Date: 20010215
Docket: T-273-99
Citation: 2001 FCT 81
Ottawa, Ontario, this 15th day of February, 2001
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
DIANE McKEOWN
Applicant
- and -
ROYAL BANK OF CANADA and
BARRY B. FISHER
Respondents
REASONS FOR ORDER AND ORDER
O'KEEFE J.
[1] This is an application dated February 22, 1999, for judicial review of two interlocutory decisions made by Barry B. Fisher sitting as an adjudicator (the "adjudicator") pursuant to Part III of the Canada Labour Code R.S.C. 1985, c. L-2 (the "Code"). In the first decision dated August 4, 1998 ("evidentiary decision"), the adjudicator denied Diane McKeown (the "applicant") leave to lead evidence and to further cross-examine employer witnesses. In the second decision dated January 22, 1999 ("withdrawal decision "), the adjudicator decided that the applicant could not withdraw her complaint filed pursuant to Section 240 of the Code.
Order Sought
[2] The applicant seeks an Order setting aside the decision of January 22, 1999, and allowing the applicant to withdraw her complaint and pursue her civil action. In the alternative, the applicant seeks an Order setting aside the decision of August 4, 1998, or an Order remitting the matter for hearing before a new adjudicator. The applicant also seeks costs.
| [3] The applicant was dismissed from her job at the Royal Bank of Canada (the "bank") on July 26, 1995. At the time, she was assistant manager of personal banking and empowered to authorize loans. Two customers for whom she had authorized loans had defaulted, triggering an investigation by the bank. The investigation completed by Mr. Hodgins ultimately led to her dismissal. She filed a complaint under section 240 of the Code alleging unjust dismissal (the "complaint"). The adjudicator was appointed in January, 1996, to hear the complaint at her request. She was represented by her solicitor Bram Lecker at the time. |
| [4] On February 1, 1996, the applicant was charged with two counts of fraud under the Criminal Code of Canada in connection with the two above loans. She retained Dan Lawson to defend her in this matter. |
| [5] Returning to the complaint, the bank was first to present its evidence. The bank called 14 witnesses on 10 hearing dates beginning on April 22, 1996. Testimony on April 22 and 24, 1996, by Lee Enrico, Manager, Personal Banking of the Brampton branch, introduced exhibits into evidence concerning policies, procedures and rules for granting of loans. Mr. Lecker cross-examined Mr. Enrico. The adjudicator advised Mr. Lecker that if the applicant were to present a contradictory presentation of the facts, he should put those facts to Mr. Enrico for his response. During cross-examination of Mr. Enrico, the bank put Mr. Lecker on notice that if he sought to introduce contrary evidence than that given by Mr. Enrico without giving him an opportunity to respond to it during cross-examination, the bank would object on the basis that such evidence would violate the rule in Browne v. Dunn (1893), 6 R. 67 (H.L.). The bank finished its case in chief on March 31, 1997. |
| [6] The applicant commenced her case with herself as her first witness. In her evidence in chief, she tried to introduce evidence of alleged loan applications in which policies and procedures had not been followed (and that failure to so follow had allegedly been endorsed by bank managers called as witnesses by the bank). On September 8, 1997, the adjudicator ruled that to allow this evidence would offend the rule in Browne v. Dunn, supra as the Bank's witnesses did not have a chance to respond to these allegations against them. |
| [7] In September 1997, Mr. Guiste was hired to replace Mr. Lecker and Mr. Lawson, and to handle both the criminal defence and the Code complaint for the applicant. |
| [8] On May 4, 1998, the criminal charges against the applicant were withdrawn. |
| [9] By statement of claim dated May 6, 1998, the applicant commenced a civil action against the bank and Mr. Hodgins, seeking damages for defamation of character and malicious prosecution among other things. The bank and Mr. Hodgins filed statements of defence (Mr. Hodgins' included a counterclaim). |
| [10] On July 28, 1998, the applicant brought a motion seeking an Order to permit her to lead evidence of condonation, and an Order for the bank to return three witnesses for further cross-examination. In a decision dated August 4, 1998 (evidentiary decision), for which judicial review is now sought, the adjudicator denied the applicant's motion. |
| [11] By letter dated October 9, 1998, Mr. Guiste attempted to withdraw the applicant's complaint. The letter reads: |
| Further hearings in this matter are no longer necessary. |
| Our client has elected to withdraw her complaint of unjust dismissal in favor [sic] of exercising her right to seek a civil remedy pursuant to section 246(1) of the Canada Labour Code Part III. As you know, Mr. Harris and I were not counsel on the Canada Labour Code manner until very late in the process. |
| We trust this is satisfactory. |
| [12] The bank requested the adjudicator to rule that the complaint be dismissed with prejudice. A motion concerning the applicant's attempt to withdraw the complaint was heard before the adjudicator October 20, 1998 (withdrawal decision). In a decision dated January 22, 1999, for which judicial review is now sought, the adjudicator dismissed the applicant's motion for withdrawal. |
1. With respect to the August 4, 1998 decision (the evidentiary decision):
| (1) Should the application be dismissed as a result of the applicant's failure to apply for judicial review within the time provided for by the Federal Court Rules, 1998, SOR/98-106? |
| (2) Did the adjudicator err in law or jurisdiction by not allowing the applicant to lead evidence of condonation? |
| (3) Did the adjudicator err in law or jurisdiction by virtue of his ruling on the applicant's request to recall Carlos Harper, Darlene Grylls and Lloyd Hodgins for further cross-examination? |
| (4) What standard of review should the Court apply to the evidentiary decision? |
2. With respect to the January 22, 1999 decision (the withdrawal decision):
| (1) What standard of review should apply to the January 22, 1999 decision? |
| (2) Did the adjudicator err in law and or jurisdiction by denying the applicant the right to withdraw her complaint without prejudice or potential prejudice to her other civil claims against the respondent, bank and others having regard to subsection 246(1) of the Code and all of the facts and circumstances detailed in the record? |
Relevant Statutory Provisions
| [14] Subsection 18.1(2) of the Federal Court Act, R.S.C. 1985, c. F-10 (the |
"Act") states:
| (2) An application for judicial review in respect of a decision or order of a federal board, commission or other tribunal shall be made within thirty days after the time the decision or order was first communicated by the federal board, commission or other tribunal to the office of the Deputy Attorney General of Canada or to the party directly affected thereby, or within such further time as a judge of the Trial Division may, either before or after the expiration of those thirty days, fix or allow.
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(2) Les demandes de contrôle judiciaire sont à présenter dans les trente jours qui suivent la première communication, par l'office fédéral, de sa décision ou de son ordonnance au bureau du sous-procureur général du Canada ou à la partie concernée, ou dans le délai supplémentaire qu'un juge de la Section de première instance peut, avant ou après l'expiration de ces trente jours, fixer ou accorder.
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| [15] Sections 240 to 246 of the Canada Labour Code state: |
| 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.
(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.
(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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| 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.
(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.
(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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| 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.
(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.
(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.
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| 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.
(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.
(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.
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| 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).
(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).
(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.
(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.
(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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| 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.
(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).
(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.
(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.
(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. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
(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.
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243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
(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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| 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.
(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.
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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.
(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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| 245. The Governor in Council may make regulations for the purposes of this Division defining the absences from employment that shall be deemed not to have interrupted continuity of employment.
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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245. Le gouverneur en conseil peut, par règlement, préciser, pour l'application de la présente section, les cas d'absence qui n'ont pas pour effet d'interrompre le service chez l'employeur.
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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Applicant's Submissions on Evidentiary Decision - August 4, 1998
| [16] The applicant cites certain passages in her memorandum of argument from |
the adjudicator's decision denying her leave to lead evidence on condonation and to further cross-examine Carlos Harper, Darlene Grylls and Lloyd Hodgins.
| [17] The applicant argues that evidence of condonation could not reasonably be |
characterized as evidence to impeach a witness' credibility. As such, the rule in Browne v. Dunn, supra (which in the applicant's submission, holds that if you intend to lead evidence which has as its purpose to impeach the credibility of a witness, you then have an obligation to put that evidence to the witness in cross-examination first) was improperly applied by the adjudicator as there is no obligation on the applicant to cross-examine on that issue.
| [18] The applicant further argues that a refusal to admit relevant evidence |
infringes the rules of natural justice, particularly where the excluded evidence is in the nature of a defence or justification. In support of her submission, the applicant cites the cases of Université du Québec à Trois-Rivières v. Larocque, (1993), 101 D.L.R. (4th) 494 (S.C.C.); Roberval Express Limitée v. Transport Drivers, Warehousemen and General Workers Union, Local 106 et al., [1982], 2 S.C.R. 888 (S.C.C.) and Cardinal v. Kent Institution, [1985], 2 S.C.R. 643 (S.C.C.).
| [19] Lastly, the applicant argues that denial of her fundamental right to cross- |
examine is a reviewable error of law and submits Innisfil (Township) v. Vespra (Township), [1981], 2 S.C.R. 145 (S.C.C.) in support of this proposition.
1. With respect to the August 4, 1998 decision (the evidentiary decision):
| (1) Should the application be dismissed as a result of the applicant's failure to apply for judicial review within the time provided for by the Federal Court Rules, 1998 SOR/98-106? |
The application for judicial review of the August 4, 1998 evidentiary decision was not filed until February 22, 1999. Subsection 18.1(2) of the Act states that an application for judicial review shall be made within 30 days after the date the decision was first communicated to the party directly affected thereby or within such further time as a judge of this Court may allow. The extension of time may be granted before or after the expiration of the 30 day period. In Council of Canadians et al. v. Director of Investigation and Research, Competition Act et al. (1997), 212 N.R. 254 (F.C.A.), Hugessen J.A. stated at page 255:
In the first place, we do not think that the judge considered an irrelevant factor when he asked himself if the Council had formed an intention to apply for judicial review within the time fixed by law. There is no immutable check list of matters that must be reviewed whenever the grant of an extension of time is being considered; the most that can be said is that the court will generally look at whether there is an adequate explanation for the failure to act timely and whether the applicant has an arguable case. The question that the judge put to himself was certainly relevant to the first of those matters.
In the second place, we are also not satisfied that the judge's alleged failure to take account of other considerations said to be relevant could have the effect of vitiating his decision. The case principally relied on by the appellants is this court's decision in Grewal v. Minister of Employment and Immigration, [1985] 2 F.C. 263; 63 N.R. 106 (F.C.A.). In that case, Thurlow, C.J., said:
| Among the matters to be taken into account in resolving the first of these questions is whether the applicant intended within the 10 day period to bring the application and had that intention continuously thereafter. Any abandonment of that intention, any laxity or failure of the applicant to pursue it as diligently as could reasonably be expected of him could but militate strongly against his case for an extension. The length of the period for which an extension is required and whether any and what prejudice to an opposing party will result from an extension being ranted are also relevant. But in the end, whether or not the explanation justifies the necessary extension must depend on the facts of the particular case and it would, in my opinion, be wrong to attempt to lay down rules which would fetter a discretionary power which Parliament has not fettered. (At pages 277-278 [F.C.]) |
| [21] I have reviewed the material filed on this application and I can find no |
explanation for the delay in bringing this application nor any indication that the applicant had an intention, within the 30 day period fixed by the Act, to apply for judicial review. Based on these findings, I am not prepared to grant an extension of time in which to file the application for judicial review of the evidentiary decision. The application for judicial review of the August 4, 1998 evidentiary decision is therefore out of time and is therefore dismissed.
2. With respect to the January 22, 1999 decision (the withdrawal decision):
| (1) What standard of review should apply to the January 22, 1999 decision? |
The first question that must be answered is what standard of review applies to my consideration of the January 22, 1999 decision (the withdrawal decision). There is no doubt that the adjudicator had initial jurisdiction to hear the complaint. He was appointed pursuant to the Act to hear the applicant's complaint. However, the applicant, through her counsel wrote the adjudicator on October 9, 1998 and withdrew her complaint. After reviewing this letter, the adjudicator scheduled a motion to hear representations as to the effect of the applicant's withdrawal letter. The adjudicator ruled that the applicant could not withdraw her complaint and dismissed the motion for withdrawal. I propose to apply a standard of patent unreasonableness to review the withdrawal decision.
2. With respect to the January 22, 1999 decision (the withdrawal decision):
| (2) Did the learned adjudicator err in law and or jurisdiction by denying the applicant the right to withdraw her complaint without prejudice or potential prejudice to her other civil claims against the respondent, bank and others having regard to subsection 246(1) of the Code and all of the facts and circumstances detailed in the record? |
It now remains to be determined whether the adjudicator came to a patently unreasonable decision in not allowing the applicant to withdraw her complaint.
Applicant's Arguments on Withdrawal Decision - January 22, 1999
| [24] The applicant alleges the adjudicator made this decision based on |
"irrelevant considerations" and that the adjudicator had an "apprehension of bias". In her submissions, the applicant cites certain passages from his decision denying her withdrawal of the complaint.
| [25] The applicant submits the adjudicator embarked on an irrelevant |
consideration (the question of cost of the litigation to the bank) and placed great reliance on it in coming to his decision. In particular:
| ( · ) The Code allows the adjudicator to award costs only to the unjustly dismissed employee and not to a successful employer; |
| ( · ) He failed to consider the costs thrown away by the applicant; |
| ( · ) He does not consider that the applicant has changed counsel when concluding, based on no evidence, that somehow she will have an advantage over the bank because she has already cross-examined its witnesses; and |
| ( · ) The bank clearly had no trouble getting Ms. Grylls and Mr. Harper to testify earlier. |
| [26] The applicant further submits: |
| ( · ) The Code does not provide the adjudicator with any expressed authority to rule on the withdrawal of a complaint. Without such authorization, the adjudicator has no jurisdiction to so rule; |
| ( · ) The Code was drafted to be remedial with a marked and substantial departure from the common law. It would be inconsistent with the spirit and objective of the legislation to deprive the worker the right to withdraw her complaint without any adverse legal consequences; |
| ( · ) Her right under the Code in the case at bar is an individual one and not a collective one as per collective bargaining, this individual's right may overlap with others as recognized by subsection 246(1) of the Code which states, "No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245." The applicant submits this subsection to support her contention that there is an expressed effort not to impair those other rights. |
| ( · ) There is, for the most part, generally no other forum to deal with collective agreements other than collective bargaining legislation. Weber v. Ontario Hydro, [1995] 2 S.C.R. 929 is offered in support of this submission. |
| ( · ) The deemed dismissal of a withdrawal complaint in this case has a profound impact on various legal rights beyond the applicant and the bank (for example, actions for defamation, abuse of process, intentional infliction of mental distress and malicious prosecution may be impaired by such a ruling). |
(S.C.C.) for the proposition that where the main problem in a case of judicial review is determining the jurisdiction of the tribunal, the courts should ask if the legislator intended that such a matter be within the jurisdiction conferred on the tribunal. The applicant argues the Code is clear in providing the adjudicator with the limited authority to adjudicate on whether or not a person has been unjustly dismissed. Thus, the adjudicator is not vested with authority to rule on the question of whether or not she can withdraw her complaint.
Respondent's Submissions on Withdrawal Decision - January 22, 1999
| [28] What standard of review should this Court apply to this decision? |
| The respondent argues this decision can be distinguished from the |
circumstances in Air Canada v. Davis (1994), 72 F.T.R. 283 (F.C.T.D.) and Atomic Energy of Canada Ltd. v. Jindle (1996), 110 F.T.R. 221 (F.C.T.D.) (affirmed; F.C.A. (1998), 151 F.T.R. 316). In this case, there is no issue that the complaint was properly referred to the adjudicator pursuant to subsection 241(1) of the Code. Hence, the limitation on his jurisdiction found in subsection 243(3.1) is not relevant here.
The respondent further submits this decision should be held to the patently unreasonable standard of review. Paragraph 242(2)(b) provides the adjudicator shall determine the procedure to be followed. According to the respondent, this is such a decision and it was made within the jurisdiction provided by the statute.
| [29] Was the adjudicator's decision patently unreasonable, in the alternative, |
was it correct?
Subsection 242(2) of the Code provides that the adjudicator shall consider the complaint. Thus, the respondent contends there is no discretion for the adjudicator to not consider a complaint, aside from subsection 242(3.1), and there is no discretion to allow the complainant to withdraw a complaint. It is the Minister, not the complainant who refers the complaint to the adjudicator.
The respondent submits subsection 242(3) makes the consideration of a complaint and a report mandatory and that there is no discretion provided to stop the process, mid stream, by allowing a complainant to withdraw the complaint.
| The respondent refers to S.R. Ball, Canadian Employment Law, |
loose leaf, Aurora, Ontario: Canada Law Book, 1996 to support its view that the adjudicator was correct in considering decisions of arbitrators under collective agreements for guidance on the question before him. Arbitral jurisprudence shows two possible approaches:
| 1. An arbitrator has jurisdiction to decide upon whether or not a union should be allowed to withdraw a grievance and, if so, upon what terms. The respondent submits the adjudicator chose to follow this line and relied upon the arbitrator decision of Guelph General Hospital v. O.N.A. (1992), 25 L.A.C. (4th) 260 at 261. |
| 2. The dismissal of a grievance is tantamount to an adjudication on the merits of the allegations made in the grievance, and an arbitral finding that they are not established and are without merit. The respondent submits this is less favourable to the applicant and was urged upon the adjudicator by the respondent, however, the adjudicator preferred the first approach in his decision. |
| The adjudicator, according to the respondent, considered all |
relevant factors in its decision, including whether prejudice would arise to the bank from a withdrawal of a complaint.
| The respondent contends the decision does not interfere with |
subsection 246(1) of the Code as it does not stop the applicant from seeking a civil remedy. The decision recognizes the reality that the adjudicator's final decision on the complaint, when rendered, may be considered by a court hearing a civil proceeding. It has been held that an adjudicator's award may create an issue estoppel in subsequent proceedings (Rasanen v. Rosemount Instruments Ltd. (1994), 112 D.L.R. (4th) 683 at 701 - 709 (Ont. C.A.)).
Analysis and Decision
| [30] There is very little jurisprudence with respect to the withdrawal of a |
complaint filed under the Canada Labour Code. In Aylward v. McMaster University (1991), 79 D.L.R. (4th) 119 (Ontario Court (General Division) Divisional Court) Flinn J. stated at pages 126 - 128:
Counsel for the applicant invited the court to find, first, that the decision of the tribunal to continue on its own was void ab initio on the ground that once the complaint had been withdrawn the tribunal had no jurisdiction and, secondly, on the basis of structural bias, that under the provisions of the rules of procedure established by the senate the tribunal could not be a judge in its own case. In other words, it should not be judge and prosecutor.
In that regard counsel for the applicant referred to the judgment of Beetz J. in Re Harelkin and University of Regina (1979), 96 D.L.R. (3d) 14 at p. 47, [1979] 2 S.C.R. 561">[1979] 2 S.C.R. 561, [1979___] 3 W.W.R. 676, where he cited with approval the words of Lord Devlin in Ridge v. Baldwin, [1964] A.C. 40 (H.L.) at pp. 138-9:
| "It is argued for the appellant that the effect is to avoid ab initio the decision of the committee. That must mean that the committee had no statutory authority to make any decision at all. If they had, then, although the decision they had made might be a bad one and one that could be quashed by the court by virtue of the supervisory jurisdiction over the proceedings of inferior tribunals, it would not be void ab initio but would be good until quashed. To make it void ab initio there must be some condition precedent to the conferment of authority on the committee which has not be fulfilled." |
As to structural bias, counsel for the applicant referred to Hajee v. York University (1985), 11 O.A.C. 72 (Div. Ct.), where the senate committee decided that the student could only cross-examine the witnesses through the committee chairman who allegedly had the discretion whether or not to ask the proposed questions. Krever J., at p. 73, said:
| It would be impossible to think of any greater insult to the integrity of an academic institution or to an academic community than that of dishonesty whether it is called intellectual dishonesty or fraud. One can therefore sympathize with the desire to uncover it and treat it with the condemnation it deserves when it is thought to exist. This gives rise to an obligation to refrain from concluding that it exists lightly. It creates a concomitant duty to give a person accused of dishonesty the benefit of reasonable safeguards to enable him or her to meet the serious accusations that it entails. |
Counsel for the respondent took the view that the proceedings could not be considered a nullity. The tribunal was properly constituted, it dealt with subject matter over which it had jurisdiction. Counsel's argument was that when the complaint was withdrawn the action of the committee in proceeding on its own initiative could only be challenged on the basis that it was patently unreasonable and not being patently unreasonable the court should not interfere.
This court holds the view that the hearing was not a nullity because it was a hearing by a tribunal properly constituted for which due notice had been given and which tribunal was ready and willing to hear the representations of counsel for the professor, for the applicant student and, indeed, its own witnesses if such would have been called. In Dayco (Canada) Ltd. v. C.A.W. (1990), 73 D.L.R. (4th) 718, 90 C.L.L.C. ¶ 14,040, 74 O.R. (2d) 648, the Ontario Court of Appeal, commenting on the decision of Beetz J. in U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, 35 Admin. L.R. 153, 89 C.L.L.C. ¶ 14,045, observed at pp. 728-9:
| Mr. Justice Beetz described in Bibeault the method for applying his pragmatic and functional analysis to the determination of whether a question falls within the jurisdiction of a tribunal or an arbitrator. He said at p. 1088: |
| " . . . the first step in the analysis necessary in the concept of a `patently unreasonable' error involves determining the jurisdiction of the administrative tribunal. At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal." |
| Beetz J. then stated that the court must look to the nature of the question being answered by the tribunal and determine how it fits the administrative scheme. If the question is one that falls within the pragmatic and functional definition of the tribunal's jurisdiction, a court can intervene only if the tribunal makes a patently unreasonable error. If, however, the question concerns a legislative provision limiting the tribunal's jurisdiction, the decision of the tribunal is open to challenge if it is not correct. Once the standard of review is established, the court can then examine the merits of the application. |
The issue that was to be decided by the tribunal here was clearly within its jurisdiction and judicial review would be precluded unless the tribunal lost jurisdiction by making a patently unreasonable decision.
That would appear to be the strongest position for the applicant. In Harelkin, supra, at p. 48, Beetz J. says:
| In the case at bar, it cannot be doubted that the committee of the council had jurisdiction to hear and decide upon the appellant's application or memorial. There was not want of jurisdiction. In the exercise of this jurisdiction, the committee of the council erred in failing to observe the rules of natural justice. While it can be said in a manner of speaking that such an error is "akin" to a jurisdictional error, it does not in my view entail the same type of nullity as if there had been a lack of jurisdiction in the committee, it simply renders the decision of the committee voidable at the instance of the aggrieved party and the decision remains appealable until quashed by a Superior Court or set aside by the senate. |
In this case once the complaint was withdrawn the foundation for the tribunal to continue was gone. Observations made in nullity cases are appropriate in going further and considering whether or not the action or decision to proceed is patently unreasonable.
Counsel for the respondents took the view that academic dishonesty was a university concern and we agree that it is a vitally important issue within the university community. It is no less so for the student and, hence, it carries the concomitant duty in dealing with allegations of academic dishonesty to ensure procedural fairness. Whether the professor's actions amounted to an actual withdrawal of the charge or, alternatively, a withdrawal of his participation by carrying the burden of proof, does not have to be decided. In either event the prosecutorial balance in the adversarial equation disappeared. The board's decision to proceed merged the functions of prosecutor and judge as was demonstrated by the board's inquiry about the professor's availability to give evidence. There was no prescribed procedural framework to enable the board to continue as a prosecutor or to embark on an investigative or inquisitorial proceeding. Therefore, that decision was beyond its quasi-judicial role and its authority and as such was:
(a) patently unreasonable;
(b) constituted a structural defect in the proceeding giving rise to the reasonable apprehension that it would not act in an entirely impartial manner; and
(c) was in excess of jurisdiction and in violation of the rules of natural justice.
Having come to the conclusion that the essential function of the tribunal was quasi-judicial in deciding questions of academic dishonesty and that the decision to continue was patently unreasonable, can appropriate relief be achieved within the parameters of the rules of procedure established by the senate? . . .
Although this case was set in university surroundings, the issue now before me is the same. What is the effect of a complaint being withdrawn?
| [31] I agree that with the withdrawal of the complaint the "foundation for the |
tribunal to continue was gone". Pursuant to subsections 242(1) and (2) of the Act, the task of the adjudicator is to "hear and adjudicate on the complaint". By virtue of the applicant's letter to the adjudicator, the complaint is gone. He no longer has anything to hear and adjudicate. The only authority the adjudicator had was given to him by statute. I am of the view that once the applicant withdrew her complaint, the adjudicator had no jurisdiction to proceed any further. I find that his decision to refuse to allow the applicant to withdraw her application was not only a patently unreasonable decision, but it was a decision made without jurisdiction. The decision of the adjudicator must therefore be quashed.
| [32] A similar conclusion was reached by adjudicator I.A. Hunter in Grisdale |
and Ontario Southland Railway [1997] C.L.A.D. No. 228. This was also an adjudication pursuant to the same sections of the Canada Labour Code as the instant case. Arbitrator Hunter stated at paragraphs 6 to 7 of his decision:
On the evening of May 6, 1997 I received a fax, and a subsequent telephone conversation, from Ms. Neelam Jolly, Counsel for both Complainants. The fax read as follows:
| Re: Ontario Southland Railway |
| Further to our telephone conversation of May 6, 1997 I am writing to confirm that I have been instructed by Mr. Savouring and Mr. Grassdale to withdraw their complaints. I apologize for the last minute nature of the notification. However, I only received my instructions today at approximately 4:50 p.m.. Please note that I have left a voicemail message for opposing counsel regarding my clients' instructions." |
At the hearing on May 7, 1997 neither the Complainant, nor their counsel, appeared. However, Mr. Campbell did appear and (1) objected to the unilateral withdrawal of the complaint, particularly at the eleventh-hour, as it were; (2) submitted that once the complaints are in my hands as adjudicator, I am seized of them. Since his client had expended time and money in the preparation for the constitutional issue, he submitted that I should hear evidence and make a determination on that issue.
Accordingly, the novel issue before me is whether Complainants may unilaterally withdraw a complaint submitted pursuant to Section 242 of the Canada Labour Code.
In reaching my decision, I note that I am a creature of the Canada Labour Code. My jurisdiction derives totally from the statute, and I must base my decision on the provisions of the statute.
And at paragraphs 9 and 10:
In my judgement the statutory pre-requisite to the exercise of any of these powers is "the complaint". In the instant case there is no longer a "complaint" before me. Mr. Grisdale and Mr. Sabourin made the complaint and, in my opinion, are unilaterally entitled to withdraw the complaint, notwithstanding the discourtesy shown to the Respondent, to Mr. Campbell and to me, by the late and abrupt manner of withdrawal.
If I were to accede to Mr. Campbell's request and to schedule another hearing on the constitutional issue, I would then be hearing an important legal issue with only one side represented. Much as I regret the cost and inconvenience to which the Respondent has been put, I am not a Court hearing a constitutional reference, nor even a law professor giving an advisory opinion on a constitutional issue. I am an adjudicator appointed to decide whether two individuals, Grisdale and Sabourin, were, as they once alleged, unjustly dismissed. Grisdale and Sabourin having withdrawn the allegation that they were unjustly dismissed, I am without jurisdiction to go further. I am, with respect, functus officio.
I agree with the conclusion of Arbitrator Hunter, but I do not necessarily adopt the basis of functus officio.
| [33] The application for judicial review of the withdrawal decision of January |
22, 1999 is allowed.
| [34] As success has been divided, there shall be no Order as to costs. |
ORDER
| [35] IT IS ORDERED that the application for judicial review with respect to |
the decision of August 4, 1998 (the evidentiary decision) is dismissed.
| [36] IT IS FURTHER ORDERED that the application for judicial review |
with respect to the decision of January 22, 1999 (the withdrawal decision) is allowed.
| [37] AND IT IS FURTHER ORDERED that there shall be no Order as to |
costs.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
February 15, 2001
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