Date: 20040430
Docket: T-2149-02
Citation: 2004 FC 639
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Applicant
- and -
MR. PAUL CODERRE
Respondent
REASONS FOR ORDER
PINARD J.
[1] This is an application for judicial review of a decision made by an adjudicator appointed pursuant to section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code), dated November 22, 2002, by which the adjudicator dismissed the applicant's objection to the admissibility of the respondent's complaint.
The facts
[2] The respondent had been a temporary employee of the applicant since April 25, 2000. At all times in the course of his employment, the respondent was a member of the Syndicat des techniciens et artisans du réseau français de Radio-Canada and was covered by the certificate of accreditation of this union and by the collective agreement with the applicant.
[3] On July 16, 2001, the applicant terminated the respondent's employment after giving advance notice of two weeks in accordance with clause 18.2.2(e) of the collective agreement. On August 20, 2001, the respondent filed a complaint of unjust dismissal with the Minister of Labour under subsection 240(1) of the Code.
[4] On November 30, 2001, the applicant filed an objection to the admissibility of the respondent's complaint, citing paragraph 240(1)(b) of the Code. The complaint was inadmissible, it said, because the respondent was a person who was a member of a group of employees subject to a collective agreement.
[5] On April 30, 2002, the Minister of Labour of Canada appointed Mr. Pierre Beetz to act as an adjudicator on the complaint of unjust dismissal filed by the respondent. The hearing was held on September 11, 2002.
Adjudicator's decision
[6] On November 22, 2002, the adjudicator dismissed the applicant's preliminary objection to the admissibility of the respondent's complaint, referring to section 168 of the Code. The hearing on the merits of the complaint was stayed pending judgment by this Court on this application for judicial review. The adjudicator gave the following reasons for his decision:
[translation]
The Canada Labour Code is an Act assembling various laws in relation to employment, arranged in parts, divisions and sections. Part I deals with industrial relations, Part II with occupational health and safety and Part III with standard hours, wages, vacations and holidays. Each has its own definitions and its own area of application. Legislation is drafted with a view to organizing the provisions in a logical progression so that the meaning of a given part of the text can be grasped without the need to refer to notions that are found further on.
...
Section 240(1)(b) is problematic for the parties. It is necessary, therefore, in order to understand the text, to refer to some notions that are found before that section.
[The adjudicator cites the following provisions of the Code: 167.1, 168, 240, 241(3) and 242.]
To summarize, the provisions of Part III, other than those in divisions II, IV, V and VII [sic], prevail over all others unless provisions acquired under another regime such as a collective agreement are more favourable than those provided in Part III. However, the provisions of divisions II, IV, V and VIII do not apply if a collective agreement contains provisions at least as favourable as those in divisions II, IV, V and VIII. It is the provisions of the agreement that then apply.
In this case, the S-5 collective agreement does not give Mr. Paul Coderre rights and benefits that are more favourable than those given to him under division XIV of Part III in the case of a complaint of unjust dismissal. The parties acknowledge this in their submissions and in the sixth admission. It is therefore the provisions of division XIV that apply. Consequently, the objection concerning the admissibility of the complaint is dismissed.
Statutory provisions
[7] It is worth reproducing at this point the following relevant provisions of the Code:
| 168. (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.
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168. (1) La présente partie, règlements d'application compris, l'emporte sur les règles de droit, usages, contrats ou arrangements incompatibles mais n'a pas pour effet de porter atteinte aux droits ou avantages acquis par un employé sous leur régime et plus favorables que ceux que lui accorde la présente partie.
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| 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.
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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.
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Analysis
[8] Notwithstanding the privative clause in section 243 of the Code, an interpretation by a tribunal of a statutory provision which confers jurisdiction upon it, or which limits the scope of its jurisdiction, such as subsection 240(1), is to be reviewed on a correctness standard (see Beothuk Data Systems Ltd. v. Dean, [1998] 1 F.C. 433 (C.A.) and Canada Post Corporation v. Pollard, [1992] 2 F.C. 697, aff'd by [1994] 1 F.C. 652).
[9] It appears, therefore, that the adjudicator relied on section 168 of the Code in order to find that a person who is a member of a group of employees subject to a collective agreement, such as the respondent, may nevertheless, pursuant to subsection 240(1) of the Code, file a complaint for unjust dismissal if that collective agreement does not contain rights and obligations at least as favourable as those given to him under subsection 240(1).
[10] Before considering the application of subsection 168(1), it is important to determine the exact scope of the right under subsection 240(1). The provision is as clear as can be: it grants a person who has been dismissed and considers the dismissal to be unjust, who has completed twelve consecutive months of continuous employment by an employer and who is not a member of a group of employees subject to a collective agreement, the right to make a complaint in writing to an inspector.
[11] Accordingly, to justify the application of subsection 168(1) in his favour, the respondent in this case had first to establish that he is a person authorized by subsection 240(1) to make a complaint in writing to an inspector. Being a member of a group of employees subject to a collective agreement, the respondent clearly was not such a person so subsection 240(1) did not confer any right on him, and subsection 168(1) was irrelevant. Indeed, for subsection 168(1) to be applicable, as the respondent wishes, he must establish that his rights are affected by at least two "inconsistent laws" and that subsection 240(1) is one of those laws. Since the latter provision does not grant any rights to the respondent (nor does it remove any), it is impossible to speak, in this case, of a law that is more favourable or more advantageous to him. The adjudicator erred, therefore, in dismissing the applicant's objection as to the admissibility of the respondent's complaint.
[12] Furthermore, it is my opinion that in altering the meaning of paragraph 240(1)(b) as he did, the adjudicator rendered a decision that is contrary to the fundamental objective of free bargaining as it is set out in the preamble to the Code:
WHEREAS there is a long tradition in Canada of labour legislation and policy designed for the promotion of the common well-being through the encouragement of free collective bargaining and the constructive settlement of disputes;
AND WHEREAS Canadian workers, trade unions and employers recognize and support freedom of association and free collective bargaining as the bases of effective industrial relations for the determination of good working conditions and sound labour-management relations;
...
AND WHEREAS the Parliament of Canada desires to continue and extend its support to labour and management in their cooperative efforts to develop good relations and constructive collective bargaining practices....
[13] According to the preamble, the Code rests on the principle of the encouragement of free collective bargaining and the constructive settlement of disputes between employees and their employers. Moreover, the preamble reiterates that free collective bargaining is the basis of effective industrial relations. The exclusion of unionized employees from the adjudication process under the Code is in accord with the principle of freedom to bargain. Under this principle, free bargaining leaves the employer and the employee free to establish the minimum standards of protection that govern their industrial relations. In the case at bar, the adjudicator's interpretation conflicts with this principle of free bargaining since it leads to the inclusion of the standards laid down in the Code in every collective agreement. If Parliament had intended to ensure that the minimum standards be included in every collective agreement, it would have said so.
[14] Finally, I am of the opinion that the adjudicator's decision conflicts with the particular objective of paragraph 240(1)(b), which is to protect unorganized employees. The Federal Court of Appeal has ruled as follows on the legislative objective sought by section 240 of the Code, in Beothuk Data Systems Ltd. v. Dean, supra, at pages 456 to 458:
[33] Section 61.5 [as enacted by S.C. 1977-78, c. 27, s. 21] of the Canada Labour Code, the predecessor of the present section 240, came into force on 1 September 1978.... The avowed objective of the unjust dismissal provisions was to afford non-organized workers within federal jurisdiction protection against unjust dismissal similar to that enjoyed by unionized workers under collective agreements. The protection afforded by a common law action for wrongful dismissal was seen as deficient in many respects.... The following comments of the Honourable John Munro, then Minister of Labour, in the House of Commons Debates are instructive:
Which headings embody the objectives of the bill? We are talking first about justice in the work place. Under that meritorious objective, we should put in context the amendments in the bill to Parts III and IV of the Canada Labour Code.
Parts III and IV largely deal with upgrading the labour standards and enhancing the standards, particularly of the unorganized worker, and further, upgrading the safety and occupational health standards of the unorganized worker.
We should realize right away that the immediate impact of these provisions will be on the 550,000 workers under federal jurisdiction. They are primarily in the following areas in the federal sector: railroads, airlines, banking, trucking, broadcasting, grainhandling, communications, and the ports. About half of those 550,000 are unorganized.
It is our hope that Parts III and IV will give at least to the unorganized workers some of the minimum standards which have been won by the organized workers and which are now embodied in their collective agreements. We are not alleging for one moment that they match the standards set out in collective agreements, but we provide here a minimum standard.
. . .
The amendments seek primarily to provide workers with increased job protection. [House of Commons Debates, Vol. II, 3rd Sess., 30th Parl., 1977-78, at pp. 1831-1832] [Emphasis added.]
[34] Because Part III, Division XIV of the Code was enacted by Parliament in order to provide non-unionized workers with an avenue of redress in cases of unjust dismissal, it is my respectful view that this Court ought to resolve in favour of complainants any variance between the English and French texts respecting the qualifying conditions for such protection. That the overriding purpose of legislation ought to inform the interpretation of specific provisions is well-accepted in our law.... In Abrahams v. Attorney General of Canada, for example, Wilson J. relied upon the purpose of the Unemployment Insurance Act, 1971 in interpreting the re-entitlement provisions. She stated:
Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant. [[1983] 1 S.C.R. 2">[1983] 1 S.C.R. 2, at p. 10.]
[35] Similar reasoning ought to be applied in this context. This, of course, does not mean that the Court is at liberty to extend the scope of the protections afforded by the Code to those who do not meet the qualifying conditions expressed therein. Rather, it means simply that, in interpreting these qualifying conditions, the Court ought to keep in mind the overriding purpose of the unjust dismissal provisions, which is to provide non-unionized employees with some protection from unjust dismissal. In coming to this conclusion, I note that Labour Canada, the body charged with implementing the Code, has as one of its guiding principles that any doubt on the part of Labour Canada officials respecting the conditions of admissibility is to be resolved in favour of the complainant whenever possible....
[My emphasis]
[15] I believe that my interpretation of subsections 168(1) and 240(1) of the Code, in the present reasons, is consistent with the modern rule of statutory interpretation, the basic principles of which are summarized by Driedger at page 87 of his volume entitled Construction of Statutes (2nd ed., 1983) and reproduced by the Supreme Court of Canada in Corporation Notre-Dame de Bon-Secours v. Communauté urbaine de Québec and City of Québec, [1994] 3 S.C.R. 3, at page 17:
". . . the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament".
[16] For all of these reasons, I am of the opinion that the adjudicator made an error in law pertaining to his jurisdiction in ruling that the respondent's complaint is admissible. Consequently, the application for judicial review is allowed and the decision of adjudicator Beetz, dated November 22, 2002, is set aside. The matter is returned to the same adjudicator for him to rule on the objection pertaining to his jurisdiction in accordance with these reasons.
[17] As requested by the applicant, each party shall bear its own costs.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
April 30, 2004
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2149-02
STYLE: CANADIAN BROADCASTING CORPORATION v.
MR. PAUL CODERRE
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 31, 2004
REASONS FOR ORDER: Pinard J.
DATED: April 30, 2004
APPEARANCES:
Pascal Rochefort FOR THE APPLICANT
Nathalie Massicotte FOR THE RESPONDENT
SOLICITORS OF RECORD:
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Canadian Broadcasting Corporation
Legal Department
Montréal, Quebec
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FOR THE APPLICANT
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Castiglio & Associés
Montréal, Quebec
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FOR THE RESPONDENT
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Date: 20040430
Docket: T-2149-02
Ottawa, Ontario, the 30th day of April 2004
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
CANADIAN BROADCASTING CORPORATION
Applicant
- and -
MR. PAUL CODERRE
Respondent
ORDER
The application for judicial review is allowed. The decision dated November 22, 2002, by Mr. Pierre Beetz, in his capacity as an adjudicator appointed pursuant to section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2, dismissing the applicant's objection to the admissibility of the respondent's complaint, is set aside. The matter is returned to the same adjudicator for him to rule on this objection in accordance with the reasons filed in support of this Order. Each party shall bear its own costs.
"Yvon Pinard"
Judge
Certified true translation
Suzanne Gauthier, C.Tr., LL.L.
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