Enoch Cree Nation Band v. Thomas, 2004 FCA 2

Date: 20040106

Docket: A-115-03

Citation: 2004 FCA 2

CORAM:        ROTHSTEIN J.A.

NOËL J.A.

MALONE J.A.

BETWEEN:

                                                       ENOCH CREE NATION BAND

                                                                                                                                                       Appellant

                                                                                 and

                                                                 ARLEEN THOMAS

                                                                                                                                                   Respondent

                                       Heard at Edmonton, Alberta, on December 17, 2003.

                                   Judgment delivered at Ottawa, Ontario, on January 6, 2004.

REASONS FOR JUDGMENT BY:      ROTHSTEIN J.A.

CONCURRED IN BY:                                                                                                               NOËL J.A.

                                                                                                                                              MALONE J.A.

Date: 20040106

Docket: A-115-03

Citation: 2003 FCA 2

CORAM:        ROTHSTEIN J.A.

NOËL J.A.

MALONE J.A.

BETWEEN:

                                                       ENOCH CREE NATION BAND

                                                                                                                                                       Appellant

                                                                                 and

                                                                 ARLEEN THOMAS

                                                                                                                                                   Respondent

                                                        REASONS FOR JUDGMENT

ROTHSTEIN J.A.

[1]                 This is an appeal from a decision of Beaudry J. of the Trial Division (as it then was), which allowed a judicial review from a decision of an Adjudicator appointed under the Canada Labour Code, R.S.C. 1985, c. L-2. I agree with Beaudry J.'s result and would therefore dismiss this appeal with costs.

[2]                 The respondent filed a complaint of unjust dismissal under the Code. However, paragraph 242(3.1)(a) of the Code provides:

[3]                 The Adjudicator found that the respondent was laid off because of lack of work or because of a discontinuance of a function. As a consequence, she found that the appellant employer could rely on paragraph 242(3.1)(a) and that she did not have jurisdiction to find the respondent was wrongfully dismissed.

[4]                 The parties agree that the labour arbitration decision in Clements and Bearskin Lake Air Services Ltd., [1995] C.L.A.D. No. 942 sets out the approach to be followed in determining whether an employer may rely on paragraph 242(3.1)(a). At paragraph 46 of Clements, the learned Adjudicator states:

The burden of proof in this case falls upon the employer to establish that it falls within the provisions of s.242(3.1) but this does not relieve the Complainant from any evidentiary burden..... Where the evidence presented by the employer clearly establishes the economic justification for the layoff and clearly established [sic] a reasonable explanation for the choice of the employee to be laid off, as is the case here, then, in my opinion, the evidence from the Complainant must be sufficient to persuade the Adjudicator that the otherwise justifiable action of the employer is a "sham", a "subterfuge", "malicious" or "covert."

[5]                 As Beaudry J. summarized at paragraph 39 of his reasons, this passage from Clements means that the employer must show two things: first, an economic justification for the layoff; and second, a reasonable explanation for the choice of the employees to be laid off. The onus then shifts to the employee to rebut that evidence.

[6]                 When a Court reviews a decision of a labour adjudicator under the Code, the standard of review, at least with respect to the assessment of evidence by the Adjudicator, is patent unreasonableness.

[7]                 There is no issue about the first of the Clements tests. There was evidence before the Adjudicator of economic justification for the layoff.

[8]                 However, in respect of the second test, the Adjudicator stated at page 13 of her reasons:

However, the employer has responded to show that a number of other employees were also laid off at the same time. Glen Generoux has said that Ms. Thomas' name was added to the lay off list last because her position was unfunded. In the last analysis, whether she remained on the list and was actually laid off became the decision of Chief and Council. While we have the minute [sic] of their meeting, we do not have a transcript of their deliberations. We have no knowledge of how they ultimately came to their decision to lay off Ms. Thomas. [Emphasis added.]                

If, as the Adjudicator stated, she had no knowledge of how the Chief and Council came to their decision to lay off the respondent, it is obvious that the employer did not satisfy the second of the Clements tests and, therefore, did not demonstrate that it could rely on paragraph 242(3.1)(a).   

[9]                 However, the appellant argues that the evidence before the Adjudicator was that Glen Generoux, the appellant's financial comptroller, helped with the Chief and Council's decision-making. Because he believed the respondent's position was unfunded and added her name to the list of those to be laid off, the appellant submits that the Adjudicator might have inferred that the reason Mr. Generoux included the respondent's name on the list was the same reason the Chief and Council chose to lay off the respondent.

[10]            I cannot agree. The Adjudicator expressly stated that she has no knowledge of how the Chief and Council ultimately came to their decision to lay off the respondent. That statement was inconsistent with any suggestion that the Adjudicator inferred that Mr. Generoux's reason was adopted by the Chief and Council as their reason for laying off the respondent.

[11]            Without evidence addressed to the second of the Clements tests as to why the employer chose to lay off the respondent, the Adjudicator's decision that the employer could rely on paragraph 242(3.1)(a) and that she therefore did not have jurisdiction to determine if the respondent was wrongfully dismissed is patently unreasonable.

[12]            The appellant submits that Beaudry J. erred by subjecting the Adjudicator's decision to a correctness review and reassessing the evidence before the Adjudicator. In view of my conclusion that the decision of the Adjudicator was patently unreasonable, it is not necessary to deal with this argument and I express no opinion with respect to it.

[13]            Beaudry J. was correct to allow the judicial review, quash the decision of the Adjudicator, and remit the matter for redetermination by a newly appointed Adjudicator.

[14]            This appeal should therefore be dismissed with costs.

                 "Marshall Rothstein"                       

J.A.

"I agree

Marc Noël J.A."

"I agree

B. Malone J.A."

                          FEDERAL COURT OF APPEAL

    NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET:                                                           A-115-03

(APPEAL FROM AN ORDER OF THE TRIAL DIVISION DATED JANUARY 31, 2003, COURT FILE NO. T-2057-01)

STYLE OF CAUSE:                                        ENOCH CREE NATION BAND v. ARLEEN THOMAS

PLACE OF HEARING:                                                Edmonton, AB

DATE OF HEARING:                                                  December 17, 2003

REASONS FOR JUDGMENT

BY:                                                                        ROTHSTEIN J.A.

CONCURRED IN BY:                                                 NOËL J.A.

MALONE J.A.

DATED:                                                              January 6, 2004

APPEARANCES:

SOLICITORS OF RECORD: