Docket: A-200-13
Citation: 2014 FCA 199
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CORAM:
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NADON J.A.
TRUDEL J.A.
BOIVIN J.A.
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BETWEEN:
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WANDA MACFARLANE
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Appellant
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and
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DAY & ROSS INC.
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Respondent
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Heard at Fredericton, on September 11, 2014.
Judgment delivered from the Bench at Fredericton, New-Brunswick, on September
11, 2014.
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REASONS FOR JUDGMENT OF THE COURT BY:
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TRUDEL
J.A.
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Docket: A-200-13
Citation:
2014 FCA 199
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CORAM:
|
NADON J.A.
TRUDEL J.A.
BOIVIN J.A.
|
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BETWEEN:
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WANDA MACFARLANE
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Appellant
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and
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DAY & ROSS INC.
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Respondent
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REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Fredericton, New-Brunswick,
on September 11, 2014).
TRUDEL J.A.
[1]
This is an appeal by Wanda MacFarlane (the
appellant) of a decision of Roy J. of the Federal Court dismissing without
costs her application for judicial review (2013 FC 464). The appellant had
challenged the decision of an adjudicator appointed under subsection 241(3) of
the Canada Labour Code, R.S.C., 1985, c. L-2 (the Code) who had
dismissed her complaint of unjust dismissal. The respondent, Day & Ross
Inc., has cross-appealed from the Judge’s order on the issue of costs alone.
[2]
The appellant argues before this Court that the
Judge erred in assessing the adjudicator’s decision on a reasonableness
standard and further submits that the adjudicator’s conclusions were not
rationally supported by the evidence placed before him.
[3]
First, it is well-established that an appellate
court, when considering an appeal from a judgment on an application for
judicial review, must determine whether the court below selected the proper
standard of review and whether it applied it correctly: Agraira v. Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36 at paragraph 45,
[2013] 2 S.C.R. 559. The Judge was right to review the adjudicator’s decision
on a standard of reasonableness: a labour arbitrator’s decision on a complaint
of unjust dismissal involves questions of mixed fact and law and is owed
deference (Payne v. Bank of Montreal, 2013 FCA 33 at paragraphs 32-33,
[2013] F.C.J. No. 123 ). It therefore attracts a standard of
reasonableness.
[4]
The Judge conducted a thorough review of the
circumstances surrounding the appellant’s dismissal and of the adjudicator’s
reasons for dismissing her complaints. We see no error in his conclusion that
the adjudicator’s decision was reasonable. The adjudicator’s reasons are
detailed and fall well within the range of acceptable outcomes under a
reasonableness review. Moreover, it is not for a reviewing court to reweigh the
evidence that was placed before the decision-maker. The appellant cannot relitigate
the matter on appeal hoping for a different outcome. We therefore see no basis
for overturning the Judge’s decision.
[5]
On the issue of costs, the respondent submits
that it was entitled to costs on the application for judicial review and that
the Judge’s lack of reasons supporting his order entitles this Court to
consider the question de novo. Once again, it is settled law that a trial judge is entitled to
considerable discretion in setting costs and that a costs award will not easily
be set aside on appeal: Bell Helicopter Textron Canada Limitée v. Eurocopter société par actions simplifiée, 2013 FCA
220 at paragraphs 7-8, [2013] F.C.J. No. 1044 .
[6]
Here the Judge chose not to follow the ordinary
rule that costs follow the event without giving reasons. It is therefore
difficult for our Court to assess the basis on which the judge exercised his
discretion and, as a result, whether or not our Court’s intervention is
warranted.
[7]
Accordingly, the appeal will be dismissed with
costs, the cross-appeal will be allowed with costs, the order of the Federal
Court on costs will be set aside and the matter of costs will be returned to
Roy, J. for re-determination in accordance with these reasons.
“Johanne Trudel”
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