Date: 20050912
Docket: A-610-04
Citation: 2005 FCA 292
CORAM: DÉCARY J.A.
LINDENJ.A.
SEXTON J.A.
BETWEEN:
JOHN BAUER
Appellant
and
SEASPAN INTERNATIONAL LTD.
Respondent
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Vancouver, British Columbia, on September 12, 2005.)
SEXTON J.A.
[1] The Appellant was dismissed from his job as a labourer with the Respondent in May, 2000. He brought a claim for unjust dismissal against the Respondent pursuant to Section 240 of the Canada Labour Code (the "Code") which was heard by an Adjudicator.
[2] The Adjudicator found that the Appellant had been unjustly dismissed and ordered reinstatement upon certain conditions and awarded damages equal to one year's pay in the amount of $40,000. The Adjudicator reduced the award from the 2 ½ -year pay ($101,400) claimed by the Appellant because of his finding that the Appellant had failed to mitigate his losses.
[3] The Appellant sought judicial review of the award arguing that because he was off work for 2 ½ years, his award should be increased accordingly to $101,400.
[4] The Federal Court Judge dismissed the Application for Judicial Review, holding that the decision of the Adjudicator was not patently unreasonable.
[5] In this Court, the Appellant argued that:
a) the wrong standard of review was applied;
b) section 242(4)(a) of the Code had been erroneously interpreted;
c) that the burden of proof with respect to the duty to mitigate was on the employer to prove that the employee could have found other suitable employment, and, that the Adjudicator and the Federal Court Judge had placed this burden upon the employee;
d) that the Federal Court Judge and the Adjudicator made palpable and overriding errors in assessing the evidence regarding the Appellant efforts to obtain other work.
A. Standard of Review
[6] While the Appellant now argues that the standard of review of the decision of the Adjudicator is correctness, counsel for all parties agreed before the Federal Court that the standard was that of patent unreasonableness.
[7] While the standard of review with respect to the interpretation of Section 242, being strictly a matter of law would in all likelihood be that of correctness, we do not believe that we need to expand upon this because we agree with the interpretation of Section 242.
B. Interpretation of Section 242(4)(a)
| 242. (4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
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242. (4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur :
a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;
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[8] The Appellant argued that Section 242(4)(a) does not give to Adjudicator discretion to order remuneration less than what the employee has actually lost in situations where reinstatement has been ordered.
[9] We do not agree. Section 242(4)(a) provides that the adjudicator "may" order "compensation not exceeding" the amount of money the employee lost by reason of the dismissal. This can only mean that while the adjudicator cannot award more than the amount lost, he certainly may award less. If an employee fails to make reasonable attempts to mitigate his losses, this is a factor which the adjudicator may take into account.
C. Burden of Proof
[10] The Appellant relying on the Supreme Court of Canada case of [1976] 2 S.C.R. 324">Red Deer College v. Michaels, [1976] 2 S.C.R. 324 argues that the Adjudicator and the Federal Court Judge erred in placing the burden of proof with respect to mitigation upon the Appellant and that the burden of proving that the employee would likely have obtained alternative employment lay upon the Respondent employer.
[11] The basis of the Appellant's argument that the burden was not placed on the respondent employer is that the respondent led no evidence such as newspaper reports showing work was available for the Appellant at the appropriate time.
[12] The error in this reasoning lies in the premise that the Respondent led no evidence. In fact, the employer did lead evidence in the form of a very effective cross-examination of the Appellant on the issues with respect to mitigation. By way of example, the cross-examination demonstrated that the Appellant made no attempt to attend at construction sites personally to seek work even though that was the way he obtained employment with the Respondent in the first place.
[13] Thus the employer did lead evidence with respect to mitigation on which the Adjudicator was entitled to rely in concluding that the Appellant had made insufficient effort to mitigate his damages. It cannot be said that the burden was placed upon the Appellant.
D. Assessment of the Evidence
[14] Lastly, the Appellant argued that the Adjudicator made a palpable and overriding error in assessing the evidence with respect to the employee's attempts to mitigate his losses.
[15] It is well established that the standard of review for interfering with the award of compensation for unjust dismissal by an Adjudicator under Section 242 of the Code is patent unreasonableness:
- Nlha'7kapmx Child & Family Services v. Lockhart (2002), 17 C.C.E.L. (3d) 297 (Fed. T.D.);
- Bank of Nova Scotia v. Fraser (2000), 186 F.T.R. 225 (Fed. T.D.);
- Gauthier v. Fortier (2000), 191 F.T.R. 219 (Fed. T.D.);
- Rogers Cablesystems Ltd. V. Roe (2000), 4 C.C.E.L. (3d) 170 (Fed. T.D.);
- Lac La Ronge Indian Band v. Laliberté (2000), 192 F.T.R. 100 (Fed. T.D.); and
- Wayzhushk Onigum Nation v. Kakeway, 2001 FCT 819 (Fed. T.D.).
[16] In connection with the four factors outlined by the Supreme Court of Canada in Dr. Q. v. College of Physicians and Surgeons of British Columbia in [2003] 1 S.C.R. 226 we would say that:
a) the Code contains a very strong privative clause:
| 243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.
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243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
(2) Il n'est admis aucun recours ou décision judiciaire -- notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto -- visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.
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b) obviously the Legislature in enacting section 242 of the Code has, by deciding to have adjudicators decide disputes, recognised their particular expertise in employment matters, thus calling for deference;
c) the purpose of the legislation is to provide expeditious resolution of labour disputes, thus militating in favour of deference;
d) the essential question of whether the Appellant adequately mitigated his losses is a question of fact, suggesting deference to such a finding.
[17] It is our view that there was evidence on which the Adjudicator could make a finding that the Appellant's efforts at mitigation were completely inadequate. The decision of the Adjudicator was not patently unreasonable.
[18] We, therefore, are of the view that the Federal Court did not err in dismissing the Application for Judicial Review.
[19] The appeal shall therefore be dismissed with costs.
"J. Edgar Sexton"
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