Date: 20000317
Docket: T-594-99
OTTAWA, ONTARIO, MARCH 17, 2000
BEFORE: TREMBLAY-LAMER J.
Between:
ABENAKIS OF WOLINAK BAND COUNCIL,
Plaintiff,
- and -
JULES BERNARD,
Defendant.
O R D E R
The application for judicial review is allowed. The decision by the adjudicator is quashed and the matter referred back to him for reconsideration of the case.
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Danièle Tremblay-Lamer
JUDGE
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Certified true translation
Martine Brunet, LL. B.
Date: 20000317
Docket: T-594-99
Between:
ABENAKIS OF WOLINAK BAND COUNCIL,
Plaintiff,
- and -
JULES BERNARD,
Defendant.
REASONS FOR ORDER
TREMBLAY-LAMER J.
[1] This is an application for judicial review of a decision by the adjudicator Pierre Lamarche pursuant to Division XIV, Part III of the Canada Labour Code ("the Code") quashing the defendant's dismissal and ordering his reinstatement.
[2] The defendant was employed by the plaintiff as a maintenance supervisor from May 13, 1996 until his dismissal on July 13, 1998.
[3] On June 17, 1998 the defendant was suspended without pay from June 22 to June 26, 1998 because of alleged lapses by the plaintiff, lapses for which warnings had been given.
[4] The plaintiff objected that the defendant did not satisfactorily answer messages sent by pager, failed to send the inventory of warehouse tools as requested, let a minor student without a licence drive the Band's tractor and did not ensure that the student, who was under his orders, had the required safety equipment.
[5] When he returned from his week's suspension the plaintiff objected that the defendant neglected to ensure that the students picked up the grass cut and did not answer his pager. On July 13, 1998 the plaintiff sent a letter of dismissal.
[6] The defendant alleged that his dismissal was unjustified and prompted by political motives.
[7] On July 22, 1998 the defendant filed a complaint of unjust dismissal against the plaintiff pursuant to Division XIV, Part III of the Code.
[8] The adjudicator concluded that the defendant's dismissal was unjust. He therefore quashed the defendant's dismissal and ordered that he be reinstated in his duties and paid all
of the salary he had been deprived of by the dismissal since July 14, 1998.
[9] Essentially, the adjudicator made his decision by assessing only facts subsequent to June 26, 1998, as the plaintiff was barred from imposing a double penalty for the same acts:
[TRANSLATION]
Earlier decisions by arbitration tribunals have recognized that the seriousness of subsequent penalties may be increased when earlier penalties have not corrected wrongful behaviour. This is the well-known and general theory of the gradation of penalties imposed. However, the tribunals do not allow an employer to impose a double penalty for the same acts.
Consequently, what the adjudicator must assess in deciding whether the dismissal was just or unjust is the facts subsequent to June 26, 1998.
[10] The plaintiff maintained that this was an error of law. It noted that, under the theory of the culminating incident, it could as employer rely at the time of dismissal on grounds of misconduct for which there had already been a penalty provided other acts had followed subsequently.
[11] I consider that the plaintiff is correct. The adjudicator erred in fact and in law by applying the "double penalty" theory to the same facts. In the case at bar we were not dealing with the same facts underlying, but with subsequent incidents of the same type.
[12] The adjudicator had to determine whether the culminating incident was significant enough to allow the plaintiff to rely on the earlier incidents. In other words, were these serious mistakes which were the outcome of a series of similar mistakes and which could justify dismissal at that time? The adjudicator did not take this approach. This was a patently unreasonable error which justifies intervention by this Court.
[13] As to the question of reinstatement in the event of unjust dismissal, s. 242(4)(b) of the Code confers on an adjudicator a discretionary power to grant each of the three forms of relief listed, separately or jointly.
[14] The plaintiff further argued that the adjudicator did not give it - and it was not represented by counsel at the hearing - an opportunity to submit evidence and arguments regarding reinstatement.
[15] In a recent judgment of this Court, Chalifoux v. Driftpile First Nation, Campbell J. restated the rule laid down by the Federal Court of Appeal in Atomic Energy of Canada Ltd. v. Sheikholeslami, that "in the exercise of discretion under s. 242(4)(b) of the Code, an adjudicator must weigh the considerations for and against such an award". Campbell J. therefore concluded that the adjudicator's analysis must include reviewing factors favourable and unfavourable to reinstatement: that examination must include an assessment of the nature of the relationship between the employer and employee at the time of reinstatement.
[16] In the case at bar that assessment was not made, the adjudicator simply ordering reinstatement with no reasons to justify his decision in terms of the relief granted. This abstention is thus a patently unreasonable error of law.
[17] For these reasons, the application for judicial review is allowed. The adjudicator's decision is quashed and the matter referred back for him to review the case.
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Danièle Tremblay-Lamer
JUDGE
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OTTAWA, ONTARIO
March 15, 2000
Certified true translation
Martine Brunet, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-594-99
STYLE OF CAUSE: Abenakis of Wolinak Band Council
v. Jules Bernard
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: March 14, 2000
REASONS FOR ORDER: Tremblay-Lamer J.
DATED: March 17, 2000
APPEARANCES:
David Schulze FOR THE PLAINTIFF
Jean-François Lacoursière FOR THE DEFENDANT
SOLICITORS OF RECORD:
Hutchins, Soroka & Dionne FOR THE PLAINTIFF
Montréal, Quebec
Legris, Michaud, Lacoursière FOR THE DEFENDANT
Trois-Rivières, Quebec
Plaintiff's record, at pp. 10-11.
May 21, 1999, T-1738-98 (F.C.T.D.).
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