Date: 20030619
Docket: T-1116-01
Citation: 2003 FCT 762
BETWEEN:
MCQ HANDLING INC.
Applicant
- and -
CHARLES MOULTON
Respondent
REASONS FOR ORDER
LEMIEUX J.:
BACKGROUND FACTS
[1] MCQ Handling Inc. (the "applicant" or "MCQ"), is in the business of garbage and refuse pick-up and disposal. It hired Charles Moulton, the respondent, on January 25, 1999, as a long-distance truck haulage driver and terminated him on February 2, 2001.
[2] The respondent was aggrieved. He first went to the offices of Labour Ontario in London, Ontario. He was asked if MCQ truck drivers drove for the company outside of Ontario. He answered "Yes" because, to his knowledge, one driver working for MCQ, H. DeVries, travelled frequently to Michigan. Labour Ontario sent him to see Labour Canada.
[3] Charles Moulton filed a complaint on February 10, 2000, under Part III of the Canada Labour Code (the "Code") claiming he had been unjustly dismissed.
[4] The matter went to adjudication before Michael Lynk who was appointed pursuant to subsection 242(1) of the Code to hear the complaint. Legal counsel were not involved before Adjudicator Lynk and it is agreed MCQ did not challenge before the Adjudicator his jurisdiction to hear the complaint on the ground MCQ was not a federal undertaking in that all of its business was conducted wholly within Ontario.
THE AWARD
[5] In an August 25, 2000 award, Adjudicator Lynk found in favour of the respondent essentially on the ground his termination was excessive for the fault which was the cause of his termination. A more appropriate disciplinary action, in the Adjudicator's view, was a two-day suspension without pay and a letter of reprimand.
[6] The Adjudicator concluded as follows:
Otherwise, within the remedial authority granted to me by the Canada Labour Code, I order that Mr. Moulton's complaint is to be upheld, and that the Employer is to reinstate him forthwith to the position that he held at the time of his unjust termination. I also order that the Employer is to pay Mr. Moulton all of his back wages and benefits, with interest (minus two days of pay as a result of the suspension), subject to the rule that a reinstated employee must mitigate his or her damages.
Should the parties have any difficulty in implementing this award, I shall retain jurisdiction to bring these outstanding matters to a final resolution.
[7] After his termination, Charles Moulton quickly found employment as a driver with two trucking companies and later became an owner-operator. He had no interest in reinstatement with MCQ and opted for damages for lost wages and benefits where mitigation became a central issue. MCQ took the position it owed nothing to the respondent because he made more money working for others than he did working for it.
[8] The parties made written submissions to the Adjudicator. In a letter dated April 26, 2001, MCQ argued, in response to what Charles Moulton had put forward, Charles Moulton could not deduct expenses incurred as an owner/operator. MCQ concluded its submission, written by one of its managers, stating:
Additionally our lawyer has now advised us that MCQ Handling did not fall under the governance of the Canada Labour Code at the time of the complaint. However, we have tried to be fair and forthright in dealing with the outstanding remedial issue.
[9] On May 30, 2001, the Adjudicator issued his supplementary award on remedies. He favoured Mr. Moulton's position with an award of damages of $17,421.00 with interest.
THE PROCEEDINGS
[10] On June 22, 2001, this proceeding was launched by MCQ. In its notice of application for judicial review, the applicant stated it was in respect of "an award and supplementary award on remedy made August 25th, 2000 and May 30th, 2001, respectively...".
[11] As a remedy, MCQ sought:
(1) an order "quashing or setting aside an award and supplementary award dated August 25th, 2000 and May 30th, 2001, respectively in favour of the Respondent...";
(2) an order "allowing an extension of time within which the application for Judicial Review may be brought pursuant to Section 18.1(2) of the Federal Court Act, if required".
[12] In its application, under the heading "Grounds for the Application", MCQ stated:
3. The Applicant was unrepresented in the proceeding under the Canada Labour Code ..., to which this application for Judicial Review refers and was unaware that it was not an employer to whom the Canada Labour Code applies such that the Complainant could not bring his claim for unjust dismissal for an adjudication ... and that, therefore, the adjudicator proceeded without jurisdiction in both granting the award and providing a supplementary award on remedy;
[13] In this proceeding, MCQ challenged the Adjudicator's two awards on the ground the Code did not apply to it because, at all relevant times, it was a provincial undertaking and not a federal one.
[14] MCQ did not challenge before me the merits of the Adjudicator's decision.
[15] MCQ advanced the following reasons for stating it was not subject to the Code:
(1) During the time of the respondent's employment with it, MCQ rented, on a brokerage arrangement, a truck driven exclusively by H. DeVries to Harold Marcus Trucking Ltd. ("Marcus Trucking") a company which held a licence from the Interstate Commerce Commission, the federal regulator in the United States. That arrangement which started on December 17, 1998, came to an end on January 18, 2001. It is admitted for the Marcus Trucking movements, the customers and shippers were Marcus' and not MCQ's.
(2) At the time Charles Moulton was fired by MCQ, however one might characterize the Marcus Trucking movements, that arrangement was no longer in effect and MCQ's business was carried out wholly within the boundaries of Ontario.
(3) Such was the case when Mr. Moulton made his complaint under the Canada Labour Code.
(4) MCQ obtained an ICC licence on March 24, 2001.
CONCLUSIONS
[16] For two reasons, I am of the view this judicial review application must be dismissed.
[17] The first reason relates to the need for MCQ to obtain leave of this Court to extend the time to commence this judicial review proceeding.
[18] Subsection 18.1(2) of the Federal Court Act stipulates an application for judicial review must be launched within thirty days after the decision of the federal tribunal was first communicated to the applicant.
[19] I agree with counsel for the respondent the relevant decision subject to judicial review was Adjudicator Lynk's August 25, 2000 award in which he found Mr. Moulton had been unjustly terminated, must be reinstated and must be paid his back wages with benefits subject only to the duty to mitigate his damages.
[20] This case is strikingly similar to the case before Justice MacKay and his decision in Joudrey v. Canadian Atlantic Railway, [1995] F.C.J. No. 1159, where an adjudicator appointed under section 240 of the Code decided in September 1992 an employee had been unjustly dismissed, did not order reinstatement but the payment of the equivalent of one year's salary and stated "in the event that the parties are unable to calculate the amount of such payment, I shall remain seized of that aspect of the case".
[21] At paragraph 23 of his reasons, Justice MacKay ruled:
¶ 23 In my opinion, the adjudicator's determinations made in September 1992 were decisions subject to judicial review, and proceedings for that purpose ought to have been commenced, in accord with s-s. 18.1(2) of the Federal Court Act, within 30 days of knowledge of the decision by the applicant. Counsel's reliance, after the first decision, on his own understanding of the process the adjudicator was likely to follow, or in counsel's view had agreed to follow and by law was required to follow, was unreasonable, at least after it became clear that opposing counsel and the adjudicator did not share that view. The issues the applicant raises by these proceedings relate to the decision of September 1992. In these circumstances, it is my opinion that the application for judicial review was not filed within the time limited by the Act.
[22] As in Joudrey, supra, in this case, the issue the applicant raises relates to the Adjudicator's findings in August 2000 concerning unjust termination, reinstatement and back wages. His May 30, 2001 determination was ancillary to his first award retaining jurisdiction simply for the purpose of assisting the parties in implementing the award.
[23] The question then arises whether the Court should extend the time for the commencement of judicial review proceedings. The test is well known and was recently stated by the Federal Court of Appeal in Canada (Attorney General) v. Hennelly (1999), 244 N.R. 399, where MacDonald J.A. wrote at paragraph 3 the following:
¶ 3 The proper test is whether the applicant has demonstrated
1. a continuing intention to pursue his or her application;
2. that the application has some merit;
3. that no prejudice to the respondent arises from the delay; and
4. that a reasonable explanation for the delay exists.
[24] In my opinion, MCQ did not have a continuing intention to pursue this judicial review application nor did it offer any reasonable explanation for the delay.
[25] The record convinces me MCQ had no intention to challenge the Adjudicator's decision at any relevant time after the Adjudicator's August 31, 2000 award and before his May 30, 2001 supplementary award.
[26] Confronted with Mr. Moulton's complaint and the Adjudicator's proceeding, MCQ's approach was informal and low key. MCQ's stance was in conformity with the spirit of the Code which strives for the expeditious resolution of disputes. After the August 2000 award, it accepted it and held discussions on its implementation. Rather than challenging the Adjudicator's award after it received advice from legal counsel, MCQ made submissions to the Adjudicator on the issue of damages and mitigation. It was hopeful the Adjudicator would find in its favour.
[27] In the circumstances, the required intent was not present and no satisfactory explanation was forthcoming from MCQ why it did not launch the proceedings within the required time .
[28] The second reason for dismissing this judicial review application arises from the fact its thrust relates to a constitutional challenge about the operability of the Canada Labour Code and specifically whether MCQ is a federal undertaking as defined in section 2 of the Code. As noted, this was an issue not the subject of evidence nor debated before the Adjudicator surfacing for the first time in this judicial review proceeding.
[29] The Federal Court of Appeal in Halifax Longshoremen's Assn., Local 269 v. Offshore Logistics Inc., [2000] F.C.J. No. 1155, was confronted with a similar problem where in a judicial review proceeding from a decision of the Canada Industrial Relations Board, that Court was faced with an issue not raised before the Board namely, whether the operations of Offshore Logistics, in pith and substance, were related to intra-provincial shipping. Justice Rothstein, on behalf of the Court, wrote the following at paragraph 59:
¶ 59 The result is that the matter was not in issue before the Board. Relevant evidence was not adduced. The Board did not pronounce upon the issue and now this Court, on the basis of an inadequate record and de novo, is asked to decide the issue. I think the observations of Dickson J. in Northern [1980] 1 S.C.R. 115">Telecom v. Communications Workers, [1980] 1 S.C.R. 115, at 140, are apt here:
Telecom did not raise the constitutional question before the Board, nor did [1980] 1 S.C.R. 115">Telecom there take the position that the Board lacked a prima facie basis of facts upon which it could conclude that it had jurisdiction. Absent any serious challenge to its jurisdiction, the Board dealt with this issue briefly and assumed jurisdiction. [1980] 1 S.C.R. 115">Telecom, by its actions, effectively deprived a reviewing Court of the necessary "constitutional facts" upon which to reach any valid conclusion on the constitutional issue.
After consideration of the full record in all its thirteen volumes, a record which the Court did not have available to it upon granting leave, I have concluded that this Court is in no position to give a definitive answer to the constitutional question raised. I think we must leave that question to another day and dismiss the appeal simply on the basis that the posture of the case is such that the appellant has failed to show reversible error on the part of the Canada Labour Relations Board.
It would be inappropriate in the circumstances here for this Court to decide the constitutional question relating to intra provincial shipping.
[30] I observe, in this proceeding, some evidence was adduced before the Court on MCQ's operations but I am not at all satisfied the evidentiary record is complete particularly in respect of the brokerage arrangement with Marcus Trucking and the circumstances which led MCQ to obtain a licence from the ICC in March 2001.
[31] Had the matter been raised before the Adjudicator, he would have had an opportunity to delve into all of the issues relevant to a determination of the constitutional operability of the Code. The Court was confronted with a written record and had no opportunity to explore with live witnesses some of the concerns which it expressed to both counsel during the hearing of this matter.
[32] On a subsidiary point, no notice of constitutional question was given to the Attorney General of Canada and the Attorney General of each province as required by section 57 of the Federal Court Act. The constitutional issue related to the operability of the Canada Labour Code to the operations of the applicant. Such was also the case in Offshore, supra, and I note Justice Rothstein's discussion of this issue at paragraphs 57 and 58 of his reasons for judgment why a Federal Court Act section 57 notice is necessary.
[33] For all of these reasons, this judicial review application is dismissed with costs.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
JUNE 19, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-1116-01
STYLE OF CAUSE: MCQ HANDLING INC. v. CHARLES MOULTON
PLACE OF HEARING: LONDON
DATE OF HEARING: JUNE 11, 2003
REASONS FOR [ORDER ] : HONOURABLE MR. JUSTICE LEMIEUX
DATED: June 19, 2003
APPEARANCES:
Raymond F. Leach
For the Applicant
Andrew F. Camman
For the Respondent
SOLICITORS OF RECORD:
SISKIND, CROMARTY, IVEY
& DOWLER LLP
Barristers & Solicitors
London, ON
For the Applicant
POLISHUK CAMMAN & STEELE
Barristers & Solicitors
London, ON
For the Respondent
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