Docket: T-857-11
Citation: 2012 FC 398
Ottawa, Ontario, April 5,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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THE ELSIPOGTOG FIRST NATION
BAND COUNCIL
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Applicant
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and
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MARY JANE PETERS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision of an Adjudicator made
under the Canada Labour Code, RSC 1985, c L-2 (Code), dated April
22, 2011. The Adjudicator determined that he was not functus officio
and retained jurisdiction to address issues that had not been resolved by the
parties to perfect his initial award of compensation for unjust dismissal.
I. Background
[2]
Mary
Jane Peters (the Respondent) was employed by Elsipogtog First Nation Band
Council from June 1998 until she was dismissed on April 8, 2009. She filed a
complaint against this dismissal under the Code.
[3]
On
February 10, 2011, the Adjudicator, Charles LeBlond, Q.C., upheld her complaint
and declared that she was unjustly dismissed. He awarded 18 months pay for a
total of $93,000.00 in compensatory damages for loss of income plus $2,715.00
in accumulated interest.
[4]
From
this amount, there was to be a deduction of $2,000.00 for earnings during the
compensatory period plus any additional earnings from employment during the 18
month compensatory period. The exact amount of these additional earnings in
mitigation was not specified in the Award.
[5]
The
Adjudicator also awarded unknown monthly pension contributions of the employer
and Ms. Peters for the 18 month period. The amount of these monthly
contributions was to be agreed to by the parties. Failing an agreement, the
Adjudicator stated that he would hear the parties on the issue.
[6]
The
Respondent was given her costs in the amount of $5,000.00 plus HST.
[7]
As
a consequence, the parties were left with two outstanding issues from the
Adjudicator’s Award – the amount of additional earnings in mitigation and the
pension contributions.
[8]
In
an effort to resolve these issues, their respective counsel (Jane MacEachern
for the Applicant and Judith Begley for the Respondent) began corresponding.
[9]
There
were some initial communications to clarify the amounts that proved
unsuccessful. Ms. Begley stated a figure for the pension component while Ms.
MacEachern suggested that Ms. Peters had received benefits that would have to
be deducted in mitigation of damages. Ms. Begley was not aware of any
such benefits.
[10]
On
March 17, 2011, Ms. Begley sent a fax to Ms. MacEachern noting that she had not
yet received any response to several inquiries regarding the employer’s
calculation of the pension award. She also provided a list of the amounts
owing. A deadline of March 25, 2011 at 5pm for the receipt of a cheque in that
amount was imposed, otherwise she would “remit this matter immediately
thereafter to Mr. LeBlond for determination, and to seek additional costs.”
[11]
In
response, Ms. MacEachern stated it was her client’s position that the
Adjudicator’s decision is “his final decision on the merits of the matter, with
the exception of the issue of Ms. Peters’ pension entitlement” and “any
matters pertaining to Ms. Peters’ mitigation and her resulting income during
the relevant mitigation period are a matter to be determined by the parties.”
She also suggested that the wording of the Award with respect to pension
entitlement was a misnomer and Ms. Peters was only entitled to the employer’s
pension contributions throughout the relevant time period.
[12]
On
March 22, 2011, Ms. Begley insisted the Adjudicator’s decision is “crystal clear”
that Ms. Peters was to receive the monthly pension contributions she made in
addition to those of her employer. She added:
There is nothing about this
Award that is unusual, or complicated, or that requires significant time to
address. It is extraordinary that your client has failed to date to implement
its clear terms. We are able to see no reason why your client should not be
able to make the necessary arrangements for payment in full by the end of this
week, which is a full six weeks after the Award was issued. I therefore request
that you arrange for delivery of a cheque in the amount of $109,660.84 made
payable to Begley Lordon in Trust, by 5 p.m. on Friday, March 25, 2011. If we
do not receive full payment by then, in accordance with our instructions, we
will refer the matter to Adjudicator LeBlond for final determination […]
[13]
On
March 24, 2011, Ms. MacEachern maintained that the Adjudicator’s decision is
final and “Mr LeBlond therefore does not retain any further jurisdiction in
this matter as a result of the privative clause contained in the Canada
Labour Code and relevant case law and is therefore functus officio.”
[14]
On
March 28, 2011, Ms. Begley informed Ms. MacEachern that the pension and
mitigation issues had been referred to Adjudicator LeBlond for final
determination and specification. Based on a recent case from this Court, she
claimed that “an Adjudicator under the Canada Labour Code always retains
jurisdiction to make such clarifications as may be required to ensure that the
precise amounts awarded under a decision are clearly stipulated, and the
decision is capable of enforcement.”
[15]
In
her correspondence with Adjudicator LeBlond, Ms. Begley intimated that she had
not been successful in achieving an agreement with the employer on three outstanding
issues; including the amount of monthly pension contributions, whether Ms.
Peters is to be compensated for her contributions or just those of her
employer, and any additional amounts earned as income that must be deducted in
mitigation. However, she made no mention of the Applicant’s contention that
the Adjudicator might lack jurisdiction as functus officio.
[16]
Adjudicator
LeBlond responded on March 31, 2011 that “[i]t was unfortunate the parties
should not be able to resolve what should be straightforward calculations.” He
suggested that Ms. Peters produce proof of earnings for the 18 month
period whether by T4s or otherwise and requested confirmation that this
evidence was available before he would make a decision as to whether a further
hearing was necessary. On the issue of pension contributions, the Adjudicator
clarified his intention that “[t]he award is designed to have the employer pay
the contributions which the employer would have been made during the 18 month
period.”
[17]
He
asked to be advised if an agreement could not be reached on these issues. Before
a hearing could be held, he would need to request related documentary evidence.
[18]
On
April 4, 2011, Ms. Begley confirmed that proof of earnings was available for
the relevant period in the form of a T4. Based on the Adjudicator’s comments,
she took the position that the pension contribution amount from the employer
should be $5,197.92.
[19]
The
Adjudicator asked Ms. MacEachern if she agreed with these figures. If so, he
could issue an addendum to the award.
[20]
However,
Ms MacEachern advised the Adjudicator that his “Award was a final decision of
this matter capable of being quantified by the parties and you are now functus
officio and lack the jurisdiction necessary to consider additional evidence
or make additional collateral or final orders.” She referred the Adjudicator to
a range of jurisprudence in support of this contention.
[21]
In
an email that same day, the Adjudicator stated he “was simply trying to assist
in finalizing the matter on the understanding both counsel were seeking
assistance.” Since Ms. MacEachern took the position that he was functus
officio, he would not deal with the matter any further.
[22]
Ms.
Begley immediately objected to the conclusion that the Adjudicator was functus
officio. She insisted that he was “obliged to take all necessary steps to
issue a decision that specifies a fully ascertained amount of damage that is
capable of enforcement.” The Adjudicator could not presume that he was functus
officio simply because the Applicant suggested it.
[23]
Accordingly,
the Adjudicator gave both parties the opportunity to deal with the issue of functus
officio and he would review the authorities and advise them of his
position.
[24]
Ms.
MacEachern maintained that the Adjudicator had already concluded he lacked
jurisdiction to proceed. She claimed that the “[t]he Complainant’s continued
submission of additional evidence, opinion, and information to you on matters
in dispute has caused you to receive information which you have acted upon in
the absence of submissions from the Respondent.”
[25]
Regardless,
both parties submitted their arguments related to functus officio. Adjudicator
LeBlond issued his decision on April 22, 2011. The Applicant (Elsipogtog First
Nation Band Council) now asks this Court to review that decision.
II. Decision
Under Review
[26]
The
Adjudicator noted that the parties were unable to reach an agreement on issues
that remained outstanding in his decision of February 10, 2011, namely the
earnings in mitigation and the employer’s pension contributions.
[27]
He
determined that the authorities clearly permitted him to retain jurisdiction
and deal with issues that need to be resolved in order to “perfect the
decision” but not to re-hear, re-consider or vary the decision.
[28]
Referring
to case law where it was found that an administrative tribunal can clarify an
award as the continuation of an original proceeding so long as it does not
create new or broader rights, the Adjudicator found that he could hold a
hearing only for the purpose of addressing issues that would allow him to
complete his work. He insisted that he had “no intention of going beyond the
issues which the parties have been unable to resolve amongst themselves.”
III. Issues
[29]
The
Applicant raises the following issues:
(a) What is the appropriate standard
of review?
(b) Was the Adjudicator functus
officio upon release of the Award?
(c) Did the Adjudicator commit a
breach of natural justice or procedural fairness?
IV. Analysis
A. What
is the Appropriate Standard of Review?
(i) Functus
Officio
[30]
The
parties disagree on the standard of review to be applied to the Adjudicator’s
determination that he was not functus officio. The Applicant argues
that an assessment of whether the Adjudicator acted outside his jurisdiction or
erred in the application of a legal test requires the correctness standard,
while the Respondent contends that this raises a question of mixed fact and law
that should be reviewed based on reasonableness. The authorities on this issue
appear divided.
[31]
In
Canada Post Corp v Canadian Union of Postal Workers, [2008] OJ no 2633,
238 OAC 195 at para 13, the Ontario Superior Court of Justice (Divisional
Court) determined that “whether the arbitrator was functus officio is a
pure question of law for which the standard is correctness.”
[32]
Justice
Snider of this Court implied in IMP Group Ltd Aerospace Division (Comox) v
Public Service Alliance of Canada, 2007 FC 517, [2007] FCJ no 698 at paras
25-28 that assessing whether an exception to functus officio applied
could be a question of mixed fact and law. She nonetheless found that in the
particular case of a collective agreement “while acknowledging that there is
some factual content to the decision, my view is that the question is more
heavily weighted to a question of law.” The correctness standard was applied.
[33]
By
contrast, the Nova Scotia Court of Appeal in Capital District Health
Authority v Nova Scotia Government and General Employees Union, 2006 NSCA
85, [2006] NSJ no 281 determined that these questions were at the fact
intensive end of the spectrum and deserving of deference. Writing for the
Court, Justice Cromwell, as he then was, concluded at paragraphs 52-53:
[52] The critical question in this
case was whether the language of the main award gave effect to the board's
manifest intent. Much of the analysis of the four contextual factors supports
giving the board some deference on this issue. The issue is one of mixed fact
and law, central to the board's purpose and close to the core of its labour
relations expertise. However, the resolution of that question defines the
limits of the board's authority to act. This suggests that its resolution of
that issue should not be afforded the highest level of deference. I would
conclude, therefore, that absent some error in legal principle (either express
or extractable from the way it applied the principles) on which the board had
to be correct, its determination of whether the initial award gave effect to
its manifest intent should be reviewed for reasonableness. In other words, the
board's determination of what it manifestly intended must be reasonably
supportable by the text of its original award, read as a whole and in context.
[53] The reasonableness standard of
review seems to me to strike an appropriate balance between the goals of
finality and effectiveness in the context of interest arbitration. Affording
the board a measure of deference in relation to determining its own manifest
intent will help ensure that the board is able to finish the job assigned to
it. Insisting that its conclusion in this regard be reasonable, however,
ensures that due weight will be given to the goal of finality.
[34]
Having
reviewed these determinations, I am of the opinion that the reasonableness
standard should be applied based on the reasoning provided in Capital
District, above. I cannot resolve the question of whether the Adjudicator
was functus officio without considering the nature of his initial Award.
In this respect, the Adjudicator is deserving of at least some deference. Although
I acknowledge that the issue relates to the Adjudicator’s authority to act,
this does not preclude me from applying the reasonableness standard, given the
factual content involved.
[35]
As
articulated in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190 at
paragraph 47, reasonableness is “concerned mostly with the existence of
justification, transparency and intelligibility within the decision-making
process” as well as “whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law.”
(ii) Natural
Justice or Procedural Fairness
[36]
There
is no dispute that the standard to be applied in determining whether a breach
of natural justice or procedural fairness has occurred is correctness.
[37]
However,
the Respondent notes that relief may not be warranted when “the procedural
error is purely technical and occasions no substantial wrong or miscarriage of
justice” (see Canada (Minister of Citizenship and Immigration)
v Khosa,
2009 SCC 12, [2009] 1 S.C.R. 339 at para 43).
B. Was
the Adjudicator Functus Officio Upon Release of the Award?
(i) Positions
of the Parties
[38]
The
Applicant submits that the Adjudicator was functus officio. The initial
Award constituted a final decision on the merits. The Adjudicator was not
entitled to retain jurisdiction to deal with the matters in dispute or to
receive additional evidence to resolve them. By his intervention, the
Adjudicator was attempting to augment his reasons or vary the Award where such actions
are not permissible.
[39]
The
Applicant reiterates that the monthly pension contributions and earnings in
mitigation were capable of being quantified by the parties. According to the
Applicant, it follows that the initial Award in its present form would be
enforceable.
[40]
The
Respondent contends, however, that the Adjudicator was not functus officio
and could provide clarification flowing from his obligation to complete the
initial Award. The Adjudicator is able to remain seized of matters and
determine his own procedures for doing so.
[41]
According
to the Respondent, the initial Award is not enforceable because it cannot be
ascertained without further precision. Contrary to public policy, the
Respondent would be deprived from receipt of compensation awarded for her
unjust dismissal should the Applicant be successful in this application for
judicial review and refuse to cooperate in addressing the outstanding issues.
[42]
To
assess their respective positions, I begin with a brief summary of the general
principles of functus officio. In light of these principles, I will
consider the nature of the Adjudicator’s initial Award and his subsequent
intervention. This will enable me to assess the Adjudicator’s April 22, 2011
decision that he was not functus officio and could address the
outstanding issues of monthly pension contributions and earnings in mitigation.
(ii) General
Principles
[43]
As
a general rule, functus officio ensures finality in the decision-making
process. As described by Donald J.M. Brown, Q.C. and the Honourable John M.
Evans in Judicial Review of Administrative Action in Canada (Toronto: Canvasback
Publishing, 2010):
The doctrine of functus officio
provides that once an adjudicator has done everything necessary to perfect the
decision, they are barred from revisiting them other than to correct clerical
errors or other minor technical errors.
[…]
Administrative adjudicators and other
decision-makers to whom the duty of fairness applies have no inherent
jurisdiction to rehear, reconsider or vary a decision once it has been finalized.
Rather, having rendered a final decision, they are functus officio.
Thus, subject to the exception to the general rule, or perhaps where the
parties agree otherwise, any authority to rehear, reconsider or vary a decision
must be found in statute.
[44]
These
principles are reflected in the leading case on functus officio in the
administrative law context, Chandler v Alberta Association
of Architects, [1989] 2 S.C.R. 848, [1989] SCJ no 102, where Justice Sopinka
stated:
[20] I do not understand
Martland J. to go so far as to hold that functus officio has no application to
administrative tribunals. Apart from the English practice which is based on a
reluctance to amend or reopen formal judgments, there is a sound policy reason
for recognizing the finality of proceedings before administrative tribunals. As
a general rule, once such a tribunal has reached a final decision in respect to
the matter that is before it in accordance with its enabling statute, that
decision cannot be revisited because the tribunal has changed its mind, made an
error within jurisdiction or because there has been a change of circumstances.
It can only do so if authorized by statute or if there has been a slip or error
within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering
Corp., supra.
[21] To this extent, the principle
of functus officio applies. It is based, however, on the policy ground which
favours finality of proceedings rather than the rule which was developed with
respect to formal judgments of a court whose decision was subject to a full
appeal. For this reason I am of the opinion that its application must be more
flexible and less formalistic in respect to the decisions of administrative
tribunals which are subject to appeal only on a point of law. Justice may
require the reopening of administrative proceedings in order to provide relief
which would otherwise be available on appeal.
[22] Accordingly, the principle
should not be strictly applied where there are indications in the enabling
statute that a decision can be reopened in order to enable the tribunal to
discharge the function committed to it by enabling legislation. This was the
situation in Grillas, supra.
[23] Furthermore, if the tribunal
has failed to dispose of an issue which is fairly raised by the proceedings and
of which the tribunal is empowered by its enabling statute to dispose, it ought
to be allowed to complete its statutory task. If, however, the administrative
entity is empowered to dispose of a matter by one or more specified remedies or
by alternative remedies, the fact that one is selected does not entitle it to
reopen proceedings to make another or further selection. Nor will reserving the
right to do so preserve the continuing jurisdiction of the tribunal unless a
power to make provisional or interim orders has been conferred on it by
statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214
(F.C.A.)
[45]
Chandler, above
recognizes that there should be some flexibility to reopen decisions in the
administrative context, but only in instances where it is authorized by statute
or if there is an error in expressing “manifest intention.”
[46]
In
IMP Group Ltd, above at paragraph 58 it was found that hearing further
submissions from parties and issuing a decision on issues previously addressed
would not fall under the exception for an error in expressing “manifest
intention” as the arbitrator in that instance was “augmenting” the reasons.
[47]
The
critical test is “whether the Adjudicator could be said to have finally
determined the complaint before him” (Murphy v Canada (Adjudicator, Labour
Code), [1994] 1 FC 710, [1993] FCJ no 1236 at para 16 (FCA); Huneault v
Central Mortgage Housing Corp, [1981] FCJ no 905, (1981) 41 NR 214 at para
7). If this is the case, the adjudicator is functus officio and cannot
revisit the earlier decision.
[48]
This
reasoning is further supported by the decision in Jacobs Catalytic Ltd v
International Brotherhood of Electric Workers, Local 353, 2009 ONCA 749,
[2009] OJ no 4501 at para 60 where it was stated:
[60] […] Retaining jurisdiction over
an aspect of a case is generally acceptable only where that aspect has not been
fully addressed; a tribunal cannot arbitrarily reserve for itself extended
jurisdiction over a completed aspect of a case. […]
[49]
An
adjudicator is not, however, precluded from issuing a clarifying award as long
as it does not create new or broader rights than those initially conferred (see
the confirmation of this principle in Sherman v Canada (Customs and Revenue
Agency), 2005 FC 173, [2005] FCJ no 209).
[50]
As
a consequence, I must consider whether the Adjudicator’s initial Award
constituted a final decision and if he is still permitted to provide
clarification and hear the parties on outstanding issues.
(iii) Nature
of the Initial Award
[51]
I
acknowledge certain factors pointing to the conclusion that the Adjudicator’s
initial Award was final. For example, section 243 of the Code contains
a strong privative clause stating that every order of an Adjudicator “is final
and shall not be questioned or reviewed in any court.” There is no authority
in the Code to reconsider a decision.
[52]
In
this instance, however, the Adjudicator left two matters to be resolved by the
parties. “[A]ny additional earnings from employment” in mitigation during the
relevant period were to be subtracted from the overall Award. Included in
compensation were “additional amounts of her and the Employer’s monthly pension
contributions to her pension account.”
[53]
In
Paley v Fishing Lake First Nation, 2005 FC 1448, [2005] FCJ no 1772 at
paras 26-27, Justice Michael Kelen found that even though an order did not
specify a particular quantum, it was still capable of being enforced by the
Court and constituted a final order. He stated:
[26] […]
The Court is satisfied that the remedy ordered
specifies the nature of the relief, namely the payment of compensation to the
respondent under paragraph 242(4)(a) of the Code in an amount that, although
not numerically quantified, is specified by an ascertainable and certain
mechanism, namely an amount equal to that paid to McKee during the relevant
period.
[27] In my view, the fact that the
adjudicator did not specify the means by which the information of McKee’s
salary would be disclosed does not in any way make the quantum less final […]
As such, the adjudicator exhausted his statutory powers and became functus
officio. The adjudicator did not retain jurisdiction thereafter to make further
orders in respect of the respondent’s now-complete complaint.
[54]
Central
to Justice Kelen’s determination that this was a final order is that the amount
“although not numerically quantified, is specified by an ascertainable and
certain mechanism.”
[55]
By
contrast, Larocque v Louis Bull Tribe, 2008 FC 1402, [2008] FCJ no 1817
held that an Award referring to “prevailing interest rate” and “reasonable
costs” could not be enforced due to lack of precision. At paragraph 16,
Justice Michael Phelan stated “the Adjudicator is not functus until he
at least completes the task of rendering an award where the amounts are clearly
stipulated.” He also noted at paragraph 21 that a critical part of the
Adjudicator’s role is to issue an award capable of enforcement and “[u]ntil at
least that is accomplished, the Adjudicator remains seized of the matter.”
[56]
Having
considered the relevance of these cases, I conclude that the wording in the
Adjudicator’s initial Award and the concerns that have already arisen regarding
its precision more closely resemble the situation in Larocque, above. As
in this instance, the matters were capable of quantification by the parties but
without clearly stipulated amounts would pose challenges for enforcement
proceedings. The “ascertainable and certain mechanism” referred to in Paley,
above, is unlikely to be present in many cases.
[57]
I
also note situations where the Adjudicator’s ability to expressly retain
jurisdiction to deal with issues that have not been addressed has been
recognized. For example, Joudrey v Canadian Atlantic Railway, a division of
Canadian Pacific Ltd, [1995] FCJ no 1159, 100 FTR 189 at para 39 upheld an
Adjudicator’s decision to remain seized of an issue of the amount of salary
paid to an employee if the parties were unable to agree. He was also prepared
to hear submissions on the matter. The Court confirmed that an Adjudicator had
discretion to establish his own procedures in this regard.
[58]
This
is directly relevant to the issue of pension contributions where the
Adjudicator stated he would hear the parties on the issue failing an agreement.
Although no jurisdiction was expressly reserved to resolve earnings in
mitigation, I see no reason why this outstanding issue cannot also be raised
with the Adjudicator as part of his role in ensuring the completion of the
Award.
[59]
Irrespective
of whether the initial Award is final, an Adjudicator is able to provide
clarification for the parties so long as no broader rights are provided (see Sherman, above).
[60]
This
was evident in the dispute that arose as to the appropriate interpretation of
the Award as read literally or referring solely to those pension contributions
made by the employer. The email of Adjudicator LeBlond on March 31, 2011
clarified his intention that the employer’s contributions were to be paid to
the Respondent. This was a clarification that only he could provide to the
parties. I also note that his interpretation was to the Applicant’s benefit. The
Adjudicator’s email did not amount to augmenting reasons or substantively
varying the Award as the Applicant claims.
(iv) Assessment
of the Adjudicator’s Decision on Functus Officio
[61]
Given
the above observations, it was reasonable for the Adjudicator to conclude that
he was not functus officio and could deal with outstanding issues of
pension contributions and earnings in mitigation. It was also appropriate for
him to stress that he would not go beyond the issues that have yet to be
completed.
[62]
With
precise amounts left to be resolved by the parties, the Adjudicator would not
necessarily be functus officio upon release of the Award. He could
still remain seized of the matter until there is an “ascertainable and certain
mechanism” or, to put in another way, the “amounts are clearly stipulated.” This
would ensure finality and allow for the enforcement of the Award. It is also
supported by sound public policy considerations because, without an enforceable
Award and agreement between the parties, the Respondent would be prevented from
receiving the compensation awarded for her unjust dismissal.
[63]
The
Adjudicator also has a role by retaining jurisdiction on the issue of pension
contributions or in clarifying his original intentions.
C. Did
the Adjudicator Commit a Breach of Natural Justice or Procedural Fairness?
[64]
I
cannot find any merit to the Applicant’s assertion that there was a breach of
natural justice or procedural fairness in this instance. While the Applicant
may have concerns regarding the initial referral of the matter to the
Adjudicator as handled by Ms. Begley, this does not reflect on the
Adjudicator’s conduct, particularly given my above conclusion regarding the
issue of functus officio.
[65]
When
the Adjudicator received information from Ms. Begley, he asked Ms. MacEachern
whether she was in agreement. The raising of concerns regarding functus
officio prompted the Adjudicator to seek submissions and issue a formal
decision before proceeding. The Applicant was not prevented from presenting
its case based on the procedure followed by the Adjudicator.
V. Conclusion
[66]
The
Adjudicator reasonably found that he was not functus officio upon
release of the Award and was able to deal with outstanding issues. No breach
of natural justice or procedural fairness was committed in this instance.
[67]
Accordingly,
this application for judicial review is dismissed, with costs awarded to the
Respondent.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is dismissed, with costs awarded to the Respondent.
“ D.
G. Near ”
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