[1] This is an appeal from a decision of the Federal Court dismissing the appellant's application for judicial review of the decision of an adjudicator which found that the respondent had been unjustly dismissed.

[2] It is common ground that the reviewing Judge has failed to first conduct a pragmatic and functional analysis to determine the applicable standard of review. She appears to have applied as a matter of course the standard of patent unreasonableness with respect to all the issues before her. In my respectful view, she erred in shortcutting past the components of the pragmatic and functional approach (see Dr. Q. v. College of Physicians and Surgeons of British Columbia, [2003] 1 S.C.R. 226, at para. 21; Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at para. 21). She further erred, as we shall see, in applying the patent unreasonableness standard.

Relevant statutory provisions

[3] The relevant provisions of the Canada Labour Code are reproduced below:

DIVISION XIV

UNJUST DISMISSAL

240. (1) Subject to subsections (2) and 242(3.1), any person

(a) who has completed twelve consecutive months of continuous employment by an employer, and

(b) who is not a member of a group of employees subject to a collective agreement,

may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

...

242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).

(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.

243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.

SECTION XIV

CONGÉDIEMENT INJUSTE

240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si_:

a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;

b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective.

[...]

242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement.

(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.

243. (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.

(2) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.

The standard of review applicable

[4] I need not spend much time on the pragmatic and functional approach because the issue, as it applies to the circumstances of this case, has been put to rest by the decision of this Court in Dynamex Canada Inc. v. Mamona et al (2003), 305 N.R. 295 (F.C.A.) (leave to appeal denied by the Supreme Court of Canada on March 4, 2003) which was not brought to the attention of the judge below.

[5] The analysis made by Sharlow J.A. in Dynamex is applicable here. The tribunal at issue in Dynamex was a referee appointed under section 251.12 of the Canada Labour Code; in the case at bar, the tribunal is an adjudicator appointed under section 242 of the Code. Both exercise functions under Part III of the Code. The nature of the problem is substantially the same, the referee determining whether the claimant is an employee at common law, the adjudicator determining whether there was dismissal at common law. Their respective expertise with respect to the question at issue is substantially similar. Their respective powers are quite analogous, the adjudicator being additionally given by paragraph 242(2)(c) "the power conferred on the Canada Industrial Relations Board in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c)", a factor that may militate in favour of an even greater deference to be given to his decision. The privative clause that relates to a referee's decision (subsections 252.12(6) and (7) of the Code) is similar to that relating to an adjudicator's decision (section 243).

[6] In the end, therefore, the conclusion reached by Sharlow J.A. at paragraph 45 of her reasons is apposite, substituting therein the words "common law principles applicable to the determination of whether an employee has been dismissed" to the words "common law principles applicable to the determination of the status of a person as an employee" and the word "adjudicator" to that of "referee":

[45] In my view, the determination of the referee as to the common law principles applicable to the determination of the status of a person as an employee should be reviewed on the standard of correctness. I reach that conclusion, despite the privative clauses, because it is a question of law of a kind that is normally considered by the courts, and is not a question that engages the special expertise of a referee. However, the manner in which those principles are applied to the facts, which is a question of mixed law and fact, should be reviewed on the standard of reasonableness. Thus, if the referee's reasons disclose no error of law, and the conclusion is reasonably supportable on the record after a somewhat probing examination, the decision will stand.

[7] This conclusion is consonant with that reached by the Supreme Court of Canada in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, [2004] 1 S.C.R. 609. It appears from paragraphs 27 and 29 of that decision that deference was shown to the arbitrator with respect to the interpretation of a collective agreement, albeit that was said to be a question of law, because the interpretation of collective agreements is at the core of an arbitrator's expertise. In the case at bar, as it was in Dynamex, the interpretation of the concept of "dismissal" at common law requires the interpretation of the law of the land as opposed to the law of the parties, a domain where, in general, no deference is owed.

[8] The conclusion that the standard of correctness applies to the determination by the adjudicator of the common law principles pertaining to dismissal is also in accord with that reached by this Court in earlier times, when the analysis was focussing on what was then called "jurisdictional error" (see Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (F.C.A.) and other cases cited in Lemieux v. Canada (Labour Affair Officer, Human Resources Development), [1998] 4 F.C. 65 (F.C.A.) at para. 47.

The concept of dismissal at common law

[9] In the case at bar, as opposed to most cases in this domain, the employer was not alleging that the dismissal was just. He was alleging, rather, that there was no dismissal to start with as the respondent had, in his view, voluntarily resigned her employment. The concepts of "dismissal" and "resignation" are thus closely connected in the circumstances and for the purposes of this appeal both are to be considered as two sides of a same legal coin. The decision of the adjudicator in that regard is to be reviewed on the standard of correctness. Here is how he set out the applicable law pertaining to resignation of employment:

THE LAW

Central to this entire issue in the nature of resignation of employment. The authors Brown and Beatty's "Canadian Labour Arbitration" (3^rd Edition) at 7-272 state that:

Arbitrators are agreed that the right to resign or quit ones employment is peculiar to the employee. It is the mechanism available to her whereby she can terminate the employment relationship and is correlative to the employer's tool of termination, the act of discharge. Thus, although the rule may be otherwise in the public sector it has been said that a person can be found to have quit her employment only when she does so voluntarily, and that it is not open for an employer to deem to have quit.

It is generally agreed among Arbitrators and Adjudicators that the first task in determining whether an employee has resigned from her employment is to determine whether it was the intention of the employee in question. In short, it must be determined whether the employee actually intended to voluntarily sever the employment relationship. As has been made clear in the leading and often quoted decision of Professor J. Finkelman K.C. in Re Anchor Cap and Closure Corporation of Canada, Ltd., l L.A.C. 222, the act of resigning from employment includes both a subjective intention to leave one's job and some objective conduct which manifests an attempt to put that intention into effect. In the Anchor Cap case, the Arbitrator stated:

The act of quitting a job has in it a subjective as well as an objective element. An employee who wishes to leave the employ of the company must first resolve to do so and he must then do something to carry his resolution into effect. That something may consist of notice, ... or it may consist of conduct, such as taking another job inconsistent with his remaining in the employ of the company.

As stated by the learned authors of Brown and Beatty at p. 7-273:

... In assessing the employee's conduct, Arbitrators have recognized that certain conduct, such as a part-time employee holding down two jobs, or severe psychiatric illness, may imply intention other than a desire to sever one's employment.

The general approach to the issue of resignation from employment adopted by Arbitrators and Adjudicators arises from the commonsense recognition that words spoken in haste, high emotion or anger may not express the true intentions of the employee and that, often enough, such words are spoken to "let off steam" or out of the enormous frustration of the moment. Words arising from such situations do not necessarily express any real intention to sever the employment relationship. The Anchor Cap decision and those which follow it require that there be some additional conduct which, when objectively observed, indicates that the employee truly intended to terminate her employment. A long unexplained absence from the workplace, returning keys or company property, clearing out a locker, seeking alternate employment or requesting a final pay cheque are all examples of such additional conduct which, when objectively viewed, tend to support the stated intention of resignation. The types of such conduct are likely enumerable; making reference to other case authorities dealing with the issue to be of little assistance. Each case must be decided on its own facts so that, in the end, the Adjudicator can reasonable and objectively conclude that the employee either did or did not intend to resign.

[A.B., pp. 42, 43]

[10] Counsel for the appellant did not seriously argue that the adjudicator had erred in law. His attack, essentially, was directed at the manner in which the adjudicator had applied the law to the facts of the case.

Application of the law to the facts of the case

[11] The standard of review, here, is that of reasonableness. That standard was defined as follows by Iacobucci J. in Law Society of New Brunswick v. Ryan, supra, at paragraphs 55 and 56:

55 A decision will be unreasonable only if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).

56 This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.

[12] The lengthy and meticulous reasons of the adjudicator in the case at bar easily meet the reasonableness test when taken as a whole. The adjudicator examined the objective and subjective behaviour of the respondent prior to, at the time of and immediately after she had suddenly announced that she was quitting her job. It may be, as is argued by the appellant, that the medical evidence brought forward by the respondent was minimal and that the respondent was careless in waiting for two working days before contacting her employer again, but in view of the fact that she had contacted her family physician immediately after her outburst on late Friday afternoon, had seen him on the following Monday morning, was given by him that day a note indicating that she required time off from work due to medical reasons, had attended at the Employment Insurance office on Tuesday to make enquiries as to short term income replacement while she was on sick leave and had phone her employer at 7:00 a.m. on Wednesday morning, the conclusion reached by the adjudicator may be said to be tenable.

[13] I would therefore hold that had she applied the proper standard of review, the Federal Court judge would have reached the same conclusion and would have dismissed the application for judicial review. In the circumstances, the appeal ought to be dismissed with costs.

[14] Counsel for the respondent asked the Court, at the hearing, that the costs be assessed on the basis of column IV of Tariff B. I am prepared to grant that request, on the ground that had the appellant referred to the decision of our Court in Dynamex in its memorandum of fact and law much of the time and energy spent on the standard of review would have been saved.

[15] The appeal should be dismissed with costs to be assessed on the basis of column IV of Tariff B.

"Robert Décary"

J.A.

"I agree.

Alice Desjardins, J.A."

"I agree.

K. Sharlow, J.A."

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-471-04

STYLE OF CAUSE: H & R TRANSPORT LTD. v. BRENDA BALDREY

PLACE OF HEARING: CALGARY, ALBERTA

DATE OF HEARING: APRIL 21, 2005

REASONS FOR JUDGMENT: DÉCARY J.A.

CONCURRED IN BY: DESJARDINS J.A.

SHARLOW J.A.

DATED: MAY 2, 2005

APPEARANCES:

Mr. William J. Armstrong, Q.C. FOR THE APPELLANT

Mr. Ken H. Lewis, Q.C. FOR THE RESPONDENT

SOLICITORS OF RECORD:

Laird Armstrong FOR THE APPELLANT

Calgary, AB

Torry Lewis Abella LLP FOR THE RESPONDENT

Lethbridge, AB

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