Docket: T-1609-15
Citation:
2016 FC 614
Ottawa, Ontario, June 1, 2016
PRESENT: The
Honourable Mr. Justice Manson
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BETWEEN:
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INTER TRIBAL
HEALTH AUTHORITY
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Applicant
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and
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WILLIAM J.
SINCLAIR
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review by
Inter Tribal Health Authority [ITHA] challenging the decision of an Adjudicator
appointed under section 242 of the Canada Labour Code, RSC 1985, c L-2
[the Code] to accept the Respondent’s withdrawal of his complaint that he had
been unjustly dismissed from his employment with ITHA.
I.
Background
[2]
The Respondent, Mr. William Sinclair, filed a
complaint under section 240 of the Code alleging that his dismissal from his
employment as a Community Support Worker Development Coordinator with the
Applicant, ITHA, on August 19, 2011, was without cause [the Complaint].
[3]
The Complaint was referred under section 242 to
Joseph B. Martin [the Adjudicator] in mid-2012. Following approximately seven
days of hearings that took place over the span of a year, Counsel for the
parties were invited to provide submissions and further reply. By August 2014,
the Adjudicator had all material necessary to render a decision.
[4]
Approximately nine months later, in May 2015,
the Applicant contacted the Adjudicator to inquire when the parties might
expect a decision. In response, the Adjudicator advised that his judgment had
been delayed due to vacation absence, illness and competing professional
obligations, but that he expected to have a decision within thirty days.
[5]
Over two months later, on July 13, 2015, the
Respondent, through Counsel, emailed the Adjudicator asking if the parties
could expect a decision shortly, to which the Adjudicator replied “You will be advised”.
[6]
The following day, the Respondent withdrew the Complaint.
The withdrawal letter states that pursuant to McKeown v Royal Bank,
[2001] 3 FCR 139 [McKeown], the Adjudicator no longer had jurisdiction
to issue any rulings on this matter. The Respondent had been patiently awaiting
a decision for over nine months, and after waiting another 30 days beyond when
the Adjudicator stated his decision would be rendered, the Respondent “decided
to give up waiting” and would be pursuing the case in court.
[7]
The Adjudicator responded, noting that a
determination on the merits was made some time ago, but that his reasons needed
to be amplified given a decision of the Federal Court of Appeal rendered in
January 2015, six months prior.
[8]
By letter dated July 17, 2015, to both parties,
the Adjudicator inquired whether the Applicant would be opposing the
Respondent’s withdrawal through a motion requesting that he proceed and render
a decision. The letter states:
I will await hearing from Ms. Lanine
[Applicant’s Counsel] on the issue of whether I have lost jurisdiction by virtue
of the withdrawal and am therefore functus officio. If she will not oppose the
withdrawal, that will end my involvement. If she does, I will set the matter
down on motion for submissions.
[9]
On August 3, 2015, the Respondent informed the
Applicant that, absent settlement, the Respondent would be making a claim in
the British Columbia Supreme Court.
[10]
That day, the Applicant wrote to the Adjudicator
to oppose the Respondent’s withdrawal of the Complaint. The letter emphasized
that a re-hearing of the Complaint in Court would incur significant costs and
time, particularly where the Adjudicator had already made a determination on
the merits.
[11]
Without setting the matter down on motion for
submissions, on August 24, 2015, the Adjudicator sent a letter to the parties,
conveying that upon further review of the McKeown decision: (i) he did
not have jurisdiction to hear submissions on the issue of whether the
Respondent may withdraw a complaint; (ii) he is functus officio; and
(iii) is unable to make any further ruling or other pronouncement in the
matter.
II.
Issues
[12]
The issues are:
- Whether an
adjudicator appointed under section 242 of the Code loses jurisdiction if a
complainant withdraws his or her complaint.
- If the
Adjudicator did not lose jurisdiction following withdrawal:
- did the
Adjudicator deny the Applicant its right to procedural fairness; and
- did the
Adjudicator err in accepting the withdrawal of the Complaint?
III.
Standard of Review
[13]
Though the Applicant claims the first issue is
jurisdictional, and thus is to be reviewed on a standard of correctness, I note
that the Supreme Court has expressed serious reservations about the existence
of true jurisdictional issues: they are narrow and will be exceptional (ATA
v Alberta (Information & Privacy Commissioner), 2011 SCC 61 at paras 33-41
[ATA]).
[14]
The decision under review involves the Adjudicator’s
interpretation of whether he has jurisdiction pursuant to his home statute and
in consideration of applicable case law. The standard of review to be applied
is reasonableness: this issue does not involve a question of law of importance
to the legal system as a whole that falls outside the decision-maker’s specialized
expertise, and the Applicant has not rebutted the presumption in ATA, above,
at paras 39-41, by demonstrating that this situation falls within the
exceptional circumstances warranting correctness review. Moreover, this
conclusion is supported by the Supreme Court’s decision in MAHCP v Nor-Man
Regional Health Authority Inc, 2011 SCC 59 at paras 31, 38, 44-45, where the
Court determined that the reasonableness standard is appropriate in reviewing a
decision where an arbitrator applies or adapts, for example, common law
concepts emanating from the courts. Though this decision is in the context of
adjudication, not arbitration, the justifications for deference are the same. However,
this case does not turn on the standard of review, and I find that whether
reviewed on a correctness or reasonableness standard, the outcome would be the
same.
[15]
Issues of natural justice and procedural
fairness are reviewed on a standard of correctness.
IV.
Analysis
A.
Did the Adjudicator have jurisdiction to hear
submissions on the issue of withdrawal, or to prevent the Respondent from
withdrawing his Complaint?
[16]
The Applicant asserts the Adjudicator erred in
determining he did not have jurisdiction to receive submissions in relation to
the Respondent’s withdrawal of the Complaint. The Applicant submits the
Adjudicator was required to determine whether he had either an express grant of
jurisdiction under the Code, or an implicit grant of jurisdiction under the
common law doctrine of jurisdiction by necessary implication to hear
submissions in relation to withdrawal of the Complaint (ATCO Gas &
Pipelines Ltd v Alberta (Energy & Utilities Board), 2006 SCC 4 at para
38 [ATCO]).
[17]
Further, the Applicant claims there is no
evidence in the Adjudicator’s reasons that he considered the ordinary meaning
of the governing provisions, the context, or the intent of the Code in coming
to his conclusion (ATCO, above, at paras 41, 48 and 49).
[18]
Subsection 242(2)(b) of the Code states that an
adjudicator to whom a complaint has been referred may determine the procedure, “but shall give full opportunity to the parties to the
complaint to present evidence and make submissions to the adjudicator and shall
consider the information relating to the complaint.”
[19]
According to the Applicant, although this
provision grants the Adjudicator clear authority to master his proceedings –
including the procedures to be followed in determining whether a complaint may
be withdrawn – it also mandates that he permit the Applicant to make
submissions prior to concluding he lacked jurisdiction.
[20]
The Applicant argues that to apply the decision
in McKeown, above, to the case at hand, as relied upon by the Respondent,
is not only inconsistent with the object and remedial nature of the Code, but
produces the following absurd and prejudicial results that run contrary to the
doctrine of issue estoppel and promote waste, duplication and forum shopping,
without regard to delay or fairness to both parties:
- the Applicant
would be subjected to re-litigation in a civil proceeding of a matter that
has been heard in full and upon which the Adjudicator has already made a
decision;
- the Applicant
will be forced to expend substantial funds to defend itself in
relitigation;
- four and half
years have passed since the Respondent’s termination, and the Applicant
will be prejudiced by the loss of key witnesses;
- the Respondent would
not be prejudiced by having to complete the process under the Code, as the
Code does not require him to withdraw the Complaint prior to filing a
civil suit (section 246(1));
- the Applicant
was denied the right to make submissions or present evidence on the
Respondent’s improper motivation for withdrawal; and
- having the
opportunity to make submissions on this matter would have allowed the
Applicant to distinguish McKeown, as in that case, the withdrawal
arose in the midst of the proceeding.
[21]
Effectively, the Applicant takes the position
that Parliament cannot have intended to allow the process prescribed under the
Code to be circumvented by a complainant’s unilateral withdrawal, particularly
at a late stage where all submissions have been made and the parties are awaiting
the Adjudicator’s decision.
[22]
The Respondent submits that given the decision
in McKeown, above, the Adjudicator’s decision to decline jurisdiction
was correct and not unreasonable. Particularly considering the further delay
with no decision of the Adjudicator, notwithstanding repeated requests it be
rendered. Moreover, there was no evidence that the Adjudicator had made a
decision at the time the Complaint was withdrawn, and the Respondent argues unless
and until the Adjudicator published his decision to the parties, there is no
decision on the merits.
[23]
McKeown, above, like
the present case, concerned a complaint of unjust dismissal made by a Bank
employee under Part III of the Code. Justice O’Keefe of the Federal Court
determined that the foundation of the Adjudicator’s ability to decide the
matter was removed upon withdrawal because his jurisdiction was triggered by
the complaint. At paragraph 31, Justice O’Keefe wrote:
31 I agree that with the withdrawal of the
complaint the "foundation for the tribunal to continue was gone".
Pursuant to subsections 242(1) and (2) of the Act, the task of the adjudicator
is to "hear and adjudicate on the complaint". By virtue of the
applicant's letter to the adjudicator, the complaint is gone. He no longer has
anything to hear and adjudicate. The only authority the adjudicator had was
given to him by statute. I am of the view that once the applicant withdrew her
complaint, the adjudicator had no jurisdiction to proceed any further. I find
that his decision to refuse to allow the applicant to withdraw her application
was not only a patently unreasonable decision, but it was a decision made
without jurisdiction. The decision of the adjudicator must therefore be
quashed.
[24]
In my view, to resolve the issue of whether the
Adjudicator had jurisdiction to hear submissions on the issue of withdrawal, it
is first necessary to determine whether the Adjudicator is provided authority
under the Code to refuse the unilateral withdrawal of the Complaint. The
Applicant’s ability to make submissions opposing withdrawal would be
meaningless if the Adjudicator loses jurisdiction in relation to a complaint,
once it has been properly withdrawn.
[25]
Division XIV of Part III of the Code provides
the statutory basis for the adjudication of unjust dismissal complaints of
employees not subject to collective agreements. It also defines the limits of
the Adjudicator’s jurisdiction in relation to a complaint.
[26]
Subsection 242(1) provides that:
The Minister may, on receipt of a report
pursuant to subsection 241(3), appoint any person that the Minister considers
appropriate as an adjudicator to hear and adjudicate on the complaint in
respect of which the report was made, and refer the complaint to the
adjudicator along with any statement provided pursuant to subsection 241(1)
[Emphasis added]
[27]
This provision indicates that the Adjudicator’s
authority derives from his appointment by the Minister in respect of a
particular complaint.
[28]
Subsection 242(2) provides that an adjudicator
to whom a complaint has been referred has authority and exclusive jurisdiction
over evidence and procedure in the arbitration process. An adjudicator:
(b) shall determine the procedure to be
followed, but shall give full opportunity to the parties to the complaint to
present evidence and make submissions to the adjudicator and shall consider the
information relating to the complaint.
[29]
The Code is entirely silent on the issue of
withdrawal of a complaint, and does not explicitly convey whether or not the Adjudicator’s
broad discretion to control its procedure confers on the Adjudicator the power
to disallow unilateral withdrawal of the Complaint.
[30]
In the absence of express direction in the
legislation on withdrawal, the Court must look to the object of the Act and the
intention of Parliament. In Beothuk Data Systems Ltd, Seawatch Division v
Dean, [1997] FCJ No 1117 at paras 33-35, the Federal Court of Appeal
analysed the objective of the unjust dismissal provisions under Part III,
Division XIV of the Code as affording non-organized workers under federal
jurisdiction an avenue for redress against unjust dismissal similar to that
enjoyed by unionized workers under collective agreements. Moreover, the overall
purpose of the Act is to make benefits available to the unemployed (also see Société
Radio-Canada c Coderre, 2004 FC 639 at paras 14-16). The Applicant concedes
this is the Code’s objective.
[31]
The Code’s underlying remedial object ought to
inform its interpretation, and in my view justifies the resolution of
ambiguities in favour of the complainant. In the absence of direction on the
issue of withdrawal, the Respondent, who initiated the Complaint, is entitled
to withdraw the Complaint by providing proper notice to the Adjudicator and
ensuring affected parties are notified. Once he has done so, the Adjudicator’s
jurisdiction to act in this matter has been exhausted, as under section 242,
the Complaint’s continued existence is a condition precedent for the
Adjudicator’s authority in relation to a complaint.
[32]
While I share the Applicant’s concerns over the
potential for relitigation, duplicitous processes and forum shopping that could
ensue by permitting a complainant to withdraw at advanced stages of an
arbitration proceeding, the Court’s role in this instance is to interpret the
Code, and not to read into it words and meaning that simply are not there. If
there is a problem in the ambiguity or void created by the language of the Code
relating to the ability and timing to withdraw a complaint, that language
should be corrected by legislative amendment. Moreover, issues of estoppel, forum
shopping and abuse of process raised by the Applicant are matters that appear
to more properly be resolved by the British Columbia Supreme Court, if the
Respondent proceeds with that litigation.
[33]
While the Adjudicator should not have promised
the Applicant an opportunity to make submissions, which he later determined he
could not follow through with, the Adjudicator correctly and reasonably
concluded he was without jurisdiction to issue further orders in relation to
the Complaint. This is because the Complaint ceased to exist upon the
Respondent’s withdrawing it. Any order made by the Adjudicator after such
withdrawal, including whether to receive submissions or not, would have been
void as he lacked any jurisdiction to do so.
[34]
Given my above finding, there is no need to
assess arguments of procedural fairness.
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