Date: 20061101
Docket: T-2009-05
T-2010-05
Citation: 2006 FC 1324
Ottawa, Ontario, November 1,
2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THOMSON
NATIONAL PERSONNEL LIMITED
Applicant
and
VIJAY MAHARAJ, CROWN IN RIGHT
OF CANADA
(MINISTER OF LABOUR) AND
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Thomson National Personnel Limited hired Mr. Vijay Maharaj in
1998. Thomson dismissed Mr. Maharaj on April 25, 2003. In 2004, Mr. Maharaj
complained to the Minister of Labour that he had been wrongfully dismissed and
asked for an extension of time within which to file his complaint under the Canada
Labour Code, R.S.C. 1985, c. L-2. The Minister granted Mr. Maharaj the
extension and appointed an adjudicator to hear the complaint.
[2]
Thomson argues that the Minister erred in granting the extension
of time because Mr. Maharaj failed to satisfy the applicable statutory criteria
and because the Minister failed to provide Thomson an opportunity to make
submissions before the extension was granted. Thomson also argues that the
Minister erred in appointing an adjudicator, given that Mr. Maharaj’s
underlying complaint was untimely. Thomson asks me to overturn the Minister’s
decisions. However, I can find no basis for overturning them and must,
therefore, dismiss this application for judicial review.
I.
Issues
1.
What is the appropriate standard of review to apply to the Minister’s
decisions?
2.
Did the Minister err in granting Mr. Maharaj an extension of time?
3.
Did the Minister err in deciding to appoint an adjudicator?
II. Analysis
1. What is the appropriate standard of
review to apply to the Minister’s decisions?
[3]
The usual time frame for making complaints of wrongful dismissal under
the Canada Labour Code is 90 days from the date of dismissal (s. 240(2)
– relevant provisions are set out in an Annex). However, the Code goes on to
state in s. 240(3) that the Minister may extend that time period if he or she
is satisfied that the following conditions apply:
·
the person made a complaint within the 90-day period to a
government official who had no authority to deal with it; and
·
the person believed that the official did have authority
to deal with it.
[4]
The Federal Court of Appeal has decided that the Minister is
entitled to considerable deference in deciding whether to grant an extension of
time under s. 240(3): Loomis Courier Service v. Danis, [1994] F.C.J. No.
946 (QL), at para. 2. The Court stated that s. 240(3) accords the Minister
“very wide discretionary powers”. In keeping with that approach, I can overturn
the Minister’s decision to grant an extension only if I find that it was unreasonable.
Alternatively, I can intervene if I am satisfied that Thomson was treated
unfairly.
2. Did the Minister err in
granting Mr. Maharaj an extension of time?
(a) Factual background
[5]
As mentioned, Thomson dismissed Mr. Maharaj on April 25, 2003. However,
as part of a severance agreement, it continued to pay his salary and benefits
until August 22, 2003.
[6]
Mr. Maharaj did not make a complaint until November 13, 2003 when he
communicated in writing with the provincial Office of the Worker Advisor. He
also made complaints to the Ontario Human Rights Commission and the Ontario
Employment Standards Branch. He did not submit a formal complaint to the federal
Labour Program Office until February 24, 2004, although he claimed that he had sent
a complaint by e-mail in November 2003. He requested an extension of the 90-day
time limit in a letter dated April 14, 2004. In that letter, Mr. Maharaj set
out the grounds for his request, referring to the letter he had sent to the
provincial Office of the Worker Advisor on November 13, 2003, and his belief
that that office had authority to deal with his complaint.
[7]
Mr. Maharaj’s request for an extension was dealt with first by an
inspector. The inspector advised Thomson in a letter dated April 30, 2004 that
Mr. Maharaj was seeking an extension of time. He attached Mr. Maharaj’s letter
of request and invited Thomson to contact him if it had any comments.
[8]
The inspector drafted an internal report briefly setting out the
relevant facts. The report, in error, states that Mr. Maharaj was employed with
Thomson until August 22, 2003 (i.e. the last day on which he was paid by
Thomson) - his last date of employment was actually April 25, 2003. The
inspector, based on this misinformation, recommended that Mr. Maharaj be
granted an extension of time, given that he had made a complaint within 90 days
to a government official who he believed had authority to deal with his
complaint but, in fact, did not. This recommendation was relayed to Ottawa for
the Minister’s consideration. On July 5, 2004, the Minister authorized Mr.
Maharaj to file his complaint and he did so on July 28, 2004.
[9]
At that point, Thomson was invited to make submissions in response to
Mr. Maharaj’s complaint and did so in August 2004. Thomson challenged the
timeliness of Mr. Maharaj’s complaint and noted that the date of his dismissal
was actually April 25, 2003, not August 22, 2003. Mr. Maharaj then asked that
his complaint be forwarded to an adjudicator. On December 30, 2004, the
Minister appointed an adjudicator to hear the complaint.
(b) The Minister’s
decision to grant an extension of time
[10]
The Minister had before her information indicating that:
• Mr.
Maharaj had been dismissed on August 22, 2003;
• Within 90 days of that date, he complained to a government
official;
• That official had no authority to deal with the complaint; and
• Mr. Maharaj mistakenly believed that the official did have
authority to deal with the complaint.
[11]
However, Thomson notes that the information before the Minister
concerning Mr. Maharaj’s
dismissal date was incorrect. It also points out that Mr. Maharaj should have
known that the provincial authorities he contacted had no authority to deal
with his complaint given that he had been employed by Thomson as a payroll
clerk and, later, as a business analyst. Accordingly, he was well aware of the
fact that Thomson was a federally-regulated entity and should have known where
to complain.
[12]
In
any case, though, there was some information before the Minister indicating
that the statutory criteria for an extension of time were met. In particular,
Mr. Maharaj’s Record of Employment stated that the last day for which he was
paid by Thomson was August 22, 2003, from which the inference might naturally
be drawn that this was his dismissal date. Further, in his letter of April 14,
2004, in which he requested an extension of time, Mr. Maharaj stated that he
had previously submitted his complaint to provincial authorities in error. He
said that he later learned that he should have contacted federal officials.
[13]
Accordingly,
based on the information before the Minister, I cannot conclude that the
decision to grant Mr. Maharaj an extension of time was unreasonable. Certainly,
if the Minister had been aware of the actual date of dismissal and further particulars
of Mr. Maharaj’s employment history, she might have concluded otherwise. But
that information was not before the Minister.
[14]
This
leads to Thomson’s further argument that it was denied an opportunity to supply
information that would have contested the basis on which Mr. Maharaj was
seeking an extension of time. It notes that the letter it received from the
inspector on April 30, 2004 did not specifically invite submissions. Nor did it
include the information on which Mr. Maharaj’s request for an extension was
founded. Accordingly, Thomson submits that it was treated unfairly, having been
shut out of the process leading to the granting of the extension.
[15]
I
cannot agree with Thomson’s submissions on this point. True, Thomson was not
specifically invited to make submissions on the issue of an extension of time,
and was given minimal information about Mr. Maharaj’s application. But I
believe that the inspector’s letter of April 30, 2004 was adequate in the
circumstances. It provided Thomson an opportunity to comment on the matter of
an extension of time. In addition, the inspector gave Thomson a copy of Mr.
Maharaj’s letter in which he set out the grounds for his request: that
is, the fact that he had complained to the provincial Office of the Worker
Advisor on November 13, 2003, believing it had authority to deal with his
complaint.
[16]
In my view, with that letter, Thomson was given enough information to
put it in a position to oppose the extension of time and could have taken up
the invitation to comment on Mr. Maharaj’s request. It could have pointed out
to the inspector that the criteria for an extension of time under s. 240(3)
could not be met because Mr. Maharaj’s complaint was made too late and because
he could not have reasonably believed that a provincial official had authority
to deal with it. Thomson had a meaningful opportunity to participate in the
decision-making process and failed to take it up.
[17]
Accordingly, I cannot conclude that the Minister’s decision to grant Mr.
Maharaj an extension was unreasonable, and nor can I find that Thomson was
treated unfairly.
3. Did the Minister err in
deciding to appoint an adjudicator?
[18]
Thomson argues that the decision to appoint an adjudicator was
unreasonable because, by then, the Minister was aware of Mr. Maharaj’s actual
dismissal date and should have stopped the complaint from going forward.
[19]
However, given that the Minister granted Mr. Maharaj’s request for an extension
of time and allowed him to file his complaint, the timeliness of his original
complaint was no longer a live issue when Mr. Maharaj asked the Minister to
appoint an adjudicator. The question at that point was simply whether an
adjudicator should hear and decide Mr. Maharaj’s complaint. The Minister
exercised her discretion under s. 242(1) of the Code to make the appointment
after efforts to settle the complaint had failed. I cannot find her decision to
be unreasonable in the circumstances.
[20]
Based on the foregoing, I must dismiss this application for judicial
review, with costs.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. The
application for judicial review is dismissed with costs.
“James
W. O’Reilly
Annexe
|
Canada Labour Code, R.S.C. 1985, c. L-2
Unjust
dismissal
240. (1) Subject to subsections
(2) and 242(3.1), any person
(a) who has completed twelve consecutive months of
continuous employment by an employer, and
(b) who is not a member of a group of employees subject
to a collective agreement,
may make a complaint in writing to an inspector if the employee
has been dismissed and considers the dismissal to be unjust.
Time for
making complaint
(2) Subject to subsection (3), a complaint under subsection (1)
shall be made within ninety days from the date on which the person making the
complaint was dismissed.
Extension
of time
(3) The Minister may extend the period of time referred to in
subsection (2) where the Minister is satisfied that a complaint was made in
that period to a government official who had no authority to deal with the
complaint but that the person making the complaint believed the official had
that authority.
Reasons for dismissal
241. (1)
Where an employer dismisses a person described in subsection 240(1), the
person who was dismissed or any inspector may make a request in writing to
the employer to provide a written statement giving the reasons for the
dismissal, and any employer who receives such a request shall provide the
person who made the request with such a statement within fifteen days after
the request is made.
Reference to adjudicator
242. (1) The Minister may, on receipt of a report
pursuant to subsection 241(3), appoint any person that the Minister considers
appropriate as an adjudicator to hear and adjudicate on the complaint in
respect of which the report was made, and refer the complaint to the
adjudicator along with any statement provided pursuant to subsection 241(1).
|
Code
canadien du travail,
L.R.C. 1985, ch. L-2
Congédiement
injuste
240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute
personne qui se croit injustement congédiée peut déposer une plainte écrite
auprès d’un inspecteur si :
a) d’une part, elle travaille sans interruption depuis au moins
douze mois pour le même employeur;
b) d’autre part, elle ne fait pas partie d’un groupe d’employés
régis par une convention collective.
Délai
(2) Sous réserve du
paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours
qui suivent la date du congédiement
Prorogation du délai
(3) Le ministre peut
proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que
l’intéressé a déposé sa plainte à temps mais auprès d’un fonctionnaire qu’il
croyait, à tort, habilité à la recevoir
Motifs du congédiement
241. (1) La personne congédiée visée au paragraphe 240(1) ou tout
inspecteur peut demander par écrit à l’employeur de lui faire connaître les
motifs du congédiement; le cas échéant, l’employeur est tenu de lui fournir
une déclaration écrite à cet effet dans les quinze jours qui suivent la
demande.
Renvoi à un arbitre
242. (1) Sur réception du rapport visé au paragraphe 241(3), le
ministre peut désigner en qualité d’arbitre la personne qu’il juge qualifiée
pour entendre et trancher l’affaire et lui transmettre la plainte ainsi que
l’éventuelle déclaration de l’employeur sur les motifs du congédiement
|
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