National Bank of Canada v. Canada (Minister of Labour) (T.D.) [1997] 3 F.C. 727
T-1540-96
BETWEEN:
THE NATIONAL BANK OF CANADA
Applicant
- and -
THE HONOURABLE ALFONSO GAGLIANO,
Minister of Labour acting pursuant
to subsection 242(1) of the Canada Labour Code;
MICHELLE A. PINEAU, adjudicator,
appointed pursuant to subsection 242(1) of the
Canada Labour Code; and
MYRELLE PARIS
Respondents
REASONS FOR ORDER
ROTHSTEIN J.:
INTRODUCTION
The applicant The National Bank of Canada (National Bank) and its former employee Myrelle Paris entered into an agreement on October 3, 1995 whereby on her employment being terminated by the Bank on that date, Ms. Paris was to be given the sum of $33,048 plus relocation counselling in consideration for which she signed a release discharging the Bank from any demands, claims, actions or rights of action including any recourse she may have had under the Canada Labour Code, (Code) R.S.C. 1985, L-2, (as amended). She received the funds and relocation counselling. Nonetheless, on October 18, 1995, Ms. Paris filed a complaint under the Code alleging unjust dismissal. The interesting question in this judicial review is whether Ms. Paris is entitled to relief under the Code or whether she is precluded therefrom by reason of the agreement she made with the Bank regarding her termination and in particular the release she gave in favour of the Bank. An additional question which arises in this case is whether there was a failure of procedural fairness by reason of the Bank not being given certain information which was provided to the Minister of Labour (Minister) relating to the decision he made under the Code to appoint an adjudicator to consider Ms. Paris' complaint.
STATUTORY FRAMEWORK
The relevant statutory framework is found in Part III of the Code. Part III contains sixteen divisions, each of which appears to address conditions of employment, including termination of employment. For example, Division I establishes maximum hours of work, Division II establishes minimum wages, Division IV deals with annual vacations, Division V sets out employees" entitlements respecting holidays, Division XI establishes severance pay requirements and Division XIV, which is the division of relevance here, deals with Unjust Dismissal. Division XIV contains sections 240 to 246, which are set out in Appendix A to these reasons.
Under section 240, a person who considers that he or she has been unjustly dismissed may make a complaint to an inspector under the Code. Pursuant to subsection 241(2), the inspector is to endeavour to assist the employee and employer to settle the complaint. Subsection 241(3) provides that if the complaint cannot be settled and the employee so requests, the inspector shall report to the Minister that the complaint could not be settled and deliver to the Minister all documents in the possession of the inspector that relate to the complaint. Under subsection 242(1) the Minister may then appoint an adjudicator to hear and adjudicate the complaint. Under subsection 242(3) the adjudicator is authorized to consider whether the dismissal was unjust and render a decision thereon. Under subsection 242(4) the adjudicator may issue an order requiring the employer to pay compensation to the employee, reinstate the employee, or take other action to counter the consequences of the dismissal. Section 243 is a privative clause which provides that every order of an adjudicator is final and which precludes any court proceeding to prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242. Subsection 246(1) provides that no civil remedy of an employee against the employer is superseded or affected by Division XIV.
Also of relevance are sections 167 and 168 of the Code. Subsection 167(1) provides that Part III applies to employment and in respect of employees in federal works, undertakings or businesses. Under subsection 167(3), Division XIV is made inapplicable to managers. Subsection 168(1) is a particularly important provision in the context of this case. It states:
| 168. (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part. |
RESPONDENTS' POSITION
On May 29, 1996, the Minister appointed Michelle A. Pineau as an adjudicator to adjudicate the complaint of Ms. Paris against the National Bank. In its originating notice of motion, the applicant asks for a writ of prohibition prohibiting the adjudicator from adjudicating on the complaint and a writ of certiorari quashing the decision of the Minister appointing the adjudicator. It is the decision of the Minister which is under attack by the Bank on the grounds that the release signed by Ms. Paris as part of her termination agreement with the Bank deprives the Minister of jurisdiction to appoint an adjudicator under the Code. The Bank says that if Ms. Paris wishes to seek relief, it is from the agreement she made with the Bank and an adjudicator is without jurisdiction to consider the validity of such an agreement or to provide relief with respect to it and that if Ms. Paris wishes to pursue the matter, the proper forum is a civil court with jurisdiction to deal with contractual matters.
ANALYSIS
Privative Clause
At the outset, it is necessary to deal with subsection 243(2), the privative clause which, on its face, would preclude a court from prohibiting or restraining the adjudicator in proceedings under section 242 of the Code. What is at issue here is the Minister"s jurisdiction to appoint the adjudicator. The authorities are clear that notwithstanding privative clauses, if a tribunal has exceeded its jurisdiction, judicial review of its decision is permissible on the jurisdictional issue. See, for example, Canada Post Corporation v. Pollard, [1992] 2 F.C. 697 at 711-712. A more expansive discussion is contained in Sedpex Inc. v. Canada, [1989] 2 F.C. 228 at 295 to 299 which I have found instructive. The Minister did not resist on this issue and I have no difficulty concluding that on a question of jurisdiction, the court is entitled to review the decision of the Minister to appoint an adjudicator under subsection 242(1) of the Code.
Standard of Review
The parties agree, and it is not controversial, that on questions of fact the Court should not substitute its views for those of the Minister unless it is demonstrated that his decision is patently unreasonable. On the other hand, where the question is one of his jurisdiction, the appropriate standard of review is correctness. See for example Pezim v. British Columbia (Superintendent), [1994] 2 S.C.R. 567 at 590. As this case involves the Minister's jurisdiction to appoint the adjudicator, his decision must be reviewed on the correctness standard.
The Jurisdictional Question
Having decided that the Court may consider whether the Minister has jurisdiction to appoint the adjudicator in this case, I turn to the statutory provisions. Section 168 is critical. Under it, Part III of the Code, including Division XIV, applies notwithstanding any contract. It would thus appear that parties may not contract out of the Code in respect of matters under Part III. This intrusion by Parliament into the freedom to contract is explained by counsel for the Minister as being justified on the basis that Part III of the Code establishes a safety net of minimum requirements for employees. A consideration of the subjects in Part III, some of which I have listed above, such as minimum wages and maximum hours of work, support this view. This approach is also consistent with the latter words of subsection 168(1) which I repeat:
| . . . nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part. |
In short, if a contract is more beneficial to an employee than rights under Part III, the contract will govern; if less beneficial, Part III will govern. Thus subsection 168(1) provides that while parties may freely enter into binding contracts respecting conditions of employment and termination, such contracts are subject to minimum statutory requirements in favour of employees.
Subsection 168(1) would therefore seem to be dispositive of the issue in this case. Division XIV applies and Ms. Paris is entitled to file a complaint with the investigator under the Code notwithstanding the contract she entered into with the Bank on October 3, 1995 respecting her termination and the release she gave to the Bank, including her stated agreement to discharge the Bank from any recourse she may have had under the Code. There is no indication, and the Bank does not argue, that Ms. Paris does not meet the requirements to make a complaint. She has completed more than twelve months of continuous employment. She is not subject to a collective agreement. She is not a manager and her complaint was made within the statutory time period. The Bank"s sole point is that the termination agreement and release deprives Ms. Paris from pursuing a complaint for unjust dismissal under Division XIV. I therefore turn to the Bank"s arguments in support of this position.
First, the Bank refers to the opening words of subsection 241(3):
| 241. (3) When a complaint is not settled under subsection (2) . . . |
The Bank says that there was a settlement here and the inspector was obliged to have regard to that settlement. The Bank thus argues that the inspector could not send a bona fide report to the Minister that the parties had not succeeded in settling the complaint under paragraph 241(3)(a).
With respect, I think this argument ignores the context of section 241. The words of the section make it clear that the complaint is the one filed with the inspector and the settlement is the one the inspector, after receipt of the complaint, endeavours to have the parties achieve. Section 241 does not refer to the process between the employee and employer or any settlement made between them prior to a complaint to the inspector. Division XIV, which applies notwithstanding any contract, only comes into play if a complaint is filed with an inspector and only sets forth procedures that apply after that complaint is filed. This means that the complaint referred to in section 241 is the complaint to the inspector and the settlement referred to is the one which the inspector endeavours to assist the parties to achieve, and not one reached prior to the complaint.
The Bank then argues that, because of the settlement agreement and release, the appropriate recourse for Ms. Paris is through the civil courts if she wishes to challenge the validity or enforceability of the agreement she made with the Bank prior to the complaint and that the adjudicator does not have jurisdiction to pronounce on the validity of the agreement. The Bank relies on subsection 246(1) which preserves civil remedies for employees.
I think the Bank is correct that an adjudicator does not have jurisdiction to pronounce on the validity of a settlement agreement between employee and employer. The adjudicator"s jurisdiction is only that conferred by statute and the statute in this case only empowers the adjudicator to consider whether a dismissal is unjust.
However, the question of the validity of any settlement agreement does not arise before the adjudicator and the adjudicator has no need to address that question. Under subsection 168(1), the adjudicator carries out his or her duties irrespective of whether an agreement exists between employee and employer. The adjudicator only decides whether an employee was unjustly dismissed and, if so, the appropriate remedy. If the adjudicator finds the employee was not unjustly dismissed, that is the end of the matter. If the adjudicator finds the employee was unjustly dismissed, the adjudicator may go on to require the employer to compensate the employee, reinstate the employee or provide other relief that is equitable.
In the context of remedy, it is quite within the power of the adjudicator to have regard to the existence of a settlement agreement as a factual consideration and indeed, the adjudicator must do so. It will properly have a bearing on the relief which the adjudicator may award under subsection 242(4). For example, if the adjudicator were to conclude that Ms. Paris was unjustly dismissed and was entitled to an amount in excess of that provided under the settlement agreement, the adjudicator could order the Bank to pay such excess amount. On the other hand, if the adjudicator concluded that the amount received by Ms. Paris under the settlement agreement equalled or exceeded the amount the adjudicator would have ordered under subsection 242(4), no award would be made, by reason of section 168. The amount considered appropriate under Division XIV would not be more favourable to the employee than the amount under the contract and the contract would govern, notwithstanding that Ms. Paris had made a complaint under the Code.
I do not think subsection 246(1) assists the Bank because it does not purport to oust the jurisdiction of the Minister to appoint an adjudicator or the jurisdiction of the adjudicator to consider whether a dismissal has been unjust. Rather, it expressly reserves to employees an alternative recourse through the courts which, without subsection 246(1), might have been thought to have been abolished by reason of the recourse provided under Division XIV.
The Bank relies on Standard Radio Inc. v. Canada (Attorney General and Minister of Labour) (1987), 11 F.T.R. 219 (F.C.T.D.), affm"d (1989), 28 F.T.R. 78n (F.C.A.) in which the Minister was found not to have jurisdiction to appoint an adjudicator when there was no report made under paragraph 241(3)(a ). In that case, no report was made because the inspector had settled the complaint and the employee had signed a release as a result of the settlement. However, that is quite different from the case at bar in which there was no settlement effected as a result of the complaint filed or the efforts of the inspector.
The Bank says that the reference in subsection 168(1) to "contract" does not include settlements on termination made between employees and employers. In particular, the Bank says that section 167 limits application of Part III, including Division XIV, to employees and that on termination, an individual is no longer an employee.
However, there is nothing in subsection 168(1) that would support the Bank"s assertion that it does not govern Part XIV and termination agreements in particular. Further, paragraph 167(1)(b ) says:
| 167. (1) This Part applies . . . |
| (b) to and in respect of employees . . . in connection with any federal work, undertaking or business. . . |
I think these words are wide enough to include employees who are terminated. Indeed, that must be the case as these are the only individuals to which Division XIV pertains. In any event, in this case, the October 3, 1995 contract which Ms. Paris signed indicates that it was entered into when she was still an employee:
| Further to our discussion of today, I wish to confirm the conditions under which your departure from the Bank due to restructuring, will take place. |
| [emphasis added] |
I am not persuaded by these arguments of the Bank.
The Bank also refers to Federal Employment Law in Canada, Grossman, 1990, Chapter 8, in particular pages 133 to 136 which suggests that there have been decisions of adjudicators which hold that termination agreements may be enforced notwithstanding subsection 168(1) of the Code. At page 136 the learned author states:
| The clear trend of decisions involving agreements between employer and employee to settle their differences on a dismissal is in favour of enforcement of such agreements. |
The concern seems to emerge in the decisions cited in Grossman that employees who have freely agreed to severance terms should not be able to resile from such agreements. Indeed, counsel for the Bank suggested that if such agreements are not considered binding and that employees, in addition, have recourse under the Code, there will be a chilling effect on voluntary settlements between terminating employees and employers. While I appreciate this concern at a policy level, and the many arguments that may be made as to the wisdom of allowing the ordinary law of contract to apply in these cases, I am bound by the legislative scheme adopted by Parliament which, for better or worse, is by its effect, interventionist in employer-employee relations.
Having regard to the intrusive nature of the legislation, I would, however, make a few observations. First, employees who wish to complain, must do so within ninety days of being dismissed. Employers are not therefore subject to an indeterminate period in which disgruntled employees may seek relief under the Code. Second, merely because an employee may be able to seek relief under Division XIV does not mean that an employer will necessarily be called upon to provide anything more than what is already provided under the agreement entered into with the employee.
Third, and in my opinion, of considerable significance, is the fact that under subsection 242(1), the power of the Minister to appoint an adjudicator is discretionary. As I appreciate the legislative scheme, the Minister, upon receiving a report from an inspector that the parties have not settled, may or may not decide to appoint an adjudicator. At this time, I think the Minister is acting in much the same capacity as the Canadian Human Rights Commission under section 44 of the Canadian Human Rights Act1, R.S.C. 1985, c. H-6. In particular, under paragraph 44(3)(b) the Commission shall dismiss a complaint if it is satisfied, after receiving the report of an investigator, that having regard to all the circumstances, inquiry into the complaint is not warranted or if the complaint is, among other things, trivial, vexatious, or made in bad faith. In respect of this paragraph Sopinka J. in Syndicat des employés de production du Québec et de l"Acadie v. Canada (Canadian Human Rights Commission), [1989] 2 S.C.R. 879 stated at page 899:
| The other course of action is to dismiss the complaint. In my opinion, it is the intention of s. 36(3)(b) [now 43(3)(b)] that this occur where there is insufficient evidence to warrant appointment of a tribunal under s. 39. It is not intended that this be a determination where the evidence is weighed as in a judicial proceeding but rather the Commission must determine whether there is a reasonable basis in the evidence for proceeding to the next stage. It was not intended that there be a formal hearing preliminary to the decision as to whether to appoint a tribunal. Rather, the process moves from the investigatory stage to the judicial or quasi-judicial stage if the test prescribed in s. 36(3)(a) is met. |
In the case of the Code the Minister"s discretion is even broader than that of the Commission under the Canadian Human Rights Act . I see no reason why the Minister may not decide not to appoint an adjudicator for any of the same considerations as a complaint might be dismissed by the Canadian Human Rights Commission including, in the case of the Minister, that a prior settlement had been entered into between the employer and employee. The Minister is to receive the report of the investigator and all documents the inspector has that relate to the complaint. If it is apparent from these documents that a settlement has been reached and if the Minister considers it reasonable and voluntary, he is free not to appoint an adjudicator. It would seem that employers in such circumstances might wish to submit to an investigator for ultimate delivery to the Minister in the event a complaint to the investigator cannot be settled, the details surrounding any voluntary termination agreement made between the employer and employee. I would observe that in the present case the employer took the adamant position that the Minister was without jurisdiction to appoint an adjudicator and such details were not provided to the Minister.
Natural Justice
I now turn to the issue of natural justice. The Minister concedes and I conclude, that he was bound by requirements of natural justice. Thurlow C.J. (as he then was) sets out in Eastern Airlines Inc. v. Minister of Labour and Smith (1982), 43 N.R. 124, the approach to be taken in these cases. At page 126 he states:
| In the present instance, the request of the applicant for a copy of the letter applying for an extension and containing the respondent Smith"s allegations and representations in support of her application, was refused both by the respondent and by the Minister"s department. A request for a copy of the investigator"s report was also refused. |
| In our view, the applicant was not entitled to demand copies of the letter or of the report. But the simplest way of complying with the requirement of natural justice that the applicant be given a fair opportunity "for correcting or contradicting any relevant statement in them prejudicial to its view" would have been to supply copies to the applicant and to invite the applicant"s representations. |
| An alternative method would have been to send the applicant a statement setting out the relevant allegations and representations contained in the letter and report, that is to say, those allegations and representations that were considered to be of some weight in reaching a decision and to invite the applicant to comment and make representations thereon. As neither of these nor any other conceivable method of observing the principle was followed, we do not think the decision should be allowed to stand. |
This duty I think also must apply at the investigative stage. Indeed, it is the investigator"s report and the material in the possession of the investigator that will be the information upon which the Minister will make his decision to appoint an adjudicator. If the Minister is bound by rules of natural justice, that must extend to the investigator so that when the Minister makes his decision it will be based on both the employer and employee knowing the cases against each of them and each of them having had the opportunity to respond to each other.
The Minister concedes that while Ms. Paris" two-page formal complaint dated October 18, 1995 was sent to the Bank, attachments consisting of one page of "additional information" and a one-page "statement of complaint" to which is attached the termination agreement and release signed by Ms. Paris (the amount paid to Ms. Paris is not indicated) were not sent to the Bank. The "additional information" includes a listing of Ms. Paris" employment with the Bank, her salary, that she had never been disciplined and that she was forty-six years old and would have become eligible for pre-retirement in seven years. The "statement of complaint" briefly describes the meeting of October 3, 1995 between Ms. Paris and Bank officials where her termination was discussed. The statement also describes her call to the Executive Vice-President on October 4, 1995 to see if anything could be done to save her job, that she was willing to be re-posted, that a posting for her job came out on October 4, 1995 at a lower salary than the one she had been receiving, that she was not given a chance to apply for the job, that other employees at her branch had been re-assigned as a result of restructuring and none lost their jobs and that, on September 27, 1995, a meeting of senior officials at the Bank with bank managers was held at which it was stated that restructuring would not take place until the fall of 1996, that all jobs would be posted and that everyone would be entitled to apply for their own jobs.
On October 30, 1995, the investigator wrote to the Bank sending a copy of the first page of the complaint (the second page followed later). However the "additional information" and "statement of complaint" was not forwarded. The Bank was asked to provide a written statement giving the reasons for dismissal in accordance with subsection 241(1) of the Code. On November 9, 1995, the Bank responded advising the investigator that Ms. Paris voluntarily signed a complete and final release in consideration of her receiving a certain amount in the form of payment in lieu of notice. For this reason, the Bank expressed the view that the complaint was without foundation and was null and void.
On December 4, 1995, the investigator wrote to the Bank asking for further information. Attached to that letter was a detailed list of additional information requested. Because it will be necessary to consider whether, since the "additional information" and "statement of complaint" was not forwarded to the Bank initially, this request was an alternative method of observing the principles of natural justice, I quote the list of questions verbatim :
| INFORMATION ADDITIONNELLE REQUISE |
| 1. Quel était le titre de la position occupée par madame Paris? Veuillez fournir une description de tâches de ce poste, ainsi qu"un organigramme démontrant sa position hiérarchique à l"intérieur de la succursale de la Banque Nationale du Canada. |
| 2. Depuis quand madame Paris occupait-elle cette position? Veuillez fournir un bref historique de son emploi avec la Banque Nationale du Canada. Veuillez fournir toute documentation incluse dans son dossier personnel ainsi que ses deux (2) dernières évaluations de rendement. |
| 3. Il a été porté à notre attention qu"un concours a été ouvert à la succursale où travaillait madame Paris, soit le 242 rue Rideau, pour combler le poste de Directeur/Directrice Administration. Il a également été porté à notre attention que l"affichage de ce poste aurait eu lieu le 4 octobre 1995, soit le lendemain du départ de madame Paris . Voir copie de l"affiche ci-jointe. S.V.P. expliquez en détails. |
| 4. Apparemment, suite à ce concours, monsieur Daniel Lalonde a été nommé Directeur Administration au mois d"octobre ou novembre 1995. S.V.P. expliquez en détails. Veuillez fournir la description de tâches de ce poste en date d"aujourd"hui ainsi que l"organigramme démontrant sa position hiérarchique au sein de la succursale. |
| 5. A qui se rapporte le nouveau Directeur Administration? S.V.P. démontrez sur l"organigramme. Veuillez, s.v.p. fournir la description de tâches de son superviseur immédiat. |
| 6. Y-a-t-il, à la succursale où travaillait madame Paris, d"autres employés qui ont été remerciés de leurs services dans les semaines qui ont précédé ou qui ont immédiatement suivi le départ de madame Paris? Si oui, S.V.P. fournir les titres et démontrez sur l"organigramme. |
| 7. Compte tenu de l"information obtenue à date, veuillez expliquer en détails pourquoi madame Paris a été remerciée de ses services le 3 octobre 1995. De votre point de vue, veuillez expliquer pourquoi la Banque Nationale du Canada n"a pas offert de position (inférieure, équivalente ou supérieure) ou un transfert à madame Paris. |
| 8. Veuillez compléter en détails le questionnaire sur les fonctions de gestion ci-joint. |
On December 19, 1995, the Bank responded stating that by her free and voluntary signature, Ms. Paris specifically and formally undertook not to pursue any recourse of any nature against the Bank. A copy of the release was enclosed. The Bank then reiterated that it considered the complaint without foundation and of no effect.
On January 16, 1996, the investigator sent to the Bank a copy of a request to appoint an adjudicator signed by Ms. Paris.
On February 13, 1996, the Bank wrote to the Minister advising that the Bank was of the view that the Minister was without jurisdiction to appoint an adjudicator. The termination agreement and release was referred to and the release was quoted. After referring to the Code and the Standard Radio case (supra), the Bank expressed the hope that the Minister would not appoint an adjudicator.
On April 15, 1996, an Executive Assistant to the Minister wrote the Bank expressing the view that the Minister had jurisdiction to appoint an adjudicator. Therefore the adjudicator was to be appointed and this indeed is what took place.
The issue is whether the Bank had been given a fair opportunity for commenting on or contradicting any relevant statement made by Ms. Paris that was prejudicial to its view. Eastern Airlines (supra) makes it clear that while the simplest way of complying with the requirement of natural justice in this case would have been to send copies of the "additional information" and "statement of complaint" to the Bank, it would not have been the only way. All that is required is that the Bank be given a fair opportunity for commenting on or contradicting statements made that were prejudicial to it.
In my view, the list of questions submitted to the Bank on December 4, 1995, gave it that opportunity. The Bank was informed of the allegation that the job which Ms. Paris says she had was posted on October 4, 1995, the day after she was terminated. The Bank was asked to explain why it laid off Ms. Paris and why it did not offer her another job at a lower, equivalent or higher level than the one she had or why she was not offered a transfer. The Bank was asked for organizational charts. It was asked to explain why another employee was appointed Director of Administration. The Bank chose to rely on jurisdictional arguments and did not respond to the questions. Nonetheless, it seems clear that the questions covered the points made by Ms. Paris in her submission that had not been forwarded to the Bank and the Bank therefore had the opportunity to comment on or contradict what Ms. Paris had stated.
There is one further issue which does not seem to have been included in the additional information or statement of complaint, namely the question of whether Ms. Paris executed the release in favour of the Bank voluntarily. In a memo from Gary McKnight, Programme du Travail, Région de l"Ontario, to Mme Nicole Sénécal, Sous-ministre adjoint, Travail, dated February 28, 1996 which appears to be the communication which forwarded all relevant material before the investigator to the Minister Mr. McKnight states:
| Bien que la plaignante ait remis une lettre de démission, elle soutient avoir été contrée de le faire et déclare avoir tout de même été injustement congédiée. |
This memo was not sent to the Bank and I can find no other express reference in the record where the Bank was informed that Ms. Paris was taking the view that she signed the release against her wishes.
Had this been the only statement made as to whether or not the release had been signed freely and voluntarily, I think there would have been an obligation on the Minister to find some way of informing the Bank that this was an issue and that Ms. Paris was asserting that her release was not freely and voluntarily given. However, this was one of the few issues on which the Bank did put forward its view on three occasions. In effect, it was the Bank that put the voluntariness of the release in issue. It put forward its view and Ms. Paris appears to have put forward her view. The Minister had therefore heard from both sides. While nothing would prevent the investigator or the Minister from going more deeply into the question of voluntariness of the release, I do not think they are obliged to do so. It seems that to the extent it was taken into account, the Minister must have concluded that there was a dispute over voluntariness, and given the Bank"s refusal to answer questions pertaining to the allegation of unjust dismissal, he decided to appoint an adjudicator.
In the circumstances, I am satisfied there was compliance with the requirements of natural justice in this case.
CONCLUSION
Counsel for both parties are to be commended for their well-reasoned and articulate submissions.
The judicial review is dismissed.
(Sgd.) "Marshall E. Rothstein"
Judge
VANCOUVER, B.C.
JUNE 19, 1997
APPENDIX A
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 Labour 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.
244. (1) Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.
(2) On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered in the Court and, when registered, has the same force and effect, and all proceedings may be taken thereon, as if the order were a judgment obtained in that Court.
245. The Governor in Council may make regulations for the purposes of this Division defining the absences from employment that shall be deemed not to have interrupted continuity of employment.
246. (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.
(2) Section 189 applies for the purposes of this Division.
NAMES OF COUNSEL AND SOLICITORS OF RECORD
STYLE OF CAUSE: THE NATIONAL BANK OF CANADA
- and -
| THE HONOURABLE ALFONSO GAGLIANO, Minister of Labour acting pursuant to subsection 242(1) of teh Canada Labour Code; |
| MICHELLE A. PINEAU, adjudicator, appointed pursuant to subsection 242(1) of the Canada Labour Code; and |
| MYRELLE PARIS |
COURT NO.: T-1540-96
PLACE OF HEARING: Ottawa, ON
DATE OF HEARING: May 27, 1997
REASONS FOR ORDER OF ROTHSTEIN, J. dated
JUNE 19, 1997
APPEARANCES:
Ms. Mary J. Gleason for Applicant
Mr. Alain Préfontaine for Respondent
SOLICITORS OF RECORD:
Ogilvy Renault for Applicant
Ottawa, ON
George Thomson for Respondent
Deputy Attorney General of Canada
__________________
1 44. (1) An investigator shall, as soon as possible after the conclusion of an investigation, submit to the Commission a report of the findings of the investigation.
(2) If, on receipt of a report referred to in subsection (1), the Commission is satisfied (a) that the complainant ought to exhaust grievance or review procedures otherwise reasonably available, or (b) that the complaint could more appropriately be dealt with, initially or completely, by means of a procedure provided for under an Act of Parliament other than this Act,it shall refer the complainant to the appropriate authority. (3) On receipt of a report referred to in subsection (1), the Commission (a) may request the President of the Human Rights Tribunal Panel to appoint a Human Rights Tribunal in accordance with section 49 to inquire into the complaint to which the report relates if the Commission is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is warranted, and (ii) that the complaint to which the report relates should not be referred pursuant to subsection (2) or dismissed on any ground mentioned in paragraphs 41(c) to (e); or (b) shall dismiss the complaint to which the report relates if it is satisfied (i) that, having regard to all the circumstances of the complaint, an inquiry into the complaint is not warranted, or (ii) that the complaint should be dismissed on any ground mentioned in paragraphs 41(c) to (e). (4) After receipt of a report referred to in subsection (1), the Commission (a) shall notify in writing the complainant and the person against whom the complaint was made of its action under subsection (2) or (3); and (b) may, in such manner as it sees fit, notify any other person whom it considers necessary to notify of its action under subsection (2) or (3).