Date: 20000515
Docket: T-2280-98
Ottawa, Ontario, this 15th day of May 2000
PRESENT: THE HONOURABLE MR. JUSTICE PELLETIER
BETWEEN:
LAC LA RONGE INDIAN BAND
Applicant
- and -
LARRY LALIBERTE
Respondent
- and -
LAC LA RONGE INDIAN BAND
Applicant
- and -
SOL CHARLES
Respondent
- and -
LAC LA RONGE INDIAN BAND
Applicant
- and -
ROBERT BALLANTYNE
Respondent
REASONS FOR ORDER AND ORDER
PELLETIER J.
[1] This is an application for judicial review of the decision of an adjudicator, Mrs. Anne Wallace, appointed pursuant to Division 14 of the Canada Labour Code. The adjudicator decided that the respondents were dismissed from their employment by the Lac La Ronge Indian Band without cause and ordered remedial measures including reinstatement, payment of lost wages and damages. The applicant disputes this conclusion and seeks to have the adjudicator"s decision reversed.
[2] The adjudicator heard extensive evidence and rendered a lengthy decision. The applicant is a large Indian Band whose members live in six communities in Northern Saskatchewan, including the main settlement at Lac La Ronge and the community of Stanley Mission, which is some 50 miles away. The respondents are three former employees of the Band whose common link is their connection with the Stanley Mission Justice Committee. In her decision, the adjudicator reviewed the history of the Stanley Mission Justice Committee and its dealings with a sexual offender who was returned to Stanley Mission, ostensibly under the aegis of the Committee. When the offender came into contact with a victim in the community, the Chief and Council of the Band suspended the respondents on the ground that the activities of the Justice Committee had not been properly approved by the Chief and Council. The suspensions occurred on February 27, 1997 and were communicated to the respondents in writing on approximately March 1, 1997.
[3] On April 9, 1997, the Chief and Council were to hear the report of the person they had charged with investigating the actions of the Stanley Mission Justice Committee. The evidence was that before the investigator could complete his report to the Council, a councillor declared that he had heard enough, the question was called and the respondents were dismissed. The grounds given for the dismissal, however, made no reference to the Stanley Mission Justice Committee. Mr. Charles was dismissed for "financial activities under your direction which were tantamount to theft or fraud committed against the employer". Mr. Laliberte was dismissed because his position had become redundant due to a change in program direction. Mr. Ballantyne was dismissed for "insubordination, breach of code of ethics, breach of oath of confidentiality and conduct which can be interpreted as disrespectful to the employer and elders".
[4] From the start, the respondents characterized their suspension and dismissal as acts of discrimination against them because of their belief in traditional native spirituality which played a prominent role in the activities of the Stanley Mission Justice Committee. Much of the decision is devoted to an analysis which concludes that the respondents were in fact the victims of discrimination. The substance of the applicant"s position is that the finding of discrimination was unreasonable, was based on mistakes of fact, and tainted the entire decision.
[5] The adjudicator"s decision is protected by a privative clause which appears at section 243 of the Canada Labour Code :
| 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. |
243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires. (2) Il n'est admis aucun recours ou décision judiciaire " notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto " visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242. |
[6] The effect of this privative clause has been considered in a number of judgments of this Court and has been summarized as follows by Rothstein J. (as he then was):
| It seems to me that the current state of the law is that in the face of a privative clause, the jurisdiction of the Court to review the decision of a federal board or tribunal is restricted to errors that the tribunal or board has committed that go to its jurisdiction or decisions that are so patently unreasonable that their construction cannot be rationally supported by the relevant legislation. In my opinion, that is the scope of the judicial review that I am entitled to conduct in this case. |
Alberta Wheat Pool v. Jacula [1992] F.C.J. No. 1047
[7] The grounds of judicial review in the Federal Court are set out in subsection 18.1(4) of the Federal Court Act. They include error of law, whether or not it appears on the face of the record and error of fact " made in a perverse or capricious manner or without regard for the material before [the tribunal]". The combined effect of section 243 and subsection 18.1(4) is that error of fact will not result in a decision being set aside unless the resulting decision is patently unreasonable, that is, it cannot be supported by any rational view of the evidence.
[8] Whatever the merits of the suspension of the respondents in connection with the management of the Stanley Mission Justice Committee, once the Chief and Council dismissed them on other grounds, the justness of the dismissal is to be assessed on the basis of the latter grounds. The fact that the grounds of dismissal do not refer to the grounds given for the suspension is a matter which may go to good faith, but it does not change the basis on which the dismissals are to be assessed.
[9] The letter of dismissal forwarded to Mr. Charles alleges financial irregularities amounting to fraud upon the employer. These arose from Mr. Charles" practice of using Band funds to which he had access for personal reasons, in effect borrowing from the Band. These amounts were recorded and a running total was kept at all times. The adjudicator found that this practice was commonplace, was known to the Band"s financial officer, and that there was no attempt at concealment. Charles testified that at one time he saw a document indicating that the Band was owed more than $300,000 by employees. The other allegations of financial irregularity arose from the fact that funds were drawn down from the "culture" account and were not properly accounted for, in the sense that records of the disbursement of the funds were lacking. The adjudicator found that in ordinary circumstances, Charles would have been told that he could not longer borrow from the Band and would have been required to repay the amounts outstanding.
[10] Given the adjudicator"s findings that employees other than Mr. Charles engaged in this type of conduct, that it was known to the Band"s financial officer, and that the amounts involved were recorded and known, her finding that this conduct did not justify dismissal is not patently unreasonable. The fact that Mr. Charles was charged with a criminal offence subsequent to his dismissal does not change the position. The adjudicator"s decision is to be assessed on the basis of the situation as it stood at the time of dismissal.
[11] The position of Mr. Laliberte is relatively straightforward. The letter advising him of his dismissal indicated that it was due to redundancy. When the Chief and Council suspended the respondents, they terminated the Stanley Mission Justice Committee, as well as the Holistic Healing Program which Mr. Laliberte managed. As a result, there was no need for Mr. Laliberte. This plea is said to trigger subsection 243(3.1) of the Canada Labour Code which provides that an adjudicator shall not consider a complaint where the person has been laid off for lack of work or discontinuance of a function. The adjudicator found that no other staff in the Holistic Healing Program were found to be redundant or had their positions abolished, the funding for the program remained intact and the work originally done by Mr. Laliberte was done by others.
[12] The Canada Labour Code does not define lay-off but there is clearly a distinction between lay off and dismissal. The Band"s Policy and Procedure Manual provides at page 20 that a lay-off is not considered to be a termination where it is more than three months and less than six months. The exclusion found at subsection 243(3.1) applies to lay-offs, not dismissals. It is clear that Mr. Lapointe was dismissed. Redundancy is not cause for dismissal. Therefore the adjudicator"s decision that Mr. Laliberte"s dismissal was not justified is correct.
[13] The grounds for the dismissal of Robert Ballantyne were his "insubordination, breach of code of ethics, breach of the oath of confidentiality and conduct which could be interpreted as disrespectful to the employer and elders". These allegations arose from conduct which occurred in the time following Mr. Ballantyne"s suspension.
[14] Mr. Ballantyne"s insubordination consisted of attending Provincial Court when the case of the offender in question came back before the Court, within days of Mr. Ballantyne"s suspension. The Band purported to order Mr. Ballantyne not to attend Court. The adjudicator found that Mr. Ballantyne attended Court, as was his right but that he did not participate in the proceedings. In fact, the transcript shows that he did address the Court, which would indicate some participation. However, he did so when called upon by the Court and not upon his own motion. The adjudicator"s finding that this incident was not cause for discipline is not patently unreasonable, even if she made an error as to Mr. Ballantyne"s participation in the hearing. The discharge was also based upon comments made by Mr. Ballantyne to the media after he was suspended in which he alleged that he and his colleagues were being discriminated against because of their spiritual practices. The adjudicator found that Mr. Ballantyne did not initiate contact with the press and that he made his comments after band councillors made comments about him and the program in the press. On balance, the adjudicator found that Mr. Ballantyne did not engage in disciplinable conduct while under suspension, a finding which is not patently unreasonable.
[15] The adjudicator"s decision that the dismissal of the respondents was unjust is not patently unreasonable and is therefore not subject to being set aside.
[16] The applicant also raised issues with respect to the remedies granted to the respondents by the adjudicator. In Atomic Energy of Canada Ltd. v. Sheikholeslami, [1997] F.C.J. No. 1428, (1997) 137 F.T.R. 122, Richard J. set out the test for a patently unreasonable remedy:
| There are four situations in which a remedy will be considered patently unreasonable: |
| (1) where the remedy is punitive in nature; |
| (2) where the remedy granted infringes the Canadian Charter of Rights and Freedom; |
| (3) where there is no rational connection between the breach, its consequences, and the remedy; and, |
| (4) where the remedy contradicts the objects and purposes of the Canada Labour Code. |
[17]
There is nothing before the Court to suggest that the awards made by the adjudicator were not reasonable in the circumstances. The applicant makes a special objection to the order that Mr. Charles be reinstated to the position of Director of Health given the lack of trust between the Band and Mr. Charles arising from the pending criminal charges. The common law would not grant reinstatement of an employee who was wrongfully dismissed because the contract of employment was a personal contract whose performance could not be compelled. Modern labour legislation takes a more robust view of the employer/employee relationship with the remedy of reinstatement being available in both unionized and, as here, non-unionized workplaces. In the absence of a Band policy which permits or requires the suspension of employees while criminal charges are pending, there is no reason why Mr. Charles could not return to his former employment. If he is convicted of the offences with which he is charged, he can then be dealt with under the terms of the Band"s Policy and Procedures Manual.
[18] The respondents asked that the Court address the fact that the Lac La Ronge Indian Band has not seen fit to implement the adjudicator"s award with the result that the respondents have been deprived of the benefit of their award for these many months. This Court is sitting in judicial review of the adjudicator"s decision. It has no jurisdiction to make the decision the adjudicator ought to have made (if it had found that the adjudicator had erred) nor does it have jurisdiction to enforce the award. The Canada Labour Code , at section 244, provides that an adjudicator"s order may be registered in the Federal Court and enforced as an order of the Court. The respondents may wish to look in that direction for assistance in enforcing their order.
[19] Finally, the Court was asked to order solicitor and client costs against the applicant given its failure to implement the adjudicator"s award and its dilatory prosecution of this application. The conduct of the applicant in the prosecution of this claim, while not exemplary, has not been so egregiously dilatory or abusive to merit the sanction of solicitor and client costs. The respondents are entitled to their costs on column four of the tariff, but since they have been represented by one solicitor throughout, there will only be one set of costs between them.
"J.D. Denis Pelletier"
Judge