Penelakut Indian Band v. Charlie
T-183-93
Rouleau J.
24/1/94
8 pp.
Application for judicial review of Adjudicator's decision ordering respondent's reinstatement -- Respondent dismissed as Home School Coordinator of Penelakut Indian Band in 1991 -- Filing complaint for wrongful dismissal -- Labour Affairs Officer reporting Band Chief verbally citing numerous examples to support claim of unsatisfactory performance, but not producing written documentation -- District Manager's memo also stating Chief verbally communicating examples supporting claim of unsatisfactory performance -- Adjudicator appointed when impasse on settlement negotiations -- Unable to contact either Chief or responsible individual -- Evidence management of Band, Council chaotic -- Adjudicator ordering reinstatement as no reasons for dismissal on record as employer not providing written statement of reasons for dismissal -- When notified of Adjudicator's decision, Band's counsel requesting matter be reopened -- Adjudicator refusing to reopen matter, holding functus officio -- Application allowed -- Band's failure to attend hearing resulting from inadvertent error committed by inexperienced personnel -- Although Canada Labour Code providing decision final, not subject to appeal, can be subject to judicial review when establishing error in law, misinterpretation of facts, excess of jurisdiction or "patently unreasonable" -- Labour Affairs Officer, District Manager aware Band alleging dismissal for cause and attempting to negotiate settlement -- Adjudicator restricting herself to her letter of appointment, making no reference to dismissal for cause or ongoing negotiations to settle -- Misdirected herself when wrote employer not participating in proceedings from outset -- Decision ignoring fact Band advising investigator discharging respondent for cause and attempting to negotiate settlement -- Adjudicator never entertaining merits of dismissal -- If matter before tribunal not finally disposed of, could be considered nullity and tribunal must start anew: Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848 -- Having determined Band not interested in proceedings, interim decision tainted -- Initial misdirection sufficient to "bind the tribunal to start afresh in order to cure the defect" -- Adjudicator's duty to dispose of issue tribunal empowered to do by statute -- Chandler decision suggesting flexibility -- Adjudicator master of own procedure and should have reopened proceeding to fully assess merits of complaint -- Code, s. 18 providing CLRB may review, rescind, amend, alter or vary any order or decision, and may rehear any application before making order in respect of application -- Because of applicants' conduct, respondent's counsel awarded costs -- Canada Labour Code, R.S.C., 1985, c. L-2, ss. 18, 242 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16).