Wilson v. Atomic Energy of Canada Ltd.

Wilson v. Atomic Energy of Canada Ltd.
Collection
Supreme Court Judgments
Date
2016-07-14
Neutral citation
2016 SCC 29
Report
[2016] 1 SCR 770
Case number
36354
Judges
McLachlin, Beverley; Abella, Rosalie Silberman; Cromwell, Thomas Albert; Moldaver, Michael J.; Karakatsanis, Andromache; Wagner, Richard; Gascon, Clément; Côté, Suzanne; Brown, Russell
On appeal from
Federal Court of Appeal
Subjects
Administrative law
Notes
SCC Case Information: 36354
Decision Content
SUPREME COURT OF CANADA
Citation: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770
Appeal heard: January 19, 2016
Judgment rendered: July 14, 2016
Docket: 36354
Between:
Joseph Wilson
Appellant
and
Atomic Energy of Canada Limited
Respondent
- and –
Canadian Labour Congress, Canadian Association for Non-Organized Employees, Federally Regulated Employers — Transportation and Communications and Canadian Association of Counsel to Employers
Interveners
Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
Reasons for judgment:
(paras. 1 to 69)
Abella J.
Joint concurring reasons:
(para. 70)
McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.
Concurring reasons:
(paras. 71 to 73)
Cromwell J.
Joint dissenting reasons:
(paras. 74 to 149)
Côté and Brown JJ. (Moldaver J. concurring)
Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770
Joseph Wilson Appellant
v.
Atomic Energy of Canada Limited Respondent
and
Canadian Labour Congress,
Canadian Association for Non‑Organized Employees,
Federally Regulated Employers — Transportation and
Communications and Canadian Association
of Counsel to Employers Interveners
Indexed as: Wilson v. Atomic Energy of Canada Ltd.
2016 SCC 29
File No.: 36354.
2016: January 19; 2016: July 14.
Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.
on appeal from the federal court of appeal
Employment law ― Unjust dismissal ― Dismissal without cause ― Non‑unionized employees ― Employer terminating non‑unionized employee on a without‑cause basis with severance package ― Employee filing unjust dismissal complaint under Canada Labour Code ― Whether non‑unionized employees can be lawfully dismissed without cause under Code ― Canada Labour Code, R.S.C. 1985, c. L‑2, s. 240 .
Administrative law — Judicial review — Standard of review — Employer terminating non‑unionized employee on a without‑cause basis with severance package ― Employee filing unjust dismissal complaint under Canada Labour Code ― Adjudicator allowing employee’s complaint ― Whether decision of Adjudicator reasonable ― Streamlining standard of review framework — Canada Labour Code, R.S.C. 1985, c. L‑2, s. 240 .
W worked as an Administrator for his employer for four and a half years until his dismissal in November 2009. He had a clean disciplinary record. He filed an “Unjust Dismissal” complaint, claiming that his dismissal was in reprisal for having filed a complaint of improper procurement practices on the part of his employer. In response to a request from an inspector for the reasons for W’s dismissal, the employer said he was “terminated on a non‑cause basis and was provided a generous dismissal package”. A labour adjudicator was appointed to hear the complaint. The employer sought a preliminary ruling on whether a dismissal without cause together with a sizeable severance package meant that the dismissal was a just one. The Adjudicator concluded that an employer could not resort to severance payments, however generous, to avoid a determination under the Code about whether the dismissal was unjust. Because the employer did not rely on any cause to fire him, W’s complaint was allowed. The Application Judge found this decision to be unreasonable because, in his view, nothing in Part III of the Code precluded employers from dismissing non‑unionized employees on a without‑cause basis. The Federal Court of Appeal agreed, but reviewed the issue on a standard of correctness.
Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be allowed and the decision of the Adjudicator restored.
Per Abella J.: At common law, a non‑unionized employee could be dismissed without reasons if he or she was given reasonable notice or pay in lieu. In 1978, Parliament added a series of provisions to Part III of the Canada Labour Code under the heading “Unjust Dismissal”, now found at ss. 240 to 246 . This Unjust Dismissal scheme consists of expansive protections like those available to employees covered by a collective agreement and applies to non‑unionized employees who have completed 12 consecutive months of continuous employment. A dismissed employee or an inspector can ask the employer for a written statement setting out the reasons for the dismissal. The employer must then provide the statement within 15 days. If an adjudicator determines that the dismissal was unjust, he or she has broad authority to grant an appropriate remedy, including requiring the employer to pay the person compensation or reinstate the person. No complaint can be considered by an adjudicator if the employee was laid off because of lack of work or the discontinuance of a function.
Before this Court, as they had in the prior judicial proceedings, the parties accepted that the standard of review was reasonableness. The decisions of labour adjudicators or arbitrators interpreting statutes or agreements within their expertise attract a reasonableness standard. Applying that standard, the Adjudicator’s decision was reasonable and consistent with the approach overwhelmingly applied to these Unjust Dismissal provisions since they were enacted in 1978. The fact that a handful of adjudicators have taken a different approach to the interpretation of the Code does not justify deviating from a reasonableness standard. The Federal Court of Appeal’s position that even if a reasonableness review applied, the Adjudicator should be afforded “only a narrow margin of appreciation” because the statutory interpretation in this case “involves relatively little specialized labour insight”, is improper. The reasonableness standard must be applied in the specific context under review, but to attempt to calibrate reasonableness by applying a potentially indeterminate number of varying degrees of deference within it, unduly complicates an area of law in need of greater simplicity.
Some general comments on the need for greater simplicity may be worth airing. This obiter on streamlining the standard of review represents an attempt to start a conversation which will ultimately benefit in future cases from submissions from counsel. Collapsing the three standards of review into two has not proven to be the runway to simplicity the Court had hoped it would be in Dunsmuir. The terminological battles over which of the three standards of review should apply, have been replaced by those over the application of the remaining two. That leaves the merits waiting in the wings for their chance to be seen and reviewed. This complicated entry into judicial review is hard to justify, and directs us institutionally to think about whether there is a principled way to simplify the path to reviewing the merits. The goal is to build on the theories developed in Dunsmuir and apply them in a way that eliminates the need to sort cases into artificial categories.
The explanation in Dunsmuir for changing the framework then, remains a valid explanation for why it should be changed now. Most of the confusion in the jurisprudence has been over what to call the category of review in a particular case, reasonableness or correctness. The question is whether there is a way to move forward that respects the underlying principles of judicial review which were explained in Dunsmuir, while redesigning their implementation in a way that makes them easier to apply.
The most obvious and frequently proposed reform of the current system is a single reviewing standard of reasonableness. Nothing Dunsmuir says about the rule of law suggests that constitutional compliance dictates how many standards of review are required. The only requirement, in fact, is that there be judicial review in order to ensure, in particular, that decision‑makers do not exercise authority they do not have. There is nothing in its elaboration of rule of law principles that precludes the adoption of a single standard of review, so long as it accommodates the ability to continue to protect both deference and the possibility of a single answer where the rule of law demands it, as in the four categories singled out for correctness review in Dunsmuir.
A single standard of reasonableness still invites the approach outlined in Dunsmuir, namely, that it is concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Approaching the analysis from the perspective of whether the outcome falls within a range of defensible outcomes has the advantage of being able to embrace comfortably the animating principles of both former categories of judicial review. Courts can apply a wider range for those kinds of issues and decision‑makers traditionally given a measure of deference, and a narrow one of only one “defensible” outcome for those which formerly attracted a correctness review. Most decisions will continue to attract deference, as they did in Dunsmuir.
Even if there proves to be little appetite for collapsing the two remaining standards of review, it would still be beneficial if the template developed in Dunsmuir were adhered to, including by applying the residual “correctness” standard only in those four circumstances Dunsmuir articulated.
Returning to this case, the issue is whether the Adjudicator’s interpretation of ss. 240 to 246 of the Code was reasonable. The text, the context, the statements of the Minister of Labour when the legislation was introduced, and the views of the overwhelming majority of arbitrators and labour law scholars, confirm that the entire purpose of the statutory scheme was to ensure that non‑unionized federal employees would be entitled to protection from being dismissed without cause under Part III of the Code. The alternative approach of severance pay in lieu falls outside the range of “possible, acceptable outcomes which are defensible in respect of the facts and law” because it completely undermines this purpose by permitting employers, at their option, to deprive employees of the full remedial package Parliament created for them. The rights of employees should be based on what Parliament intended, not on the idiosyncratic view of the individual employer or adjudicator. The Adjudicator’s decision was, therefore, reasonable.
When the provisions were introduced, the Minister referred to the right of employees to fundamental protection from arbitrary dismissal and to the fact that such protection was already a part of all collective agreements. These statements make it difficult to draw any inference other than that Parliament intended to expand the dismissal rights of non‑unionized federal employees in a way that, if not identically, at least analogously matched those held by unionized employees. This is how the new provisions have been interpreted by labour law scholars and almost all the adjudicators appointed to apply them, namely, that the purpose of the 1978 provisions in ss. 240 to 246 was to offer a statutory alternative to the common law of dismissals and to conceptually align the protections from unjust dismissals for non‑unionized federal employees with those available to unionized employees. The new Code regime was also a cost‑effective alternative to the civil court system for dismissed employees to obtain meaningful remedies which are far more expansive than those available at common law.
The most significant arbitral tutor for the new provisions came from the way the jurisprudence defined “Unjust Dismissal”. In the collective bargaining context, “unjust dismissal” has a specific and well understood meaning: that employees covered by collective agreements are protected from unjust dismissals and can only be dismissed for “just cause”. This includes an onus on employers to give reasons showing why the dismissal is justified, and carries with it a wide remedial package including reinstatement and progressive discipline. The foundational premise of the common law scheme — that there is a right to dismiss on reasonable notice without cause or reasons — has been completely replaced under the Code by a regime requiring reasons for dismissal. In addition, the galaxy of discretionary remedies, including, most notably, reinstatement, as well as the open‑ended equitable relief available, is also utterly inconsistent with the right to dismiss without cause. If an employer can continue to dismiss without cause under the Code simply by providing adequate severance pay, there is virtually no role for the plurality of remedies available to the adjudicator under the Unjust Dismissal scheme. Out of the over 1,740 adjudications and decisions since the Unjust Dismissal scheme was enacted, only 28 decisions have not followed this consensus approach.
The remedies newly available in 1978 to non‑unionized employees reflect those generally available in the collective bargaining context. This is what Parliament intended. To infer instead that Parliament intended to maintain the common law under the Code regime, creates an anomalous legal environment in which the protections given to employees by statute — reasons, reinstatement, equitable relief — can be superseded by the common law right of employers to dismiss whomever they want for whatever reason they want so long as they give reasonable notice or pay in lieu. This somersaults the accepted understanding of the relationship between the common law and statutes, especially in dealing with employment protections, by assuming the continuity of a more restrictive common law regime notwithstanding the legislative enactment of benefit‑granting provisions to the contrary.
The argument that employment can be terminated without cause so long as minimum notice or compensation is given, on the other hand, would have the effect of rendering many of the Unjust Dismissal remedies meaningless or redundant. Only by interpreting the Unjust Dismissal scheme as representing a displacement of the employer’s ability at common law to fire an employee without reasons if reasonable notice is given, does the scheme and its remedial package make sense. That is how the 1978 provisions have been almost universally applied. It is an outcome that is anchored in parliamentary intention, statutory language, arbitral jurisprudence, and labour relations practice. To decide otherwise would fundamentally undermine Parliament’s remedial purpose.
Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.: The standard of review in this case is reasonableness and the Adjudicator’s decision was reasonable and should be restored. Justice Abella’s disposition of the appeal on the merits and her analysis of the two conflicting interpretations of the Unjust Dismissal provisions of the Code are agreed with. Although her efforts to stimulate a discussion on how to clarify or simplify the standard of review jurisprudence are appreciated, it is unnecessary to endorse any particular proposal to redraw the current standard of review framework at this time.
Per Cromwell J.: The standard of review in this case is reasonableness and the Adjudicator’s decision was reasonable. The appeal should be allowed and the decision of the Adjudicator restored for the reasons given by Abella J. Reasonableness is a single standard and must be assessed in the context of the particular type of decision making involved and all relevant factors. Developing new and apparently unlimited numbers of gradations of reasonableness review ― the margins of appreciation approach created by the Federal Court of Appeal ― is not an appropriate development of the standard of review jurisprudence. However, the standard of review jurisprudence does not need yet another overhaul and the approach developed by Abella J. in obiter is disagreed with.
Per Moldaver, Côté and Brown JJ. (dissenting): This case exposes a serious concern for the rule of law posed by presumptively deferential review of a decision‑maker’s interpretation of its home statute. In the specific context of this case, correctness review is justified. To conclude otherwise would abandon rule of law values in favour of indiscriminate deference to the administrative state.
For decades, labour adjudicators across the country have come to conflicting interpretations of the unjust dismissal provisions of Part III of the Canada Labour Code . These conflicting interpretations go to the heart of the federal employment law regime, and can in theory, persist indefinitely. The simultaneous existence of these conflicting interpretations undermines the rule of law by compromising the cardinal values of certainty and predictability. This state of affairs creates the risk that the very same federally regulated employer might be subjected to conflicting legal interpretations regarding whether it can or cannot dismiss an employee without cause. The existence of lingering disagreements amongst decision‑makers also undermines the very basis for deference. Where there is lingering disagreement on a matter of statutory interpretation between administrative decision‑makers, and where it is clear that the legislature could only have intended the statute to bear one meaning, correctness review is appropriate.
While the constructive spirit in which Abella J.’s revisions to the standard of review are proposed in obiter dicta is appreciated, it is preferable to confine any statement regarding what is already the subject of a peripatetic body of jurisprudence to a judicial pronouncement.
Sections 240 to 245 of the Code create a mechanism for employees to challenge the lawfulness of their dismissal. Employees who are covered by a collective agreement have a similar procedural option to grieve the lawfulness of their dismissals. This procedure is more efficient than a civil action, since it involves less stringent evidentiary rules, an expert adjudicator who is well versed in the factual nuances of employment relationships, and a stricter timeline than a court action. It is a time‑ and cost‑effective method of resolving employment disputes that provides an alternative to judicial determination. Additional remedies are available to employees who choose to use the unjust dismissal provisions. In this way, the unjust dismissal provisions of the Code increase access to justice for federal employees who are dismissed from their employment.
But a procedural mechanism that increases access to justice does not, in and of itself, fundamentally alter the legal basis of the federally regulated employment relationship. This procedural mechanism — access to which is dependent on the discretion of the Minister — is not the exclusive means by which a federal employee may challenge the lawfulness of a dismissal. Parliament has expressly preserved the continuing jurisdiction of the civil courts to decide the lawfulness of the dismissal, though the civil courts apply the common law of wrongful dismissal rather than the unjust dismissal provisions of the Code. An employee is always entitled to challenge the lawfulness of a dismissal in the civil courts, irrespective of whether the employee first chooses to resort to the unjust dismissal procedure in the Code, though subject to the doctrine of issue estoppel. The unjust dismissal provisions are therefore simply a procedural option for federal employees.
The common law continues to define the federal employment relationship and federally regulated employers are entitled to dismiss employees without cause, but with payment of the appropriate notice and severance pay as prescribed by ss. 230 and 235 of the Code, the contract of employment, or the common law (whichever is greater). Adjudicators and courts possess concurrent jurisdiction to determine the adequacy of the notice and severance pay and to order any other remedies that may be warranted in the circumstances. The mere provision of a notice and a severance payment does not allow an employer to escape the scrutiny of an adjudicator any more than it would allow the employer to escape the scrutiny of a court.
Permitting federally regulated employers to dismiss their employees without cause would not have the effect of rendering many of the unjust dismissal remedies meaningless or redundant. The remedy of reinstatement is consistent with a “without cause” regime. It is available in almost every provincial employment law regime irrespective of whether that regime permits an employer to dismiss an employee without cause. Under the Code, adjudicators currently order reinstatement based on their expert assessment of whether the employer and employee will be able to continue working together in a healthy and productive employment relationship in the future. If the adjudicator has reason to believe that the employer will simply dismiss the employee again, he or she will not order reinstatement. There is no reason to suppose that this practice would change were the continuing right of federally regulated employers to dismiss their employees without cause to be affirmed, as long as the appropriate notice and severance pay is provided.
A dismissal without cause is not per se unjust, so long as adequate notice is provided. Because the Adjudicator’s interpretation of ss. 240 to 246 of the Code is inconsistent with the text, context and purpose of these provisions, it ought to be set aside and the appeal dismissed.
Cases Cited
By Abella J.
Discussed: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; referred to: Redlon Agencies Ltd. v. Norgren, 2005 FC 804; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals, 2011 SCC 59, [2011] 3 S.C.R. 616; Yue v. Bank of Montreal, 2016 FCA 107, 483 N.R. 375; Toronto (City) v. C.U.P.E., Local 79, 2003 SCC 63, [2003] 3 S.C.R. 77; Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; British Columbia (Workers’ Compensation Board) v. Figliola, 2011 SCC 52, [2011] 3 S.C.R. 422; Canada (Canadian Human Rights Commission) v. Canada (Attorney General), 2011 SCC 53, [2011] 3 S.C.R. 471; Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright), 2012 SCC 37, [2012] 2 S.C.R. 345; Halifax (Regional Municipality) v. Canada (Public Works and Government Services), 2012 SCC 29, [2012] 2 S.C.R. 108; Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559; M.M. v. United States of America, 2015 SCC 62, [2015] 3 S.C.R. 973; Kanthasamy v. Canada (Citizenship and Immigration), 2015 SCC 61, [2015] 3 S.C.R. 909; Tervita Corp. v. Canada (Commissioner of Competition), 2015 SCC 3, [2015] 1 S.C.R. 161; Ontario (Energy Board) v. Ontario Power Generation Inc., 2015 SCC 44, [2015] 3 S.C.R. 147; Wolf Lake First Nation v. Young (1997), 130 F.T.R. 115; Roberts v. Bank of Nova Scotia (1979), 1 L.A.C. (3d) 259; Knopp v. Westcan Bulk Transport Ltd., [1994] C.L.A.D. No. 172 (QL); Sharma v. Maple Star Transport Ltd., 2015 CanLII 43356; G & R Contracting Ltd. and Sandhu, Re, 2015 CarswellNat 7465 (WL Can.); Pare v. Corus Entertainment Inc., [2015] C.L.A.D. No. 103 (QL); Madill v. Spruce Hollow Heavy Haul Ltd., [2015] C.L.A.D. No. 114 (QL); Swanson and Qualicum First Nation, Re (2015), 26 C.C.E.L. (4th) 139; O’Brien v. Mushuau Innu First Nation, 2015 CanLII 20942; Newman v. Northern Thunderbird Air Inc., [2014] C.L.A.D. No. 248 (QL); Taypotat v. Muscowpetung First Nation, [2014] C.L.A.D. No. 53 (QL); Payne and Bank of Montreal, Re (2014), 16 C.C.E.L. (4th) 114; Sharma and Beacon Transit Lines Inc., Re, 2013 CarswellNat 4148 (WL Can.); Syndicat de la fonction publique du Québec v. Quebec (Attorney General), 2010 SCC 28, [2010] 2 S.C.R. 61; Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27.
By Cromwell J.
Referred to: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd., 2013 SCC 34, [2013] 2 S.C.R. 458.
By Côté and Brown JJ. (dissenting)
Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services), 2004 SCC 54, [2004] 3 S.C.R. 152; Celgene Corp. v. Canada (Attorney General), 2011 SCC 1, [2011] 1 S.C.R. 3; Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190; Altus Group Ltd. v. Calgary (City), 2015 ABCA 86, 599 A.R. 223; Abdoulrab v. Ontario Labour Relations Board, 2009 ONCA 491, 95 O.R. (3d) 641; Taub v. Investment Dealers Assn. of Canada, 2009 ONCA 628, 98 O.R. (3d) 169; Pierre v. Roseau River Tribal Council, [1993] 3 F.C. 756; British Columbia (Attorney General) v. Christie, 2007 SCC 21, [2007] 1 S.C.R. 873; Reference re Secession of Quebec, [1998] 2 S.C.R. 217; Reference re Manitoba Language Rights, [1985] 1 S.C.R. 721; Canada (Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339; Champagne v. Atomic Energy of Canada Ltd., 2012 CanLII 97650; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd., [1995] 2 S.C.R. 739; Sharma v. 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Tl’azt’en Nation, 2011 CarswellNat 3085 (WL Can.); McCloud v. Samson Cree Nation, [2011] C.L.A.D. No. 119 (QL); Prosper v. PPADC Management Co., [2010] C.L.A.D. No. 430 (QL); Perley v. Maliseet First Nation at Tobique, 2010 CarswellNat 4618 (WL Can.); Daniels v. Whitecap Dakota First Nation, [2008] C.L.A.D. No. 135 (QL); Armsworthy v. L.H. & Co., [2005] C.L.A.D. No. 161 (QL); Indian Resource Council of Canada and Whitecap (Re), 2003 CarswellNat 7342 (WL Can.); Cooper v. Exalta Transport Services Ltd., [2002] C.L.A.D. No. 612 (QL); Chalifoux v. Driftpile First Nation, [2000] C.L.A.D. No. 368 (QL); Halkowich v. Fairford First Nation, [1998] C.L.A.D. No. 486 (QL); D. McCool Transport Ltd. v. Bosma, [1998] C.L.A.D. No. 315 (QL); Jalbert v. Westcan Bulk Transport Ltd., [1996] C.L.A.D. No. 631 (QL); Knopp v. Westcan Bulk Transport Ltd., [1994] C.L.A.D. No. 172 (QL); Rizzo & Rizzo Shoes Ltd. (Re), [1998] 1 S.C.R. 27; CanadianOxy Chemicals Ltd. v. Canada (Attorney General), [1999] 1 S.C.R. 743; Black‑Clawson International Ltd. v. Papierwerke Waldhof‑Aschaffenburg A.G., [1975] A.C. 591; R. v. G. (B.), [1999] 2 S.C.R. 475; Berardinelli v. Ontario Housing Corp., [1979] 1 S.C.R. 275; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057, [1990] 1 S.C.R. 1298; Lum v. Shaw Communications Inc., 2004 NBCA 35, 270 N.B.R. (2d) 141; Cornelson v. Alliance Pipeline Ltd., 2014 ABQB 436; Nelson v. Champion Feed Services Inc., 2010 ABQB 409, 30 Alta. L.R. (5th) 162; Chandran v. National Bank of Canada, 2011 ONSC 777, 89 C.C.E.L. (3d) 256; Paquette v. TeraGo Networks Inc., 2015 ONSC 4189, 2015 CLLC ¶210‑056; Vist v. Best Theratronics Ltd., 2014 ONSC 2867, 2014 CLLC ¶210‑038; Wallace v. Toronto‑Dominion Bank (1983), 41 O.R. (2d) 161; Ryder v. Carry The Kettle First Nation, 2002 SKQB 32, 215 Sask. R. 239; Nardocchio v. Canadian Imperial Bank of Commerce (1979), 41 N.S.R. (2d) 26; Wilson v. Sliammon First Nation, 2002 BCSC 190; Chadee v. Norway House First Nation (1996), 113 Man. R. (2d) 110; Spilberg v. Total Transportation Solutions Inc., [2014] O.J. No. 2903 (QL); Lazarus v. Information Communication Services (ICS) Inc., [2015] O.J. No. 5304 (QL); Jackson v. Gitxsan Treaty Society, 2005 BCSC 1112, 43 C.C.E.L. (3d) 179; Beatty v. Best Theratronics Ltd., 2014 ONSC 3376, 18 C.C.E.L. (4th) 64; Schimanski v. B & D Walter Trucking Ltd., 2014 ABPC 288; Logan v. Progressive Air Service Ltd., [1997] B.C.J. No. 129 (QL); Rodgers v. Sun Radio Ltd. (1991), 109 N.S.R. (2d) 415; Bell ExpressVu Limited Partnership v. Rex, 2002 SCC 42, [2002] 2 S.C.R. 559; Pereira v. Bank of Nova Scotia (2007), 60 C.C.E.L. (3d) 267; Wyllie v. Larche Communications Inc., 2015 ONSC 4747; Ng v. Bank of Montreal, 2010 ONSC 5692, 87 C.C.E.L. (3d) 86; Canadian National Railway Co. v. Benson, 2004 MBQB 210, 188 Man. R. (2d) 218; Vorvis v. 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Statutes and Regulations Cited
Act respecting labour standards, CQLR, c. N‑1.1, ss. 82, 82.1(3), 124, 126.
Act respecting labour standards, S.Q. 1979, c. 45, s. 124.
Act to Amend Chapter 10 of the Acts of 1972, the Labour Standards Code, S.N.S. 1975, c. 50, s. 4.
Act to amend the Canada Labour Code, R.S.C. 1970, c. 17 (2nd Supp.), s. 16.
Act to amend the Canada Labour Code, S.C. 1977‑78, c. 27, s. 21.
Canada Labour Code, R.S.C. 1985, c. L‑2 , Part III, ss. 167(3), 168, 230, 235, 240 to 246.
Civil Code of Québec, art. 2925.
Employment Standards Act, R.S.B.C. 1996, c. 113, ss. 74 to 86.2, 79.
Employment Standards Act, R.S.P.E.I. 1988, c. E‑6.2, s. 30.
Employment Standards Act, S.N.B. 1982, c. E‑7.2, ss. 61 to 76, 65.
Employment Standards Act, 2000, S.O. 2000, c. 41, s. 104.
Employment Standards Code, C.C.S.M., c. E110, s. 96.1.
Employment Standards Code, R.S.A. 2000, c. E‑9, ss. 82, 89(1).
Labour Standards Act, R.S.N.L. 1990, c. L‑2, ss. 62, 68 to 73, 78.
Labour Standards Code, R.S.N.S. 1989, c. 246, ss. 6, 21, 23, 71, 72, 78.
Limitation Act, S.B.C. 2012, c. 13, s. 6(1).
Limitation of Actions Act, C.C.S.M., c. L150, s. 2(1).
Limitation of Actions Act, R.S.N.S. 1989, c. 258, s. 2(1).
Limitation of Actions Act, R.S.N.W.T. 1988, c. L‑8, s. 2(1).
Limitation of Actions Act, R.S.N.W.T. (Nu.) 1988, c. L‑8, s. 2(1).
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Authors Cited
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APPEAL from a judgment of the Federal Court of Appeal (Stratas, Webb and Near JJ.A.), 2015 FCA 17, [2015] 4 F.C.R. 467, 467 N.R. 201, 22 C.C.E.L. (4th) 234, 2015 CLLC ¶210‑023, [2015] F.C.J. No. 44 (QL), 2015 CarswellNat 64 (WL Can.), affirming a decision of O’Reilly J., 2013 FC 733, 435 F.T.R. 300, 9 C.C.E.L. (4th) 208, 2013 CLLC ¶210‑043, [2013] F.C.J. No. 825 (QL), 2013 CarswellNat 2376 (WL Can.). Appeal allowed, Moldaver, Côté and Brown JJ. dissenting.
James A. LeNoury, Avi Sirlin and Reagan Ruslim, for the appellant.
Ronald M. Snyder and Eugene F. Derényi, for the respondent.
Steven Barrett and Louis Century, for the intervener the Canadian Labour Congress.
Stacey Reginald Ball and Anne Marie Frauts, for the intervener the Canadian Association for Non‑Organized Employees.
Christopher D. Pigott and Christina E. Hall, for the interveners the Federally Regulated Employers — Transportation and Communications and the Canadian Association of Counsel to Employers.
The judgment was delivered by
[1] Abella J. — At common law, a non-unionized employee could be dismissed without reasons if he or she was given reasonable notice or pay in lieu. The issue in this appeal is whether Parliament’s intention behind amendments to the Canada Labour Code [1] in 1978 was to offer an alternative statutory scheme consisting of expansive protections much like those available to employees covered by a collective agreement. In my respectful view, like almost all of the hundreds of adjudicators who have interpreted the scheme, I believe that is exactly what Parliament’s intention was.
Background
[2] In 1971, Parliament passed amendments to the Canada Labour Code [2] setting out the notice requirements for firing non-unionized employees who had worked for three or more consecutive months.[3] The amendments also stipulated a minimal rate of severance pay for those who had worked for 12 months.[4] Employees dismissed for just cause are not entitled to either notice or severance pay.
[3] More fundamental reforms were enacted in 1978, when the Code was again amended by adding a series of provisions to Part III under the heading “Unjust Dismissal”.[5] They are found at ss. 240 to 246.[6] This Unjust Dismissal scheme applies to non-unionized employees who have completed 12 consecutive months of continuous employment. Any such employee who has been dismissed has 90 days to make a complaint in writing to an inspector if the employee considers the dismissal to be unjust (s. 240).
[4] A dismissed employee or an inspector can ask the employer for a written statement setting out the reasons for the dismissal. The employer must then provide the statement within 15 days (s. 241(1)).
[5] An inspector is required to try to immediately settle the complaint (s. 241(2)). If the complaint cannot be settled within a reasonable time, the inspector can, at the request of the dismissed employee, refer the matter to the Minister (s. 241(3)), who may appoint an adjudicator to hear the complaint (s. 242(1)). The report of an inspector acts as a screening mechanism to prevent complaints which are frivolous, vexatious or clearly unmeritorious from proceeding to adjudication: Harry W. Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (2006), at pp. 179-80 (Arthurs Report).
[6] The mandate of the adjudicator is to determine whether the dismissal was unjust (s. 242(3)). If it was, the adjudicator has broad authority to grant an appropriate remedy (s. 242(4)), including requiring the employer 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.
[7] No complaint can be considered by an adjudicator if the employee was laid off because of lack of work or the discontinuance of a function (s. 242(3.1)(a)).
Prior Proceedings
[8] Joseph Wilson was hired by Atomic Energy Canada Limited (AECL)[7] as a Senior Buyer/Order Administrator in 2005 and was later promoted to