Saanich School Strike and Labour Relations Code Essential Service Designation, Criminal Code Limitation Periods and a Class Action for Credit Union Overdraft Charges

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After almost two weeks Saanich schools are still closed as a result of a strike by support staff.

Support staff are seeking a wage increase to match other school districts. The support staff ended up with lower salaries as a result of past contracts that provided for greater benefits, instead of larger salary increases.

The Saanich School District has offered all of the money they are permitted to pursuant to a provincial bargaining mandate. This amounts to an overall 6% increase in pay over a three-year period of time. Larger increases were offered for lower-paid employees, funded by, amongst other things, a reduction in benefits. The union has rejected the offer.

The dispute is at an impasse because other public sector unions in British Columbia have negotiated “Me Too” clauses in their contracts that provide that they would automatically receive a pay increase if any other public sector union is able to get more than a 6% pay increase. The effect of this would be to cost the province hundreds of millions of dollars for any pay increase of more than 6%.

In some jurisdictions, public service employees have an unfettered right to strike. In other jurisdictions, there is no right to strike at all and collective agreements are arbitrated. In British Columbia, we have a “controlled strike” model.

One of the controls on public service employee strikes is provided for in section 72 of the Labour Relations Code. That section permits services to be designated as “essential.”

Previous decisions of the Labour Relations Board have concluded that, in some circumstances, education is an essential service because an extended strike or lockout would cause an “immediate and serious danger to the health, safety, or welfare of the residents of British Columbia”.

The process to designate a service as essential can commence by way of a request from one of the parties to the dispute. In this case, the Saanich School District could make a request to the chair of the Labour Relations Board.

Following a report from the Labour Relations Board, or on his own initiative without a report, the Minister of Labour can then direct the Labour Relations Board to designate a service as essential.

The Labour Relations Board would then be required to determine exactly which services are essential.

A previous decision of the Labour Relations Board is discussed. This decision determined that disruption of educational services, for more than two weeks, may create immediate and serious danger to the welfare of the residents of British Columbia: the students who are impacted.

The mandate letter, sent to Harry Bains by the premier when he was appointed as Minister of Labour, directs him to, “ensure that children get access to the quality public education they need to succeed…”

Also discussed in the episode are limitation periods for police investigations.

Except for some minor offences, such as public nudity, most offences can be proceeds with either summarily, or by indictment.

When charges are proceeded with summarily, there is a 12-month limitation period. This was recently extended from 6 months.

The Crown can, however, choose to proceed with most offences by indictment and, in this case, there is no limitation period. There are, however, additional procedural protections that are engaged such as the right to a jury trial.

Once someone is charged, there are limits on how long someone needs to wait for trial. In most cases, this will be 18 months from the time someone is actually charged. For more serious cases, tried in Supreme Court, the time limit can be 30 months.

Finally, a class action case against a number of British Columbia credit unions is discussed. The judge, in this case, concluded that $5 overdraft fees could result in criminal rates of interest where the amount of the overdraft was small, and the time period short.

Section 347 of the Criminal Code prohibits interest rates of more than 60% per year.

When the various credit unions charged $5 for a short period of overdraft the effective rate of interest was much more than 60%.

Recognizing that a lower amount of interest would have been permitted, the judge concluded that half of the overdraft fees should be refunded.

The time period at issue in the case was November 20, 1997, and February 1, 2003. If you were charged overdraft fees by one of the listed credit unions during this time period, you may end up with a partial refund.


Legally Speaking is live on CFAX 1070 Thursdays at 10:30 am.


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An automated transcript of the show:


Adam Stirling [00:00:00] Michael Mulligan from Mulligan Defence Lawyers joining us for Legally Speaking. Michael, good morning, how are you?

Michael T. Mulligan [00:00:05] I’m doing well. Great to be here.

Adam Stirling [00:00:06] And you have done some research on exactly what options are available to this government under the relative, or I should say the relevant statute. That’s the Labour Relations Code. What’s the story?

Michael T. Mulligan [00:00:16] Yeah, I mean, the reason things have clearly stalled in these negotiations seems now clear. The underlying problem and the reason why you can’t solve this problem simply by offering more than the, what amounts to, a 6% wage increase over the length of the contract, although it could be unevenly distributed and more could be given to some people and you can move money from one pot to another. The reason why more than that can’t just be provided easily solve this disruption in the one school district is that the other public-sector unions have negotiated a me-too clause in their contracts. Me to not in the sexual impropriety sense, but me too, in the sense that if any other public sector union gets an increase beyond that, everyone else gets it automatically. So, the reason that CUPE would have a particular interest in trying to have their members hold out here as long as possible, is if they manage to extract more than that 6% amount. Every other union member in the province is going to get that to the tune of something like 300 million dollars per percent. So that’s really what’s going on here and why the thing is run up on the rocks and why there is no easy solution for the government to simply say, well, look, here is a what would be in the public, the provincial sense, a trifling amount of money to this particular district, because it would have billions of dollars implications across the province. So that’s just not likely to happen.

Adam Stirling [00:01:45] OK.

Michael T. Mulligan [00:01:46] So that’s the underlying reason things have stalled with the current state of affairs being we’ve now had a service withdrawal for tomorrow. It’ll be two weeks. And you’ve had the school district offer all the money they’re permitted to offer in the union, rejecting all the money they’re permitted to offer. That’s the underlying conflict. So how do we dislodge this current state of affairs?

Adam Stirling [00:02:08] How?

Michael T. Mulligan [00:02:08] There would be a couple of approaches. One approach would be a piece of legislation that would specifically end the strike and mandate that the employees go back to work. That is not realistic with the NDP government in B.C. These are their supporters. And so that approach is politically unlikely, even though it would be a legally available approach here. Another more likely approach, and it seems to me what needs to be promptly engaged in the process available under the existing Labour Relations Code and in particular Section 72 of the Labour Relations Code. And that is a section which deals with what is sometimes called the designation of something as an essential service. And the language used in that section speaks of investigations into whether something amounts to a threat to the health, safety or welfare of the residents of British Columbia. And here’s how that analysis would play out. The investigation into whether the provision of elementary education would fall into that category, and really the relevant part there is welfare.

Adam Stirling [00:03:23] Yes.

Michael T. Mulligan [00:03:23] Of the residents of British Columbia. That can be engaged either by, one of the parties to the dispute, so the school board here could make a request to the Labour Relations Board to investigate whether or not what’s going on in the Saanich School District amounts to a threat to the welfare of the residents of British Columbia. It could also be engaged by the union if they wish to ask for it, but that seems unlikely. What happens after that occurs is that a report would be provided to the Minister of Labour, Harry Bains, and the Minister then, Harry Bains, the Minister of Labour can either, after receiving such a report or even without such a report on his own initiative, like he could take this step today. And that may be sensible given how much time has passed. The Minister can then make a recommendation, or a decision, based on either that investigative report by the Labour Relations Board or on the Minister’s own motion to determine that in this case, the welfare of the residents of British Columbia are threatened by the continued disruption and the continued strike. At that point the Min… the Labour Relations Board would be engaged and the Labour Relations Board would then have to make a determination to determine what part of those services constitute necessary or essential to prevent the languages, immediate and serious danger to the list of things, health, safety or welfare of the residents of British Columbia. So, it requires a decision by the Minister. That’s the Minister of Labour, Harry Bains.

Adam Stirling [00:05:12] Yes.

Michael T. Mulligan [00:05:13] And then it requires a determination by the Labour Relations Board. And helpfully, there are a series of previous decisions by the Labour Relations Board that deals with the issue of what is meant by welfare, of the welfare of the residents of British Columbia, and what is meant by the language, immediate and serious danger to said welfare of the residents of British Columbia. And those decisions have dealt with expressly, what about elementary school education? So, we have some…

Adam Stirling [00:05:45] We have guidance…

Michael T. Mulligan [00:05:46] we have some guidance.

Adam Stirling [00:05:48] Good.

Michael T. Mulligan [00:05:49] And in particular, in September of 2011, there was a decision of the Labour Relations Board and this was a decision that was followed from some service withdrawal strikes by teachers during the preceding years. And at that point, the Labour Relations Board issued this decision. Looking at the history of that language in the labour relations code to interpret what is meant by essential to prevent the immediate and serious danger to the health, safety or welfare of the residents of British Columbia, in the context of a school strike. And after analyzing the history of that, how that language worked, the Hansard history and the history in other provinces, the overarching conclusion is this; that well, in some provinces and some jurisdictions, public service employees have an unfettered right to strike, and well, in other jurisdictions, public service employees have no right to strike whatsoever. In British Columbia, we have something in the middle and the language uses a controlled strike model. And what that means is that it’s not just a free for all, right. There are some limits on how these things can proceed and with respect to elementary education the interesting thing is this; back at that time, back when this case was argued in 2011, both the province and the teachers union took the position that a teacher is a teacher and it is all or nothing either. All of them are essential or none of them are essential in all circumstances. We need just a blanket decision. And the decision, at that point, from the Labour Relations Board, was a much more than much more nuanced decision. And it amounted to this. It said, look, different types of service withdrawals affect different students in a different way. And so, the example given was a service withdrawal could affect grade 12 students in June in a very different way than it might affect kindergarten students in September.

Adam Stirling [00:08:03] I see.

Michael T. Mulligan [00:08:03] In one case, the student’s going to miss out on their entire year, not get to go to university. It’s gonna be a devastating impact for the kindergarten student. September. Well, early childhood education is very important. Probably if they start in October, little long-term harm is going to come.

Adam Stirling [00:08:18] I see.

Michael T. Mulligan [00:08:19] Now with that background saying that, look, they would have to be a careful analysis of which part and how something is going to meet that threshold of being an immediate and serious danger to the welfare of the residents of British Columbia. There were some guidelines set out here that the board may wish to consider in the future in this previous decision. Part of that is this and this is why the current length of the strike is important. The board at that point said I conclude that teachers can withdraw from the classroom for at least two weeks without any service being designated as essential. But then at that point, they go on to, the board goes on to analyze, how that would be, how that language would be engaged beyond that point in time. Given that we’re now at the 2 week mark, it seems to me that what needs to occur, is there needs to be either, a Minister Bains’s needs to take action on his own to send this matter to the Labour Relations Board in order to make this nuanced determination of what is essential and how should that be ordered back. And because we have the political reality of the NDP being, essentially a party whose supporters are the people who are on strike.

Adam Stirling [00:09:38] While they are the political arm of the labour movement, they always have been. They don’t hide that. So.

Michael T. Mulligan [00:09:43] So what may be necessary to move this along and produce a little bit of impetus for Mr. Bains to take action and refer this generally to the board for the determination. It would be, in my mind, sensible for one of the parties, in this case, the School Board to request of the Labour Relations Board that they conduct an investigation to determine whether the current service withdrawal amounts to a threat to the welfare of the residents of British Columbia, and then produce a report to the Minister. So that the Minister could then have that in hand, that might be some political cover and impetus for the Minister to get moving and make the determination to refer it back to the board to make the sort of nuanced decision that would be suggested by the case that I’ve referenced. So, there is a clear existing law, the legal framework to get this disruption ended in a way that there isn’t continued harm to the welfare of the residents of British Columbia. Something which has previously been determined is the case, at least for a longer-term withdrawal of service for elementary school education. I should say this, Mr. Bains and making that decision, because he will be required to make the decision, as I’ve said, either now or after getting some report, assuming that the School Board wishes to engage the Labour Relations Board. Mr. Beans will, of course, need to be cognizance of his mandate letter. When he was appointed, he was sent a letter by the Premier setting out what his duties were. The first commitment in the letter is this: “Our first commitment is to make life more affordable. Too many families were being left behind for too long by the previous government. They are counting on you to do your part to make their lives easier.” That seems pretty relevant. The second part is even more clear. “Our second commitment is to deliver the services that people count on. Together, we can ensure that children get access to the quality public education they need to succeed. That seems pretty clear, and it would seem to me Mr. Bains ought to reference his mandate letter and consider his authority under Section 72 of the Labour Relations Code and get this matter referred to the board so it can make a clear determination as to how this is to come to an end because but for that, given the larger factors at play, there appears to be no possibility of the matter moving forward because any further advanced by the union beyond what was offered and rejected to them, would cost the province hundreds of millions of dollars. That seems almost inconceivable. And so, we’re at a point now with an almost two-week service withdrawal, something clearly needs to occur. If the Minister won’t get going on his own, I would suggest the School Board ought to review Section 72 of the Labour Relations Code, and perhaps that will light a fire under the Minister to get moving and make his decision.

Adam Stirling [00:12:48] I’ve got a big smile on my face. Michael, you are very good at what you do. I haven’t thought of reviewing the mandate letter, but indeed it says that our second commitment is to deliver the services people count on. There’s no language you’re saying in no particular order. Indeed, the first service that is mentioned here with pride of place of being the first service mentioned is quality public education, specifically access to that. It’ll be hard for them to argue that this mandate is being followed if indeed, the children are denied that access. I’m interested to see what happens next. Let’s take a quick break. Legally Speaking continues with Michael Mulligan from Mulligan Defence Lawyers right after this.

Announcer [00:13:47] COMMERICAL BREAK. This is Adam Stirling on CFAX 1070.

Adam Stirling [00:17:12] Legally Speaking continues. Michael Mulligan, Barrister and Solicitor with Mulligan Defence Lawyers. Before we move on to the next topic, Michael, you very helpfully articulated the options that this government has in terms of engaging the Labour Relations Board about this with either the Minister with the benefit of a report or a request from the school district or on his own initiative. You also briefly mentioned off the top, while not politically expedient, there is the legal option of the government simply passing legislation, ending the strike.

Michael T. Mulligan [00:17:40] Yeah and they could do that without any of that, any of the considerations or legal tests or definitions of what are essential services. The government would be free to do that. It just seems to me that with the current government it would be virtually inconceivable that the NDP would take that step, it just being so inconsistent with their political supporters to do that. So it does seem to me that the existing legal regime, which is a nuanced and balanced one, as I mentioned, sort of deals with the British Columbia reality of not being a place where public service strikes are prohibited, but also not being a place where public sector strikes are unlimited. We have this controlled strike model that does seem like a balanced and nuanced and appropriate approach. And if I were giving advice to Mr. Bains, I suppose I am indirectly it would be. Have a look at your mandate letter. You’re mandated to ensure things including child, get children, get access to quality public education. Have a look at Section 72 of your act and send this matter to the Labour Relations Board so that the Labour Relations Board can make appropriate and nuanced decision under the existing legislation and ensure that we don’t have ongoing serious harm to children who were missing out on their right to that quality public education, which your government has indicated is one of its very top priorities.

Adam Stirling [00:19:11] All right. Thank you very much for that analysis, Michael. We greatly appreciate it. We’ll move on, ask question about limitation periods for criminal charges. Many of us have heard the term statute of limitations. What’s the story when it comes to criminal offences here in B.C.?

Michael T. Mulligan [00:19:26] I must say every time that it gets raised also causes me to think of Seinfeld and the Statue of Liberty. And no, it’s not a statue. There’s no statue to be read that limits it. But this is a question I get asked, I think, frequently. So, I think it’s something worth addressing. And there have been some recent changes to it. So, I think people should know about it.

Adam Stirling [00:19:42] All right.

Michael T. Mulligan [00:19:43] People often ask some very version of the question, how long do the police have to investigate me? Right. Isn’t there some limitation period? Where’s that statue? And in most cases, there is no time limit on the police conducting an investigation or being charged. In Canada, we have two categories of criminal charges, criminal charges that proceed what are called by indictment, that’s the more serious way things can proceed. That would be things like murder, kidnapping, things of this sort. And we have a few offences which are what are called straight summary conviction offences, those are things like public nudity. Almost everything between murder and public nudity would be what are called hybrid offences, meaning the Crown could choose. Do you want to go by indictment? Do you want to go summarily? Where the Crown wants to go summarily, there is a limitation period in terms of time. It used to be until very recently, six months. So that was the practical time limit. However, the Crown can in most cases, with the exception of some minor offences like the aforementioned public nudity, go by indictment, at which point there’s no time limit at all. Now where the Crown chooses to go by indictment and enjoy the benefit of no time limit and potentially greater penalties. There are, however, some additional procedural protections for people. Somebody could, for example, elect to have a trial by judge and jury or in many cases, a preliminary inquiry. And so, well, the Crown in most cases for most offences, could choose to proceed by indictment, meaning there’d be no time limit on the police investigation or charging somebody. There can be a practical limit in the sense that well beyond a year you could charge somebody by indictment with, let’s say, shoplifting, theft under. You probably don’t want to do that because you would engage things potentially like a trial by judge and jury over the, you know, relatively minor offence, which is going to consume a potentially fair amount of public resources pursuing something of modest significance. And so, in many cases, there will be a practical limit, but there is in most cases no legal impediment to the Crown proceeding at any time. And therefore, the police can take all the time they want to investigate you. Once you are charged, however, there are some limits on how long they have to get you to trial. In most cases, criminal cases in the provincial court are 18 months, but it could be 30 months in cases that are in Supreme Court where there’s a preliminary inquiry. So, there are some time limits, either…so there are some time limits once you’re charged. But in most cases, there’s no legal prohibition on the Crown proceeding at any time. You don’t get out of no get out of jail free card after five years for murdering your neighbour. If they come up with evidence, you’ve done it five years down the road. Well, you’ll be charged.

Adam Stirling [00:22:35] You’ve helped us understand the two-part test for bringing charges. One is there’s a substantial likelihood of conviction, two, with the bringing of charges be in the public interest. Does that test differentiate between indictable or summary offences or hybrid offences?

Michael T. Mulligan [00:22:49] The test will be the same for both of those, although I suppose the public interest component of the test might come into play in a different way if there was a very long delay for a very minor offence.

Adam Stirling [00:23:01] okay.

Michael T. Mulligan [00:23:01] You know, somebody said, look, I’ve come to you with compelling evidence that, you know, Adam stole this chocolate bar three years ago. Look, it’s on video. It’s very clear he took it. You know, could the Crown come up, proceed by indictment and proceed with a charge? Sure. But I suppose after some time goes by, you might conclude, well, there’s really no public interest in doing that. It’s minor. It was a really long time ago. Nothing else has happened since. And to engage the process at this point and in that way could result in great public expense for a little practical good.

Adam Stirling [00:23:31] Interesting. Our third story, credit union overdraft fees and rates of interest, which may violate the criminal code. How does that work.

Michael T. Mulligan [00:23:40] Yeah. There may be a lot of people looking forward to a refund if they’re a credit union member. And here’s why. The Criminal Code in Section 347 prohibits criminal rates of interest. The criminal rate of interest would be an interest rate in excess of 60%per year. You can’t have some loan shark operation where, you know, I suppose some of the credit cards might get close to that, but you can’t just go and charge somebody 400 % interest and effectively have them indebted forever. We have a limit. And in B.C., there have been a few class actions that have started and been certified, including one which had a further decision, just recently. This particular one involved a whole series of credit unions all across the province. And the history of it is that credit unions were charging people overdraft fees when they wound up, you know, writing a check for more than what was in their account. And in some cases, because the amount of overdraft might have been tiny and might have been repaid promptly. The effect of it would be that the effective rate of interest obtained by the credit union for effectively extending somebody a loan for a few days for a few hundred dollars would be a flat fee of like five dollars or in some cases fifteen dollars. What it meant was that the credit unions were effectively getting a rate of interest way beyond the upper limit, which is 60%. So, a class action got certified in that regard. And it involved a whole series of credit unions and a time period between November 20th, 1997 and February 1st, 2003. And this has been litigated ever since, basically. You know, credit unions fighting about, you know, what about limitation periods? And what about, you know, shouldn’t we keep some of the money? We have to give all the money back? And issues like, was that interest or was that something else? Because that’s an interesting thing. In any case, the decision which just came out concluded, no, that is interest, the you know, five dollars you took from somebody to give them an overdraft amount for a few days. That is interest. That is criminal. You can’t keep that. But the judge in this recent decision concluded that they should be permitted to keep some of the money because a lower rate of interest would have been permissible. It’s just that they, because there was this flat fee in many cases for a small amount of money for a short period of time. They wound up getting much more than what is criminally permitted. And so, the decision in this case, which just came out on November the 4th, was to find that these whole series of credit unions for the time period, in issue, are going to be permitted to keep half of the money they collected in these overdraft fees. And the other half being that it was collected unlawfully and in contradiction of the criminal code is going to have to be given back to all the people that were affected. And so if you’re a member of one of these various credit unions and there’s a long list of them here, once this case now resolves, hopefully soon there will be some process engaged whereby you’re going to get some of your overdraft fees back because they were collected in contravention of the criminal code.

Adam Stirling [00:26:51] Michael Mulligan, pleasure, as always. Thank you for your knowledge and insight.

Michael T. Mulligan [00:26:54] Thank you.

Adam Stirling [00:26:55] Take care. Michael Mulligan. Every week here on CFAX 1070, Barrister and Solicitor with Mulligan Defence Lawyers. It is Legally Speaking. The news is next.

Automatically Transcribed on November 7, 2019 – MULLIGAN DEFENCE LAWYERS