T-456-97
OTTAWA, ONTARIO, the 17th day of October, 1997
PRESENT: THE HONOURABLE MR. JUSTICE PINARD
BETWEEN:
AUTOCAR CONNAISSEUR INC.,
Applicant
- and -
Me JEAN-PAUL LALANCETTE, c.r.i.,
Respondent
- and -
DANIEL POMERLEAU
- and -
DANIEL MERCIER
- and -
ALAIN MARCIL
- and -
NORMAND OUELLETTE,
Respondents
| Judicial review of an arbitration award rendered on February 14, 1997 by the referee, Mr. Jean-Paul Lalancette, confirming the payment order of June 21, 1996 of the inspector Mario Desrosiers of Human Resources Development Canada, Labour Branch. |
| [Section 18.1 of the Federal Court Act] |
O R D E R
The application for judicial review is allowed in part. The referee"s decision, dated February 14, 1997, in so far as it allows compensation for "interest and additional compensation", "non-pecuniary damages" and "exemplary damages", is quashed and the matter is returned to a referee who shall be appointed in accordance with subsection 251.12(1) of the Canada Labour Code for a decision that shall be in accordance with the reasons filed in support of this Order. More specifically, this referee shall simply grant the respondent employees the same amounts as those granted in the arbitration award of February 14, 1997, less the sums awarded for "interest and additional compensation", "non-pecuniary damages" and "exemplary damages". The referee shall accordingly set aside the order issued to the applicant to pay the respondent employees the amounts corresponding to the latter compensation, now excluded, and shall order repayment thereof by these employees to the applicant.
| Yvon Pinard |
| J. |
Certified true translation
Christiane Delon
T-456-97
BETWEEN:
AUTOCAR CONNAISSEUR INC.,
Applicant
- and -
Me JEAN-PAUL LALANCETTE, c.r.i.,
Respondent
- and -
DANIEL POMERLEAU
- and -
DANIEL MERCIER
- and -
ALAIN MARCIL
- and -
NORMAND OUELLETTE,
Respondents
REASONS FOR ORDER
PINARD J.
This is an application for judicial review, heard ex parte, of the decision rendered on February 14, 1997 by a referee appointed pursuant to subsection 251.12(1)1 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
* * * * *
The respondents Daniel Pomerleau, Daniel Mercier, Alain Marcil and Normand Ouellette (the employees) each filed a complaint against their employer Autocar Connaisseur Inc. (the employer) pursuant to section 251.12 of the Code, asking to be paid for overtime and statutory holidays. Following an investigation of these complaints pursuant to subsection 251.1(1) of the Code, the inspector Mario Desrosiers, appointed pursuant to subsection 249(1)3 of the Code, ordered the employer on June 21, 1996 to remit to the Receiver General of Canada, to the account of the employees in question, the following respective sums less the deductions authorized under section 254.1 of the Code:
Daniel Pomerleau: $3,606.28;
Daniel Mercier: $1,648.73;
Alain Marcil: $5,721.87; and
Normand Ouellette: $5,716.92.
Concerning these amounts, the inspector in particular specified as follows:
| [Translation] |
| These amounts represent the unpaid sums in regard to what is prescribed by Part III of the Canada Labour Code, that is: |
| See Appendix A Detailed determination by the undersigned inspector dated May 21, 1996. |
On June 28, 1996, the employer appealed this decision pursuant to subsection 251.11(1)4 of the Code. At the same time the employer sent the Receiver General of Canada some certified cheques in the amounts corresponding to the payment order, in accordance with subsection 251.11(2)5 of the Code.
The referee appointed by the Minister of Labour heard this appeal on November 27 and 28, 1996. In his decision dated February 14, 1997, the referee, relying on subsection 251.12(4)6 of the Code, upheld the payment order issued by the inspector in the case of each of the four employees concerned and ordered that they be paid the sums deposited with the Receiver General of Canada:
| [Translation] The Referee therefore orders the Receiver General of Canada to remit to Mr. Alain Marcil the deposited sum of $5,521.87, to Mr. Normand Ouelletre [sic], the deposited sum of $5,516.92, to Mr. Daniel Pomerleau the deposited sum of $3,606.28 and to Mr. Daniel Mercier the deposited sum of $1,648.73. |
The referee further ordered the employer to pay the employees in question various amounts for "interest and additional compensation", "non-pecuniary damages", "exemplary damages" and "counsel fees":
| [Translation] |
| Accordingly, Mr. Alain Marcil shall receive from the Respondent: |
| $1,140.55 interest and additional compensation from January 4, 1995 to January 1, 1997 |
| $2,000.00 exemplary damages |
| $2,000.00 counsel fees. |
| Therefore, $5,140.55 receivable from the Respondent |
| Mr. Normand Ouellette shall receive from the Respondent: |
| $1,139.54 interest and additional compensation from January 4, 1995 to January 1, 1997 |
| $1,000.00 non-pecuniary damages |
| $2,000.00 exemplary damages |
| $2,000.00 counsel fees. |
| Therefore, $6,139.54 receivable from the Respondent |
| Mr. Daniel Pomerleau shall receive from the Respondent: |
| $718.83 interest and additional compensation from January 4, 1995 to January 1, 1997 |
| $1,000.00 non-pecuniary damages |
| $2,000.00 exemplary damages |
| $2,000.00 counsel fees. |
| Therefore, $5,718.83 receivable from the Respondent |
| Mr. Daniel Mercier shall receive from the Respondent: |
| $328.64 interest and additional compensation from January 4, 1995 to January 1, 1997 |
| $1,000.00 non-pecuniary damages |
| $2,000.00 exemplary damages |
| $2,000.00 counsel fees. |
| Therefore, $5,328.64 receivable from the Respondent. |
The referee justified the award of these latter amounts as follows:
| [Translation] |
| Let us now look at the question of the costs referred to in paragraph (c) of subsection 251.12(4) of the Canada Labour Code. First, there is no doubt in my mind that interest is owing on these various monetary amounts. As to the counsel fees, they are part of the costs and I think that in this case, the complainants could not, given the complexity of the proceedings, have been represented without counsel. Accordingly $2,000 for each of the complainants does not appear to me to be exaggerated. |
| There remains the issue of the non-pecuniary and exemplary damages. Mr. Calce"s conduct in these dismissals was to say the least oppressive, not to mention the stress, the difficulty of relocating after a dismissal, and finally the inconvenience resulting from the breach of the contract of employment. However, considering the limited evidence concerning the consequences of their dismissal, we award to Messrs. Pomerleau, Mercier and Ouellette the sum of $1,000 each for non-pecuniary damages, Mr. Marcil having already received that amount at the time of his dismissal. |
| Concerning the exemplary damages, counsel for the complainants relied on the second part of section 49 of the Charter of Human Rights and Freedoms, which reads as follows: |
| "In case of unlawful and intentional interference, the tribunal may, in addition, condemn the person guilty of it to exemplary damages." |
| Concerning the exemplary damages, the evidence is quite clear concerning this unlawful and intentional interference by Mr. Calce: "dogs", the meetings and also "you"re biting the hand that feeds you." Considering that no evidence in rebuttal of this attitude and these remarks was presented, considering as well that Mr. Calce did not deign to appear to explain himself, we think it is appropriate to award to each and every complainant $2,000 in exemplary damages. |
* * * * *
It must first be determined whether the arbitration award is reviewable by the court, in view of the comprehensive privative clause set out in subsections 251.12(6) and (7) of the Code, which read as follows:
| 251.12 (6) The referee's order is final and shall not be questioned or reviewed in any court. |
| (7) 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 a referee in any proceedings of the referee under this section. |
In Canada Post Corporation v. Pollard, [1994] 1 F.C. 652, Décary J.A., for the Federal Court of Appeal, reviewed the applicable cases on judicial review of a decision protected by a privative clause, at pages 663-66:
| There has been such an avalanche of decisions dealing with the appropriate standard of judicial review since the landmark decision of the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault, ... that it is easy to lose sight of what Bibeault basically stands for. The subsequent application to particular cases of the "functional and pragmatic approach" suggested by Beetz J. in Bibeault should not distract us from the essential teaching of that decision, i.e. that at the very beginning of the judicial review process there is but one question the Court should ask itself: whether the legislator intended, expressly or by implication, the question to be within the jurisdiction conferred on the tribunal.... |
| At this early stage, I hasten to add, no curial deference to the tribunal is to be shown, for the courts are eminently well suited for determining whether a tribunal has exceeded the jurisdiction which is granted to it by its enabling statute (PSAC (1993), at page 963, Cory J.). |
| When the answer to the question is that the legislator did not intend the question to be within the jurisdiction conferred on the tribunal, the tribunal will still have the jurisdiction to answer the question, but a mere error in the interpretation of the provision will constitute what has been referred to as a jurisdictional error and cause the tribunal to lose jurisdiction, even in the face of a privative clause (Université du Québec, at page 494, L'Heureux-Dubé J.). The test is that of correctness. |
| When the answer to the question is that the legislator did intend the question to be within the jurisdiction conferred on the tribunal, the tribunal will be deemed to have acted within its jurisdiction in interpreting the provision and the court, even in the face of a privative clause...will not intervene unless the tribunal has erred in a patently unreasonable manner (Bibeault, at page 1086, Beetz J.; Paccar, at page 1003, La Forest J.; PSAC (1993), at page 962, Cory J.). The patently unreasonable test is a severe one (Paccar, at page 1003, La Forest J.), a very strict one (PSAC (1993), at page 964, Cory J.). It sets a high standard of review: it is not enough that the decision of the tribunal is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational, that is to say evidently not in accordance with reason (PSAC (1993), at page 963, Cory J.; Domtar, at page 775, L'Heureux-Dubé J.) or not sustainable on any reasonable interpretation of the facts or of the law (National Corn Growers Assn., at page 1369, Gonthier J.). The severity of the test requires the courts to adopt a posture of deference to the decision of the tribunal (Paccar, at pages 1003-1004, La Forest J.). Deference is particularly suited in labour disputes (Bibeault, at page 1089, Beetz J; Paccar, at pages 1004-1005, La Forest J.), although the degree of deference will vary depending on whether the tribunal falls towards the lower or the upper end of the spectrum of those administrative tribunals charged with policy deliberations to which the courts should defer (Dayco, at page 266, La Forest J.; Mossop, at page 585, La Forest; Bradco, at pages 336-337, Sopinka J.). |
Applying these principles to the case at bar, it is necessary to distinguish between the part of the arbitration award that upholds the payment orders issued on June 21, 1996 by the inspector and the part of the arbitration award that allows the employees "interest and additional compensation", "exemplary damages", "non-pecuniary damages" and "counsel fees".
In the case of the first part of the decision, I am of the opinion that the referee"s jurisdiction is not at issue since he was authorized by the effect of subsections 251.1(1) and 251.12(4) to rule on the right claimed by the employees in their complaints to be paid for overtime and statutory holidays. In this regard, therefore, the issue is simply one of determining whether the referee erred in a patently unreasonable manner. As it happens, I am not persuaded that such is the case. The referee took into account the inspector"s report, as he was entitled to do, and assessed the testimony of the employees concerned. Given the evidence on the record, I see nothing clearly irrational either in the way in which the referee applied the evidence or in the way in which he assessed it.
However, in so far as the second part of the decision is concerned, I am of the opinion that the referee acted in excess of his jurisdiction in granting "interest and additional compensation", "non-pecuniary damages" and "exemplary damages" . Such compensation is not only not provided for in subsections 251.1(1) and 251.12(4) of the Code, provisions that define the jurisdiction of the inspector and the referee, respectively, but it is not even claimed in the complaints of the employees in question. Apart from the decision of the referee himself, I see nothing on the record that would indicate any amendment whatsoever to the complaints at the origin of the matter that ultimately came before the referee. Accordingly, by deciding ultra petita and awarding compensation that was not prescribed by some statutory provisions that limit his jurisdiction, the referee committed an error that "will cause [him] to lose jurisdiction and subject [him] to judicial review".7 It should also be pointed out that the referee intended to compensate the consequences of dismissals which were not the subject matter of the complaints in question, and which involve the application of subsection 242(4)8 of the Code, a different provision that is not relevant.
However, in so far as the compensation for "counsel fees" is concerned, I am of the opinion that this award was not patently unreasonable, given the discretion and jurisdiction granted by paragraph 251.12(4)(c) to award costs.
For these reasons, the application for judicial review is allowed in part. The referee"s decision, in so far as it allows compensation for "interest and additional compensation", "non-pecuniary damages" and "exemplary damages", is quashed and the matter is returned to a referee who shall be appointed in accordance with subsection 251.12(1) of the Code for a decision that shall be in accordance with the reasons herein. More specifically, this referee shall simply grant the respondent employees the same amounts as those granted in the arbitration decision of February 14, 1997, less the sums awarded for "interest and additional compensation", "non-pecuniary damages" and "exemplary damages". The referee shall accordingly set aside the order issued to the employer to pay the employees the amounts corresponding to the latter compensation, now excluded, and shall order repayment thereof by the employees to the employer.
OTTAWA, Ontario
October 17, 1997
| Yvon Pinard |
| J. |
Certified true translation
Christiane Delon
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
| FILE NO. T-456-97 |
| STYLE: AUTOCAR CONNAISSEUR INC. |
| v. |
| ME JEAN-PAUL LALANCETTE ET AL. |
| PLACE OF HEARING: MONTRÉAL, QUEBEC |
| DATE OF HEARING: OCTOBER 15, 1997 |
HEARD EX PARTE
REASONS FOR JUDGMENT OF PINARD J.
| DATED: OCTOBER 17, 1997 |
APPEARANCES:
NORMAND LAURENDEAU FOR THE APPLICANT
SOLICITORS OF RECORD:
| GUY & GILBERT FOR THE APPLICANT |
MONTRÉAL, QUEBEC
__________________1 251.12 (1) On receipt of an appeal, the Minister shall appoint any person that the Minister considers appropriate as a referee to hear and adjudicate on the appeal, and shall provide that person with(a) the payment order or the notice of unfounded complaint; and(b) the document that the appellant has submitted to the Minister under subsection 251.11(1).
2 251.1 (1) Where an inspector finds that an employer has not paid an employee wages or other amounts to which the employee is entitled under this Part, the inspector may issue a written payment order to the employer, or, subject to section 251.18, to a director of a corporation referred to in that section, ordering the employer or director to pay the amount in question, and the inspector shall send a copy of any such payment order to the employee at the employee's latest known address. (2) Where an inspector concludes that a complaint of non-payment of wages or other amounts to which an employee is entitled under this Part is unfounded, the inspector shall so notify the complainant in writing.
3 249. (1) The Minister may designate any person as an inspector for the purposes of this Part.
4 251.11 (1) A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister, in writing, within fifteen days after service of the order, the copy of the order, or the notice.
5 251.11 (2) An employer or a director of a corporation may not appeal from a payment order unless the employer or director pays to the Minister the amount indicated in the payment order, subject to, in the case of a director, the maximum amount of the director's liability under section 251.18.
6 251.12 (4) The referee may make any order that is necessary to give effect to the referee's decision and, without limiting the generality of the foregoing, the referee may, by order,(a) confirm, rescind or vary, in whole or in part, the payment order or the notice of unfounded complaint;(b) direct payment to any specified person of any money held in trust by the Receiver General that relates to the appeal; and(c) award costs in the proceedings.
7 U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048 at p. 1086.
8 242. (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.