Date : 20041019
Docket : T-2151-03
Citation : 2004 FC 1441
BETWEEN :
JOHN BAUER
Applicant
AND :
SEASPAN INTERNATIONAL LTD.
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] On August 26, 2004 the Court entertained this application for judicial review from the decision of an Adjudicator appointed under the Canada Labour Code (the "Code") rendered pursuant to paragraph 242(4)(a) of the Code dated October 19, 2003.
[2] The applicant was hired by the respondent as a labourer on August 22, 1996. At that time he was paid $19.00 per hour. In December 1998, he was promoted to the position of lead utility man and his pay was increased to $21.00 per hour. He was subsequently demoted to a labourer position in May 2000 but his rate of pay remained at $21.00 per hour.
[3] The respondent is a marine transportation company with operations along the British Columbia and United States coasts.
[4] The applicant was dismissed in March 2001 and complained that he had been unjustly dismissed and was seeking reinstatement by the respondent employer.
[5] Pursuant to section 240 of the Code, an Adjudicator is to be appointed within 90 days to entertain a complaint or wrongful dismissal. On January 17, 2002 Mr. Glenn Gary Hall was appointed to hear the complaint of unjust dismissal. In February 2002, counsel on behalf of the respondent requested a preliminary hearing on the matter of the jurisdiction of the Adjudicator to entertain the complaint. The Adjudicator heard the application on March 21, 2003, reserved his decision and rendered his determination on May 2, 2002, maintaining that he had jurisdiction.
[6] The employer appealed this ruling to the Federal Court Trial Division. The matter was entertained on February 20, 2003 and Reasons issued by the presiding Federal Court Justice on May 7, 2003 in which he upheld the determination that the Adjudicator had jurisdiction to entertain the complaint. Hearing dates were then set for August 20, 21 and 22, 2003 and the final decision rendered in October of the same year.
[7] In his ruling of October 19, 2003, the Adjudicator determined that the applicant had been unjustly dismissed and ordered reinstatement. He then assessed damages at $101,400.00 which represented lost wages from the time of the applicant's dismissal in March 2001 until the reinstatement ordered in October 2003. He then reduced the compensation to $40,500.00 (to one year's salary) due to the failure on the part of the applicant to mitigate his damages. He also ordered interest and costs. As of the date of this hearing, the applicant is still in the employ of the respondent.
[8] No one is challenging the order of reinstatement. This application is restricted to questioning the compensation ordered and paid by the respondent to the applicant pursuant to paragraph 242(4)(a) of the Code. He is seeking the equivalent of the lost remuneration that, but for the dismissal, he would have earned.
[9] The Canada Labour Code provides the remedies which the Adjudicator may order. He may dismiss the complaint or, in the event that he determines unjust dismissal, he may order the following remedies which are prescribed under subsection 242(4) of the Code:
242(4) Where unjust dismissal - 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.
[10] With respect to compensation and remedy, the Adjudicator stated at pages 30 and 31 of the decision as follows:
"I turn now to the issue of back pay. Mr. Bauer provided his 2000 and 2001 tax returns during the hearing. His T-4 slip from Seaspan shows $42,742.20 in total employment income in 2000. His 2001 T-4 slip from Seaspan shows $8,712.78 in total employment income up to March 19, 2001. The slight decrease in the projected total for 2001 I put down to the loss of extra income that Mr. Bauer received as the lead utility man for the first quarter of 2000. Assuming an annual income of approximately $40,500.00 as a labourer Mr. Bauer has asked for full back pay to March 19, 2001. That sum comes to $104,625.00 at the point of this decision. But Mr. Bauer is subject to a duty to mitigate his losses and his evidence is that he lived on Employment Insurance income for the balance of 2001, and then made only $1,795.00 in 2002 and only $420.00 in 2003 up to the hearing date. His claim is thus for approximately $101,400.00 He testifies that he and his family have lived to a significant extent on the largesse of his wife's parents. Her parents own their house and the car they drive. Mr. Bauer says he also borrows from them in order to meet minimal needs.
Mr. Bauer states he has looked for work but brought very poor documentary evidence of that search to his hearing. His explanations for the lack of documentary evidence are not persuasive. This is a major weakness in his case. He states that he has never succeeded in getting a single live job interview in two and half years and attributes that to the lack of any reference letter from Seaspan. I cannot agree with that bald assertion. Reference checking is generally one of the last steps in a new hire process. A determined effort should yield at least some initial interviews. Mr. Bauer acknowledges that he has experience as a logger, millworker, bridge and building worker with CP Rail, carpenter's helper in house construction and renovation, truck driver, landscaper, and handyman. The evidence in this hearing has shown that he brings a broader array of skills to the workplace than most labourers at the log barge repair facility and is appreciated for that extra ability. He testifies that he has refused to consider any jobs, such as in the landscaping area, that pay only $10 to $12 an hour. He testifies that he has never walked onto any job site, in the past two and half years, and asked for a job. I find Mr. Bauer's efforts at mitigation to be completely inadequate. In all of the circumstances of this case I am prepared to order one year's wage loss which I find to be $40,500.00. Mr. Bauer is entitled to pre-judgment interest on this sum from March 19, 2002 to date of this judgment, and post-judgment interest thereafter to the point where he is paid."
[11] Both parties admit that the standard of review for interfering with a finding of unjust dismissal, or an award of compensation by an Adjudicator appointed under section 242 of the Code, is subject to the highly deferential test of patent unreasonableness. In Nlha'7kapmx Child & Family Services v. Lockhart, Dawson, J. made the following comments in this regard:
It is well-established, and not in issue in this proceeding, that the standard of review for interfering with a finding of unjust dismissal or the award of compensation by an adjudicator appointed under section 242 of the Code is patent unreasonableness. The standard has been confirmed in several decisions of the Court, including: Bank of Nova Scotia v. Fraser (2000), 186 F.T.R. 225 (Fed. T.D.); Gauthier c. Fortier (2000), 191 F.T.R. 219 (Fed. T.D.); Rogers Cablesystems Ltd. v. Roe (2000), 4 C.C.E.L. (3d) 170 (Fed. T.D.); Lac La Ronge Indian Band v. Laliberte (2000), 192 F.T.R. 100 (Fed. T.D.); and Wayzhushk Onigum Nation v. Kakeway, 2001 FCT 819 (Fed. T.D.).
To determine whether a decision is patently unreasonable, the Court must ask whether the evidence, viewed reasonably, is incapable of supporting the tribunal's conclusion.
[12] In the case at bar, the applicant submits that the impugned decision is patently unreasonable and that the Adjudicator:
(a) failed to properly interpret paragraph 242(4)(a) of the Code;
(b) failed to appreciate the legal test which requires the employer to bear the burden, to prove with evidence, that the applicant failed to take reasonable steps to mitigate damages;
(c) failed to appreciate that the respondent had an obligation to prove that a more active job search would have resulted in a mitigation of damages;
(d) has no discretion in these circumstances under paragraph 242(4)(a) to reduce the compensation but had a duty to award the equivalent remuneration but for the dismissal;
(e) failed to take into account that there was an undue delay of approximately one year brought about by the employer having challenged the jurisdiction of the Adjudicator.
[13] I am dismissing the application for the following reasons.
[14] Section 242 of the Code provides the Adjudicator with the discretion to grant a remedy in an effort to "make whole" the losses caused to an employee as a result of an unjust dismissal. Those remedies include monetary compensation not exceeding the amount that is equivalent to the remuneration that would, but for the dismissal, have been paid to the employee; reinstatement of the person to the employment; and, any other like thing that is equitable to require the employer to do in order to remedy the dismissal. These are remedies which may be resorted to in appropriate circumstances. They do not however, as submitted by the applicant, in any way constitute a "right" that an unjustly dismissed employee possesses. In Sheikholeslami v. Atomic Energy of Canada Ltd., the Federal Court of Appeal stated:
The unfair dismissal provisions for non-unionized employees in the Canada Labour Code no doubt represent a statutory modification of the traditional rule that an employment contract will never be specifically enforced. But they certainly do not, and even could not, go so far as to create a right in the person of the wrongfully dismissed employee. It would be contrary to the common sense that precisely supports the traditional rule. They simply provide for reinstatement as a possible remedy that may be resorted to in proper situations. It is often said that, in practice, it is the remedy favoured by adjudicators in their efforts to "make whole" an employee's real-world losses caused by dismissal. It is indisputable, however, that an adjudicator is given full discretion to order compensation in lie of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored.
(emphasis added)
[15] Furthermore, an employee who is seeking reinstatement pursuant to subsection 242(4) still has an obligation to seek alternate employment in order to mitigate his losses during the period following his dismissal. The fact that the Code provides for the opportunity for reinstatement, if an employee is found to have been unjustly dismissed, does not negate this obligation. The leading case on an employee's duty to mitigate his damages in the face of wrongful dismissal is the Supreme Court of Canada's decision in Red Deer College v. Michaels , wherein Laskin C.J.C. approved the following principle:
The rule of avoidable consequences here finds frequent application. The consequences of this injury is the failure of the employee to receive the pay which he was promised but, on the other hand, his time is left at his own disposal. If the employee unavoidably remains idle, the loss of his pay is actually suffered without deduction. If, however, the employee can obtain other employment, he can avoid part at least of these damages. Therefore, in an action by the employee against the employer for a wrongful discharge, a deduction of the net amount of what the employee earned, or what he might reasonably have earned in other employment of like nature, from what he would have received had there been no breach, furnishes the ordinary measure of damages.
(emphasis added)
[16] The applicant strenuously argues that the Adjudicator erred in his finding with respect to the issue of mitigation of damages insofar as he failed to properly apply the burden of proof which is on the employer in cases of this nature. In support of this argument counsel relies on the following statement of Laskin C.J.C. in Red Deer College (supra):
The burden of proof is on the employer to show that the employee either found or, by the exercise of proper industry in the search, could have procured similar employment reasonably adapted to his or her abilities. In other words, the onus is on the defendant to show that the plaintiff could have found other suitable employment. The defendant must provide not only that the plaintiff failed to take reasonable steps to mitigate, but also that the plaintiff could likely have obtained alternative employment. The defendant will normally have an obligation to prove a position was available for the plaintiff in the job market after dismissal. In the absence of such proof, the employee is entitled to recover remuneration which would have been earned but for the breach of the contract of employment.
[17] I do not accept the applicant's contention that the Adjudicator failed to properly apply this principle. The respondent is not required to put forward specific evidence to show that there was a position that would have entitled the applicant to $60,000.00 of work for the period of missed employment. During the course of the hearing before him, the Adjudicator heard the testimony of the applicant, under cross-examination by the respondent, which demonstrated that he had not looked for construction positions by going to any construction sites, nor had he attempted to apply for any landscaping positions, notwithstanding the fact that there were advertisements in the newspaper for those positions, and the applicant had previous experience in both.
[18] I am satisfied that the Adjudicator is entitled to find, on the whole of the evidence, that the applicant failed to mitigate his damages. In this regard, I adopt the following reasoning of the Saskatchewan Court of Appeal in Cohnstaedt v. University of Regina, wherein a similar argument was made with respect to the employer's burden of proof:
In my opinion, there is no basis to set aside the factual determination made by the trial judge that the appellant failed to mitigate his damages. There is ample evidence on the appellant's own testimony on which he could have concluded the appellant made no effort to seek alternative employment. There is no question the appellant could have obtained teaching positions had he applied. Perhaps those positions would not have been as a full tenured professor, but there were no doubt sessional lectureships or summer school teaching positions available had he applied.
The University led no evidence on the failure to mitigate. That does not, however, disentitled the trial judge from making the factual determination on the whole of the evidence. The University argued, in this Court and before the trial judge, the appellant had failed in his duty to mitigate his loss. That the trial judge is entitled to find, on the whole of the evidence, the appellant failed to mitigate is made clear by Laskin C.J.C. in Red Deer College. He stated:
If it is the defendant's position that the plaintiff could reasonably have avoided some part of the loss claimed, it is for the defendant to carry the burden of that issues, subject to the defendant being content to allow the matter to be disposed of on the trial judge's assessment of the plaintiff's evidence on avoidable consequences. [emphasis added]
[19] In the present case, I am satisfied that the Adjudicator had sufficient evidence before him to make a reasoned assessment of the applicant's efforts at mitigation. In making his determination that the applicant had not adequately mitigated his damages, the Adjudicator reached a conclusion that was reasonable, based on the appropriate test for the determination of whether the duty to mitigate had been met, and based on the evidence before him, as presented by both of the parties. There is therefore no basis which would warrant this Court's interference with that decision.
[20] For these reasons the application for judicial review is dismissed. Under the circumstances, namely that the respondent has been responsible for the delay in the finalizing of the applicant's unjust dismissal claim, no award of costs will be made in this application.
JUDGE
OTTAWA, Ontario
October 19, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : T-2151-03
STYLE OF CAUSE : JOHN BAUER v. SEASPAN INTERNATIONAL LTD.
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: August 26, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: October 19, 2004
APPEARANCES:
Michael T.L. Blaxland FOR THE APPLICANT
Michael W. Hunter FOR THE RESPONDENT
SOLICITORS OF RECORD:
Forrest, Gray, Lewis &
Blaxland
201 - 145 East 15th Street
North Vancouver, B.C.
V7L 2P7 FOR THE APPLICANT
Fasken, Martineau,
DuMoulin LLP
2100 - 1075 West Georgia St.
Vancouver, B.C.
V6E 3G2 FOR THE RESPONDENT
(1998), 157 D.L.R. (4th) 689 (Fed. C.A.)
[1994] 5 W.W.R. 154 (Sask. C.A.) At pp. 181-82
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