Meza v. Capilano University and another (No.3), 2025 BCHRT 51
Date Issued: February 27, 2025
File(s): CS-003767
Indexed as: Meza v. Capilano University and another (No.3), 2025 BCHRT 51
IN THE MATTER OF THE HUMAN RIGHTS CODE,
RSBC 1996, c. 210 (as amended)
AND IN THE MATTER of a complaint before
the British Columbia Human Rights Tribunal
BETWEEN:
Jose (Josema) Manuel Zamorano Meza
COMPLAINANT
AND:
Capilano University and Capilano Faculty Association
RESPONDENTS
REASONS FOR DECISION
APPLICATION TO RECONSIDER A DECISION
Rule 36
Tribunal Member: Jonathan Chapnick
Counsel for Capilano Faculty Association: James Baugh
For the other parties: No submissions sought
I INTRODUCTION
[1] On August 23, 2024, the Capilano Faculty Association [ Union ] applied to limit disclosure of certain documents in this proceeding. In a decision on November 20, I denied its application: Meza v. Capilano University and another , 2024 BCHRT 329 [ Decision ].
[2] On December 4, the Union applied for reconsideration of the Decision. It argues that it was denied a fair hearing because the Decision cites authorities that were not referenced in the parties’ submissions, and because I declined to consider certain additional evidence. The remainder of its application details various ways in which the Union feels the Decision is wrong.
[3] Mr. Zamorano Meza opposes the Union’s application. Capilano University [ University ] has not taken a position. I do not find it necessary to seek their submissions.
[4] For the reasons that follow, I decline to reconsider the Decision. I am not satisfied that the interests of fairness and justice require the Tribunal to exercise its limited reconsideration power in this case. The Union’s application is denied.
II BACKGROUND
[5] Background information regarding the complaint is set out in the Decision: see paras. 1-11. I do not repeat it here.
[6] The application to limit disclosure related to seven documents over which the Union claimed privilege [ Documents ]. The Documents were in Mr. Zamorano Meza’s possession and he intended to disclose them to the other parties under the Tribunal’s document disclosure rules. The Union applied to the Tribunal for an order prohibiting Mr. Zamorano Meza from disclosing the Documents to the University. The Union’s application was four pages and was accompanied by three affidavits. I will refer to it as the Privilege Application .
[7] In the Privilege Application, the Union argued that three of the Documents (described in the Decision as Document #52 , Document #54 , and Document #55 ) were covered by “labour relations privilege” because they were internal union communications regarding labour relations matters at the University. The Union argued that the other four documents (described in the decision as Document #108 , Document #109 , Document #112 , and Document #113 ) were privileged because they were communications that formed part of a without prejudice mediation process. It also claimed that the four documents were covered by labour relations privilege because they related to labour relations matters with respect to which the Union was providing advice and assistance to Mr. Zamorano Meza.
[8] The Union cited three cases in support of its privilege claims: Zamorano Meza v. Capilano Faculty Association and another , 2024 BCHRT 101 at para. 22; University of the Fraser Valley v. University of the Fraser Valley Faculty & Staff Association , BCLRB No. B24/2018 at para. 45; and Gatica and another obo Temporary Foreign Workers from Guatemala v. Golden Eagle Blueberry Farm and others (No. 2) . 2024 BCHRT 82 at paras. 16-18 and 22-23.
[9] The other parties filed submissions in response to the Privilege Application. In their respective submissions, they outlined the purpose of document disclosure, the general law regarding privilege, the case-by-case nature of “labour relations privilege,” and the related application of four requirements commonly known as the “Wigmore criteria.” They also defined other types of privilege, including “settlement privilege.” In their submissions, the other parties canvassed a variety of case authorities regarding the types of privilege claimed by the Union, including arbitration awards, decisions of labour relations boards, and Supreme Court of Canada judgements.
[10] In its reply submission, the Union discussed and distinguished some of the cases relied on by the other parties, and cited additional authorities.
III DECISION
[11] In general, once the Tribunal decides an issue, the decision is final. The Tribunal’s jurisdiction to consider the issue is “spent”: Fraser Health Authority v. Workers’ Compensation Appeal Tribunal , 2014 BCCA at para. 160, upheld on this point in 2016 SCC 25 [ Fraser Health ]. The decision “cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances”: Chandler v. Alberta Association of Architects , [1989] 2 SCR 848 at 861. A party who disagrees with a Tribunal decision can seek judicial review, subject to which the parties should be able to count on the decision being final: Tuson v. The Board of Education of School District No. 5 (No. 5) , 2021 BCHRT 14 at para. 8.
[12] The Court of Appeal has identified very narrow exceptions to this finality, including circumstances where there has not been procedural fairness: Fraser Health at paras. 141 and 160; see Tuson at para. 9. The Tribunal also has an equitable jurisdiction to re-open a decision where the interests of justice and fairness require it to do so, which is reflected in Rule 36(1) of the Tribunal’s Rules of Practice and Procedure : see Zutter v. British Columbia (Council of Human Rights) (1995), 122 DLR (4 th ) 665 (BCCA). This power is meant to be exercised carefully and restrictively in deference to the principle of finality: Zutter at para. 31.
[13] The Union’s reconsideration application raises two procedural fairness issues, which I will address in turn.
A. Decision cites authorities that were not referenced by the parties
[14] In the Decision, the determinative reason for rejecting the Union’s position regarding several of the Documents was that the privilege the Union claimed did not belong to it; the privilege belonged to Mr. Zamorano Meza and was his to waive: paras. 30-31. My analysis of the confidential relationship-type labour relations privilege claimed by the Union referred to several authorities: see paras. 21-42. Some had been cited by the parties. Others were not referenced in the parties’ submissions. The Union argues that I denied it a fair hearing and its right of reply because it did not have a chance to respond to the latter.
[15] The Union specifically pinpoints paragraph 31 of the Decision, where I said that the “type of labour relations privilege asserted by the Union regarding Document #52 is exclusively Mr. Zamorano Meza’s to waive.” I cited two cases here: Re Centre for Addiction and Mental Health and Ontario Public Service Employees Union , (2004) 133 L.A.C. (4th) 178 [ CAMH ] and Re Canada Safeway Ltd. and Retail Clerks Union, Local 1518 , (1984) 21 L.A.C. (3d) 50 [ Canada Safeway ]. I also cited an article for further support and background information: S. Michelle Blendell and Jessica L. Burke, “Privilege and Other Grounds for Protecting a Union’s Documents and Communications from Disclosure” (Paper presented to the Continuing Legal Education Society of British Columbia conference, Labour Relations – 2012, June 2012).
[16] I do not agree that, in relying on these authorities, I denied the Union a fair hearing or its right of reply. CAMH was referenced in the University’s response and discussed in the Union’s reply. While Canada Safeway was not cited by the parties, it is canvassed and quoted from in Vetro v. Klassen and Pacific Transit Cooperative (No. 2) , 2005 BCHRT 263, which was discussed in detail and relied upon by the Union in its reply. In any event, Canada Safeway related directly to the issues raised in the parties’ submissions and was available to the Union when it filed the Privilege Application; consequently, no unfairness resulted from my reliance on it: see Gichuru v. The Law Society of British Columbia , 2014 BCCA 396 at paras. 35-39.
[17] The Union also pinpoints paragraph 22 of the Decision, where I said that “there is no general presumption of privilege over confidential relationship-type labour relations communications.” I also said that confidential relationship privilege and other types of labour relations privilege can only be established, on a case-by-case basis, if the Wigmore criteria are met. For the first proposition, I cited CAMH , Klewchuk v. City of Burnaby (No. 2) , 2019 BCHRT 32, and School District No. 65 (Cowichan) and Cowichan (District) Teachers’ Assn., Re , (1996) 54 L.A.C. (4th) 378. I also cited British Columbia v. British Columbia Crown Counsel Association , 2019 CanLII 51802 (BC LA) for added support. For the second proposition, I cited Klewchuk , as well as examples of other supporting cases: British Columbia (Ministry of Transportation & Highways) and B.C.G.E.U., Loc. 1103, Re , (1990) 13 L.A.C. (4th) 190; CAMH ; Cowichan School District ; Crown Counsel ; International Union of Elevator Constructors, Local 50 v. OTIS Canada Inc. , 2020 CanLII 76161 (ON LRB); and BC General Employees’ Union v. BC Safety Authority , 2023 CanLII 19177 (BC LA). I also cited a leading text for further support and background information: Adam Beatty, David M. Beatty & Donald J.M. Brown, Canadian Labour Arbitration , 5th ed., looseleaf (Toronto: Carswell, 2021).
[18] As above, I do not agree that, in citing these authorities, I denied the Union a fair hearing or its right of reply. For the first proposition in paragraph 22, two of my direct authorities, CAMH and Klewchuk , were discussed in the Union’s reply. Similarly, for the second proposition, I relied directly on Klewchuk . In any event, all of the authorities referenced related to the issues raised in the parties’ submissions and were available to the Union. No unfairness resulted from their citation in the Decision.
B. Tribunal declined to consider certain additional evidence
[19] In his response to the Privilege Application, Mr. Zamorano Meza asked me to review and consider the Documents, in the same way as the Tribunal had in Klewchuk . Later in the submissions process, at paragraphs 9-10 of its reply, the Union stated the following regarding a claim made in the affidavit filed with Mr. Zamorano Meza’s response:
The Union disputes the Complainant’s claim that it was only “later,” after [the Assistant Senior Steward] proposed an “open dialogue” between himself, the Complainant and [the Program Coordinator], that [the Assistant Senior Steward] referred to this as a “mediation process” (Complainant’s Affidavit, paragraph 5). The problem is that in order to dispute this claim, the Union has to refer to other [privileged] documents listed in the Complainant’s 2 nd Supplementary List of Documents … . The Union should not be forced into waiving privilege over documents … because the Complainant has ostensibly quoted from them and is misrepresenting their contents.
The Union therefore requests that it be able to provide these documents, together with a summary of their relevant contents, in the form of a supplemental affidavit from [the Assistant Senior Steward], to the Tribunal without having to provide copies to the University, as that would be considered a waiver of the privilege attaching to them (bolding added).
[20] This was a request by the Union to file additional documentary evidence by way of a further affidavit [ Additional Evidence ], for the express purpose of disputing a specific claim made in Mr. Zamorano Meza’s affidavit, namely that the Assistant Senior Steward initially proposed an open dialogue with the Program Coordinator, and only later referred to their meetings as a mediation process. At the time, I mistakenly interpreted this request to be the Union seeking leave to file both the Documents and the Additional Evidence.
[21] Upon reviewing the parties’ submissions, I determined that, for the purposes of the Privilege Application, I did not need to resolve the dispute over whether the Assistant Senior Steward initially proposed an open dialogue, and only later used the term “mediation process.” This is reflected in the Decision: para. 69. Accordingly, I wrote to the parties, ordering the Union to disclose the Documents to the Tribunal, but not the Additional Evidence. Specifically, I wrote the following:
On August 23, 2024, the Union filed an application to limit disclosure [ Application ]. Specifically, the Union applied to limit disclosure of documents 52, 54, 55, 108, 109, 112, and 113 … [ Documents ].
In Mr. [Zamorano] Meza’s September 6, 2024 response to the Application, he said the Tribunal should review the Documents in deciding the Application. In the Union’s September 20, 2024 reply, it asked that it be able to provide the Documents to the Tribunal .
I make the following order:
I order the Union to deliver the Documents to the Tribunal as soon as possible, and no later than October 15, 2024.
I am not ordering the Union to disclose the Documents to the other parties at this time.
I am not allowing the Union to submit additional evidence, in the form of a supplemental affidavit from [the Assistant Senior Steward], at this time (bolding in original; underlining added).
[22] I appreciate that the underlined statement in my letter was based on a misunderstanding of the Union’s request to file the Additional Evidence. The Union had not, in fact, asked to provide the Documents to the Tribunal. In any event, my order was clear. I explicitly ordered the Union to disclose the seven Documents to the Tribunal, and I explicitly ordered the Union not to file the Additional Evidence.
[23] In response to my order, the Union disclosed the Documents to the Tribunal. However, it also said that I had “ordered [it] to produce, in addition to Document Nos. 52, 54, 55, 108, 109, 112 and 113, copies of the additional privileged documents referred to in [its reply] submission, but without an affidavit from [the Assistant Senior Steward] providing a summary of their relevant contents.” Clearly, I made no such order. Nevertheless, the Union submitted the Additional Evidence to the Tribunal, albeit without the explanatory affidavit. The Union also reiterated that it needed to submit the Additional Evidence for the purpose of disputing “the Complainant’s claim that it was only ‘later,’ after [the Assistant Senior Steward] proposed an ‘open dialogue’ between himself, the Complainant and [the Program Coordinator], that [the Assistant Senior Steward] referred to this as a ‘mediation process’ (Complainant’s Affidavit, paragraph 5).”
[24] In making the Decision, I did not consider the Additional Evidence filed by the Union: Decision, para. 11. In the present application, the Union now argues that the Additional Evidence served a different purpose, namely that it provided proof of a “litigious dispute” between the parties to the mediation process. As a result, the Union says my “refusal to consider these documents constitutes a denial of a fair hearing.”
[25] In other words, the Union originally asked to file the Additional Evidence for the specific purpose of disputing Mr. Zamorano Meza’s claim that certain meetings were described as an open dialogue rather than a mediation process. I determined that I did not need to resolve that dispute and ordered the Union not to file the Additional Evidence. The Union filed the Additional Evidence anyway, and now argues that it served a different purpose, and therefore my decision not to consider it was a breach of procedural fairness. I do not agree with the Union’s logic and am not satisfied that any unfairness to the Union flowed from this scenario. Under the circumstances, it was not unfair for me to decline to consider the Additional Evidence.
C. Remainder of application for reconsideration
[26] The remainder of the Union’s submissions in the present application go to the various ways in which it feels the Decision is wrong. For example, in its application for reconsideration, the Union disagrees with my analysis of relevant case law, and makes detailed submissions regarding what certain cases say and stand for. The Union also asserts that I erred in describing its argument regarding labour relations privilege and in summarizing its case authorities. In addition, the Union argues that certain statements made in the Decision (e.g., at paras. 34 and 76) are wrong.
[27] An application for reconsideration is not the place for these types of arguments.
[28] The Tribunal is not authorized to sit in appeal of its own decisions; it cannot reopen a decision “because one party or another feels that the decision is wrong”: Eddy v. Toby’s Pub and Grill and another (No. 2) , 2013 BCHRT 48 at para. 27. Under the Tribunal’s limited reconsideration power, I cannot retry the Privilege Application to determine whether the Decision was unreasonable: Fraser Health at paras. 158-161. Nor would it be efficient or fair to tie up the Tribunal in such potentially endless proceedings: Tuson at para. 8. If the Union believes the Decision is wrong substantively, its recourse is to seek judicial review: see Fraser Health at para. 161; Cameron v. Burrardview Housing Co-Operative (No. 4), 2022 BCHRT 93 at para. 10; Prosko v. District of Taylor (No. 3) , 2024 BCHRT 319 at para. 19.
[29] For all of the above reasons, I am not satisfied that the interests of fairness and justice require the Tribunal to reconsider the Decision. The Union’s application for reconsideration is denied.
IV CONCLUSION
[30] The Union’s application to reconsider the Decision is denied. The Decision stands.
Jonathan Chapnick
Tribunal Member