Regional Cablesystems Inc v. Wygant, 2003 FCT 236

Date: 20030225

Docket: T-1808-01

Neutral citation: 2003 FCT 236

BETWEEN:

                                                  REGIONAL CABLESYSTEMS INC.

                                                                                                                                                       Applicant

                                                                                 and

                                                              ROBERT G. WYGANT

                                                                                                                                                   Respondent

                                                            REASONS FOR ORDER

GIBSON J.:

INTRODUCTION

[1]                 These reasons arise out of an application for judicial review brought by the applicant against a decision rendered by Adjudicator Susan D. Kaufman (the "Adjudicator") wherein the Adjudicator ordered the applicant:

...to reinstate Mr. Wygant to any position identified by the company [the applicant] that he is willing to accept, without loss of seniority or benefits, to pay him at the level of his previous "employment commissions and benefits" and to provide him with any training or courses at the company's expense which the position's previous and/or present incumbents have received at the company's expense, and which would bring him "up to speed" for the position in a reasonable period of time.^[1]

In addition to reinstatement, the Adjudicator ordered provision of a range of monetary and non-monetary reliefs to the respondent, including the respondent's costs of the proceeding before the Adjudicator "...on a solicitor and his own client basis."^[2] The Adjudicator was acting under the authority of Division XIV, Part III of the Canada Labour Code^[3] (the "Code").

[2]                 The Adjudicator's decision that is under review is dated the 10^th of September, 2001.

[3]                 In a decision preliminary to the decision here under review, dated the 17^th of July, 2000, the Adjudicator dealt with the issue of whether or not she had jurisdiction to examine the respondent's complaint of unjust dismissal by reason of the fact that he was "...laid off because of lack of work or because of the discontinuance of a function"^[4]. The Adjudicator concluded on this preliminary issue in the following terms:

... I conclude that the employer's [here the applicant's] evidence has not discharged the burden of proof [on it] that the circumstances fall within the exception in s. 242 (3.1) (a), that Mr. Wygant was "laid off because of lack of work or because of the discontinuance of a function". I therefore conclude that I have jurisdiction to hear the complaint of unjust dismissal on the merits under s.241 (3).^[5]

The Adjudicator's preliminary decision regarding her jurisdiction was not challenged before this Court. Of relevance to this application for judicial review, the Adjudicator's jurisdiction was not challenged before her on the ground that the respondent was, at the time of termination of his employment, a "manager". Subsection 167(3) of the Code reads as follows:

167.(3) Division XIV does not apply to or in respect of employees who are managers.

167.(3) La section XIV ne s'applique pas aux employés qui occupent le poste de directeur.

BACKGROUND

[4]                 The respondent was employed by Northern Cable Holdings Limited from sometime in July, 1983 until the termination of his employment that is here at issue. The nature of the positions that he occupied in the more than fourteen (14) years that he was employed by Northern Cable Holdings Limited was the subject of much evidence before the Adjudicator. In relation to the position that the respondent occupied at the time of termination of his employment and for "several years" prior to that time, the Adjudicator wrote:

The evidence did not establish Mr. Wygant's job title at the time his employment was terminated with any certainty. Mr. Wygant had held that position for several years. Mr. Carter initially stated that Mr. Wygant had been Director of Cable Advertising when his employment was terminated. In cross-examination, he did not dispute the suggestion that Mr. Wygant's job title had been Director of Cable Broadcasting Services. He candidly stated that he could not recall what Mr. Wygant's job title had been. No position description for Mr. Wygant was produced. The evidence did not establish whether a position description had ever been developed or not. While a position description is not necessarily determinative of a person's job title, duties, office, function, set or bundle of tasks, the failure to establish Mr. Wygant's job title gives rise to the inference of a fundamental lack of information on the part of the witnesses as to what Mr. Wygant did.^[6]

[5]                 The letter terminating the respondent's employment, dated the 18^th of November, 1998, read in part as follows:

As you have been informed, Regional Cablesystems Inc. has acquired all of the shares in Northern Cable Holdings Limited and they were amalgamated together with Sudbury Cable Services Limited, and continued as Regional Cablesystems Inc. ... effective November 1, 1998. As a result, the Employer's operations are being reorganized and we regret to confirm that your employment with the Employer has been terminated effective the 18^th day of November, 1998.

As Regional is not aware of any just cause for termination, in lieu of providing notice of termination, the Employer is prepared to provide you with a severance or termination package, consisting of the following:^[7]

...

[6]                 The respondent's complaint giving rise to the decision of the Adjudicator that is here under review followed.

THE ISSUES

[7]                 In the factum submitted on behalf of the applicant, the issues are identified in the following terms:

-              The Learned Adjudicator erred by adjudicating on a complaint in respect of an employee who was a manager within the meaning of the Canada Labour Code;

-              The Learned Adjudicator erred by failing to address her jurisdiction pursuant to subsection 167 (3) (the question of whether the Respondent was a manager of the Applicant); and

-              The Learned Adjudicator erred by finding a presumption in law in favour of reinstatement as a remedy for an unjust dismissal.      

While the applicant's factum indicates four (4) grounds for the application for judicial review, only the above three (3) issues are identified and I regard the first and second issues as subsets of a single issue.

[8]                 From the respondent's Memorandum of Fact and Law, I derive the following additional issues: first, whether an affidavit filed on this application for judicial review annexing material that was not before the Adjudicator should simply be struck, in whole or in part, or given essentially no weight; and second, whether the respondent should have his costs of this application for judicial review, in any event of the cause, and on a solicitor and own client basis.

[9]                 When this matter came on for hearing before me at Toronto on Friday, the 17^th of January, 2003^[8], only the issues of jurisdiction of the Adjudicator and the new evidence filed on the application for judicial review were considered. Counsel for the applicant submitted that, depending on my decision on those issues, particularly the issue of jurisdiction, the applicant might want to reconsider its position on the balance of the application for judicial review. Counsel for the respondent essentially agreed to divide the hearing. In the result, these reasons will deal only with the issue of the Adjudicator's jurisdiction and the new evidence before the Court.

STATUTORY FRAMEWORK

[10]            Subsection 167(3) of the Code quoted earlier in these reasons, is repeated here for convenience:

167.(3) Division XIV does not apply to or in respect of employees who are managers.

176.(3) La section XIV ne s'applique pas aux employés qui occupent le poste de directeur.

[11]            Sections 240 to 242 of the Code, which are within Division XIV and Part III and are the authority under which the Adjudicator purported to act in arriving at the decision here under review, are set out in Schedule "A" to these reasons.

ANALYSIS

The Impact of Subsection 167(3) on the Adjudicator's Jurisdiction on the Evidence in this Matter

                         i)          A general principle                            

[12]            As a general rule, this Court will not review a decision such as that of the Adjudicator which is here under review on an issue that was not raised before the tribunal. In Toussaint v. Conseil canadien des relations de travail et al^[9], Justice Décary, for the Court, wrote at paragraph 5:

...Even if we admit, for the purposes of argument, that this question could have been argued in this case before an arbitrator and subsequently before the Board, it was not argued, and it has been clearly established that in the context of an application for judicial review this court cannot decide a question which was not raised before the administrative tribunal... .                                                            [citation omitted]

ii)         An exception for jurisdictional issues

[13]            An exception to the foregoing general principle arises where the issue not argued before the tribunal is a jurisdictional issue. In Shubenacadie Indian Band v. Canada (Human Rights Commission)^[10], Justice Rothstein, then of the Trial Division of this Court, wrote at paragraph [39] to [41]:

[39] My concern is with the argument that the Court cannot review a tribunal decision, even where that decision is either in excess of that tribunal's statutory jurisdiction, or is made pursuant to a statutory jurisdiction that is unconstitutional.

40.    In Crevier v. Attorney General of Quebec et al., ..., the Supreme Court of Canada held that a statutory tribunal cannot be immunized from review for errors of jurisdiction. Laskin C.J. states, ...:

. . . if such a tribunal has acted beyond its jurisdiction in making a decision, it is not a decision at all within the meaning of the statute which defines its powers because Parliament could not have intended to clothe such tribunal with the power to expand its statutory jurisdiction by an erroneous decision as to the scope of its own powers. [Emphasis added]

Given that a decision of an administrative tribunal in excess of its jurisdiction "is not a decision at all", it seems paradoxical that the same "decision" would be immunized from review where jurisdiction is never raised and the tribunal's jurisdiction and/or the constitutionality of its enabling legislation is assumed. This is tantamount to saying that parties to an administrative proceeding may, by waiver or acquiesence [acquiescence], confer jurisdiction on a tribunal that was not, or could not be, conferred by Parliament, and that this conferral of authority by the parties is unreviewable once the decision is made. Indeed, it is not difficult to imagine a tribunal falling into jurisdictional error simply because it did not hear arguments on that issue.

Viewed in this light, the decisions of the Federal Court of Appeal in Toussaint, Poirier and Sirois are distinguishable from the case at bar because of the jurisdictional nature of the new arguments being raised here. The Alberta Court of Appeal and Ontario High Court have considered this issue and held that a reviewing court may consider a challenge to a tribunal's jurisdiction that was never raised before the tribunal itself... . I find this approach to jurisdictional questions more consistent with the reasoning in Crevier and conclude that it is appropriate to consider the new jurisdictional arguments raised by the applicant in this proceeding.                                                                                                                  [citations omitted]

[14]            Based upon the foregoing reasoning, I will consider the argument that the Adjudicator whose decision is here under review erred in that she lacked jurisdiction by reason of the fact that the respondent was, at the time his employment was terminated, a manager.

                         iii)        What is a "manager"?

[15]            In Lee-Shanok v. Banca Nazionale del Lavoro of Canada Ltd.^[11], Justice Stone wrote at page 588:

In my view, care must be taken in determining whether a particular complainant is a "manager". Section 61.5 of the Code provides employees not covered by a collective agreement with a remedy against unjust dismissal and the exception found in subsection 27(4) subtracts employees who are "managers" from the body of persons enjoying that right. Consequently, the exception should not be wielded so as to strip the applicant of this protection simply because his job required him to exercise the power of independent decision-making. ...

[16]            After citing the foregoing passage, Justice Marc Noël, then of the Trial Division of this Court, wrote at paragraph [11] in Leontsini v. Business Express Inc.^[12]:

..., it is the nature of the work actually performed, rather than the employee's title or place in the management chain, that must be used to determine whether he or she is a manager within the meaning of s. 167(3). Someone who is part of management and whose primary responsibility is in fact to manage is a manager within the meaning of s. 167(3), whether that person is at the upper or lower end of the management chain.

By contrast to the example cited by Justice Noël, I conclude that someone that is considered by his or her colleagues to be a part of management but whose responsibility is not to manage or is only marginally to manage may well not be a manager within the meaning of subsection 167(3) of the Code.

iv)        The evidence before the Adjudicator and her observations on that evidence

[17]            In addressing her mind to the question of whether or not the respondent's termination of employment was by reason of a discontinuance of function, it was incumbent on the Adjudicator to determine what his duties were at the time. As noted in a quotation from the Adjudicator's preliminary decision on that issue, she determined that even the respondent's job title was at issue, and that the evidence did not establish whether a position description has ever been developed or not. She noted that though a position description was not necessarily determinative of the respondent's duty, office, function, set or bundle of tasks, the failure to establish his job title gave rise "...to the inference of a fundamental lack of information on the part of the witnesses"... as to what the respondent did in the last position that he held before his employment was terminated. I am satisfied that the same failure must logically give rise to an inference of a fundamental lack of information on the part of the witnesses who appeared before the Adjudicator as to whether the respondent was a manager.

[18]            In a letter dated the 21^st of January, 1999 from solicitors for the applicant to the solicitors for the respondent, the following sentence appears:

You have suggested that his [the respondent's] position was upper or senior management. I am advised that in the industry, [the respondent's] position would not be considered to be part of the main stream management at all. He apparently was in a senior salesman position with some supervisory responsibility, with respect to an adjunct to the core cable business, that being the operation of an "ad channel". While the person in that position had an important role to play with respect to that one aspect of the business, that area was not a significant part of the core operation... . Accordingly, [the applicant] disagrees with the suggestion that he was part of the upper or senior management.^[13]

It is interesting to note that this communication appeared to respond to an allegation on behalf of the respondent that his position was upper or senior management. That position was denied on behalf of the applicant. Notwithstanding this, it is now the applicant that is advocating that the respondent was a manager. I draw from the quoted sentences that the applicant not only did not consider the respondent to be within upper or senior management, it did not at the time the letter was written consider him to be a manager at all.

[19]            Once again, in her preliminary decision, not now before the Court on review, the Adjudicator wrote:^[14]

More significantly, the bulk of the evidence regarding [the respondent's] bundle of duties and responsibilities, i.e. the evidence regarding his office or "function" which was said to have been discontinued, ..., was secondhand, i.e. hearsay. While this evidence was heard on consent of counsel for the [respondent], his objection to the hearsay character of the evidence was made in the course of hearing at the outset of the provision of that evidence.

....

Such secondhand evidence, in all the circumstances of this case, leaves an adjudicator unable to assess the reliability, trustworthiness and completeness of it and therefore unable to give it sufficient weight to discharge the burden of proof upon the employer.   

[20]            I am satisfied that, as in the case of an allegation of want of jurisdiction on the part of an adjudicator by reasons of discontinuance of function, a similar burden of proof lies upon an employer who alleges, particularly ex post facto, a want of jurisdiction on the part of an adjudicator by reason that an employee was a manager at the time of termination of his employment.

[21]            On the issue of want of jurisdiction on the part of the Adjudicator by reasons that the respondent was, at the time of his termination, a manager, I reach the same conclusion that the Adjudicator reached "...in all the circumstances of this case, ..." and more particularly on the basis of the evidence, such as it was, that was before the Adjudicator, that I am "...unable to give it sufficient weight to discharge the burden of proof upon [the applicant]" before me.

                         v)         Absence of evidence of the respondent and any presumption to be drawn

[22]            Counsel for the applicant urged that I should draw an adverse inference from the fact that the respondent did not himself, in an affidavit filed before this Court, provide evidence as to his bundle of duties and responsibilities and therefore as to whether he was or was not a manager at the time his employment was terminated. In support of this proposition, counsel cited Levesque et al v. Comeau et al^[15] where Justice Ritchie, in dissenting reasons, at page 428, cited the Trial Judge in the matter there before the Court to the following effect:

It is possible that the evidence of the other doctors who treated Mrs. Levesque from time to time might have cast some light upon the causes of her condition. There can, of course, be no assumption that such evidence would have been favourable to her case. If anything, the assumption would be that it would be unfavourable. In any event its absence leaves unfilled certain gaps in the total story and the doubts thereby raised perhaps harm rather than enhance the plaintiff's position.

[23]            Counsel urged that much the same could here be said about the failure of the respondent to provide the Court with affidavit evidence as to his bundle of duties and responsibilities and therefore as to whether he was a manager or not.

[24]            I find it noteworthy that Justice Ritchie, after quoting the above passage from the Trial Judge determined that the failure to adduce evidence from other doctors should not weigh against Mrs. Levesque.

[25]            Counsel for the applicant further cited Milliken & Co. v. Interface Flooring Systems (Canada) Inc.^[16] where Justice Rothstein, for the majority, wrote at paragraph [11]:

...However, even if the presumption was applicable, the failure to call Ms. Iles to testify as to the creation date indicates as the most natural inference, that the appellants were afraid to call her and this fear is some evidence that if she were called, she would have exposed facts unfavourable to the appellants. In drawing an adverse inference, the learned Trial Judge relied on the following passage from Wigmore on Evidence which is relevant to the issue:

The failure to bring before the tribunal some circumstance, document or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so; and this fear is some evidence that the circumstances or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the parties' fear of exposure. But the propriety of such an inference in general is not doubted.

[26]            I am satisfied that there here existed circumstances "...which make some other hypothesis a more natural one than the parties' fear of exposure." As I have earlier indicated, I am satisfied that the onus to establish its allegation that the applicant was a manager at the time his employment was terminated lay on the applicant. The issue was not raised before the Adjudicator. The evidence that was before the Adjudicator simply failed to make out the case that the respondent was a manager. The respondent was remarkably successful before the Adjudicator. Thus, when the issue of managerial status arose for the first time before this Court, the respondent had nothing to gain by speaking to his status at the time of termination of his employment and, perhaps, much to lose in terms of self image and reputation. He was under no obligation to make out the applicant's case for it. Neither was he under any obligation to put himself through the further discomfort of cross-examination.

[27]            I draw no adverse inference from the failure on the part of the respondent to file an affidavit before this Court attesting as to his bundle of duties and responsibilities at the time his employment was terminated.

                         vi)        The new evidence filed on behalf of the applicant before this Court

[28]            In Gitxsan Treaty Society v. Hospital Employees' Union^[17], Justice Rothstein, for the Court, wrote at paragraph [13]:

...I think the applicant is correct that on judicial review evidence extrinsic to the record before the tribunal whose decision is being reviewed may be introduced. However, the opportunity to do so is limited to those circumstances in which the only way to get at the want of jurisdiction is by the bringing of such new evidence before the reviewing Court.                                                                [emphasis added]

After citing from the reasons of Justice Rinfret in In re McEwen^[18], Justice Rothstein continued:

In the case at bar, the issue is one of the constitutional jurisdiction of the CLRB under the Canada Labour Code. However, this is not a case in which the want of jurisdiction of the Board could only be made apparent on new evidence. The opportunity to introduce new evidence before the reviewing Court is not open simply on the grounds that the applicant chose not to introduce sufficient evidence before the Tribunal or did not comply with required procedure so as to enable the attorneys general to have the opportunity to do so.                           [emphasis added]

[29]            At paragraph 15 of Gitxan, Justice Rothstein concluded:

...The essential purpose of judicial review is the review of decisions, not the determination, by trial de novo, of questions that were not adequately canvassed in evidence at the tribunal or trial court. The latter is what the applicant is inappropriately proposing for this judicial review.   

I am satisfied that, by analogy and at the level of principle, precisely the same might be said here. But for reasons that follow, I need not rely solely on the reasoning in Gitxan.   

[30]            Before this Court, the applicant filed an affidavit of Brendan Paddick, sworn the 14^th of January, 2002,^[19] well after the date of the decision under review.    The affidavit consists of eleven (11) paragraphs and five (5) exhibits. None of the exhibits is "...accurately identified by an endorsement on the exhibit... signed by the person before whom the affidavit is sworn."^[20] The first two paragraphs of the affidavit are purely introductory. Paragraphs 3 to 7 simply reiterate evidence that was before the Adjudicator and identify exhibits to the affidavit that were also before the Adjudicator. Paragraph 8 simply summarizes the content of one of the exhibits. In paragraph 9, the affiant attests that he never worked with the respondent but that he is advised by another individual that in his role prior to the termination of his employment, the respondent had certain responsibilities. Paragraph 10 is once again sworn in part on information and belief. It concludes with the following sentence:

It seems clear to me from the attached, [that is to say the exhibits to the affidavit] and what I know of the position [the respondent] filled that he was above the rank of manager.

[31]            Rule 81(1) of the Federal Court Rules, 1998 provides that affidavits shall be confined to facts within the personal knowledge of the deponent, except when filed on a motion. It goes without saying that the affidavit here in question was not filed on a motion. To the extent that it is made on belief, Rule 81(2) provides that an adverse inference may be drawn from the failure of a party, here the applicant, to provide evidence of persons having personal knowledge of material facts. I draw such an adverse inference.

[32]            I find no value whatsoever in Mr. Paddick's affidavit filed before this Court. It might be more proper to strike the affidavit but, at this late stage, I decline to do so. I will simply ignore it. Except for purposes of preparation of this and the preceding four (4) paragraphs, it has been ignored in the course of preparation of these reasons.

CONCLUSION

[33]            Among the reliefs sought by the applicant on this application for judicial review is "...a finding that the adjudicator had no jurisdiction to hear the complaint of the respondent, Mr. Wygant." When this application is finally disposed of, my Order will include no such finding.

[34]            Counsel for the applicant and counsel for the respondent will have two (2) weeks from the date these reasons are issued to consider their implications for the balance of this application for judicial review. Within that two-week period, one or both counsel should contact the Registry of this Court in Toronto to advise of their positions. If necessary, I would be pleased to arrange, through the Registry of the Court, a teleconference to discuss with counsel "next steps".

[35]            For the present, no Order will issue.

______________________________

     J. F.C.C.

Ottawa, Ontario

February 25, 2002

                                           SCHEDULE "A"

240. (1) Subject to subsections (2) and 242(3.1), any person

(a) who has completed twelve consecutive months of continuous employment by an employer, and

(b) who is not a member of a group of employees subject to a collective agreement,

may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

(2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.

(3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.

241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.

2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.

(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),

(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and

(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.

240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si_:

a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;

b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective.

(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.

(3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l'intéressé a déposé sa plainte à temps mais auprès d'un fonctionnaire qu'il croyait, à tort, habilité à la recevoir.

241. (1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l'employeur de lui faire connaître les motifs du congédiement; le cas échéant, l'employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande.

(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.

(3) Si la conciliation n'aboutit pas dans un délai qu'il estime raisonnable en l'occurrence, l'inspecteur, sur demande écrite du plaignant à l'effet de saisir un arbitre du cas_:

a) fait rapport au ministre de l'échec de son intervention;

b) transmet au ministre la plainte, l'éventuelle déclaration de l'employeur sur les motifs du congédiement et tous autres déclarations ou documents relatifs à la plainte.

242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).

(2) An adjudicator to whom a complaint has been referred under subsection (1)

(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;

(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and

(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).

(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall

(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where

(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or

(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.

(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;

(b) reinstate the person in his employ; and

(c) 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.

242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement.

(2) Pour l'examen du cas don't il est saisi, l'arbitre_:

a) dispose du délai fixé par règlement du gouverneur en conseil;

b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;

c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).

(3) Sous réserve du paragraphe (3.1), l'arbitre_:

a) décide si le congédiement était injuste;

b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre.

(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants_:

a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;

b) la présente loi ou une autre loi fédérale prévoit un autre recours.

(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;

b) de réintégrer le plaignant dans son emploi;

c) de prendre toute autre mesure qu'il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier.

                          FEDERAL COURT OF CANADA

                                       TRIAL DIVISION

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                 T-1808-01

STYLE OF CAUSE: REGIONAL CABLESYSTEMS INC. v.

ROBERT G. WYGANT

PLACE OF HEARING:         TORONTO, ONTARIO

DATE OF HEARING:           JANUARY 17, 2003

REASONS FOR ORDER OF GIBSON, J.

DATED:                                    FEBRUARY 25, 2003

APPEARANCES:

Hugh A. Christie                                    FOR THE APPLICANT

George Vassos                         FOR THE RESPONDENT

SOLICITORS OF RECORD:

Gowling LaFleur Henderson LLP           FOR THE APPLICANT

Barristers & Solicitors

Toronto, Ontario

Kuretzky Vassos LLP             FOR THE RESPONDENT

Barristers & Solicitors

Toronto, Ontario