Date: 20110114
Docket: T-1013-10
Citation: 2011 FC 42
Ottawa, Ontario, January 14,
2011
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
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CYNTHIA STIRBYS
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Applicant
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and
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THE ASSEMBLY OF FIRST NATIONS
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Respondent
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Cynthia Stirbys worked for the Assembly of First Nations for a number of
years. After she was advised that her employment contract would not be renewed,
Ms. Stirbys filed a complaint of unjust dismissal pursuant to section 240 of
the Canada Labour Code, R.S., 1985 c. L-2.
[2]
The Canada Labour Code adjudication process is not available to
employees who lose their employment as a result of the expiry of the term of
their contract of employment: see Eskasoni School Board/Eskasoni Band
Council v MacIsaac, [1986] F.C.J. No. 263 (F.C.A.).
[3]
The AFN raised a preliminary objection before the adjudicator appointed
to hear Ms. Stirbys’ complaint. It asserted that Ms. Stirbys had been employed
under a fixed-term contract that had come to an end and had not been renewed.
Consequently, the AFN submitted that she was not entitled to recourse under the
unjust dismissal provisions of the Code.
[4]
Ms. Stirbys argued that a review of all of the facts and circumstances
surrounding the history of her employment with the AFN demonstrated that her
employment had become indeterminate in nature. As a result, she asserted that
she should be entitled to recourse under section 240 of the Code.
[5]
The adjudicator concluded that Ms. Stirbys had been employed by the AFN
for a fixed term, and that her employment had ceased on the expiry of that
term. As a result, the adjudicator held that she did not have the jurisdiction
to rule upon Ms. Stirbys’ complaint of unjust dismissal.
[6]
Ms. Stirbys seeks judicial review of the adjudicator’s decision,
asserting that the adjudicator erred by using the wrong test in evaluating the
nature of her employment. Ms. Stirbys says that the adjudicator further erred
by failing to consider all of the surrounding circumstances in determining the
legal status of her employment.
[7]
For the reasons that follow, I am not persuaded that the adjudicator
erred as alleged. As a result, the application for judicial review will be
dismissed.
Standard of Review
[8]
Ms. Stirbys submits that the adjudicator was deciding a question
relating to her own jurisdiction and that the decision must therefore be
reviewed on the standard of correctness. She cites a number of decisions of
this Court in support of this contention, most of which pre-date the decision
of the Supreme Court of Canada in Dunsmuir v New Brunswick, 2008 SCC 9.
[9]
There is no question that adjudicators must be correct in
deciding true questions of jurisdiction or vires. However, the Supreme
Court made it clear in Dunsmuir that care
must be taken to avoid too readily characterizing an issue as
“jurisdictional” in nature. A true question of “jurisdiction” relates to whether
or not a tribunal had the authority to make the inquiry: see Dunsmuir at para.
59.
[10]
In this case, the parties agree that the adjudicator had the
authority to inquire into the nature of Ms. Stirbys’ employment, and to
determine whether the unjust dismissal provisions of the Canada
Labour Code had any application. The adjudicator exercised this
jurisdiction, hearing evidence and arguments on the issue before concluding
that Ms. Stirbys was not an indeterminate employee of the AFN.
[11]
What Ms. Stirbys really takes issue with is the test applied
by the adjudicator in assessing whether she was a fixed-term or indeterminate
employee, and the findings made by the adjudicator in this regard.
[12]
The
Canada Labour Code contains a strong privative clause, suggesting that
it was Parliament’s intent that decisions of adjudicators be accorded
deference: see section 243. Nevertheless, the expertise involved in deciding
questions of employment status on common law principles is one shared by the
courts: see Dynamex Canada Inc. v Mamona et al, 2003 FCA 248;
305 N.R. 295 (F.C.A.) (leave to appeal refused [2003] S.C.C.A. No. 383).
[13]
Moreover, the jurisprudence of the Federal Court of Appeal has
established that the standard of review with respect to an adjudicator’s identification
of common law employment law principles is correctness: see Baldrey v H.
& R. Transport 2005 FCA 151; 334 N.R. 340, 2005 FCA 151 at paras 4-8. I
am thus satisfied that the legal test applied by the adjudicator in evaluating
the nature of Ms. Stirbys’ employment is reviewable on the correctness
standard.
[14]
However, the application of these legal principles to the facts of the
case should be reviewed on the standard of reasonableness. There is clearly a
significant factual component to the determination of an individual’s
employment status in a case such as this. This is demonstrated by the arguments
that Ms. Stirbys advances, which relate to the nature of
representations allegedly made to her over the years that she worked for the
AFN, and the history of the organization’s own employment practices.
[15]
In applying the reasonableness standard, the Court must consider the
justification, transparency and intelligibility of the decision-making process,
and whether the decision falls within a range of possible acceptable outcomes
which are defensible in light of the facts and the law: see Dunsmuir at
paragraph 47, and Canada (Citizenship and Immigration) v Khosa, 2009 SCC
12; [2009] 1 S.C.R. 339 at para 59.
Did the Adjudicator Apply the
Wrong Test?
[16]
Ms. Stirbys say that the adjudicator applied the wrong test in
evaluating whether she was a fixed-term or indeterminate employee. In support
of this contention, she points to paragraph 5 of the decision, where the
adjudicator stated that the determination of whether Ms. Stirbys had been
dismissed or not depended “on the validity of the fixed-term contracts which
she signed over the years beginning in July, 2002”.
[17]
According to Ms. Stirbys, the adjudicator should have approached the
matter more broadly in order to ascertain the true nature of the parties’
long-term expectations in relation to the employment relationship. Ms. Stirbys
says that the adjudicator had to go beyond a simple examination of the language
of her various employment contracts. Rather, the adjudicator was obliged to
evaluate the circumstances surrounding her years of employment with the AFN: see,
for example, Lemieux v Société Radio-Canada, [2001] F.C.J. No. 1810 at
para. 47, aff’d 2003 FCA 212; [2003] F.C.J No. 757.
[18]
The difficulty with this argument is that when the decision is read as a
whole, it is clear that the adjudicator did precisely this.
[19]
That is, a review of the adjudicator’s reasons reveals that in addition
to looking at the contractual language used by the parties, the adjudicator
also considered:
- Ms.
Stirbys’ history of excellent employment reviews: at paras. 9
and 21;
- The fact
that there had been no attempt by the AFN to mislead Ms.
Stirbys as
to the nature of her employment: at para. 11;
- Ms.
Stirbys’ acknowledgement that her written contract governed
her
employment: paras. 8, 9 and 11;
- Ms. Stirbys’
knowledge that she was a term employee: at paras. 11
and 17;
- The fact
that Ms. Stirbys had been expressly made aware that the
AFN was not
in a position to offer her indeterminate employment:
at para.
11;
- Assurances
that had been given to Ms. Stirbys over the years by her
supervisors:
at para. 12;
- The wording
of an interchange agreement entered into by
Ms.
Stirbys, the AFN and the Canadian Institutes of Health
Research:
at para.18; and
- What Ms.
Stirbys’ participation in a secondment arrangement may
or may not have
suggested about her level of commitment to the
AFN: at
para. 22
[20]
As a result, I have not been persuaded that the adjudicator erred by
applying the wrong test in evaluating whether Ms. Stirbys was a fixed-term or
indeterminate employee.
The Adjudicator’s Examination of
the Surrounding Circumstances
[21]
Ms. Stirbys submits that the adjudicator also erred by failing to
consider all of the relevant surrounding circumstances in determining
the legal status of her employment. In particular, Ms. Stirbys points to the
failure of the adjudicator to specifically address the fact that her employment
contracts did not contain renewal provisions.
[22]
Ms. Stirbys also says that the adjudicator did not ascribe sufficient weight
to the fact that her employment contract had been renewed repeatedly.
According to Ms. Stirbys, the adjudicator also gave insufficient weight to the
AFN’s practices and the parties’ expectations.
[23]
I will deal first with the argument regarding the failure of the
adjudicator to expressly address the lack of a renewal provision in Ms.
Stirbys’ employment contract in her reasons. A decision-maker is not required
to refer to every piece of evidence in the record and will be presumed to have
considered all of the evidence that is before it: see, for example, Hassan v
Canada (Minister of Employment and Immigration), [1992]
F.C.J. No. 946; 147 N.R. 317 (F.C.A.).
[24]
Moreover, the cases cited by Ms. Stirbys discussing the significance of
a renewal provision in a fixed-term employment contract view the presence of
such a clause as a factor militating towards a finding of indeterminate
employment: see, for example, Ceccol v Ontario Gymnastic Federation, 55
O.R. (3d) 614 at paras. 15 and 16; Gandolfi v Hishkoonikun Education
Authority, [2006] C.L.A.D. No. 198 at para. 23.
[25]
Insofar as Ms. Stirbys’ arguments relate to the weight ascribed by the
adjudicator to various portions of the evidence, it is clearly not the role of
a reviewing Court to reweigh the facts: see League for Human Rights of B'Nai
Brith Canada v Odynsky 2010 FCA 307, at para 85. See also Khosa, previously
cited, at para 59.
[26]
The adjudicator found that the language of Ms. Stirbys’ employment
contracts was clear and unambiguous and that the conduct of the AFN did not
signal an indeterminate employment relationship. Despite the able submissions
of counsel for Ms. Stirbys, I am satisfied that this conclusion was reasonable.
Conclusion
[27]
For these reasons, Ms. Stirbys’ application for judicial review is dismissed.
Costs
[28]
The parties agree that costs should follow the event and be fixed at
$3,000.
JUDGMENT
THIS COURT ORDERS
AND ADJUDGES that Ms. Stirbys’ application for judicial review is
dismissed, with costs to the respondent fixed at $3,000.
“Anne
Mactavish”
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