A-647-79
Attorney General of Canada (Applicant)
v.
Valmont Gauthier (Respondent)
Court of Appeal, Pratte and Le Dain JJ. and Hyde
D.J.—Quebec City, March 25; Ottawa, June 13,
1980.
Judicial review — Labour relations — Employee, not cov
ered by collective agreement, was dismissed after being
employed for over twelve months — Grievance was referred to
adjudication — Adjudicator allowed respondent's complaint
and ordered employer to reinstate him — Application to
review Adjudicator's decision — Canada Labour Code, R.S.C.
1970, c. L-1, ss. 27(3), 61.5 — Federal Court Act, R.S.C. 1970
(2nd Supp.), c. 10, s. 28.
Respondent was an employee of National Harbours Board
when he was dismissed after having been employed for over
twelve months. Since his conditions of employment were not
covered by a collective agreement, he filed a complaint under
section 61.5 of the Canada Labour Code and his case was
referred to an Adjudicator who held that the respondent had
been unlawfully dismissed since the officer who dismissed him
did not have the authority to do so and ordered the National
Harbours Board to reinstate him in his employment. The
applicant brought the section 28 application to review the
decision on the grounds that (1) respondent was not an
employee to whom Division V.7 of Part III of the Code applied
in that he had replaced the Manager of the Harbour, was
therefore a "manager" within the meaning of section 27(4) of
the Code and could not file a complaint under section 61.5; (2)
the Adjudicator did not have the authority to rule on the
legality of the dismissal: he could only decide whether that
dismissal was unjust; and (3) the Adjudicator exceeded his
jurisdiction in ruling that the dismissal constituted an unduly
harsh penalty and ordering reinstatement. Counsel for the
applicant relied on the case of Port Arthur Shipbuilding Co. v.
Arthurs where the Supreme Court of Canada held that an
Adjudicator had exceeded his jurisdiction by holding that the
offending employee should have been temporarily suspended
from his duties and not dismissed.
Held, the application is allowed. The Court has the jurisdic
tion to review the decision of the Adjudicator on the ground
that the Adjudicator exceeded his jurisdiction even though
section 61.5(10) provides that an order is final and not subject
to review. With regard to the applicant's first argument, the
Adjudicator did not err in law in ruling he had authority to
decide respondent's complaint in that the respondent had
retained his position of chief administrative officer when he
temporarily replaced the Manager and that the word "manag-
er" in section 27(4) is not used in a broad sense as including
any person participating in management, but in a narrower
sense. However, the applicant's second argument is correct.
Under section 61.5 the only function of an Adjudicator is to
determine whether the complainant is right in feeling that he
was unjustly dealt with by being dismissed. The Adjudicator
exceeded his jurisdiction in ruling on the legality of respond
ent's dismissal. It is not necessary to rule on applicant's last
argument since it is challenging a decision which had not been
rendered: the Adjudicator did not hold that respondent's dis
missal should have been replaced by a less harsh penalty as in
the Port Arthur Shipbuilding case, but that respondent had
been unlawfully dismissed and should be reinstated. Also, the
Port Arthur Shipbuilding case does not have the authority
attributed to it since the Supreme Court decision in The
Newfoundland Association of Public Employees v. Attorney
General of Newfoundland.
Port Arthur Shipbuilding Co. v. Arthurs [1969] S.C.R.
85, distinguished. Newfoundland Association of Public
Employees v. Attorney General for the Province of New-
foundland [1978] 1 S.C.R. 524, referred to.
APPLICATION for judicial review.
COUNSEL:
Jean-Marc Aubry for applicant.
Charles-Henri Desrosiers for respondent.
SOLICITORS:
Deputy Attorney General of Canada for
applicant.
Desrosiers & Boucher, Sept-Îles, for respond
ent.
The following is the English version of the
reasons for judgment rendered by
PRATTE J.: This application pursuant to section
28 of the Federal Court Act, R.S.C. 1970 (2nd
Supp.), c. 10, is from the decision of an Adjudica
tor in accordance with Division V.7 of Part III of
the Canada Labour Code, R.S.C. 1970, c. L-1)
1 Division V.7 is titled "Unjust Dismissal". It contains only
one section, section 61.5, which provides machinery whereby an
employee whose conditions of employment are not covered by a
collective agreement may, in the event that he maintains that
he has been unjustly dismissed, submit his complaint to adjudi
cation. It will suffice here to reproduce a few of the fifteen
subsections of this section:
61.5 (1) Subject to subsections (2) and (3), any person
(a) who has completed twelve consecutive months of con
tinuous employment by an employer, and
(b) who is not a member of a group of employees subject
to a collective agreement
may make a complaint in writing to an inspector if he has
been dismissed and if he considers his dismissal to be unjust.
Respondent was an employee of the National
Harbours Board at Sept-Iles when he was dis
missed on April 17, 1979. He had over twelve
months of service and his conditions of employ
ment were not covered by a collective agreement.
As he felt that he had been unjustly dismissed, he
filed a complaint in the manner provided for in
section 61.5. The case was referred to an
Adjudicator, who held that respondent had been
unlawfully dismissed since the officer who had
dismissed him did not have the authority to do so.
The Adjudicator accordingly allowed respondent's
complaint and ordered the National Harbours
Board to reinstate him in his employment. It is this
decision which applicant is now challenging.
(4) Where an employer dismisses a person described in
subsection (1), the person who was dismissed or any inspec
tor may make a request in writing to the employer to provide
him with a written statement giving the reasons for the
dismissal, and any employer who receives such a request
shall provide the person who made the request with such a
statement within fifteen days after the request is made.
(5) On receipt of a complaint made under subsection (1),
an inspector shall endeavour to assist the parties to the
complaint to settle the complaint or cause another inspector
to do so, and, where the complaint is not settled within such
period as the inspector endeavouring to assist the parties
considers to be reasonable in the circumstances, the inspector
so endeavouring shall, on the written request of the person
who made the complaint that the complaint be referred to an
adjudicator under subsection (6),
(a) report to the Minister that he has not succeeded in
assisting the parties in settling the complaint; and
(b) deliver to the Minister the complaint made under
subsection (1), any written statement giving the reasons
for the dismissal provided pursuant to subsection (4) and
any other statement or documents he has that relate to the
complaint.
(6) The Minister may, on receipt of a report pursuant to
subsection (5), appoint any person he considers appropriate
as an adjudicator to hear and adjudicate upon the complaint
in respect of which the report was made, and refer the
complaint to the adjudicator along with any written state
ment giving the reasons for the dismissal provided pursuant
to subsection (4).
(8) An adjudicator to whom a complaint has been referred
under subsection (6) shall consider whether the dismissal of
the person who made the complaint was unjust and shall
render a decision thereon and send a copy of the decision
with the reasons therefor to each party and to the Minister.
(10) Every order of an adjudicator appointed under sub
section (6) is final and shall not be questioned or reviewed in
any court.
Counsel for the applicant argued that the
Adjudicator exceeded his jurisdiction by ruling as
he did, and based his argument on the following
three reasons:
1. Respondent was not an employee to whom
Division V.7 of Part III of the Code applied; he
therefore could not file a complaint pursuant to
section 61.5, and the Adjudicator did not have
the authority to rule on his complaint;
2. The Adjudicator did not have the authority
to rule on the legality of respondent's dismissal:
he could only decide whether that dismissal was
unjust;
3. The Adjudicator also exceeded his jurisdic
tion in ruling that, although respondent's
behaviour was reprehensible, in the circum
stances the dismissal constituted an unduly
harsh penalty; counsel for the applicant cited in
this regard the decision of the Supreme Court of
Canada in Port Arthur Shipbuilding Co. v.
Arthurs 2 in which the Court held that an
Adjudicator hearing a grievance relating to the
dismissal of an employee had exceeded his juris
diction by holding that the offending employee
should have been temporarily suspended from
his duties and not dismissed.
Two observations must be made with regard to
applicant's last argument. The first is that the
decision of the Supreme Court in Port Arthur
Shipbuilding perhaps does not have the authority
attributed to it by applicant since the decision in
The Newfoundland Association of Public
Employees v. Attorney General for the Province of
Newfoundland. 3 The second is that it can be seen
from reading the decision a quo that the Adjudica
tor did not hold that respondent's dismissal should
have been replaced by a less harsh penalty; the
only decision handed down by the Adjudicator was
that respondent had been unlawfully dismissed
and, because of that, should be reinstated in his
employment. Because of this, it will not be neces
sary to examine applicant's last argument, since it
is challenging a decision which has not been
rendered.
2 [1969] S.C.R. 85.
3 [1978] 1 S.C.R. 524.
However, before going any further, another
digression must be made to mention that counsel
for the respondent questioned the jurisdiction of
the Court to review the decision a quo. He cited
subsection 61.5(10), according to which:
61.5 .. .
(10) Every order of an adjudicator appointed under subsec
tion (6) is final and shall not be questioned or reviewed in any
court.
As this provision became effective on June 1, 1978,
a long time after section 28 of the Federal Court
Act, counsel for the respondent argued that it
constituted a bar to the power of review of the
Court under section 28. In order to answer this
argument, it is not necessary to rule on the argu
ment put forward by counsel for the applicant to
the effect that, in order to exclude the power of
review of the Court under section 28, an enact
ment must expressly refer to that power; it is only
necessary to point out that it is well-established
law that, despite legislative enactments like sub
section 61.5(10), the Superior Courts retain a
right of review over the decisions of lower courts
when the latter exceed their jurisdiction. What is
alleged against the Adjudicator by applicant is
precisely that he exceeded his jurisdiction in decid
ing a matter which he did not have the authority to
hear, and in any case, in deciding a point (the
legality of the dismissal) which was not before
him.
I now return to the first two arguments put
forward by applicant.
Counsel for the applicant first contended that
respondent could not take advantage of section
61.5 because respondent was in fact the "manag-
er" of the Sept-Iles Harbour, and because subsec
tion 27(4) of the Canada Labour Code provides
that Division V.7, containing section 61.5, does not
apply to employees "who are managers".'
4 Section 27 indicates the scope of Part III of the Code;
subsections (3)(a) and (4) of this section must be cited here in
order to compare their wording:
27....
(3) Division I does not apply to or in respect of employees
(a) who are managers or superintendents or who exercise
management functions; ...
(4) Division V.7 does not apply to or in respect of
employees who are managers.
Respondent was not the manager of the Sept-
Îles Harbour. His customary function was that of
chief administrative officer. Although the evidence
is not too clear on this point, it would appear that
he was responsible for the day-to-day operation of
the Harbour; in any event he reported immediately
to the General Manager of the Harbour, and was
required to replace him when he was absent. A
short time before respondent's dismissal, the
Manager of the Harbour, a Mr. Cloutier, was
suspended from his duties. Respondent was
accordingly asked to replace him temporarily.
The Adjudicator first held that respondent had
retained his position of chief administrative officer
when he temporarily replaced the Manager, as he
did not enjoy all the powers of the latter. That
being the case, the Adjudicator concluded that the
determination of whether respondent was a
"manager" within the meaning of subsection 27(4)
had to be made in light of his duties as chief
administrative officer. The Adjudicator then
expressed the view that the word "manager" in
subsection 27(4) is not used in a broad sense as
including any person participating in management,
but in a narrower sense. From all of this he
concluded that respondent was not a "manager"
within the meaning of subsection 27(4).
I should say that I find no error of law in this
reasoning; and the evidence relating to respond
ent's duties appears to me to be so hazy and
inconclusive that I cannot say that the Adjudicator
erred in ruling that he had authority to decide
respondent's complaint.
Applicant's second argument is that the
Adjudicator exceeded his jurisdiction in ruling on
the legality of respondent's dismissal. In my view
this argument is correct. Under section 61.5, the
only function of an Adjudicator is to determine
whether the complainant is right in feeling that he
was unjustly dealt with by being dismissed. In my
opinion an Adjudicator exceeds his jurisdiction
and decides a question which is not before him
when he rules, as the Adjudicator in the case at
bar did, on the legality of the dismissal.
For these reasons, I would allow the application
and refer the case back to the Adjudicator for him
to decide whether respondent was unjustly dis
missed, and for him to make, as may be required
and as he shall see fit, the orders contemplated by
subsection 61.5(9).
* * *
LE DAIN J.: I concur.
* * *
HYDE D.J.: I concur in the opinion of Pratte J.
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.