Erickson v. Smith, docket T-794-97

     Date: 19980325

     Docket: T-794-97

BETWEEN:

TIM ERICKSON and GORDON C. WILSON

     Applicants

- and -

P.A. SMITH (adjudicator appointed under Division 14,

Part III of the Canada Labour Code) and SHAW

RADIO LTD. (CISN and CHQT)

     Respondents

     REASONS FOR ORDER

CAMPBELL, J.:

[1]      This is an application for judicial review of a decision of P.A. Smith, adjudicator appointed under Division 14, Part III of the Canada Labour Code (the "Adjudicator"), dated March 26, 1997, wherein it was decided that Mr. Tim Erickson and Mr. Gordon Wilson (collectively, the "Applicants") were not unjustly dismissed by Shaw Radio Ltd. ("Shaw Radio").

[2]      In respect of the decision, the relevant statutory references are as follows:

CANADA LABOUR CODE: DIVISION XIV - 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.

(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.

242(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall

(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

242(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where

(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or

(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.

(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to

(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

(b) reinstate the person in his employ; and

(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

243(1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.

[3]      The effect of s. 242(3.1) has been the subject of judicial interpretation which I accept. In Air Canada v. Davis¹, Muldoon, J. states as follows:

Thus, in order to consider the complaint at all, the adjudicator must first determine if the complainant had been laid off, and if so, whether because of lack of work, or because of the discontinuance of a function, which latter reason, if established, could well be the genesis of the earlier reason. These issues being central to the adjudicator's jurisdiction even to consider the complaint (subsec. 242(3.1) of the Code), he must be correct in resolving them.

[4]      Strayer J.A. in Byers Transport Ltd. v. Kosanovich², has found to the same effect as follows:

...In its decision in Canada Post v. Pollard [footnote ommitted] ...this court had occasion to consider the standard of review in respect of the application of s. 242(3.1). It held that a determination as to whether an adjudicator is precluded by this section from considering the unjust dismissal complaint of a person is a finding as to the existence of jurisdiction and the standard for judicial review of such a determination is one of correctness....

[5]      During the course of the hearing before the Adjudicator, Shaw Radio argued that the Applicants were "laid off" within the meaning of s. 242(3.1) and, thus, the Adjudicator had no jurisdiction to hear their complaints. This being the case, I find it was encumbent on the Adjudicator to directly deal with this argument. This was not done. Indeed, with respect to Mr. Wilson, the argument was specifically avoided where on the last page of the Adjudicator's decision the following was stated:

...Because I have found that the dismissals were not unjust as required by s. 242(4) of the Code, I have not dealt with whether or not the reduction in Mr. Wilson's work hours constituted a lay-off due to shortage of work which fit within the exemption contained in 242(3.1) of the Code.

[6]      I find that this statement constitutes a reviewable jurisdictional error with respect to Mr. Wilson. With respect to Mr. Erickson, given the taint over the decision which, in my opinion, the just quoted statement creates, I find that the failure of the Adjudicator to specifically deal with the jurisdictional argument of Shaw Radio is also a reviewable jurisdictional error in his case.

[7]      Accordingly, I conclude under s. 18.1(4)(a) of the Federal Court Act that the Adjudicator acted without jurisdiction respecting both Applicants.

[8]      Regarding the relief to be granted, the Applicants request that the decision be quashed or set aside and the matter be referred back to another adjudicator for a new hearing. Shaw Radio, however, argues that the jurisdictional error made is merely technical and, therefore, the decision should simply be set aside and the matter referred back to the Adjudicator with directions that the jurisdictional question be properly addressed.

[9]      I realize that a full re-hearing of the complaint will incur further expense and delay, but I have concluded that I cannot assist in escaping this result. Since I have found that the Adjudicator acted without jurisdiction, I find that the appropriate remedy is to quash the decision which I so order. Accordingly, a new hearing is required.

                                                  Judge

Edmonton, Alberta

March 25th, 1998.

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:                          T-794-97                     

STYLE OF CAUSE:                          Tim Erickson and

                                 Gordon C. Wilson v.

                                 P.A. Smith et al.

                                

PLACE OF HEARING:                      Edmonton, Alberta

DATE OF HEARING:                      March 25th, 1998

REASONS FOR ORDER OF THE COURT:          Campbell, J.

APPEARANCES:

G. Brent Gawne                          for the Applicants

R.O. Neuman, Q.C.                      for the Respondents

SOLICITORS OF RECORD:

G. Brent Gawne & Associates

Edmonton, Alberta                          for the Applicants

Neuman Thompson

Edmonton, Alberta                          for the Respondents

__________________

     ¹Air Canada v. Davis, 72 F.T.R. 283 at 291.

     ² Byers Transport Ltd. v. Kosanovich [1995] 3 F.C. 354 at 371 (F.C.A.).