Date: 20051026
Docket: T-606-05
Citation: 2005 FC 1448
OTTAWA, Ontario, October 26th, 2005
PRESENT: THE HONOURABLE MR. JUSTICE KELEN
BETWEEN:
FISHINGLAKE FIRST NATION
Applicant
and
DEBORAH CAROL PALEY
Respondent
REASONS FOR ORDER AND ORDER
[1] This is an application for judicial review of a decision of the Adjudicator Frank P. Moorgen dated March 11, 2005 which ordered the applicant disclose to the respondent the annual salary of one of its employees. The applicant seeks an order quashing the decision and declaring the adjudicator to be functus officio. In an earlier decision the adjudicator had found the respondent wrongfully dismissed by the applicant, and ordered the applicant compensate the respondent.
FACTS
[2] The applicant, Fishing Lake First Nation, employed the respondent, Deborah Carol Paley, as a teacher until her dismissal on September 2, 2003. The respondent complained that she was unjustly dismissed to an inspector under subsection 240(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 (the "Code"), upon whose report the Minister of Labour for Canada referred the matter to the adjudicator pursuant to subsection 242(1) of the Code.
The First Order
[3] In a 24-page decision dated November 26, 2004 (the first order), the adjudicator found that the applicant unjustly dismissed the respondent. Under subsection 242(4) of the Code, the adjudicator ordered the applicant pay monetary compensation to the respondent in an amount equalling the salary paid to the employee who replaced the respondent, Ms. McKee (McKee), between September 2, 2003 and the commencement of the 2004-2005 school year (the relevant period).
Federal Court Order dated March 7, 2005
[4] In January 2005, the applicant brought a motion in Federal Court seeking an order granting an extension of time in which to bring an application for judicial review of the first order. By order dated March 7, 2005, Harrington J. dismissed the applicant's motion, and held that the application discloses "no serious argument".
The Second Order
[5] Since the applicant had not complied with the first order, on March 11, 2005, the adjudicator issued another order directing the applicant to disclose to the respondent the salary paid to McKee between September 2, 2003 and the commencement of the 2004-2005 school year (the second order).
The Third Order
[6] On April 6, 2005, the applicant commenced this application for judicial review in respect of Adjudicator Moorgen's order dated March 11, 2005. The adjudicator issued a third order dated June 7, 2005 withdrawing the second order. He had directed the parties provide dates when they would be available to reconvene the hearing to provide information pertaining to McKee's salary during the relevant period. The hearing was reconvened on May 10, 2005, and the adjudicator issued the third order on June 7, 2005 consisting of 12 pages.
Filing first order in Federal Court
[7] On April 20, 2005 pursuant to section 244 of the Code, the respondent filed the first order dated November 26, 2004 with the Registry of the Federal Court.
DECISION OF THE ADJUDICATOR
[8] The relevant excerpt of the second order dated March 11, 2005 is reproduced for ease of reference:
[...]
AND WHEREASthe Adjudicator's decision ordered that the respondent employer, Fishing Lake First Nation #89 must;
1. Pay to the Complainant her full salary, less any income earned, together with any benefits to which she was entitled from the date of her dismissal on September 2, 2003, to the date of commencement of the 2004-2005 school year. The salary should be the same as that paid to Ms. McKee during the corresponding period.
2. Pay the amount of $6000.00 for Counsel costs for three days of hearings and time related to the preparation of this matter.
NOW THEREFORE IT IS HEREBY FURTHER ORDERED by the Adjudicator that the respondent employer, Fishing Lake First Nation #89, shall immediately disclose to the Complainant the amount of salary paid to Ms. McKee during the 2003-2004 school year, calculated both for the full term of the school year and on a monthly basis.
The Adjudicator specifically retains his jurisdiction to deal with any disputes directly arising out of the terms of the above Order.
ISSUED at Saskatoon, this 11th day of March 2005 [...]
[Emphasis added]
RELEVANT LEGISLATION
[9] The relevant legislation is the Canada Labour Code, R.S.C. 1985, c. L-2, and the Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5 ("PIPEDA"). The relevant excerpts follow these reasons at Appendix A.
ISSUES
[10] Four issues are raised in this application:
1. Did the adjudicator have jurisdiction to order that the respondent be paid compensation in the amount of salary paid by the applicant to McKee?
2. Did the adjudicator have jurisdiction to order the applicant disclose to the respondent the amount of salary paid by the applicant to McKee?
3. Was the adjudicator functus officio at the time of the decision being reviewed herein, i.e. the order dated March 11, 2005?
(a) Had the adjudicator made a final decision on the merits of the complaint pursuant to subsection 242(3) of the Code in his first order dated November 26, 2004?
(b) Did the adjudicator have jurisdiction to make collateral orders to implement or otherwise give effect to its decision?
(c) Was the matter in the exclusive jurisdiction of the Federal Court upon registration of the decision in the Court Registry, pursuant to section 244 of the Code?
4. Did the adjudicator breach his duty of fairness in making his order dated March 11, 2005 without affording the applicant an opportunity to be heard?
ANALYSIS
Issue No. 1: Did the adjudicator have jurisdiction to order an award in an amount equal to the salary paid by the applicant to McKee?
[11] The applicant submits that in restating his order of November 26, 2004 in his order of March 11, 2005 the adjudicator placed in issue whether he had jurisdiction to order a compensation award that is based on the employment income paid by the applicant to a different employee. The applicant submits that the provisions of an employment contract between it and McKee is not relevant to the income the respondent would have earned but for her unjust dismissal and had she completed her own contract with the applicant. The respondent submits that the applicant is attempting to challenge a finding of the adjudicator's first order, which it should not properly be able to do since the period in which to seek judicial review of that decision has expired, and since this Court has already dismissed a motion by the applicant seeking an order to grant an extension of time in which to file such application for review.
[12] I agree with the respondent's position. The considerations underlying the adjudicator's decision quantifying the compensation award lie in the first order which is not properly before the Court for review in this proceeding. On this application to judicially review the adjudicator's second order, the applicant cannot challenge findings made in the first order and reproduced in the second order for completeness. Accordingly, the Court will not assess the merits of the adjudicator's decision on award quantum. Moreover, the Court is satisfied that the second order was withdrawn by the adjudicator so that the legality of this order is moot.
Issue No. 2: Did the adjudicator have jurisdiction to order the applicant to disclose to the respondent the amount of salary paid by the applicant to McKee?
[13] The respondent submits that the adjudicator had lawful authority pursuant to paragraph 7(3)(c) of PIPEDA to compel the applicant to disclose the confidential employment information of McKee. The applicant takes the contrary view, and that nothing short of a court order or subpoena warrants disclosure absent McKee's consent. Alternatively, the respondent submits that this Court has authority to order the applicant to produce the required information to finalize quantum of her compensation award, since the first order dated November 26, 2004 has been filed and registered in the Federal Court Registry under section 244 of the Code.
[14] First, the legality of the first order is not properly before this Court because of the Order of Mr. Justice Harrington referred to above. Accordingly, I will review this decision in obiter for the benefit of the parties.
[15] McKee is not a party to this proceeding, and the respondent has not obtained her consent to disclose her personal employment income information. The applicant has taken the position that it cannot legally disclose this information to the respondent absent McKee's consent, or absent the facts of this case engaging the exception set out in paragraph 7(3)(c) of PIPEDA.
| 7. [...]
Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;
[...]
(i) required by law.
[Emphasis added]
|
7. [...]
Communication à l'insu de l'intéressé et sans son consentement
(3) Pour l'application de l'article 4.3 de l'annexe 1 et malgré la note afférente, l'organisation ne peut
communiquer de renseignement personnel à l'insu de l'intéressé et sans son consentement que dans les cas
suivants:
c) elle est exigée par assignation, mandat ou ordonnance d'un tribunal, d'une personne ou d'un organisme ayant le pouvoir de contraindre à la production de renseignements ou exigée par des règles de procédure se rapportant à la production de documents;
i) elle est exigée par la loi.
[Je souligne]
|
[16] To ascertain whether an adjudicator duly appointed by the Minister of Labour under subsection 242(1) is a person with jurisdiction to compel the production of information, regard must be had to the powers conferred upon it by paragraph 242(2)(c) of the Code:
| 242. [...]
Powers of adjudicator
(2) An adjudicator to whom a complaint has been referred under subsection (1)
[...]
(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).
[Emphasis added]
|
242. [...]
Pouvoirs de l'arbitre
(2) Pour l'examen du cas dont il est saisi, l'arbitre:
[...]
c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
[Je souligne]
|
In deciding complaints, therefore, the adjudicator has the powers set out paragraphs 16(a), (b), and (c):
| Powers of Board
16. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
[...]
(b) to administer oaths and solemn affirmations;
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;
[Emphasis added]
|
Pouvoirs du Conseil
16. Le Conseil peut, dans le cadre de toute affaire dont il connaît:
a) convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit, ainsi qu'à produire les documents et pièces qu'il estime nécessaires pour mener à bien ses enquêtes et examens sur les questions de sa compétence;
[...]
b) faire prêter serment et recevoir des affirmations solennelles;
c) accepter sous serment, par voie d'affidavit ou sous une autre forme, tous témoignages et renseignements qu'à son appréciation, il juge indiqués, qu'ils soient admissibles ou non en justice;
[Je souligne]
|
[17] I am satisfied the adjudicator's powers fall within the meaning of paragraph 7(3)(i) of PIPEDA, "required by law." In particular, the interplay of paragraphs 242(2)(c) and 16(a) and (c) of the Code empower the adjudicator to compel the Fishing Lake First Nation produce documents it deems necessary to the investigation and resolution of the complaint. The Court is satisfied that the adjudicator can compel the disclosure of the salary paid to Ms. McGee during the relevant period as the basis for the compensation owed the respondent.
[18] In any event, the parties agree that this Court could order the disclosure of such personal confidential information. I note in obiter that I am satisfied the circumstances of the respondent's case militate in favour of the Court issuing an order satisfying paragraph 7(3)(c) of PIPEDA and compelling the applicant to disclose the salary it paid to McKee during the 2003-2004 school year. Should the respondent seek to enforce the adjudicator's first order that has been filed with this Court, I have no reservation in opining that such a motion should be granted, having regard to all of the facts before me and barring unforeseen consequences.
Issue No. 3: Was the adjudicator functus officio at the time of the decision being reviewed, dated March 11, 2005?
Applicant's Position
[19] The applicant submits that the adjudicator's decision dated November 26, 2004 was his final decision under subsection 242(4) of the Code by which reason he has exhausted his jurisdiction and was (and is) thereafter functus officio. The applicant also takes the position that this matter cannot at the same time be in the jurisdiction of both the Federal Court and of the adjudicator; the applicant argues that since the respondent has filed the November 2004 order in Federal Court, the matter is now in this Court's jurisdiction and the adjudicator may not make any further order to affect the parties.
Respondent's Position
[20] The respondent submits that the adjudicator's order dated March 11, 2005 was issued under paragraph 242(4)(c) of the Code to enforce the adjudicator's decision dated November 26, 2004. The respondent argues that in the absence of the second order, she would be left with an unenforceable order which would enable the applicant improperly circumvent the purpose of the Code, namely to redress complaints arising in the ambit of federal labour dispute resolution. The respondent also takes the position that the adjudicator's explicit retention of jurisdiction in his first order to decide further matters surrounding quantum precludes him from having become functus officio and that the hearing was properly split to address dismissal and quantification separately. In the alternative, the respondent submits she would not be able to effectively enforce the first order in the Federal Court until such time as the award is quantified. Lastly, the respondent submits this Court should refer the matter back to the adjudicator to ensure an expedient determination of matters incidental to quantum.
(a) Had the adjudicator made a final decision on the merits of the complaint pursuant to subsection 242(3) of the Code in his first order dated November 26, 2004?
[21] Whether and at what point an adjudicator appointed under subsection 242(1) of the Code becomes functus turns on the circumstances of individual cases, and specifically on the extent to which the complaint has been resolved. In Chandler v. Association of Architects of Alberta, [1989] 2 S.C.R. 848, the Supreme Court of Canada set out at paragraphs 20 and 23 the rule of functus officio that an administrative tribunal cannot alter its decision once it has made a final determination of the matter properly before it, absent express statutory authority to the contrary:
¶ 20 [...] As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.
[...]
¶ 23 [...] If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute.
[22] In Huneault v. Central Mortgage & Housing Corp. (1981), 41 N.R. 214, the Federal Court of Appeal applied the doctrine of functus officio to an adjudicator's decision under what is now section 242 of the Code. In Huneault, Thurlow C.J., as then he was, affirmed the principle that the decision-maker becomes functus when it makes a final determination of the complaint before it, at which time it has exhausted the powers conferred upon it by its enabling statute:
¶ 7 In our view the first and second orders made by the adjudicator exhausted the powers he was authorized by subsection 61.5(9) to exercise and he thereupon became and was functus officio. He had ordered reinstatement. He had ordered the payment of compensation. He had not ordered anything falling within paragraph 61.5(9)(c) but he had finally determined the complaint before him. He no longer had any power, statutory or otherwise, to reconsider or withdraw or change either order. Moreover, the purported reservation by him of authority to make such orders, if any, as might be appropriate and necessary after receipt of submissions on the question of the Unemployment Insurance benefit refunds cannot affect our conclusion.
[Emphasis added]
[23] On the lines of authority from Chandler and Huneault, the question of functus officio in the review at bar is not whether the adjudicator's second order was authorized to issue under the powers afforded it under subsection 242(2) of the Code or paragraph 7(3)(c) of PIPEDA, but rather whether the adjudicator had finally determined the respondent's complaint in his first order.
[24] The fact that the adjudicator at paragraph 128 of his first order purported to "... retain jurisdiction to resolve any dispute that may arise on the matter of quantum of payments to which the Complainant is entitled and to any other matter relating to the implementation of this award" does not preserve his continuing jurisdiction absent express statutory authority vesting him with a power to make provisional or interim orders. There exists no such authority in the legislative scheme set out in sections 240-246 of the Code. Therefore, the question for this Court to decide is whether the adjudicator's first order dated November 26, 2004 is a final decision of the respondent's complaint in the sense that it: (1) makes a finding of unjust dismissal under subsection 242(3) of the Code; and (2) makes an order to finally remedy the complaint under subsection 242(4) of the Code. Subsection 242(4) of the Code sets out the following potential remedies:
| 242.
[...]
Where unjust dismissal
(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.
[Emphasis added]
|
242.
[...]
Cas de congédiement injuste
(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.
[Je souligne]
|
[25] These remedies allow the adjudicator broad powers to award the respondent the compensation she would have received if she had not been dismissed, and any additional amount which the adjudicator considers equitable to remedy the dismissal. This means the adjudicator had the power to award the respondent with the amount paid the person who replaced her during the relevant period.
[26] In the first order dated November 26, 2004 the adjudicator found at paragraph 124 that the respondent was unjustly dismissed and ordered the applicant to pay the respondent compensation at paragraph 125:
¶ 124 In the light of the above evidence and considerations, I have come to the conclusion that the dismissal by Fishing Lake First Nation # 89 of the Complainant, was unjust and S. 242 of the Code applies.
[...]
¶ 125 Accordingly, I order the Employer, Fishing Lake First Nation # 89 to:
1. Pay to the Complainant her full salary, less any income earned, together with any benefits to which she was entitled from the date of her dismissal on September 2, 2003, to the date of commencement of the 2004-2005 school year. The salary should be the same as that paid to Ms. McKee during the corresponding period.
2. Pay the amount of $6,000.00 for Counsel costs for three days of hearings and
time related to the preparation of this matter.
The Court is satisfied that the remedy ordered specifies the nature of the relief, namely the payment of compensation to the respondent under paragraph 242(4)(a) of the Code in an amount that, although not numerically quantified, is specified by an ascertainable and certain mechanism, namely an amount equal to that paid to McKee during the relevant period.
[27] In my view, the fact that the adjudicator did not specify the means by which the information of McKee's salary would be disclosed does not in any way make the quantum any less final. That amount paid by the applicant employer to McKee during the relevant period, however much it is, is the quantum of the compensation payment order made by the adjudicator as against the applicant. The fact that the adjudicator did not formally issue a direction within the first order to disclose that quantum to the respondent does not make his conclusion any less final. The Court is therefore satisfied that the adjudicator's first order dated November 26, 2004 was his final decision on the respondent's complaint. As such, the adjudicator exhausted his statutory powers and became functus officio. The adjudicator did not retain jurisdiction thereafter to make further orders in respect of the respondent's now-complete complaint.
(b) Did the adjudicator have jurisdiction to make collateral orders to implement or otherwise give effect to its decision?
[28] The respondent submits that, while the adjudicator may have been functus officio in further deciding the merits of the complaint, the adjudicator held jurisdiction to make "collateral" orders in aid of implementing or giving effect to his final decision. The respondent argues that the third branch under paragraph 242(4)(c) of the Code 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" confers jurisdiction upon the adjudicator to make "collateral" orders as necessary to ensure the enforcement of his decision.
[29] I cannot agree with the respondent's position. In my view the statutory provision relied upon cannot be so broad as to confer upon the adjudicator powers of judgment enforcement otherwise reserved for courts. If such a broad statutory interpretation were sustained, it could be fairly argued that the adjudicator would also be vested with in personam jurisdiction over judgment debtors and it would lie within his preserve to sustain contempt proceedings against non-compliant parties by detention or incarceration. This cannot be so. It is trite law that only a judiciary independent of the state can sanction detention or otherwise authorize the state's coercive intrusion on the citizen's person. An adjudicator appointed by the Minister of Labour or his delegate cannot be said to retain the independence inherent in courts constituted by sections 96 or 101 of the Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.). Similarly, only these courts may issue process against property in the form of writs of execution, and only then by reason of their inherent or statutory jurisdiction. The adjudicator duly constituted under sections 240-246 of the Code has no such statutory power. Alternatively, to suggest that an adjudicator has jurisdiction to issue collateral orders enforcing its decision without retaining the commensurate authority to compel compliance would result in hollow orders of little value.
[30] In my view, the correct interpretation of the labour dispute resolution scheme provided for in sections 240-244 of the Code is that in which an adjudicator's final decision may be registered in and enforced by the Federal Court pursuant to its lawful exercise of in personam jurisdiction. Section 244 of the Code provides that a party seeking to give effect to an adjudicator's decision may file and register that order with the Court, after which it may take all steps that lie from an order of a Justice of the Federal Court:
| Enforcement of orders
244. (1) Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.
Idem
(2) On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.
[Emphasis added]
|
Exécution des ordonnances
244. (1) La personne intéressée par l'ordonnance d'un arbitre visée au paragraphe 242(4), ou le ministre, sur demande de celle-ci, peut, après l'expiration d'un délai de quatorze jours suivant la date de l'ordonnance ou la date d'exécution qui y est fixée, si celle-ci est postérieure, déposer à la Cour fédérale une copie du dispositif de l'ordonnance.
Enregistrement
(2) Dès le dépôt de l'ordonnance de l'arbitre, la Cour fédérale procède à l'enregistrement de celle-ci; l'enregistrement confère à l'ordonnance valeur de jugement de ce tribunal et, dès lors, toutes les procédures d'exécution applicables à un tel jugement peuvent être engagées à son égard.
[Je souligne]
|
[31] I also reject the suggestion that bringing a matter before an adjudicator to enforce its final decision or to better establish conditions for compliance is expedient and spares the Court's limited resources. While I agree that such an objective is laudable, with the greatest respect I do not believe that it would be achieved by adjudicators overseeing the implementation of their decisions. As I have just canvassed, jurisdiction does not lie in an adjudicator appointed under subsection 242(1) of the Code to enforce orders in respect of property or the person. An incompliant party in respect of whom an order is made pursuant to subsection 242(3) of the Code would be required, by reason of its refusal to comply with such order, to appear before this Court in any event. Therefore, I do not accept that adjudicators making collateral orders in aid of implementing final decisions or better specifying conditions for compliance would spare resources, either for this Court or for judgment creditors seeking to enforce their rights.
(c) Was the matter in the exclusive jurisdiction of the Federal Court upon registration of the decision in the Court Registry, pursuant to section 244 of the Code?
[32] Given that I have concluded that the adjudicator's first order of November 26, 2004 was his final decision in respect of the respondent's complaint, and further given that order has been filed and registered in the Federal Court under section 244 of the Code, the matter now lies only in the jurisdiction of this Court. The order has the force and effect of an order issued by a Justice of the Federal Court and may be so enforced. Thus the complaint is no longer within the purview of the adjudicator.
Issue No. 4: Procedural Fairness and Natural Justice
[33] Having determined the adjudicator to be functus officio after making his final decision of November 26, 2004 it is not necessary to answer the question whether the order dated March 11, 2005 was made in violation of the duty of fairness to afford the applicant an opportunity to be heard.
CONCLUSION
[34] Accordingly, for these reasons:
1. the Court will not review the adjudicator's first order dated November 26, 2004 because the Court has already refused the applicant's motion for an extension of time to review this decision, and held that this application did not raise a serious argument;
2. the adjudicator's second order dated March 11, 2005 was withdrawn by the adjudicator so that this application to judicially review that decision is moot;
3. by way of obiter, the adjudicator was functus officio in any event at the time of the second order dated March 11, 2005; and
4. the adjudicator's first order dated November 26, 2004 has been filed in the Federal Court under section 244 of the Canada Labour Code, and the applicant must comply with this order.
This application is the fourth significant legal proceeding involving the legal obligation of the applicant to compensate the respondent. The parties have been put to needless legal expense for no justifiable reason. As Justice Harrington held on March 7, 2005, this case raises "no serious argument". The Fishing Lake First Nation has been found to have wrongfully dismissed Ms. Paley, and Ms. Paley has been awarded compensation equal to the amount paid her successor, Ms. McKee, plus her legal costs for the first hearing before the adjudicator in the amount of $6,000. This is now an order enforceable before the Federal Court.
LEGAL COSTS
[35] I invited the parties to make submissions on legal costs. The parties indicated that they wish to reserve such submissions until after discussions amongst counsel. Accordingly, I will await representations from counsel before deciding the issue of legal costs.
ORDER
THIS COURT ORDERS THAT:
1. This application for judicial review is dismissed;
2. The respondent has four weeks to make one page written representations regarding legal costs, the applicant has one week thereafter to respond with one page written representations, and the respondent has four days thereafter to reply with one page written representations.
"Michael A. Kelen"
APPENDIX A
1. CanadaLabour Code, R.S.C. 1985, c. L-2
| Powers of Board
16. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
[...]
(b) to administer oaths and solemn affirmations;
(c) to receive and accept such evidence and information on oath, affidavit or otherwise as the Board in its discretion sees fit, whether admissible in a court of law or not;
[...]
DIVISION XIV
UNJUST DISMISSAL
Complaint to inspector for unjust
dismissal
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.
[...]
Reference to adjudicator
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).
Powers of adjudicator
(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).
Decision of adjudicator
(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.
[...]
Where unjust dismissal
(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.
[...]
Enforcement of orders
244. (1) Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.
Idem
(2) On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.
[...]
|
Pouvoirs du Conseil
16. Le Conseil peut, dans le cadre de toute affaire dont il connaît:
a) convoquer des témoins et les contraindre à comparaître et à déposer sous serment, oralement ou par écrit, ainsi qu'à produire les documents et pièces qu'il estime nécessaires pour mener à bien ses enquêtes et examens sur les questions de sa compétence;
[...]
b) faire prêter serment et recevoir des affirmations solennelles;
c) accepter sous serment, par voie d'affidavit ou sous une autre forme, tous témoignages et renseignements qu'à son appréciation, il juge indiqués, qu'ils soient admissibles ou
non en justice;
[...]
SECTION XIV
CONGÉDIEMENT INJUSTE
Plainte
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.
[...]
Renvoi à un arbitre
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.
Pouvoirs de l'arbitre
(2) Pour l'examen du cas dont 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).
Décision de l'arbitre
(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.
[...]
Cas de congédiement injuste
(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.
[...]
Exécution des ordonnances
244. (1) La personne intéressée par l'ordonnance d'un arbitre visée au paragraphe 242(4), ou le ministre, sur demande de celle-ci, peut, après l'expiration d'un délai de quatorze jours suivant la date de l'ordonnance ou la date d'exécution qui y est fixée, si celle-ci est postérieure, déposer à la Cour fédérale une copie du dispositif de l'ordonnance.
Enregistrement
(2) Dès le dépôt de l'ordonnance de l'arbitre, la Cour fédérale procède à l'enregistrement de celle-ci; l'enregistrement confère à l'ordonnance valeur de jugement de ce tribunal et, dès lors, toutes les procédures d'exécution applicables à un tel jugement peuvent être engagées à son égard.
[...]
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2. Personal Information Protection and Electronic Documents Act, S.C. 2000, c. 5
| 7. [...]
Disclosure without knowledge or consent
(3) For the purpose of clause 4.3 of Schedule 1, and despite the note that accompanies that clause, an organization may disclose personal information without the knowledge or consent of the individual only if the disclosure is
[...]
(c) required to comply with a subpoena or warrant issued or an order made by a court, person or body with jurisdiction to compel the production of information, or to comply with rules of court relating to the production of records;
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(i) required by law.
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7. [...]
Communication à l'insu de l'intéressé et sans son consentement
(3) Pour l'application de l'article 4.3 de l'annexe 1 et malgré la note afférente, l'organisation ne peut
communiquer de renseignement personnel à l'insu de l'intéressé et sans son consentement que dans les cas
suivants:
[...]
c) elle est exigée par assignation, mandat ou ordonnance d'un tribunal, d'une personne ou d'un organisme ayant le pouvoir de contraindre à la production de renseignements ou exigée par des règles de procédure se rapportant à la production de documents;
[...]
(i.) elle est exigée par la loi.
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