Chalifoux v. Driftpile First Nation, 2001 FCT 785

Date: 20010711

Docket: T-1345-00

Neutral citation: 2001 FCT 785

BETWEEN:

                                                       ELIZABETH CHALIFOUX

Applicant

                                                                         - and -

                                                  DRIFTPILE FIRST NATION and

                                                       THOMAS W. WAKELING

Respondents

                                                        REASONS FOR ORDER

GIBSON J.:

[1]                These reasons arise out of an application for judicial review of an adjudication decision under Division XIV, Part III of the Canada Labour Code^[1] wherein the Adjudicator concluded, in part, in the following terms:

After "weighing... all considerations for and against an award of reinstatement [of Ms. Chalifoux], including an evaluation of the nature of the relationship between [Ms. Chalifoux] and [the Driftpile First Nation] on the record as it exists", as directly by Justice Campbell, I decline to direct the Driftpile First Nation to reinstate Ms. Chalifoux.

[2]                This matter has a somewhat long history. The decision under review is the second adjudication decision by the same adjudicator arising out of the failure by the Driftpile First Nation (the "respondent") to renew the employment contract of Ms. Chalifoux (the "applicant") as an elementary school teacher at the end of the 1995-96 school year.    The first adjudication decision was the subject of an application for judicial review before this Court. That application was heard by Mr. Justice Campbell. His Order, dated the 21^st of May, 1999^[2] is reflected in paragraph 14 of his reasons, bearing the same date, which is in the following terms:

Accordingly, I set aside Adjudicator Wakeling's decision respecting reinstatement only, and refer this issue back to him for reconsideration on the direction that such reconsideration include a weighing of all considerations for and against an award of reinstatement including an evaluation of the nature of the relationship between the applicant and respondent on the record as it exists.

A footnote to the foregoing quoted paragraph is in the following terms:

During the course of the hearing counsel for the respondent [the Driftpile First Nation] argued that a valid consideration respecting reinstatement is the fact that an award of compensation has been made. I agree with this submission.

[3]                The background to the first adjudication decision, and therefore to the second adjudication decision which is before me, is set out in Mr. Justice Campbell's reasons as is a description of the first adjudication decision. Rather than repeat that material, a copy of Mr. Justice Campbell's reasons is annexed to these reasons as a Schedule.

[4]                As Mr. Justice Campbell indicates in his reasons, the approach to be adopted in applying discretion to award reinstatement under subsection 242(4) of the Canada Labour Code is a matter of some academic and judicial debate. Further as indicated by Mr. Justice Campbell, a binding precedent which reflects that debate is Atomic Energy of Canada Ltd. v. Sheikholeslami^[3].

Mr. Justice Marceau, for the majority, wrote at paragraphs 11 and 12 of the reasons for decision:

...Reinstatement, in my understanding, is not a right that a wrongfully dismissed employee possesses as he may possess human rights. It is a long-established common-law, as well as civil law, rule that the courts will not order specific performance of a contract of personal service whose execution requires the constant personal dedication and willingness of one or both parties. In the case of a contract of employment, the rule was originally applied to the employee who could not be forced to execute the work contemplated without being subject to constant supervision and reduced to a state tantamount to slavery, but it was soon made applicable as well to the employer on the ground that the obligations were mutual and were meant to be executed under the auspices of a relationship of confidence and trust which can neither be required nor enforced.

The unfair dismissal provisions for non-unionized employees in the Canada Labour Code no doubt represent a statutory modification of the traditional rule that an employment contract will never be specifically enforced. But they certainly do not, and even could not, go so far as to create a right in the person of the wrongfully dismissed employee. It would be contrary to the common sense that precisely supports the traditional rule. They simply provide for reinstatement as a possible remedy that may be resorted to in proper situations. It is often said that, in practice, it is the remedy favoured by adjudicators in their efforts to "make whole" an employee's real-world losses caused by dismissal. It is undisputable, however, on a mere reading of subsection 242(4) of the Code, that an adjudicator is given full discretion to order compensation in lieu of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored.     [citations omitted]

[5]                Mr. Justice Létourneau, while agreeing in the result, noted at paragraph 17 of the reasons that "...[he] wish[ed] to express a concern with respect to the Adjudicator's finding that the employment relationship was no longer viable and that the necessary trust between the employer and the employee was gone." In paragraph 31 of the reasons, Mr. Justice Létourneau wrote:

It is true that reinstatement is not a right even after a finding of unjust dismissal, but as I. Christie et al properly point out, the exception to reinstatement should be applied very cautiously otherwise the risk exists that an unjustly dismissed employee will be penalized by losing his job. Indeed, a finding of unjust dismissal is a finding that the work relationship should not have been severed in the first place. In such cases, the presumption is, in my view, clearly in favour of reinstatement unless there is clear evidence to the contrary.

[6]                I am satisfied from the foregoing quotations that, while Mr. Justice Létourneau clearly regarded reinstatement as a presumptive right "...unless there is clear evidence to the contrary", Mr. Justice Marceau, with whom Mr. Justice Strayer concurred, took a different view, that being, that reinstatement is simply one alternative remedy where there has been unjust dismissal and that it is not a remedy to which an unjustly dismissed employee has a presumptive right. I am not satisfied that the last sentence of the quotation from Mr. Justice Marceau's reasons should be read as indicating that reinstatement is a right in every case where an adjudicator is of the opinion that the relationship of trust between the parties could be restored. I am satisfied that such an interpretation would be entirely inconsistent with the context in which that sentence appears.

[7]                I am further satisfied that it is clear from the two decisions of the adjudicator in this matter that he shares the views of Mr. Justice Marceau regarding reinstatement not being a right or even a presumptive right.

[8]                Mr. Justice Campbell stated the issue question on the application for judicial review before him in the following terms:

Did the Adjudicator make a patently unreasonable error in law?

He concluded as follows:

However, in my opinion, the Adjudicator's analysis is wholly deficient and made in error of law in not conforming with the weighing of considerations requirement respecting reinstatement expressed in Atomic Energy of Canada v. Sheikholeslami as found above. Further, because reinstatement is a fundamental element of the applicant's prayer for relief, I find that the answer to the question posed above is yes; not to conduct the required analysis is a patently unreasonable error in law.

Thus, Mr. Justice Campbell referred the matter back to the adjudicator in the specific terms earlier quoted in these reasons.

[9]                In his decision here under review, the adjudicator dwelt at considerable length on his view that reinstatement following unjust dismissal is neither a right nor a presumptive right. I find that portion of the adjudicator's decision to be entirely obiter, given the mandate given to him by Mr. Justice Campbell. While counsel for the applicant urged that the adjudicator erred in this aspect of his decision, counsel acknowledged that that aspect of the decision was obiter. In the circumstances, I will not dwell on the merits or demerits of that portion of the adjudicator's decision.

[10]            The portion of the adjudicator's decision directed to the specific mandate flowing from Mr. Justice Campbell's decision is rather brief. It is in the following terms:

I will now reconsider the reinstatement issue taking into account "all considerations for and against an award of reinstatement".

At the outset, I wish to make it clear that no evidence was led at the March 6, 1998 hearing I conducted which would allow one to conclude that Ms. Chalifoux was not a competent teacher. Indeed, the last performance evaluation conducted on February 28, 1996 gave Ms. Chalifoux an excellent rating. In saying this, I am not overlooking the fact that Ms. Chalifoux, on cross-examination, characterized the 1995-96 school year as a "rocky one" or that the person who was the school principal in the spring of 1996 did not recommend that Ms. Chalifoux be reappointed. It follows that if Professor England is correct and an employer under the Code may terminate a worker's employment only for just cause and that reinstatement is the primary remedy, I would have no valid reason, following the jurisprudence associated with Professor England's approach, to decline granting Ms. Chalifoux's reinstatement request.

But for the reasons stated, I disagree with the position Professor England takes and believe the proper principles for determining an appropriate remedy are those set out in Atomic Energy of Canada Ltd. v. Sheikholeslami,, [1998] 3 F.C. 349, 357 & 363 n. 6 (C.A.), Chalifoux v. Driftpile First Nation T-1738-98 (Fed. Ct. Tr. Div. May 21, 1999) and Knopp v. Westcan Bulk Transport Ltd. 15-16 (Feb. 22, 1994).

The following is a list of those considerations which one could reasonably assert support the argument that reinstatement is an inappropriate remedy in the circumstances of this case:

               1.             Ms. Chalifoux lost no employment income or after-tax income in the twelve-month period following the termination of her employment with the Driftpile First Nation on August 31, 1996.

               2.             The remedy granted in my March 6, 1998 decision took into account the sum Ms. Chalifoux expended for rental accommodation while teaching at the Whitefish Indian reservation for the 1996-97 school year.

               3.             Ms. Chalifoux was employed in her chosen profession as of March 6, 1998.

               4.             Ms. Chalifoux was teaching at a school only one-quarter mile off the Driftpile reserve for the 1997-98 school year. She lived at her home on the Driftpile reserve during the 1997-98 school year with her husband.

               5.             Ms. Chalifoux's two children were twenty and twenty-one years of age at the time of the hearing. There was no suggestion that these adults were dependent on her.

               6.             Ms. Chalifoux was the legal guardian of two children who were eight and nine years old when I heard this matter. These youngsters lived with Ms. Chalifoux and her husband. Ms. Chalifoux's husband was not working and Ms. Chalifoux did not claim that her husband was unable to care for these young children while she was away from home teaching at a nearby school. I do not know whether Ms. Chalifoux would have more time to spend with the young children in her care if she taught at the band's school. The evidence did not disclose whether the distance between Ms. Chalifoux's home on the reserve and the school just off the reserve is greater than the distance between her home and the school the Driftpile First Nation operates. I do not know whether Ms. Chalifoux would spend more time driving to the school just off the reserve or the one on the reserve. But I do know that travelling in the area is not difficult. Most roads in the area are paved. Some of the reserve's 700 residents work or study in High Prairie and Slave Lake. Half of the teachers employed by the band did not live on the reserve. Three or four teachers lived in High Prairie.

               7.             Ms. Chalifoux had taught off the reserve before. She earned a Bachelor of Arts degree from the University of British Columbia and taught at schools in British Columbia operated by the public school authorities.

               8.             The school principal did not recommend to the band's chief and councillors that they appoint Ms. Chalifoux for the 1996-97 school term. The chief and councillors accepted that recommendation. According to the evidence of a long-time councillor, in response to questions from me, the council, before deciding to reappoint a teacher, takes into account a number of factors including the teacher's relationship with students and the community.

               9.             The band is in a much better position than an adjudicator to decide who will teach its members' children. An adjudicator should be extremely reluctant to tell a community who will teach its children.

               10.           The band would have to dismiss one of its existing teachers if I ordered the band to reinstate Ms. Chalifoux.

To my mind, these facts and considerations are more important than the following facts which one could reasonably assert favour reinstatement:

               1.             Ms. Chalifoux is a competent teacher and is willing to work with those who administer and teach at the band's school. I specifically asked her if she could work with those who were teaching at the band's school for the 1997-98 term.

               2.             If Ms. Chalifoux taught at the band's school, she would not have to pay income tax and would not have to work off the reserve. Ms. Chalifoux indicated that she needed time to care for two young persons for whom she was the legal guardian. As noted above, it was not clear to me how much more time, if any, she would have for her charges, if she taught at the Driftpile school.

               3.             Ms. Chalifoux was a status Indian and would prefer to live and work on the Driftpile First Nation reserve.

               4.             Ms. Chalifoux taught at the Driftpile First Nation school for eleven terms.

[11]            Following the above, the Adjudicator moved directly to his conclusion quoted earlier in these reasons. I repeat that conclusion here for ease of reference:

After "weighing ... all considerations for and against an award of reinstatement, including an evaluation of the nature of the relationship between the applicant and respondent on the record as it exists", as directed by Justice Campbell, I decline to direct the Driftpile First Nation to reinstate Ms. Chalifoux.

[12]            Against all of the foregoing, I determine the sole issue before me to be whether or not the portion of the adjudicator's reasons that I have quoted at length amounted to an adequate "weighing" or analysis of all considerations for and against an award of reinstatement as mandated by Mr. Justice Campbell. Counsel for the respondent conceded that if I were to conclude that it did not amount to an adequate weighing or analysis, the result would be a reviewable error.

[13]            The weighing or analysis is thin. The quoted portion of the Adjudicator's reasons is more an enumeration of factors or considerations than an analysis. That being said, there is some analysis. The first listed consideration in favour of reinstatement is simply a statement of fact as are considerations 2 to 5. The sixth consideration acknowledges a number of unanswered and relevant questions that might be considered to disclose some concern about Mr. Justice Campbell's direction that the reconsideration be conducted on the basis of the record then before the adjudicator. The seventh consideration is, once again, simply a recitation of the evidence before the adjudicator.

[14]            The eighth consideration is the most problematic. The "long-time councillor" referred to therein is apparently one Hank Giroux. The applicant's initial brief noted that Mr. Giroux, who was a member of the Council of the Driftpile first nation for many years in the time preceding the dismissal or non-renewal of the applicant's contract, responded to the adjudicator in evidence given prior to the first decision indicating that only one problem would flow from the reinstatement of the applicant, that being that the first nation would be required to release a teacher.

[15]            Counsel for the applicant urged that Mr. Giroux's testimony supported a conclusion that no basis whatsoever existed on which the adjudicator could conclude that the relationship of trust between the first nation and the applicant could not be restored or, put another way, that there was no "clear evidence" rebutting the presumption in favour of reinstatement advocated by Mr. Justice Létourneau in his reasons in Atomic Energy of Canada Ltd. v. Sheikholeslami, supra. That being said, by the time the second decision of the adjudicator that is here under review was rendered, almost four (4) years had passed since the termination of employment of the applicant and it is open to speculation as to how relevant the testimony of Mr. Giroux would have been if reinstatement of the applicant had been ordered at the time of the second adjudication decision. Perhaps unfortunately in retrospect, the mandate conferred on the adjudicator by Mr. Justice Campbell referring the matter back required that the second decision be made on the basis of the record as it then existed. In the result, it was not incumbent on the adjudicator nor, in the absence of an initiative on his part, open to the parties, to consider more time-relevant evidence as to the impact that reinstatement of the applicant would have had on the relationship of trust, not only between the applicant and the respondent, but on the relationship of trust between the community as a whole and the applicant and on the working relationship that would have existed in a four-member teaching component in a school in which a member of that component had been removed in order to make room for the applicant.

[16]            The ninth consideration supporting the argument that reinstatement is an inappropriate remedy reflects the reality that the respondent was in a much better position than the adjudicator to decide who should teach its members' young children. The adjudicator writes:

An adjudicator should be extremely reluctant to tell a community who will teach its children.

I regard this as an appropriate and relevant analytical consideration, particularly considering the passage of time since the termination of the employment of the applicant and the lack of evidence before the adjudicator regarding current conditions and the impact that reinstatement of the applicant would have on the small community, its small teaching fraternity at the elementary level and, perhaps most importantly of all, on the children who are taught by that small fraternity.

[17]            The tenth factor considered by the adjudicator to weigh against reinstatement interrelated closely with the eight and ninth factors.

[18]            A further brief element of analysis on the part of the adjudicator is reflected in the following element of his reasons earlier quoted:

To my mind, these facts and considerations are more important than the following which one could reasonably assert in favour of reinstatement:

[19]            The first factor in favour of reinstatement is a statement of fact followed by an acknowledgement, which might be considered to be analysis, that the applicant indicated that she could work with those who were teachers at the respondent's elementary school for the 1997-98 term.

[20]            The second factor in favour of reinstatement is the reality that the applicant's take-home income if she were to teach on reserve would be significantly greater than her current take-home income given the fact that her current employment is off-reserve and she is therefore subject to income tax. That consideration would appear to be minimized by the adjudicator since he combines it with what might be considered to be a completely separate consideration, that being the impact on the applicant and the young persons for whom she and her husband were responsible of the time that she would have to care for the young persons if she taught on reserve rather than in her current teaching position at a school in close proximity to the reserve.

[21]            The third and fourth considerations cited by the adjudicator in favour of reinstatement are merely statement of facts.

[22]            As earlier indicated, the analysis of the factors for and against reinstatement as a remedy in favour of the applicant is thin. While there is some analysis, in general, the reasons of the adjudicator might support a conclusion that the adjudicator simply noted ten factors against reinstatement as compared with four factors in favour of reinstatement, largely ignoring the impact of reinstatement on community relations and on the quality of educational opportunity for young persons on the respondent's reserve, and instead determining in favour of the greater number of factors without undertaking a qualitative analysis.

[23]            At risk of being accused of equally failing to engage in an adequate analysis of the issue before me, I conclude, with some regret, that the adjudicator's weighing or analysis of the factors for and against reinstatement is sufficient to justify his conclusion.    In reaching this conclusion, I take into account the restriction on the mandate afforded to the adjudicator by Mr. Justice Campbell relating to the consideration of further and perhaps more time-relevant evidence regarding the impact that reinstatement might have. While I am satisfied it might have been open to the adjudicator on his own initiative, to nonetheless seek out evidence as to current impact, I conclude that it was not incumbent on him to do so. The failure to take into account some of the evidence before him regarding the impact that reinstatement might have had some years ago is, I conclude, not determinative.

[24]            In the result, I conclude that the adjudicator made no reviewable error in deciding as he did with respect to the mandate given to him by Mr. Justice Campbell. This application for judicial review will be dismissed.

[25]            In all of the circumstances of this matter, and in the absence of submissions before me on the part of counsel, there will be no order as to costs.

________________________________

        J. F. C. C.

Ottawa, Ontario

July 11, 2001