Date: 20120516
Docket: T-1443-11
Citation: 2012 FC 597
Winnipeg, Manitoba, May 16, 2012
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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KENNETH B. YOUNG
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Applicant
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and
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THE ASSEMBLY OF FIRST NATIONS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Kenneth Young worked
for the Assembly of First Nations (AFN) on a series of fixed-term contracts
beginning in 2003. On August 17, 2009, he was advised that his employment with
the AFN would end on September 25, 2009. Mr. Young subsequently filed a
complaint of unjust dismissal against the AFN pursuant to section 240 of the Canada
Labour Code, R.S., 1985 c. L-2.
[2]
The Canada Labour
Code adjudication process is not available to employees who lose their
employment as a result of the expiry of the term of their contract of
employment: see Eskasoni School Board/Eskasoni Band Council v. MacIsaac,
(1986), 86 CLLC 12247, 69 N.R. 315 (F.C.A.); Stirbys v. Assembly of First
Nations, 2011 FC 42, [2011] F.C.J. No. 66 (QL) at para. 2.
[3]
The AFN raised a
preliminary objection before the adjudicator appointed to hear Mr. Young’s
complaint, asserting that he had been employed under a fixed-term contract that
had come to an end and had not been renewed. The AFN submitted that, as a
result, Mr. Young was not entitled to recourse under the unjust dismissal
provisions of the Code.
[4]
The adjudicator determined that he
had no jurisdiction over the complaint because Mr. Young was not a permanent
employee at the time of the termination of his employment. As a result, he
dismissed Mr. Young’s complaint of unjust dismissal.
[5]
As will be
explained below, I have concluded that the adjudicator’s decision was
unreasonable. As a result, the application for judicial review will be granted.
Background
[6]
Mr. Young is a lawyer who worked as a
Special Advisor to the Grand Chief of the AFN under a series of one-year term
contracts. He was deeply involved in the Indian residential schools class
action settlement reached in September of 2007, and in the processing of claims
under the settlement agreement. The
adjudicator found
that in his years with the AFN, Mr. Young made a “stellar” contribution to the
residential schools file.
[7]
In the
summer of 2009, Phil Fontaine, the Grand Chief of the AFN, announced that he
would not be seeking re-election. On June 29, 2009, the Chief Executive Officer
of the AFN advised Mr. Young that the AFN would not renew his employment
contract and that his employment would terminate on July 31, 2009.
[8]
Some AFN
members wanted to see Mr. Young continue working on the residential schools
file after Mr. Fontaine’s retirement. To this end, members of the AFN’s Board
of Directors attempted to secure continued employment for Mr. Young within the
organization. However, their attempts met with resistance from other Directors
and employees, and an initial conference call with the Board in early July of
2009 did not resolve Mr. Young’s status.
[9]
The issue
of Mr. Young’s employment status was raised again at a meeting of the Executive
Committee of the AFN’s Board of Directors
on July 19, 2009. There is a dispute as to what was decided at that meeting as
the meeting was held in camera, and there are no minutes or documentary
records with respect to either the meeting or the resulting resolution.
[10]
Mr. Young
took the position before the adjudicator that he had been appointed by the
Board to a “permanent” or indeterminate position within the AFN’s Secretariat.
The AFN denied that this appointment had occurred. According to the AFN, the
Executive Committee had merely resolved to extend Mr. Young’s employment
contract, and that there was no evidence as to the length of that extension.
[11]
After the
July 19, 2009 meeting, Mr. Young’s contract was extended twice for one-month
periods. By letter dated August 19, 2009, Mr. Young was informed that his
contract would not be extended beyond September 25, 2009, the last day of his
second extension. The AFN offered Mr. Young payment of 6.1 weeks of salary,
which he refused to accept. He was also advised that the AFN would be creating
a permanent, full-time position of ‘Manager, Indian Residential School Unit’,
and he was invited to apply for that position. He declined to do so.
[12]
On October
13, 2009, Mr. Young filed his complaint of unjust dismissal under subsection
240(1) of the Canada Labour Code and an adjudicator was subsequently
appointed to hear the case.
[13]
As was
noted earlier, the AFN challenged the jurisdiction of the adjudicator, on the
basis that Mr. Young had been
employed under a fixed-term contract that had come to an end and had not been
renewed. The AFN submitted that, as a result, Mr. Young was not entitled to
recourse under the unjust dismissal provisions of the Code.
[14]
A hearing
was held over several days between November 2009 and June 2010. Mr. Young
called three members of the AFN’s Board of Directors to testify with respect to
his employment status. The AFN conceded before the adjudicator that should its
preliminary objection fail, it would not be able establish that it had just
cause for Mr. Young’s dismissal.
The
Adjudicator’s Decision
[15]
Mr. Young failed to
persuade the adjudicator that he was an indeterminate employee at the time of
his dismissal. The adjudicator explained why he found Mr. Young’s witnesses to
lack credibility. In particular, the adjudicator described how the witnesses’ viva
voce testimony as to what had transpired at the Executive Committee meeting
did not accord with e-mails exchanged in the weeks following the meeting. The
adjudicator made particular reference to a July 30, 2009 memorandum prepared by
the CEO of the AFN, confirming the extension of Mr. Young’s contract until
March 31, 2010.
[16]
The adjudicator also
observed that the process that the Executive Committee allegedly followed in
relation to Mr. Young was inconsistent with the AFN’s hiring practices, which
were subject to budget constraints and involved rules providing for fairness
and transparency. As a consequence, the adjudicator concluded that he had “not
been satisfied with clear and persuasive evidence that Mr. Young, at any time
prior to his termination, was made a permanent employee”: adjudicator’s reasons
at 12.
[17]
The adjudicator was,
however, satisfied that the Executive Committee had resolved to extend the term
of Mr. Young’s employment contract to March 31, 2010.
[18]
Having found that Mr.
Young was always a term employee employed under successive contracts, the
adjudicator then went on to conclude that he therefore had “no jurisdiction to
inquire into the justness of the employer’s decision to sever the employment
relationship”: adjudicator’s reasons at 13.
[19]
Despite this finding,
the adjudicator “urge[d] the AFN to … pay Mr. Young compensation from the
period between September 25, 2009 and March 31, 2010” because of the failure of
an official within the AFN to implement the Executive Committee’s decision to
extend Mr. Young’s term: adjudicator’s reasons at 12. I am advised that this
amount has not yet been paid.
The Issue
[20]
The issue for
determination is whether, having concluded that Mr. Young’s employment contract
had been extended to March 31, 2010 by the Executive Committee of the AFN’s
Board of Directors, the adjudicator erred in finding that he had no
jurisdiction to inquire into the justness of the employer’s decision to sever
the employment relationship.
Standard of Review
[21]
Mr. Young submits
that the adjudicator erred in relation to a question going to his own
jurisdiction with the result that the decision should be reviewed on the
correctness standard. In contrast, the AFN argues that the matter turns on the
application of the law to the particular facts of this case and that the
reasonableness standard should thus apply.
[22]
The adjudicator was
faced with a threshold question of whether Mr. Young was “dismissed” within the
meaning of section 240 of the Canada Labour Code or whether his
fixed-term contract had merely expired. This is a question of mixed fact and
law reviewable on the reasonableness standard: Delisle v. Mohawk Council of
Kanesatake, 2007 FC 35, 306 F.T.R. 285 at paras. 25, 27.
[23]
In applying the
reasonableness standard, the Court must consider the justification,
transparency and intelligibility of the decision-making process, and whether
the decision falls within a range of possible acceptable outcomes which are
defensible in light of the facts and the law: see Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
para. 47, and Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at
para. 59.
Analysis
[24]
After
reviewing all of the evidence before him, the adjudicator found that the
Executive Committee had not made Mr. Young an indeterminate employee of the
AFN. However, the adjudicator found as a fact that the Executive Committee had
resolved to extend the term of Mr. Young’s employment contract to the end of
the fiscal year, that is, to March 31, 2010.
[25]
Mr. Young
does not now take issue with the adjudicator’s finding that he was at all times
subject to fixed-term contracts of employment. However, he says that having
found that his contract of employment had been extended to March 31, 2010, the
adjudicator erred in failing to find that he had been unjustly dismissed by the
termination of his employment effective September
25, 2009.
[26]
I agree with Mr.
Young that the adjudicator erred in his analysis of the preliminary issue of
whether Mr. Young was in fact “dismissed”.
[27]
It appears from the
introductory paragraphs of the adjudicator’s reasons that he accepted that Mr.
Young’s contract expired on September 25, 2009, although his finding on this
point is far from clear. At the same time, the adjudicator found as a fact that the
term of Mr. Young’s employment contract had been extended to March 31, 2010 by
the Executive Committee of the AFN’s Board of Directors at the July 19, 2009 meeting.
[28]
Having concluded that
the Executive Committee had resolved to extend the term of Mr. Young’s
employment contract until March 31, 2010, the adjudicator never addressed the
effect that the resolution itself had on the AFN’s obligations to Mr. Young.
[29]
The adjudicator did
not consider whether it was the AFN’s Executive Committee or its human resources
department that possessed the ultimate decision-making authority with regard to
Mr. Young’s employment status. While noting that the human resources department
“fail[ed] to implement” the Board’s decision, the adjudicator did not explain
why the resolution of the Executive
Committee of the AFN’s Board
of Directors did not create an enforceable legal
obligation to Mr. Young on the part of the AFN.
[30]
This omission is
particularly troubling, given that the adjudicator seemed to accept that such a resolution
would have the effect of securing Mr. Young’s continued employment with the
AFN: see the adjudicator’s reasons at 7.
[31]
I am therefore
satisfied that this aspect of the adjudicator’s decision lacks the
justification, transparency and intelligibility required of a reasonable
decision.
[32]
I am also concerned
with the adjudicator’s statement that because Mr. Young was always employed
under fixed-term employment contracts, the adjudicator therefore had “no
jurisdiction to inquire into the justness of the employer’s decision to sever
the employment relationship”.
[33]
Access to the Canada
Labour Code adjudication process is not limited to indeterminate employees
who believe they have been unjustly dismissed. It is also available to
individuals employed under fixed-term contracts, as long as they meet the
statutory requirements in the Code, including the requirements that they have completed twelve consecutive
months of continuous employment with the employer and are not governed by a collective agreement.
[34]
However, before
determining whether a dismissal is “unjust” under section 240 of the Code,
the adjudicator must first be satisfied that there was in fact a “dismissal”
within the meaning of that section. As was noted earlier, there will be no
“dismissal” for the purposes of a section 240 complaint where an employer
simply does not renew a contract for a fixed term of employment.
[35]
The
crucial question for the adjudicator was whether Mr. Young was “dismissed” or
whether the term of his employment contract had expired and was not renewed.
The answer to this question required the adjudicator to make a finding in clear and unmistakable
terms as to when Mr. Young’s contract of employment was to expire. This he
failed to do.
Conclusion
[36]
For the
above reasons, the adjudicator’s decision is set aside. As requested by Mr.
Young, the matter is remitted to the same adjudicator for re-determination in
accordance with these reasons. Mr. Young shall have his costs, which I fix in
the amount of $3,000.
JUDGMENT
THIS
COURT ORDERS AND ADJUDGES
that:
1. This
application for judicial review is allowed, and the matter is remitted to the same adjudicator for
re-determination in accordance with these reasons; and
2.
Mr. Young
shall have his costs fixed in the amount of $3,000.
“Anne
Mactavish”
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