T-830-91
Canadian Imperial Bank of Commerce (Appli-
cant)
v.
Earl Bateman and Graham Leslie (Adjudicator)
(Respondents)
INDEXED AS: CANADIAN IMPERIAL BANK OF COMMERCE V.
BATEMAN (T.D.)
Trial Division, Cullen J.—Vancouver, April 24;
Ottawa, May 8, 1991.
Labour relations — Canada Labour Code, Division XIV,
providing grievance procedure for non-unionized workers in
federal jurisdiction — Code, s. 167(3) excluding managers
Adjudicator taking jurisdiction on ground manager of Bank's
Regional Data Centre not manager — Respondent in charge of
department having 200 employees, $10,000,000 budget —
Purpose of Division to provide non-unionized workers protec
tion mirroring that in collective agreements — Classifications
used in normal labour relations applying — Need not be
independent of outside review, have absolute autonomy
Respondent had significant autonomy in administration of
large department.
Judicial review — Prerogative writs — Prohibition —
Privative clause providing adjudicator's order "shall not be
questioned or reviewed in any court" — Not preventing review
for want of jurisdiction — Not limited to review for patent
unreasonableness — Decision of inferior tribunal interpreting
provision conferring jurisdiction reviewable for mere error.
This was an application for prohibition to restrain an
adjudicator appointed under subsection 2420) of the Canada
Labour Code, from hearing a complaint of wrongful dismissal.
The adjudicator ruled he had jurisdiction to hear the complaint,
based on his finding that the complainant was not a manager
within the meaning of subsection 167(3) of the Code, which
explicitly excludes managers from the statutory regime of
grievance adjudication.
The respondent had been manager of the Vancouver Region
al Data Centre of the Canadian Imperial Bank of Commerce.
In the CIBC corporate structure, there were three officers
between him and the Chairman of the Board. The data centre,
responsible for the information processing needs of the Bank
throughout the region, employs 200 people and has an annual
budget of $10,000,000. The respondent had authority for hiring
and promotion, without reference to head office, for 85% of his
staff positions. For the most senior 15% of data centre staff,
corporate management at Toronto made the decisions upon his
recommendation. There had been but one case, while Mr.
Bateman was in charge of the data centre, where corporate
management hired someone over his strenuous objections. He
was responsible for fixing salaries, within ranges set by head
quarters for each position; the ranges were set without advice
from the respondent or his homologues in other data centres.
He could pay salaries beyond the ranges only with the approval
of headquarters; that approval was usually granted, although
not always without discussion. Headquarters determined the
number of staff Bateman would have after receiving his
recommendation.
Held, the application should be allowed.
The privative clause in section 243, that the adjudicator's
order "shall not be questioned or reviewed in any court", does
not prevent review for jurisdictional error. The adjudicator's
decision need not be patently unreasonable for prohibition to
issue. Where the question is the meaning of a legislative
provision limiting a tribunal's powers, a mere error of interpre
tation will cause it to lose jurisdiction and subject its decision to
review. A pragmatic, functional approach must be adopted to
the determination whether the interpretation of the statutory
provision confers jurisdiction. This approach takes into account
the wording of the enactment, 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
it.
Subsection 167(3) expressly excludes managers from the
operation of Division XIV of the Code. It is apparent that
Parliament intended the provision to define and limit the
inquiry upon which the adjudicator may embark. Although the
word "manager" is not defined, to leave its definition up to the
adjudicator would permit his jurisdiction to be extended far
beyond what Parliament intended.
The purpose of the Division is to provide a summary griev
ance procedure, for non-unionized workers, like that usually
found in collective agreements. Although subsection 167(3) was
not intended to exclude all those who exercise some manage
ment functions, it should not be read as departing too far from
the classifications used in normal labour relations.
The adjudicator misinterpreted subsection 167(3) in stating
that, for an employee to be a "manager", he had to have very
considerable, if not absolute, autonomy. Bateman, as a senior
member of CIBC management, did exercise significant autono
my and discretion in the administration of a large department.
The adjudicator erred in requiring that the power to administer
had to be independent from outside review. Even the board
chairman of a large corporation must answer to a board of
directors.
STATUTES AND REGULATIONS JUDICIALLY
CONSIDERED
Canada Labour Code, R.S.C., 1985, c. L-2, ss.
167(2),(3), 240(1) (as am. by R.S.C., 1985 (1st
Supp.), c. 9, s. 15), 242 (as am. idem, s. 16), 243.
CASES JUDICIALLY CONSIDERED
APPLIED:
Sedpex, Inc. v. Canada (Adjudicator appointed under the
Canada Labour Code), [1989] 2 F.C. 289; (1988), 34
Admin. L.R. 23; 25 F.T.R. 3 (T.D.); Lee-Shanok v.
Banca Nazionale del Lavoro of Canada Ltd., [1987] 3
F.C. 578; (1987), 26 Admin. L.R. 133; 76 N.R. 359
(C.A.).
CONSIDERED:
Bell v. Ontario Human Rights Commission, [1971]
S.C.R. 756; 18 D.L.R. (3d) 1; U.E.S., Local 298 v.
Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R.
153; 95 N.R. 161.
REFERRED TO:
Avalon Aviation Ltd. v. Desgagné (1981), 42 N.R. 337
(F.C.A.); Canadian Union of Public Employees, Local
963 v. New Brunswick Liquor Corporation, [1979] 2
S.C.R. 227; Syndicat des employés de Production du
Québec et de l'Acadie v. Canada Labour Relations
Board, [1984] 2 S.C.R. 412; (1984), 14 D.L.R. (4th)
457; 55 N.R. 321; 14 Admin. L.R. 72; 84 CLLC 14,069;
Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983;
(1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 102
N.R. 1; Canada (Attorney General) v. Public Service
Alliance of Canada, [1991] 1 S.C.R. 614.
COUNSEL:
Kitty J. Heller for applicant.
F. A. Schroeder for respondent Earl Bateman.
SOLICITORS:
Owen, Bird, Vancouver, for applicant.
Schroeder, Pidgeon, Vancouver, for respond
ent Earl Bateman:
The following are the reasons for order ren
dered in English by
CULLEN J.: This is an application for prohibi
tion to prevent Graham Leslie, an adjudicator
appointed under section 242 of the Canada Labour
Code, R.S.C., 1985, c. L-2 [as am. by R.S.C.,
1985 (1st Supp.), c. 9, s. 16] (the "Code"), from
proceeding further with hearing the complaint of
Earl Bateman that he was unjustly dismissed by
the applicant Canadian Imperial Bank of Com
merce (CIBC/the Bank). The applicant also seeks
an order in the nature of certiorari quashing the
preliminary decision of the adjudicator that Mr.
Bateman was not employed by the applicant as a
"manager" within the meaning of subsection
167(3) of the Code. In addition, the applicant
seeks an interlocutory injunction or in the alterna
tive a stay of proceedings to prohibit the adjudica
tor from adjudicating Mr. Bateman's unjust dis
missal complaint pending a decision from this
Court.
BACKGROUND FACTS
Mr. Bateman was employed with the CIBC as
manager of the Bank's Vancouver Regional Data
Centre ("RDC") until March 12, 1990, when he
was dismissed. Mr. Bateman then made a com
plaint under subsection 240(1) [as am. by R.S.C.,
1985 (1st Supp.), c. 9, s. 15] of the Code that he
had been unjustly dismissed by the Bank. An
adjudicator was appointed by the Minister of
Labour pursuant to subsection 242(1) to hear the
complaint. At the hearing, the applicant raised a
preliminary objection that the adjudicator lacked
jurisdiction to hear the matter on the ground that
Bateman was a "manager" within the meaning of
subsection 167(3) of the Code. This subsection
states that Division XIV of the Code, which
includes the unjust dismissal provisions, "does not
apply in respect of employees who are managers".
The adjudicator heard the evidence put forward by
the parties on the issue of whether Bateman was a
"manager". He issued a written decision on the
preliminary objection on March 22, 1991, in which
he concluded that Bateman was not a "manager"
within the meaning of subsection 167(3) and that
he had jurisdiction to hear the complaint. The
CIBC then brought these proceedings for prohibi
tion and other relief to prevent him from doing so.
DECISION OF THE ADJUDICATOR
In his preliminary decision, the adjudicator first
reviewed the case law on the question of the
meaning of the word "manager", as the term is not
defined in the Code. After an analysis of several
decisions of the Federal Court of Appeal and other
adjudicators, the adjudicator concluded that the
term "manager" does not include all employees
who perform some management functions. Adopt
ing the reasoning of Heald J.A. in Avalon Aviation
Ltd. v. Desgagné (1981), 42 N.R. 337 (F.C.A.),
the adjudicator held that the word "manager" in
subsection 167(3) is used in a restrictive sense, and
that the traditional distinction made between
"managers" and "employees" in the context of a
collective bargaining regime cannot be imported
wholesale into the determination of whether one is
a "manager" within the meaning of subsection
167(3). The adjudicator noted Heald J.A.'s obser
vation that the use of the word "manager" in
subsection 167(3) is in contradistinction to the
phrase "managers or superintendents or who exer
cise management functions" in the immediately
preceding subsection 167(2), which concerns the
application of Division I of the Code. From this
Heald J.A. concluded that the scope of the term
"manager" in subsection 167(3) was broader than
the exercise of management functions, as subsec
tion 167(2) distinguishes "managers" from persons
"who exercise management functions" and "sup-
erintendents".
Based on the foregoing, the adjudicator conclud
ed that
... Parliament deliberately chose to make a distinction between
"managers", "superintendents" and employees who "exercise
management functions", for the express purpose of making the
benefits of Division XIV of the Code available to all non-bar
gaining unit employees except those in the most senior levels of
management.
As Bateman clearly exercised some management
functions, the adjudicator decided that the issue in
the case at hand was to determine whether the
applicant was a "superintendent", and therefore
eligible for adjudication, or a "manager". After
comparing dictionary definitions of the two words,
he concluded his analysis as follows:
When the terms "manager" and "manage" are compared with
the terms "superintendent" and "superintend", there is clearly
a considerable degree of overlapping and duplication. Both sets
of terms involve the exercise of direction and control over
others. Both sets envisage that direction and control being
exercised over a substantial entity. It is of great significance in
a case such as the one before me, that the term "superintend-
ent" very clearly encompasses the chief charge, as well as
direction and control over a business, institution or works.
In the search for the distinguishing features, the factor of
autonomy appears clearly to be the most significant one, if not
the only one of significance. My conclusion is based on the
Oxford English Dictionary's definition of to "manage" as
meaning to control the course of affairs by one's own action. In
order to be held to be a "manager" rather than a "superintend-
ent", it is my view that the degree of autonomy exercised by an
employee must be, if not absolute, then very considerable. My
decision in this case will be based upon that conclusion.
The adjudicator then reviewed several areas of
the relationship between Bateman and the Bank in
order to determine if Bateman's position could be
considered part of the managerial hierarchy of the
CIBC. The areas examined by the adjudicator to
determine if Bateman had the authority to act on
issues of significance to the CIBC with "independ-
ence and autonomy" were, inter alia: a) the corpo
rate structure of the Bank, b) power to hire and
transfer employees, c) control over salaries, d)
input into staffing levels, and e) power to discipline
employees.
Corporate Structure:
The CIBC has a total of 48,500 full and part-
time employees. It is divided into four units: the
Corporate Bank, the Individual Bank, the Invest
ment Bank and the Administrative Bank, the
branch to which Bateman was attached. Each of
these units is headed by a President who reports
directly to the Bank's Chairman and Chief Execu
tive Officer. The President of the Administrative
Bank, Ian Ronald, has reporting to him eight
Vice-Presidents in charge of operational areas such
as inspections, corporate communications, human
resources, legal services and information systems,
which was the division in which Bateman worked.
The Information Systems Division is the largest
division by far in the Administrative Bank, with
3,100 of the Administrative Bank's 4,400
employees. The division is comprised of eight
regional data centres, in which the data processing
needs of each region are carried out, such as
account statements, cheque clearing, and other
transactions.
Bateman was appointed manager of the Van-
couver Regional Data Centre (RDC) in 1987. He
had been employed with the CIBC since 1976, and
had served as manager of the London RDC since
1979. At the Vancouver RDC, Bateman had 200
employees under his supervision. The RDC oper
ated seven days a week, with an annual operating
budget of about $10,000,000 in 1989 and 1990. It
is the second largest of the CIBC's RDCs, being
approximately one quarter the size of the main
Toronto data centre.
Before November, 1989, Bateman, in his capaci
ty as manager of the Vancouver RDC, reported to
Donald Clarke, who served as Assistant General
Manager of the Information Systems Division.
Mr. Clarke reported to Tom Saar, Senior Vice-
President in Charge of Operations, and Mr. Saar
reported to George Hare, the Executive Vice-
President of the Division. In September 1989,
Clarke left CIBC, and his position was abolished
and a step in the hierarchy removed. Saar left in
November 1989 and was replaced by Wayne
Maysuik.
Based on the foregoing, the adjudicator found
that Bateman was the senior representative of
CIBC management in Vancouver. He was on the
fourth level of the Administrative Bank hierarchy,
reporting to Maysuik, Hare, and Ronald at the
Bank's Head Office in Toronto.
Power to Hire:
The adjudicator found that Bateman had
"unfettered power to make decisions" with respect
to the power to hire, promote and transfer 85% of
the 200 RDC employees, representing those
employees who were below a certain salary level.
With respect to his power to make career decisions
for the remaining employees who were paid at a
higher level, Bateman was required to make
recommendations which were subject to the
approval of his immediate supervisor in Toronto,
Wayne Maysuik. The adjudicator found that all
but one of Bateman's recommendations had been
approved. The adjudicator found that on the one
occasion where Bateman's recommendation had
not been followed, his superiors in Toronto
appointed an employee despite Bateman's stren
uous objections. The adjudicator found this to be
evidence that Bateman's "freedom of action in this
area was subordinated to the overriding interest of
his Toronto superiors". The adjudicator also found
that the Vice-President of data centre operations
in Toronto retained control over all appointments
to positions reporting directly to Bateman as Van-
couver RDC manager.
Salaries:
The adjudicator also focused on the role Bate-
man played in completing yearly performance
appraisals of Vancouver RDC employees. These
appraisals had a direct bearing on any salary
increase that would be received by an employee.
While there is some dispute as to this matter (see
Applicant's Record, Tab "S", page 15, and Tab
"3", page 3) any salary increase for an employee
would apparently be determined by the RDC
manager, who operated within guidelines and
budgets set out by the CIBC's head office. The
adjudicator found that Bateman had "total au
thority to award increases that fell within the
guidelines, but that the approval of the Toronto
data centre operations officer was required for any
exceptions". He found that there was no evidence
that the RDC managers had any input into the
setting of the salary ranges, which had been set up
by the CIBC to maintain consistent standards
across the country. He also found that the effect of
the salary ranges was to provide RDC managers
with a "limited degree of authority whereby,
within quite narrow guidelines, they could both
recognize the superior achievements of their subor
dinates, and also penalize inferior performance."
RDC managers could request that exceptions be
made to the guidelines to reward exceptional
performance. A large number of these requests
were approved by Toronto, but the evidence
revealed that between 1988 and 1990, very few
exceptions were proposed by RDC managers,
except for Bateman. Most of his recommendations
were eventually approved, but only after he had
been advised that the total number of such recom
mendations was unacceptable, and that he recon
sider and re-submit them.
Setting Staff Requirements:
The RDC managers were required to propose to
the Head Office an appropriate number of full-
time employees for their centres based on the
anticipated amount of business as estimated by the
managers in consultation with regional representa
tives from the other banking units of the CIBC,
and using data provided by Head Office. Head
Office had the power to approve these staff esti
mates, and any hiring that would have resulted in
the approved number being exceeded required
approval by Toronto in advance. The adjudicator
found that "it was Toronto's judgment which
unmistakably superseded that of the individual
data centre manager". The adjudicator pointed to
an incident in 1989 when Toronto unilaterally
decided that the Vancouver RDC staff comple
ment had five more positions than were required,
and reduced the complement by that number
despite the protests of Bateman that the positions
were necessary to meet his goals for the RDC.
Discipline:
The adjudicator ruled that "the complainant
was not constrained in any way by his regional
office in exercising discipline within the Centre. I
am much less satisfied regarding the constraints
imposed by Toronto." While the evidence was
conflicting, the adjudicator found that all dismis
sals proposed by data centre managers required
prior approval from Toronto. As for discipline up
to, but not including dismissal, there was evidence
that on occasion, Bateman was ordered by his
superiors to impose discipline on certain
employees. The adjudicator concluded that while
Head Office did not interfere frequently with
Bateman's exercise of discipline, this restraint
"should be attributed more to [Bateman's] sound
judgment in the majority of cases, than to the
Bank's contention that he had unfettered authority
in all cases short of dismissal."
After consideration of other issues such as input
by RDC managers into areas such as budgets and
policy formulation, the adjudicator concluded that
the stress placed by the CIBC on consistency,
standardization and central control from Toronto
was incompatible with true managerial autonomy
and independence. He summarized his conclusions
as follows (at Tab "S", pages 27-28 of applicant's
record):
The CIBC or any organization of its size or complexity has in
my view a choice to make regarding the extent to which it will
decentralize its operations, and the degree to which it will make
local and regional members of its management team autono
mous. A perpetual conflict is likely to be waged in such an
organization between the forces which favour tight centralized
control in order to achieve consistency, and the forces which
seek to encourage individual autonomy and the independence
resulting from the provision of broad, general goals and the
maintenance of accountability for successful results. There was
some evidence adduced before me which was suggestive of some
ebb and flow involving this issue.
I have concluded that the proponents of centralized control are
in the ascendancy within the Information Technology Division
of the CIBC's Administrative Bank, and specifically within its
data centre operations. There is no doubt in my mind but that
all decisions of importance to the Bank are made in Toronto.
The fact that Toronto encourages the input of its data centre
managers does not alter my conclusion to any significant extent
The adjudicator concluded (at Tab "S", page
30):
Counsel for the employer has adduced ample evidence to show
that the complainant was not only a member of the manage
ment team and, therefore, an employee who exercises manage
ment functions, but was a relatively senior member of that
team. The employer's case convinced me that the complainant
did in fact exercise a degree of autonomy and independence,
which enabled him to decide certain issues within a fairly tight
framework established by his superiors in Toronto. However,
that degree of autonomy was insufficient to convince me that
he passed the test by which a manager may be distinguished
from a superintendent.
ISSUE
Did the adjudicator err in ruling that he had
jurisdiction to hear the complaint by finding that
Bateman was not a "manager"?
ANALYSIS
Introduction:
The wrongful dismissal provisions of the Canada
Labour Code were considered by Strayer J. in
Sedpex, Inc. v. Canada (Adjudicator appointed
under the Canada Labor Code), [1989] 2 F.C. 289
(T.D.). His Lordship summarized the procedure
under the legislation as follows (at page 293):
Section 61.5 [as it then was, now 240] was inserted into the
Code to provide, in effect, a grievance procedure for federally
regulated employees not protected by collective bargaining
agreements, allowing them to file complaints with respect to
unjust dismissal. Where such a complaint is filed and the
matter is not otherwise settled the Minister can appoint an
Adjudicator. If the Adjudicator after holding a hearing con
cludes that the person was unjustly dismissed he can order
compensation or reinstatement of that person or some other
appropriate remedy. Subsection 61.5(4) specifically provides
that no civil remedy which an employee may have against his
employer is suspended or affected by this section.
Before addressing the substantive issue of
whether or not Bateman was a "manager" within
the meaning of the Code, some preliminary issues
should be addressed. First, it must be observed
that the proceedings before the adjudicator are
shielded in certain circumstances from judicial
review by the following privative clauses:
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.
In my opinion, these privative clauses do not pose
an obstacle to judicial review in the case at hand.
In Sedpex, supra, prohibition was sought to pre
vent an adjudicator from hearing a complaint of
unjust dismissal on the ground that the adjudicator
lacked jurisdiction because the termination was
purportedly due to a lay-off for a "lack of work",
which under the Code precluded consideration of
the complaint. Strayer J. ruled that the privative
clauses quoted above did not impede the power of
the Court to review for jurisdictional errors. He
stated (at page 295, footnotes omitted):
It is also important to note the privative clauses .... While
[subsection 243(1)1 might in any event be irrelevant as no
"order" has been made by the adjudicator, [subsection 243(2)1
which purports to preclude any court process "to ... prohibit or
restrain an adjudicator in any of his proceedings" might be
thought to apply. However, it has long been established that,
notwithstanding such privative clauses, if a tribunal has exceed
ed its jurisdiction then judicial review of its decision is permissi
ble on the jurisdictional issue. Further, the courts have greatly
expanded the concept of jurisdictional error to include decisions
made in bad faith, decisions made on irrelevant material,
decisions made without regard to relevant material, misinter
pretations of statutes, and breaches of natural justice.
As a jurisdictional question is also at issue in the
case at hand, judicial review is also permissible in
this case.
Jurisdiction of the Adjudicator and the Standard
of Review:
Second, the appropriate standard of judicial
review must be determined. The respondent Bate-
man argued forcefully that the Court should not
interfere with the adjudicator's preliminary deci
sion, submitting that the Court should not in effect
substitute its conclusion on this issue for that of
the adjudicator. In my opinion, however, it is
appropriate for the Court in this case to determine
the legal issues in this matter in advance of any
further proceedings, and then consider whether
prohibition should be granted because the
adjudicator was without jurisdiction. There is au
thority that in cases where the issues are essential
ly legal, and the facts are not in dispute, it is
appropriate for the Court to consider the legal
issues and decide if there has been any excess of
jurisdiction by the tribunal that would warrant
prohibition: Bell v. Ontario Human Rights Com
mission, [1971] S.C.R. 756. This case turns on a
relatively discrete legal question, the interpretation
to be accorded to the term "manager". Also, the
justification for such review is stronger in the case
at hand than in Bell. In this case, the Court has
the benefit of the extensive findings of fact made
by the adjudicator, and the legal issues have been
argued extensively before both the adjudicator and
the Court. In Bell no submissions were made to
the tribunal before prohibition was sought, which
meant that the reviewing court in that case was
deprived of the expertise of the tribunal. As for
facts, the evidence before the Court in Bell consist
ed of a single affidavit from the applicant.
I would also add that in addition to being con
sistent with Bell, review for jurisdictional error in
this case would also be in accordance with the
most recent tests on judicial review established by
the Supreme Court of Canada.
In order for this Court to grant prohibition, the
adjudicator must have assumed jurisdiction he did
not have. In the case at hand, the adjudicator
could have exceeded his jurisdiction in one of two
ways, depending on the interpretation placed upon
subsection 167(3) and in particular the word
"manager". If it is determined that the question of
who is a "manager" for the purposes of subsection
167(3) is one that Parliament intended was to be
within the jurisdiction conferred on the adjudica
tor, his decision cannot be reviewed for excess of
jurisdiction unless the interpretation he has made
is patently unreasonable: Canadian Union of
Public Employees local 963 v. New Brunswick
Liquor Corporation, [1979] 2 S.C.R. 227. On the
other hand, if it is determined that subsection
167(3) is a legislative provision conferring or limit
ing the adjudicator's jurisdiction, the proper stand
ard of review is not whether the decision is "pat-
ently unreasonable", but its "correctness" as
determined by this Court: Syndicat des employés
de production du Québec et de l'Acadie v. Canada
Labour Relations Board, [1984] 2 S.C.R. 412.
The law on this issue was summarized as follows
by Beetz J. in U.E.S., Local 298 v. Bibeault,
[1988] 2 S.C.R. 1048, at page 1086:
It is, I think, possible to summarize in two propositions the
circumstances in which an administrative tribunal will exceed
its jurisdiction because of error:
1. if the question of law at issue is one within the tribunal's
jurisdiction, it will only exceed its jurisdiction if it errs in a
patently unreasonable manner; a tribunal which is com
petent 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 Lee-Shanok v. Banca Nazionale Del Lavoro
of Canada Ltd., [1987] 3 F.C. 578, Stone J.A. for
the Federal Court of Appeal held that the determi
nation of "manager" by an adjudicator involved
the interpretation of a statutory provision that
confers or limits jurisdiction. Therefore, the test of
"patent unreasonableness" is not applicable in this
case, and the adjudicator's decision is reviewable
for mere errors of law.
I respectfully adopt the reasoning of the Federal
Court of Appeal in Lee-Shanok as determinative
of the jurisdictional issue. However, since that
decision the Supreme Court of Canada has refined
and modified the test to be used in determining
whether the interpretation of a statutory provision
can be classified as conferring jurisdiction, or as a
matter within the jurisdiction of the adjudicator.
In Bibeault, supra, Beetz J. held that a "pragmat-
ic, functional approach" must be adopted in the
resolution of this issue [at page 1088]:
The formalistic analysis of the preliminary or collateral
question theory is giving way to a pragmatic and functional
analysis, hitherto associated with the concept of the patently
unreasonable error. At first sight it may appear that the
functional analysis applied to cases of patently unreasonable
error is not suitable for cases in which an error is alleged in
respect of a legislative provision limiting a tribunal's jurisdic
tion. The difference between these two types of error is clear:
only a patently unreasonable error results in an excess of
jurisdiction when the question at issue is within the tribunal's
jurisdiction, whereas in the case of a legislative provision
limiting the tribunal's jurisdiction, a simple error will result in a
loss of jurisdiction. It is nevertheless true that the first step in
the analysis necessary in the concept of a "patently unreason
able" error involves determining the jurisdiction of the adminis
trative tribunal. At this stage, the Court examines not only the
wording of the enactment conferring jurisdiction on the
administrative tribunal, but the purpose of the statute creating
the tribunal, the reason for its existence, the area of expertise of
its members and the nature of the problem before the tribunal.
The "pragmatic, functional approach" to questions
of jurisdiction was endorsed by the Supreme Court
of Canada in Caimaw v. Paccar of Canada Ltd.,
[1989] 2 S.C.R. 983, and Canada (Attorney Gen
eral) v. Public Service Alliance of Canada, [1991]
1 S.C.R. 614. In my opinion, the application of the
factors set out in Bibeault to the case at hand yield
the same conclusion as to jurisdiction reached by
Stone J.A. in Lee-Shanok.
With respect to the wording of the enactment,
the primary provision is subsection 167(3), which
reads as follows:
167. ...
(3) Division XIV does not apply to or in respect of employees
who are managers.
It is apparent that in expressly excluding the
application of the unjust dismissal provisions in
Division XIV of the Code to "managers", Parlia
ment intended this provision to define and limit
the inquiry upon which an adjudicator is entitled
to embark. Subsection 167(3) is clearly "jurisdic-
tional" in the sense that that term is normally
understood. It is true that because "manager" is
not defined in the Code, it could be argued that
this could be a question to be left to the judgment
of the adjudicator. Such an approach, though,
could result in the scope of the adjudicator's juris
diction being extended far beyond what Parlia
ment intended, should the adjudicator adopt an
exceedingly narrow definition of "manager". As
Heald J.A. noted in Avalon Aviation, supra, a
comparison of "manager" in subsection 167(3)
with the term in immediately preceding subsec
tions suggests that it is to have a somewhat nar
rower meaning in subsection 167(3) than in other
contexts. However, in the absence of an express
provision in Division XIV that the determination
of this point is within the exclusive jurisdiction of
the adjudicator, I am reluctant to conclude that
the adjudicator can entertain complaints from
employees even if such a conclusion would verge
on being "patently unreasonable". This could
result in rendering the clear limitation in subsec
tion 167(3) practically superfluous.
As for the purpose of the statute and the reason
for the adjudicator's existence, it appears from a
reading of Division XIV that its purpose was to
provide a summary grievance procedure for non-
unionized workers in federal jurisdiction that
would mirror the protection available to those
employees protected by collective agreements: see
the quote from Strayer J. in Sedpex, supra. As
managers are not able to avail themselves of the
grievance procedure in the usual labour relations
context, it stands to reason that certain managers
were not intended to have the benefit of Division
XIV, bearing in mind the conclusion in Avalon
that subsection 167(3) was not intended to exclude
from adjudication all those persons who exercise
some management functions. I would therefore be
reluctant to read subsection 167(3) as departing
too far from the classifications used in normal
labour relations.
As for the area of expertise of the adjudicator, it
is true that adjudicators appointed under section
240 of the Code generally possess specialized
knowledge and experience in certain unjust dismis
sal matters. However, the legislation in question
does not make it clear that a dispute such as that
in the case at hand was intended to be resolved by
the adjudicator.
Applying a "pragmatic and functional
approach", I would conclude that, on the balance,
it was not intended that the determination of the
question of who is a "manager" for the purposes of
subsection 167(3) was intended to be within the
jurisdiction conferred on the adjudicator. The next
step is to examine the adjudicator's interpretation
of "manager" in order to determine if the
adjudicator erred in law in his interpretation. As
"manager" is not a defined term, it is necessary to
consult previous decisions in order to determine its
definition.
In Lee-Shanok v. Banca Nazionale del Lavoro
of Canada Ltd., the adjudicator determined that
he did not have jurisdiction in view of his finding
that the applicant was a "manager". He had been
hired as a Chief Foreign Exchange Trader in
December 1982, but worked only as a Foreign
Exchange Trader until he was dismissed in March
1985. The applicant's duties involved trading in
foreign currency markets, which was considered to
be a highly skilled position. In so doing he oper
ated within restrictions and guidelines set down by
the company. He did not supervise any other
employees, nor discipline them or review their
performance. Shortly before his dismissal he was
re-titled as "Assistant Vice-President", with an
increase in annual salary of $10,000, but his au
thority and duties remained unchanged. The Fed
eral Court of Appeal found that he was not a
manager. Stone J.A. stated, at pages 588-589:
In my view, care must be taken in determining whether a
particular complainant is a "manager". [Section 240] of the
Code provides employees not covered by a collective agreement
with a remedy against unjust dismissal and the exception found
in [subsection 167(3)] subtracts employees who are "manag-
ers" from the body of persons enjoying that right. Consequent
ly, the exception should not be wielded so as to strip the
applicant of this protection simply because his job required him
to exercise the power of independent decision making. As the
adjudicator points out, the very nature of the applicant's
employment as a foreign exchange trader on the trading room
floor required such power and flexibility. His effectiveness
depended on it. But to base a classification of "manager"
principally upon that fact is, in my view, to consider his position
in isolation from the overall organization in which he func
tioned. If the adjudicator's reasoning be correct, then the
applicant would have to be classified as a "manager" even if he
had worked alongside several other foreign currency dealers
having the same authority to trade. Indeed, his fellow traders
would have to be so classified as well. I cannot agree with this
reasoning.
Stone J.A. reviewed the authorities and found that
the term "manager" had an administrative as
opposed to operational nature, and that the appli
cant's duties did not contain an administrative
element. He stated, at pages 589-590:
In the Gauthier case, at page 4 of his decision the adjudica
tor defined "manager" for the purposes of subsection 27(4) as
"an administrator having power of independent action, autono
my, and discretion", and on review, Mr. Justice Pratte found no
error of law in his treatment of the term. The adjudicator in the
Desgagné case adopted this definition, and his interpretation of
the subsection was, in turn, approved by Mr. Justice Heald at
page 341 of his judgment. With respect, it seems that the
adjudicator in the present case neglects the "administrator"
component of this judicially approved definition, an element
reflected in the terni "directeur" which appears in the French
text of the subsection and which is defined by Le Petit Robert
as "personne qui dirige, est a la tete". It is clear that the
applicant did not, in the sense of these definitions, direct or
administer anything. He had virtually no input into the estab
lishment of the guidelines; he merely did his job as a trader
within their parameters. Perhaps, having hired the applicant as
Chief Foreign Exchange Dealer, the respondent envisaged that
he would become the head of a currency exchange department
consisting of a number of traders. The reality of the situation
was that he functioned simply as the sole foreign exchange
trader, a role of an operational rather than administrative
nature. I fail to see how his job contained the administrative
element which I consider the term "manager" requires.
Accordingly, in my view, the adjudicator erred in determining
he was without jurisdiction to dispose of the applicant's com
plaint on its merits.
In my opinion, the adjudicator erred in his
interpretation of subsection 167(3). He stated that
in order to be considered a "manager" within the
meaning of that subsection, "the degree of autono
my exercised by an employee must be, if not
absolute, then very considerable". With respect to
the adjudicator, such an approach extends the law
on this issue considerably farther than envisaged
by the Federal Court of Appeal. While a manager
must be "an administrator having power of
independent action, autonomy and discretion", it is
unrealistic to demand that such autonomy
approach the absolute in order to be considered a
"manager", even in the "narrow" sense of subsec
tion 167(3). As counsel for the applicant argued,
even the Chairman of the Board of a large corpo
ration does not have absolute autonomy; he must
answer to the Board of Directors. It is undisputed
that Bateman did exercise significant autonomy
and discretion in his position, with respect to sal
aries, discipline and the power to hire and transfer
employees. Indeed, the adjudicator concluded that
"the complainant did in fact exercise a degree of
autonomy and independence, which enabled him to
decide certain issues within a fairly tight frame
work established by his superiors in Toronto." The
evidence also shows that even on the occasions
when Bateman was required to seek approval of
his decisions, his recommendations were generally
accepted. The adjudicator seems to have focused
instead on the occasional rejection of Bateman's
recommendations by his superiors as more
compelling.
In my opinion, the duties entrusted to the com
plainant as head of the Vancouver RDC clearly
contained the "administrative element" required
by Stone J.A. in Lee-Shanok. As a senior member
of the CIBC management, he was required to
administer a large department and supervise some
200 employees. There is no indication in Lee-
Shanok that the complainant's autonomy and
power to administer must be as independent from
outside review as is required by the adjudicator.
Indeed, it seems implicit from Stone J.A.'s reasons
that a position as "the head of a currency
exchange department consisting of a number of
traders" would be considered sufficiently adminis
trative in nature to be classified as "managerial".
In my opinion, the duties of Bateman in the case at
hand are analogous to this example, and would be
considered "managerial" as well.
Accordingly, the adjudicator is without jurisdic
tion to hear the complaint, and the application for
prohibition is granted. With respect to the applica
tion for certiorari and a stay of proceedings, it is
not necessary to examine these issues. With regard
to certiorari, the adjudicator's decision is neces
sarily quashed because of my ruling that the
adjudicator exceeded his jurisdiction in hearing
the complaint. As for the order seeking a stay of
proceedings in the interim, it appears that the
adjudicator exercised his discretion not to proceed
until a decision came from this Court on the
jurisdictional issue, and therefore a decision on
that point is also unnecessary.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.