A-347-96
Éric F. Lemieux (Appellant)
v.
Michel Gobeil, in his capacity as Labour Affairs Officer, Human Resources Development Canada, Canadian Broadcasting Corporation (Respondents)
Attorney General of Canada (Intervener)
Indexed as: Lemieuxv. Canada (Labour Affairs Officer, Human Resources Development) (C.A.)
Court of Appeal, Denault J.A. (ex officio), Desjardins and Décary, JJ.A."Montréal, May 15; Ottawa, June 4, 1998.
Labour relations — Powers of inspector under Canada Labour Code with respect to unjust dismissal complaint — Inspector without power to determine complaint unfounded on ground not in relation to true dismissal as merely non-renewal of determinate contract — Matter for adjudicator.
When the Canadian Broadcasting Corporation informed the appellant that it did not intend to renew his contract of employment, the appellant filed a complaint of unjust dismissal under sections 240 et seq. of the Canada Labour Code. The inspector then asked the CBC to give the reasons for the dismissal. The CBC answered that it had simply decided not to renew the appellant's contract, and that this was not a matter of dismissal. Without informing the appellant of the CBC's position and without giving the appellant an opportunity to comment, the inspector informed the appellant that the complaint was unfounded "since the non-renewal of fixed-term contracts does not constitute dismissal". When the appellant replied that this was a matter for the adjudicator, the inspector replied that it was his responsibility "to ensure that anyone who files a complaint of unjust dismissal meets the requirements set out in section 240 of the Code in respect of whether the complaint is founded". A Judge of the Trial Division dismissed the appellant's application for judicial review, finding that "it is the inspector's responsibility as the first person receiving the complaint to refuse to act on it if it is inadmissible on its face". The Judge added that "a screening mechanism is required to eliminate complaints that do not meet the preconditions". The appeal from that decision required the Court to consider the respective roles of the inspector and adjudicator under the Code.
Held, the appeal should be allowed.
The role of the inspector is so limited that he must only collect information relating to the reasons and circumstances of the dismissal, without drawing conclusions therefrom. Another inspector may be caused to endeavour to assist the parties upon receipt of the complaint. The only purpose of the report made to the Minister under subsection 241(3) is to report "that the endeavour to assist the parties to settle the complaint has not succeeded". What is delivered to the Minister is not a conclusion or finding of fact the inspector may have drawn from examining the case, but only the documents received. Moreover, the Act makes no provision for the inspector to meet the parties in the course of endeavouring to settle the complaint, and does not require that the inspector inform them of their respective positions. From a review of the specific duties assigned to an inspector, it is clear that, as a general rule, the duties performed and the decisions made by him are administrative in nature and cannot raise questions such as those raised herein.
Assuming that the inspector could decide whether or not there had been a dismissal, the decision could not stand up to an application for judicial review, in that the decision was made extremely summarily, based solely on the written representations of the CBC, which were not based on any documentary evidence, and the content of which were not brought to the attention of the complainant.
The inspector is not the proper person to whom the matter should be referred back. Since the inspector will never have anything in front of him but the record, as put together by himself, and since he has none of the powers to investigate and determine that the adjudicator has under subsection 242(2), he could never proceed otherwise than "summarily and on a preliminary motion", which would be unacceptable every time. Accordingly, the fact that the inspector does not have the powers required to hold a hearing that respects the parties' rights is a certain, and even conclusive indication that it is not for him to determine whether or not there has been a dismissal. Only the adjudicator has the power, under subsection 242(1), to "hear and adjudicate on the complaint". To find otherwise would be opening the door to a host of applications for judicial review of conclusions reached by an official who has no decision-making power, and this would amount to putting an extra spoke in the wheel of a process that is supposed to be expeditious.
Contrary to what the inspector contended in his letter, the decision of this Court in Eskasoni School Board and Eskasoni Band Council v. MacIsaac et al. (1986), 69 N.R. 315 (F.C.A.) did not decide forever that where fixed-term contracts are not renewed, there has been no dismissal within the meaning of section 240.
The conclusion that the inspector did not have the power to determine a complaint to be unfounded on the ground that it was not in relation to a true dismissal was consistent with the decisions of this Court, which have held (a) that one of the essential prerequisites for an adjudicator's consideration of an unjust dismissal complaint is that the complainant prove that he or she was dismissed; (b) that the adjudicator has the authority to dispose of that question; and (c) that the standard for review of the adjudicator's decision is absence of error.
A review of that case law shows that many complex questions of law may be raised in applying the requirements for a complaint of unjust dismissal to be founded. It is difficult to believe that Parliament's silence with respect to the authority of inspectors to dispose of those questions may be interpreted as recognition of that authority.
The Trial Division decision was therefore overturned and the judgment which should have been given below was substituted. The inspector's decision was set aside and the inspector (or another) ordered to undertake conciliation between the parties, as provided by subsection 241(2) of the Canada Labour Code.
statutes and regulations judicially considered
Canada Labour Code, R.S.C., 1985, c. L-2, ss. 16(a),(b),(c), 172.1 (as enacted by S.C. 1993, c. 42, s. 16), 182, 222, 223, 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 241, 242(1),(2),(3) (as am. idem, s. 16), (3.1) (as am. idem), (4), 248, 249(1),(2),(3),(4),(5),(6) (as am. by S.C. 1993, c. 42, s. 35), (7) (as am. idem), (8) (as am. idem), 250, 251 (as am. idem, s. 36), 251.1 (as enacted idem, s. 37), 251.11 (as enacted idem), 251.12 (as enacted idem), 252 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 18; S.C. 1993, c. 42, s. 38).
Canadian Human Rights Act, R.S.C., 1985, c. H-6, s. 11.
Federal Court Rules, 1998, SOR/98-106, R. 403.
Inquiries Act, R.S.C., 1985, c. I-11.
cases judicially considered
applied:
Srougi v. Lufthansa German Airlines (1988), 93 N.R. 244 (F.C.A.).
considered:
Fréchette v. Canadian Pacific Limited and Canada et al. (1984), 60 N.R. 177 (F.C.A.); Eskasoni School Board and Eskasoni Band Council v. MacIsaac et al. (1986), 69 N.R. 315 (F.C.A.); 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.).
referred to:
Sagkeeng Education Authority Inc. v. Guimond, [1996] 1 F.C. 387; (1995), 16 C.C.E.L. (2d) 259; 103 F.T.R. 274 (T.D.); Sedpex, Inc. v. Canada (Adjudicator appointed under the Canada Labour Code), [1989] 2 F.C. 289; (1988), 34 Admin. L.R. 23; 25 F.T.R. 3 (T.D.); Beothuk Data Systems Ltd., Seawatch Division v. Dean, [1996] 1 F.C. 451; (1995), 102 F.T.R. 241 (T.D.); revd [1998] 1 F.C. 433 (C.A.); Canadian Airlines International Ltd. v. Husain, [1998] F.C.J. No. 607 (C.A.); Lee-Shanok v. Banca Nazionale del Lavoro of Canada Ltd., [1987] 3 F.C. 578; (1987), 26 Admin. L.R. 133; 76 N.R. 359 (C.A.); Standard Radio Inc. v. Canada (Attorney General and Minister of Labour) et al. (1989), 96 N.R. 388 (F.C.A.).
APPEAL from a Trial Division decision (Lemieux v. Canadian Broadcasting Corporation et al. (1996), 120 F.T.R. 193 (F.C.T.D.)) dismissing an application for judicial review of the decision of an inspector under the Canada Labour Code dismissing as unfounded an unjust dismissal complaint on the ground that non-renewal of a fixed-term contract did not constitute dismissal. Appeal allowed.
counsel:
David Rhéaume for appellant.
Raymond Piché and Nadine Perron for respondents and intervener.
solicitors:
Grégoire, Payette, Rhéaume, Granby, Quebec, for appellant.
Deputy Attorney General of Canada for respondents and intervener.
The following is the English version of the reasons for judgment rendered by
Décary J.A.: This appeal requires that we examine the respective roles of the inspector and adjudicator when a complaint of unjust dismissal is filed under Division XIV [sections 240 to 246] of the Canada Labour Code, R.S.C., 1985, c. L-2, as amended (the Code). The more specific question that arises is whether, when the inspector receives a complaint from a person who "has been dismissed and considers the dismissal to be unjust" (section 240 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15]), the inspector has the authority to ascertain personally at the outset whether the unjust dismissal in question was truly a dismissal, regardless of whether it was just or unjust, and if the inspector concludes that it was not, to personally determine the complaint to be unfounded.
The facts
The facts are very simple. The appellant was employed by the Canadian Broadcasting Corporation (the CBC) when his employer informed him, on April 8, 1994, of its intention not to renew the contract of employment, which was ending on June 30, 1994.
On July 11, 1994, the appellant filed a complaint of unjust dismissal with Labour Canada under sections 240 et seq. of the Canada Labour Code. The "government official who received the complaint" was Michel Gobeil (A.B., at page 43).
On July 19, 1994, an operations clerk at Labour Canada informed the appellant that Michel Gobeil, a "labour affairs officer", [translation ] "[had] been assigned to investigate this case" (A.B., at page 45).
On October 26, 1994, Mr. Gobeil (the inspector) asked the CBC, under subsection 241(1) of the Code, to "provide . . . a written statement giving the reasons for the dismissal" (emphasis added).
On November 2, 1994, the CBC provided a written statement indicating:
[translation] . . . the Corporation believes that the complainant's contract was not renewed, and not that he was dismissed, and that it was justified and entitled not to renew the complainant's contract.
In the circumstances, the Corporation reserves the right to raise any objection to that effect, at the appropriate time, before a tribunal of competent jurisdiction.
No copy of that letter was sent to the appellant.
On November 15, 1994, the inspector informed the appellant of his "decision", as follows:
[translation] Your complaint is considered to be unfounded since the non-renewal of fixed-term contracts does not constitute dismissal.
The Department's position was adopted pursuant to the judgment of the Federal Court of Appeal in the Eskasoni School Board case. I attach hereto a copy of that judgment and the decision of the Supreme Court of Canada refusing to hear the case. Accordingly, I have no choice but to close your file. [A.B., at page 50.]
On December 6, 1994, the appellant replied as follows:
[translation] I have read your decision to treat my complaint as unfounded. However, I believe that this question in fact falls within the authority of an adjudicator acting under Division XIV of the Canada Labour Code.
Accordingly, under section 241 of the Code, I would ask you to report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded so that an adjudicator may be appointed in my case as soon as possible. [A.B., at page 48.]
On December 22, 1994, the inspector put an end to the discussion, as follows:
[translation] In reply to your letter of December 6, 1994, I would like to remind you that one of our responsibilities as labour affairs officers is to ensure that anyone who files a complaint of unjust dismissal meets the requirements set out in section 240 of the Code in respect of whether the complaint is founded. [A.B., at page 49.]
It should be noted that the inspector, Mr. Gobeil, made his "decision" solely on the basis of the letter written by the CBC on November 2, 1994, without having a copy of the contract of employment and without asking the appellant about his employer's arguments.
The appellant applied to the Trial Division of this Court, which dismissed his application for judicial review, essentially on the following ground (Lemieux v. Canadian Broadcasting Corporation et al. (1996), 120 F.T.R. 193 (F.C.T.D.), at page 204):
In my view, despite Parliament's silence on this point, it is the inspector's responsibility as the first person receiving the complaint to refuse to act on it if it is inadmissible on its face. As stated by the Attorney General, a screening system is required to eliminate complaints that do not meet the preconditions. In my opinion, it is implicit in the role of inspectors that they are to perform this function.
None of the respondents took part in argument, and it was the Attorney General of Canada (the Attorney General), as intervenor, who defended the authority of the inspector.
I have structured my reasons as follows. First, I shall review the most relevant statutory provisions. Next, I shall give a description of the duties of an inspector when a complaint of unjust dismissal is filed under Division XIV, followed by a description of the duties of an inspector under other divisions of Part III of the Code. Lastly, I shall set out an analysis of the issues, the parties' arguments and the decisions of this Court.
The relevant legislation
In order to properly understand the reasons that are to follow, it is necessary for me to reproduce a number of provisions of the Canada Labour Code. They are as follows [ss. 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 241, 242 (as am. idem, s. 16), 248, 249 (as am. by S.C. 1993, c. 42, s. 35), 250, 251 (as am. idem, s. 36)]:
Division XIV
Unjust Dismissal
240. (1) Subject to subsections (2) and 242(3.1), any person
(a) who has completed twelve consecutive months of continuous 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 the employee has been dismissed and considers the dismissal to be unjust.
(2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.
(3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.
241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide 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.
(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.
(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),
(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and
(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.
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).
(2) An adjudicator to whom a complaint has been referred under subsection (1)
(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Labour Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).
(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
(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.
. . .
Division XVI
Administration and General
Inquiries
248. (1) The Minister may,
(a) for any of the purposes of this Part, cause an inquiry to be made into and concerning employment in any industrial establishment; and
(b) appoint one or more persons to hold the inquiry.
(2) A person appointed pursuant to subsection (1) has all of the powers of a person appointed as a commissioner under Part I of the Inquiries Act.
249. (1) The Minister may designate any person as an inspector for the purposes of this Part.
(2) For the purposes of this Part and the regulations, and inspector may
(a) inspect and examine all books, payrolls and other records of an employer that relate to the wages, hours of work or conditions of employment affecting any employee;
(b) take extracts from or make copies of any entry in the books, payrolls and other records mentioned in paragraph (a);
(c) require any employer to make or furnish full and correct statements, either orally or in writing, in such form as may be required, respecting the wages paid to all or any of this employees, and the hours of work and conditions of their employment;
(d) require an employee to make full disclosure, production and delivery to the inspector of all records, documents, statements, writings, books, papers, extracts therefrom or copies thereof or of other information, either orally or in writing, that are in the possession or under the control of the employee and that in any way relate to the wages, hours of work or conditions of his employment; and
(e) require any party to a complaint made under subsection 240(1) to make or furnish full and correct statements, either orally or in writing, in such form as may be required, respecting the circumstances of the dismissal in respect of which the complaint was made.
(3) An inspector may, at any reasonable time, enter on any place used in connection with a federal work, undertaking or business for the purpose of making an inspection authorized under subsection (2), and may, for that purpose, question any employee apart from his employer.
(4) The person in charge of any federal work, undertaking or business and every person employed thereon or in connection with the operation thereof shall give an inspector all reasonable assistance to enable the inspector to carry out his duties and functions under this Part or the regulations.
(5) The Minister shall furnish every inspector with a certificate of his designation as an inspector and on entering any place used in connection with a federal work, undertaking or business an inspector shall, if so required, produce the certificate to the person in charge of that place.
(6) An inspector may, in carrying out the inspector's duties and functions, be accompanied or assisted by such persons as the inspector considers necessary.
(7) No inspector, and no person who has accompanied or assisted the inspector in carrying out the inspector's duties and functions, shall be required to give testimony in any civil suit or civil proceedings, or in any proceeding under section 242 with regard to information obtained in carrying out those duties and functions or in accompanying or assisting the inspector, except with the written permission of the Minister.
(8) An inspector is not personally liable for anything done or omitted to be done by the inspector in good faith under the authority or purported authority of this Part.
250. An inspector may administer all oaths and take and receive all affidavits and statutory declarations required with respect to the powers of the inspector set out in subsection 249(2) and certify to the administration, taking or receiving thereof.
251. (1) Where an inspector finds that an employer has failed to pay an employee any wages or other amounts to which the employee is entitled under this Part, the inspector may determine the difference between the wages or other amounts actually paid to the employee under this Part and the wages or other amounts to which the employee is entitled under this Part.
The duties of an inspector when an unjust dismissal complaint is filed
If we read these provisions we see that the role of an inspector in respect of an unjust dismissal complaint is limited by the Act to the following: receiving the complaint (subsection 240(1)), making a request in writing to the employer and the complainant for information, either oral or in writing, concerning the reasons and circumstances of the dismissal (subsection 241(1) and paragraph 249(2)(e)), endeavouring, on receipt of the complaint, to assist the parties to settle the complaint (subsection 241(2)) or asking another inspector to do so and, where this is unsuccessful, on the request of the complainant, reporting to the Minister that the endeavour was unsuccessful (paragraph 241(3)(a)) and delivering to the Minister the complaint, any written statement by the employer and any other documents that relate to the complaint (paragraph 241(3)(b)). It is the Minister who has the power to extend the time limit prescribed for filing the complaint (subsection 240(3)), it is the complainant personally who must make the request for adjudication (subsection 241(3)), it is the Minister who decides whether to appoint an adjudicator (subsection 242(1)) and it is the adjudicator who disposes of the complaint (subsection 242(2)).
The role of the inspector is so limited that he must only collect information relating to the reasons and circumstances of the dismissal, without drawing conclusions therefrom, that another inspector may be caused to endeavour to assist the parties upon receipt of the complaint, that the only purpose of the report made to the Minister under subsection 241(3) is to report "that the endeavour to assist the parties to settle the complaint has not succeeded" and that what is delivered to the Minister is not any conclusion or finding of fact the inspector may have drawn from examining the case, but only the documents received. Moreover, the Act makes no provision for the inspector to meet with the parties in the course of endeavouring to settle the complaint, and does not require that the inspector inform them of their respective positions.
The facts in this case confirm that the inspector and the CBC knew that the inspector's role was limited to endeavouring to assist the parties to settle. (I am not saying that this role is not meaningful. On the contrary, conciliation has a long and honourable history in labour law and is a major instrument for resolving disputes. What I am saying is that a conciliator has very little power in respect of anything but conciliation.) Thus in the letter he sent to the CBC on October 26, 1994, the inspector asked it to inform him of the reasons for the dismissal; this means that he was not questioning whether there had been a dismissal, thereby complying with the requirements of subsection 241(1). In the answer it sent to the inspector on November 2, 1994, the CBC did not state its objection, per se, relating to the fact that there had been no dismissal, but reserved the right to make it "at the appropriate time" and "before a tribunal of competent jurisdiction"; thus it was of the opinion that this was not yet the time and that it had to wait until it was before the tribunal of competent jurisdiction, presumably the adjudicator.
The other duties of an inspector in Part III of the Code
Part III of the Code (Standard Hours, Wages, Vacations and Holidays, sections 166 to 267) assigns few specific duties to inspectors appointed under subsection 249(1) "for the purposes of" that Part. Where a work schedule is modified, section 172.1 [as enacted by S.C. 1993, c. 42, s. 16] gives an inspector the power to hold a secret vote, to count the ballots and to report the result of the vote to the director; that is where the inspector's role ends. Subsection 182(2) allows an inspector who "has reasonable grounds . . . for believing that an employer is engaging or has engaged in a discriminatory practice" as defined in section 11 of the Canadian Human Rights Act [R.S.C., 1985, c. H-6] to "notify the Canadian Human Rights Commission or file a complaint with that Commission". This is undoubtedly an important function, and in performing it an inspector is expressly given considerable discretion in respect of pay equity as between men and women.
Section 222 provides that an inspector may "monitor . . . the establishment and operation" of a joint planning committee established at the time notice is given of a group termination. The inspector may, "on request, assist" and "attend any sittings of a joint planning committee as an observer". However, if there is a deadlock, it is an arbitrator who will resolve it (section 223).
Section 251 permits an inspector who finds that an employer has failed to pay to an employee any wages or other amounts to which the employee is entitled to "determine" the amount owing. Section 251.1 [as enacted by S.C. 1993, c. 42, s. 37] allows the inspector to issue a written payment order to the employer to pay the money, but also gives the inspector the power to conclude "that a complaint of non-payment" of any amount "is unfounded" and to serve a "notice of unfounded complaint" on the employer. Section 251.11 [as enacted idem gives "[a] person who is affected by a payment order or notice of unfounded complaint" the opportunity to appeal the inspector's decision to the Minister, who must then appoint a referee (section 251.12 [as enacted idem ]).
Lastly, section 252 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 18; S.C. 1993, c. 42, s. 38] allows the inspector to examine an employer's records at all reasonable times.
It is clear from this review of the specific duties assigned to an inspector that the inspector's role varies according to the wishes of Parliament. The Attorney General was wrong, accordingly, in raising in this Court the spectre of a decision in this case that would not meet Parliament's expectations. Whatever we decide here will have little impact on which might be decided in relation to another duty of an inspector. What is certain, however, is that as a general rule the duties performed and decisions made by an inspector are administrative in nature and can in no way raise questions of the nature of those raised in this case.
It is also plain from this review that when Parliament wanted to give an inspector discretion or decision-making authority, it did so in unequivocal terms. There is, for instance, the inspector's power to refer a complaint to the Canadian Human Rights Commission (section 182) and the inspector's power to conclude that a complaint of insufficient payment is unfounded (section 251.1). That power is particularly relevant, for purposes of comparison with the power with which we are concerned in this appeal, in that the Act refers to the "inspector's decision" (subsection 251.11(1)), which may be appealed to the Minister, who must then appoint a referee (section 251.12). There is no such provision in Division XIV of Part III of the Code.
Moreover, for the purposes of performing his duties, an inspector has the general powers described in Division XVI, in section 249, including the power to examine an employer's books, to require an employer and employee to provide information, to enter on premises, to question an employee apart from his or her employer and to administer oaths. I am not persuaded that all these powers are relevant to the performance of the duties assigned to an inspector by Division XIV, but in any event, they do nothing to change or to expand the duties that the Code otherwise assigns to an inspector. However, I note that unlike the persons appointed by the Minister under section 248 to hold inquiries, inspectors do not have the powers of a commissioner under Part I of the Inquiries Act [R.S.C., 1985, c. I-11].
The merits of the case
This brings me to the merits of the case: in the absence of any express provisions giving a decision-maker the power to determine whether or not there has been a dismissal, we must determine which decision-maker is implicitly given this power.
I will say at the outset that even if that decision-maker were the inspector, in this case the inspector's decision cannot stand up to an application for judicial review, for the simple reason that the decision was made extremely summarily, based solely on the written representations of the CBC, which were not based on any documentary evidence, and the content of which was not brought to the attention of the complainant. If it is the case that the inspector had the power to find the complaint to be unfounded, he could not do so without having the relevant documents in his possession and without inviting the applicant to present his views. In Srougi v. Lufthansa German Airlines (1988), 93 N.R. 244 (F.C.A.), at page 246 this Court held that it seemed to it to be "hard to imagine a situation", where a complaint was dismissed by an adjudicator on the ground that there had not been a true dismissal,
. . . in which such a thing could be done summarily and on a preliminary motion, simply be reading the record as presented by the complaint.
A fortiori, the same would be true if the decision had been made by an inspector rather than by an adjudicator.
However, the application for judicial review cannot be allowed solely on that ground, since in any event we must determine whether the inspector is the proper person to whom the matter should be referred back. The Attorney General argued that it would be pointless to refer the case back either to the inspector or to the Minister or the adjudicator, since in any event the Trial Judge has already disposed of the question and decided that in this instance there was no true dismissal. This argument is without merit: once the trial judgment was quashed, it would lose any binding value, and both an inspector and a minister or an adjudicator could reach a completely different conclusion.
The fact that the inspector has summarily found the complaint to be unfounded, however, is not foreign to the question of jurisdiction. Since the inspector will never have anything in front of him but the record, as it is put together by himself, and since he has none of the powers to investigate and determine that an adjudicator has under subsection 242(2), he could never proceed otherwise than "summarily and on a preliminary motion", which would be unacceptable every time. Accordingly, the fact that the inspector does not have the powers required to hold a hearing that respects the parties' rights is a certain, and even conclusive indication that it is not for him to determine whether or not there has been a dismissal.
Only the adjudicator has the power, under subsection 242(1), to "hear and adjudicate on the complaint". When "a complaint has been referred" to him (subsection 242(2)), the adjudicator personally determines the procedure to be followed, but "shall give full opportunity to the parties to the complaint to present evidence and make submissions". Moreover, under paragraph 242(2)(c ), the adjudicator has the powers conferred on the Canada Labour Relations Board by paragraphs 16(a), (b) and (c). The power conferred by paragraph 16(a) is unequivocal:
16. The Board has, in relation to any proceeding before it, power
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath and to produce such documents and things as the Board deems requisite to the full investigation and consideration of any matter within its jurisdiction that is before the Board in the proceeding;
The inspector has no analogous power or obligation, which it is easy to understand when we recognize that he is vested with no powers to investigate and decide.
The Attorney General is being greedy. She argued that the inspector has the authority to dispose of any dispute relating to any and all of the requirements that must be met in order for a complaint filed under section 240 to be founded. In her factum, she defined what she considered to be those requirements:
[translation]
(a) The person who files the complaint must be employed by an employer which is subject to the Canada Labour Code [subsection 167(1) of the Code].
(b) The complaint must be made by a person who is an employee but does not hold a management position [subsection 167(3) of the Code].
(c) The person must have been employed by the same employer for a period of at least twelve months with the same employer [paragraph 240(1)(a) of the Code].
(d) The person must not be a member of a group of employees subject to a collective agreement [paragraph 240(1)(b) of the Code].
(e) The person must have been dismissed for a reason other than lack of work or discontinuance of a function [paragraph 242(3.1)(a) of the Code].
(f) The person must not have any other procedure for redress as provided by the Code or any other Act of Parliament [paragraph 242(3.1)(b) of the Code].
(g) The complaint must have been filed in writing within 90 days from the date of the dismissal [subsection 240(2) of the Code] or within such extended time as is allowed by the Minister of Labour [subsection 240(3) of the Code].
(h) The person must assert that he or she considers the dismissal to be unjust [subsection 240(1) of the Code]:
This, I am afraid, is a case where counsel's eyes are bigger than counsel's stomach.
I shall not review each of the requirements for a complaint to be founded that the Attorney General says fall within the jurisdiction of the inspector. I need only rule out a few of them in order to conclude that the principle proposed by Attorney General is unsound.
Subsection 242(3.1) of the Code provides:
242. . . .
(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
This provision is clear: it is the adjudicator, and the adjudicator alone, who is authorized to determine, before initiating an investigation, whether paragraphs (a) and (b) apply.
It seems to me that the Attorney General is relying on a false premise. While a decision-maker is generally the person with authority to decide questions that are preliminary to the exercise of his or her power, we must still decide who the decision-maker is. The person who, by law, is given the power to receive a complaint, but is expressly denied the power to dispose of it, is not, prima facie, the decision-maker. It may be that the law allows that person to ascertain or determine the existence of a particular fact situation, or requires that he or she do so before forwarding the complaint to the appropriate person, but that does not make that person the decision-maker in all other respects.
We would also have to ask, if perchance the inspector had all the powers attributed to him by the Attorney General, the extent to which the adjudicator would be bound by the opinion stated by the inspector as to the application of any particular requirement for the complaint to be founded. If, for example, the inspector has the authority to determine whether there has been a true dismissal, the fact that he endeavours to assist the parties to settle would assume that he has concluded that there was such a dismissal; would the adjudicator who eventually heard the complaint be bound by that conclusion? Of course not. Why then would the adjudicator be deprived of the chance also to contradict the conclusion of an inspector who, on his own initiative, had terminated the process on the ground that in his view there had been no true dismissal?
It is difficult to imagine that on a question as vital as whether there has been a true dismissal Parliament would have intended, without expressly saying so, that the complainant should first go through the inspector stage and then, if unsuccessful there, could hope to go before an adjudicator only after applying for judicial review. If we were to accept the Attorney General's arguments, we would open the door to a host of applications for judicial review of conclusions reached by an official who has no decision-making power, and this would amount to putting a spoke in the wheel of a process that is supposed to be expeditious.
We must look to the statutory provisions and ask what Parliament intended the inspector to decide summarily, preliminarily and definitively. The answer is: very little.
The Attorney General made much of the decision delivered from the bench by this Court in Fréchette v. Canadian Pacific Limited and Canada et al. (1984), 60 N.R. 177 (F.C.A.).
In that case, the Court had to decide whether an application for mandamus against an inspector [at page 179] "should have been dismissed on the ground that the inspector was not required to act on [the] complaint, because it was not filed within the thirty-day deadline set by s. 61.5(2) of the Code". The Court dismissed the mandamus application as follows [at page 179]:
Section 61.5(2) provides that a complaint "shall be made no later than thirty days from the date on which the person making the complaint was dismissed or such further period of time from that date as the Minister may authorize where the Minister is satisfied that justice would be served by so authorizing". This is a peremptory provision which makes the Minister solely responsible for deciding whether the thirty-day deadline should be extended. Accordingly, it cannot be regarded as merely an "indicatory" deadline the existence of which could be ignored by inspectors or adjudicators. An inspector therefore is not required to act on a complaint which has been filed beyond the deadline without the Minister's authorization. This is not to say that he must make a decision on this point, any more than he is empowered to make a decision on whether the complaint is one which meets all the requirements of s. 61.5. The law does not authorize him to decide these questions. However, the law only requires him to act on a complaint if that complaint has in fact been filed within the required time and meets the other requirements of s. 61.5. This means that the courts cannot compel an inspector to act on a complaint filed beyond the deadline. In the case at bar, contrary to what was argued by Mr. Martineau, it seems clear that the complaint was filed after the thirty-day deadline had expired. It is true that, before that deadline expired, Mr. Fréchette verbally indicated his intent to file a complaint but this is not relevant since the complaint which must be filed within thirty days under s. 61.5 is a written complaint. There is no doubt that Mr. Fréchette did not file his complaint in writing until after the thirty-day deadline had expired.
Apparently, the Court had to decide only the question of the time limit. Thus, when it stated that the Act did not require an inspector "to act on a complaint if that complaint has in fact been filed within the required time and meets the other requirements of s. 61.5" [underlining added], it went, in the portion I have underlined, beyond what it had been asked. The fact that this underlined portion is obiter is even plainer from the words immediately following it: "This means that the courts cannot compel an inspector to act on a complaint filed beyond the deadline".
Certainly, in my view, the question of the time limit is in a category apart: it can be determined from looking at the complaint, since the Act requires a written complaint; it does not require any particular expertise; and the Act has reserved the power of extending the time to the Minister personally, which assumes that the question of the time limit is one that can be resolved even before the adjudicator comes into the matter. Accordingly, it is logical to conclude that it may fall within the jurisdiction of the inspector.
What must be taken from Fréchette is, first, that the inspector has no decision-making power, and second, that it is his job, in cooperation with the Minister and under the provisions of the Act itself, to ascertain whether the complaint has been filed within the time allowed. Fréchette says nothing more and, most importantly, nothing can be extrapolated from it: it is one thing to note the fact that a deadline has not been met, but it is another to decide whether or not there has been a true dismissal.
Contrary to what the inspector contended in his letter of November 15, 1994, the decision of this Court in Eskasoni School Board and Eskasoni Band Council v. MacIsaac et al. (1986), 69 N.R. 315 (F.C.A.), did not decide forever that where fixed term contracts are not renewed there has been no dismissal within the meaning of section 240. The concept of dismissal has not been cast in stone; it may vary over time and as the social and economic situation changes. The circumstances of a termination of employment will always have to be examined before deciding, as the Court did in Eskasoni School Board, that an employer and employee have organized their relationship in such a way that no dismissal can have occurred in a particular case. This is precisely what this Court held in Srougi v. Lufthansa German Airlines (supra, paragraph 26, at page 247), where Mr. Justice Marceau stated:
Second, and more importantly, we disagree with the adjudicator's fundamental proposition that s. 61.5 covers only dismissals made openly, without disguise, by a single and unambiguous action of the employer. The dismissal is the implementation by the employer of his intention to unilaterally terminate the contract of employment binding him to his employee. This implementation may occur in various ways and there is no basis for thinking that in s. 61.5 the legislator intended to cover only one of them, even if that one was the most simple, direct or usual. Of course, the adjudicator must have before him a dismissal, that is to say, the employer's actions must disclose a definite intention to unilaterally terminate the contract of employment (and that is all that was at the basis of the decision in Escasoni School Board, supra), but once this is established there is in our opinion no question as to his jurisdiction.
I would note in passing that in both Eskasoni School Board and Srougi, the impugned decision was the decision of the adjudicator, not the inspector.
Moreover, if we were to recognize the authority of the inspector to decide all these questions in the first instance, and presumably in the final instance if we don't want to generate hosts of pointless legal proceedings, this would amount to saying that he has expertise that Parliament does not expect of him. In Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (C.A.), at page 669, this Court held that "the area of expertise of the adjudicator is rather limited" and that the different status established by the specific provisions of the Code as between an adjudicator acting under Division XIV of Part III of the Code and other decision-makers "are a strong indication, in my view, that Parliament did not intend the adjudicator to have a final say as to who could or could not make a complaint". In that case, the issue was the interpretation of paragraph 242(3.1)(b )"the power to determine whether a procedure for redress has been provided elsewhere in the Code or any other Act of Parliament"and the Court held that this was a question that the courts were better able to answer than an adjudicator.
Pollard dealt with the standard of judicial review applicable to the decisions of an adjudicator in respect of whether a complaint is founded, and the question of whether the inspector also had the authority to make similar decisions did not arise. Just as the adjudicator has the power to answer a question ancillary to the main question before him or her, so might the inspector have that power if he or she could be said to validly have jurisdiction over the main question. It is hard to imagine that Parliament, which has already implicitly given the adjudicator decision-making power in respect of questions that are outside his or her expertise and which he or she must answer correctly, would have intended to implicitly give that same decision-making power to an inspector who has a lower degree of expertise.
Before closing, I must address a textual argument made by counsel for the appellant. The French version of subsection 240(1)""toute personne qui se croit injustement congédiée""is allegedly more all-encompassing than the English version, which says "if the employee has been dismissed and considers the dismissal to be unjust". According to counsel, the mere belief that there had been a dismissal would be sufficient for a complaint at least to be founded, and would fall outside the inspector's purview at the stage of receiving the complaint.
I am not persuaded by that argument. The French version says no more, in my opinion, than this: a person who has been dismissed who considers himself or herself to have been dismissed unjustly may file a complaint. This is the only interpretation permitted by subsection 241(1), which refers to "a person described in subsection 240(1)", subsection 240(2), which deals with "the date on which the person making the complaint was dismissed", and subsection 242(4), which provides that the adjudicator decides whether "a person has been unjustly dismissed". Moreover, this interpretation is plainly the only one that is consistent with the only meaning that can be given to the English version.
I therefore find that the inspector did not have the power to determine a complaint to be unfounded on the ground that it was not in relation to a true dismissal. That conclusion seems to me to be consistent with the decisions of this Court, which have held (a) that one of the essential prerequisites for an adjudicator's consideration of an unjust dismissal complaint is that the complainant prove that he or she was dismissed; (b) that the adjudicator has the authority to dispose of that question; and (c) that the standard for review of the adjudicator's decision is absence of error. (See Sagkeeng Education Authority Inc. v. Guimond, [1996] 1 F.C. 387 (T.D.), at page 395; Canada Post Corp. v. Pollard, supra, paragraph 43; Eskasoni School Board and Eskasoni Band Council v. MacIsaac et al., supra, paragraph 42; Srougi v. Lufthansa German Airlines, supra, paragraph 26; and Sedpex, Inc. v. Canada (Adjudicator appointed under the Canada Labour Code), [1989] 2 F.C. 289 (T.D.). See also Beothuk Data Systems Ltd., Seawatch Division v. Dean, [1996] 1 F.C. 451 (T.D.); revd by [1998] 1 F.C. 433 (C.A.); and Canadian Airlines International Ltd. v. Husain, [1998] F.C.J. No. 607 (C.A.) (QL).)
Simply from reading these decisions"which, I note in passing, all dealt with a decision of an adjudicator"we can see how many complex questions of law may be raised in applying the requirements for a complaint of unjust dismissal to be founded. It is difficult to believe that Parliament's silence with respect to the authority of inspectors to dispose of those questions may be interpreted as recognition of that authority.
The Attorney General would like the Court to rule as to what authority the Minister has in respect of the requirements for a complaint to be founded. The problem is not before us and I shall be very careful not to address it, other than to point out that it is plain from the decisions of this Court that the Minister's decision to appoint an adjudicator does not definitively dispose of the question of the Minister's authority (Lee-Shanok v. Banca Nazionale del Lavoro of Canada Ltd., [1987] 3 F.C. 578 (C.A.), at pages 590-591; and Beothuk Data Systems Ltd., supra, paragraph 47, at page 449) and that the Minister can appoint an adjudicator only once the inspector has reported that the endeavour to assist the parties to settle the complaint has not succeeded (Standard Radio Inc. v. Canada (Attorney General and Minister of Labour) et al. (1989), 96 N.R. 388 (F.C.A.)).
The Attorney General also relied on decisions of the Trial Division that she said supported her arguments. It is pointless for me to examine them here since none of them address the questions raised in this case.
I shall leave aside the question of costs on appeal since the appellant has not requested costs. It will be open to him to take the opportunity to make representations in that respect under Rule 403 [Federal Court Rules, 1998, SOR/98-106].
Disposition
I would accordingly allow the appeal, set aside the judgment of the Trial Division dated March 27, 1996 and, endeavouring to render the judgment that should have been rendered by the Trial Division, I would allow the application for judicial review of the decision of the inspector dated November 15, 1994, I would set aside that decision and I would order the inspector to endeavour to assist the parties to settle the complaint or to cause another inspector to do so, pursuant to subsection 241(2) of the Canada Labour Code.
Denault J.A. (ex officio): I agree.
Desjardins J.A.: I agree.