Date: 20081222
Docket: T-1803-06
Citation: 2008
FC 1402
Ottawa, Ontario,
December
22, 2008
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
AUBREY
CARLSON LAROCQUE
Applicant
and
THE LOUIS
BULL TRIBE
Respondent
REASONS FOR ORDER AND ORDER
I. INTRODUCTION
[1]
The
Applicant brought a motion for the following orders:
(a) An
Order directing the Respondent to pay the Applicant the sum of $23,325.28, the
amount owed to the Applicant by the Respondent pursuant to clause 1 of an
Adjudicator’s Order dated August 21, 2006, less Employment Insurance payments
of $1,560.00 received by the Applicant from April 1, 2002 to May 12, 2002 and
less $850.00 owed to the Louis Bull Tribe pursuant to the Order of Justice
Hansen dated December 21, 2006; and
(b) An
Order returning to the Adjudicator the Order made by him on August 21, 2006 and
compelling the Adjudicator to particularize the Order such that the “prevailing
prime rate” is certain and to particularize what are the “reasonable costs” for
which the Adjudicator ordered the Respondent to pay half.
II. BACKGROUND
[2]
C.R.B.
Dunlop, the adjudicator (Adjudicator), was appointed by the Minister under s.
242, Part III of the Canada Labour Code, R.S.C. 1985, c. L-2 to
determine a complaint by Aubrey Carlson Larocque against the Louis Bull Tribe
(Tribe) for alleged unjust dismissal.
[3]
On March
16, 2006, the Adjudicator issued his Decision on Remedies and Costs in which he
awarded a lump sum payment of $25,735.28 to be adjusted by CPP contributions,
EI insurance, and other factors. The Adjudicator reserved jurisdiction for 60
days to hear submissions on a number of matters of calculations (including the
CPP and EI deductions) as well as to hear and decide questions of
interpretation and implementation.
[4]
The
Applicant sent in his counsel’s Bill of Costs on May 7, 2006 to the Adjudicator, which was
received within the reservation period. The Adjudicator advised the parties on
May 30, 2006 that the May 7 communication did not clearly ask him to do
anything. After the reservation period, the Adjudicator received correspondence
relating to costs and to employment insurance.
[5]
The
Adjudicator advised the parties on June 15, 2006 that the time-limits on the
reservations of jurisdiction had expired and his jurisdiction in this matter
had been fully exercised.
[6]
Finally,
on August 21, 2006, the Adjudicator ordered that the employer Tribe a) pay the
complainant Larocque $25,735.28; b) pay interest at the prevailing prime rate
on 50% of the sum of $25,735.28 and c) pay 50% of Larocque’s reasonable costs
of the litigation.
[7]
Neither
party took any steps to challenge the Adjudicator’s Order.
[8]
The
Applicant filed a copy of the Adjudicator’s Order in this Court on September
26, 2006 making it an Order of this Court. He then filed a Requisition for a
Writ of Seizure and Sale and a Writ was issued on
November 22, 2006.
[9]
The
Respondent challenged the Writ on the basis that the amounts claimed were never
fixed by the Adjudicator. The Tribe argued that the lump sum was subject to the
calculation of EI overpayment, that there was no clear basis upon which to
calculate interest, and that the amount of costs had neither been assessed nor
finally determined.
[10]
Justice
Hansen quashed the Writ of Seizure and Sale on December 21, 2006 on the grounds that
there was insufficient information in the Adjudicator’s award to permit a
calculation of the amounts owing for either the interest or costs included in
the award.
[11]
The
Respondent Tribe has made no payment since the Adjudicator’s Order for the
reasons outlined in paragraph 9 herein. The Applicant took no other steps
towards enforcement since Justice Hansen’s Order.
[12]
The
situation is this: Larocque won his complaint, he was awarded payments in lieu
of reinstatement, and he was to be paid interest and half of his costs of the
complaint. Enforcement has been frustrated by the lack of precision in the Adjudicator’s
Order. Larocque’s victory has been rendered hollow to date.
III. ANALYSIS
[13]
In Bélisle
v. Entreprises de Radiodifusion de la Capitale Inc. (CHRC) (1990), 123 N.R. 149 (F.C.A.),
the Federal Court of Appeal held that the Court’s jurisdiction in respect of an
arbitrator’s award or, more aptly put, the Court’s powers to calculate amounts
under the award is very limited. The Court is not in a position to change the
award, re-determine facts, or determine the amounts awarded. However, the Court
is not merely a rubber stamp and may, as Justice Hansen held, calculate amounts
where all the necessary information is available.
[14]
The
difficulty which the Applicant faces is that the Court cannot make the
calculations necessary in this matter without better information before it.
[15]
The
Respondent takes the position that the Adjudicator is functus, a
position which the Adjudicator also seems to take. As a result, since the award
cannot be calculated because the underlying facts need to be clarified, the
Respondent takes the position that nothing can be done. It hopes to avoid the
consequences of losing the adjudication by this lacuna.
[16]
However,
it is my view that the Adjudicator is not functus until he at least
completes the task of rendering an award where the amounts awarded are clearly
stipulated.
[17]
The notion
of functus is more flexible in regard to administrative tribunals than
courts, and is more a matter of policy considerations of the need for finality
of decision. This was set forth in Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848,s in the
following paragraphs:
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.
…
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.)
[18]
While there
is no jurisprudence specifically applying Chandler to Canada Labour Code s. 242
adjudicators, there is no reason to distinguish the application of these
principles.
[19]
In a
parallel situation of an arbitrator under a collective agreement, it has been
held that until an arbitral award is clarified and capable of execution, an
arbitrator has not discharged his mandate. (Épiciers unis
Métro-Richelieu c. Syndicats des travailleurs et travailleuses des épiciers
unis Métro-Richelieu, [1997] J.Q. no 2994 (C.S.) (QL))
[20]
Finally, in Canada Post Corporation v. Canadian Union of
Postal Workers, 2001 ABQB 27, the Court held that an arbitrator appointed
under the Canada Labour Code was not functus merely by virtue of
having made an award, and had the power to clarify the consequences of his
award including the stipulating of precise numbers.
[21]
In the present case, the Adjudicator has not issued an award
capable of enforcement – a critical part of his role. Until at least that is
accomplished, the Adjudicator remains seized of the matter. He possesses all
the necessary evidence and insight to make the order enforceable. For example,
only he can clarify what he meant by the “prevailing interest rate”.
IV. CONCLUSION
[22]
Therefore, the Court will issue an Order granting the relief
claimed as described in paragraph 1(b) herein with costs in the amount of
$850.00.
ORDER
THIS COURT ORDERS that the August 21, 2006 Order
issued by C.R.B. Dunlop, an adjudicator in this matter, is returned to him with
directions to him to (a) particularize the term “prevailing prime rate”, (b)
particularize the “reasonable costs” for which the Respondent is to pay half
and (c) to issue a new Order giving effect to his Order of August 21, 2006 with
the matters particularized therein such that his Order may be enforced.
“Michael
L. Phelan”
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