T-170-92
Canada Post Corporation (Applicant)
v.
Ronald Pollard and Douglas C. Stanley,
Adjudicator, appointed under Section 240 of Part
III of the Canada Labour Code (Respondents)
INDEXED AS: CANADA POST CORP. V. POLLARD (TB.)
Trial Division, MacKay J.—Ottawa, March 2 and 30,
1992.
Public Service — Labour relations — Application for certio-
rari to quash adjudicator's decision on jurisdictional issue and
for prohibition and interlocutory injunction — Complaint of
unjust dismissal arising from discharge of member of bargain
ing unit engaged in lawful strike when no collective agreement
in force — Employment terminated for misconduct during
strike — Arbitrator appointed by Minister under Canada
Labour Code, s. 242 to adjudicate on complaint — Adjudicator
ruling employee not excluded under Code, s. 240(1)(b) and
complaint not barred under s. 242(3.1)(b) — Findings not
patently unreasonable — Both issues within adjudicator's
jurisdiction.
Judicial review — Prerogative writs — Application for certi-
orari to review adjudicator's decision upon complaint of unjust
dismissal and for prohibition and interlocutory injunction —
Judicial review available despite privative clause where juris
diction at issue — Standard for review of questions at issue
whether adjudicator's findings patently unreasonable — Case
law considered as to standard for judicial review of jurisdic
tional issues.
Construction of statutes — Whether Canada Labour Code,
s. 240 (1)(b) relating to time of dismissal complained of or time
of filing complaint — Statutory right under s. 240 at issue, not
common law right to redress for unjust dismissal - Matter
depending upon interpretation of statute — Parliament's intent
to ensure availability of remedial procedures to employees
within legislative jurisdiction subject to specific exemptions —
Arbitrator correctly interpreting s. 240(1)(b) as relating to date
of dismissal and holding no collective agreement in force at
time — Possibility offuture legislative change not prime con
sideration in interpretation of legislation.
This was an application under the Federal Court Act, section
18 for a writ of certiorari to quash a decision of the respondent
adjudicator in which he held that he had jurisdiction to adjudi
cate upon a complaint filed by the respondent Ronald Pollard
pursuant to section 240 of the Canada Labour Code; the appli
cation also sought a writ of prohibition and an interlocutory
injunction to prohibit the adjudicator from adjudicating the
complaint pending a decision of this Court. Pollard was an
employee of the applicant, Canada Post, when the union
(PSAC) commenced a lawful strike on August 24, 1988. His
employment was terminated one week later for misconduct
during the strike. Canada Post and the union concluded a
return to work agreement for September 14, but Pollard did not
go back to work as he was no longer employed. He subse
quently filed grievances with Canada Post, as well as a com
plaint pursuant to section 240 of the Canada Labour Code,
alleging unjust dismissal. The Canada Labour Relations Board,
with whom PSAC filed an application, ruled that no collective
agreement was in force when the incidents were said to have
taken place and when Pollard was dismissed, although one was
in effect when the grievances were filed. After unsuccessful
attempts to make out his case before an arbitrator and the
Canada Labour Relations Board, Pollard decided to pursue his
complaint of unjust dismissal. The adjudicator, appointed by
the Minister under section 242 of the Code, ruled that he had
jurisdiction and that Pollard was not excluded from the provi
sions of the Code dealing with unjust dismissal. That decision
gave rise to this application for judicial review.
The issue was whether the adjudicator was correct in ruling
that he had jurisdiction and in determining that Pollard was not
excluded under paragraph 240(1)(b) as "a member of a group
of employees subject to a collective agreement" at the relevant
time, the date of his dismissal, and that the complaint was not
barred pursuant to paragraph 242(3.1)(b) for there was no
"procedure for redress ... provided elsewhere in or under [the
Code] or any other Act of Parliament".
Held, the application should be dismissed.
It is well settled that jurisdictional issues, as in this case, are
subject to judicial review despite the terms of any privative
clause. Therefore, section 243 of the Code, which states that
orders of adjudicators appointed to consider complaints of
unjust dismissal are final and not subject to judicial review in
any court, is inapplicable herein. The appropriate standard for
review of both issues raised by Canada Post was a preliminary
question to be determined by the Court. If Parliament's intent
was to leave determination of the issue to the adjudicator, the
latter's decision will not be set aside unless it is patently unrea
sonable, for only then will he be deemed to have exceeded his
jurisdiction. If, however, Parliament is deemed to have pre
scribed a limitation upon the adjudicator's jurisdiction, then
mere error on his part warrants setting his decision aside. With
respect to the applicant's argument based upon implications of
the purposes of Part I of the Code, it may be true that once
certification is granted, a bargaining agent becomes the reposi
tory of the rights of all individuals in the bargaining unit in
relation to their employer, and that by implication an individ
ual in a bargaining unit has no right to claim for unjust dismis
sal if discharged for disciplinary reasons during a strike. But it
does not necessarily follow from that, or from the continuing
responsibilities of the bargaining agent and the employer dur
ing the course of a strike, that the individual employee has no
rights in relation to his employer. What is at issue here is not a
common law right to redress for unjust dismissal, but a statu
tory right under section 240 and the following sections of the
Code, a matter that depends upon interpretation of the statute.
Part III of the Code is intended to set up minimum standards
for all employment relations subject to federal legislative juris
diction, with certain exceptions specified primarily in section
167. The wrongful dismissal provisions of the Code establish a
process which is less formal, more expeditious and less costly
than an action for civil relief. Moreover, the remedies pro
vided, particularly reinstatement to employment, are beyond
the scope of relief available in the courts. The exceptions of
persons or of complaints not subject to determination by an
adjudicator concerning alleged unjust dismissal are listed in
Part III of the Code. That, over time, the scope of the exemp
tions has been narrowed, indicates Parliament's intent to
ensure the availability of these remedial procedures to employ
ees within its legislative jurisdiction, subject only to the spe
cific exemptions provided. Except for the determination under
subsection 167(3) as to whether a person is a manager, all
other exclusions provided by subsections 240(1) and (2) and
242(3.1) are matters for determination by an adjudicator which
will be set aside only if there is a patently unreasonable error.
There are two reasons for that: the structure of the Code and
the procedures set out in sections 240 to 245. While the use of
the word "may" in subsection 242(I) implies discretion, the
Minister has little discretion, except in the most obvious case
of an exemption where there is no dispute about excluding fac
tors. The Code provides no grounds for the exercise of discre
tion by the Minister to refuse to appoint an adjudicator; if he
were to refuse to act, that decision would be subject to judicial
review. The process is one designed to avoid civil action in the
courts.
The standard for review of both questions at issue is whether
the adjudicator's findings interpreting the provisions of the
Code in relation to the complaint by the respondent were
patently unreasonable. As to the first issue, the interpretation
of paragraph 240(1)(b), the finding of the adjudicator, that Pol-
lard was not excluded by this paragraph, was not patently
unreasonable. Indeed, the adjudicator was correct in interpret
ing paragraph 240(1)(b) as relating to the time of the dismissal,
not the time of filing the complaint, and that there was no col
lective agreement in force when Pollard was dismissed. That
section 240 can only be interpreted on the basis of the relevant
time being the date of dismissal is consistent with Federal
Court decisions in Lee-Shanok v. Banca Nazionale del Lavern
of Canada Ltd. and Canadian Imperial Bank of Commerce v.
Bateman, where the functions of the complainant at the time of
his dismissal were assessed in determining whether he was a
"manager" and thus excluded by subsection 167(3); it is con
sistent as well with a sensible application of paragraph
242(3.1)(a). As to the adjudicator's ruling on the second issue,
the application of paragraph 242(3.1)(6), his finding, that Pol-
lard was not excluded because his complaint was not one
where a procedure for redress has been provided otherwise in
or under the Code or any other statute, was not patently unrea
sonable. That finding was consistent with the facts and legisla
tive intent. The possibility of future legislative change by Par
liament is not a prime consideration in the interpretation of
legislation which, in accord with section 10 of the Interpreta
tion Act, "shall be considered as always speaking". It is to have
meaning in light of the situation prevailing, including existing
legislation, at the time of its interpretation and application.
Alternative processes urged by the applicant as available to
Pollard under sections 37 and 94 of the Code do not address
the issue of unjust dismissal for alleged misconduct. The adju
dicator was correct in concluding that sections 94 and 97 do
not provide a procedure for redress against the employer who
is found to have unjustly dismissed an employee. It is not
essential to finally determine what the words "a procedure for
redress has been provided elsewhere in or under this or any
other Act of Parliament" in paragraph 242(3.1)(b) may be
deemed to include. In the assessment of fact and law involved
in applying the exclusions set out in Part Ill of the Code, the
Court should not intervene to affect an adjudicator's finding
unless it be patently unreasonable. The decision of the adjudi
cator was not patently unreasonable in its finding that no other
procedure for redress of Pollard's complaint of unjust dismis
sal existed under the Code or other statute.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C. 1970, c. L-1, s. 158 (as am.
by S.C. 1972, c. 18, s. 1).
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 37, 67(4),
94(1)(a),(3)(a)(i),(vi), 97(1)(a),(2), 99 (as am. by S.C.
1991, c. 39, s. 3), 167 (as am. by R.S.C., 1985 (1st
Supp.), c. 9, s. 5), 189 (as am. idem, s. 7), 240 (as am.
idem, s. 15), 241, 242 (as am. idem, s. 16), 243, 244,
245, 246, 247.
Canada Labour (Standards) Code, S.C. 1964-65, c. 38.
Federal Court Act, R.S.C., 1985, c. F-7, s. 18 (as am. by
S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).
Interpretation Act, R.S.C., 1985, c. I-21, s. 10.
Public Service Staff Relations Act, R.S.C., 1985, c. P-35,
s. 92(1)(b), Schedule I, Part II (as am. by SOR/85-361;
SOR/86-961; R.S.C., 1985 (3rd Supp.), c. 18, s. 41;
SOR/87-644; R.S.C., 1985 (4th Supp.), c. 7, s. 8; S.C.
1991, c. 6, s. 25).
CASES JUDICIALLY CONSIDERED
APPLIED:
Canadian Imperial Bank of Commerce v. Bateman
(1991), 91 CLLC 14,028; 42 F.T.R. 218 (F.C.T.D.);
Sedpex, Inc. v. Canada (Adjudicator appointed under the
Canada Labour Code), [1982] 2 F.C. 289; (1988), 34
Admin. L.R. 23; 25 F.T.R. 3 (T.D.); Lee-Shanok v. Banca
Nazionale del Lavoro of Canada Ltd., [1987] 3 F.C. 578;
(1987), 26 Admin. L.R. 133; 76 N.R. 359 (C.A.); U.E.S.,
Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35
Admin. L.R. 153; 95 N.R. 161.
REFERRED TO:
Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983;
(1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 102
N.R. 1; Island Telephone Co. Ltd. v. Canada (Minister of
Labour), T-1401-91, MacKay J., judgment dated 30/9/91,
F.C.T.D., not yet reported.
APPLICATION under section 18 of the Federal
Court Act, seeking a writ of certiorari to quash a
decision of the respondent adjudicator, a writ of pro
hibition and an interlocutory injunction to prohibit
the adjudicator from adjudicating the complaint
pending a decision of the Court. Application dis
missed.
COUNSEL:
John A. Coleman for applicant.
David Migicovsky for respondent Ronald Pol-
lard.
SOLICITORS:
Ogilvy Renault, Montréal, for applicant.
Perley-Robertson, Panet, Hill & McDougall,
Ottawa, for respondent Ronald Pollard.
The following are the reasons for order rendered in
English by
MACKAY J.: This is an application pursuant to sec
tion 18 of the Federal Court Act, R.S.C., 1985, c. F
7. The application, dated January 20, 1992, is phrased
in terms of section 18 as it was prior to amendment
by S.C. 1990, c. 8, section 4, which became effective
February 1, 1992. It is made without reference to sec
tion 18.1 of the Act as added by the same amending
statute, section 5, providing for judicial review. Yet
the relief sought is the same as that included in sub
section 18(1) of the Act as amended and the appli
cant's motion meets requirements of provisions for
judicial review.
The relief sought includes a writ of certiorari or
relief in the nature thereof to quash a decision of the
respondent adjudicator, Douglas C. Stanley (the
"Adjudicator"), made January 5, 1992, in which he
held that he had jurisdiction to adjudicate upon a
complaint filed by the respondent Ronald Pollard
("Pollard") made pursuant to section 240 [as am. by
R.S.C., 1985 (1st Supp.), c. 9, s. 15] of the Canada
Labour Code, R.S.C., 1985, c. L-2 as amended (the
"Code"). The application also seeks a writ of prohibi
tion or relief of the same nature to prohibit the adju
dicator from proceeding to adjudicate the complaint
of Pollard, and it seeks as well an interlocutory
injunction or relief in the nature of a stay of proceed
ings to prohibit the adjudicator from proceeding to
adjudicate the complaint pending a decision of this
Court.
At issue in this proceeding is the application of
Part III, Division XIV of the Code [from ss. 240 to
247], setting out provisions for dealing with a com
plaint of unjust dismissal arising from discharge of an
employee who at the time was a member of a bar
gaining unit engaged in a lawful strike during the
course of which there was no collective agreement
regulating relations between the employer and
employees. At the time of the dismissal, a previous
agreement had expired and the employer had given
notice that its terms would not apply during the
course of the strike.
The facts
The facts are not in dispute. The respondent Pol-
lard was an employee of the applicant, ("Canada
Post") and a member and officer of a duly certified
bargaining unit represented by the Public Service
Alliance of Canada ("PSAC") when the union com-
menced a lawful strike on August 24, 1988. In a letter
addressed to the union on August 23, Canada Post
advised that the collective agreement previously in
effect would not govern terms and conditions of
employment during the strike which followed the
next day. In place of that agreement the employer set
out basic terms and conditions that would apply until
further advice from Canada Post or until conclusion
of a new collective agreement.
On August 31, 1988, the respondent Pollard's
employment with Canada Post was terminated by
reason of his alleged misconduct, said to have
occurred on August 27 and 29, committed during the
course of the strike.
Canada Post and PSAC concluded a return to work
agreement terminating the strike and reinstating the
previous collective agreement upon return to work on
September 14, and providing that a newly negotiated
collective agreement would be effective on Septem-
ber 25, 1988.
No provision was made in the return to work
agreement or in the new collective agreement, neither
of which was retroactive, for the respondent Pollard,
whose employment had been terminated, to return to
work. He did not return to work on September 14 as
he was no longer employed by Canada Post on that
date.
On October 4, 1988, Pollard, and his union local
on his behalf, filed grievances with Canada Post
relating to his discharge from employment, claiming
back pay and reinstatement. On the same day Pollard
filed a complaint pursuant to section 240 of the
Canada Labour Code, a complaint that he had been
unjustly dismissed.
When the grievances were presented to the
employer, they were rejected by Canada Post, with a
notation on the grievance forms, completed by the
employer's representative, that the grievances were
out of time. When PSAC thereafter asked Canada
Post to submit the grievances to arbitration, Canada
Post declined to do so on the ground that the griev
ances related to events that took place while there
was no collective agreement in effect and it refused
to consider the grievances as one under the collective
agreement or to give further consideration to the mat
ter. PSAC then filed with the Canada Labour Rela
tions Board an application pursuant to then section
158 [R.S.C. 1970, c. L-1 (as am. by S.C. 1972, c. 18,
s. 1)] (now section 65) of the Code, requesting the
Board to hear and determine whether a collective
agreement existed, binding on the employer and the
employee, at the relevant times. The Board ruled, on
March 14, 1989, and reconfirmed on April 26, that no
collective agreement was in place when the incidents
allegedly took place and when Pollard was dismissed,
but one was in effect when the grievances were filed
and determination whether Pollard had rights under
the collective agreement was a matter for an arbitra
tor to decide. That issue was submitted to an arbitra
tor whose jurisdiction was objected to by Canada
Post on the grounds that no collective agreement was
in force at the time Pollard's employment was termi
nated and the grievances of Pollard and his union
were not subject to arbitration under the back-to-
work agreement. On December 12, 1990, the arbitra
tor ruled that she was without jurisdiction because
there was no collective agreement in place at the time
of Pollard's discharge and the back-to-work agree
ment between the parties, which was not retroactive,
while limiting the employer's right to discipline
employees returning to work for activities during the
strike, made no provision for Pollard's reinstatement
to employment and thus did not cover his situation.
While the first issue raised before the Canada
Labour Relations Board was under consideration and
before the grievances were submitted to arbitration,
the respondent and the new bargaining agent repre
senting the employees, the Canadian Union of Postal
Workers, filed with the Board, on February 27, 1989,
complaints pursuant to paragraph 97(1)(a), that the
employer had contravened paragraphs 94(1)(a) and
94(3)(a)(î) and 94(3)(a)(vi) of the Code relating to
unfair practices. These complaints were dismissed by
the Board on the ground that they were not initiated
within the time limit established by subsection 97(2)
of the Code, having been filed more than 90 days
after the circumstances were known which gave rise
to the complaint.
The complaint relating to unjust dismissal filed on
October 4, 1988, was then pursued by the respondent
Pollard. When it was not settled the respondent Stan-
ley was appointed as an adjudicator by the Minister
pursuant to section 242 [as am. idem, s. 16] of the
Code. When the matter came on for hearing before
the adjudicator in October, 1991, Canada Post argued
that the adjudicator was without jurisdiction to hear
and determine that complaint. In January, 1992, the
adjudicator ruled that he had jurisdiction to hear the
matter. With reference to the arguments raised by
Canada Post, he held that the exclusion within para
graph 240(1)(b) was limited to persons who were
subject to the terms of a collective agreement at the
time of the dismissal and that the exclusion for cases
where an alternative procedure for redress is pro
vided, as set out in paragraph 242(3.1)(b), must he a
procedure that provides redress to a complaint that
dismissal was unjust and no other process relating to
that cause was open to the respondent Pollard under
the Code or other statute. Thus he was not excluded
from the provisions of the Code dealing with unjust
dismissal. That decision gives rise to this application
for judicial review.
Legislation
The key provisions of the Code here in issue are
included within Part III of the Code, Division XIV
which concerns unjust dismissal. They include the
following:
240. (1) Subject to subsections (2) and 242(3.1), 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 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.
241....
(2) On receipt of a complaint made under subsection 240(1),
an inspector shall endeavour to assist the parties to the com
plaint 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 subsec
tion 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 consid
ers 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 pro
vided 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 pre
sent 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 conse
quence of the dismissal.
Ruling of the adjudicator
When the adjudicator commenced hearings in
October, 1991, Canada Post raised the preliminary
ground that adjudicator Stanley was without jurisdic
tion to hear and determine the complaint of the
respondent Pollard because at the time he made his
complaint, Pollard was a member of a group of
employees subject to a collective agreement within
the jurisdictional exclusion of paragraph 240(1)(b),
and because a procedure for redress was provided
elsewhere under the Code and thus Pollard's case fell
within the jurisdictional exclusion of paragraph
242(3.1)(b).
In relation to the first point the adjudicator said, in
part (ruling, preliminary issues, Douglas C. Stanley,
Adjudicator, dated January 5, 1992 at pages 16-19):
The essential issue to the Employer's first objection is sim
ply the proper construction of s. 240(1)(b). The employer's
proposition that it is the group, not the complainant who has to
be "subject to the terms of a collective agreement" is grammat
ically a possibility. However, if one reads the section with an
understanding of its context and the purpose and intent of the
legislation, that grammatical construction simply does not fur
ther the intent of the legislation. Indeed, it thwarts the clear
intent that persons who are not protected by the arbitration pro
visions of a collective agreement have an equally efficatious
[sic] proceeding to have it determined whether or not their dis
charge was for just cause.
Section 57(1) of the Canada Labour Code reads as follows:
57. (1) Every collective agreement shall contain a provision
for final settlement without stoppage of work, by arbitration
or otherwise, of all differences between the parties to or
employees bound by the collective agreement, concerning
its interpretation, application, administration or alleged vio
lation.
Collective Agreements under the Code, uniformly provide
that employees shall only be discharged for just cause and they
establish an arbitration procedure. Counsel for the employer
suggests that Parliament accepted, when they enacted
240(1)(b), that there may be employees in a bargaining unit
who would be covered by neither the arbitration provisions in
the collective agreement nor the unjust dismissal provisions of
the Code. I do not believe that was the intention of Parliament
and the more plausible grammatical interpretation of the sub
section is that it excludes persons who are subject to the terms
of a collective agreement.
I am not sure why Parliament used the language they did and
referred to a person being a "member of a group". One possi
bility is that the drafters recognized that being a member of a
bargaining unit did not necessarily mean that you would have
the protection of a collective agreement at all times, and they
added the qualification of being covered by a collective agree
ment for greater certainty.
Other Adjudicators have come to this same conclusion, that
it is the individual complainant, not the group that the clause
refers to. I find that the Award of Adjudicator Gagnon in Ber-
nier and Capitaine Courrier Corporation [1986, unreported] is
on point. At p. 6 of Ms. Gagnon's Award she states as follows:
It is the second condition, "not a member of a group of
employees subject to a collective agreement", which poses a
problem. I will therefore try to determine whether the com
plainant, at the time he filed his complaint, was a member of
a group of employees subject to a collective agreement.
It has been acknowledged that at the time of his dismissal,
there was no collective agreement at Capitaine Courrier
Corporation. In August 1984, however, a collective agree
ment was reached but it does not cover the complainant,
who had by then been dismissed; indeed, the seniority list
prepared pursuant to the agreement makes no reference to
him. Moreover, the collective agreement stipulates that it
has no retroactive effect. Therefore, the complainant has no
recourse under the collective agreement: he was not a
member of a group of employees subject to a collective
agreement at the time he filed his complaint.
I must note that I find Ms. Gagnon's comments ambiguous
as to when she believes the critical time is to make the determi
nation. In the case before her it made no difference because the
complainant was not covered by the collective agreement at
the time of his discharge or at the time he filed his complaint. I
conclude that the critical time must be the date of discharge,
and only that date.
I also find that the Award of Adjudicator Lamoureux in
Dennis Beaudoin and Cable TV, April 1, 1984, unreported, is
on point. In that case the complainant was discharged during
the freeze period between certification and the signing of a
first collective agreement. There is no substantial difference
between this period and the period of time in our case when the
collective agreement expired and a strike was in progress.
The Employers [sic] first argument is therefore rejected.
As to the second argument raised by Canada Post,
adjudicator , Stanley said (at pages 19-21):
The second issue is whether alternate means for redress are
available. The Employer argues that the unfair labour practice
sections of the Canada Labour Code constitute an avenue of
redress. As regards this issue I agree completely with the view
expressed by Adjudicator Egan in the Hill Security Van Lines
Award where he says at p. 3:
The objection based on the argument that "a procedure for
redress has been provided elsewhere in this or in any other
Act of Parliament" cannot be sustained. The present com
plaint is concerned with the question of unjust dismissal.
The previous complaint dealt with the question of dismissal
because of union activity an act which is prohibited under
Sections 184 and 186 of the Code. In such unfair labour
practice cases the specific issue to be decided is whether or
not the discharge was associated in the mind of the
employer with anti-union bias or discrimination and not the
question of whether "just cause" existed.
Evidence relating to the defense of "just cause" is relevant
in cases involving charges of a breach of statutory provi
sions prohibiting anti-union activities only insofar as such
evidence my [sic] assist in determining whether "just cause"
comprised the sole cause for discharge free from any taint of
anti-union bias. The presence or absence of such a bias is
the real issue in the unfair labour practice sections and not
the presence or absence of just cause....
Those sections do not embody a procedure from redress for
dismissal without just cause in circumstances where breach
of their respective provisions is not the issue. The fat [sic]
that a similar remedy may be awarded in either case does
not mean the procedure for redress has been provided else
where....
The basis of a complaint under s. 240(1) of the Code is the
alleged "unjust" dismissal of the complainant. The jurisdiction
of an adjudicator is set out in s. 242(3)(a) as follows:
242. (3) Decision of adjudicator.—Subject to sub-section
(3.1), an adjudicator to whom a complaint has been referred
under subsection (I) shall
(a) consider whether the dismissal of the person who
made the complaint was unjust and render a decision
thereon;
The alternate procedure for redress referred to in 242
(3.1)(b) must be a procedure that will "redress" the issue of
whether the dismissal was unjust. Counsel for the employer
argues that it would be absurd for Parliament to have been
referring to the very same procedure as is available under 240,
because if that procedure already existed 240 would not be
necessary. In support of that he relies on Adjudicator
Marcheterre's comments on the Hill Security Van Lines and
MacDonald case in National Bank of Canada and Daneault,
[1989] T.A. 423 (quoted above). I can not agree with the criti
cism of Adjudicator Egan's conclusions found in that Award.
Indeed they seem to completely miss the point that legislation
speaks to the future as well as to the conditions existing at the
time it was enacted. It is my view that this provision merely
contemplates the possibility that there might exist, at some
time in the future, special legislation dealing with an industry
under Federal jurisdiction, which could provide for the very
same kind of adjudication as is generally provided in s. 240. I
do not find this remarkable. I would, on the other hand, find it
remarkable that if Parliament intended complaints under the
Human Rights Code, unfair labour practice complaints, and
complaints arising out of health and safety legislation, (all of
which existed at the time s. 240 came into effect) to take prece
dence to the procedure set out in s. 240 that they would not
have so specified.
The second argument put forward by the Employer is
rejected. ...
The issues
The application raises for review the two issues
dealt with by the adjudicator in his findings that he
had jurisdiction to consider the complaint. Essen
tially, he determined that Pollard was not excluded
under paragraph 240(1)(b) as "a member of a group
of employees subject to a collective agreement" at
the relevant time, the date of his dismissal, and that
the complaint was not barred pursuant to paragraph
242(3.1)(b) for there was no "procedure for
redress ... provided elsewhere in or under [the Code]
or any other Act of Parliament".
While it was not raised in argument, for the record
I note that I follow the decisions of my colleagues,
Mr. Justice Cullens and Mr. Justice Strayer 2 in pro
ceeding to deal with this application despite privative
clauses 3 in the Code which on their face would pre-
Canadian Imperial Bank of Commerce v. Bateman (1991),
91 CLLC 14,028 (F.C.T.D.), per Cullen J., at p. 12,254,
upheld, February 20, 1992, Court file no. A-444-91 [not yet
reported] (F.C.A.).
2 Sedpex, Inc. v. Canada (Adjudicator appointed under the
Canada Labour Code), [l982] 2 F.C. 289 (T.D.), at p. 295, per
Strayer J.
3 The Code, s. 243 provides:
(Continued on next page)
dude judicial review. It is well settled that jurisdic
tional issues, as are those here involved, are open to
proceedings for judicial review despite the terms of
any privative clause . 4
Both issues raised by Canada Post concern the
jurisdiction of the adjudicator. A preliminary ques
tion for the Court concerns the appropriate standard
for review of those issues. If, on interpretation of the
Code, Parliament is found to have intended to leave
determination of the issue to the adjudicator, then his
decision will not be set aside unless it is patently
unreasonable, for only then will he be deemed to
have exceeded his jurisdiction. If, however, Parlia
ment is deemed to have prescribed a limitation of the
adjudicator's jurisdiction then mere error on his part
warrants setting his decision aside. 5
The difference between these two types of error is clear: only a
patently unreasonable error results in an excess of jurisdiction
when the question at issue is within the tribunal's jurisdiction,
whereas in the case of a legislative provision limiting the tribu
nal's jurisdiction, a simple error will result in a loss of jurisdic
tion. It is nevertheless true that the first step in the analysis
necessary in the concept of a "patently unreasonable" error
involves determining the jurisdiction of the administrative tri
bunal. At this stage, the Court examines not only the wording
of the enactment conferring jurisdiction on the administrative
tribunal, but the purpose of the statute creating the tribunal, the
reason for its existence, the area of expertise of its members
and the nature of the problem before the tribunal. 6
Jurisdictional issues concerning an adjudicator's
authority to deal with complaints of unjust dismissal
(Continued from previous page)
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 warrant, or otherwise, to question, review,
prohibit or restrain an adjudicator in any proceedings of the
adjudicator under section 242.
4 Lee-Shanok v. Banca Nazionale del Lavoro of Canada
Ltd., [1987] 3 F.C. 578 (C.A.), at pp. 585-587, per Stone J.A.;
Sedpex, Inc., supra, note 2.
5 U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, at p.
1086, per Beetz J. See, also Caimaw v. Paccar of Canada Ltd.,
[1989] 2 S.C.R. 983, at pp. 1000-1003, per La Forest J.
6 Per Beetz J., supra, note 5, at p. 1088.
under the provisions of the Code here relevant have
been dealt with by this Court or the Court of Appeal
on previous occasions. In Lee-Shanok v. Banca
Nazionale del Lavoro of Canada Ltd., 7 the Court of
Appeal determined, and in Canadian Imperial Bank
of Commerce v. Bateman, 8 it upheld Cullen J., that
subsection 167(3) of the Code, which provides that
"Division XIV does not apply to or in respect of
employees who are managers", was a provision
intended by Parliament to limit an adjudicator's juris
diction to act in relation to complaints of unjust dis
missal. Error by the adjudicator in applying the sec
tion in determination of whether a person was a
manager, resulted in both cases in setting aside the
adjudicator's decision. In Sedpex, Inc. 9 a decision
antedating the Supreme Court decisions in Bibeault 1 °
and in Paccar,1 1 Strayer J., dealing with the interpre
tation of what is now paragraph 242(3.1)(a) [then s.
61.5], distinguished between determinations of law
relating to jurisdiction, which are considered as more
authoritatively determined by courts, and determina
tions of fact which, given appropriate procedures, are
often more appropriately determined by administra
tive tribunals. In the case of the latter, findings of an
adjudicator should be set aside only when demon
strated to be "manifestly wrong". In Sedpex, Inc.,
Strayer J. found no reviewable error of law, indeed
he agreed with the adjudicator's interpretation of now
paragraph 242(3.1)(a), and he found no reviewable
error of fact.
Determination of this preliminary issue, concern
ing the appropriate standard for review of the adjudi
cator's findings, and review of those findings, I leave
for the moment, to summarize the submissions of the
parties. For them the preliminary issue is not of sig
nificance for as we shall see, the applicant urges that
whatever is the appropriate standard for review the
adjudicator's decision fails on both of his findings,
while for the respondent Pollard it is submitted that
the decision meets the standard on both findings,
whatever the appropriate standard may be.
7 Supra, note 4.
8 Supra, note 1.
9 Supra, note 2.
10 Supra, note 5.
Supra, note 5.
Submissions of the parties
The applicant submits that adjudicator Stanley
attributed an incorrect interpretation to two provi
sions of the Code, both of which provisions are said
to be of the type which limit jurisdiction so that any
erroneous interpretation thereof results in the adjudi
cator losing jurisdiction. If that is not the appropriate
standard, in the alternative the applicant submits that
the findings were patently unreasonable and the adju
dicator's jurisdiction as determined is in error.
The first of the errors alleged concerns the inter
pretation of paragraph 240(1)(b) which Canada Post
contends excluded Pollard because at the time he
made his complaint he was a member of a group of
employees subject to a collective agreement as pro
vided in that section. It is urged that Part I of the
Code provides a complete and cohesive regime for
collective bargaining and for a lawful strike in the
collective bargaining process. Throughout the period
of a lawful strike, the trade union remains the exclu
sive bargaining agent of employees in a bargaining
unit and the common law employment relationship
does not apply. When Pollard was dismissed he was a
member, and an official representative, of the bar
gaining agent trade union which had exclusive
authority to represent him in all matters pertaining to
his employment. It is said that the respondent Pollard
implicitly acknowledged this, as did his union, by
initiating complaints of unfair labour practices under
section 94 of the Code and by filing grievances under
the collective agreement. The fact that the complaints
were dismissed by the Board and that his grievance
was ruled not to be arbitrable did not mean that at the
date of filing his complaint under section 240 he was
not a member of a group of employees subject to a
collective agreement. If in the result Pollard has no
recourse under section 240 of the Code it is said this
is entirely in keeping with the purposes of the collec
tive bargaining regime established by Part I. The par
ties to a collective agreement terminating a strike
may provide for the status and recourses of employ
ees discharged or disciplined during the course of a
strike or in certain cases, the legislature in providing
back-to-work legislation, as it has done on a number
of occasions in relation to strikes affecting Canada
Post, will provide for these matters. It is said that
before the back-to-work agreement was concluded in
this case, there was some discussion about the situa
tion of the respondent Pollard and the evidence of
that, as presented to the arbitrator Devlin who dealt
with the grievances, is set out in her decision. The
applicant urges that since the matter of possible rein
statement of Pollard was discussed in the course of
negotiations leading to the back-to-work agreement
and not then specifically provided for, it is to be
assumed that the matter was dealt with in negotia
tions. To permit Pollard to now pursue a complaint
for unjust dismissal is, in effect, to provide an appeal
from the results of collective bargaining, a process
inimical to Part I of the Code. In my view, the only
thing that can be said of the evidence of these discus
sions is that no provision was made for dealing with
his discharge or for his return to work and as the
arbitrator found, the back-to-work agreement was not
retroactive, a finding not open to question here.
The second error said to have been made by the
adjudicator was the finding that no procedure for
redress was provided elsewhere under the Code so
that Pollard was not excluded from the application of
section 242 by paragraph 242(3.1)(b). This was in
error, it is urged, because, as Pollard himself implic
itly acknowledged by his complaints of unfair labour
practices, a process was available under section 94,
with a wide variety of remedial powers, including
reinstatement, available to the Board under section 99
[as am. by S.C. 1991, c. 39, s. 3]. The fact that the
Board ruled his complaints were untimely does not
alter the fact that he had at his disposal a procedure
for redress elsewhere in or under the Code. The
applicant further urges that Pollard might have sought
redress against his union pursuant to section 37 of the
Code for failure to properly represent him but I am
not persuaded that this argument addresses the issue
between the respondent Pollard and his employer.
Finally the applicant urged that the words of para
graph 242(3.1)(b) must be given a meaning that rec
ognizes procedures for redress elsewhere in the Code
and that the adjudicator's reference to future pos
sibilities is not an appropriate approach to statutory
interpretation.
For the respondent Pollard, it was urged that the
adjudicator was right in his determination of the
interpretation of the two statutory provisions in ques
tion, or if the appropriate test for his finding in rela
tion to paragraph 242(3.1)(b) is that the finding not
be patently unreasonable, then his finding on this sec
ond issue was not unreasonable. Implicit, in oral
argument, was the view that if the appropriate test on
the first issue was the same, then his finding that Pol-
lard was not excluded by paragraph 240(1)(b) was
not patently unreasonable.
In relation to the first issue, the interpretation of
paragraph 240(1)(b), it is urged that the relevant time
for determining whether the complainant is "a
member of a group of employees subject to a collec
tive agreement" is the date of his dismissal, not the
date of the filing of his complaint which the applicant
here urges. That is said to be consistent with the
application of paragraph 240(1)(a). Moreover, it
would avoid what are said to be absurd results that
would follow from the applicant's interpretation and
it is consistent with the purposes of the Act, in partic
ular Part III of the Code. In the alternative, it is urged
that even if the applicant's interpretation is accepted,
at the date of filing of his complaint the respondent
Pollard was not "a member of a group of employees
subject to a collective agreement" because he was not
at that time an employee.
On the second issue counsel for the respondent
Pollard submits that the other procedures available
under the Code, referred to by the applicant, do not
resolve the complaint for unjust dismissal which was
based on alleged misconduct. No other procedures
available under the Code provide redress for that
form of complaint and it is said that the adjudicator
was not unreasonable, indeed he was correct, in so
finding. Counsel for the respondent did not support
the reasoning of this finding by the adjudicator so far
as that related to interpretation of the Act in light of
possible future legislative change, but he did submit
that there were other circumstances specifically pro
vided for in the Code, which might otherwise be
classed within the general scope of unjust dismissal,
which provide for redress, for example the provisions
of Part II which establish procedures for dealing with
allegations that an employer has dismissed an
employee who refuses to work for safety reasons.
This summary of the submissions of the parties
does not fully present the able and thorough argu
ment addressed by counsel for each of the parties, nor
does it include references to the numerous authorities
to which each made reference. Nevertheless, it sets
the framework for analysis of the issues raised in this
application.
Analysis
Counsel for each of the parties pointed to inconsis
tencies adopted by the other throughout the rather
tortuous series of proceedings by which the union
and the respondent Pollard sought to address his cir
cumstances after his discharge and after return to
work by the applicant's employees following the
strike. Thus, the applicant points to the grievances
filed and the subsequent arbitration, as well as to the
complaints of unfair labour practices filed and dis
missed by the Board, as actions by or on behalf of the
respondent Pollard on the basis that he was included
within the collective agreement; and now the respon
dent's case before the adjudicator depends on his not
being a member of a group of employees subject to a
collective agreement. For the respondent it is said
that Canada Post in dealing with Pollard's grievances
and in all previous proceedings relied on its view that
there was no collective agreement applicable to Pol-
lard at the time of his dismissal; and now before the
adjudicator it urges that he was a member of a group
of employees subject to a collective agreement at the
time of his complaint, even though he had previously
been dismissed. What is sauce for the goose is sauce
for the gander; it is perhaps too much to expect con
sistency, and of course neither party is precluded
from arguing its best case in each forum in light of
the issues there raised. In my view, whatever posi
tions may have been adopted at previous stages, those
are not relevant to the issues here raised which are
concerned with statutory interpretation.
I quickly dispose of one of the applicant's argu
ments based upon implications of the purposes of
Part I of the Code. It was urged that under Part I of
the Code, a complete and cohesive regime is pro
vided for collective bargaining and for strikes as a
lawful part of that process, and once certification is
granted, a bargaining agent becomes the repository of
the rights of all individuals in the bargaining unit in
relation to their employer, a situation that continues
throughout a lawful strike. Thus, individual rights
under contract with an employer, the common law
situation, do not arise in the course of a strike. 12 By
implication an individual in a bargaining unit then
has no right to claim for unjust dismissal if dis
charged for disciplinary reasons during a strike, the
same situation as prevails during the life of a collec
tive agreement. While I agree with the general
description of the relations of employee and his or
her bargaining agent, I do not agree that it necessarily
follows from that, or from the continuing responsibil
ities of the bargaining agent and the employer during
the course of a strike, that the individual employee
has no rights in relation to his employer. In any case
what is at issue here is not a common law right to
redress for unjust dismissal. Whatever that may be is
specifically preserved by section 246 which preserves
any civil remedy of an employee against his
employer, unaffected by the statutory provisions for
dealing with a complaint of unjust dismissal. What is
at issue here is a statutory right under section 240 and
the following sections of the Code, a matter that
depends upon interpretation of the statute.
12 Caimaw v. Paccar of Canada Ltd., supra, note 5, per La
Forest J., at pp. 1007-1008.
I turn first to the preliminary issue of the appropri
ate standard for review of adjudicator Stanley's find
ings. Part III of the Code has its origin in what was
formerly a separate statute, the Canada Labour
(Standards) Code. 13 In my view it is intended, as was
its predecessor, to set minimum standards for all
employment relations subject to federal legislative
jurisdiction, with certain specified exceptions, now
specified primarily in section 167 [as am. by R.S.C.,
(1985) (1st Supp.), c. 9, s. 5]. The purposes of the
wrongful dismissal provisions of the Code, i.e., Divi
sion XIV of Part III, were summarized by Strayer J.
in Sedpex, Inc., 14 as follows:
Section 61.5 [as it then was, now s. 240] was inserted in the
Code to provide, in effect, a grievance procedure for federally-
regulated employees not protected by collective bargaining
agreements, allowing them to file complaints with respect to
unjust dismissal. Where such a complaint is filed and the mat
ter is not otherwise settled the Minister can appoint an Adjudi
cator. If the Adjudicator after holding a hearing concludes that
the person was unjustly dismissed he can order compensation
or reinstatement of that person or some other appropriate rem
edy.
I would add that the provisions establish a process
that may be considered less formal, more expeditious
and less costly than a typical action for civil relief in
the courts. Moreover, the remedies provided, particu
larly reinstatement to employment, are beyond the
scope of relief available in the courts. By section 243,
orders of adjudicators appointed to consider com
plaints of unjust dismissal are final and are not sub
ject to question or review, or even judicial review in
the normal course, in any court.
The exceptions of persons or of complaints not
subject to determination by an adjudicator concern
ing alleged unjust dismissal are six. The persons
excluded are: managers (subsection 167(3)), a person
13 Originally enacted S.C. 1964-65, c. 38, subsequently
included, as amended, as Part III of R.S.C. 1970, c. L-1; now
Part Ill of R.S.C., 1985, c. L-2, as amended.
14 Supra, note 2, at p. 293.
who has not completed twelve consecutive months of
continuous employment by an employer (paragraph
240(1)(a)) subject to section 189 [as am. idem, s. 7]
which provides for continuous employment notwith
standing transfer of responsibilities for federal work
or business from one employer to another, and sub
ject also to regulations that may define absences from
employment that shall be deemed not to interrupt
continuity of employment (subsection 246(2) and
section 245)), and a person who is a member of a
group of employees subject to a collective agreement
(paragraph 240(1)(b)). Complaints that may not be
considered include: those made more than 90 days
from the date on which the complainant was dis
missed (subsection 240(2)), those in respect of a per
son laid off because of lack of work or because of the
discontinuance of a function (paragraph 242(3.1)(a)),
and those in respect of a person where a procedure
for redress has been provided elsewhere in or under
the Code or another statute (paragraph 242(3.1)(b)).
The latter three, complaints excluded from considera
tion, are all incorporated by reference in subsection
240(1). All persons employed in employment subject
to federal legislative jurisdiction, other than those
specifically excluded, have recourse to the proce
dures for dealing with complaints of unjust dismissal.
Over time the scope of the exemptions has been nar
rowed 15 and I conclude that Parliament's intent is to
ensure the availability of these remedial procedures
to employees generally within its legislative jurisdic
tion, subject only to the specific exemptions pro
vided.
The powers of the adjudicator, in procedural and
substantive terms are set out in subsections 242(2),
(3) and (4), the last of these including authority,
where unjust dismissal is found, to order compensa
tion, to reinstate the person in employment and to dc
any other thing that is equitable to require the
employer to do in order to remedy or counteract any
consequence of the dismissal. Particularly in view of
the necessity for understanding appropriate substan-
15 See generally my comments in relation to the legislative
history of the Code in Island Telephone Co. Ltd. v. Canada
(Minister of Labour), September 30, 1991, Court file no. T-
1401-91, at pp. 22-24, not yet reported.
tive relief in the circumstances, it seems evident that
adjudicators appointed to deal with these complaints
generally possess specialized knowledge, understand
ing and experience in relation to labour relations and
to unjust dismissal.
Noting again the decisions of the Court of Appeal
in Lee-Shanok 16 and Bateman 17 holding that the
determination under subsection 167(3) whether a per
son is a manager, to whom the provisions concerning
unjust dismissal are not available, is a question limit
ing an adjudicator's jurisdiction, a question on which
the last word is that of the courts and not the adjudi
cator, it is my view that all other exclusions provided
by subsections 240(1) and (2) and 242(3.1) are mat
ters for determination by an adjudicator which will
only be set aside if there is patently unreasonable
error. I reach that conclusion for two reasons, the
structure of the Code and the procedures set out in
sections 240 to 245.
Section 167 of the Code provides for the general
application of Part III to employees engaged in work
subject to federal legislative jurisdiction, with very
few exceptions. Among these exceptions, subsection
167(3) specifically excludes managers from the
application of Division XIV, the provisions dealing
with unjust dismissal. If all other exemptions were to
be considered in the same way they might well have
been set out in that subsection. But Parliament did
not do that. Rather, the other exceptions are set out in
Division XIV itself. All of the others are specified, or
incorporated by reference, in subsection 242(1). That
is the provision, subject to exceptions, for filing a
complaint. If that complaint, upon investigation, is
not satisfactorily resolved within a reasonable time,
the inspector to whom the complaint was made, on
the request of the complainant, shall report to the
Minister that the endeavour to assist the parties has
not succeeded (subsection 241(3)) and the Minister
may then appoint an adjudicator to hear and adjudi
cate the complaint (subsection 242(1)). While the use
of the word "may" implies discretion, in my view the
16 Supra, note 4.
17 Supra, note 1.
Minister has little discretion, except perhaps in the
most obvious case of an exemption where there is no
dispute about excluding factors; if the purpose of the
provisions is to be served, the complaint will go for
ward to an adjudicator for determination. The Code
provides no grounds for the exercise of discretion by
the Minister to refuse to appoint an adjudicator; for
example, determination of whether the person com
plaining or the complaint itself falls within exclu-
sions under Division XIV is not specifically assigned
to the Minister. If he were to refuse to act, it is my
view that decision would be subject to judicial
review. While the Code does not specifically assign
determination of exclusions to the adjudicator, a
number of them require determinations of fact which
are more suited to decision by the adjudicator with
the procedural powers assigned to him than they are
to decision by the Minister or his representatives. The
process, as earlier noted, is one designed to avoid
civil action in the courts. It would ultimately frustrate
Parliament's intent, in my view, if virtually every
decision of an adjudicator concerning exclusions set
out in Division XIV were to be subject to review for
"correctness", the test for issues limiting the adjudi
cator's jurisdiction. Thus, in my view, the standard
for review for both questions at issue here is whether
the adjudicator's findings interpreting the provisions
of the Code in relation to the complaint by the
respondent were patently unreasonable.
As to the first issue, the interpretation of paragraph
240(1)(b), it is my view that the finding of the adjudi
cator, that Pollard was not excluded by this para
graph, is not patently unreasonable. Indeed, in my
view, that finding is correct, in the event the standard
for review be perceived otherwise than I have found
it. In my view, arbitrator Stanley was correct in inter
preting paragraph 240(1)(b) as relating to the time of
the dismissal complained of, not the time of filing the
complaint, and that there was no collective agreement
in force between the parties at the time Pollard was
dismissed, August 31. Thus, though he may then
have been a member of a group of employees who
comprised a bargaining unit engaged in a lawful
strike, at the time of his dismissal there was no col
lective agreement to which that group of employees
was subject.
The applicant's argument is that the relevant time
for assessing the status of the complainant is the date
of the complaint and that this is consistent with the
scheme of section 240 as a whole. Yet paragraph
240(1)(a), requiring a person complaining of unjust
dismissal to have completed twelve consecutive
months of continuous employment by an employer, is
a requirement that must be measured from the date of
dismissal if it is to have any sensible application.
Moreover, subsection 240(2) provides a time limit for
filing a complaint, specifically 90 days from the date
of the dismissal alleged as unjust.
It seems to me that section 240 can only be inter
preted on the basis of the relevant time being the date
of dismissal. That has been held by an adjudicator to
be the relevant time for determination of the status of
the complainant as a manager.ts That is consistent
with judicial decisions in Lee-Shanok and Bateman,
where the functions of the complainant at the time of
his dismissal were assessed in determining whether
he was a "manager" and thus excluded by subsection
167(3). It is consistent as well with sensible applica
tion of paragraph 242(3.1)(a), excluding considera
tion of a complaint from a person laid off because of
lack of work or the discontinuance of a function, the
relevant time at issue being the date of termination of
the complainant as is clearly implied in Sedpex, Inc.
Moreover, the interpretation urged by the applicant
could lead to anomalous, if not absurd, results that
are inconsistent with the purposes of the Code. A per
son within a bargaining unit subject to a collective
agreement at the time of his dismissal but not at the
time of his complaint would have access to arbitra
tion under the collective agreement and also be free
to complain of unjust dismissal under the Code.
Moreover, the interrelated purposes of Part I of the
18 John B. Macdonald v. Eastern Broadcasters Limited,
unreported, 1985, decision of J. MacPherson, Adjudicator.
Code, to promote collective bargaining, and Part III
of the Code, to provide minimum standards in feder
ally regulated employment, if the relevant date for
paragraph 240(1)(b) were the date of the complaint,
would permit the employer to unilaterally suspend a
collective agreement during a lawful strike and to
discharge employees who then would have no
recourse to arbitration under a collective agreement,
assuming no retroactive application of a subsequent
agreement, or no recourse under section 240.
There are adjudicators' decisions which deal with
this issue though both relate to somewhat different
circumstances. In Bernier v. Capitaine Courrier Cor
poration, 19 dismissal occurred apparently before cer
tification of a union which later negotiated a first col
lective agreement and in Beaudoin v. Cable TV
Inc., 20 dismissal occurred after certification but
before conclusion of a first collective agreement. In
both, the adjudicators concerned respectively con
cluded that paragraph 240(1 )(b) did not preclude con
sideration of the complaint. In Bernier, the adjudica
tor dealt with the argument here raised by Canada
Post that at the time the complaint was tiled, there
was a collective agreement binding employees and
employer, without determining the relevant time for
determination of the complainant's status because the
time of filing was the basis of the employer's objec
tion. The adjudicator found that having been dis
charged before the collective agreement was in effect
and the agreement not being retroactive, the com
plainant was not at the time of his complaint a
member of a group of employees subject to a collec
tive agreement. Counsel for the applicant here distin
guishes both cases from this one because both deal
with situations where a first collective agreement was
negotiated and dismissal occurred during the "freeze
periods" between an application for certification and
certification in the case of Bernier, and between certi
fication and conclusion of the first collective agree
19 Unreported, decision of H. Gagnon, Adjudicator (1986).
20 Unreported, decision of J. Lamoureux, Adjudicator
(1984).
ment in Beaudoin, periods during which the terms
and conditions of employment prevailing prior to
conclusion of a first agreement are preserved, includ
ing implicitly the right to seek redress for unjust dis
missal under the Code. That situation does not prevail
in any interregnum between collective agreements, it
is said, because only the certified bargaining agent
can then deal with the employer on behalf of employ
ees in a bargaining unit and a strike, even when cou
pled with suspension of rights under a prior collective
agreement, does not revive the common law contrac
tual relationship between employees and employer.
As I have noted, common law rights of employees
are not here in issue.
The applicant also argued that in seeking the
advantage of provisions of the subsequent agreement
by initiating grievance proceedings, by filing unfair
labour practice complaints under the Code, and by his
continued association with the bargaining unit and by
his representation by his union, Pollard was a
member of a group of employees subject to a collec
tive agreement at the time his complaint of unjust
dismissal was filed. But having been dismissed, he
was not an employee after August 31, and he could
not, whatever his actions were thereafter, be a
member of a group of employees subject to a collec
tive agreement, until his employment was restored.
Having discharged him, the employer can hardly
claim that Pollard was thereafter a member of the
group of employees subject to the collective agree
ment, which was not retroactive, negotiated after his
dismissal with the bargaining agent acting on behalf
of employees continuing in the bargaining unit.
Thus, I find that the adjudicator's decision on the
first issue raised by Canada Post, the application of
paragraph 240(1)(b), was not patently unreasonable.
Indeed, in my view the result of that determination
was correct.
When I turn to the adjudicator's ruling on the sec
ond issue, the application of paragraph 242(3.1)(b),
in my view his finding, that Pollard was not excluded
because his complaint was not one where a procedure
for redress has been provided otherwise in or under
the Code or any other statute, is not patently unrea
sonable. Indeed, in the circumstances, I believe that
finding is consistent with, or correct in light of, the
facts and the legislative intent of the paragraph in
question.
I do not share the adjudicator's reasons, related to
legislative intent, for that result. The possibility of
future legislative change by Parliament is not a prime
consideration in the interpretation of legislation
which, in accord with section 10 of the Interpretation
Act, R.S.C., 1985, c. I-21, "shall be considered as
always speaking". It is to have meaning in light of
the situation prevailing, including existing legisla
tion, at the time of its interpretation and application.
I agree with the respondent's submissions that
alternative processes urged by the applicant as availa
ble to Pollard under the Code, sections 37 and 94, do
not provide a process to address the issue of unjust
dismissal for alleged misconduct, the basis of the
respondent's complaint and the matter dealt with in
sections 240 to 245 of the Code. Section 37 provides
for complaints by a member against his or her union
in relation to matters included in a collective agree
ment. As I have earlier indicated, this does not pro
vide a procedure for redress against the employer for
alleged unjust dismissal. Nor does section 94 provide
such a procedure. Rather, it concerns complaints con
cerning unfair labour practices defined by statute, all
relating to discriminatory behaviour because oï par
ticipation in union activities. I share the adjudicator's
conclusion that sections 94 and 97 [as am. by S.C.
1991, c. 39, s. 2] do not provide a procedure for
redress against the employer who is found to have
unjustly dismissed an employee.
Counsel for the respondent points to other circum
stances dealt with under the Code, not referred to by
the adjudicator, where dismissal alleged to be unjust
may be redressed, apart from sections 240 to 245, and
thus excluded by paragraph 242(3.1)(b). Where a col
lective agreement has expired prior to the right to
strike being obtained, an employee who has been dis
charged without just cause still retains the right to
have the discharge arbitrated under the terms of the
expired agreement, pursuant to subsection 67(4)
which provides that the mandatory requirement for a
provision in a collective agreement for final settle
ment of differences without stoppage of work
remains in force after expiry of the agreement until
lawful strike action. Another circumstance, it is
urged, is where an employee is discharged for exer
cising a right to refuse unsafe work, in which case a
process for redress of any complaint is provided
under Part II of the Code. Counsel points as well to
the Public Service Staff Relations Act, R.S.C., 1985,
c. P-35, s. 92(1)(b) and Schedule I, Part II [as am. by
SOR/85-361; SOR/86-961; R.S.C., 1985 (3rd Supp.),
c. 18, s. 41; SOR/87-644; R.S.C., 1985 (4th Supp.), c.
7, s. 8; S.C. 1991, c. 6, s. 25, as an example of other
legislation providing for redress, which if applicable
would exclude a complaint under paragraph
242(3.1)(b) of the Code.
These submissions seek to support, aside from sec
tions 37 and 94, an interpretation of the words "a pro
cedure for redress has been provided elsewhere in or
under this or any other Act of Parliament" in para
graph 242(3.1)(b). In my view it is not essential to
finally determine what those words may be deemed
to include. Where no other statutory provision is
found by an adjudicator to provide a procedure for
redress of a complaint of alleged unjust dismissal, the
complaint is not excluded from consideration under
paragraph 242(3.1)(b). That, it seems to me, is con
sistent with the intent of Parliament that the proce
dures for dealing with complaints of unjust dismissal
set out in Division XIV of Part III of the Code be
available for all employees engaged in employment
subject to federal regulation except those specifically
excluded. In the assessment of fact and law involved
in applying those exclusions, the Court should not
intervene to affect an adjudicator's finding unless it
be patently unreasonable.
In my view, the decision of the adjudicator is not
patently unreasonable in its finding that no other pro
cedure for redress of Pollard's complaint of unjust
dismissal exists under the Code or other statute.
Conclusion
At the end of the hearing, as confirmed by advice
from counsel shortly thereafter, it was agreed there
was no need to give consideration to an order in the
nature of a stay of the adjudicator's inquiry pending
decision by this Court. Thus, I do not deal with that
relief originally sought.
In my view, the adjudicator's findings in relation
to both issues, raised as the basis for judicial review
and for the orders here sought, were within his juris
diction, and I am not persuaded that these were
patently unreasonable. Thus, the application on
behalf of the applicant Canada Post is dismissed with
costs. -
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