LABOUR RELATIONS |
Serge Lemay Inc. v. Demangeon
T-730-00
Pinard J.
26/1/01
6 pp.
Application for judicial review of decision by adjudicator Marc Poulin pursuant to Canada Labour Code following complaint of disguised and unfair dismissal filed by defendant against plaintiff--By preliminary objection latter challenged arbitrator's jurisdiction, alleging defendant not dismissed but actually resigned--Adjudicator properly decided to hear all evidence on merits before deciding question of jurisdiction in accordance with Code s. 242(2)(b)--However, wrong to impose on plaintiff burden of showing defendant resigned--Only when person alleging unfairly dismissed presents evidence of dismissal that employer has burden of showing dismissal fair--Standard of judicial review of adjudicator's decision on jurisdiction absence of error--Adjudicator therefore erred by imposing on plaintiff burden of establishing alleged resignation of defendant, thus exempting latter from full burden of proving dismissal--Error of law sufficiently serious to vitiate fundamentals of analysis of evidence by adjudicator and so sufficient basis for quashing decision--Application allowed--Canada Labour Code, R.S.C., 1985, c. L-2, s. 242 (am. by R.S.C. 1985 (1st Supp.), c. 9, s. 16; S.C. 1998, c. 26, s. 58).