Date: 19991102
Docket: T-2223-98
Ottawa, Ontario, November 2, 1999
Before: Pinard J.
Between:
TRANSPORT THOM LTÉE,
Applicant,
- and -
AURÈLE GAGNON,
Respondent.
ORDER
The instant application for judicial review is dismissed with costs.
Certified true translation
Bernard Olivier, LL. B.
Date: 19991102
Docket: T-2223-98
Between:
TRANSPORT THOM LTÉE,
Applicant,
- and -
AURÈLE GAGNON,
Respondent.
REASONS FOR ORDER
PINARD J.
[1] The instant application for judicial review concerns a decision by the adjudicator Isabelle Michaud on October 28, 1998 pursuant to s. 242 of the Canada Labour Code, R.S.C. 1985, c. L-2. By that decision the adjudicator allowed the respondent"s complaint, found that the latter was the subject of unjust dismissal and ordered the applicant to pay him the sum of $20,558.52 within fifteen days of the date of the decision.
[2] The only point at issue, as confirmed by counsel for the applicant at the hearing in this Court, concerns the compensation which the latter was ordered to pay the respondent. Without disputing the award of compensation equivalent to ten months" salary to the respondent, the applicant submitted that in using as a basis the salary paid the respondent in 1993, rather than that paid in the six months preceding his dismissal on May 1, 1995, the adjudicator, in view of the wording of s. 242(4)(a ) of the Canada Labour Code, exceeded her jurisdiction and so rendered a manifestly unreasonable decision.
[3] The following relevant passage from the adjudicator"s decision should be reproduced:
| Instead of reinstatement the undersigned adjudicator exercises her discretion to award the complainant financial compensation representing a reasonable period of leave. |
| The case law developed in relation to s. 242 of the Canada Labour Code may be used as a guide in determining the proper leave period. However, there is no magic formula that will enable us to arrive at an exact figure, and the adjudicator"s judgment based on the evidence in the record is still the only way to proceed. |
| In the instant case there is a man fifty-six years old at the time of the dismissal who had nearly ten years" seniority with the employer as a bus driver. Since his dismissal he has tried to find other employment in bus transportation and has made some limited attempts to recycle into other areas. However, the employer established that the complainant"s attempts to find other employment for himself have not been exactly aggressive. It appeared that the complainant could have persevered in his attempts and that he "threw in the towel" rather quickly. Accordingly, the adjudicator was not persuaded that the complainant had done everything possible to minimize his damages by a thorough search for other employment. |
| Accordingly, in light of the evidence and the case law developed on the point, as well as the complainant"s duty to minimize his damages, the adjudicator awards the complainant compensation of ten months" salary as a leave period. |
| In view of the complete evidence submitted, the undersigned adjudicator will indicate the exact amount of what these ten months of salary represent. In this connection, she cannot accept the employer"s arguments that she should use the salary for the last six months of work, since before that date the complainant was on sick leave and before that leave was doing school transportation. Using that argument would only have the effect of allowing the employer to reduce a complainant"s income significantly before his dismissal, so as to minimize eventual damages which it might be ordered to pay if the dismissal proved to be unfair. Instead, we will take as a basis for calculation 1993, the last complete year of work done by the complainant for the employer. For 1993 he had income of $24,670.23. This figure seems to us to be entirely reasonable as regular drivers in the employer"s charter division have an average annual income of $28,114.88. Consequently, the employer is ordered to pay the complainant the sum of $20,558.52. |
[4] The accuracy of the amounts mentioned by the adjudicator in the foregoing passage is not in dispute. Additionally, besides clearly establishing that the average salary of charter transportation drivers with the applicant was $28,114.88 from May 1995 to May 1997, the evidence further showed that the respondent"s total salary from September 1994 to May 1995 was $8,068.48. It is on the basis of the latter amount, corresponding to about a thousand dollars a month, that the applicant submitted that the ten months" compensation should not have exceeded some ten thousand dollars.
[5] The relevant provisions of the Canada Labour Code are the following:
| 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.
|
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. |
|
| |
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 Canadian Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c). |
|
| 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) 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) 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) 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. |
|
| (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) 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. |
|
(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) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
|
| 243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non
susceptibles de recours judiciaires.
|
|
[6] While the privative clause contained in s. 243 of the Canada Labour Code does not have the effect of preventing the exercise of judicial review under s. 18 of the Federal Court Act, R.S.C. 1985, c. F-7, it does limit this Court"s intervention to cases of "patently unreasonable" decisions. This results in particular from two judgments of the Supreme Court of Canada, National Corn Growers v. C.I.T. , [1990] 2 S.C.R. 1324, and Attorney General of Canada v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941.
[7] In National Corn Growers, Gonthier J. said the following at 1369 and 1370:
| Although the terms of s. 28 of the Federal Court Act are quite broad in scope, it is to be remembered that courts, in the presence of a privative clause, will only interfere with the findings of a specialized tribunal where it is found that the decision of that tribunal cannot be sustained on any reasonable interpretation of the facts or of the law. This principle, now widely recognized by the courts, has recently been expressed in Bell Canada v. Canada (Canadian Radio-Television and Telecommunications Commission), [1989] 1 S.C.R. 1722, where I had occasion to state at p. 1744 referring to the leading decision of [1979] 2 S.C.R. 227">Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227 ("C.U.P.E."): |
| Where the legislator has clearly stated that the decision of an administrative tribunal is final and binding, courts of original jurisdiction cannot interfere with such decisions unless the tribunal has committed an error which goes to its jurisdiction. Thus, this Court has decided in the CUPE case that judicial review cannot be completely excluded by statute and that courts of original jurisdiction can always quash a decision if it is "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" (p. 237). Decisions which are so protected are, in that sense, entitled to a non-discretionary form of deference because the legislator intended them to be final and conclusive, and, in turn, this intention arises out of the desire to leave the resolution of some issues in the hands of a specialized tribunal. |
[8] As s. 28 of the Federal Court Act, considered in National Corn Growers, contained grounds of intervention similar to those now set out in s. 18.1(4) of that Act as subsequently amended, I consider that Gonthier J."s statements are entirely applicable to the case at bar.
[9] Subsequently, in Public Service Alliance of Canada, where the appeal also concerned a decision rendered under s. 28 of the Federal Court Act, Cory J., at 963 and 964, explained what is meant by "patently unreasonable":
| It is said that it is difficult to know what "patently unreasonable" means. What is patently unreasonable to one judge may be eminently reasonable to another. Yet any test can only be defined by words, the building blocks of all reasons. Obviously, the patently unreasonable test sets a high standard of review. In the Shorter Oxford English Dictionary "patently", an adverb, is defined as "openly, evidently, clearly". "Unreasonable" is defined as "[n]ot having the faculty of reason; irrational. . . Not acting in accordance with reason or good sense". Thus, based on the dictionary definition of the words "patently unreasonable", it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction. This is clearly a very strict test. |
| In CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, La Forest J. (Dickson C.J. concurring) laid out the strict test of review, at p. 1003: |
| Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function. |
| It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational. |
[10] In the case at bar, the applicant did not persuade the Court that the compensation awarded to the respondent by the adjudicator exceeded the salary "that would, but for the dismissal, have been paid by the employer to the person", in the language of s. 242(4)(a ) of the Canada Labour Code. As appears from the following passages from the adjudicator"s decision, the latter objected to the applicant having, in the six months preceding the respondent"s dismissal, gradually reduced the latter"s working hours. First, at p. 9:
| Although we cannot approve the complainant"s actions demonstrating his dissatisfaction, we have to recognize that he may have had reasons for doing this, as he had returned to work in September 1994 after a lengthy sick leave and was hoping to do a good number of hours in the charter division of his employer. However, what actually happened was quite different, as he was only given very few trips, and indeed at the end he no longer even had access to large buses, and only completed a few hours work per week . Before leaving on his sick leave, the complainant had income of over $24,670.23 a year with the employer (Exhibit P-6), whereas he only earned $344.50 in January 1995, $749.34 in February 1995 and $439.36 in March 1995. |
| In short, we cannot help concluding that the dismissal was unjust in that the employer never allowed the complainant to correct the situation, by clearly indicating to him what was wrong and indicating the possible consequences of his actions if he did not improve in future. If the employer had made use of the graduated penalty procedure, the complainant would have been in a position to understand the consequences and even realize that he could be dismissed if he did not improve. Instead of acting in this way, the employer left the complainant in uncertainty and gradually reduced his workload. |
Then, at p. 12:
| In this connection, we cannot accept the employer"s arguments that we should use the salary for the last six months of work, since before that date the complainant was on sick leave and before that leave was doing school transportation. Using that argument would only have the effect of allowing the employer to reduce a complainant"s income significantly before his dismissal, so as to minimize eventual damages which it might be ordered to pay if the dismissal proved to be unfair. Instead, we will take as a basis for calculation 1993, the last complete year of work done by the complainant for the employer. |
(My emphasis.)
[11] It can therefore logically be concluded from these passages that the adjudicator considered that the salary earned by the respondent in the six months preceding his dismissal was not that which he would ordinarily have earned at that time, as the applicant had improperly and gradually reduced his workload. In her concern to safeguard the remedial effects of the Canada Labour Code, in particular those mentioned in s. 242(4)(a) and (c), the adjudicator thought it more suitable to refer to the respondent"s last full year of work for the applicant, namely the year preceding the latter"s sick leave and the six months of gradually reduced work. Considering the respondent"s approximately ten years of seniority as a bus driver for the applicant, the salary of $24,670.23 earned by the respondent in 1993 and the average of $28,114.88 earned by charter drivers with the applicant from May 1995 to May 1997, an average monthly salary of some $2,055.85 could therefore reasonably be regarded as the salary that the respondent would ordinarily have earned in the six months preceding the date of his dismissal. Accordingly, in view of the interval of some three and a half years between the date of the respondent"s dismissal and that of the decision in question, and the fact that the awarding of compensation corresponding to ten months" salary was not in dispute, this compensation does not exceed the maximum salary mentioned in s. 242(4)(a ) of the Canada Labour Code. In the circumstances, it certainly cannot be said that the adjudicator, who relied on the evidence before her and acted within the limits of her jurisdiction, rendered a decision that was clearly irrational, "that is to say evidently not in accordance with reason" (see Attorney General of Canada v. Public Service Alliance of Canada , supra, at 963).
[12] For all these reasons, the application for judicial review must be dismissed with costs.
OTTAWA, ONTARIO
November 2, 1999
Certified true translation
Bernard Olivier, LL. B.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| STYLE OF CAUSE: Transport Thom v. Aurèle Gagnon |
| DATE OF HEARING: September 20, 1999 |
| REASONS FOR ORDER BY: Pinard J. |
APPEARANCES:
| Michel Lewis FOR THE APPLICANT |
| Martin Gosselin FOR THE RESPONDENT |
SOLICITORS OF RECORD:
| Lewis & Associés FOR THE APPLICANT |
Gatineau, Québec
| Letellier & Associés FOR THE RESPONDENT |
Hull, Quebec
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