Date:
20130408
Docket:
T-1234-12
Citation:
2013 FC 352
Ottawa, Ontario,
April 8, 2013
PRESENT: The
Honourable Madam Justice Tremblay-Lamer
BETWEEN:
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DEAN FONTAINE
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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]
This
is an application for judicial review of a decision of an Adjudicator made
under the Canada Labour Code, RSC 1985, c L-2 (Code), dated May 23,
2012. In the decision, the Adjudicator determined that he did not have the
jurisdiction to consider whether the applicant was unjustly dismissed pursuant
to the Code.
BACKGROUND
[2]
Beginning
in September 2005, the applicant began working as a Special Advisor for the
Assembly of First Nations.
[3]
He
was employed under a series of short-term contracts. Some contracts were
renewed by new contracts, while others were renewed by letters confirming such
renewals.
[4]
The
applicant’s second contract was executed in March 2007. On page 4 of this
contract, the following sentence is found for the first time: “Furthermore,
nothing in this contract should be construed as an offer of continuing
employment beyond the specified dates of employment.”
[5]
The
same sentence was contained in the March 14, 2008 version of the contract,
which extended the employment to March 31, 2009. The applicant’s employment
continued to be extended by a series of letters. A letter dated June 29, 2009
confirmed the termination of the applicant’s employment as of July 31, 2009.
[6]
On
July 19, 2009, the issue of the applicant’s employment status was raised in
camera at a meeting of the National Executive of the respondent. Witnesses
who attended this meeting gave evidence before the Adjudicator that the
respondent’s National Executive passed a motion to offer permanent employment
to the applicant. There was inconsistent evidence before the Adjudicator
regarding whether the offer of permanent employment was funding dependent. The
Adjudicator noted that Mr. Bob Watts, Chief Executive Officer of the respondent
at the time, suggested in an email that the move to permanent employment be
dependent on funding, but the witnesses who attended the July 19, 2009 meeting
denied that the move was funding dependent. The Adjudicator noted, however,
that one of the witnesses, Grand Chief Phil Fontaine, acknowledged the funding
issue in a tangential way in an email conversation with Mr. Watts.
[7]
On
July 31, 2009, the day the applicant’s employment was scheduled to terminate,
the applicant alleges that Mr. Shawn Atleo, the newly-elected Grand Chief of
the respondent, ran into him in the hallway and said that he looked forward to
working with the applicant. That same day, the respondent’s interim Chief
Executive Officer, Mr. Richard Jock, sent an email and letter to the applicant,
allowing a further one-month extension of his contract. Another letter dated
August 17, 2009 extended the applicant’s employment to September 25, 2009.
[8]
At
a September 10, 2009 meeting, during an in camera session, a newly
appointed National Executive passed a motion authorizing Mr. Jock, in light of
new circumstances occurring since the previous executive passed motions
regarding human resource matters, to take all the necessary decisions and
actions in the best interests of the respondent regarding the Human Resource
matters of the organization.
[9]
On
September 21, 2009, Mr. Jock sent the applicant a letter, extending his
employment to October 30, 2009 and indicating there would be no further
extensions.
[10]
On
December 14, 2009, the applicant’s complaint under the Code was received. It
was heard before the Adjudicator on September 7 and 9, 2011.
THE
ADJUDICATOR’S DECISION
[11]
The
Adjudicator accepted without reservation the evidence of former Grand
Chief Phil Fontaine and Regional Chief Erasmus that on July 19, 2009,
the National Executive passed a motion to offer permanent employment to the
applicant. However, the Adjudicator was not persuaded that the applicant was
actually offered permanent employment. The Adjudicator analyzed the issue as
follows:
Unfortunately for the Complainant, [the intention of
the National Executive] does not end the matter. No such change was actually
implemented by the AFN. There was no actual offer of permanent employment
extended to Mr. Fontaine. The best that can be said of Mr. Watts’ email was an
acknowledgement that, this change would occur if funding were to be found.
Other emails outlined the fact that no such funding was found. The new National
Executive reconsidered the July 19 motion and effectively rescinded it on
September 10. Mr. Fontaine’s employment was extended one further time but then
ended pursuant to that extension.
[12]
The
Adjudicator also found that the case of Blair v Western Mutual Benefit Assn.,
[1972] BCJ 620, [1972] 4 WWR 284 (BCCA) [Blair] applied to the present
case, given that in Blair the B.C. Court of Appeal found that although
the employer’s directors had passed a resolution to offer a retirement package
to an employee, absent some actual change in the relationship between the
employer and employee, the employee had no entitlement to the retirement
package.
[13]
The
issue arising out of this application for judicial review is whether the Adjudicator
erred in finding that he had no jurisdiction to consider whether the applicant
was unjustly dismissed.
STANDARD OF
REVIEW
[14]
The
question of whether the applicant was dismissed within the meaning of section
240 of the Code, or whether his fixed-term contract merely expired, is a
question of mixed fact and law reviewable on the reasonableness standard (Stirbys
v Assembly of First Nations, 2011 FC 42 at para 25 [Stirbys];
Young v Assembly of First Nations, 2012 FC 597 at para 22 [Young]).
[15]
Accordingly,
the Court will consider “the existence of justification, transparency and
intelligibility within the decision-making process” and “whether the decision
falls within a range of possible, acceptable outcomes which are defensible in
respect of the facts and law” (Dunsmuir v New Brunswick, 2008 SCC 9 at
para 47).
ANALYSIS
[16]
The
applicant submits the Adjudicator erred in deciding that there was no formal
offer of employment to the applicant, given that the resolution making him a
permanent employee passed and its results were acknowledged by the newly
elected Grand Chief Shawn Atleo when he shook the applicant’s hand.
[17]
The
applicant also maintains that the Adjudicator erred in finding that the new
National Executive reconsidered the July 19, 2009 motion and
effectively rescinded it on September 10, 2009, given that the mover of the
September 10, 2009 motion was not a member of the Board of Directors, nor was
he the mover of the July, 19, 2009 motion allegedly making the applicant a
permanent employee.
[18]
The
respondent submits it is clearly not the role of the reviewing Court to
re-weigh the facts (League for Human Rights of B'nai Brith Canada v Canada, 2010 FCA 307 at para 85 [B'nai Brith Canada]; Stirbys, above, at
para 25). Moreover, the respondent submits the Code’s adjudication
process is not available to employees who lose their employment as a result of
the expiry of the term of their employment contract (Eskasoni School
Board/Eskasoni Band Council v MacIsaac, [1986] FCJ 263 (FCA) [Eskasoni]).
I agree with the respondent for the following reasons.
[19]
The
Adjudicator had the benefit of hearing the parties and their witnesses, as well
as the benefit of exhibits regarding the nature of the applicant’s employment,
all of which was taken into account by the Adjudicator. The Court, on the
other hand, has neither a transcript of the hearing nor copies of exhibits
filed before the Adjudicator. As noted by the respondent, it is not the role of
the Court to re-examine the weight the Adjudicator ascribed to various portions
of the evidence (B'nai Brith Canada, above, at para
85; Stirbys, above, at para 25).
[20]
The
Adjudicator considered the evidence before him, as well as relevant case law (Eskasoni
and Blair), and found that no actual offer of permanent employment was
extended to the applicant. He accepted the evidence of former Grand Chief Phil
Fontaine and Regional Chief Erasmus that they wanted to change the applicant’s
status to a permanent employee but found that the intention did not end the
matter. Prior to any actual offer of permanent employment being made, the
National Executive changed its mind and rescinded the July 19 motion concerning
the applicant’s employment. Thus, the applicant’s employment contract
terminated on October 30, 2009 and the Adjudicator did not have jurisdiction to
hear the applicant’s complaint.
[21]
It
is well-established that the Code’s adjudication process is not available to
employees who lose their employment as a result of the expiry of the term of
their employment contract (Eskasoni; Stirbys, above, at para 2; Young,
above, para 2). Given that the applicant has not pointed to any
evidence that was before the Adjudicator that demonstrates the Adjudicator’s
factual findings were unreasonable, I am satisfied that the
Adjudicator’s conclusion is intelligible, justifiable and transparent, and
falls within a
range of possible, acceptable outcomes.
[22]
Moreover,
with respect to the applicant’s argument that the mover of the September 10,
2009 motion was not a member of the Board of Directors nor the mover of the
July, 19, 2009 motion that was effectively rescinded, I am not persuaded that
the Adjudicator made an error in this regard because the applicant has not
pointed to any evidence that was before the Adjudicator that attested to the
applicant’s procedural concerns.
CONCLUSION
[23]
For
these reasons, I dismiss the application for judicial review with costs.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
This application
for judicial review is dismissed with costs.
“Danièle
Tremblay-Lamer”
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