Date: 20051006
Docket: T-1397-04
Citation: 2005 FC 1366
Ottawa, Ontario, October 6, 2005
PRESENT: The Honourable Madam Justice Snider
BETWEEN:
JOHN NORTH
Applicant
and
WEST REGION CHILD AND FAMILY SERVICES INC.
Respondent
Docket: T-1422-04
BETWEEN:
WEST REGION CHILD AND FAMILY SERVICES INC.
Applicant
and
JOHN NORTH
Respondent
REASONS FOR ORDER AND ORDER
[1] Mr. John North ("Mr. North" or the "Employee") was hired in 1997 by West Region Child and Family Services Inc. ("WRCFS" or the "Employer") as a resource worker pursuant to a Contract for Services. Mr. North worked for WRCFS until July 13, 2001, when he was advised that his employment was terminated. On July 18, 2001, Mr. North registered a complaint under Part III of the Canada Labour Code, R.S.C. 1985, c.L-2 ("Labour Code"). His complaint was heard and dismissed by Adjudicator Douglas A.S. Paterson, Q.C. in an Arbitration Decision dated June 29, 2004. Mr. North seeks judicial review of the decision of the Adjudicator to dismiss his complaint.
[2] WRCFS also seeks judicial review of the decision insofar as it dismissed WRCFS's claim for costs. The application for judicial review by WRCFS was commenced as a separate court file in T-1422-04. Pursuant to the Order of Prothonotary Tabib dated October 4, 2004, the two files were consolidated.
Issues
[3] The determinative issues in this application are as follows:
- Did the Adjudicator err in concluding that Mr. North could be dismissed absent "a joint decision of the WRCFS Executive Co-ordinator and the Chief and Council and/or CFS Committee of the Band(s) at which the employee is delivering services", as set out in the West Region Child & Family Services, Inc. Policy Manual, November, 1990 (the "Policy Manual")?
- Did the Adjudicator err by relying on grounds for dismissal that went beyond those relied on by the Employer?
- Did the Adjudicator err by relying on irrelevant considerations, that being evidence related to the entire work history of Mr. North?
- Did the Adjudicator err by failing to provide reasons for making no order for costs in favour of WRCFS?
Preliminary Matter
[4] The parties jointly requested that, pursuant to Rule 151 of the Federal Court Rules, SOR/98-106, I order that the affidavit of Mr. North filed in this application be treated as confidential. The affidavit contains numerous references to the names of clients served by WRCFS. I am satisfied that this material, given its sensitive nature, should be treated as confidential, notwithstanding the public interest in open and accessible court proceedings. Accordingly, I will order that the affidavit, with the exception of Exhibit A (the Arbitration Decision) and Exhibit C36 (the Policy Manual), be treated as confidential
Relevant Statutory Provisions
[5] The relevant provisions of the Canada Labour Code are set out in Appendix A to these reasons.
Standard of Review
General Principles
[6] There is no disagreement by the parties that decisions of an adjudicator made pursuant to the Labour Code are among those to be given the highest degree of deference. With the presence of a strong privative clause in s. 243 of the Labour Code and the expertise of the adjudicators chosen to carry out this highly specialized, fact-driven work, courts have consistently held that the appropriate standard of review is one of patent unreasonableness for findings of fact. On this standard, I can only intervene if the decision, when read as a whole, is entirely unsupported by the evidence.
[7] However, as taught by the Supreme Court of Canada (Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226 at para. 21; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247 at para. 21), the applicable standard of review must be established on the basis of a pragmatic and functional analysis. Further, the same standard of review will not necessarily apply to every ruling or decision of the Adjudicator (Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609 at para. 19).
[8] The pragmatic and functional approach involves the consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question -- law, fact or mixed law and fact. Fortunately, I may rely on the careful analysis of the four factors in the context of labour matters that has been undertaken by higher courts in recent jurisprudence.
[9] Without specifically conducting a pragmatic and functional analysis, the Federal Court of Appeal in Mihalicz v. Royal Bank of Canada, [2000] F.C.J. No. 781, at para. 3, expressed the view that a mixed question of fact and law may not be reviewable at all, but that, if it is, the applicable standard of review "cannot be more exigent than reasonableness".
[10] More recently, in Baldrey v. H & R Transport Ltd., 2005 FCA 729, the Federal Court of Appeal visited the standard of review applicable to decisions of an adjudicator under the Canada Labour Code. The issue in that case was a determination of the common law principles applicable to the determination of whether an employee has been dismissed. The Court of Appeal concluded, at para. 7, that the appropriate standard of review was correctness since the question required an interpretation of the "law of the land as opposed to the law of the parties, a domain where, in general, no deference is owed".
[11] The Court of Appeal, in Baldrey, supra, relied on the analysis of Justice Sharlow in Dynamex Canada Inc. v. Mamona et al (2003), 305 N.R. 295 (F.C.A.) (leave to appeal denied by the Supreme Court of Canada, [2003] S.C.C.A. No. 383). That case involved the decision of a referee under Part III the Canada Labour Code as to whether certain persons were employees of Dynamex. Justice Sharlow conducted a detailed assessment of the standard of review as it applied to the two aspects of the decision in question. To the extent that the referee was required to interpret its "home legislation", Justice Sharlow, at para. 40, agreed with the lower court that the standard of review was reasonableness. However, "the determination of the referee as to the common law principles applicable to the determination of the status of a person as an employee should be reviewed on the standard of correctness" (at para. 45). Finally Justice Sharlow commented, at para. 45, that:
However, the manner in which those principles are applied to the facts, which is a question of mixed law and fact, should be reviewed on the standard of reasonableness. Thus, if the referee's reasons disclose no error of law, and the conclusion is reasonably supportable on the record after a somewhat probing examination, the decision will stand.
[12] In Voice Construction, the Supreme Court of Canada considered the standard of review for a decision of a labour arbitrator pursuant to the Alberta Labour Relations Code. The privative clause under the Alberta legislation is only partial as opposed to the full privative clause in the Canada Labour Code. The labour arbitrator's decision required an interpretation of the collective agreement. The majority of the court concluded that the appropriate standard of review was one of reasonableness simpliciter. On the nature of the question, Justice Major stated, at para. 27 that:
[t]he arbitrator in this case was required to interpret the collective agreement. Collective agreements, although similar to, are different in some respects from other types of contracts. While interpreting contracts falls squarely within the expertise of courts, arbitrators, who function within the special sphere of labour relations, are likely in that field to have more experience and expertise in interpreting collective agreements. Consequently, this favours a certain degree of curial deference to arbitrators' interpretation and application of collective agreements.
[13] From a review of this jurisprudence, I gather the following broad (and likely over-simplified) principles in respect of decisions of an adjudicator acting under Part III of the Canada Labour Code:
- A finding of fact is reviewable on a standard of patent unreasonableness;
- A finding related to a collective agreement or other document establishing the relationship between the employer and employee is a question of mixed fact and law reviewable on a standard of reasonableness simpliciter;
- A finding requiring an adjudicator to interpret provisions of the Canada Labour Code is reviewable on a standard of reasonableness simpliciter; and
- A finding on the applicability of common law principles is reviewable on a standard of correctness, although the manner in which those principles are applied to the facts is reviewable on the standard of reasonableness simpliciter.
Application to this Judicial Review
[14] In light of these general principles, I turn to the issues in this case.
[15] The first issue requires an interpretation of the Policy Manual. In my view, the Adjudicator's apparent acceptance of the Employer's position that the dismissal did not require a joint decision of WRCFS Executive Co-ordinator and the Chief and Council and/or CFS Committee of the Band is reviewable on a standard of reasonableness. The Policy Manual establishes certain conditions of employment and, as such, is the "law of the parties". On this standard, "a decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived" or if any of the reasons "can stand up to a somewhat probing examination" (Ryan, supra, at para. 55). As stated by Justice Major in Voice, supra, at para. 35, " [e]ven if a more or less compelling conclusion can be drawn from the provisions of the collective agreement, that does not, on its own, render the arbitrator's interpretation unreasonable". In the application before me, the existence of an alternate, compelling interpretation of the dismissal provisions of the Policy Manual does not, on its own, render the Adjudicator's decision unreasonable. Conversely, the Adjudicator's interpretation of the relevant provisions of the Policy Manual should stand unless the reasons cannot stand up to a "somewhat probing" examination.
[16] The second issue relates to the grounds for Mr. North's dismissal. Put simply, why did the Employer terminate Mr. North's employment? This is a determination of fact that requires the Adjudicator to analyze the evidence before him. In my view, the standard of patent unreasonableness is applicable to this question. On questions of fact, I can intervene only if I consider that the Adjudicator "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)).
[17] The third issue of whether the Adjudicator was entitled to take into account the entire past work history of Mr. North relates to the applicability of the doctrine of culminating incident (discussed below), a common law principle. A finding on the applicability of common law principles is reviewable on a standard of correctness. In this case, the Adjudicator's acceptance of this doctrine to enable the Employer to bring forward evidence of Mr. North's past employment can only stand if it was correct. However, if the doctrine may be applied to the case before him, the Adjudicator's determination of whether the evidence before him supports the application of the doctrine in this case is one of mixed fact and law that is likely reviewable on a standard of reasonableness simpliciter.
[18] Finally, the decision not to award costs is a discretionary decision that should only be disturbed if it is patently unreasonable.
Issue #1: Interpretation of Policy Manual
[19] There is no disagreement that the Policy Manual applies to the relationship between Mr. North and WRCFS. The parties differ on the procedure to be followed for dismissal of Mr. North. Of relevance to this application is Clause 23 of the Policy Manual which deals with "Discipline: Suspensions: Dismissals: Termination of Employment". The clause, in its entirety, is set out below.
23. Discipline: Suspensions: Dismissals: Termination of employment
The following conditions may lead to disciplinary action, suspension, dismissal, and/or termination of employment:
a) unsatisfactory job performance as evaluated by the employee's supervisor and/or Executive Co-
ordinator; in the case of the Executive Co-ordinator, the Board
b) theft of the property of a client or the employer
c) being on the job under the influence of alcohol or drugs
d) making false entries on agency records
e) fighting
f) absence without leave
g) negligence and/or misuse of equipment
h) commission of an act which, in the opinion WRCFS Inc., is detrimental to WRCFS Inc.
i) disregard for the mandatory employee conduct policy as outlined in the policy manual
j) unexpected financial restraints which preclude the payment of salaries
k) charge and/or conviction of a criminal offense
l) obtaining the employment of false pretenses
In the event of necessary staff cuts, continuation of employment will be determined by the Board and the Executive Co-ordinator on the basis of length of service, qualifications, experience, and job performance.
Generally, a system of progressive discipline will be used, which may include three written warnings, suspensions with or without pay, and then termination.
Alternatives to termination, when appropriate, (ie: treatment of alcohol abuse) shall be approved by the Board upon recommendation of management.
The Executive Co-ordinator may suspend an employee, with notification to the Board preferably within 24 hours, but no later than 3 days after suspension.
Termination for social services staff will be a joint decision of the WRCFS Executive Co-ordinator and the Chief and Council and/or CFS Committee of the Band(s) at which the employee is delivering services.
Termination for clerical support staff may be a decision of the RCFS Executive Co-ordinator.
Termination of supervisory personnel will be a Board decision, upon recommendation by the Executive Co-ordinator.
Termination and/or disciplinary action of the Executive Co-ordinator will be done by the Board of Directors.
Employees may be dismissed outright for "just cause".
In the event of a dismissal for "just cause" there is not requirement for two weeks pay in lieu of notice.
[Emphasis added.]
[20] Mr. North argued before the Adjudicator and before me that clause 23 operates such that any decision to terminate or dismiss him must be a joint decision of the WRCFS Executive Co-ordinator and the Chief and Council and/or CFS Committee. He submits that, since this was not done, the Arbitrator erred in not finding that the Employer had breached the provisions of the Policy Manual.
[21] WRCFS submits that the requirement for a joint decision does not apply where the dismissal is for "just cause". The Employer argues that the sub-clause referred to by Mr. North only applies in situations involving "progressive discipline"; that for a decision to dismiss for "just cause", the decision could be taken by the management committee.
[22] Mr. North was dismissed after a meeting of the management team of WRCFS. It appears that no attempt was made to involve the Chief and Council or the CFS Committee in the decision. On this point, the Adjudicator, at p. 35, described the testimony of Mr. Crocker, Assistant Executive Director of WRCFS, as follows:
Mr. Crocker indicates no joint decision was necessary in this case because the same exhibit indicates an outright dismissal for just cause can occur without a joint decision being taken. Mr. Crocker's position is that the joint decision was not needed here and he could act forthwith for cause. . . . Also under cross-examination Mr. Crocker indicated that he did not need to consult the Chief and Council under the circumstances and it would not be normal to do so. In any event the Chief and Council were apparently on vacation and not available.
[23] The only other evidence relevant to this issue that was referred to in the decision appears to be contradictory. Although Mr. Crocker's testimony was that no consultation was needed, Mr. North's supervisor, another Employer witness, apparently stated that "the Chief and Council were consulted, even informally, and approved of the decision to terminate John's employment" (Decision at p. 23). Finally, in cross-examination, Mr. Crocker testified that the he had been made aware that Mr. North's termination was not acceptable to the Chief.
[24] Within the analysis section of the decision, the only mention of the interpretation of the Policy Manual is the Adjudicator's conclusion that "I am satisfied on the whole that [the Employer] did the right thing pertaining to its procedures and policies".
[25] As noted above, the Adjudicator is to be given significant deference on his interpretation of this agreement. I should only intervene if there is no line of reasoning that leads from the evidence to the conclusion. Here, the problem with the decision of the Adjudicator is that it contains no reasons whatsoever on this issue. I cannot conduct an examination of reasons that do not exist. It appears that the Adjudicator accepted the position of the Employer on this issue. However, there is no explanation or analysis of the evidence relied on by the Adjudicator to arrive at this result.
[26] The decision leaves me with many questions, including the following:
- Did Mr. North's termination require a joint decision and, if so, is it an adequate response that the Chief and Council were on vacation?
- If Mr. North's termination was a dismissal for just cause that did not require a joint decision, who could make that decision and, in this case, who did?
- Why is the WRCFS interpretation of Clause 23 of the Policy Manual to be preferred over that of Mr. North?
- Did the evidence support the testimony of one Employer witness that the Chief and Council were in agreement?
[27] In summary, I have no idea which interpretation of the Policy Manual was accepted by the Adjudicator and on what evidence he relied in coming to that interpretation. I do not know whether the Adjudicator even considered Mr. North's argument that his dismissal required a joint decision of the Chief and Council and/or the CFS Committee or whether the Adjudicator concluded that the Chief and Council approved of the dismissal. No amount of probing can answer these questions. I do not suggest that it was not open to the Adjudicator to find, on the evidence before it, that the better interpretation of Clause 23 was that put forward by WRCFS. However, the Adjudicator reached his conclusion that WRCFS "did the right thing" without explaining the factors upon which that conclusion was based. This renders the decision unreasonable.
[28] This is a threshold question. If WRCFS did not follow the proper procedure and Mr. North's employment was not properly terminated, the questions of the grounds for his dismissal and whether they were just do not need to be addressed. Nevertheless, in the event that I am wrong on this issue, I will continue to address the remaining issues.
Issue #2: Grounds for dismissal
[29] Mr. North submits that the sole ground for his termination was the falsification of records. In his view, the Adjudicator erred by considering other grounds for his dismissal. In support of this position, Mr. North points to the cross-examination of Mr. Crocker where the following exchanges took place:
2888 Q. Let's be clear. You made the decision to terminate this guy -
A. Yes.
2889 Q. -- because of one statement in Exhibit 67 [falsification of records]. Have I got that right?
A. Yes.
. . .
3023. Q. Just so I'm clear, the whole investigation or conclusions with respect to the B. matter, with respect to allegations of unavailability, with respect to allegations about noted of R. or R.H.; those were really not considerations for you in terms of your determination as to whether or not to terminate Mr. North?
A. Essentially that's the case. Those other pieces, although serious and in some cases potentially very serious, seem to me as issues, absent this other records business with respect to S.H., could be looked at as training or with other sanctions of one sort or another.
[30] In contrast to this testimony is the letter dated September 6, 2001 written on behalf of the Employer. The parties agree that this letter was provided pursuant to the requirement of s. 241 of the Canada Labour Code. In that letter, the Employer relies on three incidents as the grounds for dismissal:
- An incident involving Mr. North's attendance at the home of S.B. that took place on the weekend of July 6 and 7, 2001;
- An incident on July 9, 2001 involving Mr. North's failure to notify a young girl's grandparents of her medical condition and an alleged late filing and falsification of a report related to this incident; and
- An alleged loss of files regarding two children for whom WRCFS was proving service.
[31] I have a number of concerns with the analysis of the Adjudicator on this question.
[32] First, let me turn to the format of the decision. The Adjudicator begins his decision with 55 pages consisting of a recital of the evidence, without any analysis whatsoever of that evidence. The Adjudicator's conclusions are set out in fewer than 6 pages, which begin with his statement that "Hopefully, I have not misunderstood or mis-interpreted the evidence in too many areas."
[33] With respect to the grounds for dismissal, in particular, it is impossible to find any section of the decision that directly responds to the question "On what grounds did WRCFS dismiss Mr. North?" The closest that the Adjudicator comes to answering this fundamental question is the following, at pages 57-58 of the decision:
Objectively, it is unacceptable to have a Child and Family Services worker lose file case notes, not support a family when a granddaughter is having a kidney transplant in a distant city and allow third parties to accompany him during his duties involving confidential, professional matters.
In my view, the employer has shown just cause for dismissal and properly taken all facts and circumstances into account in making its decision.
[34] This falls far short of identifying the grounds upon which the Employer relies. Indeed, it does not even respond accurately to the grounds set out in the Employer's s. 241 letter; the decision is completely silent on the matter of the alleged falsification of records. In addition, the s. 241 letter made no mention of third parties accompanying Mr. North on his duties. I am left to speculate on what the Adjudicator found were disciplinary incidents. Absent a determination as to the grounds or precipitating incidents upon which an employee is dismissed, I cannot see how an adjudicator can possibly determine whether a dismissal is just or unjust, as required by s. 242(3)(a) of the Canada Labour Code.
[35] Further, the Adjudicator makes no attempt to analyze the evidence before him beyond the sweeping statement that "Where there is conflict as between the employer and the employee on the evidence, I prefer the evidence of the employer." This provides no explanation to Mr. North or to me of why the evidence of the Employer was preferred. It also does not explain the apparent internal conflict between the testimony of Mr. Crocker, the Assistant Executive Director of WRCFS, and the s. 241 letter.
[36] In conclusion, I am of the view that the Adjudicator failed to address the fundamental issue before him of what grounds were relied on by the Employer to dismiss Mr. North. On this question, the decision is "so flawed that no amount of curial deference can justify letting it stand" (Ryan, supra, at para. 52). The decision is patently unreasonable.
Issue #3: Reliance on entire employment history
[37] There is no question that the Adjudicator examined the entire employment history of Mr. North and relied on aspects of that past history to support his dismissal of Mr. North's complaint. In his reasons, the Adjudicator states that "In this case I agree that the culminating incident doctrine applies whereby major and significant aspects of an employee's employment record can be reviewed" (Decision at p. 60). The employment history referred to by the Adjudicator included references to Mr. North's failure to "fulfill the standards and meet the educational goals". Further, at p. 57, the Adjudicator stated that:
[h]is performance in the field from the time he began with West Region to the date of termination was pock-marked with poor communications, some significant omissions, and failure to perform where needed in relation to community groups, with very serious breaching of some basic social work codes of behaviour and ethics. The adjudication was especially concerned with the evidence regarding John's dealing with his local school, his activity groups, lost case file notes, the S.H. incident and breaches of confidentiality as outlined in the evidence earlier noted. It cannot be said that John's behaviour and breaches within the social work field had been minor and inconsequential given the evidence.
[38] In the application before me, Mr. North argues that the culminating incident doctrine was not properly applied by the Adjudicator. He submits that only the documented disciplinary record may be properly utilized to support a culminating incident; in this case, that would include only a 3-year old verbal warning and a 26-month old written warning for conduct unrelated to the alleged culminating incident.
[39] In my view, the facts of this case may well have given rise to an application of the doctrine of the culminating incident, as described in Donald J.M. Brown & David M. Beatty, Canadian Labour Arbitration, 3rd ed. (Aurora, Ont.: Canada Law Book, 2004), at 7:4310:
The doctrine of the culminating incident delineates those circumstances in which it is proper for the employer to consider an employee's past employment record in matters pertaining to discipline. . . . Specifically, the doctrine of the culminating incident posits that where an employee has engaged in some final, culminating act of misconduct or course of conduct for which some disciplinary sanction may be imposed, it is entirely proper for the employer to consider a checkered and blameworthy employment record in determining the sanction that is appropriate for that final incident. . . . Put somewhat differently, the doctrine permits the employer to adduce evidence with respect to the grievor's prior blameworthy employment record in order to justify its disciplinary action on the occasion of some final act of misconduct which, standing alone, might not warrant the severity of the penalty imposed.
[40] In Ackman v. Portage-Delta Broadcasting Co., [1998] F.C.J. 231, my colleague Justice Campbell stated, at para. 39, that:
[o]nce the Adjudicator found that there were grounds for disciplinary action, I find it was certainly open to him to inspect the whole record of poor job performance to conclude whether the action taken by the employer was unjust.
[41] However, in the application before me, as discussed above, the Adjudicator did not determine the grounds for dismissal. The Adjudicator appears to have jumped directly to assessing the entire employment history of Mr. North without determining what "final act of misconduct" is in question. In my view, this is not the role of the Adjudicator. Absent the first step of setting out the culminating events, I cannot assess whether the evidence relied on by the Adjudicator was appropriate and relevant.
[42] Had the Adjudicator taken this first step of identifying the culminating events, I would not have agreed with Mr. North's narrow interpretation of the doctrine that limits the review of employment history to the documented disciplinary record. The ability of an employer to bring forward the entire employment history depends on the facts of each case. On the record before the Adjudicator, it would likely have been open to the Employer to rely on considerable portions of the entire employment history of Mr. North which record was almost entirely negative. Provided that Mr. North had been provided with the opportunity to respond to this evidence and that the Adjudicator assessed and weighed all of the evidence, the Adjudicator would not have been precluded from using this evidence in application of the doctrine of the culminating incident. However, as noted, the Adjudicator never took the first step of identifying the culminating incident.
[43] On this issue, I conclude that the Adjudicator erred by failing to set out the culminating incident. Absent a culminating incident, the doctrine of the culminating incident cannot apply.
Issue #4: Failure to award costs
[44] The Adjudicator did not award costs to WRCFS despite its success at the hearing. With respect to the issue of costs, the Adjudicator states that "[u]nder the circumstances I make no order as to costs". WRCFS submits that the Adjudicator erred in not providing any reasons for his decision to not award costs. This omission of reasons was, in WRCFS's assertion, a breach of procedural fairness or patently unreasonable.
[45] I do not agree. First, an award of costs is highly discretionary and should not be interfered with except in exceptional circumstances.
[46] Further, and in any event, when one reads the decision as a whole, I believe that the Adjudicator did provide the reasons for his decision not to award costs. In particular, I note the criticism by the Adjudicator of the actions of the Employer in dismissing Mr. North "so quickly and not on a face-to-face basis". The Adjudicator continued by opining that giving an employee notice and a hearing may be "the end of it one way or the other". Thus, in using the words "under the circumstances", the Adjudicator was reflecting his concern with the Employer's behaviour. Implied in the Adjudicator's words is that the expense of the adjudication might have been avoided had WRCFS handled the dismissal in a different fashion. While "under the circumstances" could have been tied more directly to the Adjudicator's suggestion that WRCFS played a role in causing the need for the adjudication, the reasons for the failure to award costs are contained in his decision. There is no reviewable error.
[47] However, in light of my findings on the other issues in this proceeding, the issue of costs will likely be addressed in any further adjudication.
Conclusion
[48] In summary, I have found that the decision of the Adjudicator cannot stand for the following broadly-stated reasons:
- The Adjudicator's conclusion that WRCFS "did the right thing pertaining to its procedures and policies" is unreasonable in that the Adjudicator failed to adequately (if at all) address the interpretation of the Policy Manual and the conflicting evidence on its interpretation;
- The Adjudicator's failure to find the grounds upon which Mr. North was dismissed renders his decision on this issue patently unreasonable; and
- The Adjudicator erred in relying on the doctrine of the culminating event without identifying the culminating event.
[49] On the issue raised by WRCFS, I conclude that the decision of the Adjudicator not to award costs to the Employer was not patently unreasonable.
[50] Mr. North requests that the decision be quashed and that I issue an order reinstating his employment with full back-pay and costs. In the circumstances, given the number of issues that need to be addressed, which issues are squarely within the expertise and mandate of an adjudicator under the Canada Labour Code, I decline to provide this remedy.
[51] The alternative remedy proposed by Mr. North is that the matter be referred back to the Adjudicator for reconsideration. While the more usual remedy would be to refer this matter back to a different decision maker, I believe that the errors identified in these reasons relate to the Adjudicator's failure to provide a proper assessment of the record and his failure to address certain key issues before him. In this case, Adjudicator Paterson is in the best position to reconsider his decision. I would leave it up to the Adjudicator to establish a procedure that would best serve the interests of the parties in reaching an expeditious outcome of this already too lengthy process. This would include a decision by the Adjudicator as to whether he needs to hear further submissions or evidence by the parties or whether he can fulfil his obligations based on the record already before him. In the event that Adjudicator Paterson is unable to reconsider his decision, the matter should be remitted to another adjudicator for redetermination.
[52] As Mr. North has been successful on both applications, I would award costs to him for both applications at the usual level set out in the Federal Court Rules of the middle of column III of Tariff B.
ORDER
This Court orders that:
- The Affidavit of Mr. John North, with the exception of Exhibit A (the Arbitration Decision) and Exhibit C36 (the Policy Manual), filed with this Court on August 27, 2004 as Document 13 in Court File T-1397-04, shall be treated as confidential.
- The application for judicial review filed by Mr. North in Court File No. T-1397-04 is allowed and the decision of the Arbitrator dated June 29, 2004 is quashed and remitted to Adjudicator Paterson for reconsideration.
- In the event that Adjudicator Paterson is unable to reconsider the decision, the matter is to be remitted to a different adjudicator for redetermination.
- The application for judicial review filed by WRCFS in Court File No. T-1422-04 is dismissed.
- Costs are awarded to Mr. North in respect of both applications (Court Files No. T-1397-04 and T-1422-04) to be assessed in accordance with the middle of column III of Tariff B.
"Judith A. Snider"
______________________________
Judge
Appendix A - Relevant statutory provisions
The relevant provisions of the Canada Labour Code are reproduced below:
| 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.
...
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.
(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.
(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),
(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and
(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.
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).
(2) An adjudicator to whom a complaint has been referred under subsection (1)
(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).
(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.
(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.
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SECTION XIV
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.
...
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.
(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.
(3) Si la conciliation n'aboutit pas dans un délai qu'il estime raisonnable en l'occurrence, l'inspecteur, sur demande écrite du plaignant à l'effet de saisir un arbitre du cas :
a) fait rapport au ministre de l'échec de son intervention;
b) transmet au ministre la plainte, l'éventuelle déclaration de l'employeur sur les motifs du congédiement et tous autres déclarations ou documents relatifs à la plainte.
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.
(2) Pour l'examen du cas dont il est saisi, l'arbitre :
a) dispose du délai fixé par règlement du
gouverneur en conseil;
b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
(3) Sous réserve du paragraphe (3.1), l'arbitre :
a) décide si le congédiement était injuste;
b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre.
(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants :
a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;
b) la présente loi ou une autre loi fédérale prévoit un autre recours.
(4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur :
a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;
b) de réintégrer le plaignant dans son emploi;
c) de prendre toute autre mesure qu'il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier.
243.(1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
(2) Il n'est admis aucun recours ou décision judiciaire -- notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto -- visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.
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