Date: 20020611
Docket: T-928-01
Neutral citation: 2002 FCT 660
BETWEEN:
CONSEIL DE LA NATION INNU MATIMEKOSH-LAC JOHN
Plaintiff
and
LINDA RACINE
Defendant
REASONS FOR ORDER
[Order made from the bench
at Sept-Îles, Quebec on May 30, 2002]
LEMIEUX J.
[1] After hearing the plaintiff, as the defendant was not present, I made the following order:
[TRANSLATION]
For reasons to be delivered later, this application for judicial review is allowed without costs, the decision by the arbitrator André Truchon, dated April 26, 2001, is quashed and the matter is referred back to the Minister or to an arbitrator appointed by him for the case to be again decided on the assumption that the salary mentioned in the contract of employment of the defendant Linda Racine for 1998-1999 included annual vacation pay as specified in ss. 183 et seq. of the Canada Labour Code.
[2] These reasons are in support of the order.
[3] The plaintiff, the Conseil de la Nation Innu Matimekosh-Lac John ("the Conseil"), manages a public school for Innu students on the Schefferville Indian reserve in Quebec.
[4] The Kanatamat Tshitipenitamunu school applies the Quebec Department of Education study programs and diplomas are issued and regulated by the Quebec Department of Education. Teachers are hired on annual contracts.
[5] The defendant Linda Racine ("the defendant") was hired by an annual contract from 1995 onwards. The annual contract was renewed until 1999. The conditions of employment contained in the annual contract were essentially the same, namely a gross annual salary spread over 12 months for 180 days' work per year. There were no specific provisions in the contract of employment dealing with the vacation period.
[6] For personal reasons, the defendant decided not to renew her contract of employment for 1999-2000. She claimed the sum of $1,597.92 from the Conseil as vacation pay for her last year of employment, 1998-1999. The Conseil refused to pay this vacation pay, based on the fact that the defendant was receiving an annual salary which included vacation pay.
[7] The defendant's claim went before the arbitrator André Truchon, who on April 26, 2001 ruled in the defendant's favour.
Arbitrator's decision
[8] The arbitrator found that the contract between Linda Racine and the Conseil provided for a gross salary payable in 26 equal installments, but since there was no clause dealing with annual leave reference had to be to the law, here Part III of the Canada Labour Code.
[9] The arbitrator concluded that remuneration has a wider meaning than the word "salary", and the latter is thus part of the defendant's remuneration.
[10] He examined ss. 183 to 188 of the Canada Labour Code and noted that:
| 183 "vacation pay" « indemnité de congé annuel » "vacation pay" means four per cent or, after six consecutive years of employment by one employer, six per cent of the wages of an employee during the year of employment in respect of which the employee is entitled to the vacation; . . . |
|
183 « indemnité de congé annuel » "vacation pay" « indemnité de congé annuel » Indemnité égale à quatre pour cent - six pour cent, après six années consécutives au service du même employeur - du salaire gagné au cours de l'année de service donnant droit aux congés annuels; . . . |
|
|
|
|
| 184. Except as otherwise provided by or under this Division, every employee is entitled to and shall be granted a vacation of at least two weeks with vacation pay and, after six consecutive years of employment by one employer, at least three weeks with vacation pay in respect of every year of employment by that employer. . . . |
|
184. Sauf disposition contraire de la présente section, tout employé a droit, par année de service accomplie, à au moins deux semaines de congés payés, et au moins trois semaines après six années de service. . . . |
|
|
|
|
| 186. Vacation pay shall for all purposes be deemed to be wages. . . . |
|
186. L'indemnité de congé annuel est assimilée à un salaire. |
|
|
|
|
| . . .188. When an employee ceases to be employed, the employer shall forthwith pay to the employee
(a) any vacation pay then owing by the employer to the employee under this Division in respect of any prior completed year of employment; . . . |
|
188. Lors de la cessation d'emploi, l'employeur verse sans délai à l'employé :
a) toute indemnité de congé annuel due pour une année de service antérieure; . . . |
|
|
|
|
[11] The arbitrator based his decision on s. 186 and referred to the Larousse dictionary for a definition of the word "assimiler" [deem]. He concluded:
[TRANSLATION]
This word does not support the conclusion that the complainant's annual leave is included in salary: at most we can conclude that the pay will be considered salary in the hands of the worker. Accordingly, a distinction must be made, since the salary was subsequently deemed.
In the absence of any express indication in the contract, interpretation of the statutory provisions indicates that the plaintiff is entitled to the vacation pay she is claiming.
Analysis
[12] The arbitrator's decision is protected by a privative clause in s. 251.12(6) and (7) of the Canada Labour Code. That privative clause is a full clause in the sense given to it by the Supreme Court of Canada in Ivanhoe Inc. v. United Food and Commercial Workers, Local 500, [2001] 2 S.C.R. 565.
[13] The Supreme Court of Canada indicated that the presence of such a clause should prompt courts to treat administrative decisions with deference. It listed the other factors to be considered: the expertise of the administrative tribunal, the purpose of the enabling legislation and the specific provisions in question, as well as the factual or legal nature of the problem involved. The Supreme Court of Canada came to the conclusion that the standard to be applied in Ivanhoe Inc., supra, was that of patent unreasonableness, that is, the highest degree of judicial restraint.
[14] I have come to the same conclusion in the case at bar.
[15] In Canada Safeway Ltd. v. Retail, Wholesale and Department Store Union, Local 454, [1998] 1 S.C.R. 1079, Cory J. and McLaughlin J. (as she then was) gave several examples of decisions that might be regarded as patently unreasonable. One example was taken from Board of Education for the City of Toronto v. Ontario Secondary School Teachers' Federation, District 15, [1997] 1 S.C.R. 487, as follows:
48 . . . in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference . . . it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal's findings.
[16] That is precisely what the Conseil complains the arbitrator did. The Conseil maintained that the arbitrator completely ignored the uncontradicted evidence which it submitted through the testimony of Réjean Lavoie, school principal, that teachers' vacation was always included in the annual remuneration.
[17] In other words, on the evidence, in each installment which she received (26 equal installments) she received part of her vacation pay, a conclusion approved by Deschênes C.J. of the Quebec Superior Court in a test case, Arcand v. La Commission scolaire régionale des Vielles Forges, [1974] R.D.T. 89, in comparable circumstances, the same evidence in the record and similar legislation.
[18] A review of the record supports the arguments by the Conseil and requires the order issued. The arbitrator did not in fact consider the evidence that the defendant had received the pay to which she was entitled.
|
|
"François Lemieux"
Judge |
Ottawa, Ontario
June 11, 2002
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
FEDERAL COURT OF CANADA
TRIAL DIVISION
SOLICITORS OF RECORD
FILE: T-928-01
STYLE OF CAUSE: CONSEIL DE LA NATION INNU MATIMEKOSH LAC JOHN v. LINDA RACINE
PLACE OF HEARING: Sept-Îles, Quebec
DATE OF HEARING: May 30, 2002
REASONS FOR ORDER: Lemieux J.
DATE OF REASONS: June 11, 2002
APPEARANCES:
Josée Rondeau FOR THE PLAINTIFF
SOLICITORS OF RECORD:
Josée Rondeau FOR THE PLAINTIFF