Maliseet Nation at Tobique v. Bear
T-2020-97
Pinard J.
2/12/99
13 pp.
Judicial review of Adjudicator's decision on grounds lacked jurisdiction, findings not supported in fact, law-Respondent employed by applicant for 17 years-In February 1996 received notification would be laid off next day due to budgetary constraints-While 20 employees laid off at same time, applicant also retaining 20 employees, some of whom having less service than respondent-Respondent filing complaint of unjust dismissal-Adjudicator finding respondent unjustly dismissed, ordering applicant to reinstate respondent-To date respondent not reinstated-Canada Labour Code, s. 242(3.1)(a) providing no complaint shall be considered by adjudicator where person laid off because of lack of work or discontinuance of function-Application dismissed-Adjudicator having jurisdiction to hear complaint of unjust dismissal once employer's actions found to disclose clear intention to end employment relationship: Srougi v. Lufthansa German Airlines (1988), 93 N.R. 244 (F.C.A.)-Determination of whether respondent dismissed by applicant precondition to Adjudicator's jurisdiction: Sagkeeng Education Authority Inc. v. Guimond, [1996] 1 F.C. 387 (T.D.-Adjudicator thus obliged to examine evidence to assess whether employer making bona fide lay-off or whether dismissal-Within adjudicator's jurisdiction to consider merits of employer's assertion termination due to either lack of work or discontinuance of function-Adjudicator rightly considered evidence, assumed jurisdiction-Incumbent upon adjudicator to examine all circumstances surrounding lay-off including competency of employee, length of service, possible motives, whether employee recalled at next possible opportunity-Obligation to thoroughly examine whether lay-off reasonable in light of all evidence-As no direct evidence of lack of work or of discontinuance of function, Adjudicator justified to consider whether employer acted in discrimi natory, arbitrary manner in selecting respondent for layoff-Adjudicator not persuaded lay-off neither arbitrary nor discriminatory-Not basing decision on erroneous finding of fact, made in perverse, capricious manner or without regard for material before it-High degree of deference must be accorded to Adjudicator's decision, standard of patent unreasonableness applied, given: privative clause in s. 243(1); that Adjudicator acting within limits of jurisdiction conferred by Code; administrative structure imposed by Code creating effective mechanism to achieve goals of managing interests of employers with aim of effecting solutions concurrently balancing advantages, disadvantages of parties involved; Adjudicator possessing high degree of expertise; that issue primarily based on factual findings-Respondent's position re-filled in mid-April when Band received new monies, but respondent never contacted in regard to opening-Respondent requesting in writing to be reinstated in February 1996 following lay-off-Applicant aware of respondent's desire to be placed in new position-Applicant cannot argue respondent not asking for position with it-Adjudicator not incorrect in interpretation of facts-Award at issue solidly based on written, oral evidence-Adjudicator's conclusion respondent constructively dismissed reasonable-Canada Labour Code, R.S.C., 1985, c. L-2, ss. 242(3.1)(a) (as enacted by R.S.C., 1985 (1st Supp.), c. 9, s. 16), 243(1).