Alexander Burrows Jr. v John Pinder Director of Labour

• Jurisdiction: Bahamas
• Judge: Klein, J.
• Judgment Date: 18 December 2020
• Date: 18 December 2020
• Docket Number: 2020/PUB/jrv/00031
• Court: Supreme Court (Bahamas)

IN THE SUPREME COURT

Public Law Division

Before:

The Hon. Mr. Justice Loren Klein

2020/PUB/jrv/00031

Between:

(1) Alexander Burrows Jr.

(2) Arison Wilson

(3) Martha Mackey

(4) Marily Cartwright

(5) Leotha Coleby

(6) Judy Hamilton

(7) Adel Gay

(8) Theophilus Dean

(9) Jeffrey Henfield

(10) Quincy Strachan

Applicants

and

John Pinder Director of Labour

(Registrar of Trade Unions)

Respondent

and

Bahamas Public Services Union

Interested Party

Appearances:

Mr. Bjorn Ferguson for the Applicants

Mr. Basil Cumberbatch with Ms. Raquel Whyms for the Respondent

Mr. Kahlil Parker with Ms. Roberta Quant for the Interested Party

Industrial Relations Act (“IRA”) (Ch. 321) — Trade Union leadership elections — Validity — Certification of election results by Registrar — Judicial review of Registrar's certificate — Alleged irregularities in conduct of elections — Alleged failure to supervise conduct of elections by Designated Officer pursuant to s. 20 of IRA — Failure of Designated Officer to sign ballots — Whether breach of s. 20 requirements — Circumstances in which Registrar's Certificate may be set aside — Whether Registrar may rescind certification ex proprio motu — Interpretation and General Clauses Act (Ch. 2), s. 36 (2) (c) — Implied Powers — Power of Registrar to direct new elections under s. 21 of IRA — Judicial review — Affected party — ILO Convention No. 87 (Freedom of Association and Protection of the Right to Organize Convention, 1948), art. 3

RULING

Klein, J.

Introduction

1 This is an application for judicial review by a losing leadership faction in recently contested elections for the executive leadership of the Bahamas Public Services Union (“BPSU”). The applicants, who call themselves the “POWER” team (“People Organizing With Effective Results), seek to overturn the results of the election which they lost to the incumbent President Kimsley Ferguson and his team (“the Workers Team”). They allege that the election was marred by irregularities, which included breaches of the Union's rules and the Industrial Relations Act (“IRA” or “Act”).

2 While challenges to union elections are not an unfamiliar occurrence in the fractious climate of industrial relations in this country, this case is somewhat unusual. For one, the respondent Registrar of Trade Unions (“the Registrar”), who is the official charged with statutory responsibility for the supervision of union elections under the IRA, agrees with the applicants that the results should be set aside and the election re-run. This is so notwithstanding that he certified the poll as having been properly conducted. But he says he made a mistake in doing so, in that information came to light subsequent to his certification which threw doubt on whether the election was properly supervised in accordance with s. 20 of the IRA.

3 This claim raises an issue that has reared its troublesome head on more than one occasion before the courts, and it is this: what is the proper role of the Registrar or designated officer in the supervision of union elections? In particular, it requires the court to consider in what circumstances it may be appropriate to set aside election results certified by the Registrar, and whether the Registrar can voluntarily rescind his certification and direct fresh elections.

Factual Background

4 The BPSU is one of the largest unions in The Bahamas. It represents persons employed directly by the Government in its various departments, persons employed by public boards, committees and corporations, and persons employed by the Union itself. As the bargaining agent for a large number of public servants with the responsibility for negotiating the terms and conditions of their employment directly with Government, it has pride of place among unions.

5 In recent times, the governance of the Union has been plagued by much infighting which has led to litigation (see, for example, Peter Outten (as Trustee of The Bahamas Public Services Union) et. al. v. Kimsley Ferguson (President of the Bahamas Public Services Union) [2019/COM/lab/00034]. This is also not the first time that the Union's election results have been challenged ( Davis v Bahamas (Director of Labour) Nos. 383 of 114 and 620 of 1994 [1994] BHS J. No. 85).

6 On 29 September 2020, the Union conducted its triennial election for its executive body in New Providence and the Family Islands. Kimsley Ferguson, the incumbent President, and his team were elected by handy margins, although it was a keenly contested poll. Pursuant to its Constitution, the BPSU is required to hold elections for its officers at its third annual General Meeting, which is required to be conducted during the month of July but no later than the 30 September of the triennium. Thus, the Union's election was conducted within a hair's breadth of the constitutionally mandated period.

7 According to the results certified by the Registrar, the votes cast for the contestants were as follows (asterisk denotes winner):

President
Kimsley Ferguson	827*
Alexander Burrows Jr.	582
Ivan Thompson	55
Vice President
Ernest Tillie Burrows	779*
Marilyn Cartwright	581
Peter Outten	92
Executive Vice-President
Craig Bethel	826*
Arison Wilson	617
Vice President Northern Region
Latoya Bernadette Cartwright	817*
Martha Mackey	578
Elizabeth Sillamae Williams	57
Secretary General
O'Neil Thurston	751*
Leotha Coleby	563
Cindira Bain	165
Assistant Secretary General
Valarie Florence Percentie	805*
Judyann Hamilton	647
Treasurer
Phillip Greenslade	840*
Adell Huylor-Gay	609
Trustees
Tyrone Anthony Coakley	774*
Roderick Denver Hanna	686*
Steven Stretch Culmer	684*
Theophilus Dean	629
Jeffrey Henfield	609
Quincy Strachan	589

8 But as is often the case with hotly contested leadership races, the election was not uneventful. Just days before the election, on 25 September 2020, Mr. Alexander Burrows, Presidential Candidate for the POWER team, sent an email to the Registrar raising concerns with the symbol used by the Workers Team.

9 Then, following the election, on 30 September 2020, Mr. Burrows sent a follow up letter to the Registrar urging that the poll should not be certified as having been properly taken. That letter, inter alia, reiterated the concerns about the symbols, alleged that several persons who ran as candidates were ineligible, cited various irregularities with respect to the ballots, and alleged bias and conflict on behalf of the Registrar.

10 By letter dated 7 October 2020 the Registrar indicated that he had investigated the concerns and did not think they compromised the integrity of the election. In this regard, he had issued a certificate dated 5 October 2020 declaring that the poll had been properly taken in accordance with s. 20 of the Act.

11 Following the Registrar's certification of the election, the applicants “appealed” by letter dated 12 October 2020 to the Minister (“the appeal letter”), in which they reiterated and elaborated on the pre-election complaints made to the Registrar and the complaints in the 30 September letter. It does not appear from the evidence that there was any response to this letter. This is probably explained by the fact that while s. 13 of the Act (set out below) grants to an “aggrieved person” a right to appeal to the Minister against the Registrar's refusal to certify an election, it does not grant a corresponding right to appeal where the Registrar certifies the poll as having been properly taken.

The Judicial Review Application

12 On 9 November 2020, the POWER team filed an ex parte summons for leave to commence judicial review of the Registrar's decision of the 5 October 2020 to certify the elections. The Application sought, inter alia, the following relief:

• “(1) Judicial review in the form of an Order of Certiorari quashing the decision made on the 5 ^th day of October 2020, A.D. 2020 wherein the Respondent issued a Certificate of Results of a Ballot under the purported authority of Section 20 of the Industrial Relations Act (IRA);

• (2) An order of mandamus directing The Bahamas Public Services Union (BPSU) to hold new elections;

• (3) A declaration that the 29 September 2020 Bahamas Public Service Elections was unfair and that the decision to certify the election in the circumstances is irrational;

• (4) A declaration that [the] Respondent has acted unfairly and with bias towards the Applicants;

• (5) A declaration that the Applicants had a legitimate expectation to be furnished with the current voter's list of the BPSU within the 3 months as was the practice and custom for the purposes of the elections;

• (6) A declaration that the use of the BPSU logo as a symbol on the ballot paper is illegal and violates the Parliamentary Elections Act;

• (7) A declaration that the decision to certify an election after being informed about the many irregularities is unreasonable;

• (8) An order that all necessary and consequences directions be given.

• […]

• (11) An injunction restraining the elected members from receiving remuneration.”

13 There are also claims for consequential directions, damages and costs. I should say at the outset that it is unclear on what basis damages are sought, since it is trite that damages are not normally awarded for administrative breaches, unless such breaches would also found a cause of action at common law ( Knowsley Metropolitan Borough Council, ex p. Maguire (1992) Times, 26 June). There is nothing on the facts of this case that could conceivably ground a common law claim, and no such claim has been pleaded (as required by O. 53, r.7(2)). The prayer for the injunction (which notably is not even styled as a claim for an interlocutory injunction) seems to have been thrown in only for good measure and...