Date:
20120917
Docket:
T-494-11
Citation:
2012 FC 1085
Ottawa, Ontario,
September 17, 2012
PRESENT: The
Honourable Mr. Justice Russell
BETWEEN:
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LAKE BABINE NATION
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Applicant
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and
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NANCY WILLIAMS
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
INTRODUCTION
[1]
This
is an application under section 18.1 of the Federal Courts Act RSC 1985
c F-7 for judicial review of an award (Decision) by an Adjudicator
(Adjudicator) appointed under section 242 of the Canada Labour Code RSC
1985 c L-2 (Code) which found the Respondent had been unjustly dismissed.
BACKGROUND
AND DECISION
[2]
The
Applicant is an Indian Band within the meaning of the Indian Act RSC
1985 c I-2. The Respondent is a member of the Applicant band.
[3]
The
Applicant hired the Respondent on 3 October 2003 as the Social Development
Director. Her duties included disbursing social assistance payments to band
members according to set criteria. At one point during her tenure with the
Applicant, the Respondent was also the Director of Justice and responsible for
the Applicant’s Justice and Child and Family Services Programs.
[4]
The
Applicant dismissed the Respondent from her employment on 24 November 2009. In
the dismissal letter the Applicant wrote to her, it said she had harassed
employees, bullied others, abused her position, and was unable or unwilling to
follow instructions. The Respondent filed a wrongful dismissal complaint under
section 240 of the Code. The Adjudicator heard her complaint over several days
in November and December 2011. At the hearing, the Applicant relied on four
grounds to support the Respondent’s dismissal. The Applicant said she had
exaggerated or falsified claims for overtime pay, failed to follow lawful
orders, failed to repay a personal loan given to her, and improperly awarded a
contract to her husband to build tables for a function.
[5]
On
21 February 2011, the Adjudicator found the Respondent had been wrongfully
dismissed. He ordered the Applicant to reinstate the Respondent to her previous
position and pay her retroactively to the date of her dismissal. The
Adjudicator found the loan was properly given and forgiven by the Applicant’s
Justice Committee. The Respondent had not done anything improper in this
respect. The Adjudicator also found the Respondent’s supervisor had approved
her overtime claims and no one had ever questioned the process by which she
claimed overtime. The Applicant alleged the Respondent had disobeyed lawful
orders by refusing to sign in to or out of her workplace. However, the
Adjudicator found the Applicant had acquiesced to this behaviour. The Applicant
knew the Respondent was not signing in or out, but had done nothing to change
her behaviour. Finally, the Adjudicator found the Respondent’s hiring of her husband
to build tables was not improper. The decision to hire him was taken in a staff
meeting, so senior management was aware of the decision. The Applicant had
employed relatives of other senior employees and had not intervened on other
occasions when the Respondent had hired other relatives to do work for the
Applicant.
[6]
The
Applicant filed its Notice of Application on 23 March 2011. The Applicant did
not challenge the Adjudicator’s finding that the Respondent had been wrongfully
dismissed. Rather, it challenged the Adjudicator’s jurisdiction to hear the
Respondent’s complaint and the remedy he ordered. By letter, dated 7 June 2011,
the Applicant abandoned two of the three grounds raised in the Notice of
Application, leaving only its challenge to the Adjudicator’s jurisdiction.
ISSUES
[7]
The
Applicant raises the following issue in this proceeding:
1.
Does
Part XIV of the Code apply to the Applicant because the Respondent was a
manager within the meaning of subsection 167(3) of the Code?
STANDARD
OF REVIEW
[8]
The
Supreme Court of Canada in Dunsmuir v New Brunswick 2008 SCC 9 held that
a standard of review analysis need not be conducted in every instance. Instead,
where the standard of review applicable to a particular question before the
court is well-settled by past jurisprudence, the reviewing court may adopt that
standard of review. Only where this search proves fruitless must the reviewing
court undertake a consideration of the four factors comprising the standard of
review analysis.
[9]
The
Applicant frames the issue before the Court in this proceeding as one of
jurisdiction. However, I note Justice Dickson’s statement in Canadian Union
of Public Employees Local 963 v New Brunswick Liquor Corp, [1979] 2
SCR 227 at page 233 that “courts […] should not be alert to brand as
jurisdictional, and therefore subject to broader curial review, that which may
be doubtfully so.” The Supreme Court of Canada has since approved of Justice
Dickson’s caution. See Dunsmuir, above, at paragraph 35.
In Council of Canadians with Disabilities v VIA Rail Canada Inc 2007 SCC
15, Justice Abella held at paragraph 89
If every provision of a tribunal’s enabling
legislation were treated as if it had jurisdictional consequences that
permitted a court to substitute its own view of the correct interpretation, a
tribunal’s role would be effectively reduced to fact-finding. Judicial or
appellate review will “be better informed by an appreciation of the views of
the tribunal operating daily in the relevant field”: D. Mullan, “Tribunals and
Courts -- The Contemporary Terrain: Lessons from Human Rights Regimes” (1999),
24 Queen’s L.J. 643, at p. 660. Just as courts “should not be alert to brand as
jurisdictional, and therefore subject to broader curial review, that which may
be doubtfully so”, so should they also refrain from overlooking the expertise a
tribunal may bring to the exercise of interpreting its enabling legislation and
defining the scope of its statutory authority.
[10]
The
situation in the instant case is, I think, what Justice Abella had in mind in VIA
Rail, above. The Adjudicator’s jurisdiction depended on a finding that the
Respondent was not a manager; this was clearly a finding of mixed fact and law
within his specialized expertise. Justice André Scott in 6245820 Canada Inc.
v Perrella 2011 FC 728, found that the interpretation of the term “manager”
under subsection 167(3) of the Code ought to be reviewed on a standard of
reasonableness. It would be inappropriate for the Court to substitute its own
opinion for the Adjudicator’s finding, simply because there are jurisdictional
consequences attached to any finding the Respondent is not a manager within the
meaning of subsection 167(3) of the Code. The sole issue in this case will be
decided on the reasonableness standard.
[11]
When
reviewing a decision on the standard of reasonableness, the analysis will be
concerned with “the existence of justification, transparency and
intelligibility within the decision-making process [and also with] whether the
decision falls within a range of possible, acceptable outcomes which are
defensible in respect of the facts and law.” See Dunsmuir, above, at
paragraph 47, and Canada (Minister of Citizenship and Immigration) v
Khosa 2009 SCC 12 at paragraph 59. Put another way, the Court should
intervene only if the Decision was unreasonable in the sense that it falls
outside the “range of possible, acceptable outcomes which are defensible in
respect of the facts and law.”
Legislation
[12]
The
following provisions of the Code are applicable in this proceeding:
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167. (3) Division XIV does
not apply to or in respect of employees who are managers.
[…]
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).
[…]
(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;
[…]
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167. (3) La section XIV
ne s’applique pas aux employés qui occupent le poste de directeur.
[…]
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.
[…]
(3)
Sous réserve du paragraphe (3.1), l’arbitre:
a)
décide si le congédiement était injuste;
[…]
|
ARGUMENTS
The
Applicant
Court
can Review Jurisdictional Errors
[13]
The
Court can decide whether the Adjudicator had jurisdiction to hear the
Respondent’s complaint even though it was not raised at the hearing before him.
As Justice Frank Gibson held at paragraph 13 of Regional Cablesystems Inc. v
Wygant, 2003 FCT 236, a party can raise a tribunal’s jurisdiction
even if the issue was not raised at the original hearing.
Adjudicator Erred in Assuming
Jurisdiction
[14]
The
Adjudicator did not have the jurisdiction to hear the Respondent’s complaint
because she was a manager. Subsection 167(3) of the Code excludes managers from
protection against wrongful dismissal. Pepper v Fort McMurray # 468 First
Nation Band, [2004] CLAD No 205 establishes that a worker is a
manager when two conditions are met:
1.
The
worker administers the employer’s affairs; and
2.
The
worker has the power of independent action, autonomy, and discretion in a
significant range of matters within her area of responsibility.
[15]
The
Respondent met both of these criteria, so she is a manager under subsection
167(3).
Administered Employer’s Affairs
[16]
When
she worked for the Applicant, the Respondent was responsible for managing the
Social Development Department. She also had the power to discipline other
employees and to hire and direct employees in her department. The Respondent
oversaw a department with a two million dollar budget and was a department
manager. These factors are strong indicators that she was a manager. See Donio
v Matawa First Nations Management Inc, [2007] CLAD No 33 (QL) at
paragraph 40.
Independent
Action, Autonomy, and Discretion
[17]
The
Respondent had significant autonomy in her duties in a way that made her a
manager within the meaning of subsection 167(3). Canadian Imperial Bank of
Commerce v Bateman,
[1991] 3 FC 586 establishes that, while autonomy is necessary, it need not
be absolute. In Bateman, an Adjudicator initially found a worker who was
responsible for 200 employees, managed a ten million dollar budget, and set
wages within guidelines was not a manager. Justice Bud Cullen overturned the
arbitrator’s decision, at paragraph 32, saying that
In my opinion, the Adjudicator erred in his
interpretation of subsection 167(3). He stated that in order to be considered a
“manager” within the meaning of that subsection, “the degree of autonomy
exercised by an employee must be, if not absolute, then very considerable”.
With respect to the Adjudicator, such an approach extends the law on this issue
considerably farther than envisaged by the Federal Court of Appeal. While a
manager must be “an administrator having power of independent action, autonomy
and discretion”, it is unrealistic to demand that such autonomy approach the
absolute in order to be considered a “manager”, even in the “narrow” sense of
subsection 167(3). As counsel for the applicant argued, even the Chairman of
the Board of a large corporation does not have absolute autonomy; he must
answer to the Board of Directors. It is undisputed that Bateman did exercise
significant autonomy and discretion in his position, with respect to salaries,
discipline and the power to hire and transfer employees. Indeed, the Adjudicator
concluded that “the complainant did in fact exercise a degree of autonomy and
independence, which enabled him to decide certain issues within a fairly tight
framework established by his superiors in Toronto.” The evidence also shows
that even on the occasions when Bateman was required to seek approval of his
decisions, his recommendations were generally accepted. The Adjudicator seems
to have focused instead on the occasional rejection of Bateman's
recommendations by his superiors as more compelling.
[18]
As
in Bateman, above, the Respondent’s recommendations were generally
accepted by her superiors.
Principles Applicable to Subsection
167(3)
[19]
The
following principles should be applied when determining whether a worker is a
manager within the meaning of subsection 167(3) of the Code:
1.
Section
167(3) should not be read as departing too far from the classification used in
normal labour relations;
2.
A
failure to exercise the full authority of a position does not alter the fact
that the position was one of a manager;
3.
A
manager who is required to carry out her duties according to detailed policies
is still a manager.
[20]
All
three of these principles are applicable to the Respondent. First, her position
would have been excluded from a bargaining unit because of her supervisory
role. Second, the fact she never actually hired or fired anyone does not mean
she was not a manager. Third, although she was required to follow a detailed
manual in determining eligibility for social assistance, this does not mean she
was not a manager.
[21]
Past
Adjudicators have found people with similar responsibilities to the
Respondent’s were managers. See Danes v Moricetown Band Council, [2010]
CLAD No 394, Johnson-Macdonald v Six Nations of the Grand River,
[2003] CLAD No 350; Brooks v St. Mary’s First Nation, [2010]
CLAD No 132; Lahache and Polson v The Long Point Band Council, Unreported,
4 September 1992; Fontaine v Sagkeeng First Nation, [2005] CLAD
No 406; Pepper, above; Rollingson v Royal Bank of Canada, [2003]
CLAD No 223; Skeete and National Bank of Canada, [1996] CLAD No 410, Normandeau
and National Bank of Canada, [1996] CLAD No 712.
[22]
The
Respondent’s work situation was similar to the above cases. She had significant
responsibility and authority and reported directly to the Applicant’s Executive
Director. She was responsible for the employees working in the Social
Development Department and the Child and Family Services Department. The
Respondent also had hiring and disciplinary authority and did not need approval
from her superiors to hire seasonal or temporary employees. Further, she had
created her own roles and responsibilities as Director of Justice. The
Respondent’s role as a manager was not reduced simply because she needed the
approval of the Executive Director in some matters and had to follow policies.
[23]
If
the Respondent is not found to be a manager, the Applicant will be unable to
run its organization effectively. Managers are excluded from the prohibition
against unjust dismissal under the Code so that employers are not unduly limited
in their common law right to terminate the senior management team. As the
Adjudicator in Johnson-Macdonald, above, wrote at paragraphs 44 and 45:
To return to an examination of the basis for and
meaning of the exclusion of managers, one must also consider the effect of a
person being designated as a “manager”. Here I would note that if Ms.
Johnson-Macdonald is considered to be a “manager” she is not stripped of relief
for possible incorrect treatment by the Employer. The Complainant and others
denied relief under the Code can still bring an action for damages at common
law. Leaving aside the question of costs and the like, the major difference
between these remedies is that under the Code an Adjudicator can order the
complainant to be re-instated in employment; in the Courts relief would
normally be limited to damages.
The foregoing distinction is a useful consideration
in applying subsection 167(3). In short, if re-instating a complainant would
cause real problems to an employer in carrying out its work, it would perhaps
be preferable to limit the claim to one of damages. It seems to me there exist
situations where the continuation of an employment relationship would be
unhelpful to the employer and, perhaps, the employee to such a degree as to not
be permitted. In the end, an employer can terminate the relationship but may
have to pay the cost of so doing.
[24]
The
Respondent has an adequate alternate remedy if she is excluded by subsection
167(3); she can seek damages in a civil proceeding for wrongful dismissal. To
reinstate her will be to put her into a role where she has significant
authority and responsibility but is unsuitable for the position. It is clear
from the evidence that the Respondent is a manager, so the unjust dismissal
provisions in Division XIV of the Code do not apply to her. The Adjudicator did
not have the jurisdiction to consider the Respondent’s complaint.
The
Respondent
[25]
The
Respondent points out that the Applicant consented to the Adjudicator’s
jurisdiction to hear her claim, so it cannot now challenge that jurisdiction on
judicial review. The evidence also shows that the Respondent is not a manager,
so the unjust dismissal provisions of the Code apply to her.
Jurisdiction
[26]
It
is inappropriate for the Applicant to seek to challenge the Adjudicator’s
jurisdiction. Judicial review is a process for reviewing a decision; it is not
a de novo trial of issues not canvassed in the evidence before the
tribunal. See Regional Cablesystems, above, at paragraph 29. The parties
canvassed the issue of jurisdiction before the Adjudicator and the Applicant
agreed that the Adjudicator was properly constituted to hear the full and
integrated dispute. Essentially, the Applicant agreed the Respondent was not a
manager.
[27]
The
Applicant had the opportunity to address the Respondent’s status as a manager
at the hearing but did not take it. The facts to establish the Respondent was a
manager were in the parties’ hands but were not placed before the Adjudicator.
The Adjudicator cannot have made a jurisdictional error when the facts
necessary to decide this issue were not before him when he canvassed the
question of jurisdiction with the parties. The Court must not allow a de
novo trial on an issue the Applicant agreed was resolved.
[28]
The
Applicant has pointed to numerous authorities showing similar cases where
complainants were found to be managers. However, in all but one of theses cases
the Adjudicators’ jurisdiction to hear the claim was raised at the hearing. In Regional
Cablesystem, above, the lone outlier, the Adjudicator had not properly
considered the jurisdiction question. In the instant case, the Applicant did
not lead any evidence before the Adjudicator to show the Respondent is a
manager, so it must be held to have consented to the Adjudicator’s jurisdiction.
See Msuya v Sundance Balloons International Ltd., [2006] FCJ No
398.
Respondent
is not a Manager
[29]
Even
if the Court can properly consider whether the Adjudicator had jurisdiction to
hear the Respondent’s complaint, he had jurisdiction because she is not a
manager. Poirier v Lake Babine Nation, [2005] CLAD No 237
establishes that “manager” should be given a narrow interpretation. There are
several elements essential to finding that a worker is a manager:
1.
Power
to act and perform duties independently;
2.
Membership
in the management team;
3.
A
primary responsibility of management;
4.
Power
or authority to hire, supervise, and dismiss employees, including the power to
discipline;
5.
Firing
and disciplinary actions must be proven;
6.
Responsibility
for the employer’s operational and managerial functions required for that
purpose;
7.
Sufficient
independent decision-making authority, which need not be absolute, including a
measure of discretion;
8.
Authority
to make final decisions of significance.
[30]
On
the evidence before the Court, the Respondent was only a coordinator with
little authority. She had to review all significant decisions with her
supervisor and had no financial authority. The Respondent was not authorised to
speak to government agencies which funded her departments. She did not have the
power to act independently. Further, the Respondent could not hire or fire
permanent employees; she could only assign short-term work to pre-approved
clients. She did not have the authority to discipline other employees. Once,
when she attempted to discipline another employee, her supervisor called her
into his office and led her to believe she did not have the authority to
discipline. The day-to-day running of her department was determined by the
policies and manuals established by her superiors.
[31]
The
Respondent invites the Court to draw an adverse inference from the Applicant’s
failure to adduce evidence from any of her superiors. See subsection 81(2) of
the Federal Courts Rules SOR/98-106. The Court should infer the evidence
the Applicant has not adduced would be unfavourable to it. The Applicant had
the opportunity to lead evidence from Frank Alec – the Respondent’s direct
supervisor – but has not done so. It is reasonable to infer from his failure to
provide an affidavit that Mr. Alec’s evidence would be unfavourable to the
Applicant.
ANALYSIS
Introduction
[32]
The
Applicant has chosen to challenge the Adjudicator’s decision on the basis of
jurisdiction. Having reviewed that decision, I can see why. The decision is
cogent and thorough. It would be extremely difficult to find a ground for
judicial review on the merits.
[33]
What
is revealing about the Applicant’s approach is that jurisdiction was not raised
as an issue before the Adjudicator and the Applicant is raising it for the
first time on review. What this means is that I need to make an initial
determination as to whether it is appropriate in the circumstances to review a
decision on a single issue that was not raised with the Adjudicator.
Jurisdiction
[34]
On
the facts of this case, the Applicant, in effect, represented to the
Adjudicator that jurisdiction was not an issue, and that he should decide the
complaint on its merits. What the Applicant did not tell the Adjudicator was
that, if he failed to decide matters in favour of the Applicant, the Applicant
would then seek review on the basis of lack of jurisdiction. The Applicant was
represented at all material times by experienced legal counsel, and would have
known that jurisdiction is something that should be raised with the
Adjudicator. I say this because the Applicant has been through this process
before in recent years. In Poirier, above, the Adjudicator indicates at
paragraph 3, as follows:
At the outset of the hearing William Ferguson, acting for the Lake
Babine Nation, raised the objection to the adjudicator’s status to rule on this
matter due to the position of the Lake Babine Nation that Mary-Ann Poirier was
a manager. Section 167 (3) of the Canada Labour Code states “Division XIV does
not apply to or in respect of employees who are managers”. It was agreed that a
true assessment of whether Mary-Ann Poirier was a manager could not be made
without hearing evidence of her duties and counsel agreed that all evidence
would be called. Judgment as to whether she was a manager would be made at the
conclusion of hearing all the evidence.
[35]
The
General Manager in the Poirier case was the same Frank Alec who is the
General Manager in the present case and to whom the Respondent had to report.
[36]
The
conclusion on jurisdiction in Poirier goes some way to explaining why
the Applicant chose not to raise jurisdiction with the Adjudicator in the
present case, and why the Applicant has not provided an explanation to the
Court as to why it agreed the Adjudicator had jurisdiction to hear the
complaint, but has now reneged on that position to come before the Court to
debate the issue on what is really a de novo basis. In Poirier,
at paragraph 16, the adjudicator made some significant points about the
Applicant’s hierarchical system and its effect upon the key issue that arises
in the present case:
WHEN IS A
MANAGER NOT A MANAGER?
16 My answer is -
when the system doesn’t allow them to manage. The hierarchical structure of the
Chief and Council is designed, and operates, in a strict top down manner. They
don't abide any bottom up approach concerning advice or suggestions. They
report to their members when they want to and what they want to and if
something is held back only the Council knows. Under cross examination, Frank
Alec, in one of his most candid statements, said he would never correct or
question a Councilor’s decision. Furthermore if a Councilor asked a staff
member to do something, they should take it up with him rather than just do it.
But he wasn't about to correct a Councilor himself, ever, anytime. In light of
that kind of organizational intimidation, it isn’t surprising that MAP could
run into difficulty as she attempted to argue and promote her project of
re-establishing Old Fort. But I cannot find her to be a manager, because the
system didn’t allow her to manage.
[37]
As
the Adjudicator noted in the present case, no one from the Applicant’s
management or leadership gave evidence, and that is the same before me on this
application. Hence, there is no direct evidence (Mr. Alec excepted) from those
who can speak to the way the system operates, nor has there been any
cross-examination of those parties. The Applicant’s witnesses had no direct
knowledge on the merits of the claim or the Applicant’s role, and they were, in
any event, discredited during the course of cross-examination. As Applicant’s
counsel concedes, the evidentiary basis upon which he relies in this
application is basically the Adjudicator’s decision, the Respondent’s
affidavit, and the cross-examination of the Respondent on her affidavit.
[38]
As
the Adjudicator’s decision makes clear, the issue of jurisdiction was brought
up and both parties agreed that the Adjudicator was “properly constituted to
hear the full and integrated dispute, and to determine a complete remedy.” The
Applicant now wishes to renege on that agreement before this Court on the basis
of evidence that was not before the Adjudicator. This is not a judicial review
in my opinion. I am being asked to determine an issue de novo that the
Adjudicator was told was not an issue and on the basis of new evidence that was
not before the Adjudicator.
[39]
The
Applicant says I have no choice and must proceed to review jurisdiction. Before
I decide whether the Applicant is right on this point, I think I do have to say
that I find the Applicant’s conduct in this matter somewhat unconscionable. I
do not think it is appropriate to agree that the Adjudicator is “properly
constituted to hear the full and integrated dispute, and to determine a
complete remedy” and then, after a decision is rendered that goes against the
Applicant, to come before the Court — without explanation or excuse — and ask
for the decision to be set aside on the basis that the Adjudicator was not
“properly constituted” on the basis of evidence that was not placed before the
Adjudicator.
[40]
The
Applicant points to the discussion in Gleason v Daylu Dena Council,
[2006] CLAD No. 298, at paragraphs 3 and 4, where the Adjudicator provided the
following summary of the jurisprudence on point:
The issues of whether there was a
discontinuance of function, or whether Ms. Gleason is a manager are pure
jurisdictional issues. The employee’s counsel submits that the employer should
be estopped from raising the “manager issue” as this was not a live issue at
the hearing, and it would be unfair to decide this issue at this point in time,
without having a chance to structure the evidence.
It is unfortunate that the manager
issue was not raised during the hearing, as both parties could have addressed
this as a matter of evidence. The employer is not precluded from raising the
issue after the close of evidence, as I accept the submission that the issue of
jurisdiction is one that could be raised on a judicial review of my decision,
without the issue being dealt with at the hearing: Regional Cable Systems v.
Wygant, [2003] F.C.J. 321 (T.D.). In that decision the court referred to Shubenacadie
Indian Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (T.D.),
affirmed, (2000), 256 N.R. 109 (F.C.A.):
[39]
My concern is with the argument that the Court cannot review a tribunal
decision, even where that decision is either in excess of that tribunal’s
statutory jurisdiction, or is made pursuant to a statutory jurisdiction that is
unconstitutional.
In
Crevier v. Attorney General of Quebec et al., [1981] 2 S.C.R. 220, ...,
the Supreme Court of Canada held that a statutory tribunal cannot be immunized
from review for errors of jurisdiction. Laskin C.J. states, ...:
...
if such a tribunal has acted beyond its jurisdiction in making a decision, it
is not a decision at all within the meaning of the statute which defines its
powers because Parliament could not have intended to clothe such tribunal with
the power to expand its statutory jurisdiction by an erroneous decision as to
the scope of its own powers. [Emphasis added]
Given
that a decision of an administrative tribunal in excess of its jurisdiction “is
not a decision at all”, it seems paradoxical that the same “decision” would be
immunized from review where jurisdiction is never raised and the tribunal’s jurisdiction
and/or the constitutionality of its enabling legislation is assumed. This is
tantamount to saying that parties to an administrative proceeding may, by
waiver or acquiesence [acquiescence], confer jurisdiction on a tribunal that
was not, or could not be, conferred by Parliament, and that this conferral of
authority by the parties is unreviewable once the decision is made. Indeed, it
is not difficult to imagine a tribunal falling into jurisdictional error simply
because it did not hear arguments on that issue.
Viewed
in this light, the decisions of the Federal Court of Appeal in Toussaint,
Poirier, [1989] F.C.J. No. 240, and Sirois, [1988] F.C.J. No. 577,
are distinguishable from the case at bar because of the jurisdictional nature
of the new arguments being raised here. The Alberta Court of Appeal and Ontario
High Court have considered this issue and held that a reviewing court may
consider a challenge to a tribunal's jurisdiction that was never raised before
the tribunal itself... . I find this approach to jurisdictional questions more
consistent with the reasoning in Crevier and conclude that it is
appropriate to consider the new jurisdictional arguments raised by the
applicant in this proceeding.
[41]
The
Federal Court of Appeal has also provided guidance on point. The Applicant
refers me to the decision in Payiappily v Rogers Cantel Inc., [2000] FCJ
No 630 at paragraph 9:
The Motions Judge decided the adjudicator was correct in holding
that he lacked jurisdiction because of this section. If the adjudicator lacked
jurisdiction, then it was immaterial whether either of the parties raised the
issue. Consent cannot confer jurisdiction. [Emphasis added]
[42]
As
the facts of the present case show, if consent cannot confer jurisdiction and
if the tribunal cannot be immunized on review, then it means that a tribunal
cannot rely upon agreement between the parties and must proceed to hear
evidence and argument on point. It also means that a party to a dispute can
reserve to itself the right to agree that jurisdiction is not an issue and then
have a reviewing court decide the issue de novo if that party does not
get the result it wants from the tribunal.
[43]
The
Supreme Court of Canada has more recently addressed the whole issue of what
should happen when a court is asked to review an issue that was not raised
before the tribunal. In Alberta (Information and Privacy
Commissioner) v Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 SCR
654, the Supreme Court of Canada provided the following guidance at paragraphs
22-26:
The ATA
sought judicial review of the adjudicator's decision. Without raising the point
before the Commissioner or the adjudicator or even in the originating notice
for judicial review, the ATA raised the timelines issue for the first time in
argument. The ATA was indeed entitled to seek judicial review. However, it did
not have a right to require the court to consider this issue. Just as a
court has discretion to refuse to undertake judicial review where, for example,
there is an adequate alternative remedy, it also has a discretion not to
consider an issue raised for the first time on judicial review where it would
be inappropriate to do so: see, e.g., Canadian Pacific
Ltd. v. Matsqui Indian Band, [1995] 1 S.C.R. 3, per
Lamer C.J., at para. 30: “[T]he relief which a court may grant by way of
judicial review is, in essence, discretionary. This [long-standing general]
principle flows from the fact that the prerogative writs are extraordinary [and
discretionary] remedies.” [Emphasis added]
Generally,
this discretion will not be exercised in favour of an applicant on judicial
review where the issue could have been but was not raised before the tribunal (Toussaint v. Canada Labour Relations
Board (1993), 160 N.R. 396 (F.C.A.), at para. 5, citing Poirier v. Canada (Minister of [page671] Veterans Affairs),
[1989] 3 F.C. 233 (C.A.), at p. 247; Shubenacadie Indian
Band v. Canada (Human Rights Commission), [1998] 2 F.C. 198 (T.D.), at
paras. 40-43; Legal Oil & Gas Ltd. v. Surface Rights
Board, 2001 ABCA 160, 303 A.R. 8, at para. 12; United
Nurses of Alberta, Local 160 v. Chinook Regional Health Authority, 2002
ABCA 246, 317 A.R. 385, at para. 4). [Emphasis added]
There are a
number of rationales justifying the general rule. One fundamental concern is
that the legislature has entrusted the determination of the issue to the
administrative tribunal (Legal Oil & Gas Ltd.,
at paras. 12-13). As this Court explained in Dunsmuir,
“[c]ourts ... must be sensitive ... to the necessity of avoiding undue
interference with the discharge of administrative functions in respect of the
matters delegated to administrative bodies by Parliament and legislatures”
(para. 27). Accordingly, courts should respect the legislative choice of the
tribunal as the first instance decision maker by giving the tribunal the
opportunity to deal with the issue first and to make its views known.
This is
particularly true where the issue raised for the first time on judicial review
relates to the tribunal's specialized functions or expertise. When it does, the
Court should be especially careful not to overlook the loss of the benefit of
the tribunal's views inherent in allowing the issue to be raised. (See Council of Canadians with Disabilities v. VIA Rail Canada Inc.,
2007 SCC 15, [2007] 1 S.C.R. 650, at para. 89, per
Abella J.)
Moreover,
raising an issue for the first time on judicial review may unfairly prejudice
the opposing party and may deny the court the adequate evidentiary record
required to consider the issue (Waters v. British Columbia
(Director of Employment Standards), 2004 BCSC 1570, 40 C.L.R. (3d) 84,
at paras. 31 and 37, citing Alberta v. Nilsson, 2002
ABCA 283, 320 A.R. 88, at para. 172, and J. Sopinka and M. A. Gelowitz, The Conduct of an Appeal (2nd ed. 2000), at pp. 63-68; [page672] A.C. Concrete Forming Ltd. v. Residential Low Rise
Forming Contractors Assn. of Metropolitan Toronto and Vicinity, 2009
ONCA 292, 306 D.L.R. (4th) 251, at para. 10 (per
Gillese J.A.)).
[44]
In
Alberta Teachers’ Association, the issue that was not raised before the tribunal
was a “timeliness issue.” It was not jurisdiction. However, the Supreme Court
of Canada speaks in general terms that are obviously meant to have an
application beyond the specific facts of the case. “Generally, this discretion
will not be exercised in favour of an applicant on judicial review where the
issue could have been but was not raised before the tribunal” and the “court
has a discretion… not to consider an issue raised for the first time on
judicial review where it would be inappropriate to do so….”
[45]
The
first issue before me, therefore, is whether it is inappropriate to do so where
the issue that was not raised is “jurisdiction,” or, to be more precise, where
jurisdiction was raised but both parties agreed that the Adjudicator had
jurisdiction. If I examine the case law referred to by the Supreme Court of
Canada it does not make clear whether the Supreme Court of Canada had
“jurisdiction” in mind when it made the statements referred to above and
whether I have a discretion not to hear the Applicant’s case based upon the
issue of jurisdiction.
[46]
The
cold logic of prior case law is that consent cannot confer jurisdiction and a
tribunal cannot be immunized from review for errors of jurisdiction. It is not
clear to me whether the Supreme Court of Canada in Alberta Teachers’
Association is saying that I have the discretion not to consider the
jurisdictional issues raised in this case if I think it is inappropriate to do
so. Fortunately, I do not need to decide this issue on the facts before me
because it appears to me to be clear from the evidence that the Respondent was
not a manager so that the Adjudicator did have jurisdiction and the decision
must stand. In assessing that evidence, however, I think I have to be cognizant
of the fact that the Applicant, by agreeing that the Adjudicator could hear
this matter, has made a prior indication that it does not consider the
Respondent to be a manager and did not feel it was necessary to call any
evidence on point before the Adjudicator. Also, I have been given no
explanation as to why the Applicant has now changed its position on this issue,
other than that it is displeased with the decision on the merits. Further, I
think I also have to keep in mind that the Applicant has not produced evidence
from prominent persons in the Applicant’s hierarchy who could speak to this
issue and be cross-examined. Besides the Adjudicator’s award, the Applicant is
arguing on the basis of what the Respondent has said in her affidavit and in
cross-examination.
[47]
Having
concluded that I should exercise my discretion to hear this matter, I now have
to decide whether, given the evidence before me, the Respondent was a manager
so that her complaint fell outside the jurisdiction of the Adjudicator.
[48]
This
is a fact-driven exercise and, as already pointed out, the only compelling
evidence before me on this issue comes from the Adjudicator’s award and the
Respondent herself. The approach which the Court must take to this issue was
summarized by Justice Barnes in Msuya, above, at paragraph 23:
There are many authorities dealing with the determination of
whether a person is a manager pursuant to subsection 167(3) of the Code. The
fundamental test is whether that person had significant autonomy, discretion,
and authority in the conduct of the business of the employer. A very thorough
review of the relevant caselaw can be found in the decision of Adjudicator A.E.
Bertrand in Isaac v. Listuguj Mi’gmaq First Nation [2004]
C.L.A.D. No. 287. That decision also provides a useful list of factors and principles
which should typically be considered in determining whether a person is a
section 167(3) manager (see paragraph 164). The approach taken by Adjudicator
Bertrand in the Isaac case, above, is the correct
one.
[49]
In
Msuya, Justice Barnes also stated at paragraph 25 that
It is clear that the onus of proving that an
employee is a manager under section 167(3) of the Code rests upon the party
making that assertion (in this case, Sundance). That principle was recognized
in the decision of Justice MacKay in Waldman, above, where he held at
paragraphs 15 and 16 as follows:
15 In the final analysis the adjudicator held
that the burden of establishing that Mr. Waldman was exempt from consideration
under the Code as a “manager” lay with the applicant Band Council. He found
that there was not sufficient evidence to support a conclusion that the duties
of Mr. Waldman, excluded him from consideration under the Code as a “manager”.
Thus the adjudicator maintained jurisdiction to deal with the complaint.
16 In so doing, in my opinion, the adjudicator
was correct.
[50]
The
parties in the present dispute have provided me with their respective reviews
of the evidence and their conclusions. The Applicant’s summary is as follows:
The facts in the present case parallel those in the
cases discussed above. The Respondent’s position, duties and responsibilities
are very similar to the positions, duties and responsibilities of the
complainants who are found to be managers excluded from the provisions of
Division XIV of the Code. In particular, as the director of Social
Development and Director of Justice with responsibility for Child and Family
Services, the Respondent had significant responsibility and authority. The
evidence indicates that:
The Respondent reported directly to the Executive
Director;
The only higher ranking employee of the Respondent
was the Executive Director;
As Director of Social Development, the Respondent
had responsibility for all of the employees working in the Social Development
Department, plus the employee working in the Child and Family Services
Department;
The Respondent had significant administrative
authority and was responsible for making and implementing important decisions.
The Respondent was put in the position of Director of Social Development to
bring the program back up to standards. The Respondent was successful at
getting the Social Development Department back on budget;
The Respondent had sole responsibility for the day
to day administrative functioning of the Social Development Department, the
Justice Department and the Child and Family Services Department; and
As the Director of Justice, the Respondent created
her own role and responsibilities, and was ultimately responsible for what
happened in the Applicant’s Justice Department.
Based on the case law discussed above:
a.
Workers
in positions such as the Respondent’s with similar responsibilities and
authority are to be considered “managers” under Section 167(3) of the Code;
b.
The
Respondent’s status as a manager was not demeaned by the fact that she was
required to seek the Executive Director’s approval on certain matters; and
c.
The
Respondent’s status as a manager was not demeaned by the fact that she
conducted her duties in accordance with detailed policies.
[51]
The
Respondent’s summary is as follows:
The Respondent was responsible for the day-to-day
coordination of department activities, but did not have the authority or
discretion to:
a.
Make
any Social Development decision that varied from the criteria in the Manual, or
the advice of the Society;
b.
Set
or vary the budget set for the department;
c.
Sign
or authorize any cheque in any amount;
d.
Negotiate
or sign any contract with a funder, or to even speak directly to any funder
agency;
e.
Negotiate
or authorize any projects;
f.
Hire
full-time employees;
g.
Discipline
employees;
h.
Dismiss
employees;
i.
Promote
employees;
j.
Give
raises to employees;
k.
Set
work schedules for employees;
l.
Approve
vacation schedules for employees.
In summary, the evidence is clear that during her
employment the Respondent had no power or authority for independent action,
autonomy, or discretion.
[52]
The
case law relating to section 167(3) of the Code has established that the
following two elements must be present in order for a worker to be deemed a
manager under that section:
a.
The
worker must be engaged in administering the employer’s affairs; and
b.
The
worker must have the power of independent action, autonomy and discretion in a
significant range of matters within his/her area of responsibility.
[53]
Based
on the evidence proffered in this application, the first prong of this test has
been met. A review of the Respondent’s position, duties, and responsibilities
at the time of her dismissal makes it clear that the Respondent was engaged in
administering the affairs of the Applicant.
[54]
The
real issue arises under the second prong of the test, which requires the worker
to have the power of independent action, autonomy and discretion in a
significant range of matters within her area of responsibility.
[55]
The
Applicant has provided a lengthy list of cases and invites me to draw parallels
with the present situation. In particular, the Applicant directs me to Danes,
above, as being especially close to the Respondent’s position. In reviewing
that decision, however, I find a marked difference between the role of Ms.
Danes and that of the Respondent. For example, in paragraph 11 of Danes,
the following findings are made:
I accept the evidence of the Band Manager that the Complainant had
full signing authority within her budget, and had full spending authority for
all matters dealing with social development. Within the Band there were only
four people that signed their own purchase orders, one of whom was Bonita
Danes. Danes testified that if she needed to buy items she filled in a purchase
order for larger items, but first sought the okay from Gagnon. Danes also
testified that in regards to the food bank she was given a credit card with her
name and she could use it for large amounts to purchase groceries. The Band had
not placed any spending limitations on Bonita Danes within her budget. The Band
Manager had a $5,000 limit per transaction, whereas Danes was authorized to
spend an unlimited amount up to the line authorization provided by the funding
source. For example if the funding source authorized $100,000 to be spent on a
program, the Complainant could write one cheque for $99,000.
[56]
In
the present case, the evidence before me is that the Respondent:
a.
Did
not have full signing authority with her budget and she did not have full
spending authority for all matters dealing with social development;
b.
Did
not sign her own purchase orders;
c.
Had
no credit card to purchase groceries;
d.
Was
not free of spending limits.
[57]
Also,
in comparison with the Danes decision, the Respondent:
a.
Did
have to consult before exercising any authority over other staff;
b.
Was
not the staffing decision-maker and could only hire part-time staff from an
approved pool in a very short-term basis;
c.
Could
not discipline staff and was reprimanded for her single attempt to do so;
d.
Could
not deal with or put proposals to INAC;
e.
Did
not exercise complete independence in exercising her responsibilities;
f.
Was
not free to make decisions independent of the General Manager or the Band
Council.
[58]
The
present case is strange in that, because the Applicant agreed that the Adjudicator
had jurisdiction, it was not established at the adjudication that the
Respondent was an excluded manager. Because the Applicant has reneged on its
agreement before the Adjudicator and has, in effect, placed the issue of
jurisdiction before the Court on a de novo basis, it does not change the
fact that “the onus of proving that an employee is a manager under section
167(3) of the Code rests upon the party making that assertion….” In the present
case, that is the Applicant. Having failed to produce any reliable evidence
from its own management, leadership or employees, the Applicant has attempted
to discharge this onus by relying upon the evidence of the Respondent in her
affidavit, the Applicant’s cross-examination of the Respondent, and the Adjudicator’s
award. Not surprisingly, in my view, the Applicant has not discharged the
evidentiary burden of showing that the Respondent is a manager. The
preponderance of the evidence before me suggests otherwise.
[59]
In
other words, my review of the evidence leads me to conclude that the
Applicant’s assessment of the Respondent’s powers of independent action,
autonomy and discretion do not reflect the reality of the Respondent’s role or
the system within which she functioned. I accept the Respondent’s characterization
as being closer to the reality. In particular, I accept the following:
The Social Development Department
When the Respondent was given the position of Social
Development Director, she was given a five inch thick policy binder called the
“First Nations Social Development Program Policy and Procedures Manual (the
“Manual”).
The Manual was a comprehensive document that
essentially covered off almost every possible scenario the department would
encounter when dealing with the eligibility for funding requirements.
The Respondent was instructed by the General Manager
that the Manual was to be strictly followed.
The Respondent was further instructed by the General
Manager that if she encountered a situation not covered by the Manual, she was
to contact the First Nations Social Development Society for guidance on
eligibility.
The Respondent had no authority to make any
eligibility decisions on her own; all decisions were either covered by the
criteria in the Manual, or were made on instructions and guidance from the
Society.
The Respondent was directly instructed by the
General Manager that she was not authorized to speak to the major Social
Development funder, specifically, the Department of Indian Affairs and Northern
Development (DIA).
The Respondent was directly instructed by the
General Manager to run all decisions past him before taking action.
Budgets/Cheques
The Respondent did not have authority to set any
budget.
The budgets for all departments were set by the LBN
Finance Department.
Once a budget was set by the Finance Department, it
was given to the department to ensure every prescribed program was covered in
the budget.
The Respondent did not have any authority to alter
or change the budget; and had her budget unilaterally altered by LBN Chief and
Council on more than one occasion without her input or approval.
The Respondent did not have the authority to issue
or sign any cheques. If the cheque was required, the Respondent was required to
fill out a cheque requisition form, and send the form to the General Manager
for approval. If the General Manager approved the requisition, a senior member
of LBN would sign the cheque.
During her entire employment in the Social
Development Department, the Respondent never signed or issued a single cheque
for LBN.
Project/Contract Approval & Reports
The Respondent did not have the authority to talk to
or negotiate contracts with any government agencies, nor to sign any reports to
government agencies.
The Respondent did have the authority to propose projects,
but no authority to approve a project.
All approvals for Social Development contracts were
done at the level of the General Manager or above.
During her entire employment in the Social
Development Department, the Respondent never approved a single project, and
never signed a single contract with a funding authority.
Hiring – Full-time & Regular Employees
The Respondent did not have the authority to hire
full-time and regular employees.
During the course of her employment, the Respondent
did not hire a single full-time or regular employee.
During the course of her employment, the Respondent
did not sign a single employment contract for any full-time or regular
employee, other than her own employment contract.
Hiring – Short-term Employees
The Social Development Department did have the
authority to fill short-term work positions.
It was an LBN requirement that persons on social
assistance had to be available for employment. The Social Development
Department had developed a list of persons on social assistance that were
available for work prior to the Respondent coming to the department. The
Respondent maintained that list during her tenure in the department.
On occasion, short-term work arose involving a
duration of a few hours to a few days. When short-term work did arise, the
employees in the department, including the Respondent, would offer the work to
an LBN member on the list of persons receiving social assistance.
Project Work — The Traditional Food Project
On one occasion, a short-term project work arose
relating to a project affecting the department: the Traditional Food Project.
This project was funded by DIA.
This project was proposed by two employees in the
Social Development Department, the Respondent, and Mary West. The proposal was
submitted to the General Manager and the Finance Department for approval. It
was then submitted to DIA, and was eventually funded by DIA.
When this project work arose, the employees in the
department, including the Respondent, coordinated the project, and offered the
short-term work to qualified LBN members.
Discipline/Dismissal Authority
The Respondent did not have the authority to dismiss
regular employees under her supervision.
During the course of her employment, the Respondent
never dismissed a single employee.
The Respondent did not have the authority to
discipline employees under her supervision.
On one occasion, the Respondent sent an employee
home for being intoxicated on the worksite. The Respondent was later called
into a meeting with the General Manager, where she was questioned and asked to
explain her actions. She left this meeting with the firm belief the General
Manager was making it clear she did not have the authority to discipline
employees.
The Applicant alleges a second occasion where the
Respondent is alleged to have disciplined an employee with an oral warning. The
Respondent has no recollection of such an incident, and the Applicant provided
no paperwork or specifics as to circumstances, time, or place of such an incident.
Promotions
The Respondent did have the authority to coordinate
department work or move employees to different job assignments at the same job
level within the Social Development Department.
The Respondent did not have the authority to promote
employees.
During the course of her employment, the Respondent
did not promote a single employee.
Salaries/Raises
The Respondent did not have the authority to
determine either salaries or raises for employees.
The salaries for all full-time employees were set out
in the budget, and were set prior to the appointment of the Respondent as
Social Development Director.
The Respondent never set a salary for a full-time
employee.
The wages for all short-term workers were contained
in the budget and the project description.
The Respondent never set a wage rate for a
short-term worker.
All raises required the approval of the General
Manager. On one occasion during her employment, the Respondent issued a raise
to each of the three full-time Social Development employees after the raises
were approved by the General Manager.
Work Schedules
The Respondent did not have the authority to set
work schedules. During her employment in the Social Development Department, the
Respondent never set a work schedule for employees.
The Respondent did not have the authority to
authorize overtime. During her employment, all overtime for herself and
employees in her department was authorized by the General Manager.
Vacation Schedules
The Respondent did not have the authority to approve
vacation schedules. During her employment in the Social Development Department,
all vacation requests in the department were forwarded to the General Manager
for approval.
[60]
My
conclusions are that the Applicant has not shown that the Respondent had sufficient,
independent decision-making authority, sufficient power to hire and fire
employees, or sufficient power to make decisions of significance to make her a
manager. Consequently, I conclude that the Adjudicator had jurisdiction to hear
the Respondent’s complaint and to award the remedies he did.
JUDGMENT
THIS
COURT’S JUDGMENT is that
1.
The
decision of the Adjudicator Coleman is upheld.
2.
The
Applicant’s appeal is dismissed with costs to the Respondent.
“James Russell”
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