Ottawa, Ontario, January 16, 2007
PRESENT: The Honourable Madam Justice Tremblay-Lamer
BETWEEN:
and
REASONS FOR JUDGMENT AND JUDGMENT
[1] This is an application for judicial review pursuant to subsection 18.1(1) of the Federal Courts Act, R.S.C. 1985, c. F-7 of a December 12, 2005 decision of adjudicator Claude Lauzon. The latter held that Mr. Mark Delisle (the applicant) could not be found to have been unjustly dismissed because he was not “dismissed” under section 240 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
FACTS
[2] The following are the most relevant background facts giving rise to the present judicial review.
[3] In August 1999, a tripartite agreement between the Mohawk Council of Kanesatake (the Council, or the respondent), and the governments of Canada and Quebec officially created the Kanesatake Mohawk Police Force (the Force), subsequent to an interim agreement signed in December 1996. This 1999 document was titled “Agreement Concerning the Establishment and the Maintenance of a Police Force in Kanesatake” (the 1999 Agreement) and was to have effect from April 1, 1999 to March 31, 2002 (section 3.1) with provisions relating to intermediate extensions of the existing agreement during the negotiation of a subsequent agreement.
[4] The 1999 Agreement also created the Kanesatake Mohawk Police Commission (KMPC) to govern the Force, making it responsible for “all decisions relating to hiring and dismissal of members of the police force” among other things (at section 5.3). It also specified that members of the Force would “exercise their powers as employees” of the Council (at section 4.5), and that the Council “shall be solely responsible for the recruitment and selection” of these officers (at section 4.6).
[5] In a letter dated April 23, 1998, the applicant, Mr. Mark Delisle, was offered employment with the Council as a police officer, for a term of sixty months commencing May 21, 1997 and ending May 20, 2002, “at which time it shall terminate automatically, unless renewed in writing”.
[6] Subsequent to a Council meeting discussing the issue of contractual versus permanent status, the Council issued a memo to the KMPC dated August 3, 2000, stating that “the Council recommends to the Commission that all KMP officers be given the status of permanent employees.” The Council requested a written decision from the KMPC with regard to this recommendation “so that necessary changes are done to the employees’ files”.
[7] At a December 14, 2001 meeting of the KMPC, it passed a motion that the officers should become permanent employees. A May 23, 2002 memo from the KMPC to various officers of the Force, including the applicant, stated that “[t]his recommendation was forwarded to the Mohawk Council of Kanesatake through the office of the Director of Personnel. This decision stands today”.
[8] This May 2002 memo was followed by a series of correspondence, all informing the applicant that his employment contract was extended for specified and varied periods of time. These correspondences also referred to the fact that determination of employment status was pending, but that the applicant would be kept informed prior to the expiry of each contract extension. Ultimately, the applicant was advised in April 2003 that his employment contract had been renewed for one year, and that it would end on March 31, 2004.
[9] On March 31, 2004, the 1999 Agreement expired and was not renewed. The respondent maintains that after the expiry of the agreement it was no longer able to maintain the Force due to a lack of funding.
[10] The applicant filed a complaint with the Canada Labour Board under section 240 of the Code that he was unjustly dismissed by the Council on March 31, 2004. A Labour Affairs officer was assigned to investigate the matter, but as the parties were unable to agree to a resolution, a request was made to have the dispute directly referred to arbitration.
[11] Mr Claude Lauzon was appointed to adjudicate the matter and determine whether there had been an unjust dismissal. He found that prior to deciding whether or not the applicant had been unjustly dismissed, the jurisprudence was clear that he had to first determine if a dismissal had even occurred. In the words of Mr. Lauzon:
La condition fondamentale pour l’exercice du droit reconnu par l’article 240 du Code canadien du travail est que la personne qui porte plainte ait été injustement congédiée. Avant même de décider si le congédiement était injuste, l’arbitre doit d’abord déterminer s’il y a vraiment eu congédiement.
[12] In the absence of a definition for dismissal in the Code, Mr. Lauzon relied on jurisprudence from the Federal Court and Federal Court of Appeal to the effect that the failure to renew a fixed term contract does not constitute a dismissal. Accordingly, he found the applicant was not entitled to complain as he had not been dismissed, and he rejected the claim:
… le plaignant n’a jamais été congédié par le Conseil. On l’a simplement avisé que son contrat d’engagement, tel qu’extensionné, ne serait pas renouvelé à sa dernière échéance du 31 mars 2004. Vu ce qui précède, Monsieur Delisle n’était pas dans une situation qui lui permettait de se plaindre d’avoir été congédié injustement, étant donné qu’il n’a jamais été congédié.
Pour toutes ces raisons, la plainte est rejetée.
[13] The applicant brought a notice for judicial review of this decision on January 10, 2006.
LEGISLATIVE CONTEXT
[14] The legislative provisions at the heart of this matter are found in Part III of the Code, Division XIV, which concerns unjust dismissal:
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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.
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
(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.
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.
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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. 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 (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. (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; b) la présente loi ou une autre loi fédérale prévoit un autre recours. 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.
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ISSUES
[15] This application raises the following issues:
1. The applicable standard of review;
2. Whether the adjudicator erred in concluding that there had been no dismissal.
ANALYSIS
1. Standard of review
[16] The applicant submits that despite the privative clause in section 243 of the Code, the question of whether or not he could file a complaint under section 240 is a jurisdictional question, and that the appropriate standard of review is correctness.
[17] As the Supreme Court has repeatedly stated, “the language and approach of the "preliminary", "collateral" or "jurisdictional" question has been replaced by [the] pragmatic and functional approach.” The focus of the inquiry is on the particular, individual provision being invoked and interpreted by the tribunal (Pushpanathan v. Canada, [1998] 1 S.C.R. 982, at para. 28). The labeling of a question as “jurisdictional” in order to arrive directly at a correctness standard is no longer appropriate. “There is no shortcut past the components of the pragmatic and functional approach” (Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20, at para. 21).
[18] The pragmatic and functional approach involves the consideration of four contextual factors: (1) the presence or absence of a privative clause or statutory right of appeal; (2) the expertise of the tribunal relative to that of the reviewing court on the issue in question; (3) the purposes of the legislation and the provision in particular; and (4) the nature of the question -- law, fact or mixed law and fact (Dr. Q v. College of Physicians and Surgeons of British Colombia, [2003] 1 S.C.R. 226, 2003 SCC 19 at para. 26; Ryan, above, at para. 27).
[19] The strong language of the privative clause contained in section 243 of the Code, and pertaining specifically to an adjudicator appointed under section 242 of the Code, is clear of Parliament’s intention to accord the highest level of deference to the adjudicator’s decisions.
[20] Parliament intended to confer “specific powers over specific and defined matters” to different decision-makers in the Code (Canada Post v. Pollard, [1994] 1 F.C. 652 at para. 25). Correspondingly, different levels of deference were contemplated by the legislator for adjudicators appointed under different parts of the Code.
[21] The expertise of an adjudicator appointed to determine unjust dismissal matters is not particularly specialized, as subsection 242(1) only stipulates that it be "any person that the Minister considers appropriate as an adjudicator". As articulated by the Federal Court of Appeal, this person’s “… expertise is far less extensive than that of the members of the Canada Labour Relations Board and that of an arbitrator appointed pursuant to Part I of the Code”. Further, such an adjudicator is appointed on an ad hoc basis and only considers complaints made by a limited class of employees (subsections 240(1) and 242(3.1)) with respect to one single issue, namely, unjust dismissal (paragraph 242(3)(a)) (Pollard, above, at para. 25). Thus, I find all of this suggests that relatively less deference is due.
[22] A high level of curial deference is due where the adjudicator’s decision lies within the defined parameters of the “unjust dismissal” subject matter. However, where the decision pertains to a threshold issue of the adjudicator’s jurisdiction, it is a question of law and the Court clearly has much greater relative expertise. As stated by the Federal Court of Appeal in Pollard, above, at paragraph 15:
[…] 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.
[23] The purpose of the unjust dismissal section of the Code is to provide employees without any other forms of statutory redress, and who do not benefit from the protection of a collective agreement, with “easier, quicker and less costly” remedies than would otherwise be available (sections 240 to 246; Pollard, above, at para. 30) where they are dismissed unjustly. In recognition of the deficiencies in the common law action of wrongful dismissal, it sought to provide workers within federal jurisdiction with increased job protection, similar to that enjoyed by unionized workers (Beothuk Data Systems Ltd., Seawatch Division v. Dean, [1998] 1 F.C. 433 at para. 33). This permits an efficient, determinative resolution of applicable employment disputes, which weighs in favour of greater deference to the adjudicator’s decision.
[24] The adjudication of proceedings under the unjust dismissal section of the Code “do[es] not require the consideration of broad policy issues. Instead, the role of the arbitrator is to resolve a two-party dispute” (Voice Construction, above, at para. 28). This suggests that the potential ramifications of the decision are less wide-ranging, and that greater deference is due. Subsection 240(1) specifically circumscribes the availability of the complaint process, including among other qualifying grounds, a requirement that the employee have been dismissed. This provision, as well as subsection 242(3.1), show Parliament’s intent to limit the jurisdiction of the adjudicator to specific parameters. Determinations made within these parameters will tend to be fact-driven, and therefore subject to higher deference by the court, while jurisdictional threshold determinations require much less deference from a reviewing court, as discussed above.
[25] The nature of the question at issue is primarily one of jurisdiction, but with important factual overtones. As a threshold determination, the adjudicator was called upon to decide whether the factual circumstances of the matter indicated that the applicant was dismissed. In turn, this required him to decide if Mr. Delisle was a permanent employee at the time, or whether his contract had expired. This determination was made primarily by reviewing and interpreting the documentary evidence relating to the terms of the applicant’s employment. The fact-based nature of such an exercise would normally suggest that greater deference should be accorded where the application of the provision to the facts is within the particular expertise of the adjudicator (Beothuk, above, at para. 48).
[26] However, unlike arbitrators dealing with collective agreements who are likely to possess “more experience and expertise in interpreting” them than courts, or cases where adjudicators are operating within their particular, specialized expertise, the present matter involved the interpretation of what essentially amounted to contractual documents, which “falls squarely within the expertise of courts” (Voice Construction, above, at para. 27). This would suggest significantly less deference to the arbitrator’s decision in the present matter.
[27] In sum, weighing all of these factors I find that they suggest that the decision should be subject to review on a standard of reasonableness. However, I am mindful that previous jurisprudence has tended to favour the correctness standard in relation to “… the interpretation by an adjudicator of the statutory conditions precedent to a validly filed complaint in subsection 240(1) …” (Beothuk, above, at para. 27; see also, Coderre c. Canadian Broadcasting Corp., [2004] F.C.J. No. 800, 2004 FC 639 at para.8; Lemieux v. Canada (Labour Affairs Officer, Human Resources Development), [1998] 4 F.C. 65 at para. 47 (C.A.)). I note that these conclusions were essentially founded on a “jurisdictional” analysis which has since been replaced by the pragmatic and functional approach, as previously discussed.
[28] In any event, whether the standard of reasonableness or correctness is applied to the present judicial review, I am satisfied that the result would be the same.
2. Whether the adjudicator was correct in deciding there had been no dismissal.
[29] In reviewing the evidence before the adjudicator, and the reasons for his decision, I find that there are no grounds for intervention by this Court as the decision was correct.
[30] Mr. Lauzon correctly identified that a subsection 240(1) threshold issue had to be determined before proceeding with an assessment of whether the applicant had been unjustly dismissed. Accordingly, the adjudicator rightly looked to the evidence to ascertain whether the applicant was a permanent employee at the relevant time, or whether his employment contract had simply expired.
[31] A key determination was whether it was the KMPC or the Council who possessed the ultimate decision-making authority with regard to the applicant’s employment status. Mr. Lauzon cited section 5.3 of the governing 1999 Agreement relating to the KMPC’s responsibilities, including “… all decisions relating to hiring and dismissal of members of the police force …”. He also cited section 5.1, which stipulated that the Council “… will maintain the Kanesatake Mohawk Police Commission accountable to the Mohawks of Kanesatake …” for overseeing the administration of the Force, among other things.
[32] The adjudicator referred to an August 27, 2002 resolution of the KMPC stating that the KMPC “… recommends to the Mohawk Council that the contracts of the affected Kanesatake police officers … be extended to March 31, 2003” and that “once a new agreement is signed, the aforementioned Kanesatake Police Force officers will become permanent employees of the Mohawk Council of Kanesatake”. Notably, at that time the 1999 Agreement was scheduled to expire on March 31, 2003. The adjudicator properly viewed the resolution as a conditional recommendation in the event of a new agreement being signed, and a reaffirmation of the contractual status of the applicant:
Je ne vois là-dedans qu’une recommandation conditionnelle à l’adoption d’une nouvelle entente tripartite. On y confirme le statut contractuel du plaignant et des autres officiers de police.
[33] The adjudicator found that the resolution showed the KMPC’s recognition of the Council’s authority to determine the status of the Force officers, irrespective of the KMPC’s stated responsibilities and jurisdiction:
La Commission [KMPC] y reconnaît l’autorité du Conseil, quelles que soient les responsabilités et prérogatives reconnues à la Commission. En dernier ressort, c’était au Conseil qu’était reconnue la compétence pour la détermination du statut des membres du corps de police.
[34] I agree with Mr. Lauzon that although the 1999 Agreement gives the KMPC the authority to make decisions relating to hiring and dismissals, the August 27, 2002 resolution demonstrates that the KMPC sought to have its decision approved by the Council in order for it to take effect. This, and ample other evidence referenced by the adjudicator, clearly shows that that the Council had the ultimate authority to approve or deny the KMPC’s recommendation.
[35] This interpretation of the Council’s authority over the employment status of the officers is also reflected in its meeting minutes from January 29, 2002, referred to by the adjudicator in his decision:
[…] officers will not become employees upon expiry of their contract sometimes [sic] in May 2002. No permanent employee status will be offered to those officers…[though] some of these officers will be re-hired on contracts. A Band Council resolution shall be drafted to that effect.
[36] The adjudicator also referred to correspondence from May 14, May 16, and May 23, 2002, as well as December 17, 2002, all stating the KMPC’s employment-related recommendations would be made to the Council. This interpretation is also consistent with the fact that the initial 60-month contract was signed by the Council, showing its final authority over hiring, and that the April 1998 offer was expressly an “… offer of employment with the Mohawk Council of Kanesatake”.
[37] All of this clearly demonstrated that the Council possessed the final authorization power in these matters, and directly supports the adjudicator’s conclusions in this regard. In light of the above, was the arbitrator correct in finding that the applicant’s status had not changed?
[38] The applicant suggests that after receiving the August 3, 2000 memo from the Council which stated that the “Council recommends to the Commission that all KMP officers be given the status of permanent employees”, his employment status was changed. In my opinion, Mr. Lauzon was right in holding that none of the evidence showed that the Council gave effect to the status change:
· He was satisfied by Chief Marie Chéné’s testimony that while the Council had recommended that the officers be granted permanent status, it was never given effect;
· The December 19, 2002 letter from the Council did not effectuate a status change, but rather informed the applicant that the matter was pending as it stated “[p]rior to the end of your contract you shall be advised as to the status of your employment…”;
· Before the end of that contract, the Council’s determination of this pending matter was communicated to the applicant in a March 17, 2003 letter: permanent status would not be granted;
· The April 1, 2003 memo from the KMPC informed the applicant that his contract had been extended for one year and would end on March 31, 2004;
· The applicant’s contract of employment ultimately expired on March 31, 2004.
[39] In sum, the adjudicator was correct that the non-renewal of the Applicant’s fixed-term contract did not constitute a dismissal within the meaning of the Code.
CONCLUSION
[40] In view of the foregoing, this decision does not warrant intervention by this Court. The present application for judicial review is dismissed, with no disposition as to costs.
JUDGMENT
The application for judicial review is dismissed.
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-41-06
STYLE OF CAUSE: Mark Delisle
and
Mohawk Council of Kanesatake
PLACE OF HEARING: Montreal, Quebec
DATE OF HEARING: December 13, 2006
REASONS FOR JUDGMENT: TREMBLAY-LAMER J.
APPEARANCES:
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Ms. Janet Michelin
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Ms Claire Brassard Mr. Thomas Cliche
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SOLICITORS OF RECORD:
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Irving Mitchell Kalichman LLP 4119 Sherbrooke West Westmount, Quebec H3Z 1A7
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Mercier Leduc, LLP 164 Notre Dame Street East Montreal, Quebec H2Y 1C2
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