Date : 20040927
Docket : T-2273-03
Citation : 2004 FC 1311
BETWEEN :
NORTHWESTEL MOBILITY INC.
Applicant
AND :
LAIRD ROBERTSON
Respondent
REASONS FOR ORDER
ROULEAU, J.
[1] This is an application for judicial review of the decision of an Adjudicator appointed under the Canada Labour Code rendered on October 31, 2003. This matter arose when the respondent initially filed a complaint for unjust dismissal in September 2002.
[2] The only issue in dispute is the question of solicitor-client costs awarded by the Adjudicator and which are now being challenged by the applicant, the respondent's former employer.
[3] The Adjudicator found, as a matter of fact, that the respondent had been unjustly dismissed and determined that the appropriate notice should have been a period of nine months thereby extending the entitlement to lost wages from September 2002 to June 2003. He awarded lost wages in the amount of $46,499.94 less $26,637.25 which was income earned by the respondent in the months of January, February and March 2003.
[4] In dealing with the matter of costs, he wrote as follows:
"The Complainant was unfairly dismissed and has suffered as a result of that unjust dismissal. There is no reason, in my view, that he should be burdened with the legal costs incurred to obtain what is rightfully his. Accordingly, I award the Complainant the portion of his legal costs associated with this appeal under the Canada Labour Code up to the amount of $25,936.79."
[5] Counsel for the applicant now seeks to have that part of the decision set aside on the grounds that the Adjudicator acted in excess of the jurisdiction conferred upon him by subsection 242(4) of the Canada Labour Code, insofar as he must have an express statutory authority to award costs. In the alternative, it is submitted that the Adjudicator exceeded his jurisdiction by awarding costs on a solicitor-client basis. Counsel submits that such an award for costs is acceptable only in rare and exceptional circumstances and in support of this proposition relies on the Federal Court of Appeal decision in Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok, [1988] F.C.J. No. 594. Finally, counsel for the applicant submits that the Adjudicator awarded the costs without the parties having raised the issue or having been given an opportunity to make submissions on the issue.
[6] I am dismissing the application for the following reasons.
[7] Subsection 242(4) of the Canada Labour Code provides the following authority to an Adjudicator:
242(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.
(emphasis added)
[8] To begin with, it is not entirely clear that the Adjudicator did in fact make an award of solicitor-client costs per se. There is nothing in the language of his decision to support that contention and it is only because the solicitor's account submitted to the respondent for services rendered was paid in its entirety by the award of $25,936.79 that the applicant is referring to the award of costs as one which has been made on a solicitor-client basis.
[9] Furthermore, I am unable to agree with the submission of the applicant that a proper interpretation of subsection 242(4) does not empower an adjudicator to award costs. In my view, by enacting the Canada Labour Code, Parliament has provided a mechanism whereby unjustly dismissed employees are to be compensated for their loss. In order to achieve that objective, the legislation ought to be interpreted in a broad and generous manner, including the ability of the adjudicator to award costs in the proper circumstances.
[10] In cases of unjust dismissal one should be guided by the underlying principle that a wronged plaintiff is entitled to be put in as good a position as he would have been if there had been proper performance by the defendant. This doctrine is reflected in paragraph 242(4)(c) which confers on the Adjudicator the discretion to "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". I am satisfied that this is what the Adjudicator had in mind when he wrote at paragraph 15 of the decision: "There is no reason, in my view, that he should be burdened with the legal costs incurred to obtain what is rightfully his".
[11] I am supported in this view by the jurisprudence of the Federal Court of Appeal. In Banca Nazionale, supra, Stone J.A. wrote at page 10:
"The first point raised is that the adjudicator exceeded his jurisdiction. The Applicant stresses the phrase "any other like thing" in paragraph 61.5(9)( c) of the Code. That paragraph was relied upon by the adjudicator in deciding that he had jurisdiction to make the award. The Applicant relies once again on this Court's decision in the Slaight Communications case where, it is claimed, the term "like" received a relatively narrow construction. I must disagree that the term was construed narrowly by the Court. I will not repeat what I have already said on the construction of paragraph ( c). I have no difficulty in regarding it, with its broad reference to granting relief that is "equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal", as including the power to award costs."
. . .
"Part III of the Code appears designed so as to afford those unjustly dismissed from the employment with both a forum for adjudicating their complaints and with a range of possible remedies. The language of paragraph ( c) appears ample to vest in the adjudicator authority to award costs to a successful complainant."
(emphasis added)
[12] Finally, I do not accept the applicant's submission that the standard of review here is one of correctness simply because the issue involved is one which relates to the administrative decision-maker's jurisdiction. Indeed, that contention is simply not supportable given the jurisprudence from this Court which has unequivocally rejected that notion. In Via Rail Canada Inc. v. Cairns, [2004] F.C.J. No. 866, the Federal Court of Appeal wrote at paragraphs 33, 38, 39 and 46 as follows:
"I do not accept counsel's "jurisdictional" approach to determining the standard of review. Recent decisions of the Supreme Court of Canada make it clear that the standard of review applicable to decisions of an adjudicative administrative agency must always be determined on the basis of a pragmatic and functional analysis. Conceptual abstractions, such as "jurisdictional question", now play a much reduced role in determining the standard of review applicable to the impugned aspect of a tribunal's decision."
. . .
"However, identifying the relevant ground of review as jurisdictional error is not determinative of the standard of review that the court must apply when deciding whether the applicant has established that the tribunal has erred as alleged. Thus, when, as is the case here, a decision is challenged under paragraph 18.1(4)(a) on the ground that the Board "acted without ... , acted beyond ... or refused to exercise its jurisdiction", and the error alleged involves the interpretation of a provision of the Code, the Court must still use the pragmatic and functional analysis to determine the standard of review applicable to the interpretation of the provision in dispute.
If the pragmatic and functional analysis leads the Court to conclude that correctness is the standard applicable to reviewing the Board's interpretation of the provision of the Code in dispute, the Board will have exceeded its jurisdiction if the Court disagrees with its interpretation. Conversely, if the pragmatic and functional analysis points to patent unreasonableness as the applicable standard, the Board will only be found to have acted without or beyond, or failed to exercise its jurisdiction, if its interpretation is patently unreasonable."
. . .
"However, in my respectful view, the idea that the interpretation of the Board's remedial provisions is reviewable on a correctness standard solely because it is a jurisdictional question has been washed away by the torrent of standard of review jurisprudence emanating from the Supreme Court of Canada in the eight years since Royal Oak Mines was decided."
[13] The Court concluded as follows at paragraph 51:
"Since the standard of review applicable to the Board's conclusion that it may award a particular remedy must be determined on the basis of a pragmatic and functional analysis, I must now apply that analysis. Both the Supreme Court of Canada and this Court have regularly concluded that decisions of the Canada Industrial Relations Board (and of its predecessor, the Canada Labour Relations Board) turning on the interpretation of the Code are normally reviewable only for patent unreasonableness. It is therefore unnecessary for me to reinvent the wheel by conducting a comprehensive pragmatic and functional analysis."
(emphasis added)
[14] Accordingly, the standard of review to be applied here is that of patent unreasonableness which requires that the impugned decision be "so flawed that no amount of curial deference can justify letting it stand". That simply does not apply to the decision of the Adjudicator in the case at bar. He plainly had jurisdiction to award costs pursuant to subsection 242(4) of the Canada Labour Code. In doing so, he exercised his discretion having regard to both his enabling legislation, specifically paragraph 242(4)(c), as well as the common law principles with respect to unjust dismissal in order to achieve the objective of the legislation; namely, to fairly and equitably compensate the respondent for his unjust dismissal. There is nothing to warrant the intervention of this Court with that decision.
[15] For all of these reasons, the application for judicial review is dismissed. Costs to the respondent which I fix at $2,000.00 inclusive of disbursements.
JUDGE
OTTAWA, Ontario
September 27, 2004
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
DOCKETS : T-2273-03
STYLE OF CAUSE : NORTHWESTEL MOBILITY INC. v. LAIRD ROBERTSON
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: September 2, 2004
REASONS : The Honourable Mr. Justice Rouleau
DATE OF REASONS: September 27, 2004
APPEARANCES:
Timothy S. Preston, Q.C. FOR THE APPLICANT
E. Joie Quarton FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lackowicz, Shier &
Hoffman,
Suite 300, 204 Black Street
Whitehorse, Yukon
Y1A 2B9 FOR THE APPLICANT
QUARTON & SUTHERLAND
201 - 4133 4th Avenue
Whitehorse, Yukon
Y1A 1H8 FOR THE RESPONDENT
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