Federal Court Decisions

     T-1819-96

     IN THE MATTER OF theFederal Court Act, R.S.C. 1985, c. F-7,

     as amended;     

     IN THE MATTER OF an award of an adjudicator under the

     Canada Labour Code, R.S.C. 1985, c. L-2, as amended.

Between:

     THE BANK OF NOVA SCOTIA

     Applicant

     - and -

     MAHAVIR MATHUR

     Respondent

    

     REASONS FOR ORDER

GIBSON, J.:

     These reasons arise out of an application for judicial review of an award of an adjudicator under the Canada Labour Code¹ (the "Code") dated July, 1996 wherein the adjudicator found that the respondent had been dismissed without just cause contrary to section 242 of the Code.

     The respondent ("Mr. Mathur") was employed by the applicant (the "Bank") from 1980 until his employment was terminated as of August 14, 1994. At the time of the termination of his employment, Mr. Mathur was a Project Manager in the Bank's real estate department. Under the organizational structure that existed in the Bank until August, 1994, Mr. Mathur and two other Project Managers reported to Senior Project Managers.

     A reorganization of the structure within the real estate department of the Bank took effect in August , 1994. The express purpose of the reorganization was to improve the historically poor performance of the real estate department. The three Project Manager positions, thus including the position of Mr. Mathur, were eliminated and three additional positions of Senior Project Manager, for a total of six, were created. The position of Senior Project Manager was altered and upgraded within the Bank's classification system. A new job description for the position of Senior Project Manager was completed, also in August of 1994.

     The employment of the three Project Managers, including Mr. Mathur, was terminated. Mr. Mathur was offered a severance package of twelve months' salary and benefits which he rejected. Mr. Mathur filed a complaint regarding the termination of his employment and the matter was eventually referred to an adjudicator under the Code. As indicated earlier, the adjudicator determined that Mr. Mathur had been dismissed without just cause contrary to section 242 of the Code.

     Three issues were identified in the Bank's memorandum of fact and law filed in this matter. The issues are there stated in the following terms:

1.      What is the standard of review of [a decision of] an adjudicator under section 242 (3.1) of the Code?

2.      Did the adjudicator err in jurisdiction by failing properly to apply the test for the discontinuance of a function as set out in the judgement of the Supreme Court of Canada in Flieger v. New Brunswick, [1993] 2 S.C.R. 651?

3.      Did the adjudicator err in jurisdiction by taking into account irrelevant considerations and failing to take into account relevant considerations in determining that there had not been a "discontinuance of a function" within the meaning of the Code?

     The relevant provisions of the Code, under the heading "Division XIV - Unjust Dismissal", read as follows:

240. (1) Subject to subsections (2) and 242(3.1), any person

(a) who has completed twelve consecutive months of continuous employment by an employer, and

(b) who is not a member of a group of employees subject to a collective agreement,

may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

...

241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.

(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.

(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),

(a)      report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and

(b)      deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.

242. (1) 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).

...

(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall

(a)      consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

(b)      send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

(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.

[underlining added by me for emphasis]

    

         It was not in dispute that Mr. Mathur is a person described in subsection 240(1).

     The primary issue before the adjudicator in this matter was whether or not he had jurisdiction to consider Mr. Mathur's complaint because, it was the firm position of the Bank that, in the terms of subsection 242(3.1), Mr. Mathur had been laid off because of the discontinuance of a function. It is this aspect of the complaint before the adjudicator that leads issues 2 and 3 to be framed in terms of errors "in jurisdiction".

     The first issue, that of the standard of review of an award of an adjudicator, as it relates to the issue of jurisdiction under subsection 242(3.1), of the Code is easily disposed of. In Byers Transport Ltd. and Kosanovich², Strayer J.A. wrote for the majority of a three member panel:

In reviewing the adjudicator's conclusion that he was not precluded from jurisdiction over the claim by virtue of s. 242((3.1)(a), the learned trial judge applied the standard of patent unreasonability. He found no such unreasonability to exist in the adjudicator's conclusion. The appellant argues that the adjudicator's finding was one of jurisdiction for which the standard of review should have been correctness. I agree. In its decision in Canada Post Corp. v. Pollard ... [1994] 1 F.C. 652, ... this court had occasion to consider the standard of review in respect of the application of s. 242(3.1). It held that a determination as to whether an adjudicator is precluded by this section from considering the unjust dismissal complaint of a person is a finding as to the existence of jurisdiction and the standard for judicial review of such a determination is that of correctness. This is so notwithstanding the provisions of the privative clause which states as follows:

243(1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.

The Pollard case was decided only a few months before the trial judge's decision in the present case and there is nothing to indicate that it was brought to his attention. It appears, however, that the matter must now be taken as settled that the standard of review is correctness.

     Counsel for the Bank urged that the foregoing passage from Byers Transport is determinative of the issue of standard of review in this matter. While counsel for Mr. Mathur took a different position in his memorandum of fact and law, he did not argue the issue before me. I am in agreement with the position of counsel for the Bank that the foregoing passage from Byers Transport is determinative. Thus, the standard of review of the adjudicator's determination regarding jurisdiction is "correctness"³

     I am guided as to the interpretation of the standard of correctness in circumstances such as this by footnote 11 to Justice Strayer's reasons in Byers Transport and his discussion of the point in Sedpex, Inc. v. Canada (adjudicator appointed under the Canada Labour Code⁴ cited in that footnote.

     In Flieger v. New Brunswick⁵, Mr. Justice Cory, writing for a six-member majority of a seven-member bench of the Supreme Court, wrote:

How then should "discontinuance of a function" be defined? "Discontinuance" obviously refers to the termination of something that is termed a function. A "function" must be the "office" that is to say the bundle of responsibilities, duties and activities that are carried out by a particular employee or group of employees.

...

Therefore, a "discontinuance of a function" will occur when that set of activities which form an office is no longer carried out as a result of a decision of an employer acting in good faith. For example, if a particular set of activities is merely handed over in its entirely to another person, or, if the activity or duty is simply given a new and different title so as to fit another job description then there would be no "discontinuance of function". On the other hand, if the activities that form part of the set or bundle are divided among other people such as occurred in Mudarth, supra, there would be a "discontinuance of a function". Similarly, if the responsibilities are decentralized, as happened in Coulombe, supra, there would be a "discontinuance of function".

     In addressing his mind to the question of whether or not, on the evidence before him, there had been a discontinuance of the function carried out by Mr. Mathur before he was laid off such that he would be without jurisdiction to consider Mr. Mathur's complaint, the adjudicator addressed two questions: first, " ... the actuality of Mr. Mathur's job function", or, put another way, just exactly what was Mr. Mathur's set or bundle of activities immediately before the reorganization; and, second, whether the set or bundle of functions to be assigned to the newly described position of Senior Project Manager was materially different from the set of bundle of functions performed by Mr. Mathur immediately before the reorganization.

     On the first question, the adjudicator concluded:

On my findings, Mr. Mathur in fact carried out the duties of the Senior Project Manager [as defined before the reorganization] as applied to the Prairie territory of the Bank.

     On the second question of whether materially new work functions were assigned to the position of Senior Project Manager arising out of the reorganization, the adjudicator concluded:

In the result, I cannot find that the Bank has demonstrated by the weight of the evidence that the job function of Senior Project Manager as the position description was revised, varied materially from the position as it was earlier given.

In the result, the adjudicator concluded that the function of project management, as performed by Mr. Mathur as a Project Manager had not been discontinued. Further, the adjudicator concluded that Mr. Mathur had, in effect, been acting as a Senior Project Manager for the "Prairie territory of the Bank", a territory that was recognized as a distinct "region" following the reorganization.

     I am satisfied that, against a standard of review of correctness, the decision reached by the adjudicator in this matter that he had jurisdiction to consider Mr. Mathur's complaint was reasonably open because Mr. Mathur had not been laid off ".... because of the discontinuation of a function", that is to say, the function that he performed immediately before the reorganization took effect had not been discontinued. In arriving at the conclusions that the adjudicator did, he engaged in a lengthy and pain-staking analysis of the evidence that was before him, the greater part of which had been provided by witnesses brought forward by the Bank itself.

     I conclude that the adjudicator did not err in jurisdiction by failing to properly apply the test for the discontinuation of a function as set out in Flieger v. New Brunswick, supra. Rather, the adjudicator's decision correctly applies the test for determining whether or not there has been a discontinuance of a function as set out in that judgment.

     Further, I cannot agree with the position of counsel for the Bank that the adjudicator either took into account irrelevant considerations or failed to take into account relevant considerations in determining that there had not been a discontinuance of a function. Rather, I am satisfied that the adjudicator effectively took into account all of the evidence that was properly before him and relied on no irrelevant consideration.

     In the result, this application for judicial review will be dismissed. I find no special reasons that would warrant an order of costs in this matter.

    

                         __________________

                             Judge

Ottawa, Ontario

September 15, 1997

__________________

     ¹      R.S.C. 1985, c. C-2 as amended

     ²      [1995] 3 F.C. 354 (C.A.) Leave to appeal denied, [1995] S.C.C.A. No. 444 (QL).

     ³      For more recent authority to the same effect, see Dean, Davis and Carew v. Beothuk Data Systems Limied, Seawatch Division , (28 August, 1997), A-757-95; A-758-95; A-759-95, [unreported], (F.C.A.), not cited before me.

     ⁴      [1989] 2 F.C. 289 (T.D.)

     ⁵      [1993] 2 S.C.R. 651 at 664.