Date: 20030313
Docket: T-294-03
Neutral Citation: 2003 FCT 302
Ottawa, Ontario, March 13, 2003
Present: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
WATERHEN LAKE FIRST NATION
Applicant
and
MICHELLE ERNEST, LEONARD VINCENT,
DONALD MARTELL, JOANNE MARTELL and
ATTORNEY GENERAL OF CANADA
Respondents
REASONS FOR ORDER AND ORDER
[1] The applicant seeks a stay of execution of the decision of arbitrator Mr. Frank Moorgan, pending the applicant's application for judicial review of the matter.
[2] The respondents are members of the applicant, the Waterhen Lake First Nation. In November 2001, the respondents were dismissed from their employment with the applicant. The alleged reason given for the dismissal was that they participated in a protest and blockade that occurred on the Waterhen Lake First Nation Band Offices in October 2001.
[3] The respondents brought a wrongful dismissal action pursuant to the provisions of the Canada Labour Code. An adjudicator, Mr. Frank Moorgen was appointed to hear the respondents' complaints by way of adjudication.
[4] On January 21, 2003, the adjudicator issued an interim award without reasons, ordering the applicant to reinstate the respondents and to pay each of them an amount of $3000 as costs to cover expenses they incurred as a result of their unjust termination. The matter of the amount of monetary loss suffered by the respondents has not been referred to the adjudicator for finalization.
[5] On February 19, 2003, the applicant filed an application to the Federal Court Trial Division for judicial review of the decision of the adjudicator.
[6] The respondents have not been reinstated nor been paid costs to this date.
[7] In order for the Court to grant a stay of execution, the applicant must satisfy a threefold test, established by the Supreme Court of Canada in R.J.R. MacDonald Inc. v. Canada (Attorney General), [1994] 1 S.C.R. 311. Pursuant to this test, the applicant must show that there is a serious issue to be tried, that it will suffer irreparable harm if the injunction is not granted and that the balance of convenience favours the applicant. The test is conjunctive. The applicants are only entitled to the relief sought if they satisfy all three aspects of the test.
[8] With respect to the first part of the test, I am of the view that serious issues have been raised by the applicant. Firstly, whether the applicant was denied a fair hearing when the adjudicator refused to allow the reopening of its case after the departure of previous counsel. Secondly, whether the adjudicator exhibited a reasonable apprehension of bias by making certain comments. And thirdly, whether the decision of the adjudicator was patently unreasonable given that at the hearing, he rejected in its entirety the evidence of the applicant while accepting the evidence of the respondents, despite cogent and relevant contradictions. These issues certainly meet the low threshold of an arguable case.
[9] With respect to irreparable harm, the applicant argues that there is a real risk that the Band would suffer incalculable damages should the relief not be granted. The respondents are disloyal and have directed animosity to the administration of Chief Sid Fiddler. If reinstated, contact between the respondents and the Chief and other Band Officials would occur on a regular basis, a situation that is fraught with inestimable problems. Furthermore, the respondents will have access to sensitive information. Finally, the payment of the award would cripple Band operations and deprive Band members of funds for further projects that would benefit each and every member of the Band. It would also cause financial stress that would result in incalculable damage to the reputation, integrity and longevity of the administration of Chief Sid Fiddler.
[10] In my view, these allegations do not meet the high threshold imposed by the jurisprudence, i.e. the applicant must present clear evidence that it would suffer damage or that the damage would be irreparable. (Syntex Inc. v. Novopharm Ltd. (1991), 36 C.P.R. (3d) 129; Centre Ice Ltd. v. National Hockey League, [1994] F.C.J. No. 68 (Q.L.)).
[11] The first allegation, that the respondents are disloyal and have directed animosity towards Chief Sid Fiddler, is merely speculative and not supported by the evidence. The respondents deny any animosity towards Chief Sid Fiddler. This allegation was also made during the adjudication and found to be without substance.
[12] The second allegation, that the respondents will have access to sensitive information, is also without merit. The respondents are employed as a receptionist, maintenance worker, finance clerk, and recreation director. Although the finance clerk may be the only one who could have access to some sensitive information, the applicant has failed to show how such access would cause it irreparable harm.
[13] Finally, the applicant's third allegation that the payment of the award would cripple Band functions is entirely speculative. Furthermore, the applicant's allegation that the financial payout would cause incalculable damage to the reputation and integrity of the administration of Chief Sid Fiddler does not demonstrate how the award would cause irreparable harm to the Band itself.
[14] As a result, the applicant has advanced no clear evidence which demonstrates that it will suffer irreparable harm if the stay of execution is not granted.
[15] With respect to the balance of convenience, on the one hand, the applicant submits that should the application for stay of execution of the order not be granted, given the respondents' disloyalty and animosity towards the administration of Chief Sid Fiddler, to have them reinstated to their employment position would create a greater harm to the applicant than to the respondents if such application were granted. This harm would be impossible to assess in monetary terms and at any rate, any monies provided to the respondents would not be recoverable given that they are impecunious.
[16] On the other hand, the respondents point out that they have been dismissed since November 2001. During this time, only one of the respondents has been able to locate meaningful employment. They all live in a relatively remote location where employment prospects are few. Relocation would be a substantial hardship in that it would force them to move away from friends and family. In addition, the unjust dismissal has caused the respondents enormous hardship, where they have suffered damage to their personal reputations in the community. Further delay would only aggravate the financial stress caused by the unjust dismissal.
[17] In light of the fact that the applicant has not satisfied the second part of the test, it is not necessary for me to look at the balance of convenience. However, in my opinion, further delay in reinstatement and the financial hardship caused by the loss of wages to the respondents outweighs any inconvenience that the applicant would suffer if the stay is not granted.
[18] For these reasons, the motion for a stay of execution is dismissed with costs.
ORDER
The motion for a stay of execution is dismissed with costs.
"Danièle Tremblay-Lamer"
J.F.C.C.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-294-03
STYLE OF CAUSE: WATERHEN LAKE FIRST NATION v. MICHELLE ERNEST ET AL.
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: MARCH 12, 2003
REASONS FOR ORDER AND ORDER : THE HONOURABLE MADAM JUSTICE TREMBLAY-LAMER
DATED: MARCH 13, 2003
APPEARANCES:
MR. GREGORY CURTIS FOR APPLICANT
MR. SCOTT MACDONALD FOR RESPONDENTS OTHER THAN AGC
NO APPEARANCE FOR RESPONDENT AGC
SOLICITORS OF RECORD:
SEMAGANIS WORME & MISSENS
SASKATOON, SK. FOR APPLICANT
WALLACE MESCHISHNICK CLACKSON FOR RESPONDENTS OTHER
ZAWADA THAN AGC
SASKATOON, SK.
MORRIS A. ROSENBERG FOR RESPONDENT AGC
DEPUTY ATTORNEY GENERAL OF CANADA
SASKATOON, SK.
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