Date: 20000316
Docket: T-993-99
BETWEEN:
| ELIZABETH BERNADETTE POITRAS |
Applicant
| THE KEHEWIN CREE NATION and |
Respondents
REASONS FOR ORDER AND ORDER
CAMPBELL, J.:
[1] The Applicant was employed by the Respondent as Principal of the Kehewin School. Her employment commenced on September 1, 1995 and was terminated on February 25, 1997, allegedly for cause. A complaint was filed under the Canada Labour Code, R.S.C. L-1, and a hearing was held before an Adjudicator pursuant to Division XIV Part III of the Canada Labour Code. 1 On July 30, 1998, the Adjudicator rendered his decision upholding the dismissal. This application is a judicial review of that decision.
[2] The Adjudicator's well substantiated findings of fact are as follows:
| Having considered all of the evidence I find as a fact that Stella John and Suzanna McGilvery began fighting at the Kehewin School at approximately 3:30 p.m. on Friday, December 6, 1996. The fight was severe in the sense that several punches were thrown, the majority of which were received by Stella John. The fight was started by Stella John. The fight was started by Stella John and had Mr. Ojala not intervened to separate them, Stella John would have continued with the fight. Mr. Ojala took the two fighters to Ms. Poitras' office where they were to be disciplined for fighting. By this time Ms. Poitras was nearing the end of a long and stressful day. She spoke to the two girls and then released Suzanna McGilvery so that she could catch her bus. Stella John was not released at that time as Ms. Poitras was concerned about a continuation of the fighting. A short time later Stella was advised that she could leave. On the way out she slammed the door causing papers to fly about on Ms. Poitras' desk. Ms. Poitras caught up to Stella and Stella was returned to the office to close the door properly. Stella continued to close the door in a forceful manner but was prevented from slamming it by Ms. Poitras holding the other side of the door. Stella then turned to leave and on her way out said, "you fat fuckin' principle". By this time Ms. Poitras was angry and pursued Stella, catching up to her by the outer doors to the general office. Ms. Poitras confronted Stella face to face and put both hands on her shoulders. Although upset, Ms. Poitras did not shake Stella with such force that she would cause bruising. However, when asked to return to the office, Stella resisted. In an attempt to force her to do so, Ms. Poitras twisted Stella's arm behind her back and directed her to Ms. Poitras' office in a fashion similar to what a police officer would do with a person under arrest. Once in the office Ms. Poitras yelled at Stella for her inappropriate behaviour until Stella apologized. I do not accept Stella's evidence that she was thrown against the wall. By this time Stella was crying and simply left without further incident. |
| I further find as a fact that Stella and Suzanna were both told that they were expelled from school. Following Stella's departure Ms. Poitras realized that she should only have suspended them rather than expelled them. She therefore attended Stella's residence to advise Stella accordingly. By this time Ms. Poitras realized that she had overreacted and that she manhandled a student when the preferable course of action would have been to let her go and deal with the problem when cooler heads prevailed. 2 |
[3] The Adjudicator's decision is as follows:
| The policy of the school was one that involved the physical striking of a student unless the student was in danger of hurting themselves or someone else. I accept that this was a requirement of the teachers, and the principle. Ms. Poitras, was expected to set an example in that regard. She fell short of this expectation. However, falling short of an employers' expectations, alone, is not enough. |
| It may be argued that Ms. Poitras could have been given a written warning or suspended and that may have been sufficient. I do not agree. Ms. Poitras lost the confidence of the Respondent, and she may well have lost the confidence of the other teachers, the students and the public. She should have let Ms. Pipe vent her anger without interference and then deal with the situation when cooler heads prevailed. Instead, she let her own anger dictate her response. |
| I therefore find that Ms. Poitras was dismissed for just cause. 3 |
[4] Within the Adjudicator's reasons for decision the standard of conduct required of the Applicant is clear: no force is to be used against a student unless required for safety reasons. Against this standard, three factors were considered in reaching the decision that no unjust dismissal occurred: first, the use of force against a student, but this by itself not being sufficient to warrant dismissal; second, the loss of confidence by the Respondent, and perhaps the loss of confidence by other teachers, the students, and the public; and third, the reason for the use of force against the student, being the loss of control due to anger.
[5] The Applicant argues that the consideration of the loss of confidence factor is an error in law. I agree with the Applicant's submission that this factor is properly considered only on the question of the relief to be granted, should an unjust dismissal be found. Therefore, I find that the Adjudicator applied an extraneous consideration in reaching the decision, and in doing so, made an error in law.
[6] The issue is whether the application of this error in law requires my intervention in the Adjudicator's decision.
[7] Section 243(1) and (2) of the Canada Labour Code provides a privative clause as follows:
| 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. 1997-78, c. 27, s. 21. |
[8] With respect to the privative clause, in Air Canada v. Norman J. Davis, 4 Muldoon, J. discussed the standard of review applicable to judicial review of the decision of an adjudicator appointed pursuant to the Canada Labour Code. He concluded that the standard of review with respect to errors within jurisdiction is that of patent unreasonableness whereas, with respect to the question of jurisdiction, the standard is one of correctness.
[9] A decision is patently unreasonable if it is clearly irrational and is not in accordance with reason. 5
[10] I cannot say that the decision reached in the present case is irrational. I agree with the Applicant's argument that the Adjudicator made an error in law, but in my opinion, the strength of the ultimate decision reached is not sufficiently diminished into one not in accordance with reason.
ORDER:
[11] Accordingly, this application is dismissed. I make no order as to costs.
"Douglas R. Campbell"
Judge
Edmonton, Alberta
March 16, 2000.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT FILE NO.: T-993-99
STYLE OF CAUSE: Elizabeth Bernadette Poitras v.
The Kehewin Cree Nation and
Michael S. Hall
REASONS FOR ORDER AND ORDER: Campbell, J.
DATE: March 16, 2000
APPEARANCES:
Terence P. Glancy for the Applicant
Gerry Deacon for the Respondents
SOLICITORS OF RECORD:
Royal, McCrum, Duckett & Glancy for the Applicant
Edmonton, Alberta
Weir Bowen
Edmonton, Alberta for the Respondents
__________________
1 Under s.240 of the Canada Labour Code , a person who considers that he or she has been unjustly dismissed may make a complaint to an inspector under the Code.
Pursuant to s.241(2), the inspector is to endeavour to assist the employee and employer to settle the complaint. Section 241(3) provides that if the compliant cannot be settled and the employee so requests, the inspector shall report to the Minister that the complaint could not be settled and deliver to the Minister all documents in the possession of the inspector that relate to the complaint.
Under s.242(1) the Minister may then appoint an adjudicator to hear and adjudicate the complaint. Under s.242(3) the adjudicator is authorized to consider whether the dismissal was unjust and render a decision thereon. Under s.242(4) the adjudicator may issue an order requiring an employer to pay compensation to the employee, reinstate the employee, or take other action to counter the consequences of the dismissal.
2 Applicant's Application Record, Tab 2, p. 11-12.
3 Ibid, p. 13.
44. Air Canada v. Norman J. Davis 72 F.T.R. 283.
5 65. Canada (Attorney General) v. Public Service Alliance of Canada [1993] 1 S.C.R. 941 (S.C.C.).
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