IN THE SUPREME COURT OF BRITISH COLUMBIA

Transcription

1 IN THE SUPREME COURT OF BRITISH COLUMBIA Citation: Cariboo Gur Sikh Temple Society (1979) v. British Columbia (Employment Standards Tribunal), 2016 BCSC 1622 Between: Cariboo Gur Sikh Temple Society (1979) Date: Docket: S Registry: Vancouver Petitioner And The Employment Standards Tribunal and The Director of Employment Standards and Daljit Singh Sodhi Respondents Before: The Honourable Mr. Justice Ball On judicial review from: An order of The Employment Standards Tribunal and a decision of March 26, 2015, (BC EST #RD030/15) in Reconsideration of a decision of October 9, 2014, (BC EST #D091/14). Reasons for Judgment Counsel for Petitioner: Counsel for Respondent, Employment Standards Tribunal: Counsel for Respondent, Director of Employment Standards: Counsel for Respondent, Daljit Singh Sodhi: Place and Dates of Hearing: Place and Date of Judgment: A.E. Barker D.W. Garner J. Mason A.J. Adamic A.R. Ayliffe Vancouver, B.C. March 1 and 2, 2016 Vancouver, B.C. August 31, 2016

2 Standards Tribunal) Page 2 Introduction [1] Cariboo Gur Sikh Temple Society (1979) (the petitioner ) applies for judicial review of a reconsideration decision (the Decision ) of the Employment Standards Tribunal (the Tribunal ). The petitioner alleges that the Tribunal s Decision was patently unreasonable and that the Tribunal, in making the Decision, breached the principles of natural justice and procedural fairness. [2] The petition was opposed by the Employment Standards Branch (the Branch ) and the Tribunal as well as Mr. Sodhi, the original complainant in this case. The Facts [3] The petitioner operates a Sikh Temple in Quesnel, British Columbia. [4] In January 2009, then without the services of an active Granthi or priest, the petitioner hired Mr. Sodhi to perform this role. Mr. Sodhi continued in that position until January 1, 2013, at which time his employment with the petitioner was terminated. Mr. Sodhi subsequently filed a complaint with the Branch against the petitioner alleging he was owed unpaid wages. [5] The Branch investigated the complaint through an industrial relations officer or delegate of the Director of Employment Standards (the Delegate ). The significant issue which arose in the investigation was the actual terms of the written contract of employment entered into between the petitioner and Mr. Sodhi. [6] A written contract specifying a monthly salary of $2,850 was advanced by Mr. Sodhi. Varinder Gill, a former director and President of the petitioner, provided evidence in support of Mr. Sodhi s wage claim, stating that this contract was the geniune, and that an earlier contract specifying a salary of $3,850 for Mr. Sodhi was in error.

3 Standards Tribunal) Page 3 [7] The petitioner asserted that Mr. Sodhi s salary was $1,000 plus accommodations in the Temple and meal expenses. The petitioner argued that the contract proffered by Mr. Sodhi specifying the monthly salary of $2,850 was a fake. [8] The Delegate did not find that there was a written contract of employment. He did not accept Mr. Gill s evidence concerning Mr. Sodhi s rate of pay. Further, the Delegate was persuaded by the petitioner s evidence that Mr. Sodhi had been offered a salary of $1,000 per month. Even if he found the contract advanced by Mr. Gill and Mr. Sodhi valid, the Delegate found Mr. Sodhi had accepted pay at the rate of $1,000 per month by continuing to work for this amount without complaint. The Delegate also accepted sworn statements from five former and current Board Directors of the petitioner, all of whom denied knowledge of a written contract, or knowledge of an agreement to pay Mr. Sodhi any sum of more than $1,000 per month. This finding was clearly sufficient to put aside any suggestion that Mr. Sodhi had a contract with the petitioner for more than $1,000 per month in wages. [9] The petitioner asserts that on two occasions during the investigation, the petitioner requested an opportunity to question or cross-examine Mr. Sodhi. The petitioner states, in Mr. Puri s affidavit, that the Delegate did not grant these requests. These requests and any response to them were not mentioned at any time during the Decision. [10] Apart from the finding of a monthly salary of $1,000 referred to above, on June 10, 2014, the Delegate issued a determination in which the Delegate accepted as reliable a spreadsheet provided by the petitioner which set forth the days that Mr. Sodhi actually provided services to the petitioner for the period from July 16, 2012 to January 15, This period of six months is the maximum period that the Employment Standards Act, R.S.B.C. 1996, c. 113 [ESA], permits to be considered in relation to a wage claim. [11] The Delegate also concluded that Mr. Sodhi had worked more than the number of days allowed by statute to be worked in that period. This was based on the fact that the petitioner did not keep a record of the number of hours worked and

4 Standards Tribunal) Page 4 only presented estimates to the Delegate, while Mr. Sodhi presented a detailed account of his daily tasks and a length of time each [task] would take. The Delegate accepted this evidence as the best evidence of the hours worked. [12] Based on the Delegate s finding that Mr. Sodhi was, on the best evidence, working 40 hours per week and was paid $1,000 per month, his hourly rate of pay was therefore $5.77, well below the minimum wage in British Columbia, which at the time was $10.25 per hour. [13] As a result, the Delegate concluded that Mr. Sodhi had been underpaid for regular wages, various forms of overtime wages, statutory holiday pay, length of service allowance and annual vacation pay in the total sum of $13,157.56, less wages actually paid to Mr. Sodhi of $6,000, resulting in the sum of $7, plus interest of $ for a total of $7, The Delegate also found that the petitioner had breached the ESA and imposed $4,000 in administrative penalties payable to the Branch. [14] The petitioner appealed the determination to the Employment Standards Tribunal. [15] On October 9, 2014, the Tribunal dismissed the petitioner s appeal. The petitioner then applied for reconsideration of the appeal decision, which was dismissed on March 26, Issues [16] The grounds for reconsideration considered by the Tribunal included that the Delegate erred in: 1. failing to disclose all relevant information prior to making the Determination; 2. failing to conduct an oral hearing or otherwise allowing the complainant to be cross-examined; and 3. improperly ignoring evidence that the complainant was attempting to commit fraud in the proceedings.

5 Standards Tribunal) Page 5 [17] After consideration of each of these grounds, the Tribunal confirmed the original decision. [18] These grounds are repeated as bases for judicial review on the present application, albeit the focus is on the Decision and not the Delegate s determination. Analysis [19] Only the Decision of the Tribunal is subject to review by this Court; not the determination by the Delegate: Yellow Cab Company Ltd. v. Passenger Transportation Board, 2014 BCCA 329 at paras As stated in Canwood v. Bork, 2012 BCSC 578 at paras , with respect to the inability of the court to review the initial determination by the Delegate: [17] It is clear that the original Director s determination is not the subject of this judicial review. The Legislature has put in place a statutory scheme providing for appeals of determinations by the Director. That process is protected by a privative clause. As Mr. Justice Pitfield said in Laguna Woodcraft (Canada) Ltd. v. British Columbia (Employment Standards Tribunal), [1999] B.C.J. No (S.C.) [Laguna] at para. 11: Under the Employment Standards Act an appeal lies to the Tribunal from any decision made by the director. Judicial review, in the ordinary course, is not available where there is an appeal to higher authority. The judicial review should be pursued, where appropriate and necessary, in relation to decisions of the Tribunal and not of the director. [20] Nonetheless, the determination of Delegate forms part of the background for this hearing and will inform the Court s review. [21] The jurisdiction of the Tribunal to hear and decide applications for reconsideration of appeal decisions is defined in s. 116 of the ESA. [22] Section 110 of the ESA contains a strong privative clause providing exclusive jurisdiction for the Tribunal: 110 (1) The tribunal has exclusive jurisdiction to inquire into, hear and determine all those matters and questions of fact, law and discretion arising or required to be determined in an appeal or reconsideration under Parts 12 and 13 and to make any order permitted to be made.

6 Standards Tribunal) Page 6 (2) A decision or order of the tribunal on a matter in respect of which the tribunal has exclusive jurisdiction is final and conclusive and is not open to question or review in any court. [23] The standard of review in cases such as the one at bar has been determined in previous cases to be patent unreasonableness : see Canwood at para. 93; International Forest Products Limited v. British Columbia (Labour Relations Board), 2014 BCSC 956, 2014 BCSC 956 at paras 3-6. This is based on s. 58 of the Administrative Tribunals Act, S.B.C. 2004, c. 45 [ATA], which applies to the Tribunal by virtue of s. 103 of the ESA. [24] The standard of patent unreasonableness is highly deferential to the decisionmaker based on expertise recognized by the legislature: Johnson v. British Columbia (Workers Compensation Board), 2011 BCCA 255 at paras The question to be answered in this case is whether there is any rational or tenable line of analysis supporting the decision: Victoria Times Colonist v. Communications Energy and Paperworkers Union, 2008 BCSC 109 at para. 65, aff d 2009 BCCA 229. [25] Issues of procedural fairness or natural justice must be decided having regard to whether, in all the circumstances, the Tribunal acted fairly: ATA, s. 58(2)(b). Failure to Disclose All Relevant Information [26] On appeal, the petitioner raised a concern that the Delegate did not disclose all relevant information prior to making the initial determination. Specifically, the petitioner argued that the following information had not been disclosed: Notes concerning interviews between the Delegate and the petitioner. Notes concerning interviews between the Delegate and Mr. Sodhi. Notes concerning interviews between the Delegate and Mr. Gill. [27] The petitioner also referred to various numbered documents said to contain statements of Mr. Sodhi against the interests of the petitioner, which the latter was not given the opportunity to refute.

7 Standards Tribunal) Page 7 [28] The Delegate responded to these allegations, noting that notes made during the conduct of an investigation are not customarily provided to the parties. The relevant content from the other documents was shared with the petitioner. Any prejudicial allegations in them were largely irrelevant to Mr. Sodhi s ESA claims, while the relevant statements were largely supportive of the petitioner s position and acknowledged by Mr. Sodhi. [29] As it related to the petitioner and Mr. Sodhi, both parties were advised that their arguments and evidence were expected to be presented in writing. Written submissions were subsequently prepared and put forth, and it was those submissions that were relied upon. [30] As for Mr. Gill, his evidence was not provided in writing. However, the petitioner was informed by the Delegate about the substance of Mr. Gill s evidence: that he denied falsifying any documents. The petitioner then provided evidence attempting to refute that of Mr. Gill. Ultimately, the Delegate did not accept Mr. Gill s evidence relating to Mr. Sodhi s rate of pay. [31] The appeal decision found that, with respect to the documents said to contain statements made by Mr. Sodhi, no submissions had been made by the petitioner identifying what documents might have been relevant to any issue raised in the appeal and how the failure to receive those documents affected the petitioner s ability to know and respond to Mr. Sodhi s claims. [32] With respect to the notes, the Tribunal adopted a position taken in a prior Tribunal decision, which held that such notes are not customarily ordered to be produced, except on rare and unique occasions, as long as the relevant information contained in those notes, and an opportunity to respond, is provided. The Tribunal found that nothing in the circumstances of this matter qualified as a rare and unique occasion. All of the information contained therein had been set down in writing by the parties, except for Mr. Gill s evidence, which was not relevant to the appeal.

8 Standards Tribunal) Page 8 [33] In the reconsideration Decision, on this issue, the Tribunal stated as follows: 55 The Member said that the Delegate had advised that some of the documents were irrelevant, and that the allegations in the ones that were relevant had been shared with the Society. In this case, I do not see that the Delegate's choosing not to produce irrelevant documents, or relevant documents the substance of which was communicated to the Society can amount to a failure of natural justice. 56 The Society implies that the mere failure to disclose a relevant document must constitute a failure of natural justice. That, however, is not what the Act requires in all cases. What section 77 requires is that a person who is the subject of a complaint has a reasonable opportunity to respond. Nowhere is it stated that in all cases all relevant documents must be disclosed. 57 There will, of course, be many cases where natural justice requires that a relevant document be disclosed. The Member decided that this was not one of them, insofar as the undisclosed documents were concerned. A reason given by the Member was that the Society had not identified in its submissions any undisclosed documents that might have been relevant to an issue in the appeal; nor had it established that the receipt of any such documents was essential in order for it to have a reasonable opportunity to respond to the complaint. [34] The Tribunal therefore declined to disturb the appeal decision regarding the contents of the record. [35] Before this Court on judicial review, the petitioner asserts that the Tribunal s failure to order disclosure of this material was patently unreasonable. For this submission, as it did before the Tribunal on the Decision, the petitioner primarily relies on Taiga Works Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards), 2010 BCCA 97 [Taiga Works]. [36] In Taiga Works, a delegate of the Director of Employment Standards concluded that the employer had constructively dismissed former employees by changing the conditions of their employment. They were awarded compensation and the employer received an administrative penalty. The employer appealed. [37] The first tribunal member hearing the appeal concluded that the delegate had breached the principles of natural justice by, inter alia, not disclosing to the employer copies of all the documents that had been submitted by the employees. However, the first tribunal member decided not to refer the matter back to the delegate,

9 Standards Tribunal) Page 9 concluding that she was able to cure the procedural defects on the hearing before her. [38] The employer applied for reconsideration. The second tribunal member, who heard the reconsideration, expressed concerns that the employer had not been given a full opportunity to make submissions with respect to the documents that had not been disclosed, but held that procedural fairness could be ensured by referring the matter back to the first tribunal member for a hearing of those submissions. At the conclusion of the re-hearing, the first tribunal member concluded that there had been no unfairness to the employer as a result of the non-disclose of the documents because the late-disclosed documents would not have affected the outcome. The employer applied for judicial review. [39] The chambers judge concluded that the second tribunal member had acted fairly and dismissed the petition for judicial review. [40] The BC Court of Appeal examined whether an appellate body could cure breaches of the rules of natural justice or procedural fairness committed by the tribunal whose decision is under appeal. After reviewing the relevant authorities from the Supreme Court of Canada, the court concluded that appellate bodies can cure breaches in appropriate circumstances, reasoning as follows: [37] I think it is fair to say that Cardinal stands for the proposition that a breach of the rules of natural justice or procedural fairness cannot be overlooked on the basis that the reviewing court or appellate tribunal is of the view the result would have been the same had no breach occurred. As demonstrated by the post-cardinal authorities to which I have referred, Harelkin and King continue to stand for the proposition that appellate tribunals can, in appropriate circumstances, cure breaches of natural justice or procedural fairness by an underlying tribunal. The question then becomes how one should determine whether such breaches have been properly cured. [38] As did Huddart J.A. in International Union of Operating Engineers and Berger J.A. in Stewart, I prefer the approach advocated by de Smith, Woolf and Jowell in Judicial Review of Administrative Action. One should review the proceedings before the initial tribunal and the appellate tribunal, and determine whether the procedure as a whole satisfies the requirements of fairness. One should consider all of the circumstances, including the factors listed by de Smith, Woolf and Jowell.

10 Standards Tribunal) Page 10 [41] Nonetheless, the court reversed the chambers judge s decision, holding that the tribunal had erred in concluding that the breaches of natural justice in the procedure adopted by the delegate could be cured on appeal. The first tribunal member had effectively concluded that the breaches did not make any difference to the outcome. She did not cure the breaches, but instead decided that they could be overlooked, contrary to the authorities referred to in the aforementioned passage. The second tribunal member erred by, in effect, inviting the first tribunal member to repeat her error. No amount of submissions made by the employer to the first tribunal member could ameliorate the perception that the delegate may have made findings of fact based, in part, on the documents that had not been disclosed. [42] Here, the Tribunal dealt with the petitioner s submissions regarding Taiga Works during the course of the Decision by stating: 53 The Society is correct in stating that the Taiga decision stands for the principle that if relevant documents are not disclosed during an investigation in breach of the principles of natural justice, there are circumstances where the breach cannot be cured by the Tribunal on appeal. In those cases, the matter should be referred back to the Director to conduct a fair investigation. However, this is not one of those cases. In this case, the Member confirmed that the Delegate did not disclose certain notes and documents. That said, the Member decided that the non-disclosure did not constitute a failure to observe the principles of natural justice, for the reasons I have discussed earlier. 54 If there was no failure to observe the principles of natural justice, there was no breach that needed to be cured on the appeal. [43] In other words, in Taiga, the Tribunal concluded that there had been a breach of natural justice based on the procedure adopted by the delegate; whereas in this case, the Tribunal concluded that there had not been a breach of natural justice in the procedure adopted by the Delegate. Accordingly, the appeal and the Decision were not curing a prior breach, but rather affirming the Delegate s conclusions regarding the documents and the fact that they did not need to be disclosed. [44] I agree with the Tribunal s comments on this issue and find that Taiga is distinguishable from the case at bar. [45] However, that does not end the matter.

11 Standards Tribunal) Page 11 [46] The petitioner argues that there was a breach of natural justice in this case because on the appeal, the Tribunal failed to comply with its disclosure obligations under s. 112(5). The basis for this submission is another decision of the Tribunal, British Columbia (Director of Employment Standards), Re, 2015 CarswellBC 3051 (Empl. Stnds. Trib.) [Pro Truck]., wherein it was stated: 36 If Cariboo Gur Sikh Temple stands for the proposition that the subsection 112(5) record does not include those portions of the delegate's notes, prepared during the course of an investigation, that record or otherwise summarize the evidence of the complainant, or any other party or witness, we do not accept that proposition to be correct. While the delegate's notes pertaining to interviews with the complainant or other witnesses are not required to be disclosed under section 77 provided the substance of the complainant's or other witnesses' evidence is disclosed for purposes of allowing an adequate opportunity to respond, such notes nonetheless form part of the subsection 112(5) record and, accordingly, must be disclosed. [47] At first instance, the Delegate complied with the requirements of s. 77 of the ESA. The petitioner knew the substances of the claims being made against it and was given a meaningful opportunity to respond. The Delegate's s. 77 obligation can be satisfied by disclosing the nature and substance of a document rather than the document itself and there is no obligation to disclose wholly irrelevant documents: Pro Truck at para. 35. [48] Nonetheless, I accept, based on this authority, that the governing test under s. 112(5) of the ESA is whether the documents were "before the director at the time the determination, or variation of it, was made": Pro Truck at para. 35. [49] The Tribunal did not apply that test in this case. The reason for that becomes clear when one examines the petitioner s application for reconsideration submissions (Exhibit M ). In those submissions, at p. 8, the petitioner frames this basis for reconsideration as follows: c. The Member did not consider that the Delegate s failure to disclose a complete record constituted a failure on the part of the Delegate to observe the principles of natural justice.

12 Standards Tribunal) Page 12 [50] Then, at p. 13 of the submissions, the heading setting out this basis for reconsideration is entitled: The Delegate did not disclose all relevant information prior to making the Determination. [51] The petitioner s complaint at the reconsideration stage was therefore framed as being based on the Delegate s failure to comply with the disclosure obligations relevant to the initial investigation stage of the complaint, which are contained in s. 77 of the ESA. That is the section analyzed and applied by the Tribunal in the Decision, as noted in Pro Truck at para. 34. Therefore, contrary to the submissions of the petitioner on this judicial review, it was not clearly irrational and patently unreasonable for the Tribunal to endorse the Delegate s method of decision-making. Rather, the correct section of the statute that formed the basis for the petitioner s ground of appeal was applied and the conclusion reached was reasonable. Failure to Permit Cross-examination of Mr. Sodhi [52] According to the petitioner, the Delegate should have permitted the petitioner to challenge Mr. Sodhi s evidence through an oral hearing. The petitioner submits that the evidence provided to the Delegate clearly established that Mr. Sodhi was presenting a fabricated version of events through false documentation. If Mr. Sodhi was willing to enter fraudulent documents into evidence regarding his rate of pay, then it is reasonable that the balance of his evidence was also suspect and had a high probability of consisting of false representations. Accordingly, the petitioner submits that the Tribunal should have found this to be one of the exceptional circumstances that necessitate the ability of a party to cross-examine the other on their evidence, and erred in failing to order that the determination be cancelled and the matter referred back to the Delegate so that such a hearing could be conducted. [53] There is no requirement that the Tribunal conduct an oral hearing in every case: D. Hall & Associates Ltd. v. Director of Employment Standards, 2001 BCSC 575 at para. 30. Nor is one necessarily required in accordance with the principles of natural justice and procedural fairness. Rather, the decision of whether or not to permit an oral hearing is discretionary.

13 Standards Tribunal) Page 13 [54] This applies whether or not the matter involves credibility issues. Credibility issues have frequently been resolved without the necessity of an oral hearing: Sarmiento (Re), [2013] B.C.E.S.T.D. No. 82 at para. 65. As stated in Canwood: [135] The principles of natural justice do not call for oral hearings simply because matters may be complex or credibility is an issue, see D. Hall & Associates Ltd. v. Director of Employment Standards et al., 2001 BCSC 575. The parties had been given a full opportunity to present their cases before the Director. No appeal lies from findings of fact, although it is apparent that Canwood was attempting to reargue the facts on appeal. The parties had every opportunity to fully present their cases in writing on appeal and reconsideration. The submissions made by Canwood were extensive and complete. They were not denied any opportunity to make every point they wished to make. I can see no error in principle, or breach of any principle of natural justice, in the Tribunal declining to hear oral submissions in addition to the voluminous written submissions before it. [55] The same applies in the present case. The parties had an opportunity to fully present their cases and participate in the process through written submissions and, in fact, as attested to by the petitioner in submissions, the petitioner provided a detailed response to Mr. Sodhi s claims concerning his hours of work. That was the only issue for which the petitioner s position was not accepted, as Mr. Sodhi s position regarding his rate of pay was not accepted due to the unreliability of Mr. Gill s evidence. [56] The argument now advanced by the petitioner, that through oral testimony under oath it would have become apparent that Mr. Sodhi was lying and, accordingly, his evidence as a whole would have been given no weight, is unpersuasive. It is not for this Court to second-guess the procedures chosen by the Delegate and speculate as to what effect a different procedure may have had on the Delegate s opinion of certain evidence, absent any indication that the procedure utilized was unfair. [57] In these circumstances, I can see no justification for requiring an oral hearing, and cannot accede to the petitioner s submission that the Tribunal breached the principles of natural justice or deprived the petitioner of procedural fairness in failing to remit the matter back to the Delegate so that one could be conducted.

14 Standards Tribunal) Page 14 Improperly Ignoring Evidence [58] The petitioner s final basis for judicial review is that the Tribunal breached the principles of natural justice or erred in law by not considering whether Mr. Sodhi was entering false evidence into the proceedings and then going on to consider its effect on his other evidence. [59] Essentially, the petitioner contends that the Decision is patently unreasonable because a finding of fraud against Mr. Sodhi was the necessary outcome of the investigation. If the finding of fraud was made then, according to the submissions of the petitioner, no evidence presented on any subject by Mr. Sodhi would have any evidentiary value at all. [60] As mentioned, the Delegate did not find that Mr. Sodhi had committed fraud. Instead, he disbelieved Mr. Sodhi s evidence regarding his rate of pay due to his concerns about the evidence of Mr. Gill. He then went on to consider the hours Mr. Sodhi worked and accepted the evidence adduced by Mr. Sodhi on this point. [61] However, regardless of whether the Delegate found the position advanced by Mr. Sodhi lacked credibility or Mr. Sodhi was guilty of an alleged fraud, the finder of fact, in this case the Delegate, is entitled to believe all, some or none of the evidence of a witness: R. v. R.E.M., 2008 SCC 51 at para. 65. The finder of fact is also entitled to accept parts of the testimony of a witness and reject other parts; and the finder of fact can accord different weight to different parts of the evidence that have been accepted: R. v. Howe (2005), 192 C.C.C. (3d) 480 (Ont. C.A.). Therefore, it was entirely within the Delegate s purview to find Mr. Sodhi believable on one point and unreliable on another. The finder of fact must not simply engage in a comparison of competing pieces of evidence but must decide the issues based on a consideration of the totality of the evidence. [62] Further, I would point out that there is no evidence that the Delegate s opinion of Mr. Sodhi s evidence was actually unaffected by his determination on the rate of pay issue; just because an aspect of the evidence was not mentioned in a particular

15 Standards Tribunal) Page 15 context does not mean it was not considered. In this regard, I agree with the following comments by the Tribunal: 44 A reading of the Society's argument on this point suggests that it wishes me to conclude the Delegate ignored his finding of unreliability on the issue of the Complainant's rate of pay merely because the Delegate accepted the Complainant's submissions regarding his hours of work and the termination of his employment. It submits, in effect, that had the Delegate scrutinized the Complainant's evidence on these other issues in light of the finding of unreliability concerning the evidence tendered relating to his rate of pay, the Delegate should also have rejected the Complainant's evidence regarding these other matters. 45 Again, I disagree. 46 There is no evidence that the Delegate disabused his mind of his own finding that the Complainant's evidence was unreliable concerning his rate of pay when he evaluated the evidence concerning these other matters. The Society's assertion that he did so is entirely speculative. [63] Essentially, this basis for judicial review amounts to a disagreement with the conclusions reached by the Delegate. That is not a proper basis for this Court to intervene. [64] Accordingly, I would decline to set aside the Tribunal s decision on this basis. Conclusion [65] For the foregoing reasons, the application for judicial review is dismissed. [66] The Tribunal has not asked for costs of this proceeding, nor has the Branch. [67] Mr. Sodhi sought special costs of this proceeding on the basis that the petitioner engaged in reprehensible conduct, as that term is defined in Garcia v. Crestbrook Forest Industries Ltd. (1994), 9 B.C.L.R. (3d) 242 (C.A.), in alleging fraud against Mr. Sodhi. There has been no determination or decision of the Tribunal that has substantiated these allegations. [68] I do not view this as an appropriate case for special costs. While no finding of fraud was made in the underlying decisions, no finding to the contrary was made either. Rather, the Delegate preferred not to weigh in on such matters, instead finding that the issues relevant to the employment contract could be determined

16 Standards Tribunal) Page 16 without reference to the need to determine whether Mr. Sodhi was responsible for reprehensible conduct. The basic position advanced by Mr. Sodhi concerning a written contract with a specified rate of pay was not accepted. In that sense, he was not a successful litigant. His role in this judicial review application was essentially a repetition of the submissions of other respondents. It is my conclusion that no costs will be awarded to Mr. Sodhi in this proceeding. Ball J.