Conseil de la Nation Innu Matimekosh Lac John v. Racine, 2002 FCT 660

Date: 20020611

Docket: T-928-01

Neutral citation: 2002 FCT 660

BETWEEN:

CONSEIL DE LA NATION INNU MATIMEKOSH-LAC JOHN

Plaintiff

and

LINDA RACINE

Defendant

REASONS FOR ORDER

[Order made from the bench

at Sept-Îles, Quebec on May 30, 2002]

LEMIEUX J.

[1]        After hearing the plaintiff, as the defendant was not present, I made the following order:

[TRANSLATION]

For reasons to be delivered later, this application for judicial review is allowed without costs, the decision by the arbitrator André Truchon, dated April 26, 2001, is quashed and the matter is referred back to the Minister or to an arbitrator appointed by him for the case to be again decided on the assumption that the salary mentioned in the contract of employment of the defendant Linda Racine for 1998-1999 included annual vacation pay as specified in ss. 183 et seq. of the Canada Labour Code.

[2]        These reasons are in support of the order.

[3]        The plaintiff, the Conseil de la Nation Innu Matimekosh-Lac John ("the Conseil"), manages a public school for Innu students on the Schefferville Indian reserve in Quebec.

[4]        The Kanatamat Tshitipenitamunu school applies the Quebec Department of Education study programs and diplomas are issued and regulated by the Quebec Department of Education. Teachers are hired on annual contracts.

[5]        The defendant Linda Racine ("the defendant") was hired by an annual contract from 1995 onwards. The annual contract was renewed until 1999. The conditions of employment contained in the annual contract were essentially the same, namely a gross annual salary spread over 12 months for 180 days' work per year. There were no specific provisions in the contract of employment dealing with the vacation period.

[6]        For personal reasons, the defendant decided not to renew her contract of employment for 1999-2000. She claimed the sum of $1,597.92 from the Conseil as vacation pay for her last year of employment, 1998-1999. The Conseil refused to pay this vacation pay, based on the fact that the defendant was receiving an annual salary which included vacation pay.

[7]        The defendant's claim went before the arbitrator André Truchon, who on April 26, 2001 ruled in the defendant's favour.

Arbitrator's decision

[8]        The arbitrator found that the contract between Linda Racine and the Conseil provided for a gross salary payable in 26 equal installments, but since there was no clause dealing with annual leave reference had to be to the law, here Part III of the Canada Labour Code.

[9]        The arbitrator concluded that remuneration has a wider meaning than the word "salary", and the latter is thus part of the defendant's remuneration.

[10]      He examined ss. 183 to 188 of the Canada Labour Code and noted that:

[11]      The arbitrator based his decision on s. 186 and referred to the Larousse dictionary for a definition of the word "assimiler" [deem]. He concluded:

[TRANSLATION]

This word does not support the conclusion that the complainant's annual leave is included in salary: at most we can conclude that the pay will be considered salary in the hands of the worker. Accordingly, a distinction must be made, since the salary was subsequently deemed.

In the absence of any express indication in the contract, interpretation of the statutory provisions indicates that the plaintiff is entitled to the vacation pay she is claiming.

Analysis

[12]      The arbitrator's decision is protected by a privative clause in s. 251.12(6) and (7) of the Canada Labour Code. That privative clause is a full clause in the sense given to it by the Supreme Court of Canada in Ivanhoe Inc. v. United Food and Commercial Workers, Local 500, [2001] 2 S.C.R. 565.

[13]      The Supreme Court of Canada indicated that the presence of such a clause should prompt courts to treat administrative decisions with deference. It listed the other factors to be considered: the expertise of the administrative tribunal, the purpose of the enabling legislation and the specific provisions in question, as well as the factual or legal nature of the problem involved. The Supreme Court of Canada came to the conclusion that the standard to be applied in Ivanhoe Inc., supra, was that of patent unreasonableness, that is, the highest degree of judicial restraint.

[14]      I have come to the same conclusion in the case at bar.

[15]      In Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, [1998] 1 S.C.R. 1079, Cory J. and McLaughlin J. (as she then was) gave several examples of decisions that might be regarded as patently unreasonable. One example was taken from Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation, District 15, [1997] 1 S.C.R. 487, as follows:

48 . . . in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference . . . it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal's findings.

[16]      That is precisely what the Conseil complains the arbitrator did. The Conseil maintained that the arbitrator completely ignored the uncontradicted evidence which it submitted through the testimony of Réjean Lavoie, school principal, that teachers' vacation was always included in the annual remuneration.

[17]      In other words, on the evidence, in each installment which she received (26 equal installments) she received part of her vacation pay, a conclusion approved by Deschênes C.J. of the Quebec Superior Court in a test case, Arcand v. La Commission scolaire régionale des Vielles Forges, [1974] R.D.T. 89, in comparable circumstances, the same evidence in the record and similar legislation.

[18]      A review of the record supports the arguments by the Conseil and requires the order issued. The arbitrator did not in fact consider the evidence that the defendant had received the pay to which she was entitled.

Ottawa, Ontario

June 11, 2002

Certified true translation

Suzanne M. Gauthier, C. Tr., LL.L.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                                                          SOLICITORS OF RECORD

FILE:                                                                               T-928-01

STYLE OF CAUSE:                                                     CONSEIL DE LA NATION INNU MATIMEKOSH LAC JOHN v. LINDA RACINE

PLACE OF HEARING:                                                Sept-Îles, Quebec

DATE OF HEARING:                                                  May 30, 2002

REASONS FOR ORDER:                                           Lemieux J.

DATE OF REASONS:                                                  June 11, 2002

APPEARANCES:

Josée Rondeau                                                                  FOR THE PLAINTIFF

SOLICITORS OF RECORD:

Josée Rondeau                                                                  FOR THE PLAINTIFF