BCNDP vs. Crown Counsel Association, a Fence Dispute and an Eviction for Safety
In British Columbia, the Crown Counsel Association negotiates wages, salary hours or work, and working conditions for Crown Counsel.
In 2018, the BC government decided to have Crown Counsel, rather than the police, conduct bail hearings at night and on weekends.
Rather than negotiating with the Crown Counsel Association, the BC government made a unilateral decision to have Crown Counsel work evenings and weekends, claiming that the Attorney General had the power to do this under the Attorney General Act that says the Attorney General can “preside over” the Ministry of the Attorney General.
The Crown Counsel Association grieved this decision, and an arbitrator concluded the government didn’t have the authority to act unilaterally or attempt to negotiate with individual Crown Counsel: it had to negotiate the change with the hours Crown Counsel was required to work.
Rather than negotiating, the government appealed the Arbitrator’s decision through a judicial review.
The judge on the judicial review found that the arbitrator’s decision was transparent, intelligible, justified, and reasonable, so it was upheld, and the government was ordered to pay costs to the Crown Counsel Association.
In addition to attempting to bypass collective bargaining with Crown Counsel, the provincial government is also engaged in litigation with the provincial government lawyers who are not Crown Counsel. After these lawyers voted to join a union, the government passed legislation forcing them into a different union they did not want to belong to.
A neighbour dispute over a fence and access to repair it is also discussed on the show.
After several years of refusing to permit access to their property for the purpose of repairing a fence, the neighbour on whose property the fence was located obtained an order pursuant to section 34 of the Property Law Act to permit them to access the neighbour’s property for the purpose of maintaining the fence.
This section of the Property Law Act permits a judge to order access to property for the purpose of repairing a building, structure or improvement on adjourning land when the consent of the owner of the adjoining land is refused or cannot reasonably be obtained.
The judge concluded that this section of the act, which was added in 2018, was applicable and that it also allowed the order to permit access on an ongoing basis without the need for repeated court applications.
Finally, on the show, the BC Court of Appeal upheld the eviction of a tenant as a result of them installing a dishwasher without permission and, more significantly, covering a smoke detector up with a cardboard box.
Section 47 of the Residential Tenancy Act permits a tenant to be evicted if the tenant has “seriously jeopardized the health or safety or lawful right of another occupant of the landlord and put the landlord’s property at significant risk.”
The Court of Appeal rejected the tenant’s argument that they had a right to time to fix the problem.
Legally Speaking with Michael Mulligan is live on CFAX 1070 every Thursday at 10:30 a.m. It’s also available on Apple Podcasts or wherever you get your podcasts.