Chippewas of Kettle & Stony Point First Nation v. Shawkence, 2006 FCA 154

Date: 20060426

Docket: A-322-05

Citation: 2006 FCA 154

CORAM:        NADON J.A.

                        SEXTON J.A.

                        EVANS J.A.

BETWEEN:

CHIPPEWAS OF KETTLE & STONY POINT FIRST NATION

Appellant

and

KA KWI ROK THA SHERRY SHAWKENCE

Respondent

Heard at Toronto, Ontario, on April 26, 2006.

Judgment delivered from the Bench at Toronto, Ontario, on April 26, 2006.

REASONS FOR JUDGMENT OF THE COURT BY:                                                   EVANS J.A.

Date: 20060426

Docket: A-322-05

Citation: 2006 FCA 154

CORAM:        NADON J.A.

                        SEXTON J.A.

                        EVANS J.A.

BETWEEN:

CHIPPEWAS OF KETTLE & STONY POINT FIRST NATION

Appellant

and

KA KWI ROK THA SHERRY SHAWKENCE

Respondent

REASONS FOR JUDGMENT OF THE COURT

(Delivered from the Bench at Toronto, Ontario, on April 26, 2006)

EVANS J.A.

[1]                This is an appeal by the Chippawas of Kettle & Stony Point First Nation from a decision of the Federal Court, in which Snider J. dismissed an application for judicial review by the First Nation to set aside a decision of an Adjudicator appointed under Part III of the Canada Labour Code, R.S.C. 1985, L-2. The Adjudicator upheld the complaint of Ka Kwi Rok Thia Sherry Shawkence, the respondent in this appeal, that she had been unjustly dismissed by the First Nation from her employment as a police constable in December 1996.

[2]                The decision of the Federal Court is reported as Chippawas of Kettle & Stony Point First Nation v. Ka Kwi Rok Thia Sherry Shawkence, 2005 FC 823.

[3]                Counsel for the First Nation argued that the Adjudicator had breached the duty of fairness by refusing to hear an informal motion brought on behalf of the First Nation, alleging that the Ontario Provincial Police, not the First Nation, was Ms Shawkence's "true" employer and seeking to introduce supporting evidence. The Adjudicator ruled that the issue was res judicata, and that the First Nation was estopped from raising it. Accordingly, he did not admit the evidence.

[4]                The motion was brought on May 28, 2002, four and a half years after the Adjudicator had been appointed under subsection 242(1) of the Code to hear Ms Shawkence's unjust dismissal complaint, and three years after the hearing had commenced. The motion was brought after both parties had put in their evidence in chief.

[5]                The First Nation had changed solicitors and their new solicitors, who are representing the First Nation in the present judicial review proceedings, raised with the Adjudicator at the earliest opportunity after their appointment the issue of whether the First Nation was Ms Shawkence's employer. Before the motion was made, the First Nation, through their previous counsel, had admitted, and had consistently taken the position throughout the proceeding, that it was the employer.

[6]                We are not persuaded that the Applications Judge erred in dismissing the application for judicial review. In the circumstances described above, the Adjudicator was entitled to deny the motion summarily, without considering the merits. To permit a party to an adjudication to retract admissions made through counsel, and to attempt to re-litigate issues that it had conceded, would unduly prolong and encumber administrative proceedings, to the great prejudice of other parties.

[7]                In our view, it does not advance the appellant's case to attach the label, "jurisdictional", to the question on which the appellant asked the Adjudicator to rule, namely whether the Ontario Provincial Police, rather than the First Nation, was Ms Shawkence's "true" employer for the purpose of paragraph 240(1)(a) of the Code.

[8]                For these reasons, and despite the very able submissions of counsel, the appeal will be dismissed with costs.

"John M. Evans"

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                                   A-322-05

(APPEAL FROM A JUDGMENT OF THE HONOURABLE MADAM JUSTICE SNIDER, FEDERAL COURT, DATED JUNE 10, 2005, T-1822-03)

STYLE OF CAUSE:                                                   CHIPPEWAS OF KETTLE & STONY POINT FIRST NATION v. KA KWI ROK THA SHERRY SHAWKENCE

PLACE OF HEARING:                                             TORONTO, ONTARIO

DATE OF HEARING:                                               APRIL 26, 2006

REASONS FOR JUDGMENT

OF THE COURT BY:                                                NADON J.A.

                                                                                    SEXTON J.A.

                                                                                    EVANS J.A.

DELIVERED FROM THE BENCH BY:                 EVANS J.A.

APPEARANCES:

SOLICITORS OF RECORD: