A-647-80
Pioneer Grain Company Limited (Applicant)
v.
David Kraus (Respondent)
Court of Appeal, Thurlow C.J., Heald J. and
Maguire D.J.—Regina, March 19; Ottawa, April
24, 1981.
Judicial review — Labour relations — Application for
judicial review and to set aside an order made by Adjudicator
appointed to adjudicate upon the complaint of respondent
against applicant for terminating his employment — The
order requires applicant to reinstate respondent and pay him
compensation — Whether or not Court has jurisdiction to
entertain the application — Respondent was temporarily laid
off for a brief period each winter — Whether or not employ
ment of respondent was continuous for twelve months within
the meaning of subs. 61.5(1) of the Canada Labour Code —
Whether Adjudicator acted beyond or without jurisdiction in
failing to calculate the monetary loss of respondent —
Application dismissed — Canada Labour Code, R.S.C. 1970,
c. L-1, s. 61.5(1),(6),(7),(8),(9),(I0),(11), as amended — Feder
al Court Act, R.S.C. 1970 (2nd Supp.), c. 10, ss. 28, 122(1).
This is an application to review and to set aside an order
made by the Adjudicator appointed pursuant to section - 61.5 of
the Canada Labour Code. The Adjudicator found that the
respondent's dismissal was unjust and ordered the applicant to
reinstate the respondent and to pay him compensation equiva
lent to an amount that he would have been paid if he had not
been dismissed. The applicant submitted that the Adjudicator
did not have jurisdiction to hear the matter because the
employment of the respondent had not been continuous for
twelve consecutive months within the meaning of subsection
61.5(1) of the Code. The respondent was "laid off work" from
December 21, 1979 to January 7, 1980. It further submitted
that the Adjudicator acted beyond his jurisdiction in failing to
calculate the monetary loss of the respondent in accordance
with legal principles. The Attorney General of Canada brought
a motion to quash the application on the ground that the Court
was without jurisdiction. The first question is whether the
Court has jurisdiction to entertain this application in view of
subsection 61.5(10) of the Code. The second question is wheth
er the respondent's employment had been continuous for twelve
months. The third question is whether the Adjudicator acted
without jurisdiction in failing to calculate the monetary loss of
the respondent.
Held, the motion to quash fails and the application for
review is dismissed. The Court has jurisdiction, notwithstand
ing subsection 61.5(10) of the Code, to entertain an application
under section 28 of the Federal Court Act to review an
Adjudicator's decision on the ground that he never had jurisdic
tion or that he exceeded or failed to exercise jurisdiction that he
did have. When there is no specific reference to section 28 in
the privative provision, section 28 overrides privative provisions
enacted after the enactment of the Federal Court Act as well as
privative provisions existing when section 28 was passed. Sub
section 61.5(10) should be read subject to the overriding effect
of section 28 of the Act. It is the responsibility of an applicant
for review to put before the Court the evidentiary material
necessary to support his position. The most telling evidence
before the Court of the situation was the applicant's statement
that Kraus was "laid off work" from December 21, 1979 to
January 7, 1980. This is at least consistent with the continu
ance of the employment relationship during the period and
suggests that the arrangement was that work was to be resumed
by the employee when the period came to an end. Moreover, it
was not described as a lay off because of lack of work or the
discontinuance of a function. The applicant's objection, there
fore fails. The order, though it does not state a precise amount
to be paid, does not exceed the authority of the Adjudicator.
Nor does it exceed the gross loss that the respondent may have
sustained. It is obvious that he lost his pay. There is no
justification for interfering with the Adjudicator's order.
Attorney General of Canada v. Public Service Staff Rela
tions Board [1977] 2 F.C. 663, referred to. Howarth v.
National Parole Board [1976] 1 S.C.R. 453, referred to.
Minister of National Revenue v. MacDonald [1977] 2
F.C. 189, referred to. Northern Telecom Ltd. v. Com
munications Workers of Canada [1980] 1 S.C.R. 115,
referred to. Red Deer College v. Michaels [1976] 2 S.C.R.
324, referred to. Commonwealth of Puerto Rico v. Her-
nandez [1975] 1 S.C.R. 228 applied.
APPLICATION for judicial review.
COUNSEL:
D. K. MacPherson, Q.C. and L. B. LeBlanc
for applicant.
M. F. Mulatz for respondent.
L. P. MacLean for Attorney General of
Canada.
SOLICITORS:
MacPherson, Leslie & Tyerman, Regina, for
applicant.
Busch & Heinricks, Swift Current, for
respondent.
Deputy Attorney General of Canada for
Attorney General of Canada.
The following are the reasons for judgment
rendered in English by
THURLOW C.J.: This is an application under
section 28 of the Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, to review and set aside "the
decision or order made by Robert W. Mitchell on
September 8, 1980 as adjudicator appointed pur
suant to Section 61.5 of the Canada Labour Code
to hear and adjudicate upon the complaint of
David Kraus under the said section 61.5 with
respect to the termination of his employment by
Pioneer Grain Company Limited". The decision
holds that the dismissal of Kraus by the applicant,
Pioneer Grain Company Limited, was unjust and
the order requires the company to reinstate him
and pay him compensation equivalent to the remu
neration that, but for the dismissal, would have
been paid to him during the period from March
21, 1980 (the date of his dismissal), until his
reinstatement.
Provisions for the making of such an order by an
adjudicator are found in Division V.7 of the
Canada Labour Code, R.S.C. 1970, c. L-1, as
amended, entitled "Unjust Dismissal". They were
enacted along with other amendments to the Code
by chapter 27 of the Statutes of Canada 1977-
1978, assented to April 20, 1978, and were pro
claimed in effect September 1, 1978. The object of
the Division is to provide a new means of redress
for persons to whom it applies who have been
dismissed from their employment. The scope of the
Division's application appears from the first three
subsections. They provide:
61.5 (1) Subject to subsections (2) and (3), any person
(a) who has completed twelve consecutive months of contin
uous 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 he has been
dismissed and if he considers his dismissal to be unjust.
(2) A complaint under subsection (1) shall be made no later
than thirty days from the date on which the person making the
complaint was dismissed or such further period of time from
that date as the Minister may authorize where the Minister is
satisfied that justice would be served by so authorizing.
(3) No complaint shall be considered under this section in
respect of a person
(a) who has been laid off because of lack of work or because
of the discontinuance of a function; or
(b) in any case where a procedure for redress has been
provided elsewhere in or under this or any other Act of
Parliament.
In subsection (6) provision is made for the
appointment of an adjudicator whose authority is
defined in subsections (7),(8) and (9) as follows:
(7) An adjudicator to whom a complaint has been referred
under subsection (6)
(a) shall consider the complaint within such time as the
Governor in Council may by regulation prescribe;
(b) shall determine his own procedure, but shall give full
opportunity to the parties to the complaint to present evi
dence and make submissions to him and shall consider the
information relating to the complaint referred to him under
subsection (6); and
(c) has, in relation to any complaint before him, the powers
conferred on the Canada Labour Relations Board, in relation
to any proceeding before the Board, by paragraphs 118(a),
(b) and (c).
(8) An adjudicator to whom a complaint has been referred
under subsection (6) shall consider whether the dismissal of the
person who made the complaint was unjust and shall render a
decision thereon and send a copy of the decision with the
reasons therefor to each party and to the Minister.
(9) Where an adjudicator decides pursuant to subsection (8)
that a person has been unjustly dismissed, he may, by order,
require the employer who dismissed him 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 conse
quence of the dismissal.
Subsections (10) and (11) further provide:
(10) Every order of an adjudicator appointed under subsec
tion (6) is final and shall not be questioned or reviewed in any
court.
(1 1) 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 of his proceedings
under this section.
There are also provisions for enforcement of the
adjudicator's order by the Federal Court and for
preserving other civil remedies the dismissed
person may have.
Before proceeding to hear the merits of the
section 28 application, the Court heard a motion
under Rule 1100 made on behalf of the Attorney
General of Canada for an order quashing the
application on the ground that, having regard to
subsection 61.5(10), the Court is without jurisdic
tion to entertain it. The submission made was that
while the decision of such an adjudicator is one
that but for subsection 61.5(10) would be subject
to review under section 28 of the Federal Court
Act and while such privative clauses are always
subject to close scrutiny, the language of subsec
tion 61.5(10) is broad and clear enough to oust
jurisdiction to review under section 28 of the Fed-
eral Court Act. In support of his submission, coun
sel pointed out that subsection 61.5(10) is part of
new legislation passed after the enactment of sec
tion 28 of the Federal Court Act and that the
same chapter 27 includes a new subsection 122(1),
applicable to decisions of the Canada Labour
Relations Board which specifically excepts from its
privative effect applications under paragraph
28(1)(a) of the Federal Court Act. However, I did
not understand counsel to go so far as to submit
that any order an adjudicator might purport to
make on a matter not properly falling within sub
section 61.5(1) or going beyond his authority
under subsection 61.5(9) would be exempted by
subsection 61.5 (10) from review under section 28
of the Federal Court Act.
I do not think the re-enactment of subsection
122(1) or its mention of review under section 28 of
the Federal Court Act has any effect on the
interpretation of subsection 61.5(10). The provi
sion was not new. It merely replaced an earlier
privative provision which also excepted review
under section 28 and its effect, as I read it, is
simply to limit the grounds for such a review to
those set out in paragraph 28(1)(a) that is to say:
failure to observe a principle of natural justice or
otherwise acting beyond or refusing to exercise
jurisdiction. Subsection 61.5(10) is new and is in a
new Division of the Code. It must be interpreted
on its own and must be given its effect without
reference to subsection 122(1).
I should say at this point that it seems clear that
if any jurisdiction at all exists to review the deci
sion of an adjudicator under Division V.7 of the
Code, it is this Court on an application under
section 28 that has the jurisdiction. Jurisdiction of
superior provincial courts is, I think, transferred
by section 18 of the Federal Court Act to the Trial
Division of the Federal Court and as such a deci
sion is obviously one of a judicial nature, the
jurisdiction of the Trial Division is in turn
superseded by the opening words of section 28,
which give the Court of Appeal jurisdiction to
review.
In Attorney General of Canada v. Public Ser-
vice Staff Relations Board', all three members of
the Court expressed the view that the effect of the
opening words of section 28 was to override priva-
tive clauses in effect, when the Federal Court Act
was passed. The Court thus decided the question
left open by Pigeon J. when he said in Howarth v.
National Parole Board 2 :
Because, in my view, s. 28.1 of the Federal Court Act is
inapplicable due to the nature of the decision under consider
ation, it is unnecessary to consider whether the opening words
"Notwithstanding s. 18 or the provisions of any other Act"
exclude the application of a provision such as s. 23 of the
Parole Act or whether they refer only to provisions of the same
kind as s. 18 of the Federal Court Act, that is a provision
conferring jurisdiction to some court or tribunal. It is apparent
that if those opening words are construed as nullifying every
provision restricting or denying the judicial review of decisions
of federal boards not coming within the stated exception, this
means that beyond a transfer of jurisdiction an important
change in the substantive law has been effected. On this point, I
am expressing no opinion any more than on the question
whether, notwithstanding s. 23 of the Parole Act, some remedy
before the Trial Division of the Federal Court is open in a case
like this.
In the Public Service Staff Relations Board
case, Le Dain J. went on to question whether a
privative clause not dissimilar to subsection
61.5(10) even if enacted after the Federal Court
Act would be effective to prevent review under
section 28.
In an earlier case, M.N.R. v. MacDonald', two
members of the Court had held that a somewhat
different provision in the Unemployment Insur
ance Act, 1971, S.C. 1970-71-72, c. 48, which had
been enacted after the Federal Court Act was
ineffective to prevent review under section 28.
None of these cases, however, provides an answer
to the present problem.
As I see it, there are two questions involved in
the argument on the motion to quash. The first is
whether there is any jurisdiction at all to review
the decision and order. If the answer is affirma
tive, the motion must fail. But in that event, there
is the further question which may arise on the
' [1977] 2 F.C. 663.
2 [1976] 1 S.C.R. 453 at page 475.
3 [1977] 2 F.C. 189.
argument of the application whether the review
that is open to the Court must be confined to
grounds going to the jurisdiction of the adjudicator
or may be entertained on any other of the grounds
set out in section 28.
On the first question, 1 think there is no reason
to doubt that, the Court has jurisdiction, notwith
standing subsection 61.5(10), to entertain an
application under section 28 to review an adjudica
tor's decision on grounds that he never had juris
diction or that he exceeded or failed to exercise
jurisdiction that he did have. That is the tradition
al attitude of the courts to provisions such as
subsection 61.5(10). Thus, in Commonwealth of
Puerto Rico v. Hernandez 4 , Pigeon J. said at page
236:
Supervisory jurisdiction is a common law remedy which can
only be excluded by explicit enactment. It is unnecessary to
review the cases dealing with privative clauses which have
always held them ineffective as against jurisdictional defects.
In my opinion, therefore, the motion to quash
fails and should be dismissed. The second question
raised in the argument on it arises and is dealt
with later in these reasons.
The applicant's principal point as to the
Adjudicator's jurisdiction was that because of
what was referred to as a "cold weather lay off"
between December 15 and 21, 1979 and January
7, 1980 the employment of Kraus by the applicant
had not been "continuous", within the meaning of
subsection 61.5(1), for twelve consecutive months
and accordingly Division V.7 did not apply to
permit him to prosecute his complaint. On this
issue, Kraus' complaint asserted that:
After spending 6 1 / 2 years with Pioneer Grain Company Lim
ited as a repairman and subforeman, 1 believe that I was
unjustly dismissed due to events that took place at Shawnavon
on March 21, 1980.
The applicant's reply dated May 12, 1980
addressed to Labour Canada stated in its final
paragraph:
Please record that Mr. David Kraus was laid off work from
December 21, 1979 to January 7, 1980.
There is no transcript before the Court of the
proceedings before the Adjudicator. Nor have his
handwritten notes of the evidence given been for
warded to the Court by him or included in the
4 [1975] 1 S.C.R. 228.
record. The only additional material the Court has
on the issue is what appears from the Adjudica
tor's reasons for decision and it was on the basis of
that alone that the matter was argued on behalf of
the applicant. Kraus who appeared without coun
sel did not argue on that basis. He sought to state
his own version of the facts but was not permitted
to do so. I should note that the hearing proceeded,
notwithstanding his not being represented by coun
sel, because of his expressed wish that it proceed
without adjournment.
Under the Rules and Practice of this Court, it is
the responsibility of an applicant for review under
section 28 to put before the Court the evidentiary
material necessary to support his position 5 . As no
motion was made to have the Adjudicator's notes
of evidence made part of the record or to vary the
case by adding evidence on this issue, the Court is
in much the same position as it was on the consti
tutional question in Northern Telecom Ltd. v.
Communications Workers of Canada (supra).
Nevertheless, the Court must, as it seems to me,
proceed to reach its conclusion on such materials
as it has, scanty as they may be. The story appears
from the reasons for decision, as follows:
David Kraus has made a complaint under Section 61.5 of the
Canada Labour Code, in respect of his dismissal from employ
ment by Pioneer Grain Company Limited, (hereinafter called
"Pioneer"). The basis of his complaint is that he considers his
dismissal to be unjust.
Efforts to settle the complaint were unsuccessful and, pursu
ant to Subsection (6) of Section 61.5, the Minister of Labour
has appointed me an adjudicator to hear and adjudicate upon
Mr. Kraus' complaint.
I met with Mr. Kraus and representatives of Pioneer Grain
Company Limited in Swift Current on August 8, 1980. Both
sides presented evidence to me and made submissions respect
ing the complaint. Both parties agreed that I was properly
appointed as an adjudicator under Section 61.5 and that I had
5 See Northern Telecom Ltd. v. Communications Workers of
Canada [1980] 1 S.C.R. 115 per Dickson J., at page 130:
The Federal Court of Appeal appears to have treated the
jurisdictional issue in this case as one of judicial review of an
administrative board which has taken jurisdiction in an
administrative sense. On this view, quite clearly, the onus
would rest upon the applicant for judicial review and not, by
implication, upon the Union.
jurisdiction under that Section to deal with the complaint.
Pioneer also agreed that Kraus was an employee at the time of
his termination and that his employment had been terminated.
It is important to note that the admission of Pioneer Grain
Company Limited that I had jurisdiction to adjudicate Mr.
Kraus' complaint is qualified to the extent that it argued that
Kraus was not entitled to the benefit of the Section in that he
had not completed twelve consecutive months of continuous
employment prior to his dismissal.
Kraus was employed as a construction worker on the con
struction maintenance crew of the employer. He began working
for the employer in 1973 and was so employed until the date of
his dismissal.
The evidence is that workers in the construction maintenance
crew are laid off during the period between about December 15
and December 21 in each year, and are called back sometime
between early January and late February or early March. This
is referred to by the employer as "cold weather lay off". When
the employees leave in December they are paid vacation pay
earned up to that date. When they resume work they begin to
earn vacation pay again. They are never granted a paid vaca
tion as such.
Kraus was off work on "cold weather lay off' for a period
commencing between December 15 and 21 of 1979 and ending
when he was called back to work on January 7, 1980.
Pioneer argues that this lay off operates to interrupt the
continuity of employment of Kraus. The Governor in Council is
authorized under other divisions of Part III of the Canada
Labour Code to make regulations defining the absences from
employment that are deemed not to have interrupted continuity
of employment. This regulation making power is given, for
example, in Division V.3 (Individual Terminations of Employ
ment) and Division V.4 (Severance Pay). Regulations have
been passed with respect to these Divisions which make it clear
that, in certain circumstances, a lay off is not to be considered
to have interrupted continuity of employment. Mr. Proctor
points out that under Division V.7, while the Governor in
Council has the power to make a regulation to similar effect,
none has been made.
This seems to me to be a good point, at least up to a point.
However, it does not assist Pioneer in the circumstances of this
case. The evidence is clear that Kraus' employment since the
beginning has followed the same pattern. He ends his year
around mid-December and receives his holiday pay. He is
called back early the following year. In fact, he has been called
back in early January. This break in employment is one which
is experienced by all of the construction employees. I am unable
to accept that this is a break in employment which disentitles
the construction employees of Pioneer Grain Company Limited
in general and Kraus in particular from the benefits of Division
V.7. The employment of Kraus must be regarded as continuous
within the meaning of the legislation.
I therefore find that Kraus has completed more than twelve
consecutive months of continuous employment by Pioneer and,
accordingly, is entitled to press a complaint under Division V.7.
From this it appears that the only feature of the
situation that might deprive Kraus' employment of
the requisite continuity, and in consequence the
Adjudicator of jurisdiction, was what the
Adjudicator described with respect to the period
between December 15 and 21, 1979 and ending
January 7, 1980 as having been referred to by the
employer as "cold weather lay off'. Nowhere are
the terms of the employment detailed. Nowhere is
there any indication of the relationship between
the employer and the employee during the period
covered by what is referred to as "cold weather lay
off". The most telling evidence before the Court of
the situation is the applicant's statement in its
letter of May 12, 1980 that Kraus was "laid off
work" from December 21, 1979 to January 7,
1980. This is at least consistent with the continu
ance of the employment relationship during the
period and suggests that the arrangement was that
work was to be resumed by the employee when the
period came to an end. Nothing in what is related
in the decision is inconsistent with such a conclu
sion. Moreover, it is not described as a lay off
because of lack of work or the discontinuance of a
function. See subsection 61.5(3).
In these circumstances, I am not persuaded
either that the employment relationship did not
continue during the period when Kraus was "laid
off work" or that the Adjudicator's conclusion that
the employment of Kraus must be regarded as
"continuous" within the legislation, was erroneous.
The applicant's objection, therefore, fails.
The other point on the merits raised by counsel
for the applicant was that the Adjudicator acted
beyond or without jurisdiction in failing to calcu
late the monetary loss of Kraus in accordance with
legal principles. The submission is based on an
affidavit which states that there was no evidence
given by either Kraus or the applicant on the
point. This, as it seems to me, is not a point that
goes to the jurisdiction of the Adjudicator but is
one that would be excluded from review by subsec
tion 61.5(10) if the jurisdiction of the Court is
limited to review on questions of jurisdiction. The
question, therefore, arises as to whether the juris
diction of the Court under section 28 of the Feder
al Court Act to review the Adjudicator's decision
in accordance with paragraphs (b) and (c) of
subsection 28(1) has been abrogated by subsection
61.5(10) of the Code.
I am inclined to the view that subsection
61.5(10) does not abrogate the Court's jurisdic
tion. Having regard to the ruling of the Court in
Attorney General of Canada v. Public Service
Staff Relations Board (supra), that the opening
words of section 28 are effective to override priva-
tive clauses existing when the Federal Court Act
was passed, as well as to the presumption that
Parliament does not intend to take away the super
visory jurisdiction of superior courts, it seems to
me that when there is no specific reference to
section 28 in the privative provision, there is as
much reason to hold that section 28 overrides
privative provisions enacted after the enactment of
the Federal Court Act as there is for holding that
section 28 overrides privative provisions existing
when section 28 was passed.
Moreover, it seems to me unlikely that Parlia
ment intended that a temporary tribunal constitut
ed under subsection 61.5(6) should be above the
law and immune from supervision by any superior
court in its exercise of the authority conferred on
it. Such a result does not follow if subsection
61.5(10) is read, as I think it should be, as subject
to the overriding effect of section 28 of the Federal
Court Act.
I turn therefore to the merits of the point raised.
What the Adjudicator was authorized by subsec
tion 61.5(9) to do was, inter alia, to require the
employer to pay the dismissed employee compen
sation "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".
What the Adjudicator ordered the applicant to
do was, inter alia, to pay Kraus "compensation
equivalent to the remuneration that, but for the
dismissal, would have been paid to him during the
period from March 21, 1980 until his reinstate
ment."
The order, therefore, though it does not state a
precise amount to be paid, does not exceed the
authority of the Adjudicator. Nor does it exceed
the gross amount that Kraus might have earned or
the gross loss he may have sustained. It is obvious
that he lost his pay. What might have come to him
to reduce that loss or what opportunities, if any, he
may have had but did not take to mitigate his loss
do not appear from the record. All that is before
the Court on the point is an affidavit stating that
there was no evidence before the Adjudicator as to
the amount of Kraus' pay, or that he suffered
monetary loss or whether he was otherwise
employed or received income during the period
following the termination of his employment. In
my view, the fact that Kraus lost his pay, whatever
the amount of it may have been, is an obvious
inference from what is before the Court and it
rested on the applicant to show if it could that
Kraus was otherwise employed or earned income
in the material period of time or failed to take
reasonable action to mitigate his loss 6 . As there
was no evidence to that effect, there is in my
opinion no justification for interfering with the
Adjudicator's order.
I would dismiss the application
* * *
HEALD J.: I concur.
* * *
MAGUIRE D.J.: I concur.
6 See Red Deer College v. Michaels [1976] 2 S.C.R. 324 per
Laskin C.J.C. at page 331.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.