Docket: A-312-13
Citation:
2015 FCA 17
|
CORAM:
|
STRATAS J.A.
WEBB J.A.
NEAR J.A.
|
|
BETWEEN:
|
|
JOSEPH WILSON
|
|
Appellant
|
|
and
|
|
ATOMIC ENERGY OF CANADA LIMITED
|
|
Respondent
|
REASONS
FOR JUDGMENT
STRATAS J.A.
[1]
The appellant, Mr. Wilson,
appeals from the judgment dated July 2, 2013 of the Federal Court (per
Justice O’Reilly): 2013 FC 733.
[2]
The respondent, Atomic
Energy of Canada Limited, dismissed the appellant from his employment without
cause. AECL paid him six months’ severance pay.
[3]
The appellant complained
under section 240 of the Canada Labour Code, R.S.C. 1985, c. L-2
that he was “unjustly dismissed.”
[4]
A labour adjudicator was
appointed under the Code. Before the adjudicator, the appellant submitted that
an employee who, like him, is dismissed without cause is, by that reason alone,
unjustly dismissed within the meaning of the Code and is therefore entitled to
a remedy under that subsection. In other words, says the appellant, the Code
forbids an employer from dismissing an employee unless there is just cause for
dismissal. AECL submitted that dismissals without cause are not automatically
unjust dismissals under the Code. Some adjudicators under the Code have
accepted the appellant’s view of the matter; others, AECL’s view of the matter.
These two schools of thought concerning the proper interpretation of the Code have
now persisted for decades.
[5]
The adjudicator in this case
accepted the appellant’s submission. Accordingly, he concluded that the
appellant, dismissed without cause, had made out his complaint of unjust
dismissal under the Code.
[6]
Having made that decision,
the adjudicator adjourned, directing the parties to discuss the appropriate
remedy in the hope that they might settle. Absent settlement, he intended to
conduct a hearing to determine whether a remedy was warranted and, if so, what
it should be.
[7]
AECL applied to the Federal
Court for judicial review of the adjudicator’s decision that the appellant’s
dismissal was unjust. In the face of that, the adjudicator considered his
position carefully and decided to adjourn the remedies hearing until after the
judicial review was finally decided.
[8]
In the Federal Court, the
appellant argued that the judicial review was premature. Further, he alleged
that the adjudicator’s decision on the merits – that as a matter of statutory
interpretation the Code only permits dismissals for cause – was reasonable.
[9]
The Federal Court dismissed
the appellant’s prematurity objection. On the merits of the judicial review,
the Federal Court found that the adjudicator’s statutory interpretation
decision was unreasonable. The Federal Court quashed the adjudicator’s decision
and remitted the matter back to the adjudicator for decision.
[10]
In this Court, the appellant
appeals on both the prematurity issue and the reasonableness of the
adjudicator’s decision.
[11]
For the reasons that follow,
I would dismiss the appeal.
A. The
basic facts
[12]
AECL employed the appellant
for four and a half years. Starting as a Senior Buyer/Order Administrator, the
appellant received many promotions. His last position was Procurement
Supervisor, Tooling, a position that was not managerial within the meaning of
subsection 167(3) of the Code. On November 16, 2009, his employment was
terminated on a without cause basis.
[13]
AECL offered the appellant a
severance package equal to roughly six months’ pay in exchange for a full and
final release. Had his severance package been determined in accordance with the
minimum statutory notice and severance requirements under sections 230 and 235
of the Code, he would have been entitled to only eighteen days’ pay.
[14]
The appellant did not sign
the release. Instead, he filed a complaint under Part III of the Code. He
alleged that he had been “unjustly
dismissed” contrary to
subsection 240(1) of the Code. In particular, he alleged that he was dismissed
because he had complained about improper procurement practices on the part of
AECL.
[15]
At the request of the
appellant’s counsel, the appellant remained on AECL’s payroll for roughly six
months, continuing his access to AECL’s employee benefit programs. In the end,
he received the full amount of the severance package AECL had originally offered
to him.
[16]
An adjudicator was appointed
to hear the appellant’s complaint under the Code. Laudably, the parties filed
an agreed statement of facts.
[17]
In the agreed statement of
facts, the parties identified two “preliminary questions”: whether, as a matter of statutory interpretation, AECL
could lawfully terminate the appellant’s employment on a “without cause” basis and, if so, whether the severance package paid gave
rise to a “just dismissal.” The parties instructed the adjudicator to
decide these questions only upon the facts contained in the agreed statement.
By agreement, only after the adjudicator decided those “preliminary questions” could he proceed to the appellant’s allegation
that he was the victim of reprisal.
[18]
Before the adjudicator, the
appellant argued that as a matter of statutory interpretation AECL could not
terminate the appellant on a without cause basis, pay him severance, and have
the complaint dismissed. In brief reasons that will be described in more detail
below, the adjudicator agreed with the appellant.
[19]
Having decided the first
phase of the matter, the adjudicator considered that the only remaining issue
was one of remedy and he decided to adjourn before holding a hearing into that
issue:
Although the parties did not ask me to
determine the complaint if I answered as I have, it is clear that in the light
of my answer the complaint should be allowed: Mr. Wilson complained of unjust
dismissal and A.E.C.L. said that it does not rely on any cause to fire him. The
parties might therefore discuss what remedies should now come to Mr. Wilson in
the circumstances. If they cannot agree, they could contact me for a hearing
and determination on remedies.
[20]
Faced with a decision on the
liability issue and a clear break before the remedies issue, AECL brought an
application for judicial review to the Federal Court, alleging that the
adjudicator’s decision, one of statutory interpretation, was unreasonable. In
response, the appellant submitted that AECL’s judicial review should be
dismissed on account of prematurity and that, in any event, the adjudicator
correctly interpreted the Code as preventing AECL from terminating the
appellant on a without cause basis.
[21]
The adjudicator was not
stayed pending the judicial review. He could have proceeded with the remedies
issue pending judicial review. But, after consulting with the parties, he chose
not to.
[22]
The Federal Court rejected
the appellant’s prematurity objection. On the merits of the judicial review, it
disagreed with the adjudicator on the statutory interpretation issue and quashed
the adjudicator’s decision as unreasonable. Mr. Wilson appeals on both issues.
[23]
I begin with the appellant’s
prematurity objection.
B. Prematurity
[24]
The Federal Court applied the
principles set out in this Court’s decision in Canada (Border Services
Agency) v. C.B. Powell Ltd., 2010 FCA 61, [2011] 2 F.C. 322, applied them
to the circumstances of the judicial review before it, and rejected the
prematurity objection. The appellant appeals the rejection.
[25]
On this point, we are
reviewing a decision made by the Federal Court, not the adjudicator, on whether
a preliminary legal objection – prematurity – applies to the application for
judicial review in the Federal Court. Therefore, on this point, the standard of
review is the appellate standard of review, not the standard of review that
pertains to appeals from judicial reviews of administrative decision-making. Housen
v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 applies, not Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at
paragraphs 45-47.
[26]
Under the appellate standard
of review described in Housen, supra, we review extricable legal issues
on a correctness basis. On all other issues, we look for palpable and
overriding error.
[27]
Applying the appellate
standard of review, I conclude that there are no grounds to set aside the
Federal Court’s exercise of discretion in favour of determining the judicial
review.
[28]
First, the Federal Court
correctly identified C.B. Powell, supra as the controlling legal
authority. Then the Federal Court accurately summarized its principles.
[29]
In C.B. Powell, supra
this Court confirmed the general rule that parties can proceed to the court
system only after all adequate remedial recourses in the administrative process
have been exhausted. This general rule is called various things: the doctrine of
exhaustion, the doctrine of adequate alternative remedies, the rule against
fragmentation of administrative proceedings, the prohibition against premature
judicial reviews, among others. The rationales behind the general rule are as
follows:
[The general rule] prevents fragmentation of
the administrative process and piecemeal court proceedings, eliminates the
large costs and delays associated with premature forays to court and avoids the
waste associated with hearing an interlocutory judicial review when the
applicant for judicial review may succeed at the end of the administrative
process anyway. Further, only at the end of the administrative process will a
reviewing court have all of the administrative decision-maker’s findings; these
findings may be suffused with expertise, legitimate policy judgments and
valuable regulatory experience. Finally, this approach is consistent with and
supports the concept of judicial respect for administrative decision-makers
who, like judges, have decision-making responsibilities to discharge.
[citations omitted]
(C.B. Powell, supra at paragraph 32).
[30]
Those rationales are
grounded in what one commentator has called “public law values,” principles immanent in administrative law and repeatedly sounded in the
case law especially when reviewing courts explain their exercises of
discretions: Professor Paul Daly, “Administrative Law: A Values-Based Approach”
in Mark Elliott and Jason Varuhas, eds., Process and Substance in Public Law
Adjudication (forthcoming, Hart: Oxford, 2015), online:
http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2460264, see also Peter
Cane, “Theory and Values in Public Law,” in Paul Craig and Richard Rawlings,
eds., Law and Administration in Europe: Essays for Carol Harlow (Oxford:
Oxford University Press, 2003). These values include the rule of law, the
principles of good administration (including proper, fair, pragmatic, efficient
and effective administrative regulation and decision-making), the democratic
principle (including Parliamentary supremacy), and the separation of powers. For
examples of discretions shaped by public law values such as these, see D'Errico
v. Canada (Attorney General), 2014 FCA 95 at paragraphs 16-21, Community
Panel of the Adams Lake Indian Band v. Adams Lake Band, 2011 FCA 37, 419
N.R. 385 at paragraphs 33-37, and Stemijon Investments Ltd. v. Canada
(Attorney General), 2011 FCA 299, 341 D.L.R. (4th) 710 at paragraph 52.
[31]
The general rule against
premature judicial reviews reflects at least two public law values. One is good
administration – encouraging cost savings, efficiencies, promptness and
allowing administrative expertise and specialization to be fully brought to
bear on the problem before reviewing courts are involved. Another is democracy
– elected legislators have vested the primary responsibility of decision-making
in adjudicators, not the judiciary.
[32]
The weighty nature of these
public law values explains the force and pervasiveness of the general rule
against premature judicial reviews. Indeed, in appropriate cases, the general
rule can form the basis of a preliminary motion to strike: Canada (National Revenue) v. JP Morgan Asset Management (Canada) Inc., 2013 FCA 250,
[2014] D.T.C. 5001 at paragraphs 66 (motion to strike available), 51-53
(general rule against supporting affidavits) and 82-89 (discussion of
prematurity in the context of motions to strike). Such motions serve to nip in
the bud premature judicial reviews that corrode these values.
[33]
The force and pervasiveness
of the general rule against premature judicial reviews and the need to
discourage premature forays to reviewing courts means that the exceptions to
the general rule are most rare and preliminary motions to strike are regularly
entertained. As C.B. Powell, supra explained, the recognized
exceptions reflect particular constellations of fact found in the decided
cases. They are rare cases where the public law values do not sound loudly in
the particular circumstances, the public law values are offset by competing
public law values, or both. For example, there are rare cases where the effect
of an interlocutory decision on the applicant is so immediate and drastic that the
Court’s concern about the rule of law is aroused: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at paragraphs 27-30. In these cases –
often cases where prohibition is available – the values underlying the general
rule against premature judicial reviews take on less importance.
[34]
The Federal Court instructed
itself correctly as to the applicable principles and recognized the very high
threshold that the applicant must meet. Then it applied that law to the
particular circumstances before it. This was an exercise suffused in factual
appreciation and fact-based discretion, and, thus, can only be set aside in
this Court on the basis of palpable and overriding error: Housen, supra
at paragraphs 26-37. In this case, there is no such error.
[35]
Indeed, based on the above
discussion of the principles that underlie C.B. Powell, supra
there is much to commend in the Federal Court’s decision.
[36]
Administrative
decision-makers, like courts, occasionally bifurcate the merits and the remedy.
That sort of bifurcation – at a natural break between two separate phases of
the proceedings – often does not cause the ills identified in C.B. Powell,
supra unlike bifurcations in the middle of hearings on the merits, which
often do. Certainly the adjudicator considered the bifurcation to be natural
and practical, as is evident from his emails in the record before us. Also of
significance is the absence of any objection or submissions to the contrary to
the adjudicator by the appellant.
[37]
As the Federal Court
correctly noted, this case is very different from C.B. Powell, supra,
where the administrative decision-maker stopped his hearing in the middle of
the merits phase of the proceeding to hive off a so-called jurisdictional issue
for judicial review when it was, in reality, an issue of statutory interpretation
that he should have decided himself. His decision ran counter to the rationales
underlying the bar against prematurity and sent the parties on a harmful detour
to the Courts. It was a procedural choice that could not be respected.
[38]
In the
unusual circumstances of this case, the adjudicator’s decisions to adjourn and to
remain adjourned while judicial review was ongoing were discretionary procedural
choices suffused by factual and policy appreciation that deserve respect. They
are not choices constrained by well-established, fundamental legal principles.
See generally Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 S.C.R. 817, 147 D.L.R. (4th) 193 at paragraph
27; Forest Ethics Advocacy Association v. National Energy Board, 2014
FCA 245 at paragraphs 70-73. This is not a case like C.B. Powell,
supra where the procedural choice was inherently faulty or constrained by
legal principle. The adjudicator had many defensible reasons based on policy
and fact for acting as he did.
[39]
As is apparent from his
reasons, the adjudicator was well-aware of the legal point before us, one that
has festered for many years and has divided adjudicators into two schools of
thought. Perhaps in adjourning and remaining adjourned, this adjudicator, a
knowledgeable and experienced participant in this regulated sector, took the
view that while the judicial review might delay this particular case, it would
settle once and for all this nagging legal point. In these unusual circumstances,
this judicial review is not unlike a referral of a legal question to the
Federal Court under section 18.3 of the Federal Courts Act, R.S.C. 1985,
c. F-7.
[40]
As is apparent from the
foregoing discussion, the rationales underlying the general rule against
premature judicial reviews do not sound loudly here. In fact, they support it.
[41]
Therefore, in my view, there
are no grounds to set aside the Federal Court’s rejection of the prematurity
objection. The Federal Court was entitled to consider the merits of the
judicial review and the central issue in it: whether Part III of the Canada
Labour Code permits dismissals on a without cause basis.
C. The
standard of review of the adjudicator’s decision
[42]
On this part of the appeal,
we are examining the Federal Court’s review of the adjudicator’s decision, not
the Federal Court’s own, original decision. Accordingly, the standard of review
is that set out in Agraira, supra at paragraph 47. We are to
assess whether the Federal Court selected the appropriate standard of review
and then to ensure that that standard of review was properly applied.
[43]
The parties agree that the
Federal Court correctly adopted the standard of review of reasonableness, i.e.,
the adjudicator’s decision must fall within a range of acceptability and
defensibility on the facts and the law. However, the choice of standard of
review is a question of law and so we are not bound by the parties’ agreement: Monsanto
Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54,
[2004] 3 S.C.R. 152.
[44]
The central legal issue before
the adjudicator, the Federal Court and this Court concerns a statutory
interpretation question. That question is whether Part III of the Canada
Labour Code permits dismissals on a without cause basis.
[45]
The adjudicator answered
that in the negative. The adjudicator ruled that, as a matter of statutory
interpretation, the Code only permits dismissals for cause. He considered
himself bound by the Federal Court’s decision in Redlon Agencies Ltd. v.
Norgen, 2005 FC 804, 139 A.C.W.S. (3d) 1018.
[46]
Normally, a labour
adjudicator’s interpretation of a provision in a labour statute would be
subject to reasonableness review: Alberta (Information and Privacy
Commissioner) v. Alberta Teachers' Association, 2011 SCC 61, [2011] 3
S.C.R. 654. This, however, is an unusual case. For a long time, adjudicators
acting under the Code have disagreed on whether Part III of the Canada
Labour Code permits dismissals on a without cause basis.
[47]
Some agree with the
adjudicator and the appellant in the case at bar and have concluded that the Code
does not permit dismissals on a without cause basis: see, e.g., Re
Roberts and the Bank of Nova Scotia (1979), 1 L.A.C. (3d) 259; Champagne
v. Atomic Energy of Canada Ltd., [2012] C.L.A.D. No. 57; Iron v.
Kanaweyimik Child and Family Services Inc., [2002] C.L.A.D. No. 517; Lockwood
v. B&D Walter Trucking Ltd., [2010] C.L.A.D. No. 172; Stack Valley
Freight Ltd. v. Moore, [2007] C.L.A.D. No. 191; Morriston v. Gitanmaax
Band, [2011] C.L.A. No. 23; Innis Christie, et al., Employment
Law in Canada, 2d ed. (Toronto: Butterworths, 1993) at page 669; David
Harris, Wrongful Dismissal, loose-leaf (Toronto: Carswell, 1990) at
pages 6.7-6.9.
[48]
Others disagree and have
concluded that the Code does permit dismissals on a without cause basis: see, e.g.,
Knopp v. Western Bulk Transport Ltd., [1994] C.L.A.D. No. 172; Chalifoux
v. Driftpile First Nation – Driftpile River Band No. 450, [2000] C.L.A.D.
No. 368 aff’d on other grounds, 2001 FCT 785, aff’d 2002 FCA 521; Jalbert v.
Westcan Bulk Transport Ltd., [1996] C.L.A.D. No. 631; Prosper v. PADC
Management Co., [2010] C.L.A.D. No. 430; Halkowich v. Fairford First
Nation, [1998] C.L.A.D. No. 486; Daniels v. Whitecap Dakota First Nation,
[2008] C.L.A.D. No. 135; Klein v. Royal Canadian Mint, [2012] C.L.A.D.
No. 358; Paul v. National Centre For First Nations Governance, [2012]
C.L.A.D. No. 99; Gordon Simmons, “Unjust Dismissal of the Unorganized Workers
in Canada,” 20 Stan J. Int’l Law 473 (1984) at pages 496-97.
[49]
In circumstances such as
these, what is the standard of review?
[50]
Dunsmuir, supra provides the answer in two ways:
one by way of concept, another by way of presumptive rule.
[51]
At the conceptual level, the Supreme Court in Dunsmuir
identified two principles that underlie our law of judicial review, principles
that are in tension with each other (at paragraphs 27-31). First, there is the
constitutional principle of Parliamentary supremacy. Absent constitutional
objection, courts are bound by the laws of Parliament, including those that
vest exclusive power in an administrative decision-maker over a certain type of
decision. Second, there is the constitutional principle of the rule of law. In
some circumstances, courts must intervene even in the face of Parliamentary language
forbidding intervention: Crevier v. A.G. (Québec) et al., [1981]
2 S.C.R. 220, 127 D.L.R. (3d) 1.
[52]
In this case, it is true
that Parliament has vested jurisdiction in adjudicators under the Code to
decide questions of statutory interpretation, such as the question before us.
However, on the statutory interpretation issue before us, the current state of
adjudicators’ jurisprudence is one of persistent discord. Adjudicators on one
side do not consider themselves bound by the holdings on the other side. As a
result, for some time now, the answer to the question whether the Code permits
dismissals on a without cause basis has depended on the identity of the
adjudicator. Draw one adjudicator and one interpretation will be applied; draw
another and the opposite interpretation will be applied. Under the rule of law,
the meaning of a law should not differ according to the identity of the
decision-maker: Taub v. Investment Dealers Association of Canada, 2009
ONCA 628, 98 O.R. (3d) 169 at paragraph 67.
[53]
In the case of some
tribunals that sit in panels, one panel may legitimately disagree with another
on an issue of statutory interpretation. Over time, it may be expected that
differing panels will sort out the disagreement through the development of
tribunal jurisprudence or through the type of institutional discussions approved
in IWA v. Consolidated‑Bathurst
Packaging Ltd., [1990] 1 S.C.R.
282, 68 D.L.R. (4th) 524. It may be that at least in the initial stages
of discord, without other considerations bearing upon the matter, the rule of
law concerns do not predominate and so reviewing courts should lay off and give
the tribunal the opportunity to work out its jurisprudence, as Parliament has
authorized it to do.
[54]
However, here, we are not
dealing with initial discord on a point of statutory interpretation at the administrative
level. Instead, we are dealing with persistent discord that has existed for
many years. Further, because no one adjudicator binds another and because
adjudicators operate independently and not within an institutional umbrella
such as a tribunal, there is no prospect that the discord will be eliminated.
There is every expectation that adjudicators, acting individually, will
continue to disagree on this point, perhaps forever.
[55]
As a result, at a conceptual
level, the rule of law concern predominates in this case and warrants this
Court intervening to end the discord and determine the legal point once and for
all. We have to act as a tie-breaker.
[56]
Dunsmuir envisaged just such a situation and formulated
a presumptive rule to be applied in circumstances such as these. Where a
question of law is of “central
importance to the legal system…and outside the…specialized area of expertise” of the administrative decision-maker,
correctness is presumed to be the standard of review (at paragraph 55).
Questions of central importance to the legal system are those whose “impact on the administration of justice as a
whole” is such that they “require uniform and consistent answers” (at paragraph 60). In other words, for certain
questions and for some questions in unusual circumstances, rule of law concerns
predominate. In these, the court must decide the matter by giving its view of the
correct answer.
[57]
In this case, the
specialized expertise of adjudicators has not led to one accepted answer on the
statutory interpretation issue before us. Further, the persistent discord –
quite irresolvable among adjudicators – means that here, the rule of law
concerns predominate. Therefore, in my view, the standard of review on this
statutory interpretation point is correctness.
[58]
Even if the standard of
review were reasonableness, as we shall see, the statutory interpretation point
before us involves relatively little specialized labour insight beyond the
regular means the courts have at hand when interpreting a statutory provision.
Accordingly, if we were to conduct reasonableness review in this case, we would
afford the adjudicator only a narrow margin of appreciation: see, e.g., Canada (Public Safety and Emergency Preparedness) v. Huang, 2014 FCA 228, 245 A.C.W.S. (3d) 846, and Canada (Attorney General) v. Abraham, 2012 FCA 266, 440 N.R. 201. In the end,
whether we conduct reasonableness review or correctness review, the outcome of
this appeal would be the same.
D. The
merits of the statutory interpretation question
[59]
Conducting reasonableness
review and apparently affording the adjudicator only a very limited margin of
appreciation, the Federal Court found that the adjudicator misinterpreted the
Federal Court authority of Redlon, supra. Examining Redlon
and other authorities, and examining the regime for dismissals under the Code,
referring specifically to sections 230, 235, 240 and 242 of the Code, the
Federal Court found that the Code does permit dismissals without cause.
[60]
In the circumstances, the
Federal Court found it unnecessary to order a new hearing before a different
adjudicator. Rather, it remitted the matter to the adjudicator to decide
whether the terms of the appellant’s dismissal were just. See paragraphs 28-41
of the Federal Court’s reasons.
[61]
I agree with the result the
Federal Court reached and, with one qualification discussed below, its
reasoning. However, owing to the persistent disagreement in the adjudicators’
jurisprudence, I wish to offer some additional analysis.
[62]
Like the Federal Court and
the adjudicators’ decisions in paragraph 48 above, I conclude that a dismissal
without cause is not automatically “unjust” under Part III of the Code. An
adjudicator must examine the circumstances of the particular case to see
whether the dismissal is “unjust.”
[63]
Key to reaching this conclusion
is the relationship between:
•
The common law of employment. At common law, an employer can dismiss a non-unionized employee
without cause, but is liable to provide reasonable notice or compensation for
same. Put another way, an employee dismissed without cause but given reasonable
notice is not wrongfully dismissed. Later development of the case law shows
that depending on the nature of the dismissal, an employee can be entitled to
further damages: Honda Canada Inc. v. Keays, 2008 SCC 39, [2008] 2 S.C.R.
362; Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701, 152
D.L.R. (4th) 1.
•
Part III of the Code. In this Part, Parliament has set out a complaints mechanism and
remedies for “unjust” dismissals. Subsection 242(3)
of the Code empowers an adjudicator to “consider whether
the dismissal of the person who made the complaint was unjust.” The Code
does not define “unjust.”
[64]
Does Part III of the Code
oust the common law of employment as described above? Or does it accept this
aspect of the common law as given, supplementing and building upon it?
[65]
The legislator is presumed
not to depart from prevailing common law: Rawluk v. Rawluk, [1990] 1 S.C.R. 70, 65
D.L.R. (4th) 161. Only by way of explicit language or necessary
implication can it be ousted. An example of necessary implication is where the
legislator has provided for something that conflicts with the common law such
that the two can no longer live together. The common law is not ousted unless
Parliament has “[expressed] its
intentions to do so with irresistible clearness”: Goodyear Tire & Rubber Co. of Canada v. T. Eaton
Co., [1956]
S.C.R. 610 at page 614, 4 D.L.R. (2d) 1.
[66]
The Supreme Court applied
both Rawluk and Goodyear Tire in Gendron v. Supply and
Services Union of the Public Service Alliance of Canada, Local 50057,
[1990] 1 S.C.R. 1298, 109 N.R. 321, a case concerning the duty of fair
representation under the Code. It found that while the Code does not expressly oust
the common law duty of fair representation, it does so by
necessary implication or, in the words of Goodyear Tire (cited above by
Cory J. in Rawluk), with “irresistible
clearness.”
[67]
The case before us is quite
different from Gendron. Here, there is no statutory text or necessary
implication – no “irresistible
clearness” – that can be
taken to oust the aspects of the common law of employment as described above.
For example, the Code does not contain explicit words forbidding an employer
from dismissing employees absent misconduct. The Code was enacted against the
backdrop of the common law and does not explicitly oust it in this respect.
[68]
Indeed, in some respects the
Code seems to leave alone aspects of the common law of employment. In section
246, the Code recognizes the existence of common law remedies for wrongful
dismissal, encouraging adjudicators to draw upon general employment case law in
resolving issues before them, unless specifically ousted by the Code. In
addition, section 168 preserves more beneficial contract provisions which an
employee enjoys independently of the Code.
[69]
The appellant submits,
citing Innis Christie et al., supra at pages 668 and 712, that “[n]on-unionized employees in the federal
jurisdiction cannot be dismissed except for just cause” – just as unionized employees cannot be so
dismissed – and that the Code “bestows
a right to the job, not simply to reasonable notice as does the common law.”
[70]
But there is nothing in the Code
or in its purpose that suggests that Parliament was granting non-unionized
employees a “right to the job” or was trying to place unionized and
non-unionized employees in the same position: protected from being dismissed
without cause. To the contrary, subsections 230(1) and 235(1) expressly allow
an employer to terminate an employment relationship even without cause and
require that notice or compensation be given.
[71]
If Parliament intended to
limit the right of an employer to terminate an employment relationship to cases
where just cause existed, it could have said so quite explicitly. After all,
before Parliament passed the provisions in issue before us, the Nova Scotia
Legislature did just that. It amended its labour legislation to provide that an
“employer shall not discharge … [an]
employee without just cause”:
Labour Standards Act, S.N.S. 1975, c. 50, section 4. Further, we have
evidence that Parliament knew of Nova Scotia’s legislative initiative when
considering whether to pass the relevant provisions before us: Minutes of
Proceedings and Evidence of the Standing Committee on Labour, Manpower and
Immigration respecting Bill C-8, An Act to Amend the Canada Labour Code
(House of Commons, February 9, 1978 at page 18). Yet, Parliament refrained from
adopting the “irresistible clearness” of the language used by the Nova Scotia
Legislature.
[72]
In support of its position,
the appellant also points to the powers of adjudicators under paragraphs 242(4)(b)
and 242(4)(c) of the Code to reinstate dismissed employees and to
require the employer “to do any
other like thing that it is equitable to require the employer to do in order to
remedy or counteract any consequence of the dismissal.” Neither of these remedies is available under
the common law. These remedies, however, are best seen as new statutory remedies
– over and above the old remedies available under the common law – that
Parliament has seen fit to grant, not as evidence of a sea-change in the
meaning of what constitutes an unjust dismissal.
[73]
As explained above, where
there is no language specifically ousting the common law, the question is
whether the language in paragraph 242(4)(b) can live together with the
common law. Here, it can.
[74]
It follows from the
foregoing that I largely agree with Adjudicator Wakeling in Knopp, supra
at paragraph 77:
In conclusion, Divisions X, XI and XIV of Part
III of the Canada Labour Code do not jettison the common law principles
which govern the termination of an employment relationship. Had Parliament
intended to implement a drastically different legal order in which common law
principles played no role, it would have said so in plain language. In enacting
Division XIV of Part III of the Code, Parliament created another forum besides
the courts to hear complaints of unjust dismissal and granted Code adjudicators
remedial powers common law judges are without.
[75]
Quite aside from the
foregoing analysis of the text and context of Part III of the Code, I must have
regard to the purpose of these provisions of the Code: Re Rizzo & Rizzo
Shoes Ltd., [1998] 1 S.C.R. 27, 154 D.L.R. (4th) 193; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559. Appropriately,
the appellant urges this Court to do just that.
[76]
From the foregoing
discussion, it is evident that Parliament largely intended that Part III of the
Code offer employees more remedies than exist at common law.
[77]
In his text, Professor
Christie disagrees. He asserts that “[t]he policy of the section is to provide the non-unionized
employee with substantially similar protections against unjust discharge as the
unionized employee enjoys under a collective agreement”: Innis Christie et al., supra at
page 669.
[78]
He suggests two reasons for
this. First, he observes that the section “seeks to establish standards of “cause” more in line with modern
industrial relations practice than with outdated common law precedents” (at pages 669-670). Second, he notes the broad remedies
in paragraphs 242(4)(b) and 242(4)(c) (at page 670). These two
things may perhaps be so. But as a matter of logic they do not take us to the specific
conclusion that Parliament intended non-unionized employees to be placed in the
same position as unionized employees.
[79]
Many of the academic and
arbitral treatments of the issue before us rightly say that this part of the
Code has a reforming purpose. And it is orthodox law that in interpreting legislative
provisions, we must have regard to Parliament’s purpose. But finding a
reforming purpose does not end our inquiry. Instead, it starts it. What exactly
was Parliament’s reform? When inquiring into that question, it is not open to
us to import our personal views of the desirable or to take a reformist purpose
as justification for finding the broadest possible interpretation. Instead, as
always, our job is to investigate, discern and apply the actual meaning of the
text adopted by Parliament, nothing else.
[80]
The appellant invokes the adjudicators’
jurisprudence in paragraph 47, above, in support of his position. This
jurisprudence deserves careful study, as it represents the considered opinion
of adjudicators in this specialized field interpreting their home statute,
jurisprudence normally reviewable only on a deferential basis. However, as I
shall demonstrate, much of the jurisprudence in support of the appellant’s
position suffers from flaws. It is well-answered by the reasoning in the
adjudicators’ jurisprudence (referenced in paragraph 48, above) that supports AECL’s
position.
[81]
Much of the jurisprudence in
support of the appellant’s position relies directly or indirectly upon the
passage from Professor Christie’s text set in out paragraph 77 above, a passage
that, as I have explained in paragraph 78, above, is unsupported by authority
and logic.
[82]
Much of the adjudicators’
jurisprudence cited by the appellant also asserts a view favourable to the
appellant’s position but without providing any explanation, a trend also noted
by the adjudicator in Chalifoux, supra at paragraph 16. The views
of administrative decision-makers, even ones in specialized areas such as this,
are not likely to be respected by reviewing courts unless the views are
accompanied by reasoned explanations.
[83]
Much of the adjudicators’
jurisprudence cited by the appellant stems from an early case that, on close
scrutiny, does not advance the appellant’s position very far: Bank of Nova
Scotia, supra. The adjudicator in Bank of Nova Scotia observed
that in using the word “unjust” to modify “dismissal” in
what is now subsection 240(1), Parliament intended something broader than the
common law standard of “cause” (at page 264). But then the adjudicator leapt
to the conclusion that “unjust” dismissal under the Code invoked the concept of
dismissal for “just cause” under collective agreements. “Unjust” is a generic word used in a host of statutes. It is quite
a leap to assume that by using the word “unjust,” Parliament
intended to place non-organized and organized employees on the same footing for
dismissals. On close examination, even the adjudicator in Bank of Nova
Scotia hedged his bets on this, conceding that “unjust” may also take its meaning from “a whole host of important considerations” on which “the statute is silent” (at page 265).
[84]
Much of the adjudicators’
jurisprudence cited by the appellant adopts an academic opinion that the
relevant provisions in the Code adopt the International Labour Organization’s Termination
of Employment Recommendation, 1963, a recommendation said to support the
appellant’s position: see ILO, Record of Proceedings (47th Session). However,
this opinion also suffers from flaws. The ILO recommendation did not require Canada to enact conforming legislation and it is open to serious question whether the ILO
recommendation truly supports the appellant’s position: see Chalifoux, supra
at paragraphs 21-56.
[85]
Finally, much of the
adjudicators’ jurisprudence cited by the appellant invokes the interpretive
principle that benefits-conferring legislation should be construed liberally in
favour of the benefits seeker. I do accept that Part III of the Code is
benefits-conferring legislation. I also accept the existence of this interpretive
principle, set out in cases binding upon us such as Re Rizzo, supra at
paragraph 36 and Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2 at page 10. But this
pro-benefits principle can take the analysis only so far.
[86]
The pro-benefits principle
begs the question before us. It sheds no light on just what benefits Parliament
has actually given employees under Part III of the Code. We cannot use the
pro-benefits principle to drive Parliament’s language in the Code higher than
what genuine interpretation of Part III of the Code – an examination of its
text, context and purpose – can bear. Put another way, while the pro-benefits
principle exists, it cannot be used as a licence to amend the law that
Parliament has made.
[87]
Turning to a different
point, the parties suggest that two of this Court’s decisions have some bearing
upon the issue before us. I agree with AECL that, if anything, these decisions support
the above analysis.
[88]
First, in Atomic Energy
of Canada Ltd. v. Sheikholeslami, [1998] 3 F.C. 349, 157 D.L.R. (4th) 689,
this Court was not faced with the question before us, namely whether Part III
of the Code permits dismissals on a without cause basis. Rather, it concerned
the novel remedy of reinstatement under paragraph 242(4)(b) of the Code.
[89]
However, in the course of
his majority reasons, Marceau J.A. offered comments suggesting, as I have, that
these provisions do not represent a sea-change in the law of dismissal but
rather enhance the remedies that may be available in appropriate cases of
dismissal (at paragraph 12):
The unfair dismissal provisions for
non-unionized employees in the Canada Labour Code no doubt represent a
statutory modification of the traditional rule that an employment contract will
never be specifically enforced. But they certainly do not and even could not,
go so far as to create a right in the person of the wrongfully dismissed
employee. It would be contrary to the common sense that precisely supports the
traditional rule. They simply provide for reinstatement as a possible remedy
that may be resorted to in proper situations.
[90]
Next, in Canadian
Imperial Bank of Commerce v. Boisvert, [1986] 2 F.C. 431, 68 N.R. 355, this
Court also did not deal with the question before us now. Nevertheless it
examined the meaning of “unjust dismissal” to some extent. That examination
sheds some light on the question before us and, again, confirms my analysis.
[91]
In Boisvert, the
majority of this Court went about understanding the meaning of “unjust dismissal” by considering common law cases (see, e.g.,
at pages 458-459). In concurring reasons, Marceau J.A. attempted to define “unjust dismissal” by considering its opposite, just dismissal. He
defined a just dismissal as a “dismissal
based on an objective, real and substantial cause…entailing action taken
exclusively to ensure the effective operation of the business.” Viewed in its proper context, this Court was
not saying that the “real and
substantial cause” had to
relate to the affected employee. Rather the cause had to entail “action taken exclusively to ensure the
effective operation of the business” and had to be something other than “caprice, convenience or purely personal
disputes.”
[92]
I see nothing in Boisvert
inconsistent with the import of my analysis above. Boisvert does not
stand for the proposition that an employee has a right to a job in the sense
that any dismissal without cause relating to the employee is automatically
unjust.
[93]
Finally, I wish to address
one final submission made by the appellant. The appellant warns of severe
implications associated with AECL’s position. He raises the spectre of
employers being able to dismiss employees without cause, paying them an amount
of money the employers think is adequate, leaving employees with no meaningful right
of recourse under section 240 of the Code.
[94]
That is simply not so. It
will always be for the adjudicator to assess the circumstances and determine
whether the dismissal, whether or not for cause, was unjust.
[95]
Klein, supra, illustrates this well. In Klein,
the employer dismissed the employee in accordance with provisions in the
employment contract, including provisions for notice or compensation for same.
The employer maintained that there was no unjust dismissal because it was done
in accordance with the employment contract. According to the employer, the
adjudicator had no jurisdiction to consider a complaint under section 240 of
the Code.
[96]
Based on the many adjudicators’
decisions in paragraph 48 above, the adjudicator in Klein rejected the
submission that the dismissal of an employee without cause was automatically “unjust,” giving rise to section 240 remedies.
[97]
At the same time, however,
the adjudicator did not assume that the dismissal of an employee without cause
who had been paid a compensatory sum of money was automatically just. He still
considered that he had jurisdiction to consider the complaint under section 240
of the Code. However, in Klein, the adjudicator was able to dismiss the
complaint on a summary basis.
[98]
The adjudicator in Klein
considered common law principles concerning the dismissal, namely whether the
employment contract was the product of free will and was not vitiated by duress
(at paragraph 44). The adjudicator found no circumstances suggesting duress.
The adjudicator also considered the compensation the employer offered, terming
it “requisite [and] … enhanced to
facilitate a quick resolution”
(at paragraph 45). In the circumstances in Klein, there was nothing
necessary for the employer “to do
in order to remedy or counteract any consequence of the dismissal” under paragraph 242(4)(c) of the Code.
In light of these considerations, the adjudicator found that there was no basis
to proceed to a full hearing on the merits of the dismissal of the employee –
the dismissal was simply not unjust.
[99]
I note that the Federal
Court adopted substantially the same position as the adjudicator in Klein.
It held that “[t]he fact that an
employer has paid an employee severance pay does not preclude an adjudicator
from granting further relief where the adjudicator concludes that the dismissal
was unjust” (at paragraph
37). As is apparent from the foregoing, I agree with this statement.
[100]
The Federal Court also said
that the broad remedial powers under subsection 242(2) kick in when “the adjudicator … concludes on any basis that
the dismissal was unjust”
(my emphasis, at paragraph 36). On this, it bears noting that an adjudicator
under the Code does not have free rein to find a dismissal “unjust” on “any
basis.” As I have suggested
above, “unjust” is a term that sits alongside and gathers much,
if not all, of its meaning from well-established common law and arbitral cases concerning
dismissal. It is also a term whose meaning must be discerned using accepted
principles of statutory interpretation: see paragraph 75, above. I shall not
comment further on the meaning of “unjust.” It is
for Parliament’s chosen decision-makers in this specialized field – the
adjudicators – to develop the jurisprudence concerning the meaning of “unjust” on an acceptable and defensible basis, not “any basis.” It is for us to review the adjudicators’ interpretations for
acceptability and defensibility when they are brought before us.
E. Conclusion
[101]
For the reasons offered by
the Federal Court and for the foregoing additional reasons, I reject the
appellant’s submission that the Code does not permit dismissals on a without
cause basis.
F. Proposed
disposition
[102]
I would dismiss the appeal.
In the Court below, the Federal Court declined to order costs because the
matter involved the resolution of an important legal issue applicable beyond
this particular dispute. I agree and so I would not award costs.
"David Stratas"
“I agree
Wyman W. Webb J.A.”
“I agree
D.G. Near J.A.”
Email this Content