Ruling applies modified test to determine jurisdiction under s. 100 of BC's Labour Relations Code
The British Columbia Court of Appeal ruled that it did not have jurisdiction to hear an appeal of an arbitral award arising from a grievance alleging that the installation of surveillance cameras in company trucks infringed employee privacy.
In Rehn Enterprises Ltd. v. United Steelworkers, Local 1-1937, 2025 BCCA 116, the appellant was a tree-falling contractor, while the respondent was the union for the appellant’s employees called fallers, who did hand-falling work under the appellant’s contract with Western Forest Products. These fallers went to and from worksites in company vehicles for about two to three hours daily.
Around February 2023, the appellant installed forward-facing and rear‑facing surveillance cameras inside the cabs of its trucks. The dash cams recorded what was happening inside the cabs while the vehicles were operational, with the rear-facing cameras also recording audio.
In March 2023, the union filed a grievance challenging the appellant’s use of dash cams. A labour arbitrator took over the matter in April 2023 and allowed the grievance. She determined that the fallers had a high expectation of privacy based on evidence of the nature of their work and her factual findings about their conversations and activities while going to and from sites.
The arbitrator considered the factors in Kadant Carmanah Design v International Association of Machinists and Aerospace Workers, District 250, 2015 CanLII 79278 (BC LA). She concluded that the appellant’s use of rear-facing cameras was unreasonable based on evidence of past workplace safety incidents and the lack of evidence that the appellant resorted to alternative safety measures.
The appellant appealed the arbitrator’s award. Relying on s. 100 of BC’s Labour Relations Code, 1996, the appellant alleged that the appeal court had jurisdiction to review the arbitral award because the arbitrator based her decision on a matter of general law.
At the same time it filed the appeal, the appellant applied to the Labour Relations Board to review the arbitrator’s award using the board’s jurisdiction provided in s. 99 of the Code. The appellant asked the board to defer consideration of its application pending the resolution of its appeal.
Last January, the board dismissed the appellant’s deferral application and its review application on the merits. The board found that it had exclusive jurisdiction to review the arbitral award. The appellant did not seek reconsideration of the board’s decision.
The union opposed the appeal based on a lack of substantive merit and the appeal court’s absence of jurisdiction. The Court of Appeal for British Columbia agreed and quashed the appeal for lack of jurisdiction.
The appeal court noted that the appellant had already pursued a remedy under the Labour Relations Code and received a final decision in which the Labour Relations Board said it had jurisdiction and reviewed the arbitrator’s decision on the merits.
The appeal court stressed that it was now in the unusual position of hearing an appeal of this arbitral decision, which was allegedly within its exclusive jurisdiction under s. 100 of the Code.
First, the appeal court modified the test to determine whether it had jurisdiction under s. 100 while considering recent amendments to the provision. Using this modified test, the appeal court decided that the appeal fell beyond its jurisdiction under s. 100.
The appeal court saw no dispute before the arbitrator about the correct legal principles or applicable analytical framework. The appeal court noted that the arbitrator did not engage in a novel exercise of statutory interpretation of BC’s Personal Information Protection Act, 2003, or apply a novel legal test to conclude that the fallers’ time in company trucks was analogous to off-duty time.
The appeal court held that the arbitrator instead applied settled legal principles from arbitral law to a fact-driven balancing exercise of employer and employee rights in a labour relations context.
Specifically, the arbitrator made factual findings to determine the issue of whether the dash cam surveillance during travel time was a reasonable exercise of management’s rights, considering the balance between the appellant’s safety purposes and the fallers’ privacy interests, the appeal court explained.
Thus, the appeal court concluded that the basis of the arbitral decision was not “unrelated to a collective agreement, labour relations or related determinations of fact,” as required by the modified test under s. 100.
The appeal court noted that, since the board determined it had jurisdiction over the review application under s. 99 of the Code and reviewed the arbitral decision on its merits, the preferable procedure for the appellant to challenge that determination was to seek reconsideration under s. 141 of the Code then judicial review before the British Columbia Supreme Court.
