Date: 20040716
Citation: 2004 FC 1001
Ottawa, Ontario, the 16th day of July 2004
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
MOHAWK COUNCIL OF KAHNAWAKE,
governing body in and for the Mohawk Territory of Kahnawake, having its place of business at P.O. Box 720, Kahnawake, (Québec), JOL 1BO
Applicant
and
DANNY LAHACHE, P.O. Box 931, Kahnawake,
(Québec), JOL 1BO, c/o Me Sophie Matte, Rochefort & Associés, 1625, Sherbrooke W., Montréal, (Québec),
H4H 1E2
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] No matter how just the conclusion of a decision appears, the ends of a decision of an Adjudicator do not necessarily justify the means. Restraint is an essential function of the judicial exercise. Not only is that which is just to be done but it is to be done justly in accordance with the law, jurisprudence and established doctrine. This Court only has the authority to apply remedies within its jurisdiction; where it does not, it must refer the matter from whence it came, for the means also to justify the ends.
JUDICIAL PROCEDURES
[2] This is an application for judicial review of the decision of an Adjudicator, rendered pursuant to section 240 of the Canada Labour Code[1] and dated October 28, 2003, which states that the complainant, Danny Lahache (the "Respondent") was unjustly dismissed by the Mohawk Council of Kahnawake (the "Applicant").
[3] The Mohawk Council of Kahnawake seeks that the Court: grant the application, quash the decision of the Adjudicator, refer the matter back to another Adjudicator and award costs to the Mohawk Council of Kahnawake.
[4] Mr. Lahache seeks costs against the Mohawk Council of Kahnawake.
BACKGROUND
[5] Mr. Lahache, was employed as a truck driver/labourer by the Applicant, the Mohawk Council of Kahnawake for a period of about twenty years. He had received positive evaluations of his work until October 2001, and had been commended for his dedication during the "ice storm" of 1998.
[6] For the first twelve years of his employment, Mr. Lahache, along with his peers, did not sign employment contracts with the Mohawk Council of Kahnawake. After that, the Mohawk Council of Kahnawake began to hire its staff on a one-year contractual basis. In late 1999 the contracts were changed to six month contracts.
[7] In December, 1999, a new person was appointed Coordinator of Public Works (the "Coordinator"). Mr. Lahache was employed in a sub-unit of Public Works.
[8] It appears, from the evidence, that the Coordinator was responsible for the hiring of workers at Public Works.
[9] Mr. Lahache was laid off during the winter of 2000, and then hired back, it appears, in the spring of 2001.
[10] On or about October 26, 2001, Mr. Lahache was once again informed that he would be laid off for the winter.
[11] On January 21, 2002, Mr. Lahache filed a complaint of unjust dismissal against the Mohawk Council of Kahnawake pursuant to section 240 of the CLC.
[12] In January 2002, the Mohawk Council of Kahnawake undertook to study the situation of Mr. Lahache's employment at the Council in an attempt to address his concerns about his lay off.
[13] On April 29, 2002, the Mohawk Council of Kahnawake offered Mr. Lahache two possible contracts. He turned both down, indicating that he would like a one-year contract.
[14] On April 30, 2002, the Mohawk Council of Kahnawake offered Mr. Lahache another contract for one-year employment with the Public Works department. The offer provided that the first twenty-six weeks would be a probationary period. In addition, the offer was conditional upon the withdrawal of Mr. Lahache's complaint of unjust dismissal, the withdrawal of a criminal complaint of forgery against the Coordinator, the successful completion of an Alternative Dispute Resolution process with the Coordinator, as well as other conditions.
[15] Mr. Lahache agreed to sign the contract before seeing it, but then, on the date fixed for him to sign it, he decided that he would not.
DECISION UNDER REVIEW
[16] At the beginning of the hearing, the Mohawk Council of Kahnawake raised two declinatory exceptions: the Mohawk Council of Kahnawake alleged that Mr. Lahache resigned from his employment by refusing an offer of employment in May 2002. In the alternative, the Mohawk Council of Kahnawake submitted that Mr. Lahache was laid off due to lack of work.
[17] In regards to the first declinatory exception, the Adjudicator found that Mr. Lahache had not resigned. He found it understandable that Mr. Lahache would not agree to the contract offered to him, as it asked him not to exercise his legal rights to bring a complaint pursuant to the CLC against the Mohawk Council of Kahnawake; in addition, to drop a criminal complaint Mr. Lahache had made against the Coordinator, and also to agree to successfully complete an ADR resolution process. This gave no assurance to Mr. Lahache, and, in effect, it placed him on probationary status, with a strong disciplinary connotation. Due to the conditions placed on Mr. Lahache, the Adjudicator thus found that, by refusing to sign the contract, Mr. Lahache did not resign.[2]
[18] The Adjudicator also found that Mr. Lahache was not laid off for lack of work, but rather, was unjustly dismissed. He noted that it was uncontested that Mr. Lahache had been working for the Mohawk Council of Kahnawake for approximately 20 years, and that, until such time that a new Coordinator of Public Works was appointed in 1999, he had had a stellar work record.[3]
[19] The Adjudicator then described the process leading to Mr. Lahache's unjust dismissal, beginning with the Coordinator's alteration of Mr. Lahache's employee evaluation. He stated:
Showing poor judgement and a certain animus towards the Complainant [Mr. Lahache], [the Coordinator] unilaterally changed some of immediate supervisor Andrew Montour's "satisfactory" and "fully satisfactory" performance ratings to "unsatisfactory", and added an extra sheet to "Employee Performance Appraisal" form D-5.
On this extra sheet, [the Coordinator] appended his own comments, which:
a. are at odds with the Complainant's previous evaluations,
b. are flatly contradictory with the immediate supervisor's assessment,
c. are highly disparaging of the Complainant's employment performance, and
d. are inexplicably personal in tenor, given he is supposedly once-removed from the Complainant's daily work.
Contemporaneously, [the Coordinator] selected workers for the winter, excluding the long-experienced Complainant, but including another who had no experience whatever driving a plough. Therein he asserts: "the selections were based on an employee evaluation of each candidate and discussed thoroughly by the committee (...) the four [chosen] employees have been on contract since April 30th 2001. The performance of their job responsibilities has been fully satisfactory.
[The Coordinator's] memo can only be said to be true or sincere because he had or was about to surreptitiously damage, or attempt to damage the Complainant's otherwise sterling and long-standing record of work for the Defendant.
...
Simply put, it seems to me that the Defendant's [the Mohawk Council of Kahnawake] own evidence surrounding [the Coordinator's] machinations of October 2001 might support a defence of his dismissal, but not of the Complainant's. [emphasis in the original].[4]
[20] The Adjudicator further noted that the Mohawk Council of Kahnawake had indicated before the hearing that it would rely on a third declinatory exception, namely, that Mr. Lahache had not been employed for twelve months continuously. Although it withdrew this exception, the Adjudicator nevertheless briefly considered this issue, and found that Mr. Lahache had worked continuously for twelve months or more.[5]
[21] Having found that the exceptions raised by the Mohawk Council of Kahnawake did not apply to the case before him, the Adjudicator found in favour of Mr. Lahache.
[22] The Adjudicator then ordered that Mr. Lahache be reinstated with retroactive pay. He further reserved jurisdiction: "...as to the application of quantum or any other difficulty arising from the application of the present award."[6]
ISSUES
[23] Is the affidavit filed on behalf of the Mohawk Council of Kahnawake sufficient?
[24] Are the Mohawk Council of Kahnawake's submissions properly pleaded?
[25] Did the Minister violate the duty of fairness in appointing the Adjudicator three months after Mr. Lahache's file was supposed to be closed due to inaction?
[26] Did the Adjudicator err by placing the burden of proof on the Mohawk Council of Kahnawake?
[27] Did the Adjudicator err by not allowing the Mohawk Council of Kahnawake to make representations on the appropriate remedy?
[28] Are the Adjudicator's reasons in regards to reintegration adequate?
ANALYSIS
Is the affidavit filed on behalf of the Mohawk Council of Kahnawake sufficient?
[29] Pursuant to subsection 80(3) of the Federal Court Rules, 1998,[7] exhibits: "shall be accurately identified by an endorsement on the exhibit or on a certificate attached to it, signed by the person before whom the affidavit is sworn." As Mohawk Council of Kahnawake did not do this, the exhibits attached to its affidavit are inadmissible.
Are the Mohawk Council of Kahnawake's submissions properly pleaded?
[30] The Mohawk Council of Kahnawake makes a number of submissions about errors made by the Adjudicator during the hearing. The Mohawk Council of Kahnawake, however, does not attest to these incidents, and there is no other evidence of them on the record. As a result, a number of the Mohawk Council of Kahnawake's submissions are inadmissible, as they are based on statements unsupported by the evidence.
[31] The following submissions are problematic:
(a) The submission that the Adjudicator erred by not allowing the Mohawk Council of Kahnawake the opportunity to argue that the dismissal of Mr. Lahache was just, is inadmissible. The Mohawk Council of Kahnawake's representative does not state, in her affidavit, that the Adjudicator did not allow the Mohawk Council of Kahnawake the opportunity to present evidence on this issue. Moreover, Mr. Lahache has filed a letter with the Court in which the Mohawk Council of Kahnawake confirms that it has presented its case.[8] This contradicts the submission of the Mohawk Council of Kahnawake.
(b) The Mohawk Council of Kahnawake submits that the Adjudicator erroneously stated that Mr. Lahache worked continuously for the Mohawk Council of Kahnawake for about twenty years, despite Mr. Lahache's own testimony to the effect that he had been laid off on occasions during his employment. This is not attested to in the Mohawk Council of Kahnawake's representative's affidavit, nor is there any other evidence to this effect.
(c) The Mohawk Council of Kahnawake submits that the Adjudicator erred by ignoring the testimony of Mr. Richard Jones. There is no evidence, however, before the Court, of what Mr. Jones stated in his testimony.
[32] None of these arguments has an evidentiary basis.
Did the Minister violate the duty of fairness in appointing the Adjudicator three months after
Mr. Lahache's file was supposed to be closed due to inaction?
[33] The Mohawk Council of Kahnawake submits that the Adjudicator violated the duty of fairness owed to the Mohawk Council of Kahnawake when he heard the case despite the fact that the Minister appointed him in a manner that was erroneous or contrary to law.
[34] The Mohawk Council of Kahnawake submits that the Minister appointed the Adjudicator in a manner that was erroneous because the Minister appointed him three months after the Human Resources Development Canada (HRDC) Inspector in charge of the file had informed the Mohawk Council of Kahnawake that he would close the file if Mr. Lahache did not inform him of his intentions with regard to his complaint. According to the Mohawk Council of Kahnawake, because the Minister failed to consider the deadline put in place by the Inspector, he breached the duty of fairness owed to it.
[35] The letter that the Mohawk Council of Kahnawake refers to is not properly submitted before the Court, and thus, this argument may be dismissed for that reason alone.
[36] However, even if it were properly before the Court, the Mohawk Council of Kahnawake's submission is completely unfounded. Firstly, it was the Inspector himself that extended the deadline, and thus, the Minister did not fail to consider the deadline of the Inspector.
[37] Moreover, the Inspector himself cannot be found to have breached the duty of fairness owed to the Mohawk Council of Kahnawake, as delay may be the source of a breach of the duty of fairness when it is undue delay and thus prevents the parties from adequately presenting their case.[9] It is improbable that a delay of three months would be inherently prejudicial to the Mohawk Council of Kahnawake. The Mohawk Council of Kahnawake, moreover, has not described how it has been prejudiced by the delay. As such, there is no breach of the duty of fairness.
[38] Thirdly, the Mohawk Council of Kahnawake is really taking issue with either the Inspector's decision or with the Minister's decision. The case at bar, however, is a judicial review of the Adjudicator's decision.
[39] Finally, as Mr. Lahache points out, the reason he asked for postponements was because he was, for a large part of that time, in negotiations with the Mohawk Council of Kahnawake about his employment with the Council. The Mohawk Council of Kahnawake, therefore, potentially would have benefited from the delay. In addition, it was instrumental in causing the delay. As such, it cannot now argue that there was a breach in natural justice.
Did the Adjudicator err by placing the burden of proof on the Mohawk Council of Kahnawake?
[40] At the beginning of the hearing, the Mohawk Council of Kahnawake argued that the Adjudicator did not have jurisdiction over the matter because either Mr. Lahache resigned from his post, or he was laid off due to lack of work. In setting out these objections, the Adjudicator stated: "By these exceptions, the Defendant [the Mohawk Council of Kahnawake] shifted the burden unto itself...".[10] The Mohawk Council of Kahnawake submits that, according to the case law, the complainant always has the burden of proof, even where the employer alleges that the Applicant resigned. The Mohawk Council of Kahnawake argues that the Adjudicator put the burden of proof on the Mohawk Council of Kahnawake, and erred in doing so.
[41] Mr. Lahache submits that the decision as a whole must be taken into consideration. The Adjudicator listened to the entirety of the evidence before determining whether or not the exceptions were applicable. Because of this, the Adjudicator did not place the burden of proof on the Mohawk Council of Kahnawake, and did not err.
[42] The Court is in agreement with the Mohawk Council of Kahnawake. In Demangeon v. Serge Lemay Inc.,[11] in which, on this issue, the facts are very similar to those of the case at bar, Mr. Justice Pinard stated:
In my opinion, the adjudicator was wrong to impose on the plaintiff the burden of showing that the defendant had resigned. The fact that the question of the adjudicator's jurisdiction was raised by a preliminary objection made by the plaintiff does not thereby shift the burden of proof which the law imposes on the complainant-defendant of proving the existence of a dismissal, including if necessary the absence of a resignation. It is only when a person who claims to have been unfairly dismissed presents evidence of dismissal that the employer then has the burden of showing that the dismissal was fair. The standard of judicial review of the adjudicator's decision on his jurisdiction is the absence of error...[12]
In accordance with this reasoning, the Court agrees with the Mohawk Council of Kahnawake.
[43] In the case at bar, the burden could have shifted at some point from Mr. Lahache to the Mohawk Council of Kahnawake. If Mr. Lahache presented evidence of dismissal, at that point, the Mohawk Council of Kahnawake would have had the burden of proof. The Adjudicator, however, concluded that the Mohawk Council of Kahnawake had the entire burden of proof. This was clearly an error, which could have affected the outcome of the decision.
Did the Adjudicator err by not allowing the Mohawk Council of Kahnawake to make representations on the appropriate remedy?
[44] The Mohawk Council of Kahnawake submits that at the end of the hearing, Mr. Lahache, when asked by the Adjudicator what kind of remedy he was seeking, responded that he was seeking reintegration. According to the Mohawk Council of Kahnawake, this was the first time it had heard of this, and sought to make submissions on the issue. The Adjudicator did not allow submissions. In his decision, however, he granted Mr. Lahache the award of reinstatement. By not allowing submissions on this issue, the Adjudicator denied the Mohawk Council of Kahnawake the right to be heard.
[45] Mr. Lahache submits that the Adjudicator is still seized of the matter, having stated in his decision:
FOR THESE REASONS, THE TRIBUNAL:
Reinstates the Complainant effective October 27th 2001 with retroactive pay as if he had been continuously employed since then, and
Reserves jurisdiction as to the application of quantum or any other difficulty arising from the application of the present award.[13]
As such, the Mohawk Council of Kahnawake can now make the submissions it wanted to make before the Adjudicator.
[46] The Court is not in agreement with Mr. Lahache. From the reading of the decision itself, it is apparent that the Adjudicator would not entertain any submissions on the kind of award to be ordered, as he simply remained seized as to how the award was to be applied.
[47] Moreover, the Adjudicator would have erred had he indicated in his decision that, having awarded reinstatement to Mr. Lahache, he could still receive submissions and give a different award, as the Adjudicator was functus officio. In Murphy v. Canada (Adjudicator, Labour Code),[14] the Federal Court of Appeal established that the test for determining whether an Adjudicator is functus officio is whether the Adjudicator has finally determined the complaint before him.[15] Subsequent cases have applied this principle in such a way that, where the Adjudicator retains jurisdiction over the implementation of the award, the Adjudicator does not have the jurisdiction to re-open the case on the merits of the case.[16]
[48] The matter on the merits included the question of whether or not reinstatement was appropriate. The Adjudicator came to a conclusion on this issue. It would not have been open to him to then reopen it upon request by either party. As such, the Mohawk Council of Kahnawake may not provide submissions on the appropriateness of an award of reinstatement.
[49] The Court concludes that the Adjudicator erred in coming to his conclusion on this issue. The Court does not accept the Mohawk Council of Kahnawake's submissions that it only learned about Mr. Lahache's intent to seek reinstatement at the end of the hearing. In a letter dated September 17, 2002, the Mohawk Council of Kahnawake stated that it was advised that Mr. Lahache was seeking reintegration in his previous employment and lost wages.[17] Thus, it is not possible that the Mohawk Council of Kahnawake heard that Mr. Lahache was seeking this award at the end of the hearing. The Mohawk Council of Kahnawake was not caught by surprise.
[50] The Court deems that it was open to the Adjudicator to refuse the Mohawk Council of Kahnawake's request to introduce evidence and make submissions on the issue. The Mohawk Council of Kahnawake had presented its entire case, and had confirmed that it had done so.[18] By allowing the Mohawk Council of Kahnawake to make additional submissions and introduce additional evidence, the Adjudicator would have allowed the Council to split its case. What is problematic, however, is that the Adjudicator made no reference to this issue in his decision. In order for his reasons to be adequate, the Adjudicator was obligated to discuss the major points at issue, give his conclusion and explain his reasoning process.[19] The Adjudicator did none of these things in denying the Mohawk Council of Kahnawake the opportunity to present evidence and make submissions on the award. Thus, although the Adjudicator's decision is not necessarily incorrect, his complete silence on the issue in his decision is a reviewable error.
Are the Adjudicator's reasons in regard to reintegration adequate?
[51] In a similar vein, the Mohawk Council of Kahnawake submits that the Adjudicator, in ordering reinstatement, did not state whether any consideration had been given to the appropriateness of reintegration, whether any consideration had been given to the notion of mitigation of damages and what the retroactive salary would be.
[52] The Court is in agreement with the Mohawk Council of Kahnawake that the Adjudicator provided insufficient reasons. The question of reintegration as opposed to compensation is a difficult one, and given that the Coordinator seemed to feel animosity to Mr. Lahache, and that Mr. Lahache had threatened the Coordinator, it was an open question whether Mr. Lahache could have been reintegrated into the workplace. Whatever the Court may deem to be the just resolution of the conflict, it is not in the Court's authority to substitute itself but rather to consider the matter in respect of a judicial review. This is not to say, by any means, that the Adjudicator was incorrect in ordering reinstatement, that is for the Adjudicator to decide; the fact that the Mohawk Council of Kahnawake had been prepared to offer a job to Mr. Lahache, indicates that the Council itself believed that Mr. Lahache should be reinstated. The Adjudicator, again, provided no analysis of the situation or reasons for granting reinstatement. As this is lacking, the Adjudicator's decision should be set aside.
CONCLUSION
[53] The Court grants the Application for judicial review.
[54] In light of the circumstances, the Court does not award any costs.
JUDGMENT
THE JUDGMENT OF THE COURT is that the matter be returned to another Adjudicator for redetermination.
"Michel M.J. Shore"
Judge
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-2196-03
STYLE OF CAUSE: MOHAWK COUNCIL OF KAHNAWAKE,
governing body in and for the Mohawk Territory of Kahnawake, having its place of business at P.O. Box 720, Kahnawake, (Québec), JOL 1BO
and
DANNY LAHACHE, P.O. Box 931, Kahnawake,
(Québec), JOL 1BO, c/o Me Sophie Matte, Rochefort & Associés, 1625, Sherbrooke W., Montréal, (Québec), H4H 1E2
PLACE OF HEARING: MONTREAL, QUÉBEC
DATE OF HEARING: JUNE 23, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: THE HONOURABLE MR. JUSTICE SHORE
REASONS FOR JUDGMENT
AND JUDGMENT: JULY 16, 2004
APPEARANCES:
Mr. François Dandonneau FOR THE APPLICANT
Mr. François Beauvais FOR THE RESPONDENT
SOLICITORS OF RECORD:
Mohawk Council of Kahnawake FOR THE APPLICANT
Legal Services
Kahnawake (Québec)
Rochefort & Associés FOR THE RESPONDENT
Montreal (Québec)
LEGISLATIVE PROVISIONS
Sections 240 to 242 of the Canada Labour Code, r.S. 1985, c. L-2, read as follows:
| 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.
(2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.
(3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.
241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.
(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.
(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),
(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and
(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.
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).
(2) An adjudicator to whom a complaint has been referred under subsection (1)
(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
(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.
(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.
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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.
(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.
(3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l'intéressé a déposé sa plainte à temps mais auprès d'un fonctionnaire qu'il croyait, à tort, habilité à la recevoir.
241. (1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l'employeur de lui faire connaître les motifs du congédiement; le cas échéant, l'employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande.
(2) Dès réception de la plainte, l'inspecteur s'efforce de concilier les parties ou confie cette tâche à un autre inspecteur.
(3) Si la conciliation n'aboutit pas dans un délai qu'il estime raisonnable en l'occurrence, l'inspecteur, sur demande écrite du plaignant à l'effet de saisir un arbitre du cas_:
a) fait rapport au ministre de l'échec de son intervention;
b) transmet au ministre la plainte, l'éventuelle déclaration de l'employeur sur les motifs du congédiement et tous autres déclarations ou documents relatifs à la plainte.
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.
(2) Pour l'examen du cas dont il est saisi, l'arbitre_:
a) dispose du délai fixé par règlement du gouverneur en conseil;
b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
(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.
(4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur_:
a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;
b) de réintégrer le plaignant dans son emploi;
c) de prendre toute autre mesure qu'il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier. |
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[1] R.S. 1985, c. L-2 (the "CLC").
[2] Applicant's Application Record, Decision of the Adjudicator, at pp. 19-20.
[3] Supra, at p. 13.
[4]Supra, at pp. 14-15.
[5] Supra, at p. 20.
[6] Supra.
[7] SOR/98-106.
[8] Respondent's Application Record, Letter from François Dandonneau to Sophie Matte, dated July 14, 2003, at p. 32.
[9] Blencoe v. British Columbia (Human Rights Commission), [2000] 2 S.C.R. 307, [2000] S.C.J. No. 43 (QL), at para. 102.
[10] Applicant's Application Record, Decision of the Adjudicator, at p.13.
[11] [2001] F.C.J. No. 93 (T.D.) (QL).
[12] Supra, at para. 8.
[13] Applicant's Application Record, Decision of the Adjudicator, at p. 20.
[14] [1993] F.C.J. No. 1236 (C.A.) (QL).
[15] Supra, at para. 16.
[16] Wolf Lake First Nation v. Young, [1997] F.C.J. No. 514 at para. 29 (T.D.) (QL); Grover v. Canada (National Research Council - NRC), [1994] F.C.J. No. 1000, at para. 33 (T.D.) (QL).
[17] Respondent's Record, Letter from François Dandonneau to Michel Germain, Labor Officer, dated September 17, 2002. at p. 15.
[18] Respondent's Application Record, Letter from François Dandonneau to Sophie Matte, dated July 14, 2003, at p. 32.
[19] VIA Rail Canada Inc. v. National Transportation Agency, [2000] F.C.J. No. 1685, at para. 22 (C.A.) (QL).