Hussey v. Bell Mobility Inc.

Hussey v. Bell Mobility Inc.
Court (s) Database
Federal Court of Appeal Decisions
Date
2022-05-31
Neutral citation
2022 FCA 95
File numbers
A-230-20
Decision Content
Date: 20220531
Docket: A-230-20
Citation: 2022 FCA 95
CORAM:
PELLETIER J.A.
WEBB J.A.
RIVOALEN J.A.
BETWEEN:
AMANDA HUSSEY
Appellant
and
BELL MOBILITY INC.
Respondent
Heard by online video conference hosted by the Registry on March 10, 2022.
Judgment delivered at Ottawa, Ontario, on May 31, 2022.
REASONS FOR JUDGMENT BY:
PELLETIER J.A.
CONCURRED IN BY:
WEBB J.A.
RIVOALEN J.A.
Date: 20220531
Docket: A-230-20
Citation: 2022 FCA 95
CORAM:
PELLETIER J.A.
WEBB J.A.
RIVOALEN J.A.
BETWEEN:
AMANDA HUSSEY
Appellant
and
BELL MOBILITY INC.
Respondent
REASONS FOR JUDGMENT
PELLETIER J.A.
I. Introduction
[1] Ms. Hussey appeals from a decision of the Federal Court (Bell Canada v. Hussey, 2020 FC 795, [2020] F.C.J. No. 518 (QL) – the FC Decision) dismissing an application for judicial review of the decision of adjudicator McNamee (the Adjudicator) appointed under the Canada Labour Code, R.S.C. 1985 c. L-2 (the Code). The Adjudicator found that Ms. Hussey was unjustly dismissed from her employment but declined to reinstate her. Instead, he awarded her compensation in lieu of reinstatement as well as costs on a partial indemnity basis. Ms. Hussey now appeals to this Court. Her employer, Bell Mobility Inc. (Bell), incorrectly identified as Bell Canada in the style of cause, cross appeals on the issue of costs. At the request of counsel for the employer and with the consent of Ms. Hussey, the style of cause is amended to show Bell Mobility Inc. as the respondent in this appeal.
[2] For the reasons which follow, I would dismiss Ms. Hussey’s appeal with costs to the respondent. I would also dismiss Bell’s cross-appeal but without costs.
II. Facts and Procedural History
[3] The statutory provision in issue in this appeal is subsection 242(4) of the Code, which I reproduce below:
(4) If the Board decides under subsection (3) that a person has been unjustly dismissed, the Board may, by order, require the employer who dismissed the person to
(4) S’il décide que le congédiement était injuste, le Conseil peut, par ordonnance, enjoindre à l’employeur:
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;
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) reinstate the person in his employ; and
b) de réintégrer le plaignant dans son emploi;
(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.
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.
[4] The first issue before the Adjudicator was whether Ms. Hussey had been unjustly dismissed from her employment with Bell. While the Adjudicator found that Ms. Hussey’s conduct was blameworthy, for reasons which are not material to this appeal, he concluded that since Bell had tolerated this conduct and had promoted her in spite of it, it was not justified in dismissing her without first resorting to progressive discipline. He adjourned the matter of a remedy to allow the parties an opportunity to negotiate a settlement (Hussey v. Bell Canada, 2019 CanLII 883 (CA LA), [2019] C.L.A.D. No. 2 (QL) – the Liability Decision).
[5] Negotiations having failed, the Adjudicator reconvened the hearing to consider the second issue, that of the appropriate remedy. When counsel for Ms. Hussey indicated that he wished to call evidence on the appropriate remedy, the Adjudicator expressed some reluctance to hear that evidence, especially on the question of remorse, expressing the view that he had already heard evidence on that issue. The Adjudicator eventually relented, saying that he would give evidence of remorse little weight, and allowed Ms. Hussey to testify for two to three hours without interruption. In the course of that testimony, Ms. Hussey also put into evidence a number of documents as to her situation following her dismissal.
[6] In the end, the Adjudicator decided that he would not order Ms. Hussey’s reinstatement, given her lack of remorse (as found in the Liability Decision) and her self-justification for not complying with the employer’s workplace procedures. In his view, her conduct was such that he “lack[ed] any confidence that her behaviour and attitude would substantially change if she were to be reinstated”: Hussey v. Bell Canada, 2019 CanLII 51848 (CA LA), [2019] C.L.A.D. No. 84 (QL) at 6 – the Compensation Decision.
[7] The Adjudicator reviewed the arbitral jurisprudence on compensation in lieu of reinstatement and found that there were two lines of cases on the assessment of compensation. Both approaches are based on the understanding that employees in federally-regulated industries enjoy a level of protection from dismissal without cause akin to that enjoyed by members of a unionized work force in that employers cannot lawfully dismiss such an employee simply by giving, or paying, the appropriate notice. The difference between the two approaches is the manner in which compensation for the loss of this protection is to be assessed. One line of cases uses the common law measure of damages for wrongful dismissal as a reference point (the common law approach), which is then adjusted to account for the loss of the protection offered by the Code. The other line of cases (the fixed term approach) calculates the amount which the employee would have earned with continued employment until retirement and then discounts this amount for various contingencies such as the likelihood of subsequent dismissal, a change in health or employer, technological change or employer insolvency to arrive at fair compensation. The Adjudicator found that the discount rate used by adjudicators using the fixed term approach (frequently in the range of 80% to 90%) was “entirely too speculative for [his] taste” and was the result of what he described as “an informed guess” (Compensation Decision at 11).
[8] In the result, the Adjudicator assessed Ms. Hussey’s compensation at eight months’ pay, reflecting her years of service, with an additional four months’ pay for the loss of the just cause protection provided by the Code plus two per cent interest on the sum of these amounts. The Adjudicator was silent on the issue of backpay. He also awarded Ms. Hussey her costs on a partial indemnity basis in the amount of some $68,000.
[9] Later, following an inquiry from Ms. Hussey’s counsel, the Adjudicator wrote that he had not overlooked backpay in his earlier decision but that he had decided not to award it (Hussey v. Bell Canada, 2019 CanLII 56965 (CA LA), [2019] C.L.A.D. No. 99 (QL) – the Backpay Decision). He acknowledged an earlier arbitral decision (Lakehead University v. Lakehead University Faculty Association, 297 L.A.C. (4th) 244, 2018 CanLII 112409 (ON LA) [Lakehead University]) in which backpay was awarded in a case of non-reinstatement but he disagreed with that approach, expressing skepticism about the underlying rationale.
[10] Ms. Hussey applied for judicial review of the Compensation and the Backpay Decisions. In addition to challenging both decisions on their merits, Ms. Hussey alleged a breach of procedural fairness in relation to the Compensation Decision. She also argued that the Adjudicator’s award of costs was inadequate.
[11] Bell, for its part, applied for judicial review of the costs award on the basis that it, as opposed to Ms. Hussey, should have been awarded costs. Bell did not challenge the unjust dismissal finding and Ms. Hussey did not challenge the failure to order reinstatement: see FC Decision at para. 3. Both applications were heard together.
[12] The Federal Court dealt first with the allegation of breach of procedural fairness. After reviewing the affidavit evidence submitted by both sides setting out the course of the compensation hearing, the Federal Court concluded that the Adjudicator’s comment with respect to giving little weight to evidence of remorse did not affect his approach to the rest of Ms. Hussey’s evidence. In fact, the Federal Court found that “there is nothing to suggest that the Adjudicator weighed evidence of remorse in any way in determining the appropriate remedy”: FC Decision at para. 52. In particular, the Federal Court found that Ms. Hussey’s affidavit did not “recount the testimony she actually provided (as opposed to what she intended to provide) on April 23, 2019”, and that this absence of contextual evidence left it no alternative but to take the Adjudicator’s reasons at face value: FC Decision at paras. 33, 53.
[13] Ms. Hussey challenged the Adjudicator’s decision on backpay on the basis that it was insufficiently justified. The Federal Court disagreed, finding that while more explanation would have been better, the Adjudicator’s rationale for denying backpay was obvious. The Federal Court noted that Ms. Hussey had asked for reinstatement and backpay to the date of reinstatement; since she was not reinstated, there was no basis for ordering backpay. The Federal Court considered that the complaint about backpay was really a disguised complaint about the quantum of damages which the Adjudicator awarded.
[14] As for the award of compensation, the Federal Court noted that Ms. Hussey’s “sole objection to the quantum of damages awarded is that the Adjudicator relied on an irrelevant factor – namely, the common law concept of reasonable notice”: FC Decision at para. 64. The Federal Court disagreed. It found that the Adjudicator understood that he was not limited to awarding severance pay and that, further, he understood and gave value to the just cause protections under the Code. The Court found that the Adjudicator’s award of compensation was appropriate and did not justify its intervention.
[15] On the issue of costs, the Federal Court declined to intervene. Bell argued that the Adjudicator’s decision was not sufficiently justified, as it simply invoked the principle that costs follow the event, notwithstanding Bell’s vigorous arguments to the contrary. The Court rejected this argument as follows:
Read in the context of the general principle that costs follow the cause, and considering that there is no evidence that Bell challenged this principle, the Adjudicator’s brief reasons are sufficient to explain why he awarded costs to Ms. Hussey, the successful party on the unjust dismissal claim. While the Adjudicator could certainly have reminded Bell why it objected to an award of costs and elaborated upon why, despite this objection, he was awarding costs to Ms. Hussey, his failure to do so does not render his determination unreasonable.
FC Decision at para. 74
[16] Ms. Hussey challenged the costs award on the basis that she was entitled to be made whole and to receive costs on a full indemnity basis. The Federal Court disagreed and found that “under the Code, ‘partial indemnity is the norm and full indemnity is reserved for exceptional circumstances’”: FC Decision at para. 78, citing Munsee-Delaware Nation v. Crystal Flewelling, 2017 CanLII 40980 (CA LA), [2017] C.L.A.D. No. 134. The Federal Court found that the Adjudicator exercised his discretion reasonably and in accordance with established principles and therefore, declined to intervene.
III. Statement of Issues
[17] The parties agree that there are three issues in this appeal. The first is the reasonableness of the Adjudicator’s assessment of compensation for non-reinstatement. This resolves itself into three questions:
(1) Was the Adjudicator constrained by judicial precedent, including, but not limited to, Wilson v. Atomic Energy of Canada Limited, 2016 SCC 29, [2016] 1 S.C.R. 770 [Wilson]?
(2) Was the Adjudicator constrained by an arbitral or adjudicative consensus?
(3) Was the Adjudicator’s assessment of compensation in lieu of reinstatement reasonable?
[18] The questions of constraints arise because of Ms. Hussey’s reliance on Wilson and on an emerging arbitral consensus as indications of the unreasonableness of the Adjudicator’s Compensation Decision.
[19] The second issue is whether Ms. Hussey was denied procedural fairness in the course of the compensation hearing as a result of the Adjudicator’s reluctance to hear her evidence, particularly on the question of remorse.
[20] The last issue relates to the Adjudicator’s award of costs. Ms. Hussey appeals from the Adjudicator’s limitation of the costs award to partial indemnity such that she was not “made whole”. Bell cross appeals, arguing that it should have been awarded its costs rather than Ms. Hussey. Both of these issues will be dealt with together.
[21] It should be noted that, while the notice of appeal raises the failure to make an order for backpay as a ground of appeal, it was not addressed in Ms. Hussey’s memorandum of fact and law or in oral argument. As a result, I conclude that this ground of appeal has been abandoned.
[22] One matter which is not in issue is the standard of review. Both parties agree that, following the Supreme Court’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, 441 D.L.R. 4th 1 [Vavilov], the presumptive standard of review of the Adjudicator’s decision is reasonableness (except for certain narrow exceptions, none of which apply here) on the issues of compensation and costs, while the standard of review for questions of procedural fairness is, as we shall see, described as correctness.
[23] As for the application of this standard of review, this Court steps into the shoes of the Federal Court and addresses the adjudicator’ decision(s) directly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 S.C.R. 559 at para. 47. This is the logical conclusion which flows from the jurisprudence on the role of intermediate appellate courts when hearing appeals from the trial courts sitting as a court of revision. In those circumstances, the appellate court’s task is to decide if the trial court identified the correct standard of review and applied it properly: Dr. Q. v. College of Physicians and Surgeons of British Columbia, 2003 SCC 19, [2003] 1 S.C.R. 226 at paras. 43-44; Merck Frosst Canada Ltd. v. Canada (Health), 2012 SCC 3, [2012] 1 S.C.R. 23, at para. 247 (dissenting reasons, but not on this point).
[24] On issues of procedural fairness, the standard of review is “‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied”: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69, [2019] 1 F.C.R. 121 at paras. 54-55. As a result, we are being asked to determine if the Adjudicator’s manner of proceeding was fair: Canada RNA Biochemical Inc. v. Canada (Health), 2021 FCA 213, [2021] F.C.J. No. 1826 at para. 27.
IV. Analysis
A. Was the Adjudicator’s assessment of compensation for non-reinstatement reasonable?
(1) Was the Adjudicator constrained by judicial precedent, including, but not limited to, Wilson?
[25] Before reviewing the judicial and arbitral precedents, it will be helpful to define or describe what is meant by the common law approach. This expression describes an approach in which compensation for loss of protected employment (or the protection from unjust dismissal, two expressions which I will use interchangeably) is expressed in terms of periodic income (wages or salary) proportional in some way to an employee’s past service, which is then increased by some factor so that the total represents the value of the loss of the protection from unjust dismissal.
[26] The common law approach is not, as suggested by Ms. Hussey’s written argument, simply payment of reasonable notice after dismissal rather than before (or at the same time as) dismissal. That manner of proceeding has been rejected by the Federal Courts for some time. In Auto Haulaway Inc. v. Reid, [1989] F.C.J. No. 949 (FCA) (QL) [Haulaway], this Court, per Justice Pratte, wrote:
Indeed, that provision of the Code [paragraph 61.5(9)(a) of the Code, now paragraph 242(4)(a)] cannot be read down so as to limit the compensation that an adjudicator is empowered to award to an employee to the amount that could be claimed under the common law.
See also Alberta Wheat Pool v. Konevsky, [1990] F.C.J. No. 877 (FCA) (QL) [Konevsky]
[27] Nadon J. (as he then was) made the same point in Wolf Lake First Nation v. Young, 1997 CanLII 5057, [1997] F.C.J. No. 514 at paragraph 51 (cited to QL) [Wolf Lake]:
Subsection 242(4) of the Code is clear in its application; it is designed to fully compensate an employee who is unjustly dismissed. It is not limited to the amount of severance pay to which the employee is entitled. It is not calculated by determining the notice period which should have been given to the employee.
[28] As a result, reasonable notice for wrongful dismissal as the full measure of compensation for the loss of protected employment is an error and, for that reason, this approach has not been used in the adjudicative jurisprudence.
[29] The common law approach recognizes that an unjustly dismissed employee who is not reinstated has lost valuable rights for which compensation is payable, as does the fixed term approach. The difference between the two is the manner in which that compensation is assessed.
[30] Arbitrators and adjudicators who adopt the common law approach, and an appreciable number of those who express support for the fixed term approach, express the amount of compensation in terms of a period of monthly income plus an additional amount so that the total recognizes the value of the loss of the protection from unjust dismissal. The manner in which the number of months of income is determined, as well as the adjustment factor, involves consideration of a number of factors, as is seen, for example, in the following passage:
… The range is from one to one and half months per year of service, with the most common being one and a quarter months per year of service. Some decisions, such as Humber River, supra, address factors which may increase or decrease a grievor’s entitlement (see Para. 31 and 32 of Humber River, supra) while many decisions refer only to the grievor’s years of service. It is my view, at the very least, one must look to the grievor’s years of service, the position lost, the likeliness of re-employment, and specifically, the likeliness of re-employment in the same field in a unionized position. …
McMaster University v. Building Union of Canada (Malavolta Grievance), 312 L.A.C. (4th) 418, [2020] O.L.A.A. No. 30 (QL) at para. 24 [McMaster]
[31] Arbitrators who apply the common law approach appreciate that they are being asked to compensate non-reinstated employees for the loss of protected employment. The difference between the two approaches does not lie in the identification of the loss for which compensation is payable, but rather in the method of assessing the value of that loss.
[32] This Court’s task in this appeal is not to choose between the common law approach and the fixed term approach, but rather to decide if the Adjudicator’s choice of the common law approach was unreasonable. As will be seen, the Supreme Court has definitively ruled that it is not this Court’s function to choose between lines of arbitral authority when both lines are reasonable.
[33] With that introduction to the issue, I will now address Ms. Hussey’s argument that the Adjudicator’s decision was unreasonable because he applied the common law approach when that approach is allegedly proscribed by the Supreme Court of Canada’s decision in Wilson.
[34] One of the factors in assessing reasonableness is the presence of legal and factual constraints which weigh on the decision maker. In Vavilov, the Supreme Court addressed legal constraints as follows:
Any precedents on the issue before the administrative decision maker or on a similar issue will act as a constraint on what the decision maker can reasonably decide. An administrative body’s decision may be unreasonable on the basis that the body failed to explain or justify a departure from a binding precedent in which the same provision had been interpreted. Where, for example, there is a relevant case in which a court considered a statutory provision, it would be unreasonable for an administrative decision maker to interpret or apply the provision without regard to that precedent. The decision maker would have to be able to explain why a different interpretation is preferable by, for example, explaining why the court’s interpretation does not work in the administrative context: M. Biddulph, “Rethinking the Ramification of Reasonableness Review: Stare Decisis and Reasonableness Review on Questions of Law” (2018), 56 Alta. L.R. 119, at p. 146.
Vavilov at para. 112
[35] Ms. Hussey argues that Wilson is such a precedent so that the Adjudicator’s failure to follow it makes his decision unreasonable. The starting point for this analysis is to determine exactly what Wilson decided.
[36] Wilson was an appeal from this Court’s decision in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, [2015] 4 F.C.R. 467 in which this Court held that sections 242-246 of the Code (the Unjust Dismissal provisions) did not displace an employer’s common law right to dismiss an employee without cause upon giving, or paying, reasonable notice. In other words, a dismissal in which the employer did not allege cause and gave, or paid, legally sufficient notice was not an unjust dismissal within the meaning of section 242 of the Code.
[37] In coming to this conclusion, this Court invoked rule of law considerations to justify applying the correctness standard so as to resolve the “persistent discord” between two lines of adjudicative jurisprudence as to whether, in the absence of cause, a dismissal in which an employer was given, or paid, reasonable notice was an unjust dismissal.
[38] The Supreme Court, per Justice Abella, began by rejecting the use of the correctness standard to resolve divisions in administrative tribunals’ jurisprudence, on the basis that even though some adjudicators had taken a different approach to this question, “this Court has repeatedly said, this does not justify deviating from a reasonableness standard”: Wilson at para. 17 (all references are to Justice Abella’s reasons which, on the issue of the Unjust Dismissal provisions, are the majority’s reasons).
[39] Justice Abella began her analysis by stating her conclusion, which she justified in subsequent paragraphs:
The text, the context, the statements of the Minister 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.
Wilson at para. 39 (my emphasis)
[40] Ms. Hussey relies upon the sentence underlined above in support of her position on the issue of compensation in lieu of reinstatement.
[41] Justice Abella continued her analysis by reviewing the legislative history of the Unjust Dismissal provisions. She noted that in 1971, Parliament enacted what are now subsections 230(1) and 235(1). Those provisions provided that an employee who had worked for a threshold number of consecutive months and was not dismissed for just cause was entitled to certain minimum compensation. In 1978, Parliament further amended the Code to add the Unjust Dismissal provisions that are currently found in sections 240 to 246 in Part III of the Code. According to the Minister of Labour at the time, it was hoped that this scheme would give unorganized workers some of the minimum standards negotiated by unionized workers and reflected in their collective agreements: Wilson at para. 42.
[42] Justice Abella went on to quote the Minister of Labour’s representations to the Standing Committee on Labour, Manpower and Immigration in 1978 on the purpose of the Unjust Dismissal provisions as follows:
The intent of this provision [s. 242] is to provide employees not represented by a union, including managers and professionals, with the right to appeal against arbitrary dismissal — protection the government believes to be a fundamental right of workers and already a part of all collective agreements.
Wilson at para. 43
[43] This led Justice Abella to conclude that, in enacting these provisions, Parliament intended to expand the “dismissal rights” of non-unionized federally-regulated employees so that they resembled those held by unionized employees. As a result, the “dismissal rights” of non-unionized federally-regulated employees were enhanced to include the right not to be dismissed except for just cause: Wilson at paras. 46, 51.
[44] The crux of Justice Abella’s reasoning is found at paragraph 63 of her reasons, set out below (emphasis in original):
In fact, 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 under s. 242(4)(c), are 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 ss. 240 to 245.
[45] As a result, a federally-regulated employer’s common law right to dismiss on reasonable notice has been replaced by the Unjust Dismissal provisions.
[46] In the penultimate paragraph of her reasons, Justice Abella restated her reasoning:
Only by interpreting ss. 240 to 246 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.
Wilson at para. 68
[47] It is clear that, in Wilson, the Court was addressing a problem that does not arise in this case, namely the displacement of the common law approach to wrongful dismissal by the provisions of the Code dealing with unjust dismissal for those employees protected by the Code. Wilson deals with the preservation of the rights which the Code confers on non-unionized employees in federally-regulated employment. The issue now before the Court, the assessment of the value of those benefits in the case of non-reinstatement, is a fundamentally different question. Wilson deals with the protection of the rights conferred by the Unjust Dismissal provisions while the Adjudicator was dealing with the valuation of those rights when they are lost. Recourse to an amount which is proportional in some degree to past service as an element in the valuation exercise may be objected to on philosophical grounds (i.e. it is backward-looking rather than forward-looking) but it cannot be objected to on the ground that it will defeat the operation of the Unjust Dismissal provisions of the Code.
[48] The common law approach is not simply a means of avoiding the Unjust Dismissal provisions by paying an amount as compensation in lieu of reinstatement instead of paying the same amount as reasonable notice. While an amount roughly proportional to past service is an element in the assessment of compensation for non-reinstatement, it is not the only element; adjudicators also include an amount to further account for the loss of the just cause protection. And while the final amount is expressed in terms of monthly earnings, it is not intended to be income replacement. It is compensation for the loss of the protection from unjust dismissal.
[49] It might be argued that if the common law approach to compensation seriously undervalues the loss of unjust dismissal protection, the effect is indistinguishable from ignoring that protection altogether. This argument is undermined by the fact that the two approaches generally, though not always, yield comparable results:
Interestingly, it is unclear from the arbitral jurisprudence whether the choice of approach leads to any material difference in outcome. In some respects, the approaches overlap: the same contingency factors apply, regardless of how damages in lieu of reinstatement are calculated. For example, in the traditional approach, the contingency factors help determine an increase in damages. In the fixed-term approach, these same factors help determine the discount. It may be that the fixed-term approach is preferable because it aligns better with remedial objectives in a unionized context. However, considering the arbitral awards, the different approaches do not consistently lead to materially different results.
M. Flaherty, “Reinstatement as a Human Rights Remedy: When Jurisdictions Collide” in Windsor Review of Legal and Social Issues, online: 2015 CanLIIDocs 4962 at 114, cited in the respondent’s memorandum of fact and law at para. 62
[50] I conclude from this review that when the Supreme Court held in Wilson that the Unjust Dismissal provisions of the Code displaced the law of wrongful dismissal in federally-regulated employment, it did not stipulate, expressly or impliedly, how the loss of protection from unjust dismissal under the Code should be valued when an employee was not reinstated.
[51] In addition to Wilson, Ms. Hussey also relies on jurisprudence which, she says, has endorsed the fixed term approach to compensation in lieu of reinstatement. In her view, Bahniuk v. Canada (Attorney General), 2016 FCA 137, 484 N.R. 10 [Bahniuk], is such a case. It is true that in Bahniuk, an adjudicator used the fixed term approach to compensation in a case of non-reinstatement. However, when that decision reached this Court, the issue was whether certain post-dismissal earnings must be deducted (as mitigation) from an award assessed using the fixed term approach. As a result, Bahniuk is not a case in which this Court endorsed the fixed term compensation approach, as that question was not before it.
[52] Ms. Hussey also cites the Ontario Court of Appeal decision in Leonetti v. Hussman Canada Inc., 159 D.L.R. (4th) 655, 1998 CanLII 2213 [Leonetti], as an instance of judicial endorsement of the fixed term approach. In that case, Mr. Leonetti left a bargaining unit job to take an out-of-scope supervisory job but only after having been promised that he could return to his bargaining unit position if the new job did not work out. This was important to Mr. Leonetti as he had considerable seniority in the bargaining unit as well as protection from unjust dismissal under the collective agreement. Six years after leaving the bargaining unit, Mr. Leonetti was dismissed in a corporate downsizing, after receiving a severance payment equal to nine months’ salary.
[53] Mr. Leonetti sued for wrongful dismissal. Since he was no longer a union member, he could not access the arbitration provisions of the collective agreement. He was also not a federally-regulated employee. As a result, Leonetti is not about the Unjust Dismissal provisions. It is a common law wrongful dismissal case. The Ontario Court of Appeal found that when the employer elected to terminate Mr. Leonetti’s employment, it was bound, as a matter of contract, to return him to the bargaining unit, failing which it had to compensate him in a manner consistent with the rights which he would have enjoyed had he been returned to the bargaining unit as promised.
[54] Leonetti is not a case about the valuation of the loss of protected employment under the Code. It is a contract case and the remedy in that case was damages for breach of contract, determined in accordance with the law of damages and not by reference to arbitral jurisprudence. Leonetti is not authority for the proposition that an adjudicator who adopts the common law approach is acting unreasonably.
[55] Ms. Hussey also relies on the decision of the Ontario Divisional Court in Canadian Broadcasting Corporation v. Association of Professionals and Supervisors, 2020 ONSC 6531, [2020] O.J. No. 4633 (QL) involving the judicial review of an arbitral award arising from an employee’s termination from the Canadian Broadcasting Corporation (CBC) on the ground of redundancy. The arbitrator found that the termination was a disguised dismissal and awarded damages for unjust dismissal. The employee did not seek reinstatement. In its submissions to the Court, CBC did not challenge the arbitrator’s decision to apply the fixed term approach:
The Employer’s complaint is not that the Arbitrator used a “fixed term job approach” in assessing the Grievor’s damages. It conceded that this was an appropriate approach in its submissions on penalty. The Employer instead takes issue with the contingency factor applied by the Arbitrator as part of this approach. It had suggested a contingency rate of 70%. The Arbitrator instead reduced the Grievor’s claim by only 15%.
Canadian Broadcasting Corporation v. Association of Professionals and Supervisors at para. 59
[56] Given the employer’s concession, this case cannot be seen as a judicial endorsement of the fixed term approach to compensation, though it is an example of an arbitrator employing that method, albeit with an unusually low discount for contingencies.
[57] Ms. Hussey also relies on the Federal Court’s decision in Wolf Lake, in which the employer First Nation unjustly dismissed a five-year employee. The employee did not wish to be reinstated. The adjudicator ordered the employer to pay the employee eight months’ wages plus personal expenses and compensation for legal costs and expenses. The employer sought judicial review on a number of grounds, one of which was that the award exceeded the notice period to which the employee would have been entitled at common law. The Federal Court held that:
Subsection 242(4) of the Code is clear in its application; it is designed to fully compensate an employee who is unjustly dismissed. It is not limited to the amount of severance pay to which the employee is entitled. It is not calculated by determining the notice period which should have been given to the employee.
…
Limiting the amount of damages for unjust dismissal to the amount of severance pay or on the basis of the common law is clearly an error.
Wolf Lake at para. 51
[58] Adjudicators who employ the common law approach to compensation would agree with the proposition that compensation is not to be limited to severance pay (payable under employment standards legislation) or reasonable notice at common law. However, this does not mean that compensation expressed in terms of a period of monthly pay is necessarily an error. This is confirmed by the Federal Court’s decision as to the adequacy of compensation awarded in Wolf Lake:
In the instant case the adjudicator ordered that eight months salary be paid to the Respondent as compensation. Although there is no clear indication as to how the adjudicator calculated this amount, I find no basis on which to interfere with this award.
Wolf Lake at para. 61
[59] Given the Court’s comments about reasonable notice, the fact that the Federal Court did not interfere with the award of compensation is a clear indication that it was not equivalent to reasonable notice at common law. Further, the fact that the Court did not interfere with the award of compensation of eight months’ salary is an indicator that a compensation award can be expressed in the same units as the notice period (months of salary), without being characterized as reasonable notice.
[60] In summary, there is no judicial pronouncement to the effect that the common law approach is unreasonable or wrong in law. As the Supreme Court put it in Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, in relation to statutory interpretation, at paragraph 41 of its decision:
… there might be multiple valid interpretations of a statutory provision or answers to a legal dispute and […] courts ought not to interfere where the tribunal’s decision is rationally supported.
See also Smith v. Alliance Pipeline Ltd., 2011 SCC 7, [2011] 1 S.C.R. 160 at para. 38
There is no principled reason why the same viewpoint should not apply to adjudicators’ approach to assessing compensation for the loss of the protection against unjust dismissal. The fact that one approach may be found to be reasonable does not mean that all other approaches are unreasonable.
(2) Was the Adjudicator constrained by an arbitral or adjudicative consensus?
[61] Because the protection against unjust dismissal in the Code is modelled upon the rights enjoyed by unionized employees, arbitrators and adjudicators have generally not distinguished between arbitral jurisprudence and cases decided by adjudicators appointed under the Code. The result is a body of jurisprudence which is common to both regimes. For the purposes of the discussion which follows, arbitral or adjudicative decisions are taken from this common jurisprudence.
[62] It is generally accepted that administrative tribunals are not bound by stare decisis in the same way that common law courts are:
The doctrine of stare decisis which prevails in the courts tends to the avoidance of conflict in their decisions and such conflict as does occur may be resolved by the mechanism of appeal. But the doctrine of stare decisis does not apply to referees, or arbitrators, or, for that matter, to administrative tribunals generally, nor are referees, or arbitrators, or administrative tribunals generally (there are exceptions) subject to appeal. These are characteristics of tribunals which legislators have created to provide what they believe to be for certain purposes more appropriate forums for decision‑making than the courts.
United Steelworkers of America, Local 14097 v. Franks (Div. Ct.), 75 O.R. (2d) 382, 1990 CanLII 6666 (ON SC). See also Weber v. Ontario Hydro, 2 S.C.R. 929, 125 D.L.R. (4th) 583 at para. 14
[63] Inconsistent decisions on the same issue between members of the same tribunal or of different tribunals (absent an operational conflict) are left to be resolved by the tribunals themselves, as opposed to being settled by the Courts: Wilson at para. 17; Domtar Inc. v. Quebec (Commission d'appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756, 105 D.L.R. (4th) 385 at 800-801; Tremblay v. Quebec (Commission des affaires sociales), [1992] 1 S.C.R. 952, 90 D.L.R. (4th) 609 at 974. However, this does not mean that an arbitrator or adjudicator can freely depart from a consistent line of arbitral authority. Arbitrators who depart from an arbitral consensus must provide the line of reasoning which brings them to do so, failing which their decisions will be found to be unreasonable: Vavilov at para. 131; J.D. Irving, Ltd. v. General Longshore Workers, Checkers and Shipliners of the Port of Saint-John, N.B. Local 273 of the International Longshoremen's Association, 2003 FCA 266, [2003] 4 FC 1080 at paras. 35-37: Canada (Attorney General) v. Bétournay, 2018 FCA 230, 48 Admin L.R. (6th) 71 at para. 51.
[64] In this case, there are two lines of arbitral or adjudicative decisions dealing with the valuation of the loss of the protection from unjust dismissal. Ms. Hussey argues that th