[1] These reasons follow the hearing of an application for judicial review of a decision of an adjudicator (the "Adjudicator") appointed under Division XIV, Part III, of the Canada Labour Code in the matter of six (6) complaints alleging unjust dismissal brought by the Respondents (the "former employees") against the Applicant, Kawacatoose First Nation (the "former employer"). The decision under review and the related reasons are dated the 3rd of November, 2004.
[2] This application for judicial review presented one unusual aspect. There was no "tribunal record" before the Court. Further, neither counsel for the former employer nor counsel for the former employees filed any evidence. The only material before the Court with regard to what transpired before the Adjudicator is found in the reasons of the Adjudicator and her brief order, a copy of which form part of the former employer's record, albeit not in a certified form and not under cover of an affidavit.
[3] In Pioneer Grain Company Limited. v. David Kraus, on a judicial review of an equivalent decision before the Federal Court of Appeal, the Court was faced with a very similar situation. Chief Justice Thurlow, for the Court, wrote at pages 821 and 822:
There is no transcript before the Court of the proceedings before the Adjudicator. Nor have his handwritten notes of the evidence given been forwarded to the Court by him or included in the record. The only additional material the Court has on the issue is what appears from the Adjudicator's reasons for decision and it was on the basis of that alone that the matter was argued on behalf of the applicant. Kraus who appeared without counsel did not argue on that basis. He sought to state his own version of the facts but was not permitted to do so. I should note that the hearing proceeded, notwithstanding his not being represented by counsel, because of his expressed wish that it proceed without adjournment.
Under the Rules and Practice of this Court, it is the responsibility of an applicant for review under section 28 [of the Federal Court Act] to put before the Court the evidentiary material necessary to support his position. As no motion was made to have the Adjudicator's notes of evidence made part of the record or to vary the case by adding evidence on this issue, the Court is in much the same position as it was on the constitutional question in Northern Telecom Ltd. v. Communications Workers of Canada ... . Nevertheless, the Court must, as it seems to me, proceed to reach its conclusion on such materials as it has, scanty as they may be. ... [citation omitted]
[4] I am satisfied that the same could be said on the facts of this matter. When the question was raised with counsel, neither counsel disagreed. In the result, I will regard the reasons of the Adjudicator, in the form in which they were before the Court, as a fully complete and accurate representation of what transpired before her.
THE LEGISLATIVE SCHEME
[5] The legislative scheme applicable on the facts of this matter, vesting the Adjudicator with jurisdiction and proscribing the jurisdiction of this Court under sections 18 and 18.1 of the Federal Courts Act, is contained in sections 240 to 243 of the Canada Labour Code. Those sections are set out in full in the Schedule to these reasons.
THE DECISION UNDER REVIEW
[6] Under the heading "Background and Introduction", the Adjudicator wrote:
...
...The parties agreed that I have jurisdiction to hear and determine the complaints, that I would hear the evidence with respect to all the complaints at the same time, and that I would issue one decision in relation to all six complaints. Initially, the Employer took the position that all the Complaints [sic] had been employed with the Employer pursuant to fixed term contracts which the Employer alleged had expired. Part way through the Employer's case, however, the Employer abandoned this position and acknowledged that for the purposes of this hearing the complainants could all be treated as indefinite term employees, that each of the employees otherwise met the threshold requirements to bring complaints under Section 240 of the Code, and that for purposes of these cases only, the Employer acknowledged that the dismissals were unjust in the circumstances.
The Employer then acknowledged that the only remaining issue for determination was the remedy under the Code. ...
[7] The Adjudicator noted that the former employees had been employed by the former employer, as teachers, for varying lengths of time. She found that on or about May 14, 2001, each of the former employees was advised by letter that he or she was being terminated effective the 30th of June, 2001. None of the former employees was provided with reasons for the termination.
[8] The Adjudicator wrote that a representative of the former employer testified before her that, at the relevant time, the former employer was in a financial crisis because it could not afford the salaries of the former employees. The former employer thus determined to replace the former employees with less experienced teachers whose salaries would be lower. The Adjudicator determined that the majority of the new teachers hired were first year teachers. Exceptions were made where teachers were needed for specialty areas.
[9] The Adjudicator ordered the former employer to pay compensation to the former employees, in varying amounts, for wage loss, miscellaneous expenses, pension benefits and costs. She further ordered compensation to four (4) of the former employees for "teacher fees". Where appropriate, compensation was to be adjusted on account of any employment insurance benefits received by the former employees.
[10] The Adjudicator declined to order a public apology and declined to make an award to any of the former employees for mental distress.
THE ISSUES
[11] Counsel for the former employer described the issues on this application for judicial review in the following terms:
1) What standard of review applies to these two issues [that is to say, the following issues] in the decision?
2) Did the Adjudicator refuse to exercise jurisdiction to inquire as to whether the facts support a finding that the terminations were unjust for the purposes of section 242 of the Canada Labour Code?
3) Did the Adjudicator commit a reviewable error by failing to reduce the claimant's [that is to say, one of the former employees] compensation for failing to mitigate damages?
[12] Counsel for the former employees addressed each of the foregoing issues in his submissions.
a) Standard of Review
[13] In Rogers Cablesystems Ltd. v. Roe, my colleague Justice Dawson addressed the issue of standard of review on applications such as this in the following terms at paragraphs [20] to [23]:
Of importance is the fact that section 243 of the Code contains a privative clause applicable to the adjudicator's decision now before the Court.
It is trite law that the existence of a privative clause attracts judicial deference. A privative clause is reflective of Parliament's intent that the Court not substitute its view for that of the adjudicator.
Notwithstanding the principle noted above, it is also well established that issues of jurisdiction may properly be subject to judicial review. Jurisdictional errors have been held to include reaching a decision without regard to the relevant material before the adjudicator. ...
On this application for judicial review, I accept the submission of Ms. Roe's counsel that, in considering whether the adjudicator made findings of fact without regard to the material before him, the standard of review is patent unreasonableness. In determining whether the adjudicator had jurisdiction to proceed with the complaint, the standard of review is correctness. ... [citations omitted]
[14] I adopt the foregoing brief analysis as my own, without engaging in a full pragmatic and functional analysis on the issue.
b) Refusal to Exercise Jurisdiction
[15] Counsel for the former employer urged that the Adjudicator erred in a reviewable manner, against a standard of review of correctness, by failing to address the issue of whether the former employees, or any of them, had been laid off because of lack of work or because of the discontinuance of a function. If such were the case, he urged, the Adjudicator would have been without jurisdiction by virtue of paragraph 242(3.1)(a) of the Code, as reproduced in the Schedule to these reasons.
[16] As earlier noted in quotations from the Adjudicator's reasons, the parties before the Adjudicator agreed that the Adjudicator had jurisdiction to hear and determine the former employees' complaints. Further, the Adjudicator noted that, for the purposes of the proceeding before her, the former employer acknowledged that the dismissals were unjust in the circumstances. Finally, the Adjudicator noted that the former employer acknowledged that the only remaining issue for determination was that of remedy.
[17] The foregoing acknowledgements are insufficient to confer jurisdiction on the Adjudicator where jurisdiction is specifically withheld from the Adjudicator by law. In Byers Transport Ltd. v. Kosanovich , Justice Strayer, for the majority, wrote at page 373:
The respondent objected before us to this matter [the matter of jurisdiction] having been raised on judicial review when it had not been raised by the appellant before the Adjudicator. This objection cannot be sustained. It is clear from cases such as Pollard ... that paragraph 242(3.1)(b) constitutes a limit on the jurisdiction of the Adjudicator. That limit cannot be ignored simply by being disregarded by the parties or the Adjudicator. The Adjudicator had an obligation in the first instance to consider whether he was barred by paragraph 242(3.1)(b) from considering the complaint. He was not excused from considering that question by the silence or the consent, expressed or implied, of the parties. The fact that he did not consider it does not preclude, or excuse, this Court from determining whether he was acting within his jurisdiction. [citation omitted]
[18] The foregoing would apply equally to a limit on jurisdiction under paragraph 242(3.1)(b).
[19] I do not read the passage quoted from Byers as placing an obligation on an adjudicator to find, in specific words, that a lay-off that is the subject of a complaint before her or him is not by reason of a lack of work or the discontinuance of a function, no matter how useful it might be that an adjudicator include specific words to that effect. To place such a requirement on an adjudicator would amount to raising form above substance. What Justice Strayer emphasizes is that the absence of such words "...does not preclude, or excuse, this Court from determining whether [the Adjudicator] was acting within his jurisdiction."
[20] Here, as earlier noted, the Adjudicator observed that she had before her evidence from a representative of the former employer that the former employer had to replace all of the former employees for the autumn and that the former employees were indeed replaced for the autumn. She further found that the termination of the former employees was effective at the end of June, 1991 thus leaving no portion of the normal teaching year when the former employees' positions were vacant. Thus, at least implicitly, the Adjudicator found that the former employees were not laid off because of lack of work or the discontinuance of a function. Implicitly, she found that she was not deprived of jurisdiction by reason of paragraph 242(3.1)(a).
[21] I am satisfied that the Adjudicator was correct in this finding. Put another way, I make explicit the finding made implicitly by the Adjudicator.
c) Failure to Effectively Consider Mitigation with Respect to one of the Former Employees
[22] Counsel for the former employer cited the following words of this Court in Dmitrick v. Brink's Canada Ltd. on the issue of mitigation:
In general, a dismissed employee has an obligation to lessen his damages by accepting a reasonable offer of new employment.
[23] With respect to the Employee in question, the Adjudicator did consider mitigation. She wrote in her reasons:
...As of the time of the hearing, [the former employee] had not obtained alternate employment, although she had earned $5,690.28 by substitute teaching. When [the Employee] got the letter of termination, she thought she would be hired back in September 2001. She had heard mention of the aging population of teachers at the schools, and she felt that she was younger and did not have significant teaching years, thereby resulting in a lower salary, she would be hired back. No one gave her any indication that this might happen. She merely made this assumption. As a result, she did not apply for any teaching positions until late August 2001.
In August/September 2001, [the former employee] made inquiries about possible vacancies with the [two particular schools or school divisions], but was advised that they were not in need of any more teachers. [the former employee] did not apply for any other positions at the time, nor has she applied for any since because she does not want to travel. Her reason for not applying elsewhere was that it is too far to drive. [The former employee] holds only a Standard A teaching certificate, not a degree. She says this makes it more difficult to obtain a position. Outside the two inquiries she made in 2001, however, she has not even attempted to find another job. Neither has she attempted to find non-teaching employment in her community. She is not willing to relocate because her husband is a farmer and she is bound to where he is located.
The Employer acknowledges that [the former employee] had some loss of income, but questions her claim because of lack of mitigation. The Employer suggests that [the former employee] did not take sufficient steps to mitigate her losses. She waited until August 2001 before starting to look for a position. Then she made two inquiries only at that time. She would not even consider working elsewhere and there is no evidence of any reasonable effort to find employment.
On a review of all the evidence, including the evidence of the other Complainants with respect to their job search efforts, I am satisfied that had [the former employee] taken reasonable steps to find alternate employment, she would almost certainly have been able to obtain another position at the same salary within less than one school year. I have taken all the circumstances into account, and I have concluded that a reasonable award of compensation to compensate [the former employee] for wage loss would be one year salary ... less what she has earned ..., which results in an award of ... .
[24] While clearly the former employer is of the view that a greater reduction in the award to the former employee, was warranted, and I might be inclined to agree that a greater reduction would be reasonable, that is not the test. The Adjudicator is entitled to great deference on this finding. On a standard of review of patent unreasonableness, I am satisfied that the Adjudicator's finding was open to her.
CONCLUSION
[25] On the basis of the foregoing analysis, this application for judicial review will be dismissed. An Order of costs will go in favour of the former employees to be taxed on the ordinary scale, unless earlier agreed to.
"Frederick E. Gibson"
J. F. C.
Calgary, Alberta
December 1, 2004
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.
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.
Time for making complaint
(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.
Délai
(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.
Extension of time
(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.
Prorogation du délai
(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.
Reasons for dismissal
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.
Motifs du congédiement
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.
Inspector to assist parties
(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.
Conciliation par l'inspecteur
(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.
Where complaint not settled within reasonable time
(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.
Cas d'échec
(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.
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).
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.
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 ©).
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).
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.
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.
Limitation on complaints
(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.
Restriction
(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.
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.
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.
Decisions not to be reviewed by court
243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
Caractère définitif des décisions
243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
No review by certiorari, etc.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.
Interdiction de recours extraordinaires
(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.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2327-03
STYLE OF CAUSE: KAWACATOOSE FIRST NATION v. DONALD
IRELAND ET AL
PLACE OF HEARING: REGINA, SASKATCHEWAN
DATE OF HEARING: November 18, 2004,
REASONS FOR ORDER: THE HONOURABLE MR. JUSTICE GIBSON
DATED: December 1, 2004
APPEARANCES:
Mr. Gregory J. Curtis FOR APPLICANT
Mr. Kenneth J. Karwandy FOR RESPONDENT
SOLICITORS OF RECORD:
Semaganis Worme and Missens
Regina, Saskatchewan FOR APPLICANT
KMP Law
Regina, Saskatchewan FOR RESPONDENT
[1981] 2 F.C. 815 (F.C.A.).
[1995] 3 F.C. 354 (F.C.A.).
[1999] C.L.A. D. No. 441.
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