BC Supreme Court Dismisses OPEIU

In Office and Professional Employees’ International Union, Local 378 et al.. v. British Columbia Hydro and Power Authority and Attorney General of British Columbia, Justice Kathryn Neilson of the British Columbia Supreme Court dismissed, on March 30, 2004, a petition brought by the Office and Professional Employees’ International Union, Local 378 (OPEIU), which challenged legislation passed by the Province of British Columbia in respect of an agreement reached between BC Hydro and Accenture Inc. to outsource certain of BC Hydro’s support services (Accenture deal). The OPEIU also sought orders that would permit a public hearing into the Accenture deal to be conducted by the BC Utilities Commission (BCUC).

In February 2003, the province proclaimed the Energy and Mines Statutes Amendment Act, which confirmed BC Hydro’s corporate authority to enter into the Accenture deal, and that the BCUC did not have jurisdiction to review the Accenture deal, except as part of BC Hydro’s next rate application.

The OPEIU alleged that the Act, and a related order-in-council, violated s. 2(b) of the Charter of Rights and Freedoms, that the OIC was ultra vires and that they had been denied procedural fairness. Specifically, with respect to s. 2(b) of the Charter, the OPEIU argued that the Act removed their access to the BCUC, and therefore violated their right to freedom of expression.

Finding there to be no constitutional right to a particular forum for expression, the court disagreed and held that neither the purpose nor the effect of the Act interfered with the petitioners’ s. 2(b) rights. In so holding, the court noted that the BCUC had denied the petitioners’ request for a hearing on two separate occasions prior to the enactment of the Act, on the basis that the applicable legislation, as then constituted, did not give the BCUC jurisdiction to review the Accenture deal. As such, the Act simply clarified, rather than altered, the BCUC’s jurisdiction in this regard. The court also observed that the petitioners had freely exercised their s. 2(b) rights by publicly stating their opposition to the Accenture deal in various forums, other than before the BCUC.

The court also found that the enactment of the Act and related OIC did not violate any administrative law principles, as alleged, and that the Act, along with the related OIC, were just one segment of a comprehensive scheme to reform BC’s energy sector. As such, the enactment of the OIC by the Lieutenant Governor in Council was a legislative act subject only to limited review by the courts. In enacting the OIC, the Lieutenant Governor in Council used her discretion properly, and did not owe a duty of fairness to the petitioners.

BC Hydro was represented by Chris Sanderson, Q.C., Ron Skolrood and Jana McLean of Lawson Lundell. George Copley, Q.C., of the Ministry of the Attorney General was counsel for the Attorney General. The OPEIU was represented by Leo McGrady, Q.C., Chris Foy and Maria Koroneos of McGrady, Baugh & Whyte.