Date: 20000511
Docket: A-532-97
(T-1070-94)
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
GEORGE PAYIAPPILY
Appellant
(Applicant)
- and -
ROGERS CANTEL INC. and
DONALD E. FRANKS
Respondents
(Respondents)
Heard at Toronto, Ontario, Thursday, May 11, 2000
Judgment delivered from the Bench at
Toronto, Ontario on Thursday, May 11, 2000
REASONS FOR JUDGMENT OF THE COURT BY: SEXTON J.A.
Date: 20000511
Docket: A-532-97
(T-1070-94)
CORAM: STRAYER J.A.
ISAAC J.A.
SEXTON J.A.
BETWEEN:
GEORGE PAYIAPPILY
Appellant
(Applicant)
- and -
ROGERS CANTEL INC. and
DONALD E. FRANKS
Respondents
(Respondents)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Thursday, May 11, 2000)
SEXTON J.A.
[1] The appellant was employed by Rogers Cantel Inc. (hereinafter "Rogers") in June 1989. His primary duties were to operate a vector machine in the billing department. In 1991 Rogers decided to contract out its billing function to a company (Campbell Abbott) which specialized in billing. As part of its agreement with Campbell Abbott, Rogers arranged to have the company hire three billing assistants from Rogers, one of whom was the appellant.
[2] When the appellant was informed of this arrangement he refused to attend an interview with Campbell Abbott as a result of which he was terminated by Rogers and given six weeks termination pay and vacation pay. Subsequently the appellant did work for Campbell Abbott for about six weeks at which time he quit or was terminated because he failed to report for work.
[3] The appellant then filed a complaint under the Canada Labour Code alleging he was unjustly dismissed by Rogers. The adjudicator dismissed his complaint on the basis that Rogers had contracted out the function of vector machine operator which it had the right to do.
[4] The appellant"s challenge of the decision of the adjudicator by way of judicial review was dismissed on the basis that the appellant had failed to establish that the factual findings made by the adjudicator were unreasonable and that the adjudicator was correct in deciding that he lacked jurisdiction to consider the complaint by reason of section 242(3.1) of the Canada Labour Code .
[5] Before this Court, counsel for the appellant advanced for the first time two arguments which were not addressed in the Memorandum of Argument filed. Counsel for the respondent objected to then being advanced at this late stage.
[6] The first argument was to the effect that the adjudicator had placed the burden of proof as to the justification for dismissal on the appellant rather than on the respondent. The appellant argued that the burden of proving justification for dismissal was on the employer. In our view, if that issue was to be raised it should have been raised long before now. It was not raised before the Motions Judge who heard this matter in 1997, nor was it raised in the appellant"s memorandum which was filed more than two years ago. There was no transcript of the proceedings before the adjudicator filed so we are unable to determine how this matter was dealt with during the proceedings before the adjudicator.
[7] The second argument advanced on the appeal was that the adjudicator considered the issue of his own jurisdiction when it was not raised by Rogers at the hearing.
[8] Section 242(3.1) of the Canada Labour Code provides that1:
| (3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
|
(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants :
a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;
b) la présente loi ou une autre loi fédérale prévoit un autre recours.
|
| [9] The Motions Judge decided the adjudicator was correct in holding that he lacked jurisdiction because of this section. If the adjudicator lacked jurisdiction, then it was immaterial whether either of the parties raised the issue. Consent cannot confer jurisdiction. |
| [10] We agree with the Motions Judge, that the appellant has failed to establish that the factual findings made by the adjudicator were unreasonable, and that the adjudicator was correct in holding that he lacked jurisdiction by reason of section 242(3.1) of the Canada Labour Code. |
| [11] The appeal will be dismissed with costs. |
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| STYLE OF CAUSE: GEORGE PAYIAPPILY |
Appellant
(Applicant)
- and -
ROGERS CANTEL INC. and
Respondent
(Respondents)
DATE OF HEARING: THURSDAY, MAY 11, 2000
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT
| OF THE COURT BY: SEXTON J.A. |
Delivered at Toronto, Ontario on Thursday, May 11, 2000
APPEARANCES: Mr. Avi J. Sirlin
Mr. Howard Levitt
| SOLICITORS OF RECORD: Avi J. Sirlin |
425 University Avenue
Toronto, Ontario
M5G 1T6
| BCE Place, 181 Bay Street |
FEDERAL COURT OF APPEAL
Date: 20000512
Docket: A-532-97
(T-1070-94)
BETWEEN:
Appellant
- and -
Respondents
__________________
1 R.S., 1985, c. L-2, s. 242; R.S., 1985, c. 9 (1st Supp.), s. 16; 1998, c. 26, s. 58.
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