Date: 20111006
Docket: A-74-11
Citation: 2011 FCA 276
CORAM: EVANS J.A.
LAYDEN-STEVENSON J.A.
STRATAS J.A.
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
and INTRIA
ITEMS INC.
Appellants
and
MURUGANANDARAJAH
MUTHIAH
Respondent
Heard at Toronto,
Ontario, on October 6,
2011.
Judgment delivered from the Bench at Toronto, Ontario, on October 6, 2011.
REASONS FOR JUDGMENT OF THE COURT BY: LAYDEN-STEVENSON
J.A.
Date:
20111006
Docket:
A-74-11
Citation:
2011 FCA 276
CORAM: EVANS
J.A.
LAYDEN-STEVENSON
J.A.
STRATAS
J.A.
BETWEEN:
CANADIAN IMPERIAL BANK OF COMMERCE
and INTRIA
ITEMS INC.
Appellants
and
MURUGANANDARAJAH
MUTHIAH
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Toronto, Ontario, on October 6, 2011)
LAYDEN-STEVENSON
J.A.
[1]
The
respondent was employed by the appellants, Canadian Imperial Bank of Commerce
and a related company Intria Items Inc. (collectively CIBC), for approximately
ten years. CIBC terminated his employment allegedly because his position had
been discontinued under a national restructuring program. The respondent lodged
an unjust dismissal complaint under the Canada Labour Code, R.S.C. 1985,
c. L-2 (the Code).
[2]
Relying
upon paragraph 242(3.1)(a) of the Code, CIBC took the position that the
respondent’s complaint should be dismissed on the basis that the termination
resulted from a discontinuance of function and consequently was excluded from
adjudication. The adjudicator determined that the exemption did not apply
because CIBC had not met its onus of showing that there had been a
discontinuance of the respondent’s function.
[3]
CIBC
applied to the Federal Court for judicial review of the adjudicator’s decision.
Justice Barnes (the judge) determined that the adjudicator correctly understood
the legal test applicable to subsection 242(3.1) of the Code and that a bona
fide decision to eliminate a position through the re-assignment of duties
to others would fall within the provision. After analysing the various grounds
of review and arguments advanced by CIBC, the judge found that the
adjudicator’s decision “is thorough, thoughtful, well-supported by the
evidence, and contains no discernable errors of law.” The judge dismissed the
application (2011 FC 77). CIBC now appeals to this Court.
[4]
We are of
the view that the appeal must be dismissed. CIBC essentially seeks a
re-hearing and re-determination of the same case it
unsuccessfully put to the adjudicator and the judge. That is not our function.
CIBC has failed to demonstrate any error on the part of the judge that warrants
our intervention. Although we are of the view that the standard of review
applicable to the adjudicator’s interpretation of subsection 242(3.1) of the
Code is reasonableness (see: Attorney General of Canada v. Public Service
Alliance of Canada, 2011 FCA 257 at paragraph 29 and also Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R.
190 at paragraph 54), in all other respects, we agree with the judge’s decision
for substantially the reasons he gave.
[5]
In our
opinion, this case fundamentally turns on its facts; the adjudicator’s
conclusion that she was not satisfied that CIBC had discharged its burden proof
was reasonable on the evidence before her.
[6]
The appeal
will be dismissed with costs.
“Carolyn Layden-Stevenson”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-74-11
(APPEAL FROM A JUDGMENT OF THE FEDERAL
COURT OF JUSTICE BARNES DATED JANUARY 21, 2011, DOCKET NO. T-25-10)
STYLE OF CAUSE: CANADIAN IMPERIAL BANK OF COMMERCE and INTRIA ITEMS INC. v.
MURUGANANDARAJAH MUTHIAH
PLACE OF HEARING: TORONTO, ONTARIO
DATE OF HEARING: OCTOBER 6, 2011
REASONS FOR JUDGMENT OF THE COURT BY: (EVANS, LAYDEN-STEVENSON, STRATAS JJ.A.)
DELIVERED FROM THE BENCH BY: LAYDEN-STEVENSON J.A.
APPEARANCES:
|
M. Norman Grossman
Mark Fletcher
|
FOR THE APPELLANTS
|
|
Kent Elson
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
Grosman, Grosman
& Gale LLP
Toronto, Ontario
|
FOR THE
APPELLANTS
|
|
Klippensteins
Toronto, Ontario
|
FOR THE
RESPONDENT
|
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