Téléglobe Canada Inc. v. Larouche, docket T-1620-98

                                         Date: 19990618

                                         Docket: T-1620-98

MONTRÉAL, QUEBEC, THE 18th DAY OF JUNE 1999

PRESENT:      THE HONOURABLE MR. JUSTICE DENAULT

     IN THE MATTER OF the Canada Labour Code,

     R.S.C., 1985, c. L-2, and a complaint of

     unjust dismissal made pursuant to

     section 240 thereof

BETWEEN:      TELEGLOBE CANADA INC.

     Applicant

     AND

     VIATEUR LAROUCHE

     -and-

     JOANNE FOX

     Respondents

     ORDER

THE COURT:

-      ALLOWS the applicant"s application for judicial review of that part of adjudicator Viateur Larouche"s decision of July 10, 1998, in which he ordered the applicant to pay the respondent the equivalent of eight months" notice plus benefits described therein;

-      DECLARES void, quashes and reverses that part of the decision, including the part in which "[TRANSLATION] the Tribunal reserves its jurisdiction over the quantum of this matter if necessary";

-      WITHOUT COSTS.

     Pierre Denault

                                              Judge

Certified true translation

Peter Douglas

Date: 19990618

Docket: T-1620-98

     IN THE MATTER OF the Canada Labour Code,

     R.S.C., 1985, c. L-2, and a complaint of

     unjust dismissal made pursuant to

     section 240 thereof

BETWEEN:      TELEGLOBE CANADA INC.

     Applicant

     AND

     VIATEUR LAROUCHE

     -and-

     JOANNE FOX

     Respondents

     REASONS FOR ORDER

DENAULT J.

[1]      This is an application for judicial review of a decision of July 10, 1998, by an adjudicator appointed under sections 242 et seq. of the Canada Labour Code,¹ who dismissed Joanne Fox"s complaint of unjust dismissal and ordered Teleglobe Canada Inc. to pay Ms. Fox eight months" wages in lieu of notice plus benefits owed to her.

[2]      The issue is very straightforward: whether the adjudicator"after holding that the complaint of unjust dismissal should be dismissed"had jurisdiction to order compensation.

[3]      The applicant argues that the adjudicator"s decision clearly dismissed the respondent"s complaint of unjust dismissal and referred to the unanimous case law recognizing that an adjudicator has no jurisdiction to grant any relief after holding that a complaint of unjust dismissal should be dismissed.

[4]      The respondent argues that the adjudicator"s decision is an indivisible whole and must be viewed in its entirety in the context of fair and reasonable treatment. If the Court were to find that the adjudicator had erred in the exercise of his jurisdiction, the respondent suggests that the matter should be referred back to him for him to exercise it again.

[5]      It is important to note that the respondent has not sought judicial review of the adjudicator"s main finding that under the circumstances, the dismissal was just. The employer"s application for judicial review concerns only that part of the decision that grants eight months" compensation and related benefits. Thus the Court cannot, as the respondent claimed, refer the matter back to the adjudicator for rehearing if it finds that he exceeded his jurisdiction.

[6]      In the case at bar, the adjudicator clearly exceeded his jurisdiction by ordering payment of compensation to the respondent after holding that the complaint of unjust dismissal should be dismissed. Once he held that the respondent"s dismissal was not unjust, the adjudicator became functus officio and had no jurisdiction to issue a compensation order.²

[7]      The adjudicator"s jurisdiction comes from subsection 242(3) of the Canada Labour Code , which authorizes him to decide whether the dismissal was unjust. Only after holding that the dismissal was unjust can he use his powers under subsection 242(4) of the Code, namely pay the person compensation, reinstate the person in his employ, or do any other like thing that is equitable. In the case at bar, after holding that the dismissal was not unjust, he could not act on the authority of article 2091 of the Civil Code to grant the defendant compensation, without exceeding his jurisdiction in the process.

[8]      For these reasons, the application for judicial review is allowed, without costs.

     Pierre Denault

                                             Judge

MONTRÉAL, QUEBEC

June 18, 1999

Certified true translation

Peter Douglas

     FEDERAL COURT OF CANADA

     TRIAL DIVISION

     NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT FILE NO.:              T-1620-98

STYLE OF CAUSE:              IN THE MATTER OF the Canada Labour

                         Code, R.S.C., 1985, c. L-2, and a

                         complaint of unjust dismissal made

                         pursuant to section 240 thereof

                         TELEGLOBE CANADA INC.

     Applicant

                         AND

                         VIATEUR LAROUCHE

                         -and-

                         JOANNE FOX

     Respondents

PLACE OF HEARING:              Montréal, Quebec

DATE OF HEARING:              June 18, 1999

REASONS FOR ORDER BY DENAULT J.

DATED:                      June 18, 1999

APPEARANCES:

Louis Bernier/                  for the applicant

Anne-Julie Perreault

Joanne Fox                      respondent

SOLICITOR OF RECORD:

Martineau Walker                  for the applicant

Montréal, Quebec

FEDERAL COURT"TRIAL DIVISION

Date: 19990618

Docket: T-1620-98

IN THE MATTER OF the Canada Labour Code,

R.S.C., 1985, c. L-2, and a complaint of

unjust dismissal made pursuant to

section 240 thereof

BETWEEN:      TELEGLOBE CANADA INC.

Applicant

AND

VIATEUR LAROUCHE

-and-

JOANNE FOX

Respondents

REASONS FOR ORDER

__________________

¹      R.S.C., 1985, c. L-2.

²      Royal Bank of Canada v. Procaccini (1987), 24 Admin. L.R. 319; Thorsen v. Silk FM Broadcasting Ltd. (1991), 139 N.R. 72; Transport Georges Léger Inc. v. Goupil (1993) 72 F.T.R. 152; Aziz v. Telesat Canada (1995), 104 F.T.R. 267.