Date: 19980911
Docket: T-2487-96
QUÉBEC, QUEBEC, THE 11TH DAY OF SEPTEMBER, 1998
| Present: THE HONOURABLE MR. JUSTICE NADON |
Between:
CLAUDE VINCENT
Applicant
- and -
HURON WENDAT NATION COUNCIL
Respondent
Originating notice of motion by the applicant for an order overturning certain decisions contained in the decision rendered on June 5, 1996 by Mr. Robert Deblois in his capacity as an adjudicator under the Canada Labour Code.
(Section 18.1 of the Federal Court Act)
O R D E R
The application for judicial review is denied.
Certified true translation
Bernard Olivier
Date: 19980911
Docket: T-2487-96
Between:
CLAUDE VINCENT
Applicant
- and -
HURON WENDAT NATION COUNCIL
Respondent
REASONS FOR ORDER
NADON J.
[1] The applicant is challenging the decision rendered by Mr. Robert Deblois, an adjudicator under section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2, on May 29, 1996.
[2] The adjudicator"s decision is the result of a complaint filed by the applicant, claiming he was unjustly dismissed by his employer, the respondent Huron Wendat Nation Council (the "Council"). The adjudicator held that the applicant had indeed been unjustly dismissed from his duties as Director of the Council"s Archives Centre.
[3] The adjudicator consequently ordered the Council to pay the applicant compensation equivalent to three (3) months" salary with interest at the legal rate since October 19, 1994, the date on which the applicant filed his complaint.
[4] The applicant is asking this court to amend in part the conclusions in the arbitral award. He submits that the adjudicator erred in failing to order his reinstatement or, in the alternative, compensation in lieu of notice greater than the compensation that was awarded. The applicant further submits that the adjudicator erred in failing to award him exemplary damages, "moral" damages and costs on a solicitor and his client basis.
[5] At pages 9 and 10 of his decision, the adjudicator explains his decision to award the applicant only three (3) months of salary as follows:
[Translation]
The employer argued that this was a lay-off, and I have concluded it was a dismissal, and since there was no evidence by the employer concerning the reasons that might have warranted such a dismissal, it shall therefore be considered unjust.
Under the provisions of section 242 of the Canada Labour Code, an adjudicator has various powers when he determines that a dismissal is unjust.
In this regard, the adjudicator must yield to the representations by counsel for the employer that it is impossible to contemplate reinstating Mr. Claude Vincent in his duties as director of the Archives Centre, since in the circumstances, notwithstanding the resolution of October 5, 1994, the position of director of the Archives Centre was never subsequently filled and in fact for some time now the Archives Centre has no longer been in operation. In this regard, an adjudicator may not interfere in a policy decision by a democratically elected Council which decides to make a priority of some project or, in some cases, to abandon others.
On the other hand, it is far from certain that the project the complainant wanted to present for the Stawanhonhi house was realizable, given the definite constraints surrounding the use of that building. Yet the financial assistance of both Employment and Immigration Canada and the Quebec Ministry of Culture was specifically contingent on the implementation of this new project which, it should be recalled, was necessarily to be self-sufficient within twelve (12) months.
Having regard for the constraints pertaining to the building, including the zoning and the condition of the premises, is it likely, judging from the evidence we have heard, that Mr. Vincent could have drawn from the program for twelve (12) additional months and subsequently been employed full-time? The record, it must be noted, indicates that no study had been conducted on the condition of the building, the potential economic feasibility of the project that the complainant was preparing to table, etc.
Certainly a major part had been left to improvisation, jeopardizing the building project that the complainant wanted to set up. Nor is it certain, given the constraints in question, that the new Council would have agreed to continue much longer with the same philosophy as the previous Council, and in fact it subsequently took a different tack.
Let us note as well that when the complainant was hired, he did not have to leave any job in order to take up his position as director of the Archives Centre, and that for all intents and purposes he had only a little over one (1) year of seniority at the time his employment contract was terminated.
Taking all of these factors into consideration, and considering as well the complaint"s age, the fact that he has since been unable to find alternative employment, and the type of employment he held as director of the Archives Centre, I am of the view that compensation equivalent to three (3) months of salary would be appropriate in the circumstances and that this is a fair provision to offset the effects of his dismissal.
Given the evidence presented before me, I am of the view that there is no reason to award exemplary damages or costs on a solicitor and his client basis.
[6] Notwithstanding his very able submissions, the applicant has failed to convince me that I ought to intervene. I agree with Ms. Veilleux, the respondent"s counsel, that the applicant is seeking to overturn the adjudicator"s conclusions because he is dissatisfied with them. Unfortunately, judicial review is not an appeal. Accordingly, I am unable to substitute my assessment of the evidence for that of the adjudicator.
[7] In my opinion, the adjudicator has committed no error in fact or in law that would attract my intervention. In view of the evidence on the record, the adjudicator was entitled to reach the conclusion that he did.
[8] For these reasons, the application for judicial review shall be denied.
Marc Nadon
J.
Ottawa, Ontario
September 14, 1998
Certified true translation
Bernard Olivier
FEDERAL COURT OF CANADA
NAMES OF COUNSEL AND SOLICITORS OF RECORD
Applicant
HURON WENDAT NATION COUNCIL
Respondent
| PLACE OF HEARING: Québec, Quebec |
| DATE OF HEARING: September 10, 1998 |
REASONS FROM HEARING OF NADON J.
| DATED: September 14, 1998 |
APPEARANCES:
Claude Vincent applicant
Paule Veilleux for the respondent
SOLICITORS OF RECORD:
Claude Vincent applicant
Kronstrom Desjardins
Sainte-Foy, Quebec for the respondent
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