Date: 20010620
Docket: T-792-00
OTTAWA, Ontario, June 20, 2001
BEFORE: Rouleau J.
Between:
EXPRESS HÂVRE ST-PIERRE LTÉE
Plaintiff
And:
ROBERT DEBLOIS and
DENIS LEBLANC
Defendants
ORDER
[1] This application for judicial review is allowed.
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
Date: 20010620
Docket: T-792-00
Neutral reference: 2001 FCT 674
Between:
EXPRESS HÂVRE ST-PIERRE LTÉE
Plaintiff
And:
ROBERT DEBLOIS and
DENIS LEBLANC
Defendants
REASONS FOR ORDER
ROULEAU J.
[1] The instant application for judicial review is from a decision by the adjudicator Robert Deblois on April 17, 2000, allowing the complaint for unjust dismissal filed by the defendant Denis Leblanc pursuant to s. 240 of the Canada Labour Code, R.S.C. 1985, c. L-2 (hereinafter "the Code").
Summary of issue and arguments of parties
[2] On May 8, 1997 the defendant, then 56 years old and employed by the plaintiff as a driver for 12 years, ceased working for the plaintiff. The defendant subsequently filed a complaint for unjust dismissal which on March 16, 1999 was held to be valid by the adjudicator François G. Fortier. The adjudicator quashed the dismissal of the defendant and ordered that he be reinstated. He further substituted for the dismissal a suspension of one month, until June 7, 1997, and directed the plaintiff to pay the defendant the salary he had lost from June 7, 1997 until the date he was reinstated. The adjudicator reserved jurisdiction to determine the amounts due in the event there was any disagreement between the parties on this point.
[3] On April 2, 1999 counsel for the plaintiff, Pierre Vigneault, informed the employee who had replaced the defendant, Marc-André Gingras, that as the result of a reorganization of the company two trucks used for long-distance transportation would be sold, his position would be abolished on April 16, 1999 and the corresponding work would be given out to subcontractors. The plaintiff offered to allow Mr. Gingras to acquire one of the trucks, which he did. Mr. Gingras continued to provide his services to the plaintiff.
[4] In early June 1999 the defendant contacted another representative of the plaintiff, Nicolas Vigneault, who allegedly informed him that his position no longer existed. Mr. Vigneault then offered the plaintiff work either in Montréal or at Hâvre St-Pierre. The defendant, a resident of Québec who was then 59 years old, refused.
[5] As the parties were unable to agree on the terms of the reinstatement they appeared again before the adjudicator François G. Fortier on June 29, 1999. However, on June 21, 1999, in view of the situation, counsel for the defendant had filed a second complaint for unjustified dismissal. On August 18, 1999 the adjudicator Fortier rendered his decision and fixed the quantum of damages for the period between June 7, 1997 and April 1, 1999, that is up to the date covered by the new complaint. The amounts determined were paid by the plaintiff on September 17, 1999.
[6] The second complaint was heard by the adjudicator Robert Deblois on February 16, 2000. The adjudicator first concluded that although Mr. Gingras was now working for the plaintiff as a subcontractor, he was still an employee of the plaintiff within the meaning of the Code. He further determined that the defendant's former function was still being performed through Mr. Gingras, on the same terms, except in two respects, namely remuneration and ownership of the vehicle. As the employer could not argue that the function no longer existed in its business, it was accordingly impossible for it to say that the position had been abolished. The adjudicator found that the evidence showed the defendant had been the victim of an unjust dismissal. He noted that the plaintiff had sold its trucks without giving the defendant an opportunity to purchase any of them, even though it was aware of the terms of the adjudicator's decision on reinstatement. The adjudicator Deblois accordingly directed that the defendant be paid compensation. That decision is now the subject of the instant application for judicial review.
[7] The plaintiff considered that in the circumstances the adjudicator had no jurisdiction to hear the defendant's second complaint. It argued that if a judgment was not implemented the defendant should have proceeded under s. 244 of the Code and brought forced execution proceedings or initiated proceedings for contempt of Court or for an injunction. In the plaintiff's submission, s. 242(3.1)(b) of the Code means that if some other remedy exists it must be used in preference to any other complaint.
[8] The plaintiff maintained that the adjudicator misinterpreted the precedents on the concept of abolition of a position. It further submitted that the adjudicator could not have been competent to hear a complaint for dismissal since as the plaintiff [sic] had only worked a single day since May 1997 he could not be dismissed. In the plaintiff's submission, an order of reinstatement creates the right to restore an employment relationship, but the restoration only takes place by occupying the job and performing the work.
[9] The plaintiff considered that the adjudicator's failure to warn it that he intended to dispose of questions of admissibility and quantum at the same hearing was a breach of the rules of procedural fairness.
[10] In the plaintiff's submission, the adjudicator could not conclude that it should have offered its trucks to the defendant before letting him go, in view of the reinstatement order.
[11] Finally, the plaintiff argued that the amount of the compensation ordered by the adjudicator was such that it brought justice into disrepute and made the decision perverse and unreasonable. In its submission, the adjudicator disregarded the duty imposed on the defendant to minimize his damages. The plaintiff considered that the adjudicator's decision showed that he regarded the plaintiff as lacking credibility and was acting to implement the decision on the first dismissal complaint.
[12] For his part, the defendant argued that, contrary to what was alleged by the plaintiff, the parties were able to call witnesses before the adjudicator and the latter did not simply rely on the evidence set out in the first adjudicator's decision. So far as that evidence was concerned, the parties had agreed before the hearing to enter the documentary evidence filed before the first adjudicator in the record in order to speed up the discussion, but this would not prevent them from filing any evidence or making any objections they felt necessary.
[13] In the defendant's submission, the adjudicator's decision on the preliminary objection was based on applicable precedent and academic opinion. The circumstances and the conditions in which Mr. Gingras' employment was carried on were such as to make him an employee of the plaintiff. So far as abolition of the position was concerned, the adjudicator properly considered the circumstances in which the plaintiff got rid of the defendant's function and his decision not to believe its explanations is not subject to review by this Court.
[14] The defendant noted that the objection based on s. 242(3.1)(b) of the Code was never raised before the adjudicator and this constituted an admission by the plaintiff that the defendant had no other recourse. Even if the objection was admissible, the defendant argued that an action for contempt of court did not correspond to the requirements of case law, since it did not have the same features as that provided for in s. 240 of the Code.
[15] The defendant stated that the exchange of correspondence between counsel in advance of the hearing before the umpire showed that the parties intended to settle all matters relating to the case, including quantum. The plaintiff was therefore in no position to object.
[16] The defendant submitted that the plaintiff could not object that the adjudicator relied on the income determined by the first adjudicator, since it was in evidence that despite his efforts the defendant was unable to find employment. The compensation awarded by the adjudicator was intended to replace the income the employee would have earned if he had been reinstated, so that it should be based on the income generated by that employment, which was determined by the first adjudicator, and on which the adjudicator Deblois properly relied.
[17] The defendant submitted that by unilaterally altering his terms of employment so as to ensure that he would not accept the work offered, the plaintiff had made a new dismissal. For these purposes, contrary to the arguments of the plaintiff, it was not necessary for the defendant actually to be working.
[18] The defendant noted that the plaintiff had not accurately reproduced the evidence filed before the adjudicator and had added certain documents, including an offer of settlement, which were never seen by the adjudicator.
[19] The defendant asked the Court to exercise its discretion as set out in s. 400 of the Federal Court Rules, 1998 and, in view of the circumstances, to order the plaintiff to pay his out-of-court costs.
ANALYSIS
Nature and scope of judicial review
[20] In its memorandum, the plaintiff asked the Court to answer nine questions, some of which were not discussed at the lower level. In his decision, the adjudicator finally resolved two principal questions. First, he ruled on a preliminary objection to his jurisdiction, and then he disposed of the argument on the defendant's alleged dismissal. I will first discuss these two points and then examine the more specific questions raised by the plaintiff.
Judgment on preliminary objection
[21] In a proceeding pursuant to s. 240 of the Code, an adjudicator's jurisdiction is limited by the exceptions set out in s. 242 (3.1):
| 242(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
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242 (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 d'un manque de travail ou de la suppression d'un poste;
(b) la présente loi ou une autre loi fédérale prévoit un autre recours.
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[22] Before the adjudicator the plaintiff argued that the defendant's position had been abolished. The adjudicator therefore considered the merits of this preliminary objection, dealing first with the nature of the function performed by Mr. Gingras, the employee who replaced the defendant. The adjudicator concluded:
[TRANSLATION]
In light of precedent and academic opinion, and in view of the evidence submitted to the undersigned adjudicator, it is clear that Mr. Gingras was and still is an employee of Express Hâvre St-Pierre Ltée within the meaning of the Canada Labour Code.
[23] The adjudicator then considered the concept of "discontinuance of a function" [cessation d'une fonction], which has now been replaced by that of "suppression de poste". He cited the following passage from Transport Guilbault inc. v. Lucien Leclerc (May 21, 1986, case A-618-85):
The adjudicator dismissed this argument because he held that the "discontinuance of a function" referred to in this provision could not be the result of a decision by an employer to have a contractor do work which had till then been done by its employees. In our opinion this was an error. The discontinuance of a function within the meaning lllf s. 61.5(3)(a) is discontinuance of a function within a given employer's business. Such discontinuance may result from a decision made by the employer to give work done till then by its employees to a contractor. Provided that decision is genuine and there is nothing artificial about it, s. 61.5(3)(a) cannot be interpreted otherwise without unduly limiting the employer's freedom to plan and organize its business as it wishes.
[24] The adjudicator therefore concluded that there had been no discontinuance of the function initially held by the defendant. He wrote:
[TRANSLATION]
The said function was still being performed by the same employee as before [Mr. Gingras] and on the same terms, except in two respects, those of remuneration and of ownership of the vehicle, as considered earlier. Essentially, the employer cannot say that the function no longer existed in its business.
Consequently, the undersigned adjudicator concludes that when the complainant contacted Nicolas Vigneault in early June 1999, it was incorrect to say that the position had been abolished, as that was not the case: Mr. Gingras was still working for Express Hâvre St-Pierre Ltée as he had been doing since the dismissal of the complainant, although some of his working conditions had changed and he had purchased the truck owned by the business.
[25] The plaintiff argued that the adjudicator made an error by applying Transport Guilbault, supra, but did not say what this error was. It appeared that the adjudicator cited Guilbault to clarify the scope of the concept of discontinuance of a function or abolition of a position. However, as it had previously been concluded that Mr. Gingras was still an employee of the company and still held the same position, the above-cited passage naturally became inapplicable. In view of the fact that the plaintiff did not appear to dispute the adjudicator's conclusion on the nature of the employment relationship between itself and Mr. Gingras, I do not see how the adjudicator can be blamed in this respect in any way.
Conclusions on dismissal
[26] The adjudicator objected that the plaintiff had not offered the defendant one of its trucks which was the subject of a sale, even though the plaintiff knew that under the first adjudicator's order it had to reinstate the defendant. He wrote:
[TRANSLATION]
It is far from satisfactory to say, as the witness Nicolas Vigneault did, that the reason the offer was not made to the complainant was simply that they did not think of it. That is to disregard much too easily an employee who had been working for the business for 12 years and on whose proceeding the adjudicator François G. Fortier had just ruled favourably. The evidence was that the business was informed that the adjudicator Fortier had rendered his decision before the offer was made to Mr. Gingras. Clearly, the employer was not interested in re-hiring the complainant. The exchanges of correspondence that were to follow the decision by the adjudicator Fortier indicate that it was not until early June 1999 that the complainant was finally told of the employer's position, namely that his job had been abolished, and this was in a contact he initiated directly with a representative of the company.
It should be recalled that the employer submitted no other arguments apart from saying that the position had been abolished, an argument which the undersigned adjudicator does not accept. In the circumstances, therefore, the undersigned adjudicator concludes that Express Hâvre St-Pierre Ltée unjustly dismissed the complainant Denis Leblanc.
[27] Besides suggesting nothing to justify a possible dismissal, the plaintiff objected that the adjudicator had imposed on it a duty to give the defendant a [TRANSLATION] "right of first refusal" on purchase of the truck. In its submission, [TRANSLATION] "it would be bizarre if merely in order to comply with a subsequent reinstatement order a business had to purchase a truck for the purposes of reinstatement, regardless of its operating requirements, its right of management and changes taking place in the ordinary course of business". In my opinion, the plaintiff is interpreting the adjudicator's decision in a wholly inadmissible way. It is clear that the adjudicator only held the fact there was no purchase offer to the defendant against the plaintiff for purposes of credibility. He certainly did not impose such a duty on the plaintiff, but rather held that in the circumstances the fact that nothing was offered to the defendant was suspicious, and taken together with the other facts undermined the credibility of the plaintiff. I find no error by the adjudicator in this approach or on this question, which is fundamental to his jurisdiction as the judge of fact.
[28] In the circumstances, and in the absence of any argument to the contrary, I consider that the adjudicator's decision on the unjust nature of the dismissal was entirely justified.
[29] The plaintiff alleged that the adjudicator only adopted the decision by the first adjudicator, without considering the record before him. These serious allegations find no support whatever in the evidence. It is quite clear that the adjudicator exercised his jurisdiction as he was required to do. Both parties had an opportunity to submit and file any relevant evidence. They were able to examine and cross-examine the witnesses. Simply reading the decision clearly shows that the record was conscientiously reviewed. The plaintiff's argument is entirely without foundation.
Other questions
[30] The plaintiff submitted a number of questions that were not raised before the adjudicator. To the extent that these were questions dealing with the adjudicator's jurisdiction, they may be given specific attention in this judicial review proceeding.
[31] The plaintiff argued that the adjudicator acted without jurisdiction since other remedies existed in the Code or in some other Act of Parliament, in accordance with s. 242(3.1)(b). For his part, the defendant submitted that since the plaintiff never raised this argument before the adjudicator, it had implicitly admitted that the defendant had no other valid recourse and was therefore not in a position to raise the objection at this stage. This argument by the defendant is without merit. The very purpose of a judicial review proceeding is to determine whether a federal board, commission or other tribunal has acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction (s. 18.1(4)(a) of the Federal Court Act, R.S.C. 1985, c. F-7).
[32] The plaintiff considered that when it failed to perform its obligations the defendant should have brought compulsory enforcement proceedings available under s. 244(2) of the Code or initiated proceedings for contempt of Court or an injunction.
[33] The plaintiff's argument is closely linked to another of its contentions. The plaintiff submitted that it was impossible for the defendant to file a second complaint for dismissal, since the defendant had not worked during the period in question. In the plaintiff's submission, a reinstatement order creates the right to restore an employment relationship, but the restoration in fact only takes place by occupying the job and performing the work. In my view, this argument indicates a misconception of the nature of a reinstatement order. It is worth looking more closely at the order, made by the first adjudicator:
[TRANSLATION]
IN VIEW OF THE FOREGOING, THE ADJUDICATOR:
- FINDS THAT DENIS LEBLANC did not resign from his employment on May 8, 1997;
- ALLOWS in part DENIS LEBLANC's complaint;
- QUASHES the dismissal of DENIS LEBLANC;
- ORDERS that DENIS LEBLANC be reinstated in his employment;
- SUBSTITUTES for the dismissal a suspension of one month from May 8 to June 7, 1997 inclusive;
- ORDERS the employer to pay DENIS LEBLANC with interest the salary he lost from June 7, 1997 to the date of his reinstatement;
- RESERVES jurisdiction to determine the amounts owed in the event the parties cannot reach agreement on this point.
[34] It is clear that when the adjudicator quashed the dismissal, at that moment he restored the relationship of employment which was then deemed never to have ceased to exist. If the employer does not carry out the other terms of an adjudicator's order, an employee may have recourse to compulsory enforcement proceedings as provided in s. 244(2) of the Code. However, it is clear that if the employment relationship is automatically restored, it is entirely possible for an employee, though he is not still working for the employer as a result of the latter's subsequent actions, to be the subject of a second dismissal. It will then be necessary to determine whether the complaint procedure under s. 240, which also applies to disguised dismissal (Srougi v. Lufthansa German Airlines (1988), 93 N.R. 244 (F.C.A.)), is available.
[35] I feel that the plaintiff's argument is correct in law. Section 244(2) of the Code provides:
| On filing with 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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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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[36] In the case at bar the adjudicator's first order was filed on June 3, 1999 (p. 112 of defendant's record), so that the defendant could have exercised this forced execution remedy in the Federal Court. He could have asked that the order be implemented in kind or by the equivalent, but did not do so.
[37] This has unfortunate consequences for the defendant. The second adjudicator's decision must be completely quashed even though it appears that it was correct, at least as regards the assessment of the evidence and the merits of the case. Allowing the instant application for judicial review will have the effect of returning the matter to this Court, which will hear a new proceeding for forced execution. It is very likely that the result will ultimately be the same.
[38] Accordingly, the second adjudicator did not have jurisdiction to hear the matter. I should add at once that many errors occurred in this case, both on the part of the decision-makers and on the part of the parties, so that the defendant should not have to suffer from paying costs because of the proceeding mistakenly brought before the second adjudicator and in this Court.
[39] As the decision of the adjudicator François G. Fortier was filed in the Registry of the Federal Court and that order has the effect of a judgment, I allow the defendant Denis Leblanc until October 1, 2001 to proceed with his compulsory enforcement remedy and authorize the plaintiff to take no action against the defendant Denis Leblanc until judgment is rendered by this Court on his forced execution proceeding.
Conclusion
[40] For the foregoing reasons, this application for judicial review is allowed.
OTTAWA, Ontario
June 20, 2001
Certified true translation
Suzanne M. Gauthier, trad. a., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-792-00
STYLE OF CAUSE: Express Hâvre St-Pierre Ltée
- and -
Robert Leblois and Denis Leblanc
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: May 11, 2001
REASONS FOR ORDER BY: ROULEAU J.
DATED: June 20, 2001
APPEARANCES:
Jean-François Laforge FOR THE PLAINTIFF
Laval Dallaire FOR THE DEFENDANTS
SOLICITORS OF RECORD:
La Forge, Barbeau FOR THE PLAINTIFF
Québec, Quebec
Heenan, Blaikie FOR THE DEFENDANTS
Québec, Quebec
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