COURT OF APPEAL FOR BRITISH COLUMBIA

COURT OF APPEAL FOR BRITISH COLUMBIA Citation: Between: And Gorenshtein v. British Columbia (Employment Standards Tribunal), 2016 BCCA 457 Tatiana Gorenshtein and ICN Consulting Inc. Employment Standards Tribunal, Director of Employment Standards, Maria Tagirova, Anna Baranova Date: 20161118 Docket: CA42982 Appellants (Petitioners) Respondents (Respondents) Before: The Honourable Chief Justice Bauman The Honourable Madam Justice Saunders The Honourable Mr. Justice Tysoe On appeal from: An order of the Supreme Court of British Columbia, dated July 10, 2015 (Gorenshtein v. British Columbia (Employment Standards Tribunal), Vancouver Docket No. S151147). Counsel for the Appellants: Counsel for the Respondents, M. Tagirova and A. Baranova: Counsel for the Respondent, Employment Standards Tribunal: Counsel for the Respondent, Director of Employment Standards: Counsel for the Attorney General of British Columbia: C. Dennis, Q.C. J. Bastien N. Drolet S. Quail E. Miller J. O Rourke A. Adamic J. Mason J. Walters

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 2 Place and Date of Hearing: Place and Date of Judgment: Vancouver, British Columbia May 3 and 4, 2016 Vancouver, British Columbia November 18, 2016 Written Reasons by: The Honourable Madam Justice Saunders Concurred in by: The Honourable Chief Justice Bauman The Honourable Mr. Justice Tysoe

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 3 Summary: The appeal is from the dismissal of a petition for judicial review of a decision upholding the determination under the Employment Standards Act that the appellants had breached ss. 10 and 12 of the Act. The complainants, Russian nationals, entered into contracts for services which included services related to obtaining employment. Section 10 of the Act prohibits charging a person a payment for employing a person or for providing information about employers seeking employees. It is aimed at ensuring an open market in job opportunities. In the midst of the complaint process the appellants commenced a small claims action for additional payments under the contract, and obtained judgment against one of the complainants. The Court proceeding against the other was stayed. It was contended: that the decision makers erred in failing to recognize there was a reasonable apprehension of bias in respect to the first determination because the Director had urged the Provincial Court to defer to the Employment Standards Act processes; that the Provincial Court order had preclusive effect over the processes under the Employment Standards Act; and in the alternative, that the doctrine of federal paramountcy operated to subordinate provincial law to the federal immigration scheme. Held: appeal dismissed. The bias submission is without basis because a delegate, not the Director, made the determination. The Employment Standards Act gave exclusive jurisdiction to the administrative decision makers to determine complaints. There was neither operational conflict nor frustration of the federal scheme by the device of s. 10 of the Act, so as to engage the doctrine of federal paramountcy.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 4 Reasons for Judgment of the Honourable Madam Justice Saunders: [1] It is a given in our community that a person seeking work is not required to purchase the job, either by paying an employer for the hire, or to pay a go-between. Employment generally being a matter of property and civil rights, it falls to the provinces to ensure the open market in job opportunities. To this end, British Columbia prohibits a person from charging prospective employees fees for obtaining employment or for providing information about employers seeking employees, and it regulates employment agencies. It does this through the Employment Standards Act, R.S.B.C. 1996, c. 113, principally ss. 10 and 12. They provide: 10 (1) A person must not request, charge or receive, directly or indirectly, from a person seeking employment a payment for (a) employing or obtaining employment for the person seeking employment, or (b) providing information about employers seeking employees. 12 (1) A person must not operate an employment agency or a talent agency unless the person is licensed under this Act. [2] At the same time, Canada is keenly interested in economic integration of immigrants and in immigration targeted at certain occupations, for the betterment of Canada. To this end, the federal government regulates consultants to represent people, for a fee, in connection with immigration to Canada under the Immigration and Refugee Protection Act, S.C. 2001, c. 27. This has an employment component. [3] This appeal concerns an intersection of these two designs. On one front, the Provincial Court has ordered a Russian national, the respondent Ms. Tagirova, to pay additional fees to the appellant ICN Consulting Inc. under a contract made before she came to Canada in regard to obtaining a labour contract, obtaining a work permit and coming to Canada to work as a live-in caregiver. Another action brought by ICN against the respondent Ms. Baranova for a similar order is stayed. She, too, is a Russian national. On the other front, the Director of Employment Standards appointed a delegate to investigate complaints that Ms. Tagirova and Ms. Baranova filed under the Employment Standards Act, alleging that payments

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 5 already made under the contracts are contrary to the Act. On the delegate s determination that those payments contravened the Act, the delegate assessed a penalty against ICN and directed ICN to pay to Ms. Tagirova and Ms. Baranova the amount of fees they had paid to ICN. ICN appealed to the Employment Standards Tribunal, leading, after some detours, to the decision before us declining to interfere with the delegate s determination. [4] The Tribunal s decision was challenged by judicial review. Mr. Justice Silverman dismissed the petition and the appellants now appeal his order to this court. They contend: 1. the judge erred in law in failing to determine whether there was a reasonable apprehension of bias in the delegate s determination that the ICN had contravened the Employment Standards Act; 2. the judge erred in law in failing to give preclusive effect to the Provincial Court order requiring Ms. Tagirova to pay monies to ICN under her contract; and 3. in the alternative to 1 and 2, the judge erred in failing to accord paramountcy to the federal immigration arrangements over the provincial statute. The Circumstances [5] ICN was licenced as an employment agency under the Employment Standards Act from January 2004 to January 29, 2008, and operates a business of facilitating the immigration of interested persons wishing to work in Canada as live-in nannies or caregivers under Canada s Live-in Caregiver Program. The appellant Ms. Gorenshtein is a director and officer of ICN and is a federally regulated immigration consultant, referred to in s. 13.1 of the Immigration and Refugee Protection Regulations, SOR/2002-227 [repealed 2011-06-29], as an authorized representative, and so may represent people for a fee in connection with proceedings or applications under the Immigration and Refugee Protection Act.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 6 [6] In October 2007 Ms. Tagirova and Ms. Baranova entered into contracts with ICN. In reasons for judgment Gorenshtein v. British Columbia (Employment Standards Tribunal), 2013 BCSC 1499, addressing an earlier petition for judicial review, Madam Justice Harris accurately summarized the requirements for a work permit under the Program and the contracts: [4]... To hire a foreign live-in caregiver, an employer must submit, among other things, an application for a Labour Market Opinion and a signed employment contract with the caregiver to Human Resources and Skills Development Canada. [5] A foreign caregiver must apply for a work permit from a Canadian visa office overseas before entering Canada. In order to apply for a work permit under the LCP, a foreign caregiver must have a copy of a positive Labour Market Opinion issued to the caregiver s employer in Canada, and a signed written employment contract with the employer. [6] The contracts between ICN and Ms. Tagirova and Ms. Baranova provided that they would each pay $500 upon signing the service contract; $1,000 upon receiving the Labour Market Opinion; and three instalments of $500 upon their arrival in Canada - for a total payment of $3,000 USD. They also signed a promissory note in favour of ICN. [7] ICN also entered into a service agreement with two employers, who wished to hire caregivers. Each employer paid $750 upon signing the agreement with ICN. [7] The contracts between Ms. Tagirova and Ms. Baranova, and ICN, provide: The Company agrees to render the Client consulting services for the purpose of obtaining a labour contract, Work Permit and coming to Canada for work under the Live-in-Caregiver Program of Canadian government ( Program ), and the Client agrees to pay for the services rendered in the amount and on terms provided by this Contract. 1. The Company shall: 1.1 Assess the qualifications of the Client regarding the requirements of the Program. 1.2 To Inform the Client about the requirements of the Program and documents needed to obtain Work Permit in Canada. 1.3 Prepare the set of documents of the Client for submitting to employer according to Canadian standards. 1.4 Prepare the Client for interview with Canadian employer. 1.5 Inform the Client about processing of documents in government organs of Canada.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 7 1.6 Assist the Client in preparing necessary documents for submitting to Canadian Embassy or Consulate. 1.7 Prepare the Client for interview with Visa Officer of Canadian Embassy or Consulate. [8] Ms. Tagirova and Ms. Baranova obtained work permits and arrived in Canada in August 2008 to work as live-in caregivers. Upon learning of provisions of the Employment Standards Act and on the belief the fees required by their contracts with ICN were contrary to the Act, Ms. Tagirova and Ms. Baranova refused to make further payments to ICN. They filed complaints with the Director of Employment Standards on August 19, 2008 and November 29, 2008, respectively. By that time ICN was no longer licensed as an employment agency. Ms. Tagirova and Ms. Baranova claimed that ICN had charged them fees for providing information about employers or for obtaining employment for them, contrary to ss. 10 and 12 of the Employment Standards Act. Their complaints were allowed by a delegate of the Director on December 21, 2009. ICN appealed the delegate s determination to the Employment Standards Tribunal. On May 13, 2010 the Tribunal cancelled the first determination and remitted the complaints to the Director to be dealt with by a different delegate. In June 2010, before that determination could be made, Ms. Gorenshtein and Mr. Gorenshtein (also a director of ICN), on behalf of ICN, commenced small claims actions in the Provincial Court of British Columbia against Ms. Tagirova and Ms. Baranova for sums owing under their contracts. Ms. Tagirova counter-claimed for a return of monies already paid. The Director was not a party to those actions. [9] On October 19, 2010, a Justice of the Peace Adjudicator gave judgment against Ms. Tagirova, making a monetary order in favour of ICN. The Director learned of the judgment and sought to persuade Ms. Tagirova to appeal. She did not do so. The Director then contacted Ms. Baranova s counsel to discuss jurisdictional submissions, and when the claim against Ms. Baranova came before the Provincial Court, the Director intervened. The Director submitted to the court that the matter should not proceed because the issue concerned the application of the Employment Standards Act, which, on the authority of Macaraeg v. E Care Contact Centers Ltd.,

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 8 2008 BCCA 182, precluded the Provincial Court from exercising jurisdiction over the claim. The Provincial Court adjourned the trial concerning the claim against Ms. Baranova. [10] The Employment Standards Act complaints were still unresolved at the time of the Provincial Court trial of ICN s claim against Ms. Tagirova. On January 14, 2011, Ms. Tagirova filed a further complaint claiming the court s judgment contravened s. 10 of the Act. On May 3, 2012, the delegate found the 2008 complaints were well-founded under the Employment Standards Act in that ICN had operated an employment agency after January 28, 2008, without a valid employment agency licence contrary to s. 12 of the Employment Standards Act, and had charged a fee to individuals seeking employment contrary to s. 10 of the Act. The delegate made remedial orders concerning monies paid by Ms. Tagirova and Ms. Baranova, and assessed an administrative penalty. The delegate concluded that she was unable to reverse the court award and so did not accede to Ms. Tagirova s further complaint of January 4, 2011. [11] ICN sought to appeal the delegate s determination to the Employment Standards Tribunal. ICN was out of time for appealing and the Tribunal dismissed the appeal. On judicial review, 2013 BCSC 1499, Madam Justice Harris quashed that decision and remitted the appeal to the Tribunal. [12] On April 16, 2014 the Tribunal dismissed the appeal (BC EST#D024/14). In the course of its reasons the Tribunal addressed ICN s submission, also made to us, that the decision of the delegate should be quashed because the Director had intervened in the Provincial Court, taking a position on jurisdiction contrary to ICN s position. The Tribunal held that the Director s participation in the Provincial Court proceedings did not taint the delegate s determination, and found that there was no conflict between the Immigration and Refugee Protection Act and the Employment Standards Act. [13] ICN then asked the Tribunal to reconsider the appeal decision under s. 116 of the Employment Standards Act. On December 16, 2014, the Tribunal found ICN had

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 9 not met the established test for reconsideration and declined to reconsider its earlier decision (BC EST#RD129/14). It said: 77. As indicated above, none of ICNC s 15 grounds raises any significant questions of law, fact, principle or procedure flowing from the Original Decision which would warrant reconsideration. I find the Original Decision sufficiently addresses ICNC s arguments on appeal and I find no reviewable error in the analysis and conclusions reached by the Member. Nothing in lcnc s application persuades me the Original Decision was wrongly decided, or raises any significant issue that would warrant reconsideration. Accordingly, the application is denied. [14] In these reasons I refer to the two Tribunal decisions as the appeal decision and reconsideration decision, and the Tribunal as the appeal Tribunal and reconsideration Tribunal, where appropriate. [15] ICN and Ms. Gorenshtein next applied for judicial review of the delegate s determination, the appeal decision, and the reconsideration decision. [16] By reasons for judgment delivered on July 10, 2015, Mr. Justice Silverman dismissed the petition. In doing so he observed that it was the reconsideration decision that was properly before him, although the earlier determination and appeal decision could be considered for context. That conclusion is correct: Yellow Cab Company v. Passenger Transportation Board, 2014 BCCA 329, and is not challenged on this appeal. [17] The appellants contend before us that the reconsideration decision must be quashed because the grounds of error they advanced were meritorious, contrary to the reconsideration Tribunal s conclusion. Discussion I. The Bias Issue [18] The appellants contend that the Director demonstrated a reasonable apprehension of bias by intervening in its Provincial Court action against Ms. Baranova. They say the Director s expression of views in regard to the Director s jurisdiction, the court s jurisdiction, and the effect of the Employment Standards Act

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 10 demonstrates a closed mind concerning the complaints against ICN. They say the delegate must also have possessed a closed mind because her authority flowed from a close-minded (on these issues) Director. The result, they say, is such a diminution of impartiality as to raise a reasonable apprehension of bias that fatally undermines the delegate s determination. They say the appeal Tribunal erred in failing to recognize this defect in proceedings, the reconsideration Tribunal erred in failing to give effect to this submission, and the judge likewise erred in failing to quash both Tribunal decisions and the delegate s determination. [19] In rejecting the submission on bias the judge referred to s. 58(2) of the Administrative Tribunals Act, S.B.C. 2004, c. 45: 58 (1) If the Act under which the application arises contains or incorporates a privative clause, relative to the courts the tribunal must be considered to be an expert tribunal in relation to all matters over which it has exclusive jurisdiction. (2) In a judicial review proceeding relating to expert tribunals under subsection (1) (a) a finding of fact or law or an exercise of discretion by the tribunal in respect of a matter over which it has exclusive jurisdiction under a privative clause must not be interfered with unless it is patently unreasonable, (b) questions about the application of common law rules of natural justice and procedural fairness must be decided having regard to whether, in all of the circumstances, the tribunal acted fairly, and (c) for all matters other than those identified in paragraphs (a) and (b), the standard of review to be applied to the tribunal's decision is correctness. (3) For the purposes of subsection (2) (a), a discretionary decision is patently unreasonable if the discretion (a) is exercised arbitrarily or in bad faith, (b) is exercised for an improper purpose, (c) is based entirely or predominantly on irrelevant factors, or (d) fails to take statutory requirements into account.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 11 [20] The judge then said, on the issue of standard of review in relation to bias: [29] While s. 58(2)(b) notes that questions of procedural fairness must be decided having regard to whether, in all the circumstances, the tribunal acted fairly, decisions of this Court have held that the standard is different where one expert Tribunal has exclusive jurisdiction to review the merits of a procedural fairness complaint. In that case, the standard is patent unreasonableness: International Forest Products Ltd. v. B.C. (Labour Relations Board), 2014 BCSC 956, and Health Sciences Association of B.C. v. Interior Health Authority, 2015 BCSC 98. [31] All of the other grounds deal with matters that are within the Tribunal s exclusive jurisdiction and therefore the standard of review is patent unreasonableness. This will include those grounds where claims relating to natural justice and/or procedural fairness is invoked. Having said that, even if the standard under s. 58(2)(b) were the stated whether, in all of the circumstances, the Tribunal acted fairly, on the facts of this case, I would come to the same conclusion with that standard as when applying the patently unreasonable standard. [21] Rephrasing the appellants submission somewhat, the appellants, addressing bias, contend: 1. the judge erred in identifying the standard of review on this issue; and 2. the judge erred in his consideration of the substance of the issue of reasonable apprehension of bias. 1. The Standard of Review in Regard to Bias [22] The appellants say the judge was mistaken in applying a standard of patent unreasonableness. [23] Section 110 of the Employment Standards Act is a privative clause. It provides: 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. (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.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 12 [24] Given the existence of s. 110, s. 58(1) deems the Tribunal to be an expert tribunal in regard to matters within its exclusive jurisdiction, and s. 58(2) stipulates the standard of review a court must apply, depending on the issue challenged: in regard to findings of fact or law or an exercise of discretion over which the Tribunal has exclusive jurisdiction under the privative clause, the standard is patently unreasonable (s. 58(2)(a) of the Administrative Tribunals Act); in questions of the application of the rules of natural justice and procedural fairness, the issue is measured on the standard of fairness of the tribunal s actions (s. 58(2)(b)); and in all other matters, the standard of review is one of correctness (s. 59(2)(c)). [25] The notions of bias and reasonable apprehension of bias are issues of natural justice and address the integrity of the adjudicative process. The appellants challenge to the standard of review applied by the judge proposes that questions of natural justice arising from the delegate s determination considered, and then reconsidered by the Tribunal, come within s. 58(2)(b) of the Administrative Tribunals Act rather than s. 58(2)(a). This can be correct only if the question of bias or reasonable apprehension of bias on the part of the delegate, is not (adapting the words of s. 110 of the Employment Standards Act) a matter or question of fact, law or discretion arising or required to be determined in an appeal or reconsideration. [26] In my view, the finding there was no bias or reasonable apprehension of bias requires a finding of fact against a legal standard. In this case, such a question was required to be determined by the Tribunal. It was, therefore, a matter over which the Tribunal had exclusive jurisdiction within the meaning of s. 110 of its home statute. Accordingly, under the Administrative Tribunals Act s. 58(2)(a), not s. 58(2)(b), applies to establish the standard of review as patently unreasonable. [27] The appellants refer to Taiga Works Wilderness Equipment Ltd. v. British Columbia (Director of Employment Standards), 2010 BCCA 97 to support their proposition that s. 58(2)(b) applies. In Taiga Works Mr. Justice Tysoe said for the court: [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

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 13 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. [39] In the present case, the chambers judge referred to s. 58(2)(b) of the Administrative Tribunals Act and concluded that the second Tribunal member had acted fairly in his reconsideration decision. With respect, it is my view that the chambers judge looked at the issue too narrowly. In stipulating a standard of whether the tribunal acted fairly in questions involving the rules of natural justice and procedural fairness, s. 58(2)(b) is referring to the tribunal which has allegedly breached those rules. On the judicial review application before the judge, it was not disputed that the Director s delegate had breached those rules. The issue was not whether the proceedings before the second Tribunal member were fair but, rather, whether the proceedings as a whole were rendered fair by the direction given by the second Tribunal member. [28] I do not read Taiga Works as discordant with the view on standard of review I have expressed, for the reason that Mr. Justice Tysoe was addressing a different issue. In Taiga Works the tribunal had identified unfairness in procedures engaged in the initial determination and had purported to cure the procedural defects by considering documents not considered by the delegate. On an application for reconsideration, the reconsideration Tribunal referred the matter back to the appeal tribunal, rather than to the Director whose determination had been challenged. This court held the Employment Standards Tribunal could not cure the Director s breach of natural justice in the circumstances presented, and a rehearing by the Director was required. Taiga Works is, in essence, a case of the curative ability of the Employment Standards Tribunal to mend a breach of procedural fairness, and is not a case on standard of review; the use to which Taiga Works can be put is limited by the circumstances before the court. Lord Halsbury famously explained this proposition in Quinn v. Leathern, [1901] A.C. 495 (H.L.) at 506, in a passage referred to recently by this court in Cowichan Valley (Regional District) v. Cobble Hill Holdings Ltd., 2016 BCCA 432: there are two observations of a general character which I wish to make, and one is to repeat what I have very often said before, that every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there are not intended to be expositions of the whole law, but governed and qualified

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 14 by the particular facts of the case in which such expressions are to be found. The other is that a case is only an authority for what it actually decides. [29] I would not accede to this ground of appeal. 2. The Substance of the Bias Issue [30] An allegation of reasonable apprehension of bias, by its nature, is a serious complaint. The leading authority on disqualification for bias is Wewaykum Indian Band v. Canada, 2003 SCC 45, at para. 60: In Canadian law, one standard has now emerged as the criterion for disqualification. The criterion, as expressed by de Grandpré J. in Committee for Justice and Liberty v. National Energy Board, supra, at p. 394, is the reasonable apprehension of bias:... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information. In the words of the Court of Appeal, that test is what would an informed person, viewing the matter realistically and practically and having thought the matter through conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly. [31] The allegation here is that the delegate could not decide the complaint fairly because she was assigned the complaint by the Director, who had sought to persuade Ms. Tagirova to appeal the judgment against her and had intervened in the Provincial Court trial in ICN s action against Ms. Baranova. The appellants say no reasonable observer could have confidence the delegate had not pre-judged her response to the complaints given that the Director had taken the position that the Provincial Court s judgment was wrong and made without jurisdiction. They have added to their theory advanced in other hearings by saying the definition of director in s. 1 in the Employment Standards Act erases any distinction between the Director and her delegate. [32] The respondents object to this supplemental submission and say it was not considered by the judge in the judicial review proceedings and should not be considered by us.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 15 [33] It seems to me that the submission on the effect of the definition is an amplification of the appellants main submission that ascribes the mind of the Director to the mind of the delegate, and is not off the table on this appeal. [34] The appellants challenge the judge s conclusion there was no patent unreasonableness in the decision on bias of the reconsideration Tribunal. The judge, in relation to the assertion of patent unreasonableness, adopted this paragraph from the reconsideration decision: 74. ICNC s submissions about what counsel for the Director said in Provincial Court were addressed in the Original Decision at paragraphs 181 190. I agree with the Member s analysis of these submissions, and in particular his conclusion that there was no basis in the submissions made by ICNC to conclude that counsel s comments established the Director had prejudged the validity of the complaints against ICNC. [35] The appeal decision, adopted by the reconsideration Tribunal in the above paragraph, stated: 181. This argument does not relate to any conduct by the delegate, but concerns the involvement of the Director in the Provincial Court proceedings initiated by ICNC against Ms. Baranova and Ms. Tagirova. There is no evidence the delegate had any direct involvement in the matters before the Provincial Court or that the Director had any involvement in writing the Determination. 182. Even a cursory examination of the Act reveals the legislative intent to provide the Director with an overseeing role and the approach both the Tribunal and the Courts have taken to the role of the Director under the Act has been fashioned to be consistent with its provisions. 183. Regardless of the specific points raised in the arguments made by ICNC, the overarching question raised here is whether, on a review of the matter and content of the Director s submissions and participation, the Director has acted outside the role contemplated and permitted by the legislature. 185. It is apparent that the decision of the Director to become involved at the Provincial Court level related to questions of the sort addressed in Macaraeg and E Care Centres Ltd., 2008 BCCA 182. At issue was the home statute of the Director. At stake was the interpretation of a statutory provision in the Act prohibiting persons from directly or indirectly charging fees for finding employment for another person and the scope of the jurisdiction of the Director to decide all questions relating to the Act. At the core of the dispute was statutory

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 16 interpretation, both as it was raised in Provincial Court and in the complaints to the Director. The matter did not, except incidentally, concern the complainants claims; it was not those claims that were the reason for the involvement in Provincial Court. Rather, it was the Court s view of its authority to interpret section 10 and the resulting interpretation. This matter, at its core, was not a simple dispute between ICNC and the complainants; the effect of the actions of the Provincial Court Judge and of the interpretation placed by him on section 10 was to severely restrict the scope of that provision. It is not apparent from a review of the Judge s reasons in the Tagirova decision that any consideration was given to the unique nature of employment standards legislation or the principles that govern its interpretation and application. 187. The issue on which the Director took a position has considerable significance to the proper administration of the Act as it not only impacts the exclusive jurisdiction of the Director, but also addresses a fundamental concept under the Act: that a person should not have to buy a job. 188. In my view, the legislature, by making the Director responsible for the administration of the Act and initially responsible for its interpretation, conferred a status on the Director that from time to time requires the Director to become a protagonist in cases involving the administration and interpretation of the Act. That is exactly what the Director did here and, to reiterate, there is no evidence the delegate who decided this Determination participated in that action in any way. [Emphasis added.] [36] I see no error in the judge s conclusion. There is no basis in evidence to support the theory that the Director s views on any issue relevant to the complaints of Ms. Tagirova and Ms. Baranova were adopted, or filtered into, the mind of the delegate so as to cause a reasonable apprehension of bias with respect to the delegate s determination. There is therefore no basis for any submission that a subsequent decision maker erred in failing to identify a fatal flaw at the foundation of the pyramid of decisions. Such a suggestion is plainly at odds with the general scheme of the Act described in para. 188 of the appeal decision replicated above. [37] In particular, I do not accept the submission, made for the first time on this appeal, that the definition of director assists the appellants. Section 1 of the Act defines the Director and refers to delegation:

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 17 director means the Director of Employment Standards appointed under the Public Service Act and, in relation to a function, duty or power that the director has under section 117 of this Act delegated to another person, director includes that other person; [38] Contrary to the appellants submission, this provision is not one that merges the minds of the Director and a delegate, but rather one that gives the delegate the authority of the Director in matters the Director assigns. I see no basis to conclude that the definition of director inherently dilutes the delegate s natural autonomy. [39] I conclude that there is no view of the circumstances that can satisfy the Wewaykum criteria for a reasonable apprehension of bias on the part of the delegate. In my view the judge made no error on this issue. II. The Effect of the Provincial Court Judgment on the Employment Standards Act Process [40] The appellants contend that the reconsideration Tribunal was bound to find error in the delegate s refusal to defer to the Provincial Court order, and that the judge erred in not setting aside the reconsideration decision for failure to do so. This broadly-stated issue is one that was required to be addressed by the judge on the standard of patent unreasonableness, as provided by s. 58(2)(a) of the Administrative Tribunals Act. [41] The petition before the judge alleges 15 faults in the Tribunal s decisions as grounds for an order quashing the Tribunal s decisions. The judge did not analyze each fault from scratch. Rather he observed that most, but not all, issues raised by the appellants had been addressed by the reconsideration Tribunal. He recited at length from the reasons of the reconsideration Tribunal, matching the alleged faults in the petition with the paragraphs from the reconsideration decision that he could identify as addressing those matters. He then said in conclusion: [64] It is impossible to say that the analysis in the Reconsideration Decision, with respect to any of the grounds, when considered separately from the others, was clearly irrational and was patently unreasonable. [65] When the analysis of those grounds are considered together and in the context of the balance of the Reconsideration Decision, the Appeal Decision, the entire record, and all the submissions, I am satisfied that the

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 18 ultimate decision of the Tribunal to dismiss the petitioners Application for Reconsideration was not patently unreasonable. [42] The appellants make four broad submissions as to why, apart from the issues of bias and federal paramountcy, the Tribunals decisions should not be allowed to stand and the judge s order should be set aside: 1. the Director, in the circumstances, should have exercised her discretion to discontinue investigating or adjudicating the complaints, as allowed by s. 76(3) of the Employment Standards Act; 2. in continuing to investigate and adjudicate the complaints, the Director participated in an impermissible collateral attack of the Provincial Court order; 3. the issue of the enforceability of the ICN/Tagirova and Baranova contracts, and the issue of breach of ss. 10 and 12 of the Employment Standards Act were res judicata, by virtue of the Provincial Court order; and 4. proceeding under the Employment Standards Act, after the Provincial Court order issued, was an abuse of process. Other threads from the appellants multi-pronged petition referred to in their factum and still the source of complaint, do not provide a basis on which we should interfere with the order, and I mention them only briefly at the end of this discussion. [43] The four submissions just listed address the duality of the decision in the Provincial Court in favour of ICN and the delegate s determination in favour of Ms. Tagirova and Ms. Baranova, and the contention that the judge was bound to give preclusive effect to the Provincial Court order. The last two submissions were addressed by the judge. The first two, however, were not expressly adverted to by him and were not listed in the 15 faults recited in the judicial review petition.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 19 [44] In considering these four submissions, two propositions frame the discussion. The first is that this court generally does not consider submissions that were not advanced in the proceeding giving rise to the order appealed. The general advisability of a restrained approach has long been recognized. So in S.S. Tordenskjold v. S.S. Euphemia (1908), 41 S.C.R. 154, citing The Tasmania, 15 App. Cas. 223, Justice Duff observed that an issue not raised at trial but presented for the first time on appeal ought to be most jealously scrutinized. In Quan v. Cusson, 2009 SCC 62, the Supreme Court of Canada addressed the circumstances in which a new issue may be raised on appeal, referring with approval at para. 36 with Justice Duff s observation in Lamb v. Kincaid (1907), 38 S.C.R. 516: A court of appeal, I think, should not give effect to such a point taken for the first time in appeal, unless it be clear that, had the question been raised at the proper time, no further light could have been thrown upon it. [45] In Quan the court adopted the approach in Wasauksing First Nation v. Wasausink Lands Inc. (2004), 184 O.A.C. 84 and approached the issue by asking three questions in this sequence: first, is the issue truly new ; second, is the evidentiary record sufficient; and third, being the question in which the issue of potential prejudice looms large, do the interests of justice support granting an exception to the general rule? This restrained approach is consistently applied in British Columbia, see for example, Devine v. Devine, 2012 BCCA 509; Suen v. Suen, 2013 BCCA 313. [46] The restrained approach to entertaining new issues engaging the evidentiary record also applies to legal questions that have not been the subject of a reasoned decision. For example, in R. v. Trieu, 2010 BCCA 540, this court referred with approval to the observation in R. v. R. (R.) (1994), 91 C.C.C. (3d) 193 (Ont. C.A.), that when a court of first instance does not have the opportunity to undertake an analysis, the appellate function is compromised. There is, however, room for the exceptional case where there is no prejudice to the other party: Braber Equipment Ltd. v. Fraser Surrey Docks Ltd., 1999 BCCA 579.

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 20 [47] Moving this proposition to judicial review, it is generally considered that a judge should not find a decision to be patently unreasonable based on a submission the Tribunal never heard. It is even less desirable that an appellate court should consider, for the first time, a submission neither made to the judge nor made to the tribunal. While there may be rare exceptions to this approach so as not to allow a potential error of law to be perpetuated as in, for example, Prince George (City) v. Columbus Hotel Company (1991) Ltd., 2011 BCCA 218, those cases are few, and serve to illustrate that the overarching question is always the interests of justice in the context of the appellate function. [48] Second, as between enforcement of the Employment Standards Act in the courts or on the administrative setting provided by that statute, the nod goes to the administrative apparatus. This proposition was settled in Macaraeg v. E Care Contact Ltd. In Macaraeg this court considered the enforcement of rights given by the Employment Standards Act, holding that where the legislation provides an enforcement mechanism, statutory rights are to be enforced by the statutory mechanism, not by court action. Mr. Justice Chiasson summarized for the court: [101] The proper analysis begins with Orpen [Orpen v. Roberts, [1925] S.C.R. 364]: did the legislators intend that conferred rights could be enforced by civil action? The answer to the question requires consideration of the legislation as a whole. If it affords effective enforcement of the rights, the general proposition, that statutorily-conferred rights are to be enforced not by court action, but by a statutory mechanism, applies. If the legislation does not afford effective enforcement, the exception to the general rule applies and the rights can be enforced in a civil action. The civil action will be based on recognized causes of action. In the case of rights conferred on employees through employment standards legislation, the rights will be implied terms of the employment contract and enforced through an action for breach of contract. [102] When a statute provides an adequate administrative scheme for conferring and enforcing rights, in the absence of providing for a right of enforcement through civil action expressly or as necessarily incidental to the legislation, there is a presumption that enforcement is through the statutory regime and no civil action is available. [49] While Macaraeg does not preclude a party suing on a contract in respect of which a defence of a prohibition in the Employment Standards Act might be raised,

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 21 as occurred here, Macaraeg is a clear expression of the pre-eminence of the administrative apparatus in resolving issues arising under the legislative scheme. [50] I have borne these two propositions in mind when addressing the propositions of the appellants listed above. 1. The Effect of s. 76(3) of the Employment Standards Act [51] Section 76(3) of the Employment Standards Act provides: 76 (3) The director may refuse to accept, review, mediate, investigate or adjudicate a complaint or may stop or postpone reviewing, mediating, investigating or adjudicating a complaint if (f) a proceeding relating to the subject matter of the complaint has been commenced before a court, a tribunal, an arbitrator or a mediator, (g) a court, a tribunal or an arbitrator has made a decision or an award relating to the subject matter of the complaint, [52] The appellants say ss. 76(3)(f) and (g), combined with Workers Compensation Board v. Figliola, 2011 SCC 52, lead to a conclusion that the Director was bound to discontinue the complaints made by Ms. Tagirova and Ms. Baranova once the Director learned of the judgment of the Provincial Court. [53] In Figliola the Supreme Court of Canada considered the case of claimants who filed an appeal of a compensation award that applied the Workers Compensation Board s chronic pain compensation policy. That question of compensation, of course, was squarely within the specialized jurisdiction of the Workers Compensation Board. The appellants contended that the Board s policy discriminated against them contrary to s. 8 of the Human Rights Code, R.S.B.C. 1996, c. 210. The WCB reviewing officer held that the policy was not a violation of s. 8. Rather than appeal using the machinery of the Workers Compensation Act, R.S.B.C. 1996, c. 492, the claimants filed a complaint under the Human Rights Code. The Code contained a provision, s. 27(1)(f), somewhat similar to ss. 76(3)(f) and (g), that allowed the Human Rights Tribunal to dismiss a matter where the

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 22 substance of the complaint has been appropriately dealt with in another proceeding. The Workers Compensation Board applied to the Human Rights Tribunal for an order dismissing the complaint. The Human Rights Tribunal rejected the application and found the complaint should proceed to a full hearing. The Supreme Court of Canada concluded that the Human Rights Tribunal should have dismissed the complaint. In reaching this conclusion the Supreme Court of Canada discussed the various principles that discourage re-litigation and forum shopping, speaking to the desirable qualities of finality and fairness that are promoted by s. 27(1)(f). [54] The appellants urge us to reach the same result, and say the principle of finality has been impeded by the Director s persistence in processing these complaints through the machinery of the Employment Standards Act. [55] Although s. 76 was considered by the delegate, the submission that a correct application of s. 76 in the circumstances required the Director to discontinue the Employment Standards Act proceedings against ICN, and the application of Figliola were not advanced before the Tribunal, either on appeal or on reconsideration. Nor were they raised before the judge on judicial review. The protection given the Tribunal by the privative clause in s. 110 demonstrates that interpretation of the Act was intended by the Legislature to rest with those charged with administering the Employment Standards Act, with the courts engaging in interpretation only as part of our deferential review role. By advancing this issue (requiring interpretation of s. 76) in this court when it was not advanced before the tribunal whose decision is under judicial review, the appellants are, in my view, impermissibly side-stepping the role of those charged with the task of understanding their home statute and applying it. I conclude that this case does not present an exceptional circumstance that warrants our resolution of this new submission. 2. Collateral Attack [56] The appellants contend the judge erred in failing to find the Tribunal s decisions are patently unreasonable as allowing an impermissible collateral attack

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 23 on a court order. Here, too, they rely upon Figliola, as well as Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63. [57] It is said this issue, too, was not developed in the train of decisions and we should decline to address it. The appellants, on the other hand, refer to paragraphs 44 through 48 of the reconsideration decision adverted to by the judge. I agree that the reconsideration decision did not specifically discuss collateral attack, and the theory of collateral attack was not separately advanced in the petition for judicial review. There is therefore a basis upon which we could decline to consider the issue of collateral attack. It must be said, however, that unlike the s. 76 issue, the issue of collateral attack does not engage aspects unique to the Act. Instead it engages a general principle based upon facts well known to the parties that are apparent in the record. More importantly, it is closely related to two issues that were before the judge, res judicata and abuse of process. In my view, we should address this issue. [58] A collateral attack is an attack upon the validity of, or an attempt to avoid the effect of, a decision or order by seeking a different result in a different forum. As concerns Ms. Baranova, there is no decision from the Provincial Court to attack. Given the lack of precedential effect of the Provincial Court order concerning Ms. Tagirova, I do not consider the doctrine of collateral attack is capable of applying to the decision on Ms. Baranova s complaint. [59] Nor do I consider the proceedings under the Employment Standards Act with respect to the original complaint of Ms. Tagirova to be a collateral attack upon the Provincial Court judgment against her for two inter-related reasons. First, it is established that rights conferred by the Employment Standards Act are to be enforced in the statutory regime: Macaraeg. The practical effect of this proposition is seen by reference to the s. 12 aspect of the complaints. Section 12 concerns regulation of employment agencies. It played no part in the court proceedings which were directed to the obligations of the parties. Yet the complainants were entitled to an answer on that issue, and the answer was of significance to the enforcement of the standards established by the Act. The answer on s. 12, and the facts

Gorenshtein v. British Columbia (Employment Standards Tribunal) Page 24 surrounding it, however, intertwine with the s. 10 issue that was considered by the Provincial Court. Thus the delegate s determination which is the foundation for these proceedings, was broader than the court order. [60] Second, in her 2008-filed complaint Ms. Tagirova did not seek to evade the effect of a court order: she first engaged proceedings concerning her contract with ICN, doing so about two years before the trial in the Provincial Court, after which the Director, and then the delegate, simply performed their roles under the Act. If there was any attacking in a collateral way, it appears to me to result from ICN s commencement of court proceedings after it had been engaged in responding to Ms. Tagirova s Employment Standards Act complaint. [61] I recognize that it may be said that Ms. Tagirova s second filed complaint has a different character because it challenged the court order. Nonetheless it was not the primary complaint before the delegate who, properly, resolved the 2008 complaints with her order and then declined to allow Ms. Tagirova s second complaint. I do not see it as an improper collateral attack. Were it necessary, however, I would not interfere with the administrative law processes for the reasons stated in paragraphs 82 through 85 following. [62] In my view, it cannot be said that the Director, in pressing the complaints to a conclusion, engaged in an impermissible collateral attack upon the Provincial Court judgment. The complainants were entitled to look to the Director to resolve their complaints properly filed. 3. Res Judicata [63] The appellants contend that the issue of enforceability of ICN s contracts with Ms. Tagirova and Ms. Baranova was res judicata by the court order and therefore was beyond an independent and different view by the Director or Tribunal. They say this means the reconsideration decision is patently unreasonable and the judge was wrong.