The British Columbia Court of Appeal has quashed an appeal brought by Okanagan College over an arbitrator’s ruling on age-based long-term disability (LTD) benefits, finding it lacked jurisdiction to hear the case under s. 100 of the Labour Relations Code.
Okanagan College had appealed an arbitration decision that found its LTD plan discriminated against employees over age 65 and was not a bona fide plan under s. 13(3)(b) of the Human Rights Code. The college argued that the arbitrator misapplied the legal test from the Supreme Court of Canada’s Potash decision by adding a “reasonableness” standard to the employer’s motives—a standard the college claimed was drawn from the Potash minority ruling.
The Court of Appeal disagreed, ruling that the real basis of the arbitrator’s award was a factual determination made within the scope of a complex collective bargaining relationship. “The arbitrator’s interpretation and application of the Potash test was completely tethered to the facts and the labour relations context,” the court said.
As such, the Court concluded it did not have jurisdiction to review the matter under s. 100, which limits appeals to issues of general law “unrelated to a collective agreement, labour relations or related determinations of fact.”
Grievance centred on age cap for LTD benefits
The arbitration concerned a grievance filed by the Okanagan College Faculty Association challenging the denial of LTD coverage to employees over 65. The dispute followed amendments to the Human Rights Code in 2008 that ended mandatory retirement.
The arbitrator found the LTD plan was adopted in good faith but ultimately determined that, in light of evolving norms and available insurance options, continuing to exclude post-65 coverage amounted to “defeating protected rights.”
He found the employer’s belief that the plan did not discriminate became objectively unreasonable over time, particularly after evidence showed that the cost of extending LTD coverage was not destabilizing. The arbitrator concluded that the plan failed the Potash test, which requires a bona fide plan to be legitimate, adopted in good faith, and not intended to undermine human rights protections.
Court reaffirms limits of appeal jurisdiction
The Court reviewed s. 100 of the Labour Relations Code, which allows for appellate review only in “exceptional” circumstances involving questions of general law that are not tied to labour relations or factual findings. It emphasized that the legislature has reserved primary jurisdiction for such matters to the Labour Relations Board under s. 99.
Although the employer framed its appeal as involving a misinterpretation of Potash, the Court said this did not constitute the real basis of the arbitrator’s award. “The Employer’s assertion of legal error does not in itself translate into the real basis of the award,” the Court wrote.
Because the arbitrator applied an established legal test to a factual matrix grounded in collective bargaining, the matter remained squarely within the jurisdiction of the Board—not the Court.
Concurrent Labour Board proceedings stayed
The employer had also filed an application with the Labour Relations Board under s. 99, which was stayed pending the outcome of this appeal. The faculty association sought increased costs due to the added delay and expense but was unsuccessful. The Court declined to award elevated costs, noting the ongoing complexity in interpreting s. 100 and the continued practice of parties filing dual applications.
The Court quashed the appeal and dismissed the application for increased costs.
For more information, see Okanagan College v. Okanagan College Faculty Association, 2025 BCCA 117 (CanLII).
