Date:
20071212
Docket: A-92-07
Citation: 2007 FCA 396
CORAM: RICHARD C.J.
DÉCARY
J.A.
LÉTOURNEAU J.A.
BETWEEN:
SPORTS
INTERACTION
Appellant
and
TREVOR
JACOBS
Respondent
Heard at Montréal,
Quebec, on December 12,
2007.
Judgment delivered from the Bench at Montréal, Quebec, on December 12, 2007.
REASONS FOR JUDGMENT OF THE COURT BY: LÉTOURNEAU
J.A.
Date:
20071212
Docket:
A-92-07
Citation:
2007 FCA 396
CORAM: RICHARD
C.J.
DÉCARY J.A.
LÉTOURNEAU
J.A.
BETWEEN:
SPORTS
INTERACTION
Appellant
and
TREVOR JACOBS
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Montréal, Quebec, on December 12, 2007)
LÉTOURNEAU
J.A.
[1]
The
appellant challenges a decision of Beaudry J. (judge) of the Federal Court by
which the judge dismissed the appellant’s application for judicial review.
[2]
In
its judicial review application, the appellant submitted that the adjudicator,
who ruled on the allegedly unlawful dismissal from work of the respondent, had
no jurisdiction to hear the matter pursuant to section 88 of the Indian Act,
R.S.C. 1985, c. I-15. Such jurisdiction belonged to provincially appointed
adjudicators since labour relations are primarily governed by provincial laws.
[3]
The
appellant also contended before the judge that the adjudicator’s decision was
patently unreasonable.
[4]
The
judge refused to decide the constitutional issue on the basis that there were
not sufficient constitutional facts on the record to enable him to decide it.
He went on to dismiss the appellant’s claim that the arbitrator’s decision was
patently unreasonable. The appellant has not appealed against this last
finding.
[5]
We
are of the view that the judge committed no reviewable error in making his
finding on the constitutional issue. The appellant did not object to the
jurisdiction of the arbitrator. It is only in its challenge of the arbitrator’s
decision that it raised the issue for the first time. Being the applicant in
the judicial review proceedings, the appellant bore at least the evidentiary
burden of filing evidence to support its allegation regarding the lack of
competence of the adjudicator.
[6]
In
other words, the appellant was alleging that its business or services do not
come within the definition of a Federal undertaking, work or business. It had
in its hands all the necessary facts that could sustain its allegation. It was
its obligation to provide sufficient evidence as to the nature of its
operations, that is to say, as to the jurisdictional facts necessary for a
proper determination of the constitutional issue.
[7]
The
respondent seeks an award of solicitor-client costs. We refuse his demand.
However, in the exercise of our discretionary power under Rule 400 of the Federal
Courts Rules and considering that the appellant failed to raise its
objection before the adjudicator, to issue a notice of constitutional question
in its proceedings before the Federal Court, to file appropriate evidence of
constitutional facts and that such failures have led to multiple proceedings
extending over a period of more than four years, the respondent should be
awarded increased costs, i.e. the maximum number of units under Column V of the
table to Tariff B.
[8]
The
appeal will be dismissed with costs as provided above.
“Gilles
Létourneau”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND
SOLICITORS OF RECORD
DOCKET: A-92-07
STYLE OF CAUSE: SPORTS
INTERACTION v. TREVOR
JACOBS
PLACE OF HEARING: Montréal,
Quebec
DATE OF HEARING: December 12, 2007
REASONS FOR JUDGMENT RICHARD C.J.
OF THE COURT BY: DÉCARY
J.A.
LÉTOURNEAU J.A.
DELIVERED FROM THE BENCH BY: LÉTOURNEAU J.A.
APPEARANCES:
|
Me Dan Goldstein
|
FOR
THE APPELLANT
|
|
Me Chantal Poirier
|
FOR
THE RESPONDENT
|
SOLICITORS
OF RECORD:
|
Schneider & Gaggino G.P.
Dorval,
Quebec
|
FOR THE APPELLANT
|
|
Matteau Poirier Avocats Inc.
Montréal,
Quebec
|
FOR THE RESPONDENT
|
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