Wolf Lake First Nation v. Young
T-1479-96
Nadon J.
28/4/97
28 pp.
Application for judicial review to quash decision of adjudicator finding respondent unjustly dismissed from position of Economic Development and Education Officer by Wolf Lake First Nation Band Council (interim award) and decision determining quantum of damages (supplementary decision) (eight months' salary plus personal expenses incurred in preparation of complaint, legal costs and interest)-Position eliminated due to alleged financial constraints while respondent on maternity leave-Subsequent to dismissal, Band Council received funding from Local Aboriginal Management Board in order to hire band member to perform functions identical to those performed by respondent-Allegation position discontinued not depriving adjudicator of jurisdiction pursuant to Code, s. 242 as adjudicator correct in finding employer's allegation of discontinuance not supported-Application dismissed-Application for judicial review of interim award out of time-Even if not out of time, findings of adjudicator should not be interfered with as ample evidence to support conclusions and as no error of fact or law-Respondent clearly let go for some reason other than financial difficulties and Band not able to meet burden of proof and demonstrate just or bona fide reason for dismissing her-No reasonable apprehension of bias-Adjudicator could not reserve jurisdiction to determine award if parties failed to reach agreement-When decided issue of unjust dismissal, was functus officio and applicant ought to have filed application for judicial review within 30 days of receiving decision-Code, s. 18, authorizing Board to review, rescind, amend alter or vary order or decisions made by it, not applying to adjudicator-Adjudicator appointed pursuant to Code, s. 242 not employee of Labour Canada-Fact adjudicator allowed into evidence letter considered later as possibly counterproductive not creating reasonable apprehension of bias-With respect to supplementary award-Letter by counsel for respondent not creating reasonable apprehension of bias-Issues raised therein properly before adjudicator during second hearing and all parties had opportunity to address issues and put evidence before adjudicator-Adjudicator awarding damages for unjust dismissal entitled to set amount of award-Award intended to compensate employee for damages actually suffered as result of dismissal-Would be error to limit award to amount of severance in case of justified dismissal based on Code, s. 235 or common law-Award not unreasonable and can be objectively justified-Lost remuneration: adjudicator did not compensate respondent for entire period of unemployment between date of dismissal and date of award even though Code allows for that-Therefore, quantum not calculated based on punitive principles, which is not permitted-Award of personal expenses not interfered with as nothing to establish decision reached in perverse or capricious manner or without regard to evidence-Legal costs awarded by adjudicator in view of respondent's dire financial circumstances, as would be equitable in order to remedy damage caused by former employer-No reason to interfere with award of legal costs and interest-Canada Labour Code, R.S.C., 1985, c. L-1, ss. 18, 235 (as am. by R.S.C., 1985 (2nd Supp.), c. 32, s. 41), 242 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16).