Date:
20130506
Docket:
T-627-12
Citation:
2013 FC 474
Ottawa, Ontario,
May 6, 2013
PRESENT: The
Honourable Mr. Justice Rennie
BETWEEN:
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BLAINE BELLEAU
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Applicant
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and
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GARDEN RIVER FIRST
NATION
CHIEF AND COUNCIL
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review of a resolution of the Chief and Council
of the Garden River First Nation on February 28, 2012. By that resolution the
Band adopted a severance pay policy for full-time employees in respect of their
employment prior to 1997. The applicant contends that this decision
effectively deprived him of severance pay of two weeks pay for each year of
service from 1976 until his retirement in 2011. The applicant further contends
that this decision was made in breach of the principles of procedural fairness
and ought to be set aside. For the reasons that follow this application is
dismissed.
Background
[2]
The
applicant has been a full-time employee with the respondent Band since December
of 1976. There is no employment contract. In 1997 the Band registered a
mandatory pension plan for its employees. Prior to that date there was only a
non-registered, optional plan with minimal and intermittent contributions.
[3]
In
2004, the Chief and Council passed a motion to offer “a one time
retirement incentive” (emphasis in the original) of two weeks pay for every
year of employment to reduce the Band’s deficit. The offer was open for 90
days and limited to employees with ten years service. The motion indicated
that up to 10 employees would be in a position to accept the offer. The
applicant was a member of the Council at that time and supported the motion.
[4]
Early
retirement incentives were again offered in 2006 and 2010. The 2006 offer was
open for 30 days and was also limited to employees with ten years service. The
2010 retirement incentive was offered to eight employees with five years
service and was open for 3 days. The latter motion stated that, “Failure to
provide written agreement by October 15th, 2010 will make this offer
null and void.” Again, the applicant supported both motions in his capacity as
a councillor.
[5]
On
October 20, 2011, the applicant gave notice of his intention to resign,
effective November 4, 2011. He expected that he would receive two weeks pay
for each year of his employment since 1976 in accordance with what he contends
other employees had received and consistent with the 2004, 2006 and 2010
packages. He was disappointed when this was not forthcoming.
[6]
On
November 23, 2010, the Chief and Council adopted a Human Resources and
Procedures Policy (the HRPP). The HRPP provided for the creation of a Human
Resources and Appeals Committee to review issues and make recommendations with
respect to all aspects of the employment relationship to the Chief and Council,
including compensation. The HRPP also established procedures for hearing
submissions of interested parties and a right of appeal to Council. The
applicant was a councillor at this time as well and signed the motion.
[7]
The
HRPP also addressed transition to retirement, allowing employees to work
half-time for two years prior to retirement. The HRPP makes no provision for
severance pay, an omission which the applicant contends effectively eliminated an
existing entitlement to two weeks severance pay per year of service.
[8]
In
accordance with the HRPP, the Band administration advised the applicant to take
his concern to the Human Resources and Appeals Committee. The applicant
attended the hearing on January 18, 2012 and made his presentation. He
concedes that it was a full and fair hearing.
[9]
The
Committee determined that there was no current severance or post-employment
benefits plan in place (other than the registered pension) and therefore no
authority to pay him severance pay. Nevertheless the Committee determined,
based on his representations, that there was a lacunae in respect of
pre-1997 employment. The Committee decided that it would recommend a policy be
established to benefit the applicant and others who began their employment
prior to 1997, as they had neither severance pay nor pensionable service for
those years.
[10]
On
January 19, 2011, the day following the Appeals Committee hearing, the
Committee Chairperson wrote the applicant a letter informing the applicant that
the Committee would recommend to Chief and Council a policy which would provide
two weeks pay for every year of service prior to the registration of the
pension plan, entitling the applicant to approximately 42 weeks at his current
rate of pay. The policy would be retroactive to November 1, 2011 in order to
make it applicable to the applicant, having resigned effective November 4, 2011.
The letter stated that if the applicant did not accept this he could, pursuant to
the procedure set forth in the HRPP, appeal to the Chief and Council.
[11]
On
January 23, 2011, the applicant wrote a letter to the Committee asking that the
Committee process the decision to provide two weeks pay for every year of
service prior to the 1997 pension plan, entitling him to 42 weeks pay.
[12]
The
applicant states in his affidavit that he “did not disagree” with the
Committee’s decision that without a change in policy it was obligated to deny
him the severance payment he expected. Therefore he did not appeal the
Committee’s decision to the Chief and Council nor did he participate in
Council’s consideration of the Committee recommendation.
[13]
On
February 28, 2012 at the Band Council meeting, the Chief and Council accepted
the Committee’s recommendation to offer severance pay for full-time employees
who met certain criteria and had been continuously employed since before 1997.
Those employees would be entitled to two weeks pay at their current rate for
every continuous year of service prior to 1997. This policy also required that
employees sign a full and final release upon payment.
[14]
In
a letter dated March 21, 2012, the Band administration informed the applicant
that the new retirement policy had been approved by the Chief and Council and
that he was entitled to payment for the equivalent of 38 weeks. However, as he
had chosen not to sign the release form, the Band would not release the
cheque. The applicant was advised that he could receive the cheque if he
signed the release.
[15]
The
decision of Chief and Council is in contrast with the early retirement
incentives from 2004, 2006 and 2010 which provided two weeks pay for every
year of service up to retirement. It is for this reason that the applicant
considers himself to be aggrieved by the procedure. He contends that the
decision to limit severance to the years of service prior to 1997 breached both
his rights to procedural fairness and was inconsistent with the existing policy
reflected in the early-retirement incentives.
Issue
[16]
A
Band council must provide procedural fairness to those whose rights or
interests are directly affected by its decisions. Therefore, there are two issues
for this judicial review: whether the impugned motion affects the applicant’s pre-existing
terms and conditions of employment, and if so, whether the applicant was
afforded procedural fairness.
Discussion
[17]
The
applicant contends that the decision of the Chief and Council on February 28,
2012 eliminated a pre-existing entitlement to severance pay for every year of
service. This is at the core of his application. The applicant says that the
decision of the Council on February 28, 2012 amounted to a unilateral amendment
to the terms and conditions of employment, and that it was made without regard
to procedural fairness.
[18]
The
applicant expected to receive the same retirement package that had been offered
to other employees who began work before 1997. He contends that the 2004, 2006
and 2010 severance policies are reflective of the existing policy or terms and
conditions of employment. However, the evidence demonstrates that there was no
general policy of providing the equivalent of two weeks pay for every year of
service upon an employee’s retirement.
[19]
The
evidence was in fact to the contrary. The prior offers of severance pay do not
have the characteristics of a long-standing policy of the Band. Each of the
three prior early retirement incentives was time limited and targeted a
discrete number of employees. The evidence indicates that the objective of
each of the three motions in question was to address budgetary deficits in the
Band’s finances, and not to address transition to post-employment life, as does
severance pay. Additionally, the 2004, 2006 and 2010 motions do not have the
character of other instruments of Band policy, such as the HRPP or the February
28, 2012 decision, which, in contrast, are not time limited, are generic in
their language and do not contemplate specific individuals. The 2004 motion is
described as a “one time” package; the 2006 motion was entitled “Early Retirement
Incentive” and the 2010 motion was described as “Deficit Recovery – Exit
Packages”.
[20]
There
is no question that the applicant’s retirement brought into focus the need for
a policy to address post employment transition for individuals who were
employees before the introduction of the pension plan in 1997. However, the
applicant has failed to establish an evidentiary foundation for his claim. No
policy has been identified, nor documents produced, which support the view that
there was a policy, let alone a practice of paying severance for all employees
for each year of service which could be said to be a policy. The sole evidence
of a pre-existing policy is a vague reference to the applicant’s sister having
received two weeks salary for all years of employment.
[21]
The
evidence of Christine Whiskeychan, Finance Manager of the Garden River First
Nation points, unequivocally, in the opposite direction. Ms. Whiskeychan
states that it is “untrue” that each and every employee hired before 1997
automatically received severance pay and pension benefits for all years of
service, including the years after 1997. Ms. Whiskeychan also describes the
purpose of the 2004, 2006 and 2010 motions as being to address short-term
financial challenges for the Band.
[22]
In
sum, the application fails on the foundational evidentiary question. Neither a
policy nor practice to pay severance for all employees has been established. There
is no documentary evidence which supports the assertion that the HRPP abolished
a pre-existing entitlement to two weeks of severance pay for every year
worked. This finding characterizes the nature and extent to which procedural
fairness is required.
[23]
In
accordance with the established policy, the Band provided the applicant with a
hearing before the Human Resources and Appeals Committee on January 18, 2012.
The applicant accepts that this meeting was fair and that he had a full
opportunity to participate. The Committee notified him that its recommendation
would be brought to the Council and informed him of his right to appeal to the
Council if he disagreed with the recommendation. He did not do so, indicating
that he accepted the Committee’s recommendation.
[24]
It
is important to note, therefore, that the applicant forwent the opportunity of
appearing before Council and making representations.
[25]
The
focus of the Court’s analysis where procedural fairness is engaged is not
whether the decision is correct, but whether the procedure followed was fair in
the circumstances and whether the outcome reasonable when situated in the legal
and factual context: Shotclose v Stoney First Nation, 2011
FC 750; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12,
[2009] 1 S.C.R. 339. As Justice Rothstein (now of the Supreme Court of Canada)
said in Sparvier v Cowessess Indian Band, [1993] 3 FC 142, para 47:
While I accept the importance of
an autonomous process for electing band governments, in my opinion, minimum
standards of natural justice or procedural fairness must be met. I fully
recognize that the political movement of Aboriginal People taking more control
over their lives should not be quickly interfered with by the courts. However,
members of bands are individuals who, in my opinion, are entitled to due
process and procedural fairness in procedures of tribunals that affect them. To
the extent that this Court has jurisdiction, the principles of natural justice
and procedural fairness are to be applied.
[26]
In
sum, as Justice Gauthier observed in Orr v Fort McKay First Nation, 2011
FC 37, it is a well entrenched proposition of law that these principles apply
to administrative decisions of a band.
[27]
The
decision cannot be impugned on the basis of procedural fairness. The applicant
received clear, consistent and complete notice of the hearings. He had two
opportunities to make his case that he should receive two weeks pay for each
year of service. He chose not to avail himself of the appeal to the Chief and
Council, whose responsibility it was to make the final decision. There is no
breach of procedural fairness. I find that the applicant received all that
might be expected by way of notice and an opportunity to be heard.
[28]
In
assessing the reasonableness of the decision, Band decisions should be given
deference: News
v Wahta Mohawks, 2000 FCJ 637 and in this case, where the
policy decision taken by the Band effectively granted benefits where none previously
existed, it is very difficult to impugn the reasonableness of the policy.
Moreover, the policy was made retroactive, so as to extend to the applicant.
[29]
To
conclude, I note that there is some discrepancy in calculating the applicant’s
entitlement under the new retirement policy. The Committee estimated that he
would receive approximately 42 weeks pay, whereas he was ultimately offered 38
weeks. There is no evidence before this Court which could resolve this
discrepancy. However, the calculation of the applicant’s specific entitlement
is not the matter under review. Should the parties wish the assistance of the
Court in resolving this matter, they may contact the Registrar.
[30]
The
application for judicial review is dismissed.
JUDGMENT
THIS
COURT’S JUDGMENT is that the application for judicial review is
dismissed. Submissions
on costs are due ten days from the date of this decision.
"Donald J.
Rennie"
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