

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If you want to sue for libel, you’ll have to sacrifice your anonymity. And you’ll have to find a lawyer to represent you (or risk proving that the old line about self-representation applies more to lawyers than non-lawyers).

quote:

---

Originally posted by M. Spector:
No, they aren't encouraging people to go to court without lawyers. Not officially or unofficially.

Judges hate it when people appear before them without a lawyer. It's one of the things they complain about most when they talk about the problems of the legal system.

The Self-Help Information Centre is a response to this concern about unrepresented litigants. It's an attempt to mitigate some of the worst aspects of people who think they can play Perry Mason. Do not mistake it for an encouragement to go to court without legal representation.

---

The reality is that the judicial community has known for years that self-representation will inexorably increase and there has been ongoing discussion about this issue within the community. While no one has actually reported any statistics (that I can find) I believe the numbers are now such that the judiciary is beginning to realize they are running out of time.

In this weekend's Vancouver Sun (on page C5) columnist Peter McKnight discussed a speech given by SCC Chief Justice Beverley McLachlin about the courts' role in dealing with "positive" and "natural" law, and "unwritten constitutional principles". A Google search on this last term turned up a very interesting find that I believe will be most helpful in arguing that the single greatest problem with the Canadian justice system is the lack of independence and impartiality of the adjudicators. That, I also believe, is why the mainstream press has recently been exhorting the federal government to do something about the archaic appointment process.

Independence and impartiality are normative requirements of judicial adjudication. Independence and its corollary, the separation of powers, deal with the relationship of the judiciary both individually and institutionally with others, whereas impartiality refers to an unbiased state of mind. Although judicial independence is a distinct value from judicial impartiality, it is intended to be a cornerstone in promoting a reasonable public perception of impartiality. Judicial independence and impartiality are not absolute concepts, but principles that can be measured by degrees along a spectrum of possibilities. The question is whether an informed and reasonable person would perceive a tribunal as independent or impartial. The perfect ideal of judicial impartiality is unlikely to be attained in the human condition. Despite the difficulties inherent in striving for unattainable ideals, it is imperative that the judiciary possess a high level of independence and impartiality because adjudication is a form of third party conflict resolution, and a judge must be a genuine third party. Justice could not be done and public confidence in the process could not survive if the judges were allied with certain parties involved in disputes. Ultimately, the dominant purpose of judicial impartiality, independence, and separation of powers is to enhance the citizen's confidence that a judge will hear and decide a case free of governmental or private pressures in accordance with the law.

This item is found on the website of the Canadian Forum on Civil Justice, which provides valuable insight into how the justice community is perceiving the challenges.

One of those challenges is that increasingly the judiciary and quasi-judiciary are facing "informed and reasonable" persons who are capable of understanding and articulating the truth.

[ 15 May 2006: Message edited by: gbuddy ]

quote:

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Originally posted by S1m0n:
Buddy, one of your major activities is going from online communities to forums across the web, and rehashing this entire argument, over and over ad nauseum, isn't it?

There's nothing anyone can tell you that you haven't already heard and refused to believe, isn't there?

---

quote:

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Originally posted by gbuddy:

You could post a comment like that to just about any active thread on any forum, yet you choose to focus on this one. Care to explain the obsession?

---

Do you think we endlessly rehash the same 8 year old debates, day after day, on this and every forum on the internet or on Babble? History repeats itself, but not like that, Buddy.

It's only this thread that has such a weird, 'Groundhog Day' feel to it.

quote:

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Originally posted by gbuddy:
I'm here because I choose to be.

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Yeah, yeah, you can quit any time you like.

quote:

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Originally posted by gbuddy:
One of those challenges is that increasingly the judiciary and quasi-judiciary are facing "informed and reasonable" persons who are capable of understanding and articulating the truth.

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My emphasis

quote:

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Originally posted by BlawBlaw:
I won't say any more.

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Perhaps I should take the time at this point to clarify my position. If our purpose is to actually accomplish something productive, we have to start by acquiring a full understanding of the problem. In the last few years I’ve had sufficient experience trying to deal with an array of powerful Canadian institutions to have reached sound conclusions about them, and what they now collectively represent.

A few examples should suffice. Our legislatures are hollow shells. They do not provide us with any meaningful voice at all. The declining participation in elections is an indication that the public is coming to understand that reality.

The three purported branches of government (or three and a half if you include the quasi-judiciary) are supposed to have substantively separate mandates so that we can have some confidence that they will act independently. The reality in Canada is that they are virtually welded into one.

The established political parties all have essentially the same agenda, which ensures we are stuck with the established order.

The media – “mainstream” or self-proclaimed “alternative” – is just a component of the Canadian establishment and therefore does very little to actually inform or facilitate debate.

quote:

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Originally posted by BlawBlaw:
The executive are part of the legislature so it is more like 2-1/2 branches of government.

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David Emerson did us all a favour by proving that point once and for all.

Try getting a meaningful response on any issue out of your so-called elected (provincial or federal) representative and you’ll discover you have no representation. These people are responsive to the interests that get them nominated as candidates and then to the party leader.

Are there practical alternatives to this arrangement? Of course there are, but you never see any discussion of them.

One of the places I turned to for help when it was clear my MLA would not assist me was the provincial Ombudsman. This is an office that has a relatively recent history. It is a concept that apparently originated in Scandinavia but I suspect it took hold here precisely because citizens were frustrated with the lack of responsiveness of their so-called representatives (or perhaps more realistically because the politicians wanted some place to send their complaining constituents).

The BC Ombudsman has heard from me repeatedly and has refused to take any interest in the issues I have raised. I soon learned from the public record that he was part of the same social milieu as the agency about whose conduct I was complaining. The Ombudsman is supposed to be an independent officer of the Legislature, but the truth (which I know for a fact is widely acknowledged in Victoria) is that this office is just another excuse to waste our tax dollars.

Where does the deception and the waste end? I’m almost afraid to contemplate the answer to that question.

Given that state of affairs what is the purpose of dutifully casting a ballot every few years? Our role as citizens is simply to periodically rubber-stamp the existing order. And of course pay for it all through our taxes.

My basic thought is that the FPTP system is fundamentally the best system IF 1) there is a process of instant run offs or preferential ballots to grant the winner a majority legitimacy and (more importantly) 2) a relaxation of party discipline where individual MPs can vote a combination of their conscience and the will of their constituents rather than at the behest of the party leader with perks or censure to follow.

One of the keys is to disband the PMO and reform the position of Party Whip. More free votes, more private bills, and even more independant candidates. The Consevatives were moving towards this but they have disappointed me.

Ministers should be running their minnistries and not dictating policy to the other 300 MPs (or even the other 100 in their caucus).

Even basic workers'rights to receive pay for their work doesn't happen when there's no union. Employers routinely bilk employees of their rightful pay in non-union situations all the time. Husky Gas station attendants to Domino's Pizza deliverers --employees get robbed by their bosses. Employer theft doesn't occur in union settings so easily, but it still happens (Lapointe Partners are good employer thieves. They owe me around $50,000.).

Today, with the pressure from worldwide slave-made goods, workers'lives are going downhill everywhere. Soon, we'll all be slaves, but rich corporate bumpkins will still be looking for cheaper slaves.

Meanwhile places like Alaberta (spelling intentional) are looking a lot like Sudbury in the 60s.

Yes, union press for environmental policies, as well as social betterment.

As for solidarity in unions, unions are totally democratic. The majority rules. The rest have to go along with the majority, no matter how stupid may be the majority. It's the same in any democratic organization. I still have to pay taxes although Harper won (and his friends don't pay any). The majority voted stupidly IMHO, and I have to suffer the consequences, alas. I can't declare myself a new country. So it is with unions. You can't declare yourself non-union when the majority didn't vote the way you wanted.

quote:

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Originally posted by Merryblue:

As for solidarity in unions, unions are totally democratic. The majority rules. The rest have to go along with the majority, no matter how stupid may be the majority. It's the same in any democratic organization.

. . . . . .

. . she's a scab with either no social consience or no knowledge of the social struggles in Canada, and is unwilling to learn about them. We have too many such people in Canada who lack courage and class knowledge. End of prelude to Union Solidarity.

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As one of my colleagues has pointed out, what you imagine to be a "movement" ceased being such many decades ago when the real pioneers were replaced by people focused entirely on promoting their own interests. What was once a movement has become a tired, self-absorbed, calcified institution, and as such is indistinguishable from the other ones I mentioned above.

[ 16 May 2006: Message edited by: gbuddy ]

quote:

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Originally posted by BlawBlaw:
Workers' rights are well protected by Employment Standards Acts, the common law, and a bit of wherewithal on the part of the worker themselves.

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There's the recent example of the lawyers at the BC Law Society that voted to join a union. (I look forward to seeing one of them seeking justice from the Labour Board.)

The chronic lack of independence, and the other related deficiencies, of administrative tribunals is an issue of the utmost importance that needs to be discussed publicly. An excellent starting point for anyone to whom the issue is a new one is the CCAT website, particularly some of the papers from their past annual conferences, and especially the first one, by Ron Ellis, from the 2003 conference.

With the exception of Quebec, where there has been fundamental reform, it is, I believe, a notorious fact that in every jurisdiction across this country rights tribunals typically fail to deliver on the rule of law promise – they are commonly not independent, they are frequently not seen to be impartial, and, too often, they have unqualified members.

For this audience that may well be a controversial statement, and, naturally, it is
not intended to apply to all rights tribunals. Those of you who are chairs or members of
rights tribunals that, in terms of their structure, their relationship to government, and their performance, do deliver on the rule-of-law promise, know who you are and will not, I trust, take offence.

The record seems to show that Mr. Ellis's message was not well received by most of his colleagues and by the rest of the political / legal establishment.

This paper is an item I read into the record during the judicial review hearing last year, a tactic that evidently did not assist me in pursuading the judge of the merits of my case.

[ 18 May 2006: Message edited by: gbuddy ]

[ 18 May 2006: Message edited by: gbuddy ]

[ 18 May 2006: Message edited by: gbuddy ]

It's a difficult policy choice where you have service-at-pleasure at the one end and appointment-for-life at the other. Key political positions are the former while key judicial positions are the latter.

So where do you draw the line for administrative tribunals or for "masters" of the superior courts?

The whole point of administrative tribunals is to have specialists who ARE NOT JUDGES per se. So we can't treat them like judges but they are subject to judicial oversite as a matter of the rule of law and the constitutional considerations.

There may be some "adjudicative drift" when there is a change in administration and therefore appointees, but does that mean that the new appointees are not independant in the judicial sense of the word?

Judging by your posts, you appear to have a personal connection with the administrative justice regime. You ought to read some of the material I suggested, then try arguing your position with people like Ron Ellis, whose credentials I do not think you could question. I recall reading in one of those papers a line (though not originated by Ellis) about administrative tribunals being a "failed twentieth century experiment". That sounds about right to me.

I'm not in total agreement with everything Ellis says. He seems to take the position that providing what is commonly called "security of tenure" is key to ensuring independence and therefore unbiased decision making. There may be nothing wrong with this notion if the public can have some reasonable confidence in the appointment process in the first place, but Ellis himself indicates such confidence is not warranted.

I have had time to carefully examine what has gone on at the BC Labour Board with respect to appointments (and not just recently) and I am thoroughly disgusted by the process and the results. I can't speak with any authority about the other tribunals but I know what I'm talking about when it comes to this one.

Anybody coming before an adjudicator is entitled to complete confidence that their deliberations will be unbiased. I can speak with authority only about my own experience. In the original labour arbitration, like all such "grievors", I had no standing in the hearing. My status was that of an exhibit. The adjudicator was selling his services to the other two parties, from whom he expected to receive more business. By the manner in which they behaved, including not even showing up for the hearing, and ensuring there would be no witnesses to support my position, the union sent a loud and unmistakable message to the adjudicator. I know perfectly well that the outcome reflected that message.

Labour arbitration, as currently structured, is a formula for injustice.

The subsequent process I faced at the Board was even more tainted, for a number of reasons (in addition to the bogus "standard"). The most bizarre of those reasons was exposed because of a tip I received that I then pursued by hiring a private investigation firm. In judicial review I subsequently forced the Board's Mark Brown to respond with an affidavit detailing his prior professional relationship with the employer's HR person who had prosecuted the case against me in arbitration. No one in their right mind would excuse the fact that he sat on a panel that dismissed my case when I had named that HR person in my complaint and alleged collusion between her and CUPE's staff. Mr. Brown should have been fired for doing that. Yet the Supreme Court judgement dismissed the entire issue of bias without any discussion. I decided not to inform the judge that months earlier, after I had written to a certain City Councillor about that issue, that HR person had been fired. Coincidence? Not very likely.

What kind of insane regime allows that sort of thing to go on and dares to call it adjudication? The answer is a regime in which cronyism flourishes.

Not yet convinced? Here's some additional evidence that demonstrates the true nature of the regime. Back in 2003 (the same year I was forced to fight the LRB in court on two occasions) a remarkably revealing article appeared on a Friday in a certain daily newspaper. I made a point of saving it. Based on the closing line I resolved to attend the ongoing hearing on Monday, but was unable to do so. If anyone at the paper objects to now having this posted in full, perhaps they would care to repeat what I was later told was the reason there was never any further coverage of this story.

The B.C. Labour Relations Board is in chaos after vitriolic attacks by the chairman on three of the board's most senior vice-presidents for overturning two of his decisions.

Brent Mullin, chairman of the board, has stunned legal and labour circles by hiring Michael Goldie, former justice of the B.C. Court of Appeal, to fight a summons from an LRB appeal panel composed of his own lieutenants.

In two striking submissions filed with the board -- one on April 14 and another on April 29 -- Goldie savaged the reconsideration panel and insinuated it aided the unions to tar Mullin -- a former member of the board dumped under the NDP government.

Goldie wrote the panel has subjected Mullin to "multiple breaches of natural justice and abuses of process" and that it exercised its powers in a prejudicial way towards him.

The former judge accused the panel of having "consistently decided or acted contrary to Mr. Mullin's interests. . . . On the other hand on every occasion the Reconsideration Panel has been called on to rule or act in a matter involving the interests of [the International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers] Local 97 and its allies, it has done so in a manner wholly favourable to those interests and resulting in multiple beaches of natural justice to Mr. Mullin."

In his 16-page, single-spaced April 14 submission, Goldie added that the panel's actions "potentially affect" Mullin's ability to do his job and indicate it did not understand the import of its own rulings.

"There is not one scintilla of evidence," Goldie wrote, "that Mr. Mullin ever said or indicated in respect of these proceedings that no matter what the evidence was his position would not change . . . [or] exhibited a 'closed mind.'"

Labour lawyers say the intemperate tone of Mullin's submissions are stunning.

"Unprecedented, completely inappropriate," said Derrill Thompson, lawyer for the Iron Workers Local 97.

"What he has done is attack the integrity of a panel of the board. The issue is whether he has shown such an appalling lack of judgment in attacking his own board that he is no longer fit to be chair."

Through an aide, Mullin declined Thursday to comment.

It's not clear whether a hearing will proceed as scheduled Monday to determine whether Mullin's original rulings were biased because the employers now are asking for permission to withdraw the case.

"It has the appearance to me of the employers trying to save the chair," said Thompson.

As well, union lawyers are preparing to seek an injunction from the B.C. Supreme Court preventing Mullin's future involvement in the case.

Five years ago, Mullin was at the centre of controversy when his appointment to the board was not renewed by the former NDP government because of his pro-business views.

He was highly critical of the LRB under the NDP and has become a key player with the new government as the Liberals attempt to change the province's labour relations climate and reverse what Victoria considers a decade of union-friendly administrative law.

But only 15 months into his mandate, Mullin has triggered a crisis at the board.

If you ask me, that's what happens when you ask a former appeals court judge to battle members of an administrative tribunal -- he's predisposed to see them as amateur jurists. And why let the fact that he's never practised labour law get in the way of his opinion?

Goldie's submissions couldn't have been more incendiary if he'd scrawled them with a pen held in his fist, especially given the volatile labour relations atmosphere in the construction industry.

The problem stems from the way Mullin handled a case management meeting last November involving Farmer Construction, PCL Constructors Canada Inc. and the trades unions who work for them.

It was a highly charged application as industry was asking the LRB to amalgamate several trade union bargaining units -- a move the craft unions opposed.

Accused at the meeting of bias because of his pro-business history, Mullin declined to step down as chairman of the panel considering the case. The panel ruled there was no evidence Mullin was biased and, in a second, separate decision, refused an application from the AFL-CIO Canadian office to participate in the hearing.

The unions appealed those decisions and a three-person reconsideration panel was struck composed of long-time vice-chairmen John B. Hall, Laura Parkinson and V.A. Pylypchuk.

Both Hall and Pylypchuk were appointed to the LRB after careers as litigators who worked the employers' side of the street. And the trio are among the most experienced and respected of senior LRB members.

The reconsideration panel received a request from the Iron Workers union to call Mullin as a witness.

Goldie said in a brief interview that's why he was retained.

"I don't know of any occasion when a chairman of the board has appeared as a witness before a panel of the same board on a subpoena," Goldie added. "Let me put it this way, in arriving at the situation where a request is being entertained to summons the chair of the board, I hope I dug fairly deep."

Under provincial law, he said, Mullin cannot testify about his duties as LRB chairman because he swore an oath of secrecy upon taking office in January, 2002.

The union, however, was interested in questioning Mullin about his activities before he was appointed chairman. And here's where some history helps.

In the summer of 1998 the Liberals claimed the decision not to renew Mullin's three-year term on the board was one reason entrepreneurs and investors were skittish about B.C.

Business Council of B.C. president Jerry Lampert said it was the key indicator the LRB was labour's stooge and indicated a troubling shift away from open, transparent decision-making. He characterized employers as being shocked.

Coalition of B.C. Businesses head Suromitra Sanatani added that the employers' voice at the board was being muzzled.

The new Liberal government supposedly fixed the problem by naming Mullin to replace Keith Oleksiuk as chairman. Oleksiuk is now a lawyer with the B.C. Government & Service Employees Union.

Given that history, most labour relations specialists were surprised when Mullin took the reins of the construction industry panel to deal with one of the most politically charged issues facing the board.

Although it set Monday as the date for a full hearing on the summons and the question of bias, the appeal panel on April 8 nevertheless reversed the two rulings by Mullin's panel.

They said "we find (it) troubling" Mullin did not allow the various parties to make submissions on the question of bias and this "amounted to a breach of the duty of fairness."

They also reversed the Mullin panel decision on standing and said the AFL-CIO Canadian office could participate in the construction industry application if it proceeds.

In his submissions, Goldie insists the reconsideration panel has overstepped its authority and that its findings against Mullin should be overturned.

"There has been a denial of natural justice to Mr. Mullin in his personal capacity and as chair of the Labour Relations Board," Goldie wrote. "It is submitted that the role of the reconsideration board should start and end by setting aside its decisions which have contributed to this error."

Monday could be a very interesting day at the LRB.

going ... going ...

The three Vice Chairs referred to are Jan O'Brien, Najeeb Hassan and Mark Brown.

The current contracts for the first two have just expired. Mr. Brown, who was also the Registrar and the Manager of Mediation was in the middle of a five year contract running till January 2009. He was fired.