EDMONTON, ALBERTA, NOVEMBER 10, 2005.
PRESENT: THE HONOURABLE W. ANDREW MACKAY
BETWEEN:
and
REASONS FOR ORDER AND ORDER
[1] The Applicant, the Louis Bull Tribe, a Band of Indians within the meaning of the Indian Act, seeks judicial review and an order setting aside a decision of an adjudicator acting under the Canada Labour Code, R.S.C. 1985, c. L-2, as amended, (the "Code"), by which a claim of the Respondent, Mr. Larocque, for wrongful dismissal from employment by the Tribe, was allowed.
[2] The basic facts as agreed by the parties, are these:
The Respondent, a member and former employee of the Applicant, had been employed by the Tribe on and off for a number of years, most recently in its housing department. According to the employer's records, Mr. Larocque began working in that department on January 25, 2001. Because of financial difficulties of the Tribe he was given a letter in November, 2001, dated November 1st, said to be effective November 5th , which was entitled "Notice of Temporary Lay-off". The letter stipulated that the lay-off was temporary and that he would be recalled to work no later than April 1, 2002.
[3] The Respondent actually worked until November 23, 2001. He was not thereafter recalled to work by the Tribe which subsequently hired another person who did at least some of the work previously done by Mr. Larocque. On April 2, 2001, he was called to the Band office and advised "you are no longer working here". Thereafter he filed a complaint alleging unjust dismissal from his employment, under the Canada Labour Code.
ISSUES
[4] The issues raised in this application for judicial review set out alleged errors in law by the Adjudicator, as follows:
1) Whether he erred in finding that Mr. Larocque had completed twelve consecutive months of continuous employment by the Tribe, as required by ss.240(1)(a) of the Code and;
2) Whether he erred in law in finding that the continuity of the Respondent's employment had not been interrupted by his lay-off as contemplated by s.29(a) and 30(1)(d) of the Canada Labour Standards Regulations (the "Regulations").
[5] If either error were committed, the Adjudicator had no jurisdiction to consider Larocque's complaint.
"TWELVE CONSECUTIVE MONTHS OF CONTINUOUS EMPLOYMENT"
[6] Ss.240(1) of the Code provides:
240(1)(a) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous
employment by an employer, ...
(b) ...may make a complaint in writing to an inspector if the employee
has been dismissed and considers the dismissal to be unjust.
(Subsections (2) and 242(3.1) are not relevant to Mr. Larocque's claim.)
[7] In order to be eligible to file a complaint of unjust dismissal under the Code, Mr. Larocque must be found to have maintained a continuous employment relationship with the Tribe for at least twelve consecutive months. While there was some difference over his employment history prior to January 2001, there is no difference between the parties that he was employed and paid for his work from that time on to November, 2001.
[8] The issue between the parties concerns the subsequent months from November to April, 2002.
[9] The Applicant urges that the Adjudicator made no clear finding that Mr. Larocque had been employed for twelve consecutive months. Having reviewed the Adjudicator's decision I am not so persuaded. Indeed, I find a clear and unequivocal finding that Mr. Larocque met the precondition set out in ss.240(1)(a), for his period of continuous employment ran from January 25, 2001 to April 1, 2002. That finding, in my view is a finding of fact, based on the evidence before him, and the law as interpreted by the Federal Court of Appeal in Beothuk Data Systems Limited, Seawatch Division v. Dean, [1998] 1 F.C. 433, 218 N.R. 321 (FCA). The Ajudicator relied on the evidence of the "Notice of Temporary Lay-off" which specifically stated that Larocque would be recalled to work not later than April 1st, 2002, upon the assurances of Band Councillors that the lay-off was temporary and he would be back to work on April 1st, and the fact that no one argued he had been dismissed in November, 2001, but rather had then been laid off temporarily. That situation both parties intended, and it was subject to affirming a date, not later than April 1, 2002, when he would be recalled. Those findings are set forth in paragraphs 58 to 60 of the Adjudicator's decision. In my view, they are findings of fact and not to be disturbed unless I were persuaded that they were patently unreasonable, or in the words of ss.18.1(4) of the Federal Courts Act, that they were made in a perverse or capricious manner or without regard to the material before the Adjudicator. I am not so persuaded.
INTERRUPTION IN THE CONTINUITY OF EMPLOYMENT
[10] The Applicant's argument turns in the main on its view that under s. 29(a) and 30(1)(d) of the Canada Labour Standards Regulations, C.R.C., c. 986, the Respondent's consecutive employment was interrupted by reason of his lay-off being deemed to be a termination of his employment.
[11] Those provisions of the Standards are as follows:
29. For the purposes of Divisions IV, VII, VIII, X' XI' XIII and XIV of the Act, the absence of an employee from employment shall be deemed not to have interrupted continuity of employment where
(a) the employee is absent from employment as a result of a lay-off that is not a termination under these Regulations; or
(b) the employer permits or condones the employee's absence from employment.
...
30.(1) For the purposes of Divisions IX, X and XI of the Act ...,
a lay-off of an employee shall not be deemed to be a termination of the employee's employment by his employer where
(d) the term of the lay-off is more than three months and the employer
(i) notifies the employee in writing at or before the time of the
lay-off that he will be recalled to work on a fixed date or within
a fixed period neither of which shall be more than six months from
the date of the lay-off, and
(ii) recalls the employee to his employment in accordance
with subparagraph (i).
[12] As the Adjudicator pointed out, the words of section 29 provide that it applies to several divisions of the Canada Labour Code, including Division XIV, dealing with wrongful dismissal, while section 30 does not refer to that division at all. He concluded that section 30 of the Regulations had no application in this case since the words of the section clearly did not include the provisions relating to claims arising under Division XIV.
[13] I am not persuaded that the Adjudicator erred in law in excluding from his consideration the application of section 30 of the Regulations and its implications. In the application of section 29 of the Regulations, the Adjudicator was clearly correct in finding that Mr. Larocque's continuity of employment was not interrupted by his lay-off which was temporary and not a termination under the applicable Regulations.
[14] For these reasons I find that the Adjudicator's decision that found Mr. Larocque's employment qualified within the requirements of section 240(1) of the Canada Labour Code was not in error. His findings of fact about the circumstances of the Respondent's employment and his temporary lay-off were reasonable and supported by the evidence before him. Further, he was not in error in declining to take into consideration section 30(1)(d) of the Canada Standards Regulations.
[14] For these reasons an Order goes dismissing the application for judicial review.
ORDER
The application for judicial review and an order setting aside the decision of the Adjudicator dated October 24, 2003, is dismissed.
"W. Andrew MacKay"
DEPUTY JUDGE
TFEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2268-03
STYLE OF CAUSE: THE LOUIS BULL TRIBE
-and-
AUBREY CARLSON LAROCQUE
PLACE OF HEARING: Edmonton, Alberta
DATE OF HEARING: November 10, 2005
REASONS FOR ORDER: MACKAY D.J.
APPEARANCES:
| James Thorlakson
|
|
| Art Tralenberg
|
SOLICITORS OF RECORD:
| Dubuc Osland Barristers and Solicitors Ottawa, ON
|
|
| Art Tralenberg Law Offices Hobbema, AB
|