Executive Summary: Key Legal and Evidentiary Issues

• Appellant Jessie Bains filed a civil claim against adjudicator Andres Barker alleging misfeasance in public office, negligence, and abuse of process

• Challenge to Ms. O'Rourke's standing to represent Mr. Barker in his alleged "private capacity" formed the central issue of both appeals

• No evidence of prejudice or conflict of interest was identified arising from Ms. O'Rourke's simultaneous representation of Mr. Barker and the Board

• Application for default judgment was denied as Mr. Barker had already filed a response to civil claim

• The declaration sought regarding Ms. O'Rourke's standing was found to be res judicata (a thing already decided) by Justice Tucker, as Justice Morishita had already decided the issue

• Both appeals (CA50788 and CA50913) were unanimously dismissed by the Court of Appeal panel

Background and origin of the dispute

Jessie Bains filed complaints against his trade union before the British Columbia Labour Relations Board (the "Board"). Andres Barker, an adjudicator with the Board, presided over the matter and in April 2025 issued a decision dismissing the appellant's complaints. During those proceedings, the appellant alleged that Mr. Barker was biased and sought his recusal. The application was dismissed, as was a reconsideration of the decision.

The civil claim against Mr. Barker

In May 2025, Mr. Bains filed a notice of civil claim against Mr. Barker in the Supreme Court of British Columbia. Among other things, the appellant sought general damages for misfeasance in public office, negligence, and abuse of process. He also sought to have the decisions made by Mr. Barker declared "void ab initio." The response to civil claim was filed by both Mr. Barker and the Board. The document was signed by Ms. O'Rourke, who is listed as counsel for both Mr. Barker and the Board. Mr. Barker and the Board also jointly filed a notice of application signed by Ms. O'Rourke seeking an order under Rule 9-5 that the appellant's claim be struck.

The dispute over legal representation

The core of Mr. Bains' appeals centered on his challenge to Ms. O'Rourke's role as counsel for Mr. Barker. Mr. Bains argued that he was suing Mr. Barker in his private capacity and that, as counsel for the Board, Ms. O'Rourke lacked standing to also represent Mr. Barker in his private capacity. He contended that Ms. O'Rourke "has refused to clarify in which capacity she represents Andres Barker—whether as Vice-Chair of the [Board] or as Andres Barker the Man." He sought orders that all filings, appearances, or representations made by Ms. O'Rourke or the Board be declared unauthorized and struck from the record, and that public funds not be used to defend a private tort claim brought against Mr. Barker in his individual, non-official capacity.

The first appeal — Order of Justice Morishita (CA50788)

The first appeal arose from the dismissal of an application by the appellant before Justice Morishita on June 30, 2025. The Court of Appeal found no error in Justice Morishita's ruling. The Court noted that Ms. O'Rourke is a member of the Law Society of British Columbia and is therefore permitted under the Supreme Court Civil Rules to make filings on behalf of clients from whom she has received instructions. There was no suggestion that Mr. Barker did not instruct Ms. O'Rourke or authorize the filings and representations made on his behalf. The Court emphasized that the purported distinction between Andres Barker in his capacity as Vice Chair of the Board, and Andres Barker in his private capacity, is of no moment to his ability to instruct counsel of his choice. The Court further noted that a litigant should not be deprived of counsel of his or her choice without good cause, citing MacDonald Estate v. Martin, [1990] 3 S.C.R. 1235. The appellant made a bare assertion that Ms. O'Rourke's simultaneous representation created an "inherent conflict of interest," but he did not set out the nature of the conflict in his application, his factum, nor in his oral submissions. No prejudice was identified arising from Ms. O'Rourke's role as counsel for both Mr. Barker and the Board.

The Board's participation

Mr. Bains also took issue with the Board's role in the application before Justice Morishita and in the appeal. As noted by Justice Morishita, the Board was not a party to the action. However, in both the action and the application at issue, the appellant sought orders that directly affected the Board, including conditions on the Board's participation in the litigation and that public funds not be used to defend a private tort claim. The Court found it difficult to understand why the Board would not have standing to make submissions on an application seeking an order that would set terms on its participation in litigation or restrict its decisions about resource allocation.

The second appeal — Order of Justice Tucker (CA50913)

The second appeal arose from an order of Justice Tucker dismissing an application filed by the appellant on July 29, 2025. The application sought default judgment against Mr. Barker for failing to file a response to civil claim and a declaration that Ms. O'Rourke had no standing to represent Mr. Barker in his private capacity. Justice Tucker dismissed the application as Mr. Barker had filed a response to civil claim. She also concluded that the declaration sought was res judicata (a thing already decided) because Justice Morishita had decided the issue. The Court of Appeal agreed, noting that the argument had no merit and was properly dismissed by Justice Morishita, and that it had even less merit before Justice Tucker as the issue had already been decided.

Ruling and outcome

The Court of Appeal for British Columbia, in a unanimous decision delivered by Justice Edelmann with Justices Willcock and Warren concurring, dismissed both appeals in CA50788 and CA50913 on January 29, 2026. The Court affirmed the lower court orders, concluding that Ms. O'Rourke was authorized to file responding materials on behalf of Mr. Barker, that no conflict of interest or prejudice was demonstrated, and that the appellant's challenge to counsel's standing was without merit. Mr. Barker was the successful party in these appeals. No specific monetary amount was awarded or ordered, as the appeals concerned the standing and authority of counsel rather than damages.