Date: 20031001
Docket: T-1187-01
Citation: 2003 FC 1117
Between:
THE ST. LAWRENCE SEAWAY
MANAGEMENT CORPORATION
Applicant
- and -
MS. MICHELLE BOURGEOIS
Respondent
REASONS FOR ORDER
PINARD J.:
[1] This is an application for judicial review of the decision, dated June 6, 2001, of René Beaudry, an adjudicator appointed under section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code), by which he (the adjudicator) found in favour of the complaint of unjust dismissal filed by the respondent under section 240 of the Code.
The facts
[2] The respondent had been employed by the St. Lawrence Seaway Authority (the Authority) since December 9, 1985. This employment ended on September 30, 1998, following a government decision pursuant to the Canada Marine Act, S.C. 1998, c. 10 (the Act) to transfer the Authority's public service to a not-for-profit body, the applicant (the Corporation).
[3] By a letter dated July 31, 1998, the Authority informed the respondent of the scheduled transfer and the fact that her employment with the Authority was going to have to be terminated on the day of the transfer, September 30, 1998. The respondent was further notified that she would not be designated an employee of the Corporation by the Minister of Transport.
[4] However, by a letter dated September 22, 1998, the Authority offered the respondent a job for one year with the Corporation. Also on September 22, 1998, a letter from Michel Fournier, the president of the Authority, stated that the respondent had been included in a list of designated employees whose jobs could be transferred to the Corporation. The respondent was thereby an "eligible employee" for the transfer. At the same time, the respondent received a third letter, dated September 22, 1998, this one from Robert J. Swenor, Director of the Corporation, indicating the terms of the transfer.
[5] On September 23, 1998, the respondent accepted a position as an administrative clerk within the Corporation for a term of one year, in accordance with the offer of September 22, 1998.
[6] On September 30, the agreement was executed between the Authority and the Corporation concerning the transfer of employees on October 1, 1998.
[7] In September 1999, the respondent's term of employment as a clerk expired, but she nevertheless continued to work for the Corporation, as it still needed her services.
[8] By a letter dated March 10, 2000, the respondent was informed of the termination of her temporary employment effective April 28, 2000, owing to changes taking place in the administrative services as the result of new technology. It is worth reproducing this letter:
[translation]
March 10, 2000
Ms. Michelle Bourgeois
...
Re: Notice of termination of employment - Maisonneuve Region
Dear Madam,
This confirms that your temporary assignment as administration Clerk C10B in the St. Lawrence Seaway Management Corporation will end on April 28, 2000. Changes in terms of administrative services through the introduction of new technology have led us to review our staffing needs, and it is with regret that we notify you of the end of your employment.
As was stated during your conversation with Michel Gagnon last March 3, the Corporation is offering you the payment of a severance amount equivalent to eleven (11) months of salary, which will amount to $39,384.79. In addition, you may, upon request, have the services of the RCGT firm to assist you in looking for employment and preparing your curriculum vitae. If you have any particular requests during the coming weeks, we can look into how we might assist you.
If you have any questions, feel free to address them to me. Please consider this letter as your advance notice of termination of employment.
In closing, I wish to thank you for the efforts and collaboration that you have demonstrated since your assignment to the Maisonneuve region and wish you good luck in the successful pursuit of your professional life.
The Vice-president for the Maisonneuve region,
Michel Drolet
c.c.: A. Latour
M. Guérin
C. Poirier
M. J. Véronneau
[9] On March 29, 2000, the respondent presented a claim to Mr. Michel Gagnon, the applicant's representative, asking that she be reinstated with the Corporation with permanent employee status.
[10] On April 17, 2000, Mr. André Latour, on behalf of the applicant, answered the respondent's claim and confirmed that as a result of the abolition of her permanent position with the Authority and the fact that she had accepted temporary employment with the Corporation, her employment relationship with the Corporation was temporary, and this temporary employment had ended on April 28, 2000.
[11] Following these letters of March 10 and April 17, 2000, the respondent availed herself of two remedies provided in the Code: an appeal under section 251.11 and a complaint of unjust dismissal under section 240.
[12] Only the second proceeding was followed by the appointment by the Minister of Labour of an adjudicator, Mr. René Beaudry, whose decision is the subject of the current litigation. In her affidavit of September 6, 2001, the respondent states that she reserves the right to request the appointment of an adjudicator to hear and decide her appeal under section 251.11 of the Code, should the present application for judicial review be allowed.
The adjudicator's decision
[13] The adjudicator found that the respondent had always been a permanent employee of the Corporation and that she was therefore unjustly dismissed:
[translation] When all is said and done, I am duty-bound to find that the St. Lawrence Seaway Management Corporation breached its obligation to provide employment to Ms. Bourgeois on October 1, 1998, in accordance with her status as an unrepresented permanent eligible employee.
[14] The adjudicator accordingly ordered that the respondent be reinstated in the Corporation in her status as an unrepresented permanent eligible employee on the same terms of employment she had enjoyed until September 30, 1998 inclusive, and that she be paid the equivalent in salary and other benefits that she had been deprived of effective October 1, 1998.
Statutory provisions
[15] The following are the relevant provisions of the Code:
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189. (1) Where any particular federal work, undertaking or business, or part thereof, in or in connection with the operation of which an employee is employed is, by sale, lease, merger or otherwise, transferred from one employer to another employer, the employment of the employee by the two employers before and after the transfer of the work, undertaking or business, or part thereof, shall, for the purposes of this Division, be deemed to be continuous with one employer, notwithstanding the transfer.
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189. (1) En cas de cession d'un employeur à un autre - notamment par vente, bail ou fusion - de tout ou partie de l'entreprise fédérale où elle travaille, la personne employée auprès de l'un et l'autre est, pour l'application de la présente section, réputée n'avoir pas cessé de travailler pour un seul employeur.
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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.
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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.
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(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.
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(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.
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(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.
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(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.
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242. (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.
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242. (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.
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(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.
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(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.
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(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.
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(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.
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243. (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or ortherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.
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243. (2) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.
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246. (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.
(2) Section 189 applies for the purposes of this Division.
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246. (1) Les articles 240 à 245 n'ont pas pour effet de suspendre ou de modifier le recours civil que l'employé peut exercer contre son employeur.
(2) L'article 189 s'applique dans le cadre de la présente section.
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251.11 (1) A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister, in writing, within fifteen days after service of the order, the copy of the order, or the notice.
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251.11 (1) Toute personne concernée par un ordre de paiement ou un avis de plainte non fondée peut, par écrit, interjeter appel de la décision de l'inspecteur auprès du ministre dans les quinze jours suivant la signification de l'ordre ou de sa copie, ou de l'avis.
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(2) An employer or a director of a corporation may not appeal from a payment order unless the employer or director pays to the Minister the amount indicated in the payment order, subject to, in the case of a director, the maximum amount of the director's liability under section 251.18.
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(2) L'employeur et l'administrateur de personne morale ne peuvent interjeter appel d'un ordre de paiement qu'à la condition de remettre au ministre la somme visée par l'ordre, sous réserve, dans le cas de l'administrateur, du montant maximal visé à l'article 251.18.
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The issue
[16] Fundamentally, the issue is whether, under paragraph 242(3.1)(a) of the Code, the adjudicator had jurisdiction to hear the respondent's complaint.
Analysis
[17] Concerning the application of subsection 242(3.1) of the Code, the standard of review, as the parties themselves acknowledge, is absence of error or correctness, since this is a statutory provision that limits the powers and authority of the adjudicator. It should suffice, in this regard, to refer as well to the following cases: Union des employés de service, local 298 v. Bibeault, [1988] 2 S.C.R. 1048, Canada Post Corporation v. Pollard, [1994] 1 F.C. 652 (C.A.), Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (C.A.), Beothuk Data Systems Ltd., Seawatch Division v. Dean, [1996] 1 F.C. 451 (T.D.), Moricetown Indian Band v. Morris and Dennis (1996), 120 F.T.R. 162 and Rogers Cablesystems Ltd. v. Roe (2000), 193 F.T.R. 240.
[18] In her written complaint appended to the notice sent to the applicant by the labour standards inspector, Yves Laberge, on June 28, 2000, the respondent explains that her occupation as an administrative clerk level C-6 in the applicant's employment terminated on April 28, 2000. The letter of June 28, 2000, to which this complaint was appended, reads as follows:
[translation]
June 28, 2000 File No.: Z3013
Subpoena No.: 200W0529
ST. LAWRENCE SEAWAY AUTHORITY
P.O. Box 97
St-Lambert Lock #1
St-Lambert, QUEBEC
J4P 3N7
C/O Human Resources Director
Re: Part III of the Canada Labour Code/Complaint of Unjust Dismissal
Ms. MICHÈLE BOURGEOIS/ST. LAWRENCE SEAWAY AUTHORITY
A complaint has been filed with Human Resources Development Canada (HRDC) - Labour Program under section 240 of the Canada Labour Code, Part III, by Ms. MICHÈLE BOURGEOIS, who alleges she was unjustly dismissed from her position by the ST. LAWRENCE SEAWAY AUTHORITY on April 28, 2000. Attached hereto is a copy of the said complaint.
Pursuant to subsection 241(1) of the Canada Labour Code, Part III, you are requested to provide the undersigned with a written statement giving the reasons for this dismissal within fifteen (15) days following receipt of this request. Please note that a copy of your letter will be given to the complainant. If you have any questions concerning this matter, do not hesitate to contact me at the address or telephone number indicated below.
Thank you for your assistance.
Yours truly
YVES LABERGE
Inspector (Labour Standards)
Human Resources Development Canada
Labour Directorate
715 Peel Street
3rd Floor
Suite 309
Montréal, Quebec
H3C 3H6
Telephone (514) 866-7653 (3231)
Fax: (514) 283-5748
Email: yves.laberge@hrdc-drhc.gc.ca
enc.
c.c.: Ms. MICHÈLE BOURGEOIS
Me BUSSIÈRE
[19] The respondent's occupation at the date of termination of her employment, April 28, 2000, was indeed the one described in her complaint, i.e. the temporary occupation she had accepted in writing and confirmed on September 23, 1998, by both the Authority and the Corporation.
[20] At page 2 of his decision, the adjudicator reproduces the letter of March 10, 2000, announcing to the respondent the end of her employment on April 28, 2000, and states that this is the letter at the origin of the respondent's complaint that has been referred to him for adjudication by the Minister of Labour.
[21] This letter of March 10, 2000, clearly attributes the end of the respondent's employment to the review of the staffing needs of the applicant resulting from "Changes in terms of administrative services through the introduction of new technology". There is nothing in the record that contradicts this statement confirming the discontinuance of the function held by the respondent at the time of her dismissal.
[22] It is settled law that there is a "discontinuance of a function" when the function is abolished and the tasks or duties are distributed among other employees in the context of a centralization or reorganization of the employer's activities (see Flieger v. New Brunswick, [1993] 2 S.C.R. 651, Mudarth v. Canada (Minister of Public Works), [1989] 3 F.C. 371 (T.D.), Atomic Energy of Canada v. Jindal (1998), 229 N.R. 212 and Re Canadian Airlines International Ltd. v. Husain (1998), 161 D.L.R. (4th) 381 (F.C.A.)).
[23] The respondent placed great reliance on the correspondence of September 22, 1998, that was sent to her and the framework agreement of September 30, 1998, between the Authority and the Corporation concerning the transfer of employees as of October 1, 1998. The respondent argues that this documentation undermines the good faith of the applicant which, in dismissing her, overlooked her status as a permanent employee. In my opinion, we cannot talk of bad faith by the employer because the respondent herself had signified, prior to the public service transfer from the Authority to the Corporation, her acceptance in writing of the temporary occupation she held at the time of her dismissal. In the circumstances, although this documentary evidence may be open to interpretation, as the respondent argues, it still does not undermine the presumption of the applicant's good faith.
[24] Thus, the record clearly discloses that the respondent was in fact dismissed on April 28, 2000, owing to the discontinuance of the function she was occupying immediately prior to this dismissal. Absent bad faith on the part of the employer, the adjudicator had no jurisdiction, therefore, under paragraph 242(3.1)(a), to hear the respondent's complaint.
Conclusion
[25] The adjudicator's decision is therefore in error and it is set aside. The costs will be awarded against the respondent, in favour of the applicant.
"Yvon Pinard"
Judge
OTTAWA, ONTARIO
October 1, 2003
Certified true translation
Suzanne Gauthier, C. Tr., LL.L.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1187-01
STYLE: THE ST. LAWRENCE SEAWAY MANAGEMENT CORPORATION V. MS. MICHELLE BOURGEOIS
PLACE OF HEARING: Montréal, Quebec
DATE OF HEARING: September 9, 2003
REASONS FOR ORDER OF: The Honourable Mr. Justice Pinard
DATED: October 1, 2003
APPEARANCES:
Pierre Trépanier FOR THE APPLICANT
Jean-Pierre G. Bussières FOR THE RESPONDENT
SOLICITORS OF RECORD:
Heenan Blaikie FOR THE APPLICANT
Montréal, Quebec
Bussières, Boulanger, Racine
et Langevin FOR THE RESPONDENT
Sainte-Foy, Quebec
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