Date: 20071025
Docket: T-341-06
Citation: 2007 FC 1107
Ottawa, Ontario, October 25,
2007
PRESENT: The
Honourable Mr. Justice Mosley
BETWEEN:
TATASKWEYAK CREE NATION
(formerly known as SPLIT LAKE CREE FIRST NATION)
Applicant
and
ALBERT SINCLAIR SR.
Respondent
REASONS FOR
JUDGMENT AND JUDGMENT
[1]
Mr.
Albert Sinclair complained of unjust dismissal from his job as an announcer and
disk jockey at the radio station in Split Lake, Manitoba, home of the
Tataskweyak Cree Nation, a Band under the Indian Act, R.S., 1985, c. I-5.
An adjudicator conducted a hearing pursuant
to subsection 242(1) of the Canada Labour Code, R.S., 1985, c.
L-2, (the “Code”) and on November 26, 2004 ordered him reinstated and awarded
him judgment and costs totalling $17,028 against the applicant. Mr. Sinclair
obtained a garnishment Order from this Court dated January 17, 2006 which was
duly served on the applicant. The applicant now seeks to overturn the
adjudicator’s decision saying it was not notified of the proceedings, did not
employ the respondent and was not responsible for his dismissal.
[2]
The applicant’s reserve is located
approximately 150 km north east of Thompson,
Manitoba. On the reserve is a radio station whose license was issued by the Canadian
Radio Telecommunications Commission (CRTC) and has been held by Northern
Communications Inc. (NCI) since 1996. NCI owns the transmitter but plays no
role in running the station, which operates without fee for local and limited
programming. The station was managed by Virginia Audy, a band member and
resident of the reserve, from 2000 to 2004. The parties are in dispute over whether the
Band was involved in the ownership, operation or control of the radio station.
[3]
Mr. Sinclair, a registered
member of the Band, worked at the radio station for more than five years before
being dismissed by Virginia Audy in November, 2003. He contacted an inspector
at Human Resources Development Canada to pursue a claim for unjust dismissal
under s. 241 of the Code. The inspector conducted an investigation and
endeavoured to assist the parties to settle the complaint. She was unable to
do so as the putative employer failed to respond to repeated inquiries.
Accordingly the inspector referred the case to an adjudicator pursuant to
subsection 242 (1) of the Code.
DECISION
UNDER REVIEW
[4]
The adjudication hearing took
place on November 23, 2004 at Thompson. The applicant was not in attendance and
Mr. Sinclair’s evidence was all that was before the adjudicator. The
adjudicator began his decision by noting that he had made repeated efforts to
contact the applicant Band without success, as had the inspector. He said that
he finally did contact Ms. Audy, whom he described as the employer’s
representative, by telephone, and advised her of the scheduled hearing and that
the details would be confirmed by mail. Notice of the hearing was sent to the
parties by ordinary mail. Mr. Sinclair confirmed receipt and attended the
hearing. No one appeared for the Band.
[5]
The
complainant testified under oath and submitted a pay record from July of 2003
as evidence of employment. The adjudicator found his evidence to be credible
and forthright and concluded that he was wrongfully dismissed. The adjudicator
ordered that Mr. Sinclair should be reinstated effective December 1, 2004 and
compensated for his lost earnings.
[6]
The adjudicator’s
decision, indexed as Sinclair v. Split
Lake First Nation, [2004] C.L.A.D.
No. 600, was registered as a
judgment in Federal Court Docket T-304-05 on February 15, 2005. As noted, the
respondent obtained a garnishment order which was faxed to the Band Chief, Norman Flett, on January 27, 2006.
This application was then brought on February 24, 2006. The garnished funds
have been paid into court pending the outcome of these proceedings.
ISSUES:
[7]
The
issues which I have identified from the materials filed and counsel’s submissions,
are as follows:
1. Is the
application out of time?
2. Did the
adjudicator’s decision breach procedural fairness?
ARGUMENT & ANALYSIS:
Standard of review:
[8]
In
their written materials, neither party addressed the standard of review that
the Court should apply to this matter. During oral argument, counsel for the
applicant submitted that procedural fairness demands a standard of correctness.
Counsel for the respondent submitted that the primary issue was whether the
adjudicator erred in proceeding on the understanding that the applicant Band
was the employer, a question of fact, for which the standard should be one of
patent unreasonableness.
[9]
In
North v. West Region Child and Family Services Inc. [2005] F. C. J. No.
1686 (QL) at paragraph 13, Justice Snider identified several broad conclusions
with respect to the standard of review of decisions of an adjudicator acting
under Part III of the Canada Labour Code. For the purposes of this
proceeding, I adopt her conclusion that a finding of fact is reviewable on the
standard of patent unreasonableness and that a finding related to a collective
agreement or other document establishing the relationship between the employer
and employee is a question of mixed fact and law reviewable on the standard of
reasonableness.
[10]
The
Supreme Court of Canada’s decision in Canadian
Union of Public Employees v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539 directs a court, when
reviewing a decision challenged on the ground of procedural fairness, to
isolate any act or omission relevant to procedural fairness. This procedural
fairness element is reviewed as a question of law. No deference is due. The
decision-maker has either complied with the content of the duty of fairness
appropriate for the particular circumstances or has breached his duty.
[11]
At
the heart of the present matter is the question of whether the applicant has
been denied procedural fairness by the adjudicator’s decision to proceed with
the hearing in the absence of the putative employer and for that the standard
of correctness must apply.
Is the application out of
time?
[12]
The
respondent submits that the adjudicator's decision was brought to the attention
of the band more than one year before it sought judicial review of the
decision. Thus the time limitation of 30 days under section 18.1 (2) of the Federal
Courts Act had expired when this application was filed and no order has
been sought or given to extend the time.
[13]
The
applicant has not directly addressed the time limit question in its written or
oral submissions. The position stated in its written submissions is that it
was not given notice of the hearing and did not have an opportunity to make
submissions either orally or in writing, a breach of the principle (audi
alteram partem) that both sides must be heard. This was qualified in oral
argument. Counsel stated that the band's position now is that while notice of
the proceeding may have been received it was considered by those aware of the
matter that the band was not involved. As far as they were concerned, the
matter was for Ms. Audy to deal with and they have now been caught in a net
cast too far.
[14]
Each
of the parties have complained about the quality of the evidence submitted by
the other. The applicant says that the respondent’s affidavit is replete with
hearsay upon hearsay and does not conform to the rule that it be based upon the
personal knowledge of the affiant. The respondent’s rejoinder is that he bears
no onus in these proceedings and the applicant, which is in a better position
to do so, has failed to put forward the best evidence concerning the operation
of the radio station.
[15]
The
applicant’s record consists essentially of the affidavit of Chief Norman Flett
with two attached exhibits: the faxed letter of January 27, 2006 from the
respondent’s counsel informing Chief Flett of the garnishment Order and the
Order itself. Chief Flett states that he has been Chief of the band for
approximately 16 of the past 20 years. He was Chief in the years 2000 - 2002
inclusive and was last elected in September of 2004. He states that the band
has never owned or operated the radio station. Virginia Audy managed the radio
station from approximately 2002 - 2004. In this capacity, she did not report to
the Chief and counsel nor to any of the Band’s administrative staff and is not
an employee of the band. Chief Flett states that the exhibits to his affidavit
were the first and only notice that he or any of his councillors had of the adjudication
decision. Neither he nor any councillor of the band received notice in any
form concerning the hearing. As noted above, that position was not pressed at
the hearing.
[16]
The
respondent has submitted his own affidavit. He states that based on his experience
during the five years in which he was employed at the radio station, it was his
understanding that the band council exercised authority and control over the
station including determining issues such as the hiring and firing of the
management. Mr. Sinclair states that shortly after he received the
adjudication decision, he attended the band offices and had the secretary make
copies of it. He states that a copy was given to Chief Flett and to the
available band councillors. Mr. Sinclair deposes that he attended the band
offices several times afterwards asking for reinstatement and compensation and
that two band councillors, Elija Dick and Lazarus Kichekeesik, were aware of
his claim and requests.
[17]
Mr.
Sinclair's affidavit refers to information which he says he obtained from the
HR DC inspector or from her department and believes to be true. This
information is supported by exhibits as follows:
a) notes of a
telephone conversation between the inspector and a person identified as Elijah,
"board member" for the Split Lake First Nation;
b) copies of
letters dated January 26, 2004 and March 30, 2004 from the inspector to Ms Audy
and a May 14, 2004 letter from the inspector to Chief Flett, all of which
appear to have been sent by registered mail to the “Tataskweyak Cree Nation” at
their Split Lake address ;
c) notes which
appear on their face to have been handwritten by the inspector on February 8,
2005 regarding telephone calls she had made concerning the license held by the
Split Lake radio station; and
d) a document
entitled "assignment narrative report" referring to contacts with Mr.
Sinclair and with counsel for the applicant in January and February 2005.
[18]
Exhibit
D, dated March 24, 2005 and signed by the inspector, records a telephone call on
February 7, 2005 from a lawyer representing the Split Lake band
who advised that his client had heard about the adjudication decision and that their
position was that they were not the employer. The inspector notes that she
advised the lawyer that the objection was late and reviewed the file "to
demonstrate that they were provided with ample opportunity during the
investigation to make such an objection." According to the exhibit, the
lawyer was advised that objections could be raised at the Federal Court.
Counsel for the applicant confirmed during the hearing that the lawyer in
question is a senior member of counsel’s law firm.
[19]
Rule 81(1) of
the Federal Courts Rules sets out the general requirement that
affidavits be confined to facts within the personal knowledge of the deponent.
This embodies the common law rule against hearsay, the rationale being that
evidence in an affidavit must be capable of being tested by cross-examination
of the affiant: Bressette v. Kettle & Stony Point First Nations Band
Council, [1997] F.C.J. No. 1130, 137 F.T.R. 189 (T.D.) at para. 3. The same
can be said for the exhibits attached to the affidavit as all evidence is
subject to the hearsay rule unless an exception is met: Merck & Co.,
Inc. v. Apotex Inc., [1998] 3
F.C. 400, [1998] F.C.J. No. 448 (T.D.)
[20]
It
is clear that the facts contained within these exhibits and summarized within
Mr. Sinclair's affidavit are not matters that were within his personal
knowledge. They are hearsay statements by the inspector and hearsay upon
hearsay when they refer to statements made by third persons to the inspector.
Properly authenticated, the exhibits would be admissible as business records
under section 30 of the Canada Evidence Act, R.S., 1985, c. C-5.
But they have not been tendered as exhibits to the affidavit of an officer or
employee of HRDC. They are, thus, before the Court as statements of facts
which the respondent believes to be true but cannot personally verify.
[21]
I
am also satisfied that Chief Flett's affidavit contains references to hearsay
statements made by third parties. He refers, for example, to knowledge which
other councillors had or did not have during the relevant period, and to the
relationship of Virginia Audy to the Council during 2002- 2004 when he was not
Chief, information he could have only obtained from other persons whose
evidence is not before the Court.
[22]
As
was noted by the Court of Appeal in Éthier v. Canada (R.C.M.P. Commr.), [1993] 2 F.C. 659,
[1993] F.C.J. No. 183 at paras. 1-2, the decisions of the Supreme Court in R.
v. Khan, [1990] 2 S.C.R. 531, [1990] S.C.J. No. 81 and R. v. Smith,
[1992] 2 S.C.R. 915, 94 D.L.R. (4th) 590 have dramatically clarified and
simplified the law of hearsay. The governing principles are reliability and
necessity.
[23]
Counsel for the applicant does not dispute the reliability
of the exhibits to the Sinclair affidavit, including the telephone call and statements
attributed to a senior member of counsel's law firm on February 7, 2005. Rather,
it is submitted, the necessity of presenting them in this form has not been
established. It is submitted that they should have been introduced by a person
having direct knowledge of the contents such as the inspector or another
employee of HR DC. The exhibits contain statements attributed to third persons
who are not available for cross examination and the court should not rely on
them as records of the events at issue.
[24]
This dispute concerns residents of a small,
remote northern community and a First Nation which is not wealthy. The
respondent has been largely unemployed since his dismissal. Neither party has
the resources to fund litigation to the extent contemplated by the Federal
Courts Rules. In light of this practical reality, neither affiant was
cross-examined on their affidavits. But as between the parties, the applicant
Band is clearly in a stronger position. In these circumstances, the court may,
in my view, accept the exhibits attached to Mr. Sinclair's affidavit as meeting
the test for the admissibility of hearsay as reliable and necessary evidence of
the truth of their contents.
[25]
It is perhaps useful to recall the words of Lord Mansfield in Blatch v. Archer (1774) 1 Cowp.63, 98
E.R. 969 at p.65, quoted with approval by the Supreme Court of Canada in R. v. Jolivet,
[2000] 1 S.C.R. 751 at para 25:
It is certainly
a maxim that all evidence is to be weighed according to the proof which it was
in the power of the one side to have produced, and in the power of the other to
have contradicted.
[26]
Rule
81 (2) allows an adverse inference to be drawn from the failure of the party to
provide evidence from persons having personal knowledge. Affidavits on
information and belief should provide an explanation as to why the best
evidence is not available unless this is otherwise apparent: Kootenhayoo v. Alexis First Nation (Council), 2003 FC
1128, [2003] F.C.J. No. 1444 The failure to provide the best evidence is not a
precondition to admissibility but goes to the weight or probative value of the
affidavit: Lumonics Research Ltd. v. Gould, [1983] 2 F.C. 360 (F.C.A.).
[27]
It
seems to me that this is an appropriate case in which to draw an adverse
inference against the applicant for failing to provide evidence from persons
having personal knowledge of this affair. In this case, there are a number of
persons who could have provided affidavits on behalf of the applicant including
Ms Audy, the band secretary and the chief and councillors who were in office
during the term of 2002 to 2004. In light of the failure of the Band to provide
such evidence, I do not accept Chief Flett's averments that the Band Council
was unaware of the adjudication proceedings until such time as they were
notified of the garnishment.
[28]
I
accept Mr. Sinclair's affidavit evidence that he delivered copies of the
adjudication decision to the band offices shortly after it was issued and that
copies were provided to members of the band Council at that time. I also accept
as fact, the record of the conversation between the inspector and the band's
lawyer on February 5, 2005 attached as exhibit D to Mr. Sinclair’s affidavit.
Accordingly, I must conclude that the applicant received notice of the
adjudicator's decision in February, 2005 and failed to bring an application for
judicial review within the 30 days prescribed by the Act, or subsequently, to seek
an extension of time to file such application. Thus the application is out of
time and should be dismissed for that reason alone.
[29]
For
the sake of completeness, I will briefly review the second question, whether
there was a breach of procedural fairness in the adjudication proceedings
continuing in the absence of a party whose rights were directly affected by the
outcome. As outlined below, I find that there was not. The decision of the
adjudicator was procedurally fair and would have withstood challenge on this
ground even if the application had been brought in a timely fashion.
[30]
Having
accepted the respondent’s evidence about the attempts of the investigator and
adjudicator to contact the applicant Band, based on the reliability and
necessity of such evidence, it is clear that regular and concerted efforts were
made by the adjudicator to ensure that both sides had the opportunity to
provide evidence at the hearing. It seems to be the case here that the Band council
was of the view that they were not the employer and then chose to act as though
this were an established fact. It is not the place of parties to a Canada
Labour Code complaint to ignore such proceedings, and a party which fails
to respond to allegations with which it disagrees cannot rest on that failure
to later claim a breach of the duty of procedural fairness.
[31]
There
are a number of questions which are unanswered by the record. While this radio
station was clearly an informal operation, Mr. Sinclair was being paid for his
work and submitted a pay record to the adjudicator as evidence of that fact. It
is true that, in the absence of further evidentiary support, the ultimate
answer to the question of whether the applicant Band was, indeed, the employer
must remain obscure. But the finding by the adjudicator that this was the case
was not unreasonable in the circumstances.
[32]
As
a general rule, it may be said that an adverse inference can be drawn where
necessary evidence is not supplied to refute justified allegations: see Mattel,
Inc. v. 3894207 Canada Inc., 2006 SCC 22, [2006] 1 S.C.R. 772 ; Apotex
Inc. v. Canada (Minister of National Health and Welfare), [1998]
F.C.J. No. 1096 at para. 26.
[33]
In
my view, it was incumbent upon the applicant to provide evidence which would
show that it was not Mr. Sinclair’s employer as alleged, such as how the radio
station was being funded and other indicia of the employment relationship. In
the absence of such evidence, I draw the inference that funding was provided by
the Band and that the adjudicator was well within the bounds of reasonableness
to have found that as fact.
[34]
For
the foregoing reasons, I find that this application was brought out of time,
that there was no breach of procedural fairness on the part of the adjudicator
and that his decision was reasonable. The application is therefore dismissed.
The respondent shall have his costs on the ordinary scale.
JUDGMENT
IT IS THE JUDGMENT OF
THIS COURT that the application is dismissed with costs to the respondent.
“Richard G. Mosley”
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