Date:
20130523
Docket:
T-1847-12
Citation: 2013
FC 536
Ottawa, Ontario, May 23, 2013
PRESENT: The
Honourable Mr. Justice Hughes
BETWEEN:
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THE ASSEMBLY OF FIRST NATIONS
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Applicant
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and
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KENNETH YOUNG
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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 of an Adjudicator acting
under the provisions of Section 248 of Division XIV – Part III of the Canada
Labour Code, dated September 11, 2012; wherein the Adjudicator directed that
The Assembly of First Nations compensate Kenneth B. Young at the appropriate
rate of pay, less any severance allowance previously paid, for the period
between September 25, 2009 and March 31, 2010, as if he were terminated without
just cause under an enforceable contract of employment.
[2]
For
the reasons that follow, I will dismiss the Application with costs in favour of
the Respondent, fixed in the sum of $5,000.00.
[3]
The
Respondent Young had been employed by the Applicant, The Assembly of First
Nations (AFN), as a special advisor under a series of contracts commencing in
the year 2003. In 2009, a new group of persons came into power in the AFN and
sought to terminate the employment of certain persons, including Young. The AFN
paid Young until September 25, 2009, and took the position that his employment
terminated at that time. The matter came before an Adjudicator under the Canada
Labour Code. In a decision dated the 19th day of August, 2011, the
Adjudicator held that he had no jurisdiction to inquire into the justness of
the AFN’s decision to sever the employment relationship with Young.
[4]
Young
sought judicial review of that decision. The matter was heard by Justice
Mactavish of this Court who, in a decision dated May 16, 2012 (2012 FC 597),
allowed the application with costs, and remitted the matter to the same
adjudicator for re-determination in accordance with her reasons.
[5]
The
same Adjudicator re-determined the matter, and in the decision under review
here, determined that the AFN was to compensate Young at an appropriate rate,
less any relevance already paid, for the period between September 25, 2009 and
March 31, 2010.
[6]
There
are essentially two issues for determination in the present application. The
first is whether the Adjudicator had jurisdiction to hear and determine the
matter in the circumstances of this case. The second is whether the award is
reasonable if the Adjudicator had jurisdiction.
[7]
The
first issue required the Adjudicator to answer questions of fact and questions
of law that are not inextricably linked. As to the findings of fact, the Court
must determine if they are reasonable. As to the matters of law, the matter is
to be reviewed on the basis of correctness bearing in mind however the
determination of the Supreme Court of Canada on the Nor-Man case
reviewed later in these reasons.
[8]
The
reasons of the Adjudicator under review, dated September 11, 2012, must be read
in conjunction with the earlier reasons of the same Adjudicator dated May 16,
2012, and the findings of Justice Mactavish in her decision. I will refer to
paragraphs 24 to 28 of Justice Mactavish’s decision, where she summarizes the
finding of the Adjudicator in his May 16 reasons, and the issue that he failed
to address:
24 After reviewing all of the evidence before
him, the adjudicator found that the Executive Committee had not made Mr. Young
an indeterminate employee of the AFN. However, the adjudicator found as a fact
that the Executive Committee had resolved to extend the term of Mr. Young's
employment contract to the end of the fiscal year, that is, to March 31, 2010.
25 Mr. Young does not now take issue with the
adjudicator's finding that he was at all times subject to fixed-term contracts
of employment. However, he says that having found that his contract of
employment had been extended to March 31, 2010, the adjudicator erred in
failing to find that he had been unjustly dismissed by the termination of his
employment effective September 25, 2009.
26 I agree with Mr. Young that the adjudicator
erred in his analysis of the preliminary issue of whether Mr. Young was in fact
"dismissed".
27 It appears from the introductory paragraphs
of the adjudicator's reasons that he accepted that Mr. Young's contract expired
on September 25, 2009, although his finding on this point is far from clear. At
the same time, the adjudicator found as a fact that the term of Mr. Young's
employment contract had been extended to March 31, 2010 by the Executive
Committee of the AFN's Board of Directors at the July 19, 2009 meeting.
28 Having concluded that the Executive Committee
had resolved to extend the term of Mr. Young's employment contract until March
31, 2010, the adjudicator never addressed the effect that the resolution itself
had on the AFN's obligations to Mr. Young.
[9]
The
basis upon which Justice Mactavish set aside the Adjudicator’s decision and
sent it back for re-determination is set out at paragraphs 32 to 35 of her
reasons:
32 I am also concerned with the adjudicator's
statement that because Mr. Young was always employed under fixed-term
employment contracts, the adjudicator therefore had "no jurisdiction to
inquire into the justness of the employer's decision to sever the employment
relationship".
33 Access to the Canada Labour Code adjudication
process is not limited to indeterminate employees who believe they have been
unjustly dismissed. It is also available to individuals employed under
fixed-term contracts, as long as they meet the statutory requirements in the
Code, including the requirements that they have completed twelve consecutive
months of continuous employment with the employer and are not governed by a
collective agreement.
34 However, before determining whether a
dismissal is "unjust" under section 240 of the Code, the adjudicator
must first be satisfied that there was in fact a "dismissal" within
the meaning of that section. As was noted earlier, there will be no
"dismissal" for the purposes of a section 240 complaint where an
employer simply does not renew a contract for a fixed term of employment.
35 The crucial question for the adjudicator was
whether Mr. Young was "dismissed" or whether the term of his
employment contract had expired and was not renewed. The answer to this
question required the adjudicator to make a finding in clear and unmistakable
terms as to when Mr. Young's contract of employment was to expire. This he
failed to do.
[10]
The
Adjudicator, having re-determined the matter, summarized his findings made in
the first decision in the second paragraph of his reasons, then set out the
issue that he was required to address in the third paragraph. I repeat those
paragraphs:
At issue with respect to Mr.
Young’s future job security and on-going employment tenure, was the implication
that should be drawn from The Resolution made by the outgoing Board of
Directors at its meeting of July 19, 2009. At that meeting, Mr. Young and his
supporters insisted that he had been extended in a timely way permanent,
indeterminate employment and, as such, his termination letter dated September
15, 2009 was without just cause. I disagreed with that conclusion
notwithstanding the employer’s concession acknowledging there was lacking just
cause for his termination. I held I was simply powerless to do anything about
it. What I also found, was that the Board at the July 19th meeting
resolved to provide M r. Young with a third extension since the expiry of his
last one year contract that was scheduled to terminate at the end of the AFN’s
fiscal year on March 31, 2010. Moreover, it appeared that at no time did Mr.
R. Jock, interim chief executive officer or any other member of management,
albeit aware of the Board’s Resolution as early as July 28, 2009 see fit to
tender to Mr. Young an offer of employment in accordance with the Board’s
directive authorizing him to do so. Nor was Mr. Jock called as a witness to
these proceedings, having regard to his central role, with a view to providing
an explanation as to why this relatively straight forward administrative task
could not be carried out. Similar extensions had occurred on two previous
occasions without controversy.
It was my mistaken impression
that once the jurisdictional issue was resolved against Mr. Young, my mandate
was spent. And it would appear that nothing in the Federal Court’s decision
disturbed the central finding indicating that Mr. Young was lacking
indeterminate employment status. Nonetheless, I continued to be bothered by the
employer’s failure to implement the “outgoing” Board’s resolution and the
absence of any explanation from Mr. Jock about his alleged “oversight” in
complying with the Board’s directive. I thereby, perhaps imprudently, recommend
that the employer compensate Mr. Young for this perceived injustice covering
the period of the Board’s notional extension.
[11]
The
Adjudicator reviewed the evidence, including a resolution passed by the AFN
Board of Directors on July 19, 2009 to the effect that Young’s employment be
extended to March 31, 2010, and Mr. Jock’s (the Acting Chief) letters to Young
stating that his employment was extended to August 28, 2009 and September 25,
2009. Jock apparently knew of the resolution and chose to ignore it. We do not
know what his motivations were; he never appeared as a witness. The Adjudicator
set out his findings in respect of this evidence starting at page 3 of his
reasons:
It is clear from the documentary evidence that Mr.
Jock in his capacity as interim chief executive officer (ceo) of the AFN was
fully cognizant of the Board of Director’s July 19th Resolution and
its unambiguous directive authorizing him to enter into a third extension to
Mr. Young’s contract of employment. On July 28, 2009, he was advised by Mr. Bob
Watts, the outgoing ceo, by e-mail of the Board’s decision and its
recommendation for its immediate implementation.
. . .
More importantly, Mr. Jock was clearly
aware of both the Board’s Resolution and its recommendation when he met with
Mr. Young prior to the latter’s termination on September 15, 2009. At that
time, Mr. Young challenged Mr. Jock to implement, in accordance with his
erroneous understanding, the Board’s directive making him an indeterminate
employee. Mr. Young testified that Mr. Jock responded by asserting he had “no
written proof” of the Resolution and thereby dismissed his request. He did not
correct Mr. Young’s mistaken information by telling him that the Board only
authorized a temporary extension until the end of the fiscal year. Indeed, I am
entitled to infer that Mr. Jock remained silent with the deliberate intention
of thwarting the Board’s intentions. At that meeting, he could have easily
performed the administrative task of tendering an offer of employment as the
Board directed him to do. And it is clear from the documentary records that on
the two previous occasions when Mr. Young was offered an extension he was
disposed to accept them. To state there was lacking a contract of employment
after September 25, 2009, as the employer argued, is therefore to state the
obvious.
The question therefore arises as to
whether Mr. Jock was acting in good faith when full disclosure of the Board’s
intentions was known to him and he purposely defied its directive for
implementation. Indeed, it might very well be inferred that Mr. Jock was
insubordinate in failing to carry out the Board’s directive to implement the extension.
[12]
He
concluded reasons at page 6, where he wrote:
It is also worth recalling the
evidence of Mr. Phil Fontaine when he described the reasons that prompted him
to initiate the steps that culminated in the July 19th Resolution.
He anticipated that after his departure, Mr. Young “would not be treated fairly
or justly or with respect” regarding his future job security. And in this
regard, the employer’s strategy that has been described to deliberately thwart
the Board’s Resolution has demonstrated that Mr. Fontaine’s prediction to be
prophetic. Accordingly, I have discerned from the overall record of these
proceedings (including Mr. Jock’s absence as a witness) that these facts simply
deserve a remedy.
I have therefore decided, on
equitable grounds, that it is well within my remedial authority to restrain and
“estopp” the employer or its servants from denying the existence of an
enforceable employment contract, arising from the Resolution of July 19th,
where the exercise of good faith and alacrity might have ensured its existence.
It simply does not lie in the mouth of the employer to rely on the absence of a
binding employment contract extending Mr. Young’s tenure after September 25,
2009 where deliberate steps were taken to undermine any prospect of its ever
coming to fruition. In this matter, the efforts of the outgoing Board (which in
my view constituted an expression of political compromise) to be fair and just
in its treatment of Mr. Young will have been vindicated.
Accordingly, the employer is directed
to compensate Mr. Young at the appropriate rate of pay (less any severance
allowance that has hitherto been paid) for the period between September 25,
2009 and March 31, 2010 as if he were terminated without just cause under an
enforceable contract of employment. Any order for reinstatement would be
notionally superfluous. I shall remain seized.
[13]
From
those reasons, I conclude that the Adjudicator found that, notwithstanding that
there was no written agreement between the parties extending the term of Mr.
Young’s employment, and notwithstanding Jock’s misleading letters falsely
stating that Young’s employment has been extended only to September 25, 2009,
there was an equitable arrangement between the AFN and Young that Young’s
employment would be extended to March 31, 2010, and that the AFN was in a
position whereby it could not deny that Young’s employment had been extended to
that date.
[14]
A
similar situation came before the Supreme Court of Canada in Nor-Man
Regional Health Authority Inc v Manitoba Association of Health Care
Professionals, [2011] 3 S.C.R. 616, 2011 SCC 59, with Fish J writing the
unanimous reasons for judgment of the Court. At paragraphs 5 and 6, the Court
pointed out that the labour arbitrators are not legally bound to apply
equitable and common law principles. They have a broad mandate so long as they
act reasonably.
5 Labour arbitrators are not legally bound to
apply equitable and common law principles -- including estoppel -- in the same
manner as courts of law. Theirs is a different mission, informed by the
particular context of labour relations.
6 To assist them in the pursuit of that mission,
arbitrators are given a broad mandate in adapting the legal principles they
find relevant to the grievances of which they are seized. They must, of course,
exercise that mandate reasonably, in a manner that is consistent with the
objectives and purposes of the statutory scheme, the principles of labour
relations, the nature of the collective bargaining process, and the factual
matrix of the grievance.
[15]
In
the present case, the Adjudicator found that under equitable principles, the
AFN could not deny that Young’s contract extended to March 31, 2010. The AFN’s
Counsel argued before me that the letters from Jock stated that the employment
extended only to September 25, 2009, and that in law, those were the only
binding agreements. Therefore, the Adjudicator had no jurisdiction beyond that
date. Fish J in Nor-Man states why this argument is inappropriate. The
Adjudicator’s findings as to “true” jurisdiction based on principles of equity
are to be reviewed on a basis of reasonableness. He wrote at paragraphs 35 and
36:
35 An administrative tribunal's decision will be
reviewable for correctness if it raises a constitutional issue, a question of
"general law 'that is both of central importance to the legal system as a
whole and outside the adjudicator's specialized area of expertise'", or a
"true question of jurisdiction or vires". It will be reviewable for
correctness as well if it involves the drawing of jurisdictional lines between
two or more competing specialized tribunals (Dunsmuir, at paras. 58-61; Smith,
at para. 26; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R.
77 ("Toronto (City)"), at para. 62, per LeBel J.).
36 The standard of reasonableness, on the other
hand, normally prevails where the tribunal's decision raises issues of fact,
discretion or policy; involves inextricably intertwined legal and factual
issues; or relates to the interpretation of the tribunal's enabling (or
"home") statute or "statutes closely connected to its function,
with which it will have particular familiarity" (Dunsmuir, at paras. 51
and 53-54; Smith, at para. 26).
[16]
At
paragraphs 44 to 46 he wrote:
44 Common law and equitable doctrines emanate
from the courts. But it hardly follows that arbitrators lack either the legal
authority or the expertise required to adapt and apply them in a manner more
appropriate to the arbitration of disputes and grievances in a labour relations
context.
45 On the contrary, labour arbitrators are
authorized by their broad statutory and contractual mandates -- and well
equipped by their expertise -- to adapt the legal and equitable doctrines they
find relevant within the contained sphere of arbitral creativity. To this end,
they may properly develop doctrines and fashion remedies appropriate in their
field, drawing inspiration from general legal principles, the objectives and
purposes of the statutory scheme, the principles of labour relations, the nature
of the collective bargaining process, and the factual matrix of the grievances
of which they are seized.
46 This flows from the broad grant of authority
vested in labour arbitrators by collective agreements and by statutes such as
the LRA, which governs here. Pursuant to s. 121 of the LRA, for example,
arbitrators and arbitration boards must consider not only the collective
agreement but also "the real substance of the matter in dispute between
the parties". They are "not bound by a strict legal interpretation of
the matter in dispute". And their awards "provide a final and
conclusive settlement of the matter submitted to arbitration".
[17]
I
analogize the present case to that considered by the Supreme Court in Nor-Man.
[18]
It
is agreed that the Adjudicator’s jurisdiction does not extend to employees who
lose their employment as a result of the expiry of their term of contract.
Justice Mactavish in Stirbys v The Assembly of First Nations, 2011 FC 42
wrote at paragraph 2 of her reasons.
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.).
[19]
However,
in the present case, in a broad application of equitable principles, the
Adjudicator found on the facts of this case that the term of the contract did
not expire until March 31, 2010. This is a factual finding the result of which
extends the jurisdiction of the Adjudicator at least to March 31, 2010. Whether
one looks at the decision from either the basis of correctness or
reasonableness, the decision of the Adjudicator to assume jurisdiction should
not be set aside.
[20]
I
come to the second issue: Was the award of compensation reasonable? Given that
the Adjudicator had jurisdiction, no party argued before me that the award was
not reasonable. I so find, in any event.
[21]
In
conclusion, I find no basis for setting aside the Adjudicator’s decision of
September 11, 2012. The Respondent is entitled to costs. Having heard
submissions of Counsel, I fix those costs at $5,000.00.
JUDGMENT
FOR
THE REASONS PROVIDED:
THIS
COURT’S JUDGMENT is that:
1.
The
application is dismissed; and
2.
The
Respondent is entitled to costs to be paid by the Applicant, fixed in the sum
of $5,000.00.
“Roger T. Hughes”
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