Little Leaf v. Peigan Board of Education, 2002 FCT 1300

Date: 20021216

Docket: T-1612-01

Neutral citation: 2002 FCT 1300

IN THE MATTER OF A DECISION OF GEOFFREY ENGLAND, ADJUDICATOR APPOINTED PURSUANT TO DIVISION XIV, PART III, SECTION 242 OF THE CANADA LABOUR CODE, R.S.C. 1985, c. L-2,

DATED AUGUST 8, 2001

BETWEEN:

                                                            CONRAD LITTLE LEAF

                                                                                                                                                       Applicant

                                                                                 and

                                              THE PEIGAN BOARD OF EDUCATION

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons arise out of an application by Conrad Little Leaf (the "applicant") for judicial review of a decision of Professor Geoffrey England (the "adjudicator"), appointed pursuant to Division XIV, Part III, section 242 of the Canada Labour Code^[1] (the "Code") wherein the adjudicator determined that he did not have jurisdiction to consider the merits of the applicant's complaint of unjust dismissal against the Peigan Board of Education (the "respondent"). The decision under review is dated the 8^th of August, 2001.

[2]                 The applicant seeks the following relief:

            - first, an Order in the nature of certiorari quashing the decision of the adjudicator dated the 8^th of August, 2001;

            - secondly, an Order referring the applicant's complaint of unjust dismissal back to the adjudicator;

            - thirdly, an Order in the nature of mandamus directing the adjudicator to accept jurisdiction and to make a determination on the merits of the applicant's complaint;

            - fourthly, costs of his application to this Court; and

            - lastly, such further and other relief as this Court deems just.

[3]                 The respondent urges that the decision under review "remain undisturbed" and seeks costs of the application to this Court.

BACKGROUND

[4]                 The broad outlines of the background leading to the applicant's complaint that he was unjustly dismissed effective on or about the 30^th of June, 2000, as determined by the adjudicator, were essentially not in dispute before the Court.

[5]                 At all relevant times, the respondent operated a primary school and a secondary school in or near Brockett, Alberta. In or about 1991, the applicant commenced employment with the respondent as a teacher at its secondary school under a written indefinite term employment agreement. It was a term of the applicant's employment that he, along with other teachers, each of whom was under a similar indefinite term employment agreement, would work for somewhat more than ten (10) months of the year but would not work for the greater part of July and August of each year. Nonetheless, the applicant's salary, like the salaries of other teachers, was paid in twelve (12) monthly installments. It was a further term of the applicant's employment agreement, once again as with other teachers, that neither party could terminate the employment agreement without providing the other party with reasonable notice of termination or reasonable pay in lieu of notice. In the result, the applicant, once again as with other teachers, expected to resume his employment in late August or September of each year.

[6]                 In or about August 1997, the applicant assumed the principalship of the respondent's secondary school at Brockett, Alberta. No new contract of employment was entered into between the applicant and the respondent, although certain terms of the existing contract were modified.

[7]                 On or about the 29^th of April, 1999, the Director of Education for the respondent and the chairperson of the respondent wrote to the applicant advising him that, due to financial constraints and low enrollment in each of the respondent's elementary and secondary schools, the respondent had determined to restructure and to have only one principal responsible for both schools. The respondent advised the applicant that, as a result of this decision, he would be removed from his position as principal, effective the 30^th of June, 1999. The position of principal for the two schools was offered to another person. The applicant was offered a position as a teacher, on a contract basis, for a period of two years. The offer of a teaching position was conditional on the applicant signing a term contract equivalent to contracts offered to other teachers in replacement of their existing indefinite term contracts.

[8]                 On the 22^nd of June, 1999, the respondent again wrote the applicant, confirming its position as set out in its letter of the 29^th of April, 1999 and further offering the applicant an amount equal to one half of a principal's allowance in lieu of notice of termination of his employment as principal. The respondent's letter advised the applicant that its offer of teaching employment and of an allowance in lieu of notice was open for acceptance to the 25^th of June, 1999. The applicant responded by a letter dated the 25^th of June, 1999 indicating that he declined to sign a fixed term teaching contract. He offered to resign his position in exchange for a payment equal to one year's salary. The respondent did not reply to the applicant's letter of the 25^th of June, 1999.

[9]                 In early July, 1999, following a determination that the respondent's preferred candidate for the principalship for the academic year 1999-2000 would not accept the position, the respondent reversed its position and offered the principalship of the high school and primary school combined to the applicant, on a new contract basis, for a term of one year. The applicant accepted the principalship but made his acceptance conditional on his new position being for an indefinite term. On or about the 7^th of July, 1999, the respondent wrote to the applicant confirming the verbal offer of the combined principalship. The substance of the letter read in part as follows:

The Peigan Board of Education is pleased to offer you the position of Principal for the 1999/2000 school year based on the following:

                 1.             Term of Contract - One Year - August 25^th, 1999 to June 30^th, 2000.

                 ...

                 5.             Indeterminate status no longer is applicable.

                 6.             Offer subject to signing of formal contract and the board approving your contract August 3^rd , 1999.

                 ...

If you agree to these terms and conditions, please let me know in writing by Wednesday, July 14^th, 1999 at 4:00 P.M. No formal written response will nullify this offer and make it void.^[2]

[10]            Shortly thereafter, the applicant and the respondent's representative discussed the respondent's letter of the 7^th of July, 1999. On the basis of that discussion, the respondent's representative understood that the applicant had accepted the position of principal for the 1999-2000 school year. That notwithstanding, the applicant did not provide the respondent with a written acceptance of the offer. He did, however, advise the respondent's representative that he would report for work and perform the duties of principal but only on the basis that such employment would be for an indefinite term. Shortly following that advice to the respondent, the respondent presented the applicant with a formal employment contract for a one (1) year term and requested that the applicant sign the contract. The applicant refused to sign the contract insisting, once again, that he would only accept the offer if it was for an indefinite term.

[11]            In response, the respondent's representative wrote to the applicant on the 26^th of July, 1999 in the following terms:

The Board hereby provides you with notice that your employment with the Peigan Board of Education will be terminated effective June 30, 2000. Until that time you are expected to fulfill your duties as principal. As you are aware, the Board is restructuring such that there will be on [sic] only one principal for the two schools and your position will be principal of both schools. It is not expected that this will increase your workload and if for any reason you feel that this is increasing workload and you require some assistance, please contact me so that we may discuss same.^[3]

[12]            The respondent assumed his principalship duties in or about early September, 1999. During the time when he performed such duties, the applicant consistently refused to sign the formal one (1) year contract presented to him and all discussions between the applicant and the respondent's representative with respect to the duration of the applicant's employment contract were concluded without any agreement being reached. In fact, the respondent's representative apparently ended each discussion as it related to term of contract with an expression such as "...we'll settle that later".

[13]            On or about the 10^th of March, 2000, the respondent's representative once again wrote to the applicant, reaffirming that the applicant's position as principal would terminate on the 30^th of June, 2000 and advising that thereafter it would be at the discretion of the respondent whether or not the applicant would be offered another position. The respondent's position regarding the applicant's principalship was confirmed again in writing on the 12^th of April, 2000. In that letter, the respondent advised the applicant that, as things then stood, he would not again be offered a position with the respondent on the termination of his employment as principal on the 30^th of June, 2000. No response to that notification was provided in writing by the applicant. That being said, the applicant did verbally advise the respondent, whenever possible, that he continued to be unwilling to be employed by the respondent other than on an indefinite term basis.

[14]            The 30^th of June, 2000, came and went. On the 13^th of July, 2000, the applicant filed his complaint under Part III of the Code alleging unjust dismissal from his employment with the respondent. It is that complaint that gave rise to the decision here under review.

THE DECISION UNDER REVIEW

[15]            The adjudicator met with counsel for the applicant and the respondent on two (2) occasions. During the course of the first meeting, the adjudicator made it clear to the representatives of the parties that he was concerned about his jurisdiction in relation to the complaint. In his reasons wherein he concluded that he lacked jurisdiction to hear the complaint, the adjudicator wrote:

The critical threshold issue to [counsel for the respondent's] jurisdictional objection is whether Delorme's [the respondent's representative's] letters of April 29, 1999... and June 22, 1999... resulted in the termination of Little Leaf's pre-existing indefinite term employment contract.^[4]                                                                                                                                                                                                  [citations omitted]

[16]            Later in a long paragraph commenced by the foregoing sentence, the adjudicator wrote:

The courts have held that in order to be effective, a notice of termination must clearly and unequivocally communicate to the employee that his or her contract will end on a certain date. See, for example, Kalaman v. Singer Valve Co. (1996), 19 CCEL (2d) 102, at p. 106 (BCSC,) revsd in part (1997), 31 CCEL (2d) 1 (BCCA), but not on this point; ... . Furthermore, the courts take an objective approach and ask whether a reasonable person in the position of the employee would interpret the words used, in the context, as meaning that his or her contract is being brought to an end. ... . David Harris' textbook, "Wrongful Dismissal", puts it this way: "Dismissal is a matter of substance, no form. It is effective when it leaves no reasonable doubt in the mind of the employee that his or her employment has already come to an end or will on a set date." ... ^[5]                                                                                                                                                                                                                [some citations omitted]

[17]            Later in his reasons, the adjudicator continued:

To reemphasize, the employer here was not simply changing one or two terms of an ongoing employment contract, unlike in the classic constructive dismissal authorities cited by [counsel for the applicant]; rather, the employer was eliminating the entire contract - in effect dismissing its workers - and offering them re-engagement under an entirely new agreement. It is trite law that an employee, when given a notice to terminate his or her contract, cannot unilaterally waive such a notice and treat the old contract as continuing. See, for example, the remarks of Lord Denning to this effect in Hill v. C.A. Parsons and Co.,[1972] Ch. 305, at p. 314 (C.A.).^[6]                                                                                 [emphasis in the original]

[18]            The adjudicator then concluded that the applicant's original employment contract of indefinite term was terminated effective the 30^th of June, 1999. On the basis of that conclusion, in his reasons, he posed the question of what sort of employment contract, if any, replaced the contract of employment that ended on the 30^th of June, 1999. He suggested three (3) possibilities: first, the terminated contract could have been replaced by a new contract for a fixed term of one (1) year, expiring on the 30^th of June, 2000; secondly, he hypothesized that the applicant could have been employed under a new indefinite term contract, terminable only by reasonable notice; and finally, he hypothesized that the applicant could have continued in employment as principal for the 1999-2000 school year with no contract of employment at all.

[19]            The adjudicator concluded in the following terms:

I conclude that I do not have jurisdiction to hear the complaint [of unjust dismissal] effective the 30^th of June, 2000] for the following reasons. First, [the applicant's] original contract of employment of indefinite term came to an end on June 30, 1999 and did not continue beyond that date. ([The applicant] could have complained of unjust dismissal under section 240, or could have commenced a common law action for wrongful dismissal at that time, but he did not). [The applicant's] complaint of unjust dismissal was filed with the CHRD on July 13, 2000 and relates to his alleged unjust dismissal on June 30, 2000. Secondly, [the applicant] did not have the requisite "twelve consecutive months of continuous employment" under section 240(1)(b) at the date of his termination on June 30, 2000. He was not employed under an employment contract of any kind during the 1999-2000 year and the concept of "employment" under Part III of the Canada Labour Code necessitates that work be performed under a contract of employment. Any unpaid wages and benefits owing to [the applicant] arising from his work during the 1999-2000 school year would presumably have to be recovered by him by way of a quantum meruit claim, but that issue is not relevant in this adjudication.^[7]                                                                                                                                                        [emphasis in the original]

The adjudicator's conclusion that the applicant was not employed under any contract of employment during the 1999-2000 school year was based on a finding that the applicant and respondent were never ad idem as to the substance of a contract for that school year.

THE STATUTORY SCHEME

[20]            The critical provisions of the Code here in issue are those found in Part III of the Code, Division XIV, which concern unjust dismissal. They are reproduced in a Schedule to these reasons.

THE ISSUES

[21]            In his Memorandum of Fact and Law, the applicant identifies four (4) points in issue on this application for judicial review. They are the following: first, the appropriate standard of review; secondly, whether the adjudicator erred by failing to consider critical evidence; third, whether the applicant's indeterminate employment contract was in fact terminated effective the 30^th of June, 1999, taking into account that a notice of termination must be clear and unequivocal and that the applicant might be entitled to elect to treat the contract as continuing past that date; and finally, if the applicant's contract of employment was not terminated on the 30^th of June, 1999, the nature of that contract as of the 30^th of June, 2000.

ANALYSIS

            a)         Standard of Review

[22]            The appropriate standard of review was essentially not in dispute before me.

[23]            Justice Décary addressed the issue of standard of review of a decision of an adjudicator regarding his or her jurisdiction under Part III of the Code, Division XIV in Canada Post Corp. v. Pollard^[8]. At page 667, under the heading "The jurisdiction of the adjudicator", Justice Décary, for the Court, wrote:

What is at issue, in the case at bar, is not whether the subject-matter of the complaint, i.e. the unjust dismissal, can be considered by the Adjudicator, but whether the complainant is a person allowed to file the complaint. At first blush it would seem that a provision defining what person can make a complaint is a provision with respect to which the legislator does not normally wish to have the tribunal make any error. It is fair to assume that Parliament, absent express or implicit indication to the contrary, will not intend an adjudicator to embark erroneously on an inquiry with respect to a person who should not be subjected to it or to refuse erroneously to embark on an inquiry with respect to a person to whom the legislator intends to give that very remedy.   

[24]            Following a rather extensive analysis of the issue of standard of review, Justice Décary concluded at page 673 that the appropriate test or standard for judicial review in the case there before the Court was that of correctness. I am satisfied that precisely the same might be said on the facts of this matter, and neither counsel urged to the contrary.

            b)         Failure to consider critical evidence

[25]            In Atwal v. Canada (Secretary of State)^[9], I wrote at paragraph [10]:

It is trite to say that a Tribunal is not obliged to refer in its reasons for decision to all of the evidence that was before it. That fact that a Tribunal fails do so does not, in ordinary circumstances give rise to a conclusion that the Tribunal has failed to take into account all of the evidence that is before it. But I conclude that that principle does not apply to a failure to make reference to a case-specific document that is evidence directly relevant to the central issue addressed in the Tribunal's decision.

The Federal Court of Appeal reached an equivalent conclusion, albeit with respect to expert evidence, in Canadian National Railway Co. (CNR) v. Niles^[10]. Counsel for the applicant urged that the same principle should be applied in respect of oral evidence and that here the adjudicator made no mention of the applicant's testimony to the effect that he worked past the 30^th of June, 1999 into the early days of July of that year, that when he ceased employment in July of that year, he left certain of his personal effects at the school, that he continued to receive pay cheques in July and August of 1999, and that he received no notice of termination effective the 30^th of June, 1999. Counsel urged that all of this evidence was critical evidence going to the issue of whether the applicant's indeterminate employment contract was terminated effective the 30^th of June, 1999, as the adjudicator found. In the result, counsel urged, the adjudicator reached his decision regarding jurisdiction without analysing critical evidence before him on that issue and thus, against a standard of correctness, erred in a reviewable manner.

[26]            I reject this argument. The determination by the adjudicator that went to the issue of his jurisdiction was that the applicant's indeterminate employment contract with the respondent, effective sometime in 1991, was terminated effective the 30^th of June, 1999. That was not to say that the respondent was not anxious to continue the employment of the applicant for the 1999-2000 school year, on different terms and conditions, and that the applicant was not anxious to remain in employment with the respondent for the 1999-2000 school year, albeit on a continuing indeterminate basis. The reality was that both the applicant and the respondent looked forward to the applicant continuing in employment with the respondent following the summer break of 1999 and it was therefore not unreasonable that the applicant reported for work in the early days of July of 1999 to clean up loose ends from the just completed school year and to make early preparations for the next school year. Once again equally, given the wishes of both parties, it was not surprising that the applicant left certain effects at the school and that the respondent did not object to his leaving those effects at the school. Equally, it was not surprising that the applicant received monthly installments of his salary for the school year 1998-1999 in July and August of 1999 and that he received no notice of termination effective the 30^th of June, 1999.

[27]            I conclude that the failure of the adjudicator to specifically mention the elements of the applicant's testimony in question should not be found fatal to the adjudicator's determination that the applicant's indeterminate employment contract terminated the 30^th of June, 1999. The evidence in question was simply not critical to that determination.

            c)         The nature of the notice of termination effective the 30^th of June, 1999 and the applicant's entitlement to elect to treat his contract as continuing.

[28]            In Kalaman v. Singer Valve Co.^[11], Justice Macfarlane wrote for the majority at paragraph [38] of the reasons:

Counsel agree that, to be valid and effective, a notice of termination must be clearly communicated to the employee. A notice must be specific and unequivocal such that a reasonable person will be led to the clear understanding that his or her employment is at an end as of some date certain in the future. Whether a purported notice is specific and unequivocal is a matter to be determined on an objective basis in all the circumstances of each case. ...

[29]            On the facts of this matter, the notice of termination of the applicant's indeterminate employment contract, effective the 30^th of June, 1999, was contained in two (2) letters. The first was dated the 29^th of April, 1999 and was addressed to the applicant by the respondent. The substance of that letter read as follows:

The Board has decided to restructure the administration provisions within the two schools. It has been determined that there will only be one Principal which will be responsible for both schools. As a result the Board has no alternative other than to remove you as Principal effective June 30, 1999. Thereafter your position will [be] that of a teacher with a salary of $- . You will be required to sign a two year contract of similar form to all other staff members. ^[12]

The second letter was dated the 22^nd of June, 1999. The substance of that letter read as follows:

The Peigan Board of Education have instructed me to inform you of the following:

                 1.             Due to our deficit and low student numbers, the Board will employ one principal for the 1999/2000 school year.

                 2.             The Board offered you a two year teaching contract effective September 1, 1999. The Board re-affirms this offer as presented.

                 3.             In lieu of notice, the Board is prepared to offer you half of a principal's allowance, Approximately $---- as a form of compensation .

As a condition of this offer, the Board requests your response in writing by 12:00 noon, Friday, June 25^th, 1999. Failure to respond by this date and time will nullify this offer.^[13]

The adjudicator determined these letters to constitute specific and unequivocal notification of termination of the applicant's indeterminate term contract, effective the 30^th of June, 1999. I am satisfied that he was correct in this determination.

[30]            At page 8 of his reasons for decision^[14], the adjudicator cited Hill v. C.A. Parsons and Co.,^[15] at page 314 for the proposition, in the words of the adjudicator, that:

It is trite law that an employee when given a notice to terminate his or her contract, cannot unilaterally waive such a notice and treat the old contract as continuing.

Counsel for the applicant urged that Hill and Parsons simply does not stand for the proposition cited by the adjudicator. While, counsel submitted, it is beyond question that there are circumstances in which an employee can unilaterally waive a notice of termination and treat his or her contract of employment as continuing, since the notices of termination above cited, were, once again in the submission of counsel, unclear and equivocal, the applicant was, on the facts of this matter, entitled to unilaterally treat his indeterminate contract of employment as continuing. In light of my conclusion that the adjudicator was correct in concluding that the notices of termination were clear and unequivocal, the option in favour of the applicant that counsel relies on simply does not arise and the proposition for which the adjudicator cited Hill and Parsons was perfectly correct as a general proposition and on the facts of this matter.

            d)         If the applicant's contract was not terminated on the 30^th of June, 1999, what was the nature of that contract on the 30^th of June, 2000?

[31]            In light of my conclusions to this point in my analysis, this question simply does not arise.

CONCLUSION

[32]            Based on the foregoing brief analysis, against a standard of review of correctness, I conclude that the adjudicator made no reviewable error raised in the material and argument before me in arriving at the conclusion that he did. In the result, this application for judicial review will be dismissed.

COSTS

[33]            Counsel for both parties sought costs and, before me, agreed that costs should follow the event and that no circumstances exist that would warrant an order of costs other than on the ordinary scale. In the result, I will order that the respondent is entitled to its costs as against the applicant, assessed in accordance with column III of the table to Tariff B to the Federal Court Rules, 1998. Such an assessment will, of course, only be required if the parties are unable to agree on an appropriate amount in respect of costs.

_______________________________

      J. F.C.C.

Ottawa, Ontario

December 16, 2002

                                               SCHEDULE

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.

(2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.

3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.

241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.

(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.

(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),

(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and

(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.

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.

(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.

240(3) Prorogation du délai

(3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l'intéressé a déposé sa plainte à temps mais auprès d'un fonctionnaire qu'il croyait, à tort, habilité à la recevoir.

241. (1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l'employeur de lui faire connaître les motifs du congédiement; le cas échéant, l'employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande.

(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.

3) Si la conciliation n'aboutit pas dans un délai qu'il estime raisonnable en l'occurrence, l'inspecteur, sur demande écrite du plaignant à l'effet de saisir un arbitre du cas_:

a) fait rapport au ministre de l'échec de son intervention;

b) transmet au ministre la plainte, l'éventuelle déclaration de l'employeur sur les motifs du congédiement et tous autres déclarations ou documents relatifs à la plainte.

242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).

(2) An adjudicator to whom a complaint has been referred under subsection (1)

(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;

(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and

(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).

(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall

(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where

(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or

(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.

(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.

242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement.

(2) Pour l'examen du cas dont il est saisi, l'arbitre_:

a) dispose du délai fixé par règlement du gouverneur en conseil;

b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;

c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).

(3) Sous réserve du paragraphe (3.1), l'arbitre_:

a) décide si le congédiement était injuste;

b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre.

(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants_:

a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;

b) la présente loi ou une autre loi fédérale prévoit un autre recours.

(4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur_:

a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;

b) de réintégrer le plaignant dans son emploi;

c) de prendre toute autre mesure qu'il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier.

243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court..

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.

244. (1) Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.

(2) On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.

245. The Governor in Council may make regulations for the purposes of this Division defining the absences from employment that shall be deemed not to have interrupted continuity of employment.

246. (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.

246(2) Application of section 189

(2) Section 189 applies for the purposes of this Division.

243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.

(2) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.

244. (1) La personne intéressée par l'ordonnance d'un arbitre visée au paragraphe 242(4), ou le ministre, sur demande de celle-ci, peut, après l'expiration d'un délai de quatorze jours suivant la date de l'ordonnance ou la date d'exécution qui y est fixée, si celle-ci est postérieure, déposer à la Cour fédérale une copie du dispositif de l'ordonnance.

(2) Dès le dépôt de l'ordonnance de l'arbitre, la Cour fédérale procède à l'enregistrement de celle-ci; l'enregistrement confère à l'ordonnance valeur de jugement de ce tribunal et, dès lors, toutes les procédures d'exécution applicables à un tel jugement peuvent être engagées à son égard.

245. Le gouverneur en conseil peut, par règlement, préciser, pour l'application de la présente section, les cas d'absence qui n'ont pas pour effet d'interrompre le service chez l'employeur.

246. (1) Les articles 240 à 245 n'ont pas pour effet de suspendre ou de modifier le recours civil que l'employé peut exercer contre son employeur.

246(2) Application de l'art. 189

(2) L'article 189 s'applique dans le cadre de la présente section.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 T-1612-01

STYLE OF CAUSE: Conrad Little Leaf v. The Peigan Board of Education

PLACE OF HEARING:         Calgary, Alberta

DATE OF HEARING:           December 5, 2002

REASONS FOR ORDER : GIBSON J.

DATED:                                    December 16, 2002

APPEARANCES:

Ms. Lee D. Mayzes,                                            FOR THE APPLICANT

Calgary, Alberta

(403)-260-8529                                                

Mr. David T. Madsen

Ms. Isha Khan                                        FOR THE DEFENDANT

Calgary, Alberta

(403)232-9612