Given subsequent Supreme Court of Canada ruling, appellant raised issue not previously alleged
The British Columbia Court of Appeal has declined to reconsider an appeal against a British Columbia Labour Relations Board decision based on a constitutional issue not previously raised, allegedly justified by a subsequent Supreme Court of Canada (SCC) ruling.
The underlying case involved a common employer application under s. 38 of BC’s Labour Relations Code, 1996, in connection with a franchise arrangement between Sobeys Capital Incorporated and four franchisees.
The board declared Sobeys and its franchisees as a common employer, while the board’s reconsideration panel dismissed a petition for judicial review.
Five appeals challenged the decision as patently unreasonable for failure to apply s. 38’s alleged requirement for a finding of common control or direction among all franchisees.
BC Court of Appeal denies five appeals
Last July 24, in 1197785 B.C. Ltd. v. 1315949 B.C. Ltd., 2026 BCCA 310, the BC Court of Appeal dismissed the five appeals. The appeal court ruled that s. 38 did not require a finding of common control or direction between franchisees.
The appeal court added that the judge did not make a patently unreasonable decision or err in applying a highly deferential standard of review, as required by s. 58 of BC’s Administrative Tribunals Act, 2004 (ATA).
Supreme Court of Canada’s ruling in Democracy Watch
On July 30, in the unrelated case of Democracy Watch v. Canada (Attorney General), 2026 SCC 28, the SCC considered the constitutionality of a partial privative clause that did not permit judicial review on factual and legal questions.
The SCC concluded that the clause unconstitutionally limited the courts’ supervisory jurisdiction to review the legality of an administrative decision to ensure that the exercise of public power did not exceed the boundaries of a tribunal’s delegated authority.
Regarding the issue of what minimum standard of review was constitutionally guaranteed, which was not before the court, the SCC left that question for another day.
Citing Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, the SCC confirmed that legislated review standards were valid as long as they respected the limits of the rule of law.
Application to reopen and reconsider
With the four other appellants’ support, 1315949 B.C. Ltd. applied for a reopening and reconsideration of its appeal.
1315949 asserted that Democracy Watch, released by the SCC six days after the BC Court of Appeal’s July 24 reasons, placed serious doubt on the constitutionality of the patently unreasonable standard of review in s. 58 of the ATA.
1315949 alleged potential serious injustice if the court found s. 58 of the ATA unconstitutional, but allowed the board decision to stand.
The respondent union opposed the application, while the board took no position.
BC Court of Appeal refuses to reopen appeal
In a Sept. 3 supplementary judgment indexed at 1197785 B.C. Ltd. v. 1315949 B.C. Ltd., 2026 BCCA 365, the BC Court of Appeal found no basis to reopen the appeal.
According to the appeal court, 1315949 was making a broad request that exceeded the appropriate basis to reopen and reconsider an appeal.
Democracy Watch’s impact
While portions of Democracy Watch’s reasoning could possibly open the door to 1315949’s proposed constitutional argument, the BC Court of Appeal did not consider this an appropriate case to answer the question.
The appeal court noted that a trial court should first weigh in on the constitutional issue, which would likely attract applications to intervene.
In the circumstances, the appeal court saw no serious injustice to the appellant but found unfairness to the union if it had to face a new constitutional issue not asserted in the original appeal.
The appeal court noted that the union succeeded after years of litigation, including two board hearings, the judicial review, and the appeals.
The appeal court emphasized that it has previously confirmed the constitutionality of the standard in s. 58 of the ATA, which has remained effective for a long time and has impacted many BC administrative tribunals.
Prior British Columbia Court of Appeal cases on employees
Here are some other labour and employment law decisions from the Court of Appeal for British Columbia.
In a union’s grievances challenging consolidations introduced by TELUS Communications Inc., the appeal court issued a Jan. 13 decision dismissing an appeal challenging the Supreme Court of British Columbia’s jurisdiction to grant interim injunctive relief before an arbitrator was in place.
In a workers’ compensation case arising from injuries in a motor vehicle accident, the appeal court made an Oct. 14, 2025, decision finding that the vocational rehabilitation expenses were not healthcare expenses that the trial judge should include in the damages award.
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