The Minister of Transportation and Infrastructure issued an RFQ for the Pattullo Bridge replacement project, and imposed a requirement that all contractors who wished to qualify obtain their workers exclusively from a Crown corporation – B.C. Infrastructure Benefits Inc. (“BCIB”). The BCIB entered into a Community Benefits Agreement with unions affiliated with the Allied Infrastructure and Related Construction Council of B.C. (“AIRCC”), which itself required that all workers on the project be members of unions affiliated with AIRCC.
The net effect was that all workers on the project were required to be members of unions affiliated with the AIRCC. The RFQ expressed that this was part of a Community Benefits Framework designed “to ensure that provincial infrastructure projects are delivered in a way that provides both the best outcome for the project and provides long-lasting benefits for British Columbians and their communities. This will provide for good wages, increased opportunities for apprenticeship and training, maximizing participation of Indigenous peoples and groups traditionally under-represented in the construction sector, and greater access for local residents and businesses.”
Several construction associations filed a petition seeking judicial review – objecting to the above requirements as infringing workers’ rights under the Charter of Rights and Freedoms and exceeding the Minister’s statutory powers under the Transportation Act. One of their arguments was that the government was rewarding its political allies – an improper purpose.
The province applied to have the petition dismissed as an abuse of process – asserting that the Minister’s contracting powers are not subject to judicial review. The province also argued that the dispute fell within the jurisdiction of the Labour Relations Board (“LRB”) and therefore judicial intervention was not appropriate.
(Independent Contractors and Businesses Association v. British Columbia (Transportation and Infrastructure) 2019 BCSC 1201)
The court considered precedent that distinguished between ministerial contracting powers that are private law, and immune from judicial review, and public law, and therefore subject to court supervision through judicial review.
The court found that the petition disclosed a public element and therefore some limited parts of the petition (prohibition and certiorari) could proceed to a full hearing. These are two remedies known as prerogative writs, or extraordinary remedies, which are available to courts to direct actions of public entities. In this case, the construction associations sought to prohibit the Minister from imposing the above requirements on other public projects. They sought certiorari to quash the Minister’s decision to impose these requirements on the Pattullo Bridge replacement project.
The main elements that rendered the matter public were: an issue of broad import to the public; decision maker was a Minister of the Crown; and RFQ requirements were compulsory for those who wished to participate in a large public project. Therefore, the court retained jurisdiction to consider those limited claims under judicial review.
Through the Community Benefits Agreement – a collective agreement – workers were required to join and pay dues to unions affiliated with AIRCC, and thus forced to finance causes and political parties supported by those unions. The court found that this was the essence of the dispute, and therefore the LRB had exclusive jurisdiction. This resulted in all claims, aside from prohibition and certiorari, being struck as the court had no jurisdiction.
So, a mixed result in a significant challenge to the current BC government’s use of Community Benefits Agreements. Any further developments, including before the LRB, will be interesting to follow.
Readers are cautioned not to rely upon this article as legal advice nor as an exhaustive discussion of the topic or case. For any particular legal problem, seek advice directly from your lawyer or in-house counsel. All dates, contact information and website addresses were current at the time of original publication.