In two recent decisions, the British Columbia Court of Appeal commented on recent changes to the Labour Relations Code (the “Code”), underscoring that its jurisdiction to review arbitration awards which deal with matters of general law is very narrow and that the Labour Relations Board will have jurisdiction to review the vast majority of arbitration decisions.
In Rehn Enterprises Ltd. v United Steelworkers, Local 1-1937, 2025 BCCA 116 (“Rehn”), the arbitration award dealt with whether the employer’s dash-cam surveillance was a reasonable exercise of management rights. This involved considering and applying the legal principles under the Personal Information Protection Act. In Okanagan College v Okanagan College Faculty Association, 2025 BCCA 117 (“Okanagan College”), the arbitration award determined that a disability plan was not a “bona fide group insurance plan” under the Human Rights Code.
In both decisions, the Court declined jurisdiction after considering the import of amendments made in 2019 to the source of its jurisdiction (s. 100 of the Code).
Prior to 2019, s. 100 of the Code stated that the Court of Appeal had jurisdiction to review arbitration awards if the real basis of the award is a matter of general law not included in s. 99. Section 99 of the Code gives the Labour Relations Board jurisdiction to review an award if the parties have been denied a fair hearing or if the award is inconsistent with the principles under the Code or another statute dealing with labour relations. Under this language, the Court of Appeal determined that it would take jurisdiction under s. 100 if the “real basis” of the award was a matter of general law that did not raise a question or questions concerning the principles of labour relations.
In 2018, in United Steelworkers, Local 1-1937 v. Taan Forest Limited Partnership, 2018 BCCA 322 (“Taan”), the Court found that even though the arbitration award engaged a matter of general law concerning the application of the Human Rights Code, embedded within that issue were key factual conclusions including the interpretation of the collective agreement, and the interpretation and application of well-established labour relations principles. It stated that the Court’s traditional test resulted in the Court taking jurisdiction only in the rare and exceptional circumstances where the real basis of the award involved “pure questions of general law, untethered to the facts and labour relations context of a dispute and falling outside the expertise of the Labour Relations Board”.
Shortly after the decision in Taan was issued, the 2018 Labour Code Review Panel finalized its report recommending amendments to the Code. One of those recommendations was to “codify the rare and exceptional circumstances that will engage s. 100.” The Panel referred to Taan and recommended s. 100 be amended to reflect that the Court of Appeal had jurisdiction where the real basis of the award was a matter of general law unrelated to the collective agreement, the labour relations context, or related factual determinations, and not included in s. 99. In 2019, the Code was amended in accordance with the Panel’s recommendation.
Between 2019 and 2024, the Court issued three decisions on its jurisdiction under s. 100, each time confirming that Taan had exhaustively set out the applicable legal principles and concluding that the 2019 amendment did not require an alteration of the traditional test for jurisdiction.
However, in 2025, that changed. In Rehn, the Court found that the 2019 amendment to the Code justified a revision to the Court’s test for determining whether it had jurisdiction. It stated that the 2019 amendment was an attempt to “clarify and further narrow” the limited jurisdiction of the Court. It revised the test so that the Court should only take jurisdiction where the real basis of the award is a matter of general law that is not related to the collective agreement, labour relations or related determinations of fact.
Two days later, in Okanagan College, the Court reached a slightly different conclusion finding that the 2019 amendment reflects the jurisprudence developed by the court over the past two decades and attempts to “clarify the narrow and exceptional nature of the jurisdiction in s. 100”. The Court adopted the test set out in Rehn which it noted was released after the appeal Okanagan College was heard.
In Okanagan College the Court found that the real basis of the award was the factual determination that the disability plan was not a bona fide plan within the meaning of s. 13(3)(b) of the Human Rights Code. The arbitrator interpreted and applied the human rights principles in a factual matrix that arose from the terms of the collective agreement and the parties’ collective bargaining relationship.
This conclusion is perplexing because, by definition, every labour arbitration award arises under a collective agreement and in the context of a collective bargaining relationship. All arbitration decisions will be made within a “factual matrix”.
It is therefore not clear in what circumstances the Court will conclude that it has jurisdiction under s. 100 of the Code. Will it continue down a path of declining jurisdiction because each arbitration award arises from a grievance filed under a collective agreement and is adjudicated in the context of facts advanced in hearing the grievance? The existence of s. 100 shows the legislature’s intention to endow the Court of Appeal with some jurisdiction to review arbitration awards. So long as s. 100 remains in the Code it must be given a meaning which provides the Court with jurisdiction in at least some cases. It remains to be seen how the Court will continue to interpret and apply s. 100.
Finally, in Rehn, the court stated that if a party seeking review of an arbitration award applies for review under both s. 99 and s. 100 (because it is not certain of the proper forum), and the Labour Relations Board takes jurisdiction under s. 99, it would be preferable for the party seeking review to pursue administrative remedies through reconsideration of the Labour Relations Board’s decision followed by judicial review to the Supreme Court of British Columbia, rather than making an appeal directly to the Court under s. 100.
This would result in the Labour Relations Board and BC Supreme Court making determinations on the meaning of s. 100 and the scope of jurisdiction of the Court of Appeal. The Court of Appeal has jurisdiction to determine its own jurisdiction under s. 100 and parties to an arbitration award ought to be able to apply directly to the Court of Appeal in cases where they believe it has jurisdiction. The Court’s comments in Rehn were not determinative of the appeal and are therefore not precedential.
Key Takeaways
These two decisions demonstrate that the Court is disinclined to exercise its jurisdiction to review arbitration awards even where the arbitration award turns on the interpretation of the general law. It remains to be seen whether the Court will recognize that there must be some circumstances in which an arbitration award can be reviewed by the Court for the purpose of ensuring a consistent development of the general law.
