Date: 20001025
Docket: T-1558-99
Ottawa, Ontario, this 25th day of October, 2000
| PRESENT: THE HONOURABLE MR. JUSTICE JOHN A. O'KEEFE |
BETWEEN:
MARITIME TELEPHONE AND TELEGRAPH CO. LTD.
Applicant
- and -
MARTIN ANTHONY HOWARD
Respondent
REASONS FOR ORDER AND ORDER
O'KEEFE J.
BACKGROUND FACTS
[1] This is an application for judicial review of the decision of labour adjudicator Peter Darby, rendered July 27, 1999, wherein the respondent, Martin Anthony Howard ("Mr. Howard" or "respondent") was found to have been unjustly dismissed from his employment with the applicant, Maritime Telephone and Telegraph Co. Ltd. ("Maritime" or "applicant"), pursuant to subsection 240(1) of the Canada Labour Code, R.S.C. 1985,
c. L-2 (the "Code"). Mr. Howard was awarded back pay, representing his salary from the date of dismissal until June 30, 1999 as well as 50% of his costs as between solicitor and client.
[2] Mr. Howard was employed by Maritime from May 3, 1970 to March 13, 1998 in a variety of positions. His final position was as a buildings manager, which involved overall responsibility for the real estate assets of the employer. In addition, a considerable number of overtime hours were logged by him while assisting and supervising employee office moves (furniture etc.) among various company buildings. Maritime was consolidating its operations and certain of its buildings were no longer being used to house employees.
[3] Throughout his employment, Mr. Howard obtained favourable performance appraisals. However, in early 1998, as a result of further downsizing and corporate reorganization, Maritime considered eliminating one manager (out of the seven employed) from its operations. A Mr. Bowlin determined that this employee was to be Mr. Howard.
[4] On February 23, 1998, Maritime forwarded a dismissal letter to Mr. Howard, indicating that as a result of the reorganization, the company no longer had a place for him. A severance package was outlined in the letter as well.
[5] Mr. Howard was of the opinion that he had been unjustly dismissed and filed a complaint pursuant to the Code and Professor Peter Darby was appointed to hear the complaint.
Decision of the Adjudicator
[6] Hearings were held on November 25, 1998 as well as March 24, 25, 29, 1999. The decision was rendered on July 27, 1999.
[7] Adjudicator Darby found that Mr. Howard was unjustly dismissed. In response to the protestations of Maritime as to lack of jurisdiction, Adjudicator Darby found that Mr. Howard had not been dismissed for "lack of work" or "discontinuance of a function". Adjudicator Darby did, however, ultimately find that Mr. Howard would have been laid off for lack of work on June 30, 1999. Adjudicator Darby was alive to the ability of an employer to discontinue a function or spread a job function among others. But in the situation before him, Adjudicator Darby found that Mr. Howard's job was merely passed on to another employee. Adjudicator Darby also found that such action was not the reason Mr. Howard was laid off. Adjudicator Darby found that Mr. Howard was laid off for "budgetary" reasons. With respect to the after-hours moving, Adjudicator Darby noted that they continued after Mr. Howard's dismissal (the hours were, however, greatly reduced and stopped entirely two months subsequent to his dismissal).
[8] Adjudicator Darby also stated that the grounds for dismissal must be clearly set out in the dismissal letter. The letter in this case made no mention of discontinuance of a function or of shortage of work: the precise reasons, other than dismissal for cause, which would deprive the arbitrator of jurisdiction, as outlined in paragraph 242(3.1)(a) of the Code, were not mentioned.
[9] Adjudicator Darby found that afterwards, when Maritime realized that Mr. Howard was complaining, different reasons for dismissal were "manufactured". Adjudicator Darby found that there was no shortage of work as alleged by the manager, whom Adjudicator Darby found to lack credibility. "Shortage of work" as the reason for the dismissal was a "sham".
[10] Subsequent to these findings, Adjudicator Darby concluded that Mr. Howard could not be reinstated since his job was "gone". However, he ordered lost wages for the period from March 13, 1998 to June 30, 1999. He also ordered payment of 50% of Mr. Howard's attorney's fees.
SUBMISSIONS
[11] Both parties are in agreement that the labour adjudicator must correctly interpret a statutory provision circumscribing his jurisdiction in order to avoid review. Therefore, with respect to questions of jurisdiction, the standard of review is correctness.
[12] The applicant submits that the Code allows employers to respond to economic forces and excludes laid off employees, which layoffs were caused by shortage of work or the discontinuance of a function, from the remedy of adjudicative review. Were it otherwise, the adjudicator would be substituting his decision for that of the employer. Being laid off has nothing to do with being dismissed, which is the hallmark of the adjudicator's jurisdiction.
[13] According to the applicant, there is a two-stage inquiry in determining whether paragraph 242(3.1)(a) of the Code applies to a given case: Is the layoff genuine? If so, did the employer act properly in selecting the claimant for termination rather than someone else?: which goes to good faith. The applicant notes that the adjudicator found good faith to exist in the case at bar.
[14] Courts have held that "lack of work" includes budget constraints or downsizing in response to economic pressures in response to which the employer determines that the work currently being performed can be performed by fewer employees. The applicant submits that clearly Mr. Howard was laid off because of lack of work. Adjudicator Darby was incorrect in finding that Mr. Howard was not laid off because of lack of work.
[15] And with respect to the discontinuance of a function, the applicant submits that the employer can spread work among fewer employees if he acts in good faith. Adjudicator Darby was incorrect to find that there was no discontinuance of a function.
[16] The applicant also complains that the adjudicator added a requirement to a layoff notice, a requirement that is not contained in the Code, namely, that there be a duty of procedural fairness and the exact reason for the layoff be indicated. He held there was a "right" to be given detailed reasons for layoff.
[17] The applicant submits that Mr. Howard was terminated because his supervisor was instructed to reduce his budget, and not because of shortage of work or discontinuance of a function. Duties of his regular job continued until June 30, 1999. The arbitrator correctly concluded that the reason of "shortage of work" was a sham.
[18] The respondent recognizes that employers are given the authority to reorganize and restructure their business. They can lay-off employees in a restructuring provided that such restructuring results in a shortage of work or discontinuance of a function. However, since this was not the case with Mr. Howard, and the decision of the adjudicator should be affirmed.
ISSUES
| [19] 1. What is the standard of review of the arbitrator's decision, in relation to |
whether he has jurisdiction to hear the matter?
2. Did subsection 242(3.1) of the Canada Labour Code, R.S.C. 1985, c. L-2 prevent the arbitrator from having jurisdiction to hear the matter?
STATUTORY PROVISIONS
| [20] Relevant sections of the Code are as follows: |
| Complaint to inspector for unjust dismissal 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. |
Plainte 240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si_: a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur; b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective. |
| Reasons for dismissal 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. |
Motifs du congédiement 241. (1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l'employeur de lui faire connaître les motifs du congédiement; le cas échéant, l'employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande. |
| Reference to adjudicator 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). . . . |
Renvoi à un arbitre 242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement. . . . |
| Decision of adjudicator (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. |
Décision de l'arbitre (3) Sous réserve du paragraphe (3.1), l'arbitre_: a) décide si le congédiement était injuste; b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre. |
| Limitation on complaints (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 . . . |
Restriction (3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants_: a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste; . . . |
| Where unjust dismissal (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. |
Cas de congédiement injuste (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. |
| [21] Finally, subsection 243(1) is the privative clause, rendering the decision of the |
| adjudicator immune from judicial review (except for matters going to jurisdiction): |
| Decisions not to be reviewed by court 243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court. |
Caractère définitif des décisions 243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires. |
| Analysis and Decision |
| [22] Subsection 242(3.1) of the Code is the critical provision in the case at bar. It is |
| this provision which removes the jurisdiction of the adjudicator to consider a complaint of unjust dismissal in the circumstance where the dismissal is due to a lay-off caused by "lack of work" or the "discontinuance of a function". Simply put, Adjudicator Darby does not have jurisdiction to determine the matter if Mr. Howard "has been laid off because of lack of work or because of the discontinuance of a function". |
| [23] Issue 1 |
| What is the standard of review of the arbitrator's decision, in relation to |
| whether he has jurisdiction to hear the matter? |
| I agree with the parties that the standard of review of an arbitrator's jurisdiction to hear the matter is one of correctness. The arbitrator must be correct in his determination of his jurisdiction. |
| [24] Issue 2 |
| Did subsection 242(3.1) of the Canada Labour Code, R.S.C. 1985, c. L-2 prevent the arbitrator from having jurisdiction to hear the matter? |
| The decisions of this and other Courts have made a distinction between the review of the arbitrator's decision as to whether or not he has jurisdiction and his finding in relation to the facts he needs to determine in order to decide whether or not he has jurisdiction to hear the matter. In this case, the arbitrator must first decide certain facts in order to then make a determination as to whether or not Mr. Howard was laid off "because of a lack of work or because of the discontinuance of a function". This was set out by Strayer J. (as he then was) in Sedpex Inc. v. Canada (Adjudicator appointed under the Canada Labour Code) [1989] 2 F.C. 289 (F.C.T.D.) at pages 296 - 298: |
| With respect to the "correctness" of facts, however, it must be recognized that neither a tribunal nor a court ever can be said to have pronounced incontestably the correct version of past events. Those events can never be reproduced. What fact-determination bodies produce, instead are findings of fact which must stand in place of the facts themselves. Depending on the processes involved in reaching them, such findings may to a greater or lesser degree correspond to what actually happened. It is pushing judicial self-esteem beyond the bounds of decency to assume that courts will always be in a better position to make such findings. The legal system recognizes that some procedures and institutions are more likely to produce accurate findings of fact than are others. Thus for example appellate courts normally defer to the factual findings of trial courts, particularly where there are issues of credibility which are thought to be better assessed by the judge who hears and sees the witness, unless such findings of fact are "clearly wrong". Further, it has been said that even where there are no such issues of credibility |
| An appellate court is not, however, even in that circumstances, entitled to substitute its views for those of the Trial Judge simply because it would have concluded differently, the appellate court must conclude that he was wrong. |
| It will be noted that appellate courts take this cautious approach, even though they typically have before them a complete transcript of the evidence taken before the trial court. |
| This suggests that a court should embark with some caution on assessing the "correctness" of jurisdictional facts determined by a tribunal. This is particularly true where, as in the present case, I do not have before me a transcript of the oral evidence taken before the adjudicator, nor as far as I can see do I have any new evidence before me that was not before the adjudicator. Indeed, the only evidence before me consists of two affidavits sworn by employees of the applicant which briefly describe the evidence that was put before the adjudicator much more fully and by viva voce evidence. Dickson J. stated it thus in Jacmain v. Attorney General (Can). et al.: |
| The intractable difficulty is this. It is hard to conceive that a legislature would create a tribunal with a limited jurisdiction and yet bestow on such tribunal an unlimited power to determine the extent of its jurisdiction. On the other hand, if the correctness of every detail upon which the jurisdiction of the tribunal depends is to be subject to re-trial in the Courts and the opinion of a judge substituted for that of the tribunal, then the special experience and knowledge of the members of such a tribunal and the advantage they have of hearing and seeing the witnesses may be lost. The power to review jurisdictional questions provides the Courts with a useful tool to ensure that tribunals deal with the type of issues which the Legislature intended. It enables the Courts to check unlawful attempts at usurpation of power. But the Courts, in my opinion, should exercise restraint in declaring a tribunal to be without jurisdiction when it has reached its decision honestly and fairly and with due regard to the material before it. The Court should allow some latitude in its surveillance of jurisdictional findings. It should ask whether there is substantial evidence for decisions of fact and a rational basis for decisions of law, or mixed decisions of fact and law. The error must be manifest. The role of the Court is one of review, not trial de novo. |
| Consistently with this approach, I believe that it would be inconsistent with the purposes of section 61.5 if the Trial Division of this Court were to make de novo and routine factual determinations for the purposes of paragraph 61.5(3)(a) as to whether a person has been laid off because of lack of work, prior to the adjudicator having the opportunity to hear all the evidence and make a final decision which can be reviewed by the Federal Court of Appeal under section 28. |
| I therefore conclude from the foregoing that paragraph 61.5(3)(a) does involve a question of jurisdiction and that I can review the conclusions of the adjudicator for the purpose of determining whether he has jurisdiction to proceed with the complaint. In doing so it is open to me to form my own opinions as to the relevant questions of law but that with respect to his findings of fact I should not substitute my own view for his unless his can be demonstrated to be manifestly wrong. |
| It is against this background that I must determine the correctness of Adjudicator Darby's decision that subsection 242(3.1) of the Code did not prevent him from having jurisdiction to hear the matter. |
| [25] It is only if Mr. Howard was laid off because of lack of work or because of the |
| discontinuance of a function that Adjudicator Darby would not have jurisdiction because of subsection 242(3.1) of the Code. The term "lack of work" is a relatively straightforward term and budget constraints or downsizing in response to economic pressures in response to which the employer determines that the work currently being performed can be performed by fewer employees. Adjudicator Darby stated that the evidence makes no "reference to a reduction generally in the work of LARE (The Logistics and Real Estate Department) or of the real estate division or of Mr. Howard or of anyone of the eight managers, and, clearly, furniture moves on overtime continued beyond March 13, 1998 (Mr. Howard's last day of actual work)". I agree that Adjudicator Darby was correct that the lay-off of Mr. Howard was not due to lack of work. |
| [26] The meaning of the words "discontinuance of a function", however, is not as |
| straightforward but the Supreme Court of Canada in Fleiger v. New Brunswick [1993] 2 S.C.R. 651 stated at pages 663 to 664: |
| 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. |
| It is this definition of "function", in the sense of "office" which best comports with the environment of the work place. The very word "employment" indicates the existence of an employee and an employer. A term such as "function" or "office" must have a meaning for both these parties. For example, a person may have the "office" of plant superintendent. A person functioning as a plant superintendent carries out a regime or set of activities and duties that forms the office of plant superintendent. Both the employer and the employee understand what is required in order to perform or to carry out that particular office. Similarly the "office" of secretary or punch press operator carries with it a particular set of activities and duties. A particular bundle of skills is required to perform the duties and activities required by each of these offices. Once again both the employer and employee will know exactly what is required to perform the activities of the particular office. |
| 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 [sic] 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 a 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 also be a "discontinuance of a function". |
| [27] Adjudicator Darby's decision made certain findings (1 - 7) and the applicant sent |
| an internal memo which contained, in part, the statement in number 8 below: |
1. The only reason given to Mr. Howard prior to the lay-off letter was that the
lay-off was for budgetary reasons.
2. That Mr. Bowlin, on behalf of the applicant, did not state the exact date on which he assessed the employees to determine who would be laid off.
3. That in Mr. Howard's Personnel Review Report for the year 1997 dated February 3, 1998, the notation "RA"- retain on current assignment - was placed on his file. Mr. Bowlin and Mr. Howard discussed the evaluation on February 11, 1998 and nothing was said then about a possible or certain termination from employment.
4. No evidence was given that Mr. Bowlin ever told Mr. Howard that he was being laid off because of "lack of work" or "the discontinuance of a function".
5. Only 5% of Mr. Howard's regular job related to furniture moves. The rest of the furniture moving had been done on overtime. The furniture moving aspect of his job was to be drastically reduced in 1998, not totally eliminated.
6. That Mr. Howard's real job remained.
7. That on Mr. Bowlin's Business Plan dated February 23, 1998, Mr. Howard was still shown in the position "Technical Support - Buildings" on the organization chart.
8. On March 23, 1998, Maritime sent a memo which stated in part:
Tim Laplante, Technical Support - Buildings, replaces the recently retired Tony Howard with responsibility for buildings operations and maintenance within central district.
| [28] Because the applicant is seeking to avail itself of the exemptions contained in |
subsection 242(3.1) of the Code, the applicant must prove that the limitations apply so as to deprive the adjudicator of jurisdiction.
| [29] I do not have the benefit of a transcript and therefore I must rely on facts |
contained in the adjudicator's decision and in the documents.
| [30] Based on the facts I have before me, was Adjudicator Darby correct in ruling that |
Mr. Howard was not laid off due to a lack of work. The evidence was that Mr. Laplante replaced the retiring Tony Howard. If Mr. Laplante replaced Mr. Howard, how could there be a lack of work for Mr. Howard, as pointed out by Adjudicator Darby. Most of the evidence as to the decrease in work related to the after hours overtime moving work not the "regular job" of Mr. Howard. Mr. Howard was not told by Mr. Bowlin that his lay-off was due to lack of work. These words were never mentioned by Mr. Bowlin either in the termination letter or according to Adjudicator Darby in his testimony. I adopt the caution given by Strayer J. in Sedpex, supra, with respect to the finding of facts by the adjudicator in order to determine jurisdiction. I am, however, cognizant of the requirement that the adjudicator must be correct when he finds that the respondent was not laid off due to a lack of work. I am satisfied that the adjudicator was correct in finding that the respondent was not laid off due to a lack of work.
| [31] The second issue on which the adjudicator must be correct is whether there was a |
discontinuance of a function. As stated earlier, the discontinuance of a function can occur when an employee's "set of activities" that form an office is no longer carried out as a result of an employer acting in good faith. By way of example, if a particular set of activities is simply handed over in its entirety to another person, or if the activity or duty is given a new or different title so as to fit another job description, there would not be a discontinuance of a function. There would be a discontinuance of a function if an employer's set of activities are divided among other people (see Mudarth v. Canada (Minister of Public Works), [1989] F.C. 371 (F.C.T.D.). This seems to me to make eminent sense because if an employee's total set of activities is transferred to another person, the function (i.e. office manager) would still exist.
| [32] From a review of the decision of Adjudicator Darby and the other documents, it is |
obvious to me that there was no discontinuance of a function with respect to Mr. Howard. Mr. Bowlin did not testify that Mr. Howard's office had been discontinued. In fact, Mr. Bowlin prepared a Business Plan dated February 23, 1998 which showed Mr. Howard on the organizational chart in the position "Technical Support - Buildings". It can hardly be said that as of February 23, 1998 that there had been a discontinuance of a function (the office of Mr. Howard) as contemplated by subsection 242(3.1) of the Code. I agree with Adjudicator Darby that there had not been on February 23, 1998, a discontinuance of a function (the office or position of Mr. Howard). I am fortified in this position by the evidence of Mr. Bowlin who testified Mr. Laplante and Mr. Howard "were available for one job and I chose Laplante". This further shows that there was no "discontinuance of a function" within the meaning of subsection 242(3.1) of the Code.
| [33] In my review of Adjudicator Darby's decision, I noted that he stated that the |
employer had acted without bias and properly carried out the procedures, but a reading of his decision as a whole leads me to believe that he was not talking about the process as at the date of termination, but the process that was used after the date of termination.
| [34] The memo of Mr. Bowlin to Mr. Roberts dated March 10, 1998 was a memo |
made after the termination and is very vague. This is not the kind of memo that proves that someone is laid off because of lack of work or the discontinuance of a function within the meaning of subsection 242(3.1) of the Code.
| [35] As well, it has been suggested that the letter from Linda L. Pirard to Mr. Dugas of |
Human Resources Development Canada dated March 17, 1998 establishes that Mr. Howard was laid off because of lack of work or the discontinuance of a function. I do not agree. While this letter is part of the record before the adjudicator (subsection 242(1) of the Code), I cannot take this letter to establish the application of subsection 242(3.1) of the Code. There is absolutely no evidence of Ms. Pirard's involvement in the process nor of the source of the information for her statements. As well, although the Code provides for reasons to be given at a time later than the lay-off, I am of the view that if reasons are given either in writing or orally at the time of the lay-off, then the later reasons should be in accord with the earlier reasons.
| [36] It is my opinion that should a party wish to avail itself of subsection 242(3.1) of |
the Code, then it must establish that the particular lay-off falls within this section. This cannot be done by the use of vague language. By way of example, consider the situation in Jindal v. Atomic Energy of Canada Limited (1998), 98 C.L.L.C. 220-047 (F.C.A.), a case where subsection 242(3.1) of the Code was found to apply. There the employer led evidence that 17 departments were truncated down to 5 departments. There were 87 positions in the 17 departments and there would be 62 positions in the 5 departments. This was all completed before any actual lay-offs were commenced. From Adjudicator Darby's decision, it is not certain whether the assessment of the employees was done before or after Mr. Howard's termination. The same general approach was used by the employer in Gonthier et al v. Canada (1986) 77 N.R. 386 (F.C.A.). All that the employer needed to do in this case was to show that because of a budgeting cut back, there would be a lack of work or the discontinuance of a function. In my opinion, it did not so do in this case as Mr. Laplante was said to be replacing the retiring Mr. Howard and the bulk of Mr. Howard's regular job with the exception of the overtime work was transferred to Mr. Laplante which to my mind, is not the discontinuance of Mr. Howard's office.
| [37] As I have determined that subsection 242(3.1) does not apply to this matter, |
therefore the adjudicator is not deprived of jurisdiction to hear the matter. Secondly, there was no lay-off of Mr. Howard "because of lack of work or because of the discontinuance of a function". Adjudicator Darby was correct in his conclusion on these issues.
| [38] Because of my decision on the other issues, it is not necessary that I deal with the |
issue of procedural fairness under paragraph 242(3.1)(a).
| [39] The application for judicial review is therefore dismissed with costs to the |
respondent.
ORDER
| [40] IT IS ORDERED that the application for judicial review is dismissed with costs |
to the respondent.
"John A. O'Keefe"
J.F.C.C.
Ottawa, Ontario
October 25, 2000