Date: 19991202
Docket: T-2020-97
Ottawa, Ontario, this 2nd day of December, 1999
Present : The Honourable Mr. Justice Pinard
| IN THE MATTER OF AN Application under Section 28 of the Federal Court Act |
| AND IN THE MATTER of a Decision of an Adjudicator made pursuant to Part III, Division XIV of the Canada Labour Code R.S.C. 1985 C. L-2 and amendments thereto: |
BETWEEN:
MALISEET NATION AT TOBIQUE
the Applicant,
- and -
PAULINE BEAR
the Respondent.
ORDER
The application for judicial review is dismissed.
JUDGE
Date: 19991202
Docket: T-2020-97
| IN THE MATTER OF AN Application under Section 28 of the Federal Court Act |
| AND IN THE MATTER of a Decision of an Adjudicator made pursuant to Part III, Division XIV of the Canada Labour Code R.S.C. 1985 C. L-2 and amendments thereto: |
BETWEEN:
MALISEET NATION AT TOBIQUE
the Applicant,
- and -
PAULINE BEAR
the Respondent.
REASONS FOR ORDER
PINARD, J. :
[1] This is an application for judicial review under section 18 of the Federal Court Act, R.S.C. 1985, c. F-7, from a decision of an adjudicator made pursuant to Part III, Division XIV of the Canada Labour Code, R.S.C. 1985, c. L-2 and amendments thereto, (the "Code") dated March 24, 1997. The applicant seeks an order quashing the decision on the basis that the Adjudicator lacked jurisdiction and that his findings were not supported in fact or law.
Facts
[2] The respondent began employment with the Maliseet Nation at Tobique on November 27, 1978 and was employed for seventeen years. During this time, she held a variety of positions including Assistant to the Band Chief, Band Personnel Manager and Central Filing Clerk within the Personnel and Information Services Department of the Band.
[3] On February 1, 1996 the respondent was given written notice by the Chief of the Tobique Band, Mr. Edwin Bernard, that she would be laid off the next day due to budgetary constraints. The letter stated that she would be given two weeks' salary in lieu of notice.
[4] While twenty employees were laid off at this time, the applicant also retained approximately twenty employees, some of whom had less service than the respondent.
[5] The respondent filed a complaint under section 240 of the Code on February 26, 1996 for unjust dismissal. The hearing was held on December 13, 1996 before Adjudicator Eugene McGinley in Perth-Andover, New Brunswick.
[6] The decision of Adjudicator McGinley was issued on March 24, 1997 and found that the respondent had been unjustly dismissed by the applicant. The applicant was ordered to reinstate the respondent in a suitable position and to negotiate compensation for her for the losses caused by the invalid dismissal.
[7] As of yet, the respondent has not been reinstated by the applicant. On April 23, 1997 the applicant filed an application for judicial review with the Federal Court of Appeal but this application was denied as the matter was outside of its jurisdiction.
[8] On July 16, 1997 the applicant filed a Notice of Motion to transfer the application to the Federal Court of Canada, Trial Division. The motion was not opposed by the respondent and was granted on September 9, 1998.
The decision of the Adjudicator
[9] The crux of the Adjudicator"s decision can be found at paragraph 22 of his reasons and reads as follows:
| Having listened intently to the testimonies by Pauline Bear, as well as the brief arguments by counsel, and having reviewed that testimony and the exhibits very carefully, I am of the opinion that the term "constructive dismissal" best describes what did transpire in this instance. I do not believe that there was any malice involved on the part of the employer, nor has there been any suggestion of either incompetence on the part of Mrs. Bear or disciplinary action by the employer. Reduced to its simplest terms, the evidence is that Pauline Bear had a good record of long service with the Tobique Band and she in effect lost her employment at a time when numerous employees were laid off in February, 1996. I note again that no consideration was given to her length of service either at the time of the alleged "lay-off" or in the course of events which saw other junior employees returned to employment in positions which it should have been apparent that Mrs. Bear could have filled. The undeniable fact is that Mrs. Bear was removed from employment in February, 1996 and has not been taken back by the employer. In that result, I find that Pauline Bear was constructively dismissed. While the evidence of the financial constraints as described by Mr. Perley might offer justification for the lay-off of some of the employees who were laid off, there is no evidence of any justification for dismissal of Mrs. Bear and I must conclude therefore that she was unjustly dismissed. |
Analysis
[10] The relevant statutory provisions, namely sections 240, 241, 242, 243 and 244 of the Code are reproduced in the Annex to these reasons.
[11] With respect to the applicant's first argument concerning the Adjudicator's jurisdiction, subsection 242(3.1)(a) of the Code defines the parameters of that jurisdiction as follows:
| 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
. . .
|
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 du manque de travail ou de la suppression d'un poste;
. . .
|
[12] The Federal Court of Appeal's decision in Srougi v. Lufthansa German Airlines (1988), 93 N.R. 244, is authority for the Adjudicator having the jurisdiction to hear a complaint of unjust dismissal once the employer"s actions are found to disclose a clear intention to end the employment relationship. On this issue, Justice Noël for this Court (as he then was) in Sagkeeng Education Authority Inc. v. Guimond et al. , [1996] 1 F.C. 387, stated at page 396:
| The determination of whether the respondent was dismissed by the applicant is thus a precondition to the Adjudicator"s jurisdiction. According to the decision of the Supreme Court of Canada in Bibeault [[1988] 2 S.C.R. 1048] and the jurisprudence reviewed above, the standard of judicial review on a jurisdictional question such as the interpretation of subsection 240(1) is one of correctness. Although the decision of an adjudicator appointed under the Canada Labour Code is protected by a finality clause, it is well established that the requirement that an administrative tribunal be correct in its interpretation of a jurisdiction-conferring statutory provision nevertheless applies. |
[13] Applying this reasoning to the facts of the present case, Adjudicator McGinley was obliged to examine the evidence in order to assess whether the employer had made a bona fide lay-off or whether there had been a dismissal. In this case, the Adjudicator found that the employer"s assertion that the lay-off was purely for financial reasons was unfounded and therefore assumed jurisdiction to consider the merits of the case.
[14] This interpretation of subsection 240(1) was affirmed by my colleague Nadon J. in Wolf Lake First Nation v. Young (1997), 130 F.T.R. 115, where he stated at paragraph 8 of his reasons:
| Common sense dictates that the adjudicator is not required to simply accept the employer"s statement that the employee was laid off for the reasons described in s. 242(3.1)(a). If that was indeed the effect of that paragraph then the adjudicator"s role would effectively be eliminated because any employer faced with an adjudication under s. 242 of the Code would simply have to give the above explanation, and since no examination could then be done, the issue would be closed. |
[15] It follows, therefore, that an adjudicator is well within his jurisdiction in considering the merits of the employer"s assertion that a termination is due to either lack of work or the discontinuance of a function.
[16] Therefore, I cannot agree with the applicant"s submission with respect to the jurisdiction of Adjudicator McGinley in examining the circumstances of the lay-off and to his subsequently assuming jurisdiction on the matter. It is my view that the Adjudicator rightly considered the evidence and assumed jurisdiction of the complaint.
[17] On this point, the applicant emphasized that counsel for the respondent had acknowledged that financial constraints were the basis for the lay-off as support for his position that the Adjudicator did not have jurisdiction in the matter as it was a lay-off for the reasons described in paragraph 242(3.1)(a).
[18] With respect to this argument, I am satisfied that while the respondent recognized the reason for the downsizing was financial, the respondent went on to specify that it was the nature of the treatment of the respondent which formed the basis of the complaint as it constituted unjust dismissal. It was incumbent upon the Adjudicator to examine all the circumstances surrounding the lay-off of the respondent including the competency of the employee, the length of service, the possible motives, and whether the employee was recalled at the next possible opportunity. It was his obligation to thoroughly examine whether the lay-off was reasonable in light of all the evidence. As there was no direct evidence of lack of work or of discontinuance of a function, the Adjudicator was certainly justified to consider whether the employer acted in a discriminatory or arbitrary manner in selecting the respondent for lay-off, or in not selecting her for positions which subsequently were filled.
[19] Having read the impugned reasons and carefully considered the arguments of both parties on the question of jurisdiction, I am satisfied that Adjudicator McGinley was not persuaded by the assertion of the applicant that the respondent"s lay-off was neither arbitrary or discriminatory. He found that while the respondent was laid off with the other nineteen employees due to budgetary constraints, the treatment she received was unjust and amounted to constructive dismissal.
[20] Applying the proper standard of review, correctness, to that proper finding of jurisdictional facts,1 I have not been convinced, upon reviewing the evidence presented before the Adjudicator, that the latter based his decision on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before it.
[21] In considering the applicant's second argument that the Adjudicator's findings were not supported in fact or law, I must adopt a standard of review corresponding to the functional and pragmatic approach which has been affirmed by the Supreme Court of Canada in several recent cases (see, for example, Veluppilai Pushpanathan v. Canada (M.C.I.) et al., [1998] 1 S.C.R. 982 and Canada (Director of Investigation and Research) v. Southam Inc. et al., [1997] 1 S.C.R. 748).
[22] In the case at bar, considering the privative clause contained in subsection 243(1) of the Code; considering that the Adjudicator acted within the limits of the jurisdiction conferred upon him by the same Code; considering that the administrative structure imposed by the Code creates an effective mechanism to achieve the goals of managing the interests of employers and employees with the aim of effecting solutions which concurrently balance the advantages and disadvantages of the parties involved; considering that Adjudicator McGinley possesses a high degree of expertise in the matters raised by this application as he is charged with resolving disputes between employers and employees on a continual basis and has developed a specialized knowledge in this area and considering that with respect to the merits of the complaint, the issue is primarily based on factual findings; I conclude that a high degree of deference must be accorded to the decision of the Adjudicator and that the standard of patent unreasonableness must be applied.
[23] In this case, the evidence presented before the Adjudicator showed that the respondent had been laid off with nineteen other employees in February 1996 and was not told at the time how long the lay-off would be or what considerations informed the selection of those laid off, other than that only those employees in essential positions were kept by the employer.
[24] Further, the facts show that the respondent"s position in the Central Registry was re-filled in mid-April when the Band received new monies, however, the respondent was never contacted in regard to this opening. While the applicant argues that the respondent herself was responsible for not being rehired as she had not gone to see the Chief, the evidence points to the fact that she requested in writing to be reinstated in February 1996 following the lay-off. I am convinced that the applicant was aware of the respondent"s desire to be placed in her previous position or another suitable position and made no effort to accommodate her when new funds became available.
[25] Based on these reasons, I am satisfied that the Adjudicator was not incorrect in his interpretation of the facts and in finding that the actions of the employer were not a lay-off but rather amounted to a dismissal. Furthermore, I cannot agree with the applicant that the Adjudicator made a reviewable error in fact or law.
[26] The applicant relies on the fact that although the respondent"s work was reassigned, the entire reason for the reassignment was due to the prevailing economic conditions and not because of any intention to dismiss the respondent. However, the evidence indicates that the position formerly occupied by the respondent was re-filled by two other employees after the respondent had written the letter requesting to be rehired that was sent in February 1996.
[27] This leads me to believe that her desire to be reinstated was known, and therefore, the applicant cannot now rely on the argument that the respondent did not ask for a position with the applicant. This allegation is unsupported by the facts.
[28] Under such circumstances, I am far from being convinced that the Adjudicator's findings are patently unreasonable. On the contrary, the award at issue is solidly based on the written and oral evidence presented before him and I find that Adjudicator McGinley was reasonable in his conclusion that the respondent was not genuinely laid off but rather was constructively dismissed. Consequently, there is no basis for interference by this Court in the matter.
[29] For all the above reasons, the application for judicial review is dismissed, with costs.
JUDGE
OTTAWA, ONTARIO
December 2, 1999
ANNEX
| 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.
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. |
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. |
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.
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.
|
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.
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. |
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. |
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.
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.
|
__________________
1 See Re Byers Transport Ltd. and Kosanovich et al. (1995), 126 D.L.R. (4th) 679 at 685-686.
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