A-1031-96
( T-178-96 )
Atomic Energy of Canada Limited (Appellant)
v.
Roya Sheikholeslami (Respondent)
Indexed as: Atomic Energy of Canada Ltd.v. Sheikholeslami (C.A.)
Court of Appeal, Marceau, Strayer and Létourneau JJ.A"Vancouver, January 28; Ottawa, February 24, 1998.
Labour relations — Unjust dismissal — Adjudicator allowing unjust dismissal complaint but denying reinstatement — Employee's back injured at work, incapacitated temporarily — Deemed fit for return to work after time upon review of medical evidence — Failed to return — Dismissed for abandonment of position — Information as to other employment while declaring self unfit for work concealed at hearing of unjust dismissal complaint — Adjudicator's decision not based solely on observations of parties' conduct during hearing — Reinstatement not wrongfully dismissed employee's right — Adjudicator acting within jurisdiction in denying employee's reinstatement — No duty on tribunals to give reasons for decisions but preferable to do so — Adjudicator's decision justified by respondent's dishonesty, attempt to defraud employer.
This was an appeal from a Motions Judge's decision setting aside an Adjudicator's finding which upheld the respondent's complaint of unjust dismissal but denied her reinstatement with the appellant. The respondent had been employed by the appellant, as a chemical research engineer, for more than two years, when on January 5, 1993, while at work, she fell on ice and injured her back severely. Unable to work after the accident, she obtained benefits from the Workers' Compensation Board of Ontario. After a certain time, the Board reviewed the medical evidence and concluded that the respondent was fit to return to work. Having failed to report for duty, she was advised that her employment was terminated for having abandoned her position. The respondent filed a complaint of unjust dismissal under subsection 240(1) of the Canada Labour Code and her complaint was referred to an adjudicator pursuant to subsection 242(1). At the hearing, it was revealed that the respondent had been working at the University of British Columbia from September 1994 to April 1995, a period during which she had declared herself unable to work, and that she had concealed that information. The Adjudicator upheld the complaint but denied her reinstatement, in lieu of which he ordered a lump sum payment. He concluded that there could no longer be a viable employment relationship due to the respondent's dishonesty. The Motions Judge set aside the Adjudicator's award as to the reinstatement, pointing out that it was wrong for the Adjudicator to have based his determination entirely upon his observations of the parties during the four-day hearing before him. That decision was the subject of this appeal.
Held, the appeal should be allowed.
Per Marceau J.A. (Strayer J.A. concurring): The function of an adjudicator under Part III of the Canada Labour Code is not only to receive and assess evidence, but also to apply his expertise in the solution of labour relations disputes to be adjudicated upon. The decision of an adjudicator, made within his jurisdiction, can be overturned on judicial review only if found to be patently unreasonable, that is clearly irrational or not in accordance with reason. The conviction expressed by the Adjudicator to the effect that there had been a breakdown of the employment relationship was rooted in his expertise and such conviction could not be seen as being irrational. It could not be said that the Adjudicator's determination was based entirely on his own observations of the conduct of the parties during the hearing. It was the respondent's attempt to defraud her employer that gave the parties' behaviour during the hearing a special significance. Reinstatement is not a right that a wrongfully dismissed employee possesses. Courts will not order specific performance of a contract of personal service the execution of which requires the constant personal dedication and willingness of one or both parties. Subsection 242(4) of the Code gives an adjudicator full discretion to order compensation in lieu of reinstatement if, in his opinion, the relationship of trust between the parties could not be restored. The Adjudicator acted within his jurisdiction, he exercised his remedial authority as contemplated by Parliament and the conviction on the basis of which he made his decision was drawn from legitimate factors. Once the legitimacy of his conviction has been established, only the mere subjective reasonableness of this conviction could be questioned, which a court of review is not entitled to do.
Per Létourneau J.A. (concurring): The conduct of the parties at a hearing of a complaint of wrongful dismissal was a relevant consideration that the Adjudicator could take into account in deciding the issue of the reinstatement of the respondent following her unjust dismissal. In addition to the parties' demeanour at the hearing, there was devastating evidence as to the respondent's dishonesty toward the Adjudicator and her employer when she lied about the fact that she had been employed at the University of British Columbia after her dismissal by appellant. She tried to benefit from him and her employer by concealing the truth. It is the respondent's dishonesty which convinced the Adjudicator that there could no longer be a viable employment relationship. There is no duty imposed on tribunals to give reasons for their decisions where a statute has not specifically so provided. However, it is necessary to provide details in support of a refusal to reinstate an employee when that decision is based solely on the conduct and attitude of the parties at the hearing of the complaint. Where unjust dismissal is found to have occurred, reinstatement should be the remedy in the absence of clear evidence to the contrary. An adjudicator has discretion not to order reinstatement of an employee, but he must exercise such discretion judicially. The Adjudicator's decision was justified in view of the respondent's dishonesty.
statutes and regulations judicially considered
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 240(1) (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 242 (as am. idem, s. 16).
cases judicially considered
applied:
Williams v. Canada (Minister of Citizenship and Immigration), [1997] 2 F.C. 646 (C.A.); R. v. Shropshire, [1995] 4 S.C.R. 227; (1995), 129 D.L.R. (4th) 657; 102 C.C.C. (3d) 193; 43 C.R. (4th) 269; 65 B.C.A.C. 37; 188 N.R. 284; 106 W.A.C. 37; R. v. Barrett, [1995] 1 S.C.R. 752; (1995), 21 O.R. (3d) 736; 96 C.C.C. (3d) 319; 38 C.R. (4th) 1; 179 N.R. 68; 80 O.A.C. 1; R. v. R. (D.), [1996] 2 S.C.R. 291; (1996), 136 D.L.R. (4th) 525; 144 Sask. R. 81; 107 C.C.C. (3d) 289; 48 C.R. (4th) 368; 197 N.R. 321; R. v. McMaster, [1996] 1 S.C.R. 740; (1996), 181 A.R. 199; [1996] 4 W.W.R. 660; 37 Alta. L.R. (3d) 305; 105 C.C.C. (3d) 193; 46 C.R. (4th) 41; 194 N.R. 278; 116 W.A.C. 199.
considered:
Atomic Energy of Canada Ltd. and Roya Sheikholeslami, [1995] C.L.A.D. No. 1141 (QL); Reg. v. Secretary of State for the Home Department, Ex parte Doody, [1994] 1 A.C. 531 (H.L.).
referred to:
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; 11 Admin. L.R. (2d) 59; 93 CLLC 14,022; 150 N.R. 161; International Brotherhood of Electrical Workers, Local Union 2085 et al. v. Winnipeg Builders' Exchange et al., [1967] S.C.R. 628; (1967), 67 CLLC 14,053; 61 W.W.R. 682; De Francesco v. Barnum (1890), 45 Ch. D. 430; Howarth v. City of Prince George (1957), 14 D.L.R. (2d) 752; 24 W.W.R. 585 (B.C.S.C.); Page One Records Ltd. v. Britton, [1968] 1 W.L.R. 157 (Ch.D.); Ryan v. Mutual Tontine Westminster Chambers Association, [1893] 1 Ch. 116 (C.A.); Red Deer College v. Michaels, [1976] 2 S.C.R. 324; (1975), 57 D.L.R. (3d) 386; [1975] 5 W.W.R. 575; 75 CLLC 14,280; 5 N.R. 99; Molson's Brewery (Ontario) Ltd. and United Brewery Workers, Local 304, Re (1983), 12 L.A.C. (3d) 313 (Ont.); Re United Steelworkers of America, Local 12998 v. Liquid Carbonic Inc. (1996), 29 O.R. (3d) 468 (Div. Ct.).
authors cited
Christie, Innis et al. Employment Law in Canada, 2nd ed. Toronto: Butterworths, 1993.
APPEAL from a Motions Judge's decision ([1996] F.C.J. No. 1547 (T.D.) (Q.L.)) setting aside an Adjudicator's finding which upheld the respondent's complaint of unjust dismissal but denied her reinstatement with the appellant. Appeal allowed.
counsel:
Stephen Bird for appellant.
Stuart A. Rush, Q.C., for respondent.
solicitors:
Kimmel, Victor, Ages, Ottawa, for appellant.
Rush, Crane, Guenther & Adams, Vancouver, for respondent.
The following are the reasons for judgment rendered in English by
Marceau J.A.: Acting pursuant to the authority conferred on him by section 242 in Part III of the Canada Labour Code,1 an Adjudicator denied the respondent's reinstatement to her position with the appellant despite having upheld her complaint of unjust dismissal. On judicial review, the Motions Judge overturned that denial on the basis that the Adjudicator did not have the hard evidence required to support it. This is an appeal from that decision [[1996] F.C.J. No. 1547 (T.D.) (QL)].
The facts are relatively simple and they are undisputed. The respondent had been in the employ of the appellant, as a chemical research engineer, for more than two years when, on January 5, 1993, while at work, she slipped and fell on ice and injured her back. The severe injury to her lower spine rendered her unable to walk. She applied for and was granted benefits by the Workers' Compensation Board of Ontario (the Board).
Several months later, in June, the Board began to explore the possibility of the respondent returning to her job, if not full-time at least on a limited scale, the appellant having made clear its willingness to accommodate any restrictions on the respondent's ability to work. The respondent, who at that time had moved to her sister's residence in Vancouver, immediately sent to the Board the written opinion of her new physician which stated that she was still totally unfit. In September, however, the Board notified the respondent that a review of the medical evidence on file led it to conclude that her condition had improved to the point where she was able to return to work and assume at least reduced duties. Finally, two months later, the Board issued a formal notice to the effect that it now considered the respondent to be fit to return to her pre-injury work.
On being made aware of the Board's ruling, the appellant wrote to the respondent requiring that she resume her work before December 1, 1993, failing which she would be taken as having abandoned her position. The respondent requested some more time to allow her to provide additional medical information, but on December 16, 1993, she was advised that, due to her continuing absenteeism from work, her employment was terminated.
The respondent filed a complaint for unjust dismissal, under subsection 240(1) [as am. idem, s. 15] of the Code,2 to which the appellant responded by stating essentially that it had "found it difficult to evince any cooperation from Ms. Sheikholeslami," adding that "[h]er attitude also indicates to us that the employment relationship is no longer viable." The complaint was then referred to an Adjudicator, pursuant to subsection 242(1) of the Code,3 who scheduled a hearing for July 25 to 27, 1995, which proceeding was postponed until October 17 to 20, 1995.
During the course of the hearing, it was revealed that the respondent had been working as a sessional lecturer and tutor at the University of British Columbia from September 1994 to April 1995. The respondent had concealed that information all that time, representing to the contrary that she was too disabled to work. The Adjudicator felt that the deception had no bearing on whether the dismissal itself was wrongful. Blaming the appellant for having dismissed its employee solely on the basis of the Workers' Compensation Board's conclusion without making its own decision as to the strength of the medical information provided, he upheld the complaint. He found, however, that the respondent's deliberate attempt to conceal the truth and to benefit from the deception should reflect severely in the remedy. He first denied the respondent compensation for lost wages during the period of September 1994 to the time of the hearing, and then he denied her reinstatement, in lieu of which he ordered a lump sum payment. His explanation with respect to the latter denial was the following:
Moreover, the Complainant will not be reinstated to her job. In this respect, I have taken into account that the position held by the Complainant involved a high degree of trust and dependence. Having observed these parties during a protracted hearing lasting four days, it was obvious that the relationship between them had deteriorated to the extent that any hope of a continued employment relationship was already questionable. The Complainant's dishonesty is but the straw that broke the camel's back. I am now convinced that there can no longer be a viable employment relationship. The necessary trust is gone.
The learned Motions Judge readily agreed with the Adjudicator that the respondent's lack of candour with respect to her employment was a proper issue to consider in establishing compensation for lost wages and benefits. However, he disagreed with him as to the reinstatement, stating as follows [at paragraphs 20-22]:
Nevertheless, I am setting aside the Adjudicator's decision to refuse the applicant reinstatement. The function of an Adjudicator at a hearing of this nature is to receive and assess evidence. It is this evidence, and not merely his own assumptions, upon which he must base his decision. Here, there is no reference in the decision to any evidence which supports a finding that there had been a breakdown in the relationship between the parties such as would make reinstatement an impossibility. Rather, the Adjudicator's determination was based entirely upon his own observations of the parties during the four day hearing before him. That is not sufficient.
It is not proper to base a decision with respect to reinstatement on the conduct of the parties during the course of a hearing such as this. The proceedings are quasi-judicial and, by their very nature, adversarial. Parties are represented by lawyers who conduct rigorous cross-examination and engage in ardent debate since it is their clients' right to present a strong case and to make full and complete answer in their defence. That type of atmosphere is not a reliable standard in assessing whether there has been a breakdown of the employment relationship such as would preclude reinstatement.
Before she can be denied the remedy of reinstatement there must be evidence of an objective nature which demonstrates how and why the work relationship has been irretrievably shattered. I would add that is not sufficient for the employer to merely provide subjective speculation as to why reinstatement is not appropriate.
I have serious difficulties with the views of the learned Motions Judge.
I first dispute the validity of his initial statement as to what is expected of an adjudicator. The function of an adjudicator under Part III of the Code is not only to receive and assess evidence, but also to apply his/her expertise in the solution of the labour relations dispute to be adjudicated upon. It is mainly because of the importance of that expertise that Parliament has decided to protect the decision of the adjudicator by the strictest of privative clauses. It has been repeated on numerous occasions that the decision of an adjudicator, not made in excess of his/her jurisdiction, can be overturned on judicial review only if found to be patently unreasonable, that is to say clearly irrational or not in accordance with reason.4 It is clear to me that the conviction expressed by the Adjudicator to the effect that there had been a breakdown of the employment relationship was rooted in his expertise and I do not see how, in the absence of any possibility that it be improperly formed, such conviction could be seen as being irrational.
I also respectfully disagree with the assertion that the Adjudicator's determination here was based entirely on his own observations of the conduct of the parties during the hearing. As I read the reasons, the dishonesty of the respondent and her effort to defraud her employer were the circumstances that gave the behaviour of the parties during the hearing a special significance.
What I find particularly questionable, however, is the overall approach adopted by the learned Motions Judge. Reinstatement, in my understanding, is not a right that a wrongfully dismissed employee possesses as he may possess human rights. It is a long-established common law, as well as civil law, rule that the courts will not order specific performance of a contract of personal service whose execution requires the constant personal dedication and willingness of one or both parties. In the case of a contract of employment, the rule was originally applied to the employee who could not be forced to execute the work contemplated without being subject to constant supervision and reduced to a state tantamount to slavery, but it was soon made applicable as well to the employer on the ground that the obligations were mutual and were meant to be executed under the auspices of a relationship of confidence and trust which can neither be required nor enforced.5
The unfair dismissal provisions for non-unionized employees in the Canada Labour Code no doubt represent a statutory modification of the traditional rule that an employment contract will never be specifically enforced. But they certainly do not, and even could not, go so far as to create a right in the person of the wrongfully dismissed employee. It would be contrary to the common sense that precisely supports the traditional rule. They simply provide for reinstatement as a possible remedy that may be resorted to in proper situations. It is often said that, in practice, it is the remedy favoured by adjudicators in their efforts to "make whole" an employee's real-world losses caused by dismissal.6 It is undisputable, however, on a mere reading of subsection 242(4) of the Code,7 that an adjudicator is given full discretion to order compensation in lieu of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored.
I do not see how it can be disputed that the Adjudicator here acted within his jurisdiction, that he exercised his remedial authority as contemplated by Parliament, and that the conviction on the basis of which he made his decision was drawn from totally legitimate factors. Again, if evidence of facts arising after dismissal cannot be relevant to the issue of unjust dismissal itself, it may be quite relevant to the fashioning of a proper remedy. A look forward, and not backward, is then implied.8
I do not accept that the conduct of parties during a trial would be meaningless because the feelings they may then express toward each other would be influenced by the adversarial nature of the proceedings. In my view, the atmosphere of a courtroom debate may explain and excuse animosity between participants only to a certain extent. Nor do I accept that the Adjudicator had to give details of the events that influenced his thinking so as to show that he was justified in his conclusion that the viability of the employment relationship was definitely impaired, especially in view of the nature of the employment here and the high degree of trust it involved. Regardless of the fact that a multitude of little incidents would then have to be described with great skill, it would be to no avail. Once the legitimacy of his conviction has been established and it becomes apparent that no irrelevant factor played any role, only the mere subjective reasonableness of this conviction could be questioned, which a court of review is not entitled to do. In fact, it would be difficult to suppose that the reviewing court could direct the Adjudicator to impose a remedy that, in the opinion of the Adjudicator, is clearly unworkable.
I suggest, therefore, that the appeal be allowed, the impugned decision of the Trial Division be quashed and the decision of the Adjudicator be confirmed.
Strayer J.A.: I agree.
* * *
The following are the reasons for judgment rendered in English by
Létourneau J.A.: I have had the benefit of reading the reasons of my colleague Marceau J.A. and I agree that the appeal should be disposed of as he suggests.
However, I wish to express a concern with respect to the Adjudicator's finding that the employment relationship was no longer viable and that the necessary trust between the employer and the employee was gone. It is important to reproduce the full text of the relevant passage of the Adjudicator's decision as it was the basis for the learned Motions Judge to interfere with the decision. It reads:
Having observed these parties during a protracted hearing lasting four days, it was obvious that the relationship between them had deteriorated to the extent that any hope of a continued employment relationship was very questionable. The Complainant's dishonesty is but the straw that broke the camel's back. I am now convinced that there can no longer be viable employment relationship. The necessary trust is gone.9
Counsel for the respondent submitted to us that the conduct of the parties at the hearing of a complaint for wrongful dismissal is an irrelevant consideration or an extraneous matter that the Adjudicator cannot take into account in deciding the issue of the reinstatement of the complainant following her unjust dismissal. I disagree.
Both the demeanour of the parties during their testimony10 and their conduct and attitude in the hearing room as the process unfolds11 can be relevant to the appropriateness of reinstatement. However, there are, in my view, necessary limits and safeguards to be respected and I will come to them later.
Counsel for the respondent also contended that there was no evidence before the Adjudicator that the work relationship had been irretrievably shattered. Furthermore, he submitted that it was procedurally unfair for the Adjudicator to base his decision not to order reinstatement on the basis of the conduct of the parties at the hearing without specifying what the elements are of this conduct which are evidence of a breakdown in the employment relationship.
In fairness to the Adjudicator, I must say that, in addition to the parties' demeanour at the hearing, there was devastating evidence of the complainant's dishonesty toward him and her employer when she lied about the fact that she had been working at the University of British Columbia after her dismissal. As he put it, she tried to benefit from him and her employer by concealing the truth.
As for the allegation of procedural unfairness, I think it is clear from a careful reading of the relevant passage of the Adjudicator's decision that he had not concluded that the work relationship had been irremediably shattered until the complainant lied under oath. In other words, he merely concluded from his observation of the conduct of the parties at the hearing that, to use his expression, the hope of a continued employment relationship was very questionable. It is the complainant's dishonesty which tipped the scale and, from then on, convinced him that there could no longer be a viable employment relationship.
Having said that, however, I hasten to add that it is most imprudent for an adjudicator not to identify the elements of the conduct of the parties at the hearing which compromise the work relationship.
There is, as our colleague Strayer J.A. stated in Williams v. Canada (Minister of Citizenship and Immigration),12 no duty imposed on tribunals by the basic tenets of our legal system to give reasons for their decisions where a statute has not specifically so provided.
However, allegations of unfairness resulting from a failure to provide reasons have continued to proliferate and have at times met a sympathetic ear, especially when such failure makes a judicial review of the decision practically impossible. In Reg. v. Secretary of State for the Home Department, Ex parte Doody,13 the House of Lords concluded that procedural fairness required that the Home Secretary gave reasons to a life prisoner as to why the minimum period of imprisonment prior to parole eligibility had been set by him at a length different from that recommended by the judiciary otherwise the prisoner, who has a right to a judicial review of the Home Secretary's decision, would have no means of knowing whether the decision-making process had gone astray. As Lord Mustill put it with respect to the prisoner:
He never sees the Home Secretary; he has no dialogue with him; he cannot fathom how his mind is working. There is no true tariff, or at least no tariff exposed to public view which might give the prisoner an idea of what to expect. The announcement of his first review date arrives out of thin air, wholly without explanation. The distant oracle has spoken, and that is that.14
In R. v. Shropshire,15 Iacobucci J., although reiterating the principle that a trial judge does not err merely because he gave no reasons for his decision, added that generally it is always preferable, in a matter as important as sentencing, for a trial judge to give reasons as it helps the appellate court to assess the reasonableness of the sentencing decision.
In R. v. Barrett,16 he reasserted the same principle and added that there may be some cases where reasons may be necessary.
In R. v. R. (D.),17 Major J. quashed the decision of the Trial Judge because of his failure to deal with bizarre and contradictory evidence relating to the assault allegations. At page 318, he concluded that:
Depending on the circumstances of a particular case, it may be desirable that trial judges explain their conclusion.
In R. v. McMaster,18 Lamer C.J. held that:
. . . in a case where it appears that the law is unsettled, it would be wise for a trial judge to write reasons setting out the legal principles upon which the conviction is based so that an error may be more easily identified, if error there be.
In my view, a decision by an adjudicator not to reinstate an employee who has been wrongfully dismissed may very well be the kind of case that Iacobucci J. had in mind in the Barrett case, supra, that is to say one where it is necessary to provide details in support of the decision when the refusal to reinstate the employee is based solely on the conduct and attitude of the parties at the hearing of the complaint.
It is true that reinstatement is not a right even after a finding of unjust dismissal, but, as I. Christie et al. properly point out, the exception to reinstatement should be applied very cautiously otherwise the risk exists that an unjustly dismissed employee will be penalized by losing his job.19 Indeed, a finding of unjust dismissal is a finding that the work relationship should not have been severed in the first place. In such cases, the presumption is, in my view, clearly in favour of reinstatement unless there is clear evidence to the contrary.
In a matter as fundamental and important for a citizen as the right to work, it is, in my view, not enough for an adjudicator to merely state that on the basis of what he saw at the hearing, without ever saying what it is that he saw, he is convinced that a work relationship between the parties is no longer viable and, therefore, that an employee who has been wrongfully dismissed in the first place ought not to be reintegrated. The already aggrieved employee, who has won his grievance, gets this surprising announcement from the adjudicator for the first time without appropriate explanation. To paraphrase Lord Mustill in the Doody case, supra, the oracle has spoken, and that is that. Where an adjudicator's decision not to reinstate an employee wrongfully dismissed from his work is based solely on the attitude and conduct of the parties at the hearing, proper specifications ought to be given of these elements of the attitude and conduct of the parties which are the basis for such a far reaching decision. Otherwise, it is not only unfair, but it is an invitation to potential abuses as extraneous and irrelevant considerations can be taken into account and be the determinative factor in the decision, proper justification for the employee's attitude can be ignored, important considerations and circumstances can be ignored with impunity, not to mention the possibility for an employer so minded to put up an act in order to reap the benefits of an unjust or unlawful dismissal. An adjudicator has discretion not to order reinstatement of an employee, but he must exercise and be seen to exercise such discretion judicially.
I am satisfied, as I have already indicated before, that in the present instance the finding of the Adjudicator was properly justified by his reference to the complainant's dishonesty.
1 R.S.C., 1985, c. L-2 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16].
2 This provision reads as follows:
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
3 Which reads:
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).
4 See, among many others: Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (C.A.); Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941.
5 See International Brotherhood of Electrical Workers, Local Union 2085 et al. v. Winnipeg Builders' Exchange et al, [1967] S.C.R. 628; Ryan v. Mutual Tontine Westminster Chambers Association, [1893] 1 Ch. 116 (C.A.); De Francesco v. Barnum (1890), 45 Ch. D. 430; Howarth v. City of Prince George (1957), 14 D.L.R. (2d) 752 (B.C.S.C.); Page One Records Ltd. v. Britton, [1968] 1 W.L.R. 157 (Ch. D.); Red Deer College v. Michaels, [1976] 2 S.C.R. 324.
6 It should be noted, however, that between 1978 and 1984, only 54 per cent of unjustly dismissed employees were ordered reinstated. No figures were given for after 1984. See I. Christie, G. England & W. B. Cotter, Employment Law in Canada, 2nd ed. (Toronto: Butterworths, 1993), at p. 709. Besides, I see no reason why a wrongly dismissed employee cannot be "made whole" through an award of damages.
7 This subsection reads as follows:
242. . . .
(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 remuneration 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.
8 See on that point: Molson's Brewery (Ontario) Ltd. and United Brewery Workers, Local 304, Re (1983), 12 L.A.C. (3d) 313 (Ont.).
9 Adjudicator's decision, [1995] C.L.A.D. No. 1141 (QL), at para. 57.
10 Re United Steelworkers of America, Local 12998 v. Liquid Carbonic Inc. (1996), 29 O.R. (3d) 468 (Div. Ct.), at p. 469.
11 Re Canada Post Corporation and Canadian Union of Postal Workers, a decision of an adjudicator rendered on March 31, 1995 for which judicial review was denied by the Ontario Divisional Court on June 26, 1996 in Court File No. 937/95.
12 [1997] 2 F.C. 646 (C.A.), at pp. 672-673.
13 [1994] 1 A.C. 531 (H.L.), at pp. 564-566.
14 Id., at p. 565.
15 [1995] 4 S.C.R. 227, at p. 251.
16 [1995] 1 S.C.R. 752, at p. 753.
17 [1996] 2 S.C.R. 291.
18 [1996] 1 S.C.R. 740, at p. 751.
19 Employment Law in Canada, 2nd ed., Toronto: Butterworths, 1993, at p. 710.