Date: 20000524
Docket: A-41-99
CORAM: STRAYER J.A.
ISAAC J.A.
SHARLOW J.A.
B E T W E E N:
GARRY MIHALICZ
Applicant
(Applicant)
-and -
ROYAL BANK OF CANADA
Respondent
(Respondent)
HEARD at Saskatoon, Saskatchewan on Wednesday, May 24, 2000
JUDGMENT delivered from the Bench on Wednesday, May 24, 2000
REASONS FOR JUDGMENT BY: STRAYER J.A.
Date: 20000524
Docket: A-41-99
C O R A M: STRAYER J.A.
ISAAC J.A.
SHARLOW J.A.
B E T W E E N:
GARRY MIHALICZ
Applicant
(Applicant)
-and -
ROYAL BANK OF CANADA
Respondent
(Respondent)
REASONS FOR JUDGMENT
(Delivered from the Bench at Saskatoon, Saskatchewan
on Wednesday, May 24, 2000)
STRAYER J.A.
[1] We have concluded that this appeal is devoid of merit.
[2] The appellant sought, in the Trial Division, judicial review of an interim decision of an arbitrator under the Canada Labour Code in which she dismissed the appellant's motion for a non-suit after the employer's case was put in. The appellant contended that the arbitrator erred, in law and fact, in refusing the non-suit by finding that the employer Royal Bank had established a prima facie case of just dismissal even though a senior vice-president of the Bank, whose signature of approval was on the dismissal form, was not called as a witness by the Bank. The appellant also contended that he was denied natural justice by not being able to cross-examine that officer, who should have been made available as a witness in the Bank's case.
[3] We agree with the learned application judge that the adjudicator made no reviewable error. As the application judge noted, there was no jurisdictional issue. The dismissal of the non-suit involved, in our view, a mixed question of law and fact. Having regard to the breadth of the privative clause in section 243 of the Canada Labour Code, it is doubtful that this decision, being within jurisdiction, is reviewable at all. Assuming that it is, the standard of review for such a question of law and fact cannot be more exigent than reasonableness, and we are of the view, as was the application judge, that the arbitrator's decision was eminently reasonable. She was certainly entitled to draw the inferences she did without the senior vice-president of the Bank being called as a witness.
[4] Thus the appellant cannot contend that he had a right to cross-examine the senior vice-president, because her evidence was not required to make out a prima facie case against him.
[5] The appeal is therefore dismissed with costs.
(s) "B.L. Strayer"
J.A.
FEDERAL COURT OF CANADA APPEAL DIVISION
NAMES OF SOLICITORS AND SOLICITORS ON THE RECORD
COURT FILE NO.: A-41-99
STYLE OF CAUSE: Gary Mihalicz v. Royal Bank of Canada
PLACE OF HEARING: Saskatoon, Saskatchewan
DATE OF HEARING: May 24, 2000
REASONS FOR JUDGMENT OF STRAYER, ISAAC, SHARLOW J.J.A
| DATED: May 24, 2000 |
|
| APPEARANCES: |
|
| Walter Mutkowski. |
FOR APPELLANT |
| Gord Kuski, Q.C. |
FOR RESPONDENT |
| SOLICITORS OF RECORD: |
|
| Matowski Law Office |
FOR APPELLANT |
| Saskatoon, Saskatchewan |
|
| McDougall, Ready |
FOR RESPONDENT |
| Regina, Saskatchewan |
|