[1996] 1 F.C. 451
T-642-94
Beothuk Data Systems Limited, Seawatch Division (Applicant)
v.
Douglas Dean and Ted A. Blanchard, an Adjudicator appointed pursuant to the provisions of the Canada Labour Code (Respondents)
T-644-94
Beothuk Data Systems Limited, Seawatch Division (Applicant)
v.
Hugh Davis and Ted A. Blanchard, an Adjudicator appointed pursuant to the provisions of the Canada Labour Code (Respondents)
T-645-94
Beothuk Data Systems Limited, Seawatch Division (Applicant)
v.
Michael Carew and Ted A. Blanchard, an Adjudicator appointed pursuant to the provisions of the Canada Labour Code (Respondents)
Indexed as: Beothuk Data Systems Ltd., Seawatch Division v. Dean (T.D.)
Trial Division, Noël J.—St. John’s, Newfoundland, September 19; Ottawa, October 20, 1995.
Labour relations — Judicial review of Adjudicator’s finding of unjust dismissal — Complainants employed as river guardians three months each year for many years — Canada Labour Code, s. 240(1), permitting person who has completed twelve consecutive months of continuous employment and not subject to collective agreement to make complaint of unjust dismissal — As conditions in both ss. 240(1) and 242(3.1) must be present before adjudicator satisfied complaint properly before him, both inquiries open to Adjudicator — Adjudicator erred in holding pattern of employment giving rise to right of recall “employment” within s. 240(1) — Adjudicators’ decisions seasonal employment meeting twelve consecutive months of continuous employment test offends s. 240(1) — Essential feature of employment, i.e. performance of work for salary, wages, cannot be ignored — Use of “consecutive”, “continuous” suggesting provision intended to measure employment characterized by performance of work, not right of recall — Adjudicator lacking jurisdiction.
Constitutional law — Distribution of powers — Judicial review of Adjudicator’s finding of unjust dismissal — Complainants employed as river guardians three months each year for many years by provincially incorporated company — Canada Labour Code, s. 167 providing for appointment of adjudicator to determine unjust dismissal complaints applies to employment in or in connection with operation of “federal work, undertaking or business” — “Federal work, undertaking or business” defined as within legislative authority of Parliament — Federal power under Constitution Act, 1867, s. 91(12) (Sea Coast and Inland Fisheries) concerned with protection, preservation of fisheries as public resource — Fisheries Act describing guardians’ powers, scope of work — Parliament choosing guardians as agents to supervise, enforce legislative scheme of Fisheries Act without which objectives of protection, preservation of fisheries not achieved — Work of river guardians “vital”, “essential”, “integral” to core federal undertaking — Sufficient to import federal jurisdiction over their labour relations.
Construction of statutes — Whether employment three months each year for many years within Canada Labour Code, s. 240(1)(a) permitting person who has completed twelve consecutive months of continuous employment to file unjust dismissal complaint — If words of English text can bear several meanings, French only one, shared meaning presumed to be true meaning in absence of reasons to reject it — Use of “travailler” (to work) in French text indicating not intending “employment relationships” — French text requiring person to have “completed” twelve months of uninterrupted work.
This was an application for judicial review of an Adjudicator’s decision that the respondents (Carew, Dean and Davis) had been unjustly dismissed from their employment as river guardians during the salmon angling season (usually ten to twelve weeks from June 15 to September 15). Originally employed by the Department of Fisheries and Oceans (DFO), in 1984 they began working for a provincially incorporated company, which had secured the contract to perform certain functions required to be carried out under the Fisheries Act and Regulations. Guardians are designated pursuant to the Fisheries Act and their powers are set out therein. At the end of each season the record of employment indicated that the reason for its issuance was “shortage of work” and that the expected date of recall was “unknown”. The complainants expected that they would be recalled at the beginning of each angling season. They never declined an offer of recall. The Adjudicator held that the job of river guardian was an integral part of a federal fisheries program dealing with fishing in inland waters. He concluded that there was a consistent employment pattern and that since there was no interruption in their seasonal pattern of work over the entire period of their employment, all three complainants were employed on a continuous seasonal basis, in the same capacity, for a period of over ten years.
Canada Labour Code, section 167 provides that Part III, including those provisions allowing the appointment of an adjudicator to determine a complaint of unjust dismissal (sections 240 to 243), applies to employment in or in connection with the operation of any federal work, undertaking or business. “Federal work, undertaking or business” is defined in section 2 as any work, undertaking or business that is within the legislative authority of Parliament. Subsection 240(1) provides that, subject to subsections (2) and 242(3.1), any person (a) who has completed twelve consecutive months of continuous employment by an employer, and (b) who is not subject to a collective agreement, may complain in writing of unjust dismissal. Subsection 242(1) permits the Minister to refer the matter to an adjudicator. Subsection 242(3) provides that, subject to subsection (3.1), an adjudicator shall decide whether the dismissal was unjust. Subsection 242(3.1) provides that no complaint shall be considered by an adjudicator where a person has been laid off because of lack of work or a procedure for redress has been provided elsewhere.
As a preliminary objection, the respondents argued that objections based on jurisdictional grounds in subsection 240(1) could not be raised once the Minister accepted a complaint as validly filed and appointed an adjudicator.
The issues were: (1) whether the applicant could question the Adjudicator’s jurisdiction; (2) whether the respondents were employed in or in connection with any federal work, undertaking or business; and, (3) whether the respondents had completed twelve consecutive months of continuous employment.
Held, the application should be allowed.
(1) That an adjudicator is explicitly required to consider the grounds embodied in subsection 242(3.1), whereas no such obligation exists with respect to the grounds set out in subsection 240(1) does not suggest a legislative intent that an adjudicator be prevented from considering grounds of invalidity other than those prescribed by subsection 242(3.1). As the filing of a valid complaint is at the root of the Adjudicator’s jurisdiction, and as the conditions embodied in both subsections 240(1) and 242(3.1) must be present before an adjudicator can be satisfied that a complaint is properly before him, both inquiries were open to the Adjudicator in ascertaining the existence of his jurisdiction.
(2) The Adjudicator properly concluded that the work of the river guardians is essential to the enforcement of the provisions of the Fisheries Act and it is carried out under the supervision of the Department of Fisheries. Federal power under Constitution Act, 1867, subsection 91(12) (Sea Coast and Inland Fisheries) is concerned with “the protection and preservation of fisheries as a public resource”. The provisions in the Fisheries Act describing the powers of fishery guardians as well as the scope of their work provide ample evidence that fishery officers and guardians are the agents chosen by Parliament to supervise and enforce the legislative scheme of the Fisheries Act, and without which the objectives of protection and preservation of fisheries as a public resource could not be achieved. The work of the river guardians is “vital”, “essential” or “integral” to the core federal undertaking. This is sufficient to import federal jurisdiction over the activities of the river guardians and over the regulation of their employer-employee relationships. That the work of the river guardians was contracted out to a provincially incorporated company did not mean that it fell under provincial jurisdiction, particularly given the supervision and control exercised by the Department of Fisheries and Oceans.
(3) The use of the verb “travailler” (to work) in the French text leaves little room for the claim that paragraph 240(1)(a) could relate to “employment relationships” of a duration of twelve months. In fact, the French text requires the person to have “completed” twelve months of uninterrupted work. If the words in the English text are uncertain in scope and may have several meanings while the French text can bear only one of these meanings, this meaning is the shared meaning and is presumed to be the true meaning in the absence of any reasons to reject it. The shared meaning herein does not lead to an unacceptable result, repugnancy or a result which is contrary to the true intent. Instead, it provides a degree of precision not found in the English text. Applying the shared meaning rule herein, it was not open to the Adjudicator to conclude that the respondents had been working without interruption for the past twelve months as the French text of subsection 240(1) contemplates.
Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C. 815(C.A.) stands for the limited proposition that a brief stoppage of work each year in the context of an otherwise ongoing and continuous employment does not necessarily bring that employment to an end. From that decision adjudicators gradually came to hold that performance of work for salary or wages was not contemplated or required by the words “twelve consecutive months of continuous employment”. So long as a lingering right of recall stemming from a long-established pattern of temporary employment existed, the employment continued. Seasonal employment limited to a three-month period came to be considered as employment which could meet the twelve consecutive months of continuous employment test. This result offends the wording of subsection 240(1) and arises from a misapprehension of the ratio in Pioneer Grain. Nothing in subsection 240(1) suggests that the essential feature of “employment”, namely the performance of work for a salary or wages, can be ignored in assessing its existence. Use of “consecutive” and “continuous” strongly suggests that it is employment characterized by the ongoing performance of work that is meant to be measured by the provision, and not a lingering right of recall stemming from a pattern of prior employment. A very clear expression of intent would be required to give to the word “employment” a meaning which excludes therefrom its fundamental constitutive feature. The purposive interpretation adopted by the Adjudicator is based on the continued existence of a right stemming from a pattern of prior employment rather than on the continued existence of the employment itself. As such it offends the wording of subsection 240(1). The Adjudicator erred when he assumed jurisdiction to hear the three complaints on that basis. Section 29 of the Canada Labour Standards Regulations, which was enacted after the period relevant to the present matter, provides that absence from employment by reason of a lay-off does not interrupt the continuity of an employment. That such a provision was considered necessary strongly suggests that such an absence did in fact interrupt the continuity of employment.
STATUTES AND REGULATIONS JUDICIALLY CONSIDERED
An Act to amend the Canada Labour Code, S.C. 1977-78, c. 27.
An Act to amend the Canada Labour Code and the Financial Administration Act, R.S.C., 1985 (1st Supp.), c. 9.
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2 “federal work, undertaking or business” (as am. by S.C. 1990, c. 44, s. 17), 16, 60, 167 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 5; 1993, c. 38, s. 90), 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 241, 242 (as am. idem , s. 16), 243.
Canada Labour Standards Regulations, C.R.C., c. 986, s. 29 (as am. by SOR/91-461, s. 29).
Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92.
Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).
Fisheries Act, R.S.C., 1985, c. F-14, ss. 5 (as am. by S.C. 1991, c. 1, s. 2), 43, 49 (as am. idem, s. 13), 50, 51 (as am. idem, s. 15), 52.
Interpretation Act, R.S.C., 1985, c. I-21, s. 44.
Statute Revision Act, S.C. 1974-75-76, c. 20, s. 6
CASES JUDICIALLY CONSIDERED
APPLIED:
Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (1993), 109 D.L.R. (4th) 272; 18 Admin. L.R. (2d) 67; 1 C.C.E.L. (2d) 75; 94 CLLC 14,006; 161 N.R. 66 (C.A.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Northern Telecom Ltd. v. Communications Workers of Canada, [1980] 1 S.C.R. 115; (1979), 98 D.L.R. (3d) 1; 79 CLLC 14,211; 28 N.R. 107; Letter Carrier’s Union of Canada v. Canadian Union of Postal Workers et al., [1975] 1 S.C.R. 178; (1973), 40 D.L.R. (3d) 105; [1974] 1 W.W.R. 452; 73 CLLC 14,190; Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; (1977), 76 D.L.R. (3d) 85; 77 CLLC 14,073; 14 N.R. 72; 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; 40 B.C.L.R. (2d) 1; 40 Admin. L.R. 181; 89 CLLC 14,050; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Sagkeeng Alcohol Rehab Centre Inc. v. Abraham, [1994] 3 F.C. 449 (1994), 79 F.T.R. 53 (T.D.); Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] 3 F.C. 376 (1994), 75 F.T.R. 246 (T.D.); Interprovincial Co-operatives Ltd. et al. v. The Queen, [1976] 1 S.C.R. 477; [1975] 5 W.W.R. 382; (1975), 53 D.L.R. (3d) 321; 4 N.R. 231; Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (1995), 185 N.R. 107 (C.A.).
CONSIDERED:
Linda Webb and David Webb v. R.A. Howard Bus Service Limited, Adjudication No. 839-840, Adjudicator Willes, February 1988; Eskasoni School Board et al. v. MacIsaac et al. (1986), 86 CLLC 12,247; 69 N.R. 315 (F.C.A.); Deltonic Trading Corp. v. Minister of National Revenue (Customs and Excise) (1990), 113 N.R. 7; 3 T.C.T. 5173 (F.C.A.); Canada (Attorney-General) v. Jouan (1995), 122 D.L.R. (4th) 347; 179 N.R. 127 (F.C.A.); Machtinger v. HOJ Industries Ltd., [1992] 1 S.C.R. 986; (1992), 91 D.L.R. (4th) 491; 40 C.C.E.L. 1; 92 CLLC 14,022; 136 N.R. 40; 53 O.A.C. 200; Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C. 815 (1981), 123 D.L.R. (3d) 48; 36 N.R. 395 (C.A.); Pierre Mongrain v. Pelee Island Transportation, Adjudicator Abramowitz, judgment dated 12/8/86; Re Beaudril v. Preignitz, Adjudicator J. W. Samuels, judgment dated 27/10/86; Ghislain Simard v. Cablevision Baie St-Paul Inc., Adjudicator Tousignant, judgment dated 27/9/89.
REFERRED TO:
Fowler v. The Queen, [1980] 2 S.C.R. 213; [1980] 5 W.W.R. 511; (1980), 113 D.L.R. (3d) 513; 53 C.C.C. (2d) 97; 9 C.E.L.R. 115; 32 N.R. 230; Food Machinery Corpn. v. Registrar of Trade Marks, [1946] Ex. C.R. 266; [1946] 2 D.L.R. 258; (1944), 5 C.P.R. 76; 5 Fox Pat.C. 150; R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865; [1979] C.T.C. 71; (1979), 79 DTC 5068; 25 N.R. 361.
AUTHORS CITED
Christie, Innis, et al. Employment Law in Canada, 2nd ed., Toronto: Butterworths, 1993.
Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994.
APPLICATION for judicial review of the Adjudicator’s finding of unjust dismissal of the respondents who had been employed as river guardians three months a year for many years. Application allowed. The Adjudicator lacked jurisdiction in that respondents had not “completed twelve consecutive months of continuous employment” within the meaning of Canada Labour Code, subsection 240(1).
COUNSEL:
Mark D. Murray for applicant.
Mark Kennedy for respondents.
SOLICITORS:
Martin, Whalen, Hennebury & Stamp, St. John’s, Newfoundland for applicant.
French Browne, St. John’s, Newfoundland for respondents.
The following are the reasons for order rendered in English by
Noël J.: This is an application for judicial review under sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act [R.S.C., 1985, c. F-7] of the decision of an adjudicator (hereinafter, the Adjudicator) appointed pursuant to Part III of the Canada Labour Code.[1] In his decision dated April 26 1994, the Adjudicator found that Mr. Michael Carew, Mr. Douglas Dean, and Mr. Hugh Davis (hereinafter, the respondents) had been unjustly dismissed from their employment with the applicant, Beothuk Data Systems Limited, Seawatch Division (hereinafter, the applicant or BDS). The Adjudicator ordered BDS to reinstate the respondents to their employment with no loss of pay or benefits and also ordered BDS to pay the respondents’ reasonable legal expenses. The applicant now seeks an order quashing and setting aside the Adjudicator’s decision.
1. FACTS
A brief summary of events leading to the adjudication is found in the Adjudicator’s report:[2]
This adjudication arises out of three complaints of alleged unjust dismissal filed with Labour Canada under Section 240 of the Canada Labour Code, Part III, Div. XIV. The complaints were laid by Mr. Michael Carew, Mr. Douglas Dean and Mr. Hugh Davis, each alleging unjust dismissal from employment with ... B.D.S. Mr. Carew and Mr. Dean were dismissed on 27 July 1990. Mr. Davis was not rehired by B.D.S. at the beginning of the 1991 season when it opened on 22 June, 1991. Mr. Davis alleges he was thereby unjustly dismissed on 22 June, 1991.
All three complainants ... had been employed with B.D.S. as River Guardians on a continuous seasonal basis since 1984. Prior to 1984 River Guardians were hired directly by the Department of Fisheries and Oceans (hereinafter referred to as D.F.O.), Mr. Davis and Mr. Dean began employment as River Guardians with the D.F.O. in 1978; Mr. Carew began in 1980.
In 1984 D.F.O. started contracting out certain functions required to be carried out under The Fisheries Act and Regulations which included the work performed by River Guardians. In accordance with the usual system of tendering and bidding, executed through Supply and Services Canada on behalf of D.F.O., Beothuk Data Systems Ltd. succeeded in securing the contract to perform these functions. Thus in 1984 Mr. Davis, Mr. Dean and Mr. Carew began employment as River Guardians with B.D.S. Since there was no interruption in their seasonal pattern of work over the entire period of their employment as River Guardians, first with the D.F.O. and then with B.D.S., all three complainants were employed on a continuous seasonal basis, in the same capacity, for a period of over ten years.
Seasonal employment of River Guardians coincides with the dates determined each year for the beginning of the salmon angling season, when salmon begin their annual migration through rivers into inland waters. Annual employment usually lasts ten to twelve weeks during the period 15 June to 15 September.
Legislative authority for appointment of River Guardians is contained in Section 5 of The Fisheries Act, R.S. c. F14. Administrative guidelines for the provision of services of trained guardians is contained in the contract between B.D.S. and Supply and Services Canada on behalf of D.F.O. Further elaboration on the requirement to appoint Guardians and an outline of their scope of work is contained in Appendix A, “Statement of Requirements” attached to and forming part of the contract, in particular paragraph 5 of that Appendix.
The complainants experienced difficulty and time delays in making their complaints. They went first to Labour Canada where they were advised that their employment was under Provincial Jurisdiction. They then filed their complaints with the Provincial Department of Employment and Labour Relations but were advised later by an official of that Department that their employment was under Federal Jurisdiction. The complainants then sought legal advice whereupon a solicitor acting for all three complainants advised Labour Canada that they intended to pursue remedies through Part III of the Canada Labour Code. By letter dated 9 July 1991 the complainants were notified that Labour Canada was assuming jurisdiction. An official of Labour Canada was appointed to assist them to settle their complaints. After the procedures provided under Section 241 of the Canada Labour Code, Part III, had been exhausted and they had not reached a settlement, the parties were informed by letter dated 4 June 1992 that the Minister of Labour had appointed an adjudicator to hear their complaints.
2. ISSUES
The applicant BDS had advanced a variety of grounds in support of its application for judicial review. However, during the course of the hearing before me, counsel for the applicant chose to proceed only with respect to the following two:
1. The Adjudicator acted without jurisdiction, beyond its jurisdiction and refused to exercise its jurisdiction, and erred in law by finding that each of the respondents was employed in or in connection with any federal work, undertaking or business or the operation thereof other than a work, undertaking or business of a local or private nature, in the Yukon Territory or the Northwest Territories, pursuant to section 167 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 5; 1993, c. 38, s. 90] of the Canada Labour Code, R.S.C., 1985, c. L-2.
2. The Adjudicator acted without jurisdiction, beyond its jurisdiction and refused to exercise its jurisdiction, and erred in law by finding that each of the respondents had completed twelve consecutive months of continuous employment with the applicant pursuant to subsection 240(1) [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15] of the Canada Labour Code.
3. APPLICABLE LEGISLATION
Sections 240 to 242 [as am. idem, s. 16] of the Canada Labour Code set out the process by which a complaint for unjust dismissal may be referred to an adjudicator for determination. Section 243 is a finality clause applying to the decision of the adjudicator. Section 167 sets out the classes of employment to which Part III of the Canada Labour Code, including sections 240 to 243, applies. These provisions as well as section 2 [as am. by S.C. 1990, c. 44, s. 17] of the Code are set out below.
2. In this Act,
“federal work, undertaking or business” means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
(d) a ferry between any province and any other province or between any province and any country other than Canada,
(e) aerodromes, aircraft, or a line of air transportation,
(f) a radio broadcasting station,
(g) a bank,
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,
(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and
(j) a work, undertaking or activity in respect of which federal laws within the meaning of the Canadian Laws Offshore Application Act apply pursuant to that Act and any regulations made under that Act.
…
167. (1) This Part applies
(a) to employment in or in connection with the operation of any federal work, undertaking or business, other than a work, undertaking or business of a local or private nature, in the Yukon Territory or the Northwest Territories;
(b) to and in respect of employees who are employed in or in connection with any federal work, undertaking or business described in paragraph (a);
…
240. (1) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous 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.
(3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.
241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.
(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint 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 subsection 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 considers 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 provided 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 present 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 renumeration 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 consequence of the dismissal.
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 warranto or otherwise, to question, review, prohibit, or restrain an adjudicator in any proceedings of the adjudicator under section 242.
4. PRELIMINARY OBJECTION
At the hearing, the respondents argued for the first time that it was no longer open to the applicant to question the jurisdiction of the Adjudicator to hear the complaint on the two grounds which they have raised. Specifically it was argued that the only issues of jurisdiction which the Adjudicator is explicitly empowered to deal with are those embodied in subsection 242(3.1). Objections based on the other jurisdictional grounds, namely those embodied in subsection 240(1), were said to fall within the jurisdiction of the Minister and not that of the Adjudicator because they go to the validity of the complaint. The respondents argued that once the Minister accepts a complaint as having been validly filed and appoints an adjudicator, objections based on the propriety of the complaint can no longer be raised.
I disagree. First, I note that by the opening words of subsection 240(1), the grounds embodied in subsection 242(3.1) must also be present before a complaint can be said to have been validly filed. More importantly, a validly filed complaint is a condition precedent to the exercise of an adjudicator’s jurisdiction under section 242. As such, it is always open to a party to question the legislative authority of the adjudicator by reference to the propriety of the complaint with respect to which he or she has been appointed. Because the matter goes to jurisdiction, it may be raised at any time, and I can see nothing in the statute which would prevent an adjudicator from declining jurisdiction on the ground that the complaint before him was not validly made. The fact that an adjudicator is explicitly required to consider the grounds embodied in subsection 242(3.1) whereas no such obligation exists with respect to the grounds embodied in subsection 240(1) is of interest. However, it does not suggest a legislative intent that an adjudicator be prevented from considering grounds of invalidity other than those prescribed by subsection 242(3.1).
I note as well that in Canada Post Corp. v. Pollard,[3] a decision which is more extensively dealt with below, the Court of Appeal considered the grounds reflected in paragraphs 240(1)(b) and 242(3.1)(b) as both coming within the jurisdiction of the adjudicator. While the objection now raised was not before the Court of Appeal, the decision is premised on the proposition that an adjudicator may not hear a complaint unless it has been validly filed, and specifically contemplates that in assessing the validity of a complaint, the adjudicator may inquire into the existence or absence of the grounds embodied in subsection 240(1) as well as those embodied in subsection 242(3.1).
As the filing of a valid complaint is at the root of the Adjudicator’s jurisdiction, and as the conditions embodied in both subsections 240(1) and 242(3.1) must be present before an adjudicator can be satisfied that a complaint is properly before him, I must conclude that both inquiries were open to the Adjudicator in ascertaining the existence of his jurisdiction. The preliminary objection of the respondents is accordingly dismissed.
5. THE STANDARD OF REVIEW
The procedure employed by courts in the judicial review of the decisions of administrative tribunals was set out by Cory J. in Canada (Attorney General) v. Public Service Alliance of Canada:[4]
In undertaking the review courts must ensure first that the board has acted within its jurisdiction by following the rules of procedural fairness, second, that it acted within the bounds of the jurisdiction conferred upon it by its empowering statute, and third, that the decision it reached when acting within its jurisdiction was not patently unreasonable. On this last issue, courts should accord substantial deference to administrative tribunals, particularly when composed of experts operating in a sensitive area.
In U.E.S., Local 298 v. Bibeault, Beetz J. set out the two circumstances in which an administrative tribunal would exceed its jurisdiction because of error:[5]
1. if the question of law at issue is within the tribunal’s jurisdiction, it will only exceed its jurisdiction if it errs in a patently unreasonable manner; a tribunal which is competent to answer a question may make errors in so doing without being subject to judicial review;
2. if however the question at issue concerns a legislative provision limiting the tribunal’s powers, a mere error will cause it to lose jurisdiction and subject the tribunal to judicial review.
In either of these two cases, the first stage in the pragmatic or functional analysis proposed by Beetz J. is to determine the tribunal’s jurisdiction. This involves asking the question: “Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?”.[6] In determining jurisdiction, 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”.[7]
The decision of an adjudicator appointed under the Canada Labour Code is protected by a finality clause.[8] The requirement that an administrative tribunal be correct in its interpretation of a jurisdiction-conferring statutory provision applies even in the presence of a privative clause.[9]
Ground 1: interpretation by the Adjudicator of section 167 of the Canada Labour Code
Section 167 specifies that Part III of the Canada Labour Code, including those provisions allowing the appointment of an adjudicator to determine a complaint of unjust dismissal, applies to employment in or in connection with the operation of any federal work, undertaking or business and in respect of employees who are employed in or in connection with any such federal work, undertaking or business. A federal work, undertaking or business is defined in section 2 as any work, undertaking or business that is within the legislative authority of Parliament. Section 2 includes a non-exhaustive enumeration of such works, similar to that found in section 91 of the Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]. The applicant’s contention is that the complainants are not employed in connection with a federal work in accordance with section 167, that this matter falls under the provincial jurisdiction over labour relations and that as a result, the Adjudicator was without jurisdiction to decide this matter.
The standard of review to be applied to decisions of tribunals on constitutional matters is discussed in the decision of the Supreme Court of Canada in Cuddy Chicks Ltd. v. Ontario (Labour Relations Board).[10] The Court decided that the Ontario Labour Relations Board has the authority to rule on the constitutionality of provisions in its enabling statute. In commenting on the important role of tribunals in constitutional determinations, La Forest J. held that:[11]
The informed view of the Board, as manifested in a sensitivity to relevant facts and an ability to compile a cogent record, is also of invaluable assistance. This is evidenced clearly by the weight which the judiciary has given the factual record provided by labour boards in division of powers cases ….
That having been said, the jurisdiction of the Board is limited in at least one crucial respect: it can expect no curial deference with respect to constitutional decisions. [Emphasis is mine.]
Thus, the Cuddy Chicks decision indicates that the appropriate standard of judicial review of the determination by an adjudicator of constitutional questions is that of correctness. In Sagkeeng Alcohol Rehab Centre Inc. v. Abraham,[12] the Federal Court, Trial Division reviewed the decision of an adjudicator appointed under the Canada Labour Code to the effect that he had jurisdiction to hear the respondents’ complaints of unjust dismissal. The applicant alcohol rehabilitation centre argued that the adjudicator had no jurisdiction to hear the matter because labour relations were under provincial jurisdiction. In addition, the applicant argued that the adjudicator was barred by paragraph 242(3.1)(b) of the Canada Labour Code from considering the complaint because another procedure for redress existed for the complainant. Rothstein J. considered whether or not the decision of the adjudicator was open to judicial review and came to the following conclusion:[13]
On its face, section 243 would seem to preclude judicial review of the adjudicator’s decision. However, as was indicated in Canada Post Corp. v. Pollard, [1994] 1 F.C. 652(C.A.), at page 659, and in Alberta Wheat Pool v. Jacula (1992), 58 F.T.R. 277 (F.C.T.D.), at pages 278-279, following National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324, at pages 1369-1370, jurisdictional issues are open to judicial review despite the existence of a privative clause. As the issues before me relate to the adjudicator’s jurisdiction to hear and adjudicate the complaints of the respondents, section 243 does not preclude this application for judicial review. [Emphasis is mine.]
The decision of an adjudicator on a similar division of powers issue was considered by the Federal Court, Trial Division in Norway House Indian Band v. Canada (Adjudicator, Labour Code)[14] Muldoon J. held that the adjudicator’s interpretation of section 167 of the Canada Labour Code, and specifically of the term “federal work, undertaking or business” was an issue relating to statutory jurisdiction, and subject to judicial review on a correctness standard:
The standard of correctness for founding the Adjudicator’s jurisdiction means simply that the Adjudicator must not make any error in exercising the powers conferred by and under Division XIV. It is presumed that Parliament does not will the exceeding of those carefully crafted powers (and limitations) and that its privative clauses cannot have protection of such excesses as their purpose.
The Adjudicator’s interpretation of section 167 of the Canada Labour Code must thus be correct to be upheld on judicial review.
Ground 2: interpretation by the Adjudicator of paragraph 240(1)(a) of the Canada Labour Code
Subsection 240(1) specifies three prerequisites for a person to be eligible to make a complaint of unjust dismissal to an inspector. The person must have completed twelve consecutive months of continuous employment, must not be a member of a group of employees subject to a collective agreement and finally, must have been dismissed. Subsection 242(3.1) specifies that even if these prerequisites are satisfied, an adjudicator may not consider the complaint of a person where that person has been laid off because of lack of work or because of the discontinuance of a function or if a procedure for redress has been provided elsewhere in or under the Canada Labour Code or any other Act of Parliament.
In Canada Post Corp. v. Pollard, the Federal Court of Appeal considered an application for judicial review of an adjudicator’s interpretation of paragraphs 240(1)(b) and 242(3.1)(b) of the Canada Labour Code.[15] The Court applied the functional analysis proposed in Bibeault to decide whether or not Parliament intended the question of the interpretation of this provision to be within the jurisdiction conferred on the tribunal. The Court noted that unlike members of the Canada Labour Relations Board (CLRB), adjudicators are appointed on an ad hoc basis[16] and consider complaints made by a limited class of employees[17] with respect to the single issue of unjust dismissal.[18] In addition, adjudicators are given fewer powers under the Canada Labour Code than are arbitrators or members of the CLRB.[19] Finally, the Court found that subsection 242(3.1) was couched in terms “[n]o complaint shall be considered by an adjudicator” that clearly limited the jurisdiction of the adjudicator. The interrelationship of subsection 240(1) with subsection 242(3.1), as expressed by the words “[s]ubject to subsection ... 242(3.1)” in subsection 240(1) invited the Court to consider them as both limiting the adjudicator’s jurisdiction. Décary J.A. concluded:[20]
After considering what it is the Adjudicator is called upon to decide in the present case, his limited area of expertise, the wording and interrelationship of the enactments at issue, the absence of specific powers to deal with the question when compared to other decision-makers under the Code and notwithstanding the privative clause, I am unable to find a legislative intent to entrust the Adjudicator with the jurisdiction to determine virtually unchecked whether the complainant was amongst those entitled by Parliament under paragraphs 240(1)(b) and 242(3.1)(b) to make a complaint.
…
... I have come to the conclusion that the appropriate test for judicial review ... is that of correctness.
In the recent decision of Byers Transport Ltd. v. Kosanovich, the Federal Court of Appeal reiterated that the appropriate standard of review of the interpretation by an adjudicator of paragraphs 242(3.1)(a) and 242(3.1)(b) was that of correctness.[21]
Paragraph 240(1)(a), like paragraph 240(1)(b), sets out a statutory prerequisite which must be met before an adjudicator can be appointed under the Canada Labour Code to review the lawfulness of a discharge. Only employees having completed twelve consecutive months of continuous employment and fulfilling the other eligibility criteria specified by the Canada Labour Code, including paragraph 240(1)(b), may make a written complaint pursuant to section 240 which can then be referred to an adjudicator under subsection 242(1). It is therefore apparent that the reasoning applied to paragraph 240(1)(b) by the Court of Appeal in Pollard also extends and is applicable to paragraph 240(1)(a). It follows that an adjudicator must correctly interpret the meaning of “twelve continuous months of employment” in relation to the complainant before embarking on its inquiry into whether the dismissal was unjust.
6. SUBSTANTIVE REVIEW
Was the Adjudicator correct in finding that the alleged dismissal of river guardians was a matter falling under federal jurisdiction?
In essence, the applicant contends that the complainant river guardians are not “employed in or in connection with any federal work, undertaking or business” as specified in section 167 of the Canada Labour Code. Rather, the applicant asserts that the complainants are employed with local works and undertakings, and that jurisdiction over their employment activity does not come under the legislative authority of the Parliament of Canada, but under that of the province of Newfoundland pursuant to subsection 92(10) of the Constitution Act, 1867.[22] The position taken by the complainants and that was eventually accepted by the Adjudicator is that the work of the river guardians is tied closely to the federal head of power over sea coast and inland fisheries, which is under the exclusive legislative authority of the Parliament of Canada pursuant to subsection 91(12) of the Constitution Act, 1867. As a result, the complainants’ employment falls within federal jurisdiction.
The principles required to examine this question were summarized by Dickson J. [as he then was] in Northern Telecom Ltd. v. Communications Workers of Canada:[23]
(1) Parliament has no authority over labour relations as such nor over the terms of a contract of employment; exclusive provincial competence is the rule.
(2) By way of exception, however, Parliament may assert exclusive jurisdiction over these matters if it is shown that such jurisdiction is an integral part of its primary competence over some other single federal subject.
(3) Primary federal competence over a given subject can prevent the application of provincial law relating to labour relations and the conditions of employment but only if it is demonstrated that federal authority over these matters is an integral element of such federal competence.
(4) Thus, the regulation of wages to be paid by an undertaking, service or business, and the regulation of its labour relations, being related to an integral part of the operation of the undertaking, service or business, are removed from provincial jurisdiction and immune from the effect of provincial law if the undertaking, service or business is a federal one.
(5) The question whether an undertaking, service or business is a federal one depends on the nature of its operation.
(6) In order to determine the nature of the operation, one must look at the normal or habitual activities of the business as those of a “going concern”, without regard for exceptional or causal factors; otherwise, the Constitution could not be applied with any degree of continuity and regularity.
In addition to setting out these broad principles, the Court adopted a procedure by which such jurisdictional issues are to be resolved:[24]
First, one must begin with the operation which is at the core of the federal undertaking. Then the courts look at the particular subsidiary operation engaged in by the employees in question. The court must then arrive at a judgment as to the relationship of that operation to the core federal undertaking, the necessary relationship being variously characterized as “vital”, “essential” or “integral”.
The core of a federal undertaking in relation to sea coast and inland fisheries must be grounded in the jurisdiction granted to the Parliament of Canada under subsection 91(12) of the Constitution Act, 1867. Federal power under subsection 91(12) was described by Laskin C.J. in Interprovincial Co-operatives Ltd. et al. v. The Queen as being concerned with “the protection and preservation of fisheries as a public resource, concerned to monitor or regulate undue or injurious exploitation, regardless of who the owner may be, and even in suppression of an owner’s right of utilization”.[25] This appears to accord with the purposes of the Fisheries Act, section 5 [as am. by S.C. 1991, c. 1, s. 2] of which provides for the appointment of river guardians.[26] These purposes may be gleaned from section 43 of the Fisheries Act which reads in part:
43. The Governor in Council may make regulations for carrying out the purposes and provisions of this Act and in particular, but without restricting the generality of the foregoing, may make regulations
(a) for the proper management and control of the sea-coast and inland fisheries;
(b) respecting the conservation and protection of fish;
(c) respecting the catching, loading, landing, handling, transporting, possession and disposal of fish;
(d) respecting the operation of fishing vessels;
(e) respecting the use of fishing gear and equipment;
(f) respecting the issue, suspension and cancellation of licences and leases;
(g) respecting the terms and conditions under which a licence and lease may be issued;
(h) respecting the obstruction and pollution of any waters frequented by fish;
(i) respecting the conservation and protection of spawning grounds; ….
Guardians are designated pursuant to section 5 of the Fisheries Act:
5. (1) The Minister may designate any persons or classes of persons as fishery officers or fishery guardians for the purposes of this Act and may limit in any manner the Minister considers appropriate the powers that a fishery officer or fishery guardian may exercise under this Act or any other Act of Parliament.
(2) Each fishery officer and fishery guardian shall be provided with a certificate in a form the Minister considers appropriate certifying their designation as such and, where the powers of a fishery officer or fishery guardian are limited pursuant to subsection (1), specifying the powers that the officer or guardian may exercise under this Act or any other Act of Parliament.
(3) On entering any place under this Act or any other Act of Parliament, a fishery officer or fishery guardian shall, on request, show the certificate of designation to the person in charge of the place.
The powers of fishery guardians are set out in sections 49 [as am. idem, s. 13], 50, 51 and 52 of the Fisheries Act. Briefly, section 49 gives fishery guardians extensive powers of inspection including:
—the permission to enter and inspect any place in which the guardian believes on reasonable grounds there is any work or undertaking or any fish or other thing in respect of which the Act or the regulations apply;
—the permission to open any container that the guardian believes on reasonable grounds contains any fish or other thing in respect of which the Act or the regulations apply;
—the permission to examine any fish or other thing that the guardian finds;
—the permission to conduct any tests or analyses and take any measurements; and
—the permission to require any person to produce for examination or copying any records, books of account or other documents that the guardian believes on reasonable grounds contain information that is relevant to the administration of the Act or the regulations.
Section 50 provides the guardian with powers of arrest without a warrant of persons the guardian believes, on reasonable grounds, have committed an offence under the Act or regulations. Section 51 allows guardians to seize vessels, vehicles, fish or other things that the guardian believes on reasonable grounds were obtained by or used in the commission of an offence under the Act. Section 52 allows fishery guardians to enter on and pass through or over private property in the discharge of their duties.
Additional information regarding the activities or operation engaged in by the river guardians can be found in an outline of the river guardians’ scope of work. The outline is contained in Appendix A “Statement of Requirements” attached to and forming part of the contract between BDS and Supply and Services Canada on behalf of the Department of Fisheries and Oceans for the provision of services of trained river guardians (hereinafter the Contract).[27] The relevant paragraph is reproduced below:
5. Guardians Scope of Work
Guardians are required to be familiar with work in the areas and locations designated by the Department of Fisheries and Oceans for the purpose of collecting biological, technical and statistical data, enforcing applicable Fishery Acts and Regulations and providing a conspicuous presence. The tasks to be performed by the Guardians will include, without being restricted to, the following:
— enforcing Fisheries Acts and Regulations as they pertain to fishing in Coastal and Inland waters, with particular emphasis on seasons, catches and gear restrictions, and reporting requirements of catch and effort limitations;
— data to be collected for enforcement/biological purposes includes total catch, composition of catch, fishing effort, number of sets, catch per set, type of gear used, date of catch, location of each individual catch and other technical observations;
— preparing an orderly documentation of information related to infractions of Fishery Regulations and presenting oral and documented evidence in a Court of Law;
— collecting, labelling and preservation of all specimens as required;
— monitoring and reporting on the types of gear used in Coastal and Inland waters;
— recording water levels, temperatures and conditions in Inland areas;
— monitoring fish runs and migrations in Coastal and Inland waters;
— monitoring and removal of obstructions (i.e. dams, trees, falls, etc.) in Inland waters;
— monitoring construction and logging operations to determine any harmful effects to fish or fish habitat;
— operation of small boats, outboard motors and all terrain vehicles in Coastal and Inland waters;
— sampling various species caught, measuring, weighing, determining sea [sic], collecting samples and ensuring that data obtained are accurately recorded;
— counting visually and estimating quantity of species of fish in Inland waters;
— prepares and submits written and oral reports to Supervisors on all activities as specified by the Department of Fisheries and Oceans.
In his written reasons, the Adjudicator held that “the evidence in these cases indicates that the job of the River Guardian is an integral part of a federal fisheries program dealing with fishing in inland waters”.[28] In my view, the provisions in the Fisheries Act describing the powers of fishery guardians as well as the description of their scope of work provide ample evidence that fishery officers and guardians are the agents chosen by Parliament to supervise and enforce the legislative scheme of the Fisheries Act, and without which the objectives of protection and preservation of fisheries as a public resource could not be achieved. The work of the river guardians can thus fairly be characterized as “vital”, “essential” or “integral” to the core federal undertaking. According to the test laid out in Northern Telecom #1 ,[29] this is sufficient to import federal jurisdiction over the activities of the river guardians and over the regulation of their employer-employee relationships.
In the course of argument before me, the applicant asserted that because the work of the river guardians had been contracted out to a provincially incorporated company (the applicant) by the Department of Fisheries and Oceans, it now fell under provincial jurisdiction. In my view, this assertion is incorrect and was properly rejected by the Adjudicator. In Letter Carrier’s Union of Canada v. Canadian Union of Postal Workers et al.,[30] the Supreme Court of Canada unanimously held that persons employed in carrying mail as employees of a company doing work under a contract for the Post Office were covered by the provisions of the Canada Labour Code [R.S.C. 1970, c. L-1] despite the fact that their employer operated a local business. In determining that the activities of the employees should come under federal jurisdiction, Ritchie J. considered the nature of their work in relation to the federal postal service as well as the control exercised by the Post Office over their work. Having noted that each employee hired by the private company in performance of the mail delivery contracts had to be acceptable to the Post Office official or officials and had to take an oath specified by the Post Office, Ritchie J. continued:[31]
Mr. Justice Maguire proceeded to describe the duties performed by the employees of M & B Enterprises Ltd. on behalf of the Post Office and indicated that these duties involved responsibility for delivering and sorting mail, the custody of keys permitting access to post offices and the collection of moneys due on c.o.d. parcels. The control exercised over these employees by the Post Office is further indicated in the following paragraph of Mr. Justice Maguire’s reasons:
Each company employee termed “carrier” is provided with an identification card supplied by the Post Office, and is required to carry this at all times while on duty. In addition, the Post Office supplies to each carrier a book, or pamphlet, of instructions or regulations, covering the performance of his duties.
In my opinion, the work so described which is performed by these employees is essential to the function of the postal service and is carried out under the supervision and control of the Post Office authorities ....
Similar indices of supervision and control by the Department of Fisheries and Oceans (DFO) over the work of the complainants exist in the case at bar. The Adjudicator found that:[32]
Day to day activity of the River Guardians is co-ordinated in the field by B.D.S. Supervisors in consultation with D.F.O. officials. Responsibility for allocation of Guardians to rivers and the extent of the surveillance is governed by D.F.O. If they don’t want surveillance on a particular river or section of a river they advise B.D.S. The selection of personnel is the responsibility of B.D.S. but the assignment of guardians to a particular river is directed by D.F.O. in accordance with the contract. Scheduling of Guardians to rivers is done on a weekly basis by D.F.O. in co-operation with B.D.S. Supervisors. River Guardians are required by the Fisheries Act to swear an Oath.
The Adjudicator properly concluded that the work of the river guardians is essential to the enforcement of the provisions of the Fisheries Act, and that it is carried out under the supervision of the Department of Fisheries. That being so, the case at bar is fully analogous to the Letter Carrier’s Union case, and the employee-employer relations in issue were correctly held by the Adjudicator to be under federal jurisdiction. Such a holding accords with the principle that “jurisdiction over labour matters depends on legislative authority over the operation, not over the person of the employer”.[33]
Was the Adjudicator correct in deciding that the respondents had completed twelve consecutive months of continuous employment with the applicant pursuant to subsection 240(1) of the Canada Labour Code?
The facts relevant to this issue are as follows:
—The complainants were employed as river guardians during the salmon angling season (usually ten to twelve weeks during the period of 15 June to 15 September) and when that season terminated, either resorted to unemployment insurance benefits or supplemented their annual income with some form of temporary work if work was available.[34]
—At the end of each angling season, BDS convened a meeting of all river guardians during which the guardians were given a performance evaluation relating to the season just ended. The meeting was followed by a dinner or barbecue, following which a BDS representative would wish the guardians good luck and express the hope of seeing them again next year.[35]
—The record of employment completed by the company at the end of each season and filed with Employment and Immigration Canada indicates, for each of the complainants, that the reason for issuing that record was “shortage of work” and that the expected date of recall is “unknown”. The record of employment contained the same information for each year the complainants were employed by BDS.[36]
—All three complainants testified they understood and expected they would be recalled at the beginning of each angling season and the record shows that this was the case. The complainants never declined an offer of recall by BDS.[37]
—Evidence indicated that the recall procedure for each successive season was the same at both DFO and BDS and appeared to be informal. The complainants were not required to complete an application for employment at the beginning of each season; in fact, the complainants did not at any time, file an application for employment with BDS but simply transferred from DFO to BDS in 1984.[38]
—There was no written contract in place between BDS and the complainants.[39]
—There is a contract between the applicant BDS and the Department of Supplies and Services (DSS). In the words of the Adjudicator:[40]
The contract is basically for a one year period (one season) but has an option provision whereby DSS may continue the agreement for successive years. These options were exercised each of the years since 1988 which was the first year such a provision was contained in the agreement. When Government exercises the option provisions they do not go to tender and the contract remains with B.D.S. Notwithstanding the option provisions the Company cannot count on more than a one year (season) contract and therefore, they cannot make employment commitments to River Guardians beyond any particular season.
The requirement of paragraph 240(1)(a) of the Canada Labour Code that the claimant have twelve consecutive months of continuous employment with the employer is described in the following excerpt from Employment Law in Canada[41] (footnotes omitted):
The requirement that the claimant must have “twelve consecutive months of continuous employment” with his/her employer reflects three concerns: (1) to reduce the heavy caseload that would otherwise likely exist; (2) to provide a rough and ready “probationary” period enabling the employer to assess the employee’s capability; and (3) to parallel the “job property” rationale of seniority as it is commonly understood under collective agreements.
The Code, with few exceptions, does not specify which events will rupture “continuous” employment, unlike most collective agreements.
…
it has largely fallen to adjudicators to develop a jurisprudence on the matter.
The approach of most adjudicators is to ask whether the parties to the employment contract expressly or impliedly intend their contractual nexus to persist throughout the interrupting event, so that it can be said that the contract is suspended during that time. The existence of such an intent must be gleaned from all the circumstances of the relationship. For example, seasonal workers who are laid off for the winter and resume work each spring have successfully argued that lay-off does not rupture continuity of employment where there is a “consistent employment pattern” of re-engagement each year and the employer continues to act as though the worker will be re-engaged, for instance by writing “lay-off” instead of “termination” on the U.I.C. separation form, or by continuing the worker’s fringe benefit coverage over the lay-off. On the other hand, the pattern will be broken if either party does something to demonstrate that it intends to bring the contract to an end, as where the employee takes permanent employment elsewhere so that he/she can be said to have resigned. Similarly, where the employee’s recall from seasonal lay-off depends on the employer funding the job by winning a tender competition, it has been held that continuity is interrupted because the employer could not fairly be said to intend to guarantee recall under such circumstances. Rather, the employee is hired under a series of fixed-term contracts that expire at the end of each season with the termination of each funding contract. [Emphasis is mine.]
The applicant alleges that the complainants did not meet the requirement of twelve consecutive months of continuous employment,[42] and relies primarily on Linda Webb and David Webb v. R.A. Howard Bus Service Limited, a decision of Adjudicator Willes under the Canada Labour Code.[43] In this decision, the adjudicator found that the lay-off of the complainant had effectively severed the employment relationship:[44]
In the complainant’s case, the work ceased because both the employer’s contract with the School Board and the contract with the complainant came to an end. Apart from a few charters over the summer months, no work existed for the employee to perform, and the prospect of future work was dependent upon (1) the employer’s decision to bid on school bus contracts for the next school year, and (2) the whim of the School Board in awarding such contracts.
…
From the evidence before me, no representations were made by the employer that the complainant would be offered or was assured of employment beyond the ten month term of each contract. The employment relationships were simply established over the years on a contract by contract basis, with the employer offering a new contract each September because the employer had successfully acquired a contract to provide school bus service. Presumably the employer wished to re-engage the particular employee, but to my mind, the relationship had ended the previous June, and the employer had no legal obligation to make such an offer to the complainant, since the relationship between the parties had ended when the previous contract terminated.
Adjudicator Willes then considered the decision of the Federal Court of Appeal in Eskasoni School Board et al. v. MacIsaac et al.[45] In Eskasoni, the complainants MacIsaac et al. had signed a written contract with the school board as teachers for the 1981-1982 year. The contract had been renewed another year, but in May 1983, they were notified that the contract would not be renewed. An adjudicator found that this constituted unjust dismissal under section 61.5 [R.S.C. 1970, c. L-1] of the Canada Labour Code (now sections 240 to 242). On judicial review of this decision, the Federal Court of Appeal held that “dismissal” could not include the failure of an employer to renew a contract for a fixed term of employment. Section 61.5 did not mean “that the employer and the employee cannot so arrange their relationship that there be no dismissal and, for that reason, no occasion for section 61.5 to apply”.[46] Adjudicator Willes concluded that:[47]
Having regard for the decision of the Federal Court of Appeal in the Eskasoni case, and the evidence before me, I have no difficulty in reaching the conclusion that I lack jurisdiction under s. 61.5 of the Canada Labour Code to deal with the complaint of Linda Webb.
In the case at bar, the Adjudicator rejected the arguments of the applicant and adopted the following arguments advanced by counsel for the complainants.
Firstly, the Eskasoni decision could be distinguished, because it related to a written contract of employment with a fixed term of one year. In the case at bar, there was no written contract of employment between the complainants and the applicant. Similarly, the Howard Bus Service decision, which dealt with a ten-month contract of employment, could be distinguished for this reason. In addition, because there was no written employment contract between the parties, the employment should be presumed to be for an indefinite period of time. Support for this proposition, counsel for the complainants advanced, was found in the decision of the Supreme Court of Canada in Machtinger v. HOJ Industries Ltd.[48] In Machtinger, the Court determined that persons employed under a contract of employment for an indefinite period could only be dismissed without cause if they were given reasonable notice, unless the contract of employment expressly or impliedly specified some other notice period. In coming to this conclusion, Iacobucci J. found support from a variety of sources:[49]
This is the approach taken by Freedland [The Contract of Employment (1976)], supra, who states that, “the pattern of contract now generally accepted and applied by the courts in the absence of evidence to the contrary is one of employment for an indefinite period terminable by either party upon reasonable notice, but only upon reasonable notice” (p.153). The same approach was adopted by the Ontario Court of Appeal in Prozak v. Bell Telephone Co. of Canada (1984), 46 O.R. (2d) 385. Writing for the court, Goodman J.A. noted at p. 399 that, “if a contract of employment makes no express or specifically implied provision for its duration or termination, there is likely to be implied at common law a presumption that the contract is for an indefinite period and terminable by a reasonable notice given by either party ...”. Basically, this is also the approach taken by I. Christie, in Employment Law in Canada (1980), at p. 347.
The second argument advanced by the complainants and apparently accepted by the Adjudicator was grounded in an analysis of the wording of paragraph 240(1)(a) of the Canada Labour Code. Paragraph 240(1)(a) requires the person to have completed twelve months of continuous “employment”, not of continuous “work”. Thus, the intention of Parliament revealed by this choice of words was to allow persons with twelve months of “continuous employment relationship” with an employer to make a complaint. The Adjudicator held that the evidence showed that the complainants had established a “pattern of seasonal employment” over several years. The Adjudicator gave a significant amount of weight to this conclusion:
I have no doubt Sec. 240(1)(a) of C.L.C. was framed the way it is for good reason, to preclude frivolous complaints by itinerant workers who do not have a continuous employment relationship with an employer. We heard evidence from a River Guardian who has worked for 43 seasons under the same seasonal pattern as the three complainants before me, and that is not an isolated case. If we accept the line of argument advanced by Counsel for the employer, that Guardian could not qualify to lay a complaint under the Code, if he was unjustly dismissed, because he would not meet the twelve month rule. To hold that such a person does not have a continuous employment relationship with “an” employer as envisaged by Sec. 240(1)(a) of the Code would, I believe, be absurd. The situation is no different with the complainants, except for a lesser number of years.
At first blush, an examination of the French text of paragraph 240(1)(a) sheds considerable light on the interpretation to be given to the twelve-month rule. Subsection 240(1) states:
240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d’un inspecteur si:
(a) d’une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;
(b) d’autre part, elle ne fait pas partie d’un groupe d’employés régis par une convention collective.
The use of the verb “travailler” (to work) leaves little room for the claim that paragraph 240(1)(a ) could relate to “employment relationships” of a duration of twelve months. In fact, the French text of paragraph 240(1)(a ) does require the person to have “completed” twelve months of uninterrupted work. The plain language meaning of the French text of paragraph 240(1)(a) significantly undermines the interpretation advanced by the respondents.
How then must paragraph 240(1)(a) be interpreted? The principles of interpretation of bilingual legislation are reviewed in Driedger on the Construction of Statutes:[50]
The basic rule governing the interpretation of bilingual legislation is known as the shared or common meaning rule. Where the two versions of bilingual legislation do not say the same thing, the meaning that is shared by both ought to be adopted unless this meaning is for some reason unacceptable.
Thus, if the words in the English text are uncertain in scope and may have several meanings while the French text can bear only one of these meanings, this meaning is the shared meaning and is presumed to be the true meaning in the absence of any reasons to reject it.[51] The shared meaning rule was followed by the Federal Court of Appeal in Deltonic Trading Corp. v. Minister of National Revenue (Customs and Excise)[52] and very recently in Canada (Attorney-General) v. Jouan.[53] The shared meaning rule may be rejected if it leads to unacceptable results such as the introduction of a clear contradiction or repugnancy between the interpreted provision and other parts of the statute[54] or if it leads to an interpretation which is contrary to the true intent of the legislation.[55] In the case at hand, it cannot be said that the shared meaning leads to an unacceptable result or that it leads to repugnancy or that it leads to a result which is contrary to the true intent. Indeed, what the shared meaning provides is a degree of precision which the English text does not bear when looked upon in isolation, and which results in a clearer and more precise expression of legislative intent.
Applying the shared meaning in the case at hand, it would seem clear that it was not open to the Adjudicator to conclude that the respondents had been working without interruption for the past twelve months as the French text of subsection 240(1) contemplates.
However, I note that when the unjust dismissal provision was first added to the Canada Labour Code in 1978,[56] the French text of paragraph 61.5(1)(a) then read:
61.5 (1) Sous réserve des paragraphes (2) et (3), une personne
a) qui a terminé douze mois consécutifs d’emploi continu au service d’un employeur ...
This is much closer to the English text of paragraph 61.5(1)(a) at least in so far as the meaning that can be attributed to it. The English text of paragraph 61.5(1)(a) is identical to that found in present paragraph 240(1)(a). In 1984, the French text of paragraph 61.5(1)(a), appearing as paragraph 240(1)(a) in the revised statutes, was changed to its present wording, while the English text of paragraph 61.5(1)(a) survived the revision unchanged.[57]
The revision of the French text was seemingly made by the Revision Commission under the authority of the Statute Revision Act, S.C. 1974-75-76, c. 20. Of relevance to the issue at hand are paragraphs 6(e) and (f) of that Act which provide the Revision Commission with the following limited powers:
6. ...
(e) make such alterations in the language of the statutes as may be required to preserve a uniform mode of expression, without changing the substance of any enactment;
(f) make such minor improvements in the language of the statutes as may be required to bring out more clearly the intention of Parliament, or make the form of expression of the statute in one of the official languages more compatible with its expression in the other official language, without changing the substance of any enactment. [Emphasis is mine.]
An issue therefore arises as to whether the revised French text of subsection 240(1) changes the substance of the prior enactment. To the extent that it does, the Revision Commission may have overstepped the boundaries of its legislative authority in the revision which it brought to the provision. Indeed, I question whether the verb “travailler” would have been used in the French revision if the Commission had been aware of the case law developed by adjudicators which discarded the actual performance of work as a prerequisite to the application of subsection 240(1). Having raised the question I have no means of answering it otherwise than by pursuing my analysis on the basis of the language reflected by the English text of subsection 240(1).
The concept of a continuous employment relationship in the context of the interpretation of paragraph 61.5(1)(a) (now paragraph 240(1)(a)) first appeared in the decision of the Federal Court of Appeal in Pioneer Grain Co. Ltd. v. Kraus.[58] The complainant in Pioneer Grain, a construction worker, was temporarily laid off for a brief period each year. The actual period during the year in question was between December 21 and January 7. On judicial review from the adjudicator’s decision to dismiss the employer’s preliminary objection that Mr. Kraus had not satisfied the twelve-month rule, Thurlow C.J. stated:[59]
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 continuance 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 conclusion. 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) [now s. 240(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.
This decision has been relied on by a growing number of adjudicators for the principle that if an “employment relationship” lasting over twelve months is established between the complainant and his/her employer, the requirement set out in paragraph 240(1)(a ) of the Canada Labour Code is satisfied.
In Pierre Mongrain v. Pelee Island Transportation,[60] the complainant was employed by a ferry operator during the period of April to mid-December. Between December and April, ice conditions prevented operation of the ferry. The adjudicator found that the employment contract was for an indeterminate period of time and not for a specific term:[61]
It might be argued that the contract was issued for the maritime season which was determinable upon the occurrence of a suspensive condition, namely the impossibility of navigation due to ice. But this argument is not overly persuasive given the practice of generally recalling employees whose performance has been deemed acceptable during the previous season and which has seen a number of them remain throughout the years in the employ of the Respondent’s maritime ferry service and rise through the ranks. [Emphasis is mine.]
The adjudicator found that the complainant “was given to understand that he would be called back to work following the completion of his initial season”. As in the case at bar, the complainant’s record of employment indicated that it had been issued for “shortage of work”, and the expected date of recall was “unknown”. The adjudicator concluded that these facts implied that the employment relationship was not deemed to be severed by the employer, and that “there had simply been an interruption of the work function”.[62] Were the contrary true, the adjudicator reasoned, the employer could have specified on Mongrain’s record of employment that the employee was not returning, and that the reason for the issue of the record was that the “contract had ended”. Another fact inconsistent with the employer’s characterization of the employment as a series of contracts (of a duration shorter than twelve months) was that the employer sent a letter to the complainant in January 1983 stating that he was no longer required and could find work elsewhere. The adjudicator reasoned that such a letter would have been unnecessary had the terms of employment been governed by a limited term contract.
After reviewing the facts of the Pioneer Grain case and the decision of the Federal Court, the adjudicator concluded:[63]
In the present instance, although the duration of the interruption of the employment was more lengthy, it represented a consistent employment pattern and in the result, I am of the opinion that Mr. Mongrain’s status as an employee was not discontinued during the lay-off of the 1981-82 winter season and that the employer-employee relationship was not terminated until he was definitively advised of same by letter ….
In Re Beaudril v. Preignitz, Adjudicator J. W. Samuels explained the meaning of “continuous employment” under paragraph 61.5(1)(a) (now paragraph 240(1)(a)):[64]
What does “continuous employment” mean in the context of section 61.5(1)(a)?
In my view, such legislation should be interpretted [sic] and applied in light of its apparent purpose. The purpose of section 61.5(1)(a) is to ensure that there is a sufficiently long relationship between an employer and employee before the employee has the right to complain about unjust dismissal. It is the length and nature of the relationship which is important, not the active work period. [Emphasis is mine.]
Adjudicator Samuels determined from various facts that an on-going employment relationship had existed between the complainant, a fourth engineer on an offshore supply and anchor handling vessel, and his employer from 1983 through to the complainant’s termination in 1986. After reviewing the relationship between the complainant and his employer for the past three years, the adjudicator concluded:[65]65
In my view, these documents and this practice disclose more than a series of independent annual term contracts. Both parties understood their relationship as an on-going one unless it was terminated. Provided that Mr. Priegnitz’ performance was satisfactory, he would be back at work for the next working season. The purpose of the Company’s annual letters was to establish the terms for the coming season, not to rehire the employee each time. Marine employees, including Mr. Preignitz, were considered to be “permanent employees”. Though no payments would be made to them or for them during the off-season, arrangements were made to continue the employee’s benefits during the off-season. The Company expected the employees to return, and wanted notice if this would not be the case. Mr. Priegnitz thought that he was a “permanent employee” (he got notices addressed to him as such). In my view, by January 1986, Mr. Priegnitz had an on-going relationship with BeauDril Limited. (Emphasis is mine.)
The case of Ghislain Simard v. Cablevision Baie St-Paul Inc.[66] was also cited by counsel for the complainants in the case at bar. The factual background of the Simard case is important, because it closely resembles that in the case at bar, and this resemblance was recognized by Adjudicator Blanchard.[67] Simard had worked for his employer every summer between the months of May and September from 1978 to 1987. The adjudicator characterized this employment as “seasonal”. As in Mongrain and Pioneer Grain, the adjudicator determined that there had been a “continuous employment pattern” which satisfied the requirements of paragraph 61.5(1)(a ):[68]
[translation] ... the evidence shows that the job required between three (3) and four (4) months of work each year since 1978. The complainant worked every year, and was recalled. The work period is different from that in Pioneer, but the “pattern” is the same. It must be recognized as obvious that there are jobs that do not require actual work for twelve months, a great number of cases may arise, everything depends on the industry, the duties to be performed and many other factors specific to various fields.
In support of her conclusion, the adjudicator noted firstly that the complainant’s record of employment indicated that his lay-off was due to a shortage of work and that the expected date of recall was “unknown”, and secondly that a custom had been established by which the complainant would be recalled year after year.
The decisions in Mongrain, Simard and Beaudril as well as in the present case show that in the face of a complaint of unjust dismissal by a person engaged in seasonal employment, some adjudicators, acting on a concept which they attribute to the Federal Court of Appeal decision in Pioneer Grain, have attempted to determine whether, on the particular facts of the case, a continuous pattern or “relationship” of employment can be said to exist between the complainant and the employer. An established practice of recalling the complainant provided his performance was satisfactory in the previous season, or of filling out the complainant’s record of employment to show a lay-off due to “shortage of work” and an “unknown” date of recall have been held to be indicia of this relationship. The reasoning of the adjudicators seems to be that a right of recall is evidence of an ongoing contractual relationship and it is the duration of that relationship which is relevant in computing the twelve consecutive months period contemplated by subsection 240(1).
In the case at hand, this right of recall was found to exist for all three complainants conditionally upon BDS’s contract with DFO being renewed for the 1993 season. As BDS’s contract was continued, the Adjudicator concluded that a right to a recall did exist and that the employer had failed to honour its obligation to rehire the complainants. I believe that deference is owed to the Adjudicator in so far as this particular conclusion is concerned as it falls within his particular area of expertise. A long established pattern of seasonal employment can give rise to a right of recall, and I believe that on the facts which were before him, it was reasonably open to the Adjudicator to conclude as he did. At the very least, the conclusion reached is not patently unreasonable.
However, the Adjudicator’s decision that the pattern of employment giving rise to this right of recall was “employment” within the meaning of subsection 240(1) goes to jurisdiction, and hence must stand the test of correctness. In assessing the correctness of the Adjudicator’s decision on this point, I believe that it is useful to go back to the decision of the Court of Appeal which is at the root of the relevant body of case law developed by the adjudicators. In Pioneer Grain, the Court of Appeal was not dealing with seasonal employment. Mr. Kraus held what is commonly understood as a permanent job subject to a temporary lay-off for a brief period each year. That is the context in which the Federal Court of Appeal failed to be “persuaded” that the employment did not continue during the brief lay-off or that the employment could not be regarded as “continuous” within the meaning of the legislation despite the brief lay-off. On a fair reading, this decision stands for the limited proposition that a brief stoppage of work each year in the context of an otherwise ongoing and continuous employment does not necessarily bring that employment to an end. Or, to put the matter more simply, the continuity of an ongoing employment may be unaffected by a yearly lay-off of a de minimus duration.
From this proposition, adjudicators gradually came to hold that the fundamental feature of employment, namely the performance of work for salary or wages, was not contemplated or required by the words “twelve consecutive months of continuous employment” in subsection 240(1) and hence needs not be present. So long as a lingering right of recall stemming from a long established pattern of temporary employment exists, the employment in question can be said to have continued. In the end, seasonal employment limited to a three-month period in any given year came to be considered as employment which could meet the “twelve consecutive months of continuous employment” test.
In my view, this result offends the wording of subsection 240(1) and arises from a misapprehension of the ratio of the Court of Appeal in Pioneer Grain. There is nothing in the language of subsection 240(1) which suggests that the essential feature of “employment”, namely the performance of work for a salary or wages, can be ignored in assessing its existence. Indeed, the use of the words “consecutive” and “continuous” strongly suggests that it is employment characterized by the ongoing performance of work that is meant to be measured by the provision, and not a lingering right of recall stemming from a pattern of prior employment. One who has a right to be recalled at some future point in time is not in the state of employment while awaiting the recall, and such a person is certainly not experiencing “consecutive months of continuous employment” during that period. A very clear expression of intent would be required to give to the word “employment” a meaning which excludes therefrom its fundamental constitutive feature.
The purposive interpretation adopted by the Adjudicator is based on the continued existence of a right stemming from a pattern of prior employment rather than on the continued existence of the employment itself. As such it offends the wording of subsection 240(1). In my view, the Adjudicator erred when he assumed the jurisdiction to hear the three complaints on that basis.
Before concluding his argument, counsel for the respondents also brought to my attention section 29 of the Canada Labour Standards Regulations.[69] It provides:
29. For the purposes of Divisions IV, VII, VIII, X, XI, XIII and XIV of the Act, the absence of an employee from employment shall be deemed not to have interrupted continuity of employment where
(a) the employee is absent from employment as a result of a lay-off that is not a termination under these Regulations; or
(b) the employer permits or condones the employee’s absence from employment.
This Regulation became effective September 2, 1991, that is after the period relevant to the present matter. Nevertheless, counsel for the respondents points out that the Regulations do not contain a provision defining a seasonal lay-off as a termination of employment. He therefore asserts that section 29 of the Regulations is evocative of a clear legislative intent that a seasonal lay-off should not be considered as interrupting the continuity of employment. He adds that by virtue of section 44 of the Interpretation Act,[70] it is open to me to take guidance from this newly enacted provision inasmuch as this may be done consistently with the legislation as it stood at the relevant time.
This argument is of no assistance to the respondents, and indeed reinforces the conclusion which I have reached. If a deeming provision was considered necessary to provide that absence from employment by reason of a lay-off does not interrupt the continuity of an employment, it must be because such an absence does in fact interrupt the continuity of employment. If anything, section 29 of the Regulations strongly suggests that, during the relevant period, a lay-off did interrupt the continuity of employment.
For the foregoing reasons, I therefore conclude that the Adjudicator erred in holding that the respondents “had completed twelve consecutive months of continuous employment” within the meaning of subsection 240(1), and hence lacked jurisdiction to hear the complaints in issue. An order setting aside the decision of the Adjudicator with respect to each of the complainants is accordingly issued.
[1] Canada Labour Code, R.S.C., 1985, c. L-2 (hereinafter Canada Labour Code).
[2] In the matter of an adjudication pursuant to Part III of the Canada Labour Code, R.S.C., 1985, c. L-2, as amended, between Michael Carew, Hugh Davis, Douglas Dean (complainants) and Beothuk Data Systems Ltd., Seawatch Division (respondent), at pp. 1-2 (hereinafter Reasons).
[3] Canada Post Corp. v. Pollard, [1994] 1 F.C. 652(C.A.) (hereinafter Pollard).
[4] [1993] 1 S.C.R. 941, at pp. 961-962.
[5] [1988] 2 S.C.R. 1048, at p. 1086 (hereinafter Bibeault).
[6] Bibeault, supra, note 5, at p. 1087.
[7] Ibid., at p. 1088.
[8] Canada Labour Code, R.S.C., 1985, c. L-2, s. 243.
[9] See Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at p. 1003 per La Forest J.:
Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function....
[10] [1991] 2 S.C.R. 5 (hereinafter Cuddy Chicks).
[11] Ibid., at p. 17.
[12] [1994] 3 F.C. 449(T.D.) (hereinafter Sagkeeng).
[13] Ibid., at p. 454.
[14] [1994] 3 F.C. 376(T.D.), at p. 395 (hereinafter Norway House).
[15] Pollard, supra, note 3.
[16] Canada Labour Code, s. 242(1); Pollard, supra, note 3 at p. 669.
[17] Canada Labour Code, ss. 240(1) and 242(3.1).
[18] Canada Labour Code, s. 242(3)(a).
[19] For example, while s. 242(2)(c) gives adjudicators powers to summon witnesses, administer oaths and receive evidence, s. 60(1)(b) provides arbitrators with an additional power to “determine any question as to whether a matter referred to the arbitrator or arbitration board is arbitrable”. By virtue of s. 16(p) of the Canada Labour Code, the CLRB has the power to “decide for all purposes of this Part any question that may arise in the proceeding”.
[20] Pollard, supra, note 3, at pp. 671-673.
[21] Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354(C.A.).
[22] Application record, applicant’s concise memorandum of points at par. 19-26.
[23] [1980] 1 S.C.R. 115, at p. 132 (hereinafter Northern Telecom #1).
[24] Ibid., at p. 132.
[25] [1976] 1 S.C.R. 477, at p. 495; this statement appeared in Laskin C.J.’s dissenting judgment, but was not the subject of disagreement by the majority, and was approved by the Supreme Court in its subsequent decision in Fowler v. The Queen, [1980] 2 S.C.R. 213, at p. 223.
[26] Fisheries Act, R.S.C., 1985, c. F-14 (hereinafter Fisheries Act).
[27] Application record, tab 4.
[28] Reasons, supra, note 2, at p. 12.
[29] Northern Telecom #1, supra, note 23.
[30] [1975] 1 S.C.R. 178 (hereinafter Letter Carrier’s Union).
[31] Ibid., at p. 183.
[32] Reasons, supra, note 2, at p. 6.
[33] Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729, at p. 736 (hereinafter Yellowknife).
[34] Reasons, supra, note 2, at p. 8.
[35] Ibid., at p. 9.
[36] Ibid., at p. 10.
[37] Ibid., at p. 10.
[38] Ibid., at p. 9.
[39] Ibid., at p. 21.
[40] Ibid., at p. 5.
[41] I. Christie et al., Employment Law in Canada, 2d ed. (Toronto: Butterworths, 1993), at pp. 672-674 (hereinafter Employment Law in Canada).
[42] Reasons, supra, note 2, at p. 18.
[43] February 1988 (Willes), Adjudication No. 839-840 (hereinafter Howard Bus Service).
[44] Idem, at pp. 18 and 20.
[45] (1986), 86 CLLC 12,247 (F.C.A.) (hereinafter Eskasoni).
[46] Ibid., at p. 12,249.
[47] Howard Bus Service, supra note 43, at p. 21.
[48] [1992] 1 S.C.R. 986 (hereinafter Machtinger).
[49] Ibid., at p. 998.
[50] R. Sullivan, Driedger on the Construction of Statutes, 3d ed. (Toronto: Butterworths, 1994), at p. 220 (hereinafter Driedger).
[51] Ibid., at p. 223.
[52] (1990), 113 N.R. 7 (F.C.A.) (hereinafter Deltonic).
[53] (1995), 122 D.L.R. (4th) 347 (F.C.A.), at p. 351 (hereinafter Jouan); in interpreting s. 43(2) of the Unemployment Insurance Regulations, C.R.C., c. 1576, Marceau J.A. justified the interpretation he had arrived at:
First, this is what the French version says unequivocally, the ambiguous English phrase “so minor in extent” having to be read within the confines of the unambiguous French words “il y consacre si peu de temps” …. [Emphasis is mine.]
[54] See Food Machinery Corpn. v. Registrar of Trade Marks, [1946] Ex. C.R. 266, at p. 275.
[55] R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865 (hereinafter BCN Ltée).
[56] An Act to amend the Canada Labour Code, S.C. 1977-78, c. 27, s. 21 amending R.S.C. 1970, c. L-1.
[57] See An Act to amend the Canada Labour Code and the Financial Administration Act, R.S.C., 1985 (1st Supp.), c. 9.
[58] [1981] 2 F.C. 815(C.A.) (hereinafter Pioneer Grain).
[59] Ibid., at p. 824.
[60] Abramowitz (August 12, 1986) (hereinafter Mongrain).
[61] Mongrain, supra, at p. 14.
[62] Ibid.
[63] Ibid., at p. 16.
[64] J. W. Samuels (October 27, 1986), at p. 9 (hereinafter Beaudril).
[65] Ibid., at p. 8.
[66] Tousignant (September 27, 1989) (hereinafter Simard).
[67] Reasons, supra, note 2, at pp. 21-22.
[68] Simard, supra, note 66, at p. 10.
[69] C.R.C., c. 986, as am. by SOR/91-461, s. 29.
[70] R.S.C., 1985, c. I-21.