Date: 20110516
Docket: T-1727-10
Citation: 2011 FC 555
[UNREVISED CERTIFIED
ENGLISH TRANSLATION]
Ottawa, Ontario, May 16,
2011
PRESENT: The
Honourable Mr. Justice Beaudry
BETWEEN:
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JOCELYN LORD
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Applicant
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and
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CONSEIL DES ATIKAMEKW
D'OPITCIWAN
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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 dated September 23, 2010, by Nicol
Tremblay, Adjudicator (panel), under the Canada Labour Code, R.S.C.,
1985, c. L-2 (CLC). The panel found that it did not have jurisdiction to
hear the complaint filed by the applicant.
[2]
For the
reasons set out below, the application for judicial review will be dismissed.
Factual background
[3]
The
applicant was hired by the Conseil des Atikamekw d’Opitciwan (respondent) as
an English teacher at the École secondaire Mikisiw in Opitciwan by means of written
contracts.
[4]
The terms of
the contracts were as follows:
a. From August 18, 2003, to
August 14, 2004;
b. From August 16, 2004, to
August 12, 2005;
c. From August 15, 2005, to
August 13, 2006;
d. From August 14, 2006, to
August 10, 2007.
[5]
In 2007,
the respondent presented to the applicant a new draft contract for the 2007-2008
school year, but the applicant refused to sign it. Nevertheless, the applicant did
work for the respondent starting on August 13, 2007.
[6]
In
December 2007, the applicant suffered a cardiovascular accident which made him
unable to resume work in January 2008.
[7]
The
respondent stopped the applicant’s pay as of January 10, 2008. On June 17,
2008, it sent the applicant a notice of termination of employment effective
August 8, 2008.
[8]
On July 8,
2008, the applicant filed a complaint of unjust dismissal in accordance with
subsection 240(1) of the CLC.
[9]
The
complaint was heard in Roberval, province
of Quebec, on February 26, 2009.
[10]
On
September 23, 2010, the panel rendered its decision, allowed the respondent’s
preliminary objection and dismissed the applicant’s complaint, stating that it
did not have jurisdiction to hear his complaint. It is this decision that is
the subject of this judicial review.
Impugned decision
[11]
In its
preliminary objection, the respondent raised the following three arguments:
a. The adjudicator does not have
jurisdiction to hear this complaint because the applicant cannot claim to have completed
twelve consecutive months of continuous employment with the respondent, as
required by paragraph 240(1)(a) of the CLC.
b. This is not a case of unjust
dismissal of which the applicant was a victim, but simply a non-renewal of a
term contract of employment that had expired.
c. In the alternative, if the
adjudicator were to come to the conclusion that this is an indeterminate
contract of employment, this is not a dismissal because the contract contains a
clause accepted by both parties on the manner of terminating the contract.
[12]
With
regard to the first argument, the panel found that the contracts for the
periods between 2003 and 2007 did not constitute continuous employment within
the meaning of paragraph 240(1)(a) of the CLC because periods without
employment had been provided for between each contract. The panel noted that,
according to the evidence, the applicant had always accepted this situation,
including the automatic non-renewal of each contract he signed.
[13]
The second
argument raised the issue of whether they were bound by a term or indeterminate
contract of employment. The applicant claimed that since he had never signed
the contract for 2007-2008, he was bound to the respondent by an indeterminate
contract. In analyzing the applicant’s testimony, the panel found that his
reluctance and refusal to sign the draft contract were motivated by
considerations other than the term of the contract or its automatic
non-renewal. The panel therefore found that the absence of a written contract
in 2007-2008 did not in any way take away from the fact that the verbal
contract accepted by both parties was by nature a term contract.
[14]
Finally,
by applying the relevant caselaw to the facts of the case, the panel found that
the applicant did not establish a period of at least twelve months of
continuous employment.
Analysis
[15]
The
respondent submitted that the standard of reasonableness should apply here (Dunsmuir
v. New Brunswick, [2008], 1 S.C.R. 190), since this is an
issue that concerns the assessment of the evidence (Canadian Imperial Bank
of Commerce v. Muthiah, 2011 FC 77).
[16]
The
applicant did not make written submissions on this issue, but stated that he
was in agreement with this standard at the hearing.
[17]
The
decision must therefore be analyzed with regard to the existence of justification,
transparency and intelligibility within the decision-making process, as well as
to whether the decision falls within a range of possible, acceptable outcomes
which are defensible in respect of the facts and law (Dunsmuir, supra, para.
47).
[18]
The
primary issue here is whether the panel made an unreasonable error in stating
that it did not have jurisdiction to hear the applicant’s complaint.
[19]
The
applicant is arguing that the panel erred in finding that the annual contracts
signed by the parties did not constitute continuous employment within the
meaning of paragraph 240(1)(a) of the CLC (Lemieux v. Canada, (1998)
4 FC 65 (FCA), applicant’s memorandum, page 138).
[20]
He adds
that continuous employment may exist when term contracts succeed each other in such
a way that, between the end of one contract and the start of another, it is
impossible to note a sufficient period of time for a third person to occupy the
position in question (Vigneault v. Conseil de la Nation Innu de Mastimékiosh
et Lac John (December 12, 2000), Québec, 210-15-G/00, AZ-01141080 (arbitral
award); see also Ménard et Collège de Maisonneuve DTE 99T-415 (February
16, 1999)).
[21]
He also
argues that the panel could not base its decision on the simple fact of being
in the presence of successive term contracts. It also had to take into account
the fact that, at the time the contracts expired, the parties were already
bound by a new contract, which shows continuity. The applicant did not find it
relevant that he had not been on the work premises during the summer (Ferguson
v. Wills Transfert Ltd, [2002] C.L.A.D. No. 222, applicant’s memorandum,
pages 140 and 141).
[22]
The panel
also erred in its interpretation of paragraph 240(1)(a) of the CLC concerning
the period of at least twelve months of continuous employment. In fact,
according to the applicant, he had completed at least twelve months of
continuous employment because he had been in the respondent’s employ from
August 18, 2003, to his last pay on January 10, 2008. Even without a written
employment contract, he criticizes the panel for having found that the parties’
intention was to be bound by a term contract.
[23]
The Court
has before it a file in which the hearing was not recorded. There is therefore
no transcript. The applicant appeared alone before the adjudicator.
[24]
With
respect for the contrary view, the Court cannot find that the panel’s decision is
unreasonable.
[25]
In fact,
the panel had the benefit of hearing the parties and their witnesses and
assessing the context in which the various contracts were concluded. From this,
the panel made findings based on the history of the contracts. The panel took
into account, among other things, the exhibits filed during the hearing as well
as the testimony that explained these documents.
[26]
The panel’s
analysis of the case law is not exhaustive, but its application to the facts of
the case is intelligible and justifiable and falls within a range of possible,
acceptable outcomes (decision, paragraphs 11, 46 and 49). Was there another
solution that could have been equally acceptable and justifiable? Of course.
However, the solution adopted here is intelligible and is based on all of the
evidence that the parties wished to submit. The Court cannot substitute the solution
that it itself considers appropriate for that which was adopted (Canada (Minister of Citizenship and
Immigration) v.
Khosa, [2009], 1 SCR 339, para. 59).
[27]
The
Court’s intervention is not warranted.
JUDGMENT
THE COURT ORDERS that the
application for judicial review be dismissed. The respondent is entitled to
costs of $1500 in addition to disbursements.
“Michel
Beaudry”
Certified
true translation
Susan
Deichert,
LLB
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