Date: 19990521
Docket: T-1737-98
CALGARY, Alberta, Friday, the 21st day of May, 1999.
PRESENT: THE HONOURABLE MR. JUSTICE CAMPBELL
BETWEEN:
ELIZABETH CHALIFOUX
Applicant
- and -
DRIFTPILE FIRST NATION
and THOMAS W. WAKELING
Respondents
ORDER
For the written reasons provided, I set aside Adjudicator Wakeling's decision respecting reinstatement only, and refer this issue back to him for reconsideration on the direction that such reconsideration include a weighing of all considerations for and against an award or reinstatement, including an evaluation of the nature of the relationship between the applicant and respondent on the record as it exists.
As she is successful in this application, I award costs to the applicant.
"Douglas R. Campbell"
JUDGE
Date: 19990521
Docket: T-1738-98
BETWEEN:
ELIZABETH CHALIFOUX
Applicant
- and -
DRIFTPILE FIRST NATION
and THOMAS W. WAKELING
Respondents
REASONS FOR ORDER
CAMPBELL J.
In April 1996, Ms. Chalifoux lost her teaching position with the Driftpile First Nation on the Driftpile Reserve, which she had held for 11 years, and, in response, immediately brought an application to be reinstated. In August 1998 the Adjudicator who heard her application under the Canada Labour Code [1]awarded her compensation for being unjustly dismissed, but declined to order reinstatement. The question on this judicial review of that decision is whether, in declining to exercise discretion to award reinstatement, the Adjudicator made a patently unreasonable error in law.
A. Background
On April 19, 1996, the applicant received notice from the respondent that her teaching services would not be required for the 1996-97 school year. Pending the outcome of her application for reinstatement, the applicant was able to secure another teaching position at a school on the Whitefish Reserve for the 1996-97 school year, and, in this position, suffered no reduction in salary. However, this new position required the applicant to commute 110 kilometres from her home which remained on the Driftpile Reserve. As this soon proved too difficult, the applicant rented accommodation during the week in Whitefish and returned home on weekends.
For the following 1997-98 school term,, the applicant taught at the North Country School so that she could live on the Driftpile Reserve with her family. As a status Indian, the applicant did not have to pay income tax respecting her employment at the schools on the Driftpile and Whitefish reserves, but she did respecting her employment at the North Country school since it is not on a Reserve.
B. The Adjudicator's decision
Adjudicator T.W. Wakeling found that the applicant did not work for fixed term contracts, and, therefore, the respondent's decision not to use her services for the 1996-97 school term constitutes an unjust dismissal. As a result, the Adjudicator applied his discretion under s.242(4)(b) of the Code, which reads as follows:
242(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
Section 242(4) clearly provides a wide discretion to grant each of the three remedies noted, either alone or in combination. In the applicant's case the Adjudicator exercised his discretion to award compensation and costs in the sum of $5,143.24. The amount of this award, and the approach used by the Adjudicator to arrive at the amount, are not in issue on this judicial review.
With respect to exercising discretion to award reinstatement, the Adjudicator said this:
I am not prepared to invoke the jurisdiction I have under section 242(4)(b) of the Canada Labour Code and order the Driftpile First Nation to reinstate Ms. Chalifoux in its employ. In Knopp v. Westcan Bulk Transport Ltd. 16 (Feb. 22, 1994) I stated that "in most cases of unjust dismissal under the Code an award which measures the compensation ... [an] employee ... would have received had he or she been given reasonable notice is appropriate and equitable ... ." There is nothing in Ms. Chalifoux's situation which leads me to think that the general proposition just outlined should not apply in her case. She found new employment which gave her some income security and she is still employed. I was also told that the band would have to dismiss a teacher if it was forced to reinstate Ms. Chalifoux. This is not an insignificant fact. [2]
As stated above, with respect to this conclusion the question to be answered is : Did the Adjudicator make a patently unreasonable error in law? [3]
C. Analysis
The approach to be adopted in applying discretion to award reinstatement under s.242(4)(b) of the Code is a matter of some academic [4] and judicial debate. A binding precedent which reflects this debate is Atomic Energy of Canada v. Sheikholeslami, [1998] 3 F.C. 349 (F.C.A.). At paragraph 12 of the decision, Marceau J.A. says as follows:
The unfair dismissal provisions for non-unionized employees in the Canada Labour Code no doubt represent a statutory modification of the traditional rule that an employment contract will never be specifically enforced. But they certainly do not, and even could not, go so far as to create a right in the person of the wrongfully dismissed employee. It would be contrary to the common sense that precisely supports the traditional rule. They simply provide for reinstatement as a possible remedy that may be resorted to in proper situations. It is often said that, in practice, it is the remedy favoured by adjudicators in their efforts to "make whole" an employee's real-world losses caused by dismissal. It is undisputable, however, on a mere reading of subsection 242(4) of the Code, that an adjudicator is given full discretion to order compensation in lieu of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored. [Footnotes omitted] [Emphasis added]
However, at paragraph 31, Létourneau J.A. says this:
It is true that reinstatement is not a right even after a finding of unjust dismissal, but, as I. Christie et al. properly point out, the exception to reinstatement should be applied very cautiously otherwise the risk exists that an unjustly dismissed employee will be penalized by losing his job. Indeed, a finding of unjust dismissal is a finding that the work relationship should not have been severed in the first place. In such cases, the presumption is, in my view, clearly in favour of reinstatement unless there is clear evidence to the contrary. [Footnotes omitted] [Emphasis added]
While these passages disclose a difference of opinion as to whether reinstatement can be expected for unjust dismissal, in my opinion, they both establish the principle that, in the exercise of discretion under s.242(4)(b) of the Code, an adjudicator must weigh the considerations for and against such an award, including, as far as Marceau J.A. is concerned, an evaluation of the nature of the relationship between the employer and employee at the time that reinstatement is being considered. [5]
In the present case, the Adjudicator's decision discloses the basis for the applicant's argument for reinstatement: by being forced to take a teaching position off the Driftpile Reserve, the applicant is forced to work and/or reside in another community, and is thus separated from her family still living on the Driftpile Reserve; and, because she is a status Indian, by having to accept employment off-Reserve, the applicant is required to pay income tax. These real life and important considerations were not addressed by the Adjudicator.
With respect to the relationship between the parties, no mention of this consideration was made by the Adjudicator in the decision except for findings of fact that the applicant's 1996 teaching evaluation gave an excellent rating, indeed she never received a negative teaching evaluation, and, nevertheless, in the spring of 1996 the Driftpile school principal did not recommend her for continued employment.
The only considerations directly addressed by the Adjudicator respecting reinstatement were that the applicant was otherwise employed, and the respondent would have to dismiss a teacher if the applicant were to be reinstated. Indeed, the applicant argues that the latter consideration is irrelevant, and its inclusion in the analysis which did take place, in and of itself, renders the decision patently unreasonable. I do not accept this argument as it is a fact which should be taken into consideration.
However, in my opinion, the Adjudicator's analysis is wholly deficient and made in error of law in not conforming with the weighing of considerations requirement respecting reinstatement expressed in Atomic Energy of Canada v. Sheikholeslami as found above. Further, because reinstatement is a fundamental element of the applicant's prayer for relief, I find that the answer to the question posed above is yes; not to conduct the required analysis is a patently unreasonable error in law.
Accordingly, I set aside Adjudicator Wakeling's decision respecting reinstatement only, and refer this issue back to him for reconsideration on the direction that such reconsideration include a weighing of all considerations for and against an award or reinstatement, [6]including an evaluation of the nature of the relationship between the applicant and respondent on the record as it exists.
As she is successful in this application, I award costs to the applicant.
"Douglas R. Campbell"
JUDGE
Calgary, Alberta
May 21, 1999
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS ON THE RECORD
COURT FILE NO.: T-1737-98
STYLE OF CAUSE: ELIZABETH CHALIFOUX v. DRIFTPILE FIRST
NATION and THOMAS W. WAKELING
PLACE OF HEARING: CALGARY, Alberta
DATE OF HEARING: May 17, 1999
REASONS FOR ORDER OF CAMPBELL, J.
DATED: May 21, 1999
APPEARANCES:
Mr. Brent Gawne for the Applicant
Mr. William Armstrong for the Respondents
SOLICITORS OF RECORD:
Brent Gawne & Associates
Edmonton, Alberta for the Applicant
Laird Armstrong
Calgary, Alberta for the Respondents
[1] R.S.C. 1985, c.L-2, hereafter referred to as "the Code".
[2] Applicant's Application Record, p.16.
[3] This stringent standard of review of decisions under s.242 of the Code is due to the true privative provisions of s.242(3) and Supreme Court of Canada precedent such as Sopinka J.'s decision in C.J.A. Local 597 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316 at 332 which requires that "judicial review [under s.242 of the Code] is limited to errors of jurisdiction resulting from an error in interpreting a legislative provision limiting the tribunal's powers or a patently unreasonable error on a question of law otherwise within the tribunal's jurisdiction...".
[4] For example, Ball in Canadian Employment Law (Aurora, Ontario: Canada Law Book, 1996) is of the opinion that reinstatement is the norm, and will not be ordered only in situations where the relationship between the parties has soured past the point of repair. A contrary view expressed by Grosman in Federal Employment Law in Canada (Agincourt, Ontario: Carswell, 1990) is that reinstatement should be limited to "unique circumstances where there exists the real prospect of a viable future working relationship between the parties".
[5] During the course of the hearing, counsel for the respondent argued that the passages quoted from Atomic Energy of Canada Ltd. v. Sheikholeslami are restricted to the facts of that case being an argument for reinstatement by an employee who was found to be dishonest. I do not accept this interpretation because the quoted statements of Marceau and Létourneau J.J.A. are expressed as statements of general principle.
[6] During the course of the hearing counsel for the respondent argued that a valid consideration respecting reinstatement is the fact that an award of compensation has been made. I agree with this submission.