[1] The respondent Driftpile First Nation (the "respondent") failed to renew the employment contract of the appellant as an elementary school teacher at the end of the 1995-96 school year. The matter went before an adjudicator appointed under the Canada Labour Code, R.S.C. 1985, c. L-2, as amended (the "Code"). He concluded that the appellant had been the subject of a wrongful dismissal. He awarded her compensation, but he refused to reinstate her in her former employment.

[2] The adjudicator's decision came under review before Campbell J. (Chalifoux v. Driftpile First Nation, [1999] F.C.J. No. 781 (T.D.) (QL)). He held that the adjudicator's decision was deficient because of a failure to weigh the considerations for and against an award for reinstatement, as he felt it was required by a majority of this Court in Atomic Energy of Canada Ltd. v. Sheikholeslami, [1998] 3 F.C. 349 (C.A.). Campbell J. set aside the decision respecting reinstatement only and referred the matter back to the same adjudicator for reconsideration "on the direction that such reconsideration include a weighing of all considerations for and against an award of reinstatement, including an evaluation of the nature of the relationship between the applicant and respondent". He specified that the reconsideration be done "on the record as it exists".

[3] The adjudicator, acting under the direction of Campbell J., reviewed the matter but he declined to direct the respondent to reinstate the appellant. He concluded in the following terms:

After "weighing ... all considerations for and against an award of reinstatement [of Ms. Chalifoux], including an evaluation of the nature of the relationship between [Ms. Chalifoux] and [the Driftpile First Nation] on the record as it exists", as directed by Justice Campbell, I decline to direct the Driftpile First Nation to reinstate Ms. Chalifoux. But I order the Driftpile First Nation to pay $750 to Ms. Chalifoux for legal costs incurred in this phase of the proceedings.

[4] We sit in appeal of a decision of Gibson J. (Chalifoux v. Driftpile First Nation, 2001 FCT 785; [2001] F.C.J. No. 1134 (T.D.) (QL)) who dismissed an application for judicial review brought by the appellant against this second decision of the adjudicator.

2. THE RELEVANT LEGISLATION

[5] The adjudicator was acting under the provisions of Division XIV, Part III of the Code, entitled "Unjust Dismissal". Under subsection 242(4) of the Code, the adjudicator may, after a finding of unjust dismissal, order the following remedies:

242. (4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to

(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

(b) reinstate the person in his employ; and

(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal. [my emphasis]

242. (4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur_:

a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;

b) de réintégrer le plaignant dans son emploi;

c) de prendre toute autre mesure qu'il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier. [le souligné est le mien]

[6] The refusal of the adjudicator to order the reinstatement of the appellant is at the heart of the debate.

3. THE DECISION UNDER APPEAL

[7] Gibson J. noted, at the outset, that the approach to be adopted in applying discretion to award reinstatement under subsection 242(4) of the Code was a matter of some academic and judicial debate. He was of the view that a binding precedent which reflected that debate was to be found, however, in the decision of our Court in Atomic Energy of Canada Ltd., supra. Gibson J. stated that, while Létourneau J.A., in the above case, clearly regarded reinstatement as a presumptive right unless there was clear evidence to the contrary, Marceau J.A., with whom Strayer J.A. concurred, held that, in a case of unjust dismissal, reinstatement was simply one alternative remedy and that it was not a remedy to which an unjustly dismissed employee had a presumptive right. Gibson J. further stated that the adjudicator had made it clear that he shared the view of the majority in Atomic Energy of Canada Ltd., supra. Gibson J. then characterized the lengthy part of the adjudicator's reasons, which reflected this debated issue, as being obiter in nature, considering the precise mandate given to the adjudicator by Campbell J.

[8] Gibson J. held that the weighing or analysis made by the adjudicator was thin but, nevertheless, with some regret, he concluded that it was sufficient. In doing so, he took into account the restriction on the mandate given to the adjudicator by Campbell J. to evaluate the nature of the relationship between the appellant and the respondent on the record as it existed.

4. THE ISSUE

[9] The appellant raised a number of issues. They principally converge to paragraph 41 of her Memorandum of Fact and Law, where she claims that the adjudicator breached the rule of natural justice and fettered his discretion, when he stated at page 22 of his decision that:

[...] While I have frequently determined that an employer has unjustly dismissed a worker, I have never ordered a former employer to reinstate a former employee. [...] [my emphasis]

This statement, the appellant submits, raises a reasonable apprehension of bias on the part of the adjudicator.

[10] In order to make sure that the respondent was not taken by surprise, considering that the point raised by the appellant occupies a small portion of the appellant's otherwise lengthy Memorandum of Fact and Law, we invited the respondent to address that issue in writing and gave the appellant the right to reply. Judgment was then reserved as of November 8, 2002.

5. THE STANDARD OF REVIEW

[11] The applicable standard of review cannot be set without the conducting of a pragmatic and functional analysis.

[12] The wording of subsection 242(4) of the Code, when read in conjunction with the strong privative clause found in subsection 243 of the Code, suggests that the intention of Parliament is to vest the adjudicator with the final jurisdiction on remedies. Hence, Parliament recognizes the expertise of the adjudicator in this area of labour law. These considerations dictate deference in favour of the adjudicator's decision under the test of patent unreasonableness (See Atomic Energy of Canada Ltd., supra, at paragraph 9 and the cases cited in endnote 4).

[13] The word "may" found in subsection 242(4) of the Code also suggests that reinstatement is only one of a number of remedies available to the adjudicator. This view is confirmed by the majority opinion of this Court in Atomic Energy of Canada Ltd., supra, where Marceau J.A., speaking for himself and for Strayer J.A., writes at paragraphs 11 and 12 of his reasons:

[11] [...] Reinstatement, in my understanding, is not a right that a wrongfully dismissed employee possesses as he may possess human rights. It is a long-established common law, as well as civil law, rule that the courts will not order specific performance of a contract of personal service whose execution requires the constant personal dedication and willingness of one or both parties. In the case of a contract of employment, the rule was originally applied to the employee who could not be forced to execute the work contemplated without being subject to constant supervision and reduced to a state tantamount to slavery, but it was soon made applicable as well to the employer on the ground that the obligations were mutual and were meant to be executed under the auspices of a relationship of confidence and trust which can neither be required nor enforced.

[12] The unfair dismissal provisions for non-unionized employees in the Canada Labour Code no doubt represent a statutory modification of the traditional rule that an employment contract will never be specifically enforced. But they certainly do not, and even could not, go as far as to create a right in the person of the wrongfully dismissed employee. It would be contrary to the common sense that precisely supports the traditional rule. They simply provide for reinstatement as a possible remedy that may be resorted to in proper situations. It is often said that, in practice, it is the remedy favoured by adjudicators in their efforts to "make whole" an employee's real-world losses caused by dismissal. It is undisputable, however, on a mere reading of subsection 242(4) of the Code, that an adjudicator is given full discretion to order compensation in lieu of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored. [endnotes omitted] [my emphasis]

[14] In his statement, Marceau J.A. recognizes however recognizes the importance of "making whole" an employee's real world losses caused by dismissals (See in this regard Slaight Communications Inc. v. Davidson, [1995] 1 F.C. 253 at 257 (C.A.), per Urie J.; Banca Nazionale Del Lavaro of Canada Ltd. v. Lee-Shanok, [1988] F.C.J. No. 594 (C.A.), pages 7 to 9).

[15] In the review of discretionary powers, such as the present one, the weighing of relevant factors for or against an award of reinstatement is not the function of a court of law (See 2002 SCC 1">Suresh v. Canada (Minister of Citizenship and Immigration), 2002 SCC 1 at paragraph 34). Hence, where the statutory discretion has been exercised in good faith and in accordance with the principles of natural justice and where reliance has not been placed upon considerations irrelevant or extraneous to the statutory purpose, the courts should not interfere (See [1982] 2 S.C.R. 2">Maple Lodge Farms Ltd. v. Canada, [1982] 2 S.C.R. 2 at 7).

[16] It follows that a reasonable apprehension of bias, if proven, will vitiate the decision.

6. ANALYSIS

[17] As stated earlier, the appellant claims the adjudicator breached the rule of natural justice and fettered his discretion when he stated at page 22 of his decision that:

[...] While I have frequently determined that an employer has unjustly dismissed a worker, I have never ordered a former employer to reinstate a former employee [...] [my emphasis]

[18] Gibson J. did not consider this issue directly, although it was raised by the appellant before the Trial Division in her Memorandum of Fact and Law (See docket T-1345-00, Record of the Applicant, vol. 1, p. 195, paragraph 39). Gibson J. was content to characterize as obiter those pages of the adjudicator's decision where the reproached statement is found.

[19] In order to appreciate the appellant's claim of a reasonable apprehension of bias, the statement made by the adjudicator should be examined in context.

[20] The adjudicator states at first, in detail, his view of unjust dismissal under the Code. In doing so, he engages in a heated debate with Professor E. England.

[21] Professor England, according to the adjudicator, has written that an employer may, under the Code, terminate an employment relationship only for just cause (page 5 of the adjudicator's decision), and that an employee has a right to the job and not simply to a reasonable notice (page 17 of the adjudicator's decision).

[22] The adjudicator continues with a long critical analysis of Professor England's reasons for coming to that conclusion. The adjudicator indicates his strong disagreement with such reasoning and indicates his preference for the majority judgment of this Court in Atomic Energy of Canada Ltd., supra, particularly with paragraph 12 of Marceau J.A.'s Reasons.

[23] The adjudicator then states, at page 22 of his Reasons, the statement which is the basis of the appellant's claim:

It is remotely possible that Professor England had me in mind when he criticized some adjudicators for denying reinstatement on "flimsy" grounds. While I have frequently determined that an employer has unjustly dismissed a worker, I have never ordered a former employer to reinstate a former employee. The fact that Associate Dean Ross agrees with the approach I have taken to these issues (Jalbert v. Westcan Bulk Transport Ltd. 7-8 (July 18, 1996)), emboldens me to take issue with Professor England's harsh assessment of the position we hold. While I may be guilty of justifying decisions on "flimsy" grounds, I am sure that Associate Dean Ross, who has a superb reputation as a legal scholar, would never do such a thing. [my emphasis]

[24] The adjudicator, finally, sets out to do what Campbell J. mandated him to do. He lists those considerations which, in his view, support the argument that reinstatement of the appellant is an inappropriate remedy. He finds them more important than the second list of factors which could reasonably favour reinstatement. He concludes by declining to direct the respondent to reinstate the appellant.

[25] In Baker v. Canada (Minister of Citizenship and immigration), [1999] 2 S.C.R. 817, at paragraph 46, the Supreme Court of Canada confirmed the continuing relevance of the test for reasonable apprehension of bias as set out in the dissenting judgment of de Grandpré J. in [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369 at 394 as follows:

... the apprehension of bias must be a reasonable one, held by reasonable and right minded persons, applying themselves to the question and obtaining thereon the required information ... [T]hat test is "what would an informed person, viewing the matter realistically and practically - and having thought the matter through - conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly."

[26] The adjudicator's reasons as a whole reflect his view that an employee, under the Code, does not have a right to his employment. This, in turn, affects his view of what constitutes an appropriate remedy. But it cannot be said that someone's views of labour law may amount to a bias which precludes the proper exercise of his discretion with respect to the appropriate remedy in a particular case.

[27] There are not in the decision as a whole, indices that could lead a reasonable person to conclude that what the adjudicator meant to say, by the words he used, was that he would never pronounce a reinstatement. What transpires from the context is more akin to a statistical comment rather than a total refusal to ever pronounce a reinstatement. The adjudicator appears to say that till now, he has never awarded a reinstatement, not that he never will. His comments do not indicate his refusal to ever order an award of reinstatement, but simply that he has never done it. Consequently, I cannot find that his statement raises a reasonable apprehension of bias.

[28] The appellant argues (paragraph 34 of her Memorandum) that the case of Atomic Energy of Canada, supra, requires an adjudicator to order reinstatement unless he finds that the bond of trust between the employer and his fired employee is hopelessly broken.

[29] This, in my view, is not the law. Marceau J.A., in Atomic Energy of Canada Ltd., supra, is saying in effect that where the relationship of trust cannot be restored, the adjudicator may, at his discretion, order compensation in lieu of reinstatement. Marceau J.A. does not say that an adjudicator must order reinstatement if the relationship of trust between the parties is intact or can be restored. He says, in paragraph 12, with regard to the unfair dismissal provisions in the Code, that:

[...] they certainly do not, and even could not, go as far as to create a right in the person of the wrongfully dismissed employee... They simply provide for reinstatement as a possible remedy that may be resorted to in proper situations... It is undisputable, however, on a mere reading of subsection 242(4) of the Code, than an adjudicator is given full discretion to order compensation in lieu of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored.

[30] It is clear from section 242 of the Code that adjudicators have a very broad discretion in fashioning an appropriate remedy for unjust dismissal. The existence and breadth of that discretion is recognized in Atomic Energy of Canada Ltd., supra., considering, in particular, the applicable test of patent unreasonableness. Gibson J. held, in the case at bar, that the weighing analysis done by the adjudicator, although thin, was nevertheless sufficient, considering the limitation set by Campbell J. that the relationship between the employer and employee be considered on the record as is. I see no reviewable error in Gibson J.'s appreciation of the adjudicator's decision which would warrant our intervention.

[31] I would dismiss this appeal with costs.

"Alice Desjardins" J.A.

"I agree

J. Edgar Sexton J.A."

"I agree

K. Sharlow J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-559-01

STYLE OF CAUSE:Elizabeth Chalifoux v. Driftpile First Nation et al.

PLACE OF HEARING: Edmonton, Alberta

DATE OF HEARING: September 25, 2002

REASONS FOR : Desjardins J.A.

CONCURRED IN BY: Sexton J.A.

Sharlow J.A.

DATED: December 23, 2002

APPEARANCES:

G. Brent Gawne FOR THE APPELLANT

Timothy D. Mitchell FOR THE RESPONDENT

SOLICITORS OF RECORD:

G. Brent Gawne FOR THE APPELLANT

Barrister & Solicitor

Edmonton, Alberta

Laird Armstrong FOR THE RESPONDENT

Barristers & Solicitors

Calgary, Alberta

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Chalifoux v. Driftpile First Nation, 2002 FCA 521

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2002 FCA 521