Judgments

A-757-95 ( T-642-94 )

Douglas Dean (Appellant)

v.

Beothuk Data Systems Limited, Seawatch Division and Ted A. Blanchard, an Adjudicator Appointed Pursuant to the Provisions of the Canada Labour Code (Respondents)

A-758-95 ( T-644-94 )

Hugh Davis (Appellant)

v.

Beothuk Data Systems Limited, Seawatch Division and Ted A. Blanchard, an Adjudicator Appointed Pursuant to the Provisions of the Canada Labour Code (Respondents)

A-759-95 ( T-645-94 )

Michael Carew (Appellant)

v.

Beothuk Data Systems Limited, Seawatch Division and Ted A. Blanchard, an Adjudicator Appointed Pursuant to the Provisions of the Canada Labour Code (Respondents)

Indexed as: Beothuk Data Systems Ltd., Seawatch Divisionv. Dean (C.A.)

Court of Appeal, Isaac C.J., Stone and McDonald JJ.A."St. John's, July 4; Ottawa, August 28, 1997.

Construction of statutes — Canada Labour Code, s. 240(1)(a), permitting any person completing 12 consecutive months of continuous employment to make unjust dismissal complaint — Appellants employed 10 to 12 weeks per year for more than 10 years when dismissed — Motions Judge holding s. 240(1)(a) requiring 12 consecutive months of continuous work based on use of verb —travailler— in French version — Applying shared meaning rule, holding French text should prevail as English version uncertain — Not discussing Parliament's intention in enacting unjust dismissal provisions — Where one language version capable of broader meaning, issue which meaning best according with Parliament's intention in enacting both versions — Objective of unjust dismissal provisions to afford non-unionized workers within federal jurisdiction protection similar to that enjoyed by unionized workers under collective agreements — Court ought to resolve in favour of complainants any variance between English, French texts respecting qualifying conditions for such protection — S. 240(1)(a) not intended as onerous exclusionary provision excluding from Code's protection all seasonal employees — If employment, work interpreted as synonymous, all seasonal employees excluded from Code's protection because any period not working for salary rupturing employment relationship — Parliament intending s. 240(1)(a) to avoid potential for overload of applications — Employment relationship, not active work, important — French version originally identical to English — Changed under authority of Statute Revision Act — Statute Revision Commission exceeding powers in changing substance of legislation — Amendment to Canada Labour Standard Regulations, s. 29 (deeming absence from employment as result of lay-off not interruption of continuity of employment), after these complaints filed, reflecting state of law at time of enactment — Interpretation Act, s. 45 providing amendment not deemed to involve declaration law changed or any declaration as to previous state of law.

Labour relations — Appellants working 10 to 12 weeks per year for more than 10 years as river guardians — Initially employed by Department of Fisheries and Oceans, then by Beothuk, successful contractor, on call-back basis — Since 1988 Department exercising option to renew contract — Canada Labour Code, s. 240(1)(a) permitting any person completing 12 consecutive months of continuous employment to file complaint of unjust dismissal — Requiring continuous employment relationship, not continuous work — Question of fact whether employment relationship surviving annual lay-off — Application of s. 240(1)(a) to facts within Adjudicator's expertise — Motions Judge ought to have accorded deference to Adjudicator's finding on evidence appellants permanent seasonal employees whose employment relationship not interrupted by annual lay-off.

Federal Court jurisdiction — Trial Division — Whether issue of jurisdiction could be raised on judicial review of Adjudicator's decision appellants unjustly dismissed — Canada Labour Code, s. 243 providing every order of Adjudicator appointed under s. 242 final — Interpretation by Adjudicator of statutory conditions precedent to complaints validly filed under Canada Labour Code, s. 240(1) subject to review on correctness standard — Jurisdictional issues always alive, may be raised at any point in proceedings.

These were appeals from Trial Division judgments setting aside an Adjudicator's decisions that the appellants had been unjustly dismissed from their employment. The appellants were employed as river guardians, charged with ensuring public compliance with the Fisheries Act and regulations thereunder, for 10 to 12 weeks per year for more than 10 years, initially by the Department of Fisheries and Oceans and later by the respondent Beothuk, which had secured the contract to perform these services. Commencing in 1988, the contract contained an option clause which the Department could exercise to renew the contract prior to the beginning of each new season, but which did not guarantee renewal of the contract each year. The appellants' specific start date coincided with the beginning of the salmon angling season. There was no written employment contract and the appellants were not required to reapply for their positions. At the conclusion of each season, the appellants received a record of employment (needed to claim U.I. benefits) which indicated that the reason for layoff was a "shortage of work" and that the date of recall was "unknown". The appellants were dismissed in 1990 and appellant, Davis, was not rehired in 1991, although the Department had renewed the respondent's contract. They filed complaints pursuant to Canada Labour Code , section 240, which permits any person who has completed 12 consecutive months of continuous employment to make a complaint of unjust dismissal. The Adjudicator found that he had jurisdiction to hear the complaints, as paragraph 240(1)(a) refers to 12 consecutive months of continuous employment, not work. The appellants had established a consistent pattern of seasonal employment and the annual layoffs did not interrupt the employment relationship. The Motions Judge held that 12 consecutive months of continuous employment was intended to require the performance of at least 12 consecutive months of work. He recognized that the decision of an Adjudicator appointed under the Code is protected by the finality clause in subsection 243(1), but the Adjudicator's interpretation of subsection 240(1) was subject to review on a standard of correctness because it was a jurisdiction-conferring provision. The Motions Judge took issue with several decisions of adjudicators. In his view, the notion that employment could mean something other than active work derived from a misunderstanding of Pioneer Grain Co. Ltd. v. Kraus. The Motions Judge placed considerable emphasis on the use of "travailler" (meaning "to work") in the French version of paragraph 240(1)(a ). Applying the shared meaning rule (i.e. where the two versions of bilingual legislation do not say the same thing, the meaning that is shared by both ought to be adopted unless this meaning is for some reason unacceptable) he held that the French text ought to prevail because the English version was uncertain. He did not consider Parliament's intention in enacting the unjust dismissal provisions and the qualifying condition thereto in paragraph 240(1)(a). Finally, he interpreted the enactment of an amendment to Canada Labour Standards Regulations, section 29 (deeming absence from employment as a result of a layoff not to be an interruption of continuity of employment) after the appellants had filed their complaints, as meaning that without such a provision, a seasonal layoff did interrupt the continuity of an employment relationship. Since section 29 did not apply when the respondent laid the appellants off each season, the continuity of their employment relationship was interrupted. The Motions Judge concluded that the Adjudicator lacked jurisdiction to hear these complaints.

The issues were (1) whether the employer could raise the issue of jurisdiction upon judicial review; (2) whether the appellants met the requirements of Canada Labour Code, paragraph 240(1)(a); and (3) whether the amendment to section 29 of the Regulations was determinative of the finding that the appellants' seasonal layoff did not constitute an "interruption of employment" for the purposes of paragraph 240(1)(a ).

Held (McDonald J.A. dissenting), the appeals should be allowed.

Per Isaac C.J. (Stone J.A. concurring): (1) Notwithstanding the curial deference owed to tribunals protected by a privative clause, an interpretation by a tribunal of a statutory provision which confers jurisdiction upon it, or which limits the scope of its jurisdiction is to be reviewed on a correctness standard. The Motions Judge was justified in reviewing the Adjudicator's interpretation of paragraph 240(1)(a) on that standard.

(2) A complainant who has maintained a continuous employment relationship with his employer for at least 12 consecutive months before he was dismissed is eligible, subject to the other qualifying conditions being satisfied, to file a complaint under the Code, even where the complainant may not have been engaged in active work for some part of that employment relationship.

The Motions Judge erred in applying the shared meaning rule to resolve the conflict between the English and French versions of paragraph 240(1)(a) without due regard for the legislative purpose which motivated enactment of the provision. One language version was capable of a broader meaning than the other, and the issue to be decided was which meaning best accorded with Parliament's intention in enacting both versions. The objective of the unjust dismissal provisions was to afford non-unionized workers within federal jurisdiction protection against unjust dismissal similar to that enjoyed by unionized workers under collective agreements. Therefore, any variance between the English and French texts respecting the qualifying conditions for such protection ought to be resolved in favour of complainants. On this basis, paragraph 240(1)(a) was not intended as an onerous exclusionary provision which would exclude from the protections provided by the Code all employees not engaged in active work for 12 uninterrupted months prior to their dismissal, whether or not they had long-standing relationships with their employers. Employment and active work are not necessarily synonymous in the context of paragraph 240(1)(a). Such an interpretation would inevitably exclude all seasonal employees from the Code protections regardless of the permanency of their employment because any period where an employee is not working for a salary, other than a yearly layoff of a de minimis duration, would rupture the employment relationship. If Parliament intended, by paragraph 240(1)(a), to exclude this class of non-unionized employees entirely from the protections afforded by the Code, such an intention should have been expressed in clear terms.

In enacting paragraph 240(1)(a) as a form of minimum seniority requirement, Parliament intended to avoid the potential for an overload of applications under the Code and the resulting administrative stresses that would ensue, recognizing that the vast majority of discharges occur within the first year of employment. Parliament also intended to provide employers with a grace period within which to evaluate the work of new employees without having to fear the premature application of the Code.

When the unjust dismissal provisions were added to the Canada Labour Code the French version was virtually identical in meaning to the English version. In 1984 the French version only was changed under the authority of the Statute Revision Act which permitted revisions which did not change the substance of the enactment. The Statute Revision Commission changed the substance of the legislation without statutory authority . Therefore the French version, as enacted prior to the amendment in 1984, is more properly reflective of Parliament's original intent in enacting the provision.

The Motions Judge erred in holding that Pioneer Grain stood for the narrow proposition that the continuity of the ongoing employment relationship of a permanent employee is unaffected by a yearly layoff of a de minimis duration. Clearly, the Court did not rely on the de minimis concept in reaching its conclusion. It was implicit in the reasoning in Pioneer Grain that it is the duration of the period of employment, and not the period of active work, that is relevant to paragraph 240(1)(a). Seasonal employees may qualify for protection under the unjust dismissal provisions, provided their employment relationships could be construed as surviving the annual layoff unbroken. It is a factual determination which requires construing the intentions of both parties by looking at all of the relevant circumstances of the employment. Application of paragraph 240(1)(a) to the facts (i.e. the determination of whether the employment relationship did in fact last uninterrupted for at least 12 consecutive months) was within the expertise of the Adjudicator. The Motions Judge ought to have accorded deference to the Adjudicator's finding on the evidence that the appellants were permanent seasonal employees whose employment relationship was not interrupted by their annual layoff. By interpreting the qualifying condition in paragraph 240(1)(a) as requiring 12 consecutive months of uninterrupted work, the Motions Judge failed to follow the binding decision of the Court in Pioneer Grain.

(3) It is more likely that the purpose of the amendment to Regulations, section 29 was to reflect for greater certainty, the state of the law as it existed at the time of the enactment. Interpretation Act, section 45 provides that an amendment shall not be deemed to involve a declaration that the law had changed, or any declaration as to the previous state of the law.

Per McDonald J.A. (dissenting): (1) Jurisdictional issues are always alive and may be raised at any point in the proceedings. Simply because a Minister believes a dispute to be subject to federal jurisdiction does not mean that it necessarily is a matter within federal jurisdiction.

(2) The existence of an option to renew the contract with Beothuk was insufficient to maintain the employment relationship from year to year. There was no guarantee that Beothuk would be awarded the contract in any future year. It would be unreasonable to conclude that the employees had a subsisting employment relationship from year to year when the employer could not guarantee work from year to year. The employment was more properly viewed as a series of fixed term contracts. The practice of recall did not establish a continuing employment relationship. The lack of certainty associated with the acquisition of a new contract overrode the employer's recall practices.

The change in wording by the Statute Revision Commission, in so far as it changed the sense of the French version of paragraph 240(1)(a), was done without proper authority, rendering the current French version of limited assistance.

Pioneer Grain did not extend the scope of paragraph 240(1)(a) to include all seasonal workers, but subsequent application of Pioneer Grain by adjudicators did. The Trial Judge correctly concluded that this subsequent consideration of Pioneer Grain extended the decision beyond its intended scope. Furthermore, Pioneer Grain was distinguishable in that the specification of a restart date suggested that the employment relationship continued during the lay-off period, unlike the situation herein where such a date could not have been specified, as the availability of future work was contingent on the employer successfully bidding for the work the following year. Also, in Pioneer Grain the employer was not dependent upon a successful contract bid to renew the claimant's employment. The employee was laid off because environmental conditions precluded the necessary work from being done, unlike this case where there was a specified employment contract which was completed at the end of each year. There is no continuing employment relationship throughout the year when there is no remaining work and no confirmed prospect of work until the contract is renewed.

Paragraph 240(1)(a) raised a presumption that seasonal workers would not be covered, and the Regulations, prior to the amendment to section 29, were silent as to whether seasonal workers were covered. That presumption then remained, and was not disturbed by Pioneer Grain. The amendment demonstrated that Parliament intended for seasonal workers to be afforded the protection of section 240. Previous to that amendment, the language chosen by Parliament offered no exception for seasonal workers. A line of adjudicative decisions which extended a decision of this Court beyond its intended scope was not sufficient to change the intention of Parliament as evidenced by the language of the statute and Regulations as they existed at the time of the layoff.

As to public policy considerations, stretching the language of subsection 240(1)(a) to include that which it clearly was not meant to include would effectively negate one of the gatekeeper functions of subsection 240(1). The denial of the protection of the Canada Labour Code did not deprive these employees of a right of action against their employer. They have remedies at common law.

statutes and regulations judicially considered

An Act to amend the Canada Labour Code, S.C. 1977-78, c. 27, s. 21.

An Act to amend the Canada Labour Code and the Financial Administration Act, R.S.C., 1985 (1st Supp.), c. 9.

Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5 (as enacted by S.C. 1977-78, c. 27, s. 21).

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 167(1) (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 5; 1993, c. 38, s. 90), 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15), 242 (as am. idem, s. 16), 243.

Canada Labour Standards Regulations, C.R.C., c. 986, s. 29 (as am. by SOR/91-461, s. 29).

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], s. 91(12).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5).

Fisheries Act, R.S.C., 1985, c. F-14, s. 5 (as am. by S.C. 1991, c. 1, s. 2).

Interpretation Act, R.S.C., 1985, c. I-21, ss. 44, 45(2),(3).

Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 13.

Statute Revision Act, S.C. 1974-75-76, c. 20, s. 6.

Unemployment Insurance Act, 1971, S.C. 1970-71-72, c. 48.

cases judicially considered

applied:

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.); Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C. 815; (1981), 123 D.L.R. (3d) 48; 36 N.R. 395 (C.A.); Abrahams v. Attorney General of Canada, [1983] 1 S.C.R. 2; (1983), 142 D.L.R. (3d) 1; 83 CLLC 14,010; 46 N.R. 185; Bell Canada v. Cowan, Adjudicator D. G. Pyle, judgment dated 19/8/87; Reigate Rural District Council v. Sutton District Water Company; Ewart, Third Party (1908), 99 L.T.R. 168 (K.B.).

considered:

Juster v. The Queen, [1974] 2 F.C. 398; (1974), 49 D.L.R. (3d) 256; [1974] CTC 681; 74 DTC 6540; 5 N.R. 219 (C.A.); Food Machinery Corpn. v. Registrar of Trade Marks, [1946] Ex. C.R. 266; [1946] 2 D.L.R. 258; (1944), 5 C.P.R. 76; 5 Fox Pat. C. 150; The King v. Dubois, [1935] S.C.R. 378; [1935] 3 D.L.R. 209; R. v. Black & Decker Manufacturing Co. Ltd., [1975] 1 S.C.R. 411; (1974), 43 D.L.R. (3d) 393; 15 C.C.C. (2d) 193; 13 C.P.R. (2d) 97; 1 N.R. 299; R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865; [1979] C.T.C. 71; (1979), 79 DTC 5068; 25 N.R. 361; Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038; (1989), 59 D.L.R. (4th) 416; 26 C.C.E.L. 85; 89 CLLC 14,031; 40 C.R.R. 100; 93 N.R. 183.

referred to:

Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46; [1923] 1 D.L.R. 551; Essex Incorporated Congregational Church Union v. Essex County Council, [1963] A.C. 808 (H.L.); Canadian National Railway Co. v. Canadian Transport Commission, [1988] 2 F.C. 437; (1987), 13 F.T.R. 52 (T.D.); Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] 3 F.C. 376; (1994), 75 F.T.R. 246 (T.D.); Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354; (1995), 126 D.L.R. (4th) 679; 95 CLLC 210-045; 185 N.R. 107 (C.A.); Pierre Mongrain v. Pelee Island Transportation, Adjudicator Abramowitz, judgment dated 12/8/86; Re Beaudril v. Preignitz, Adjudicator J. W. Samuels, judgment dated 27/10/86; Ghislain Simard v. Cablevision Baie St-Paul Inc., Adjudicator Tousignant, judgment dated 27/9/89; Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; (1984), 14 D.L.R. (4th) 457; 55 N.R. 321; 14 Admin. L.R. 72; 84 CLLC 14,069; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; 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; CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 B.C.L.R. (2d) 1; 40 Admin. L.R. 181; 89 CLLC 14,050; R. v. Popovic et al., [1976] 2 S.C.R. 308; (1975), 62 D.L.R. (3d) 56; 25 C.C.C. (2d) 161; 32 C.R.N.S. 54; 7 N.R. 231; Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5; (1991), 81 D.L.R. (4th) 121; 91 CLLC 14,024; 122 N.R. 361; [1991] OLRB Rep 790; Hirsch v. Protestant Board of School Commrs., [1926] S.C.R. 246; [1926] 2 D.L.R. 8; Ottawa, City of, v. Canada Atlantic Ry. Co. (1903), 33 S.C.R. 376; Attorney-General for Canada v. Hallet & Carey Ld., [1952] A.C. 427 (P.C.); Nokes v. Doncaster Amalgamated Collieries, Ld., [1940] A.C. 1014 (H.L.); Laberge v. Carbonneau et le Procureur Général de la Province de Québec (1921), 30 B.R. 385 (Que).

authors cited

Christie, Innis et al. Employment Law in Canada, 2nd ed., Toronto: Butterworths, 1993.

Côté, Pierre-André. The Interpretation of Legislation in Canada, 2nd ed., Cowansville (Qué.): Éditions Yvon Blais Inc., 1991.

Driedger, Elmer A. Construction of Statutes, 2nd ed. Toronto: Butterworths, 1983.

England G. "Unjust Dismissal in the Federal Jurisdiction: The First Three Years" (1982), 12 Man. L.J. 9.

Grosman, M. Norman. Federal Employment Law in Canada. Toronto: Carswell, 1990.

House of Commons Debates, Vol. II, 3rd Sess., 30th Parl., 1977-78, at pp. 1831-1832.

Munro, John C. "A Better Deal for Canada's Unorganized Workers", The Labour Gazette , 19 August 1977, at p. 347.

Sullivan, Ruth. Driedger on the Construction of Statutes, 3rd ed., Toronto: Butterworths, 1994.

APPEALS from Trial Division (Beothuk Data Systems Ltd., Seawatch Division v. Dean, [1996] 1 F.C. 451; (1995), 102 F.T.R. 241 (T.D.)) judgments setting aside an adjudicator's decisions under Canada Labour Code, paragraph 240(1)(a) that the appellants had been unjustly terminated from their seasonal employment as river guardians. Appeals allowed.

counsel:

Mark Kennedy for appellants.

Mark D. Murray for respondents.

solicitors:

French Browne, St. John's, for appellants.

Martin, Whalen, Hennebury & Stamp, St. John's, for respondents.

The following are the reasons for judgment rendered in English by

Isaac C.J.: These are appeals from judgments of the Trial Division, pronounced on 20 October 1995 [[1996] 1 F.C. 451], allowing applications for judicial review by Beothuk Data Systems Limited, Seawatch Division (the respondent) and setting aside decisions of an adjudicator appointed under Part III of the Canada Labour Code¹ (the Adjudicator), which held that the appellants had been unjustly terminated from their employment with the respondent. The merits of the decision made by the Adjudicator are not in issue. Rather, the appeals raise a threshold jurisdictional question as to whether the appellants met the statutory conditions precedent for the appointment of an adjudicator under Part III of the Code. The three appeals were heard together, and these reasons are intended to dispose of all of them. A copy of the reasons will be filed in each of the files mentioned in the style of cause.

Facts

These appeals relate to the termination by the respondent of the appellants from their employment as river guardians. River guardians are responsible for ensuring public compliance with, inter alia, the provisions of the Fisheries Act² and the regulations thereunder. The Act provides for the licensing, protection and conservation of the resources of all waters within the fishing zones of Canada and of internal waters.

Prior to 1984, the appellants were employed on a seasonal basis as river guardians by the Department of Fisheries and Oceans (the Department). The Department hired Mr. Dean (Dean) and Mr. Davis (Davis) in 1978 and Mr. Carew (Carew) in 1980.

In 1984, the Department began to contract out the work performed by river guardians. In each of the years 1984 to 1987, the respondent was successful in securing the seasonal contract to perform these services. The appellants were among the river guardians hired by the respondent in order to carry out its obligations under the contract. The duties performed by the appellants when they were employed by the respondent remained the same as they were when employed by the Department.

In 1988, the respondent and the Department negotiated a contract designed to provide greater stability to their business relationship. Instead of engaging in a new tender and bidding process each year, the parties negotiated a clause under which the Department could continue the agreement for successive years by exercising an option to renew the contract prior to the beginning of each new salmon angling season. The Department exercised that option in each of the years from 1988 until at least the date of the hearing before the Adjudicator in 1992. However, the option clause did not guarantee that the Department would renew the respondent's contract each year. The Adjudicator explained the contract as follows:

The contract is basically for a one year period (one season) but has an option provision whereby DSS [the Department of Supply and Services] may continue the agreement for successive years. These options were exercised in each of the years since 1988 which was the first year such a provision was contained in the agreement. When Government exercises the option provisions they do not go to tender and the contract remains with B.D.S. [the respondent]. Notwithstanding the option provisions the Company cannot count on more than a one year (season) contract and therefore, they cannot make employment commitments to River Guardians beyond any particular season. However, employees have a post season evaluation and if their performance has been good most of them are employed in the successive season. The company usually has a short period of notice on the outcome of the contract for each successive season and would not have sufficient time to recruit a staff of River Guardians each year.³

The appellants were employed, first by the Department and then by the respondent, on a seasonal "call-back" basis, whereby they would commence active work each year on a date determined by their employer. The river guardians were employed for approximately 10 to 12 weeks per year, usually during the period from 15 June to 15 September. Their specific start date coincided with the beginning of the salmon angling season, when salmon begin their annual migration into inland waters. Notification of the date of commencement of employment for each new season was communicated to the appellants and to the other river guardians in an informal manner, usually by means of a telephone call from one of the respondent's managers. There was no written employment contract between the appellants and the respondent, and the appellants were not at any time required to reapply for the position or to meet any other conditions of eligibility for recall.

At the conclusion of each salmon angling season, the appellants and the other river guardians would receive from the respondent a record of employment (ROE) for the purpose, among others, of allowing them to apply for unemployment insurance benefits during the off-season. The ROEs provided that the reason for issuance was a "shortage of work" and that the date of recall was "unknown". The Adjudicator found that the pattern of seasonal employment was such that the appellants had a legitimate expectation that they would be recalled for work at the beginning of each new salmon angling season.

Thus, the contracting out of the river guardian services from the Department to the respondent did not disrupt the appellants' employment. The appellants were employed as river guardians in each and every year from, in the case of Dean and Davis, 1978, and in the case of Carew, 1980, until they were terminated by the respondent. The evidence before the Adjudicator led him to conclude that the appellants had established a long-standing employment relationship, first with the Department and then with the respondent, as river guardians. He stated:

Since there was no interruption in their seasonal pattern of work over the entire period of their employment as River Guardians, first with the D.F.O. [the Department] and then with B.D.S. [the respondent], all three complainants were employed on a continuous seasonal basis, in the same capacity, for a period of over ten years.⁴

Later, he concluded that the appellants were "permanent seasonal employees" of the respondent:

Although all three complainants usually found casual, temporary, or part time employment in their off season, I do not accept that as proof that they did not have a continuous employment relationship first with D.F.O. and then with B.D.S. as River Guardians for more than 10 years, whenever that work was available. It is my belief the complainants had a right to consider themselves as permanent seasonal employees as River Guardians; the fact they sought and sometimes found or created work in the off season, to supplement their income and remove themselves from total reliance on UI benefits is, in my opinion, to their credit and should not be used to their detriment.⁵ [Emphasis added.]

The appellants Dean and Carew were dismissed by the respondent on 27 July 1990. Davis was not rehired by the respondent at the beginning of the 1991 season when it opened on 22 June 1991 despite the fact that the Department had renewed the respondent's contract to provide the river guardian services. Accordingly, Davis took the position, and the Adjudicator agreed, that he was effectively terminated as of that date.

The appellants filed complaints with Labour Canada pursuant to section 240 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15] of the Code alleging that they were unjustly dismissed by the respondent. When the matter came on for hearing before the Adjudicator in July 1992, the respondent objected to the jurisdiction of the Adjudicator to hear the complaints filed by the appellants on two grounds. Firstly, that the employment of the appellants as river guardians was not within federal jurisdiction, and therefore, the Canada Labour Code did not apply. Secondly, that the appellants had not completed "twelve consecutive months of continuous employment", as required by paragraph 240(1)(a ) of the Code, and accordingly, they did not qualify for the protections afforded by Part III of the Code, including the appointment of an adjudicator to hear their complaints.

Decision of the Adjudicator

The Adjudicator released his decision on 26 April 1994. He rejected the preliminary objections raised by the respondent, and concluded that he did have jurisdiction to hear the complaints. On the first issue, he held that the duties performed by the river guardians are integral to the enforcement of federal regulations under the Fisheries Act aimed at the protection and preservation of salmon in inland waters; matters which clearly fall within the jurisdiction of Parliament over "Sea Coast and Inland Fisheries" in class 91(12) of section 91 of the Constitution Act, 1867 .⁶ He held further that, since the respondent's employment of river guardians was integral to a matter within federal jurisdiction, it was employment properly subject to federal labour law. Consequently, the appellants' recourse, if any, for their allegedly unjust termination by the respondent was under the Canada Labour Code.

In disposing of the applications for judicial review, the Motions Judge agreed that the respondent's employment of the appellants as river guardians constituted "employment in or in connection with the operation of [a] federal work, undertaking or business" within the meaning of paragraph 167(1)(a ) of the Code, and therefore, that the provisions relating to unjust dismissal in Part III of the Code applied to the appellants provided the qualifying conditions in sections 240 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15] and 242 [as am. idem, s. 16] were met.⁷ The respondent has not challenged that conclusion in this Court.

It is the conclusion reached by the Adjudicator on the second jurisdictional issue that the Motions Judge set aside, and that is now the subject of these appeals. The issue turns on the correct interpretation of the expression "twelve consecutive months of continuous employment" in paragraph 240(1)(a ), one of the qualifying conditions which must be satisfied before a complainant is eligible to file a complaint under the unjust dismissal provisions in Part III, Division XIV of the Code. Subsection 240(1) reads:

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. [Emphasis added.]

The respondent contended that the appellants had not been employed for "twelve consecutive months of continuous employment", and hence, were not eligible to file a complaint under Part III of the Code. The Adjudicator, however, rejected that contention on the basis that paragraph 240(1)(a ) refers to twelve consecutive months of continuous employment; it does not require twelve consecutive months of continuous work. On the evidence, the Adjudicator found that, although the appellants were laid off at the end of each salmon angling season, their implicit employment contracts were for an indeterminate period. The appellants had established a consistent pattern of seasonal employment which lasted for more than ten years, whereby they would work for approximately three months, were laid off for the balance of the year due to a shortage of work, and then were rehired each successive season. In his view, the annual layoff did not constitute an interruption in their employment relationship, and thus, the appellants had well in excess of the 12 consecutive months of continuous employment required in order to satisfy the qualifying condition in paragraph 240(1)(a). He concluded, therefore, that the appellants qualified to lay complaints against the respondent under Part III of the Code, and that he had the jurisdiction to hear their complaints.

With respect to the merits of their complaints, after a lengthy review of the evidence, the Adjudicator agreed that the appellants had been unjustly dismissed from their employment with the respondent. Accordingly, he ordered that the respondent reinstate the appellants as river guardians with no loss of pay or benefits. He further ordered the respondent to reimburse the appellants for their reasonable legal expenses.

Decision of the Trial Division

The respondent brought applications for judicial review of the Adjudicator's decision in the Trial Division pursuant to sections 18 [as am. by S.C. 1990, c. 8, s. 4] and 18.1 [as enacted idem, s. 5] of the Federal Court Act.⁸

Before the Motions Judge, the appellants contended that the Adjudicator had no authority to hear and determine the jurisdictional question raised by the respondent with respect to subsection 240(1) of the Code, and further that the Motions Judge on judicial review did not have jurisdiction either. They argued that the only jurisdictional questions that the Adjudicator was explicitly empowered to deal with were those set out in subsection 242(3.1).⁹ Objections based on subsection 240(1) as to the validity of the complaint filed were said to fall within the exclusive jurisdiction of the Minister, and not that of the Adjudicator. They argued that such objections could not be raised except by way of an application for judicial review of the Minister's decision to appoint the adjudicator, once the Minister accepted a complaint as having been validly filed and appointed an adjudicator to hear it. In the absence of such a challenge, however, the appellants contended that an adjudicator must operate on the premise that the qualifying conditions in subsection 240(1) have been met.

The Motions Judge rejected this argument, quite correctly, in my respectful view. It is implicit in the reasoning of this Court in Canada Post Corp. v. Pollard¹⁰ that an adjudicator is entitled to consider whether the conditions precedent to a validly filed complaint in subsection 240(1) have been met. A validly filed complaint is a condition precedent to the jurisdiction of an adjudicator appointed under Part III of the Code. The Minister cannot, by appointing an adjudicator, grant to that person jurisdiction which he or she does not have under the provisions of the Code. If the conditions precedent in subsection 240(1) were not met by the appellants, the Adjudicator would have had no jurisdiction to hear the complaints. The respondent cannot be estopped from challenging that want of jurisdiction before the Adjudicator merely because the Minister viewed the complaint as having been validly filed, and the respondent failed to challenge the Minister's decision to appoint the Adjudicator.¹¹ Therefore, in my respectful view, it was open to the respondent to challenge the Adjudicator's jurisdiction on the basis that the requirements for a validly filed complaint in subsection 240(1) were not met by the appellants, and the Adjudicator was correct to deal with this threshold issue prior to adjudicating on the merits of the complaints.

As already noted, the Motions Judge held that the Adjudicator erred in finding that the appellants had met the requirement, in paragraph 240(1)(a), of "twelve consecutive months of continuous employment". He recognized that the decision of an adjudicator appointed under the Code is protected by the finality clause in subsection 243(1).¹² However, applying the decisions of this Court in Pollard, supra and Byers Transport Ltd. v. Kosanovich,¹³ the Motions Judge held that the Adjudicator's interpretation of subsection 240(1) is subject to review on a standard of correctness, notwithstanding the finality clause, because it is a jurisdiction-conferring provision.

After reviewing the text of paragraph 240(1)(a) and the jurisprudence, the Motions Judge then held that the expression "twelve consecutive months of continuous employment" was intended to require the performance of at least twelve consecutive months of work . In so concluding, he took issue with several decisions made by adjudicators under the Code which support the Adjudicator's interpretation of paragraph 240(1)(a).¹⁴ In his view, the notion that employment can mean something other than active work derived from a misunderstanding of the decision of this Court in Pioneer Grain Co. Ltd. v. Kraus.¹⁵ His dispositive reasons are best summarized in the following paragraphs at pages 490-492 of his reasons:

As BDS's contract was continued, the Adjudicator concluded that a right to a recall did exist and that the employer had failed to honour its obligation to rehire the complainants. I believe that deference is owed to the Adjudicator in so far as this particular conclusion is concerned as it falls within his particular area of expertise. A long established pattern of seasonal employment can give rise to a right of recall, and I believe that on the facts which were before him, it was reasonably open to the Adjudicator to conclude as he did. At the very least, the conclusion reached is not patently unreasonable.

However, the Adjudicator's decision that the pattern of employment giving rise to this right of recall was "employment" within the meaning of subsection 240(1) goes to jurisdiction, and hence must stand the test of correctness. In assessing the correctness of the Adjudicator's decision on this point, I believe that it is useful to go back to the decision of the Court of Appeal which is at the root of the relevant body of case law developed by the adjudicators. In Pioneer Grain , the Court of Appeal was not dealing with seasonal employment. Mr. Kraus held what is commonly understood as a permanent job subject to a temporary lay-off for a brief period each year. That is the context in which the Federal Court of Appeal failed to be "persuaded" that the employment did not continue during the brief lay-off or that the employment could not be regarded as "continuous" within the meaning of the legislation despite the brief lay-off. On a fair reading, this decision stands for the limited proposition that a brief stoppage of work each year in the context of an otherwise ongoing and continuous employment does not necessarily bring that employment to an end. Or, to put the matter more simply, the continuity of an ongoing employment may be unaffected by a yearly lay-off of a de minimis duration.

From this proposition, adjudicators gradually came to hold that the fundamental feature of employment, namely the performance of work for salary or wages, was not contemplated or required by the words "twelve consecutive months of continuous employment" in subsection 240(1) and hence needs not be present. So long as a lingering right of recall stemming from a long established pattern of temporary employment exists, the employment in question can be said to have continued. In the end, seasonal employment limited to a three-month period in any given year came to be considered as employment which could meet the "twelve consecutive months of continuous employment" test.

In my view, this result offends the wording of subsection 240(1) and arises from a misapprehension of the ratio of the Court of Appeal in Pioneer Grain. There is nothing in the language of subsection 240(1) which suggests that the essential feature of "employment", namely the performance of work for a salary or wages, can be ignored in assessing its existence. Indeed, the use of the words "consecutive" and "continuous" strongly suggests that it is employment characterized by the ongoing performance of work that is meant to be measured by the provision, and not a lingering right of recall stemming from a pattern of prior employment. One who has a right to be recalled at some future point in time is not in the state of employment while awaiting the recall, and such a person is certainly not experiencing "consecutive months of continuous employment" during that period. A very clear expression of intent would be required to give to the word "employment" a meaning which excludes therefrom its fundamental constitutive feature.

In coming to his conclusion, the Motions Judge placed considerable emphasis on the use of the verb "travailler" (meaning, "to work") in the French version of paragraph 240(1)(a ).¹⁶ Applying the shared meaning rule, he was of the view that the meaning conveyed by the French text ought to prevail because the English version was "uncertain in scope and may have several meanings".¹⁷ In his view, the French text of paragraph 240(1)(a) was clear that an employee must complete at least twelve consecutive months of continuous (that is, uninterrupted) work, in order to be eligible to file a complaint under the Code. He expressed his view this way:

The use of the verb "travailler" (to work) leaves little room for the claim that paragraph 240(1)(a ) could relate to "employment relationships" of a duration of twelve months. In fact, the French text of paragraph 240(1)(a ) does require the person to have "completed" twelve months of uninterrupted work.¹⁸

He also rejected the argument made by the appellants based on section 29 [as am. by SOR/91-461, s. 29] of the Canada Labour Standards Regulations,¹⁹ which now reads:

29. For the purposes of Division . . . XIV of the Act, the absence of an employee from employment shall be deemed not to have interrupted continuity of employment where

(a) the employee is absent from employment as a result of a lay-off that is not a termination under these Regulations; or

(b) the employer permits or condones the employee's absence from employment. [Emphasis added.]

This Regulation, as amended by SOR/91-461, became effective on 2 September 1991; that is, after the appellants filed their complaints with Labour Canada but prior to the hearing before the Adjudicator. Prior to the amendment, the provision was silent on the issue of whether or not a seasonal lay-off would constitute an interruption in employment for the purposes of the Code, including the unjust dismissal provisions in Division XIV. At the hearing of the applications, the appellants had contended that section 29, as amended, is indicative of Parliament's intention that a seasonal layoff does not constitute an interruption in the continuity of an otherwise on-going employment relationship.

The Motions Judge, however, relied upon the amendment for the exact opposite effect. He reasoned that if Parliament considered it necessary to enact section 29 of the Regulations, it must have been because, without such a "deeming provision", a seasonal layoff did in fact interrupt the continuity of an employment relationship. Since section 29, as amended, did not apply during the period relevant to these appeals, he held that when the respondent laid the appellants off each season, the continuity of their employment relationship was thereby interrupted.

The Motions Judge, therefore, concluded that the Adjudicator erred in holding that the appellants had completed 12 consecutive months of continuous employment within the meaning of paragraph 240(1)(a), and that the Adjudicator never had the jurisdiction to hear the complaints in issue. Accordingly, he made an order setting aside the decision of the Adjudicator with respect to each of the appellants.

Analysis

There is considerable authority respecting the standard to apply when reviewing the decisions of an administrative tribunal that is protected by a privative or finality clause.²⁰ The law is now settled that, notwithstanding the curial deference owed to tribunals protected by a privative clause, an interpretation by a tribunal of a statutory provision which confers jurisdiction upon it, or which limits the scope of its jurisdiction, is to be reviewed on a correctness standard. In relation to Part III of the Code, the decision of this Court in Pollard, supra, makes it clear that the interpretation by an adjudicator of the statutory conditions precedent to a validly filed complaint in subsection 240(1) is subject to review on the correctness standard. The Motions Judge was, therefore, justified in reviewing the Adjudicator's interpretation of paragraph 240(1)(a) on that standard.

With respect to his substantive review, however, I am of the respectful view that the Motions Judge erred in setting aside the decision of the Adjudicator. After considering the text of subsection 240(1), the jurisprudence under the Code and the overriding purpose of the unjust dismissal provisions in Part III, I am unable to agree with the Motions Judge that the expression "twelve consecutive months of continuous employment" in paragraph 240(1)(a ) is intended to require twelve months of uninterrupted work before a complainant can qualify for the procedures afforded by Part III of the Code, including the appointment by the Minister of an adjudicator to hear his or her complaint. Rather, it is my respectful view that a complainant who has maintained a continuous employment relationship with his or her employer for at least 12 consecutive months before he or she was dismissed is eligible, subject to the other qualifying conditions being satisfied, to file a complaint under the Code, even where the complainant may not have been engaged in active work for some part of that employment relationship. As will be developed below, I am of the view that the Motions Judge misconstrued the ratio of this Court in Pioneer Grain and placed excessive reliance on the shared meaning rule in interpreting paragraph 240(1)(a), at the expense of achieving the objective of judicial interpretation, which is to give effect to the intention of Parliament in enacting the provision.

The shared meaning rule is explained succinctly in Driedger on the Construction of Statutes as follows:

The basic rule governing the interpretation of bilingual legislation is known as the shared or common meaning rule. Where the two versions of bilingual legislation do not say the same thing, the meaning that is shared by both ought to be adopted unless this meaning is for some reason unacceptable.²¹ [Emphasis added.]

The Motions Judge reasoned that the expression "twelve consecutive months of continuous employment" was "uncertain in scope and may have several meanings"²², and hence that the meaning conveyed by the use of the verb "travailler" in the French text ought to govern. Unlike the Motions Judge, however, I am not persuaded that the French text of paragraph 240(1)(a ) ought to govern merely because it is the more restrictive interpretation. In saying this, I am not unmindful of the fact that both language versions of Canadian legislation are equally authoritative.²³ The error of the Motions Judge was in assuming that, because the French text has a more restrictive meaning than the English version, it is therefore "a clearer and more precise expression of legislative intent."²⁴

In my respectful view, the search by the Motions Judge for a shared meaning between the two language versions resulted in a technical interpretation of paragraph 240(1)(a) which skewed the analysis in favour of the more restrictive text in the French version. While the Motions Judge states that the French version provides a "clearer and more precise expression of legislative intent", there is no discussion in his reasons of just what was Parliament's intention in enacting the unjust dismissal provisions and the qualifying condition thereto in paragraph 240(1)(a ). In other words, he erred in applying the shared meaning rule to resolve the conflict between the English and French versions of paragraph 240(1)(a) without due regard for the legislative purpose which motivated enactment of the provision. This, in my respectful view, is an important step in the application of the shared meaning rule. P.-A. Côté in The Interpretation of Legislation in Canada, 2nd. ed. states:

. . . the task of interpretation is not completed by deciding upon the meaning shared by the two versions. The interpretative hypothesis must be verified with reference to the statute's context as a whole. The shared meaning must be compatible with the intention of the legislator, as determined by the ordinary rules of interpretation.²⁵

This is not a case where one language version is ambiguous and the other is clear, such that the latter can be used to construe the former. Rather, it is a case where one language version is capable of a broader meaning than the other, and the issue to be decided is which meaning best accords with Parliament's intention in enacting the provision. More particularly, the issue is whether Parliament intended the 12-month requirement in paragraph 240(1)(a) to refer to the period of employment, as the English text suggests, or the period of active work, as the French text suggests. The objective must always be to ascertain the true legislative intention in enacting both versions. As stated by E. A. Driedger in Construction of Statutes, 2nd. ed., "[t]he question in all cases, therefore, is not `which is the better literature', but rather, having regard to the whole Act in both versions, `what did Parliament intend'?"²⁶

Section 61.5 [as enacted by S.C. 1977-78, c. 27, s. 21] of the Canada Labour Code,²⁷ the predecessor of the present section 240, came into force on 1 September 1978.²⁸ The avowed objective of the unjust dismissal provisions was to afford non-organized workers within federal jurisdiction protection against unjust dismissal similar to that enjoyed by unionized workers under collective agreements. The protection afforded by a common law action for wrongful dismissal was seen as deficient in many respects.²⁹ The following comments of the Honourable John Munro, then Minister of Labour, in the House of Commons Debates are instructive:

Which headings embody the objectives of the bill? We are talking first about justice in the work place. Under that meritorious objective, we should put in context the amendments in the bill to Parts III and IV of the Canada Labour Code.

Parts III and IV largely deal with upgrading the labour standards and enhancing the standards, particularly of the unorganized worker, and further, upgrading the safety and occupational health standards of the unorganized worker.

We should realize right away that the immediate impact of these provisions will be on the 550,000 workers under federal jurisdiction. They are primarily in the following areas in the federal sector: railroads, airlines, banking, trucking, broadcasting, grainhandling, communications, and the ports. About half of those 550,000 are unorganized.

It is our hope that Parts III and IV will give at least to the unorganized workers some of the minimum standards which have been won by the organized workers and which are now embodied in their collective agreements. We are not alleging for one moment that they match the standards set out in collective agreements, but we provide here a minimum standard.

. . .

The amendments seek primarily to provide workers with increased job protection.³⁰ [Emphasis added.]

Because Part III, Division XIV of the Code was enacted by Parliament in order to provide non-unionized workers with an avenue of redress in cases of unjust dismissal, it is my respectful view that this Court ought to resolve in favour of complainants any variance between the English and French texts respecting the qualifying conditions for such protection. That the overriding purpose of legislation ought to inform the interpretation of specific provisions is well-accepted in our law.³¹ In Abrahams v. Attorney General of Canada, for example, Wilson J. relied upon the purpose of the Unemployment Insurance Act, 1971³² in interpreting the re-entitlement provisions. She stated:

Since the overall purpose of the Act is to make benefits available to the unemployed, I would favour a liberal interpretation of the re-entitlement provisions. I think any doubt arising from the difficulties of the language should be resolved in favour of the claimant.³³

Similar reasoning ought to be applied in this context. This, of course, does not mean that the Court is at liberty to extend the scope of the protections afforded by the Code to those who do not meet the qualifying conditions expressed therein. Rather, it means simply that, in interpreting these qualifying conditions, the Court ought to keep in mind the overriding purpose of the unjust dismissal provisions, which is to provide non-unionized employees with some protection from unjust dismissal. In coming to this conclusion, I note that Labour Canada, the body charged with implementing the Code, has as one of its guiding principles that any doubt on the part of Labour Canada officials respecting the conditions of admissibility is to be resolved in favour of the complainant whenever possible.³⁴

On this basis then, it is my view that paragraph 240(1)(a) was not intended as an onerous exclusionary provision which excludes from the protections provided by the Code all seasonal employees and other employees not engaged in active work for 12 uninterrupted months prior to their dismissal, whether or not they had long-standing relationships with their employers.

It follows that I am unable to accept that employment and active work are necessarily synonymous in the context of paragraph 240(1)(a). That interpretation of the provision would have the inevitable effect of excluding all seasonal employees from the protections afforded by the Code regardless of the permanency of their employment. This is because, on the Motions Judge's reasoning, any period where an employee is not working for a salary, other than a so-called "yearly lay-off of a de minimis duration",³⁵ ruptures the employment relationship. Not all jobs require 12 consecutive months of active work, and seasonal employees are often among the most vulnerable to abuse by their employers. If Parliament had intended, by paragraph 240(1)(a), to exclude this class of non-unionized employees entirely from the protections afforded by the Code, it seems to me that it ought to have expressed such an intention in clear terms.

In Employment Law in Canada, Christie et al. discuss the reasoning behind the requirement of "twelve consecutive months of continuous employment" as follows:

The requirement that the claimant must have "twelve consecutive months of continuous employment" with his/her employer reflects three concerns: (1) to reduce the heavy caseload that would otherwise likely exist; (2) to provide a rough and ready "probationary" period enabling the employer to assess the employee's capability; and (3) to parallel the "job property" rationale of seniority as it is commonly understood under collective agreements.³⁶

In enacting paragraph 240(1)(a) as a form of minimum seniority requirement, I accept that Parliament intended to avoid the potential for an overload of applications under the Code and the resulting administrative stresses that would ensue, recognizing that the vast majority of discharges occur within the first year of employment. I also accept that Parliament intended to provide employers with a grace period within which to evaluate the work of new employees without having to fear the premature application of the Code. However, in my view, the interpretation given to paragraph 240(1)(a) by the Adjudicator"that the complainant must show that his or her employment relationship with the employer lasted for at least 12 months without interruption"strikes the proper balance between addressing these concerns, while also ensuring that the greatest number of non-unionized workers can take advantage of the protections offered by the Code. The onerous interpretation of the provision relied upon by the Motions Judge adds little to addressing the concerns sought to be addressed in paragraph 240(1)(a ). An employer has 12 months to evaluate a new employee, after which the provisions of the Code apply if the employee is discharged. It is, therefore, the employment relationship, and not the active work period that is important.

Since Parliament's object in enacting the unjust dismissal provisions was to provide non-unionized workers with protections similar to those enjoyed by unionized workers, it is important to take note of the nature of those protections in interpreting paragraph 240(1)(a). On the one hand, the majority of collective agreements provide for a probationary period, within which an employee may be discharged without showing "just cause". On the other hand, it is generally accepted in industrial relations that the continuous employment of an employee subject to a collective agreement is not severed when his or her service is interrupted by periods of vacation, illness, maternity leave, reasonable layoff, work stoppages or other leaves of absence. Rather, it is only where the employee leaves his or her employment voluntarily or is discharged that his or her continuous service is severed. In this respect, I agree with the view expressed by Adjudicator Pyle in Bell Canada v. Cowan , that:

Section 61.5 [now section 240] of the Code was enacted to assure employees, who are not members of a group of employees subject to a collective agreement, protection against arbitrary dismissal by their employers. Furthermore, given that "organized" employees generally recognize that their protection in this regard is circumscribed during a probationary period at the outset of their employment, a similar reservation is made in respect of the "unorganized" employees, i.e., with those with less than 12 consecutive months of continuous employment.³⁷

It is the employer who decides whether or not the employee will be called upon to perform active work, and for how long. There would be significant potential for abuse if the Motions Judge's interpretation of paragraph 240(1)(a) were to be affirmed by this Court. Such an interpretation would, in effect, provide employers with a measure of control over application of the Code in respect of particular employees. An employer ought not to be allowed to avoid the provisions of the Code merely by arranging an annual layoff of employees an inevitable consequence if, as the Motions Judge assumed, the employment relationship that is required to satisfy paragraph 240(1)(a) necessitates continuous active work for at least 12 months.

Thus, in my respectful view, the inclusive meaning suggested by the English version of paragraph 240(1)(a) best captures the intent of Parliament in enacting the provision. Twelve consecutive months of uninterrupted work is not required to qualify for the protections afforded by the Code; what is required is 12 consecutive months of continuous employment. In coming to this conclusion, I also note that when the unjust dismissal provisions were first added to the Canada Labour Code [R.S.C. 1970, ch. L-1] in 1978, the French version of paragraph 61.5(1)(a) [as enacted by S.C. 1977-78, c. 27, s. 21] then read:

61.5 (1) Sous réserve des paragraphes (2) et (3), une personne

(a) qui a terminé douze mois consécutifs d'emploi continu au service d'un employeur . . .

As the Motions Judge observed, this French version is virtually identical in meaning to the English version. In 1984, however, the French version, appearing as paragraph 240(1)(a) in the revised statutes, was changed to the present wording, while the English version survived the revision unchanged.³⁸ As the Motions Judge noted [at page 485] this revision appears to have been made under the authority of the Statute Revision Act,³⁹ paragraphs 6(e) and (f) of which make it clear that the limited powers of the Revision Commission did not extend to changing the substance of the legislation. The Revision Commission had the power to:

6. . . .

(e) make such alterations in the language of the statutes as may be required to preserve a uniform mode of expression, without changing the substance of any enactment;

(f) make such minor improvements in the language of the statutes as may be required to bring out more clearly the intention of Parliament, or make the form of expression of the statute in one of the official languages more compatible with its expression in the other official language, without changing the substance of any enactment. [Emphasis added by the Motions Judge.]

Prior to the amendment in 1984, both the English and French versions of paragraph 240(1)(a) required a continuous employment relationship of at least 12 months. The decision of this Court in Pioneer Grain made it clear that the provision did not necessarily require 12 months of uninterrupted work. Nevertheless, the Revision Commission changed the French version by using the verb "travailler", but did not change the English version. In so doing, the Revision Commission changed, without statutory authority, the substance of the provision. Therefore, in my view, the French version, as enacted prior to the amendment in 1984, is more properly reflective of Parliament's original intent in enacting the provision. The amendment introduced a variance between the two language versions that did not previously exist.⁴⁰

The interpretation of the expression "twelve consecutive months of continuous employment" was squarely before this Court in Pioneer Grain . In that case, the complainant had worked as a repairman and subforeman for Pioneer Grain for six and a half years. Each winter, the workers in the construction maintenance crew, including the complainant, were laid off, presumably due to a shortage of work. The "cold weather lay off" lasted anywhere from two weeks to three months, depending on the year.⁴¹ In 1979-1980, the cold weather layoff had only lasted for approximately two weeks. On 21 March 1980, the company dismissed the complainant. The complainant filed a complaint under the Code and an adjudicator was appointed to hear it. The company, however, objected on the basis that the annual cold weather lay off interrupted the continuity of the complainant's employment, and hence he did not have 12 consecutive months of continuous employment as required by then paragraph 61.5(1)(a) of the Code. Thurlow C.J., for a unanimous Court, rejected the company's argument, stating at page 824:

Nowhere are the terms of the employment detailed. Nowhere is there any indication of the relationship between the employer and the employee during the period covered by what is referred to as "cold weather lay off". The most telling evidence before the Court of the situation is the applicant's statement in its letter of May 12, 1980 that Kraus was "laid off work" from December 21, 1979 to January 7, 1980. This is at least consistent with the continuance of the employment relationship during the period and suggests that the arrangement was that work was to be resumed by the employee when the period came to an end. Nothing in what is related in the decision is inconsistent with such a conclusion. Moreover, it is not described as a lay off because of lack of work or the discontinuance of a function. See subsection 61.5(3).

In these circumstances, I am not persuaded either that the employment relationship did not continue during the period when Kraus was "laid off work" or that the Adjudicator's conclusion that the employment of Kraus must be regarded as "continuous" within the legislation was erroneous. The applicant's objection, therefore, fails. [Emphasis added.]

In my view, it is implicit in the reasoning of the Court that it is the duration of the period of employment, and not the period of active work, that is relevant to what is now paragraph 240(1)(a). An annual layoff does not necessarily interrupt the continuity of an ongoing employment relationship between an employee and an employer. Under this reasoning, seasonal employees, like the appellants in this case, may still qualify for protection under the unjust dismissal provisions of the Code, provided their employment relationships can be construed as having survived their annual layoff unbroken. It is a factual determination which requires construing the intentions of both parties by looking at all of the relevant circumstances of the employment. Although not an exhaustive list, the following factors may be relevant: the duration of the employment relationship; the duration of the annual layoff; the terms of the written employment contract, if any; the information provided to the employee concerning the layoff, whether on his or her record of employment or not; and the customs and practices in the industry. The object is to determine whether the employment relationship continued during the period in which the employee did not perform active work. If yes, and if that relationship lasted unbroken for a period in excess of 12 consecutive months, the employee has met the qualifying condition in paragraph 240(1)(a) and, subject to the other qualifying conditions being satisfied, is eligible to file a complaint under the Code.

However, contrary to the established body of decisions by adjudicators interpreting Pioneer Grain in this manner, the Motions Judge attempted to restrict the ratio of the decision of this Court. He held that the decision merely stood for the narrow proposition that, in cases dealing with a permanent employee, the continuity of his or her ongoing employment relationship is "unaffected by a yearly layoff of a de minimis duration."⁴² I do not agree with this interpretation of Pioneer Grain. In my respectful view, while the duration of the annual layoff is relevant to the factual determination as to whether or not the employment relationship has been severed, it is not a principled basis upon which to establish a legal principle. How short is a lay-off of "de minimis duration"? The Motions Judge placed a great deal of emphasis on the fact that, in the year that the complainant in Pioneer Grain was dismissed, the cold weather layoff only lasted for two weeks. He considered two weeks to be a layoff of "de minimis" duration. But, there was also evidence in that case that the cold weather layoff had, in other years, lasted as long as three months. Nevertheless, this Court held that the continuity of the employment relationship had not been severed by the annual layoff. It is clear to me that the Court did not rely on the "de minimis" concept in reaching its conclusion.

In this case, the Adjudicator found, based on the evidence, that the appellants were permanent seasonal employees of the respondent; employees with a right of recall (subject only to renewal of the respondent's contract to provide the river guardian services), and a legitimate expectation of being recalled. The appellants, in other words, had established a consistent pattern of employment, the continuity of which was not severed by the annual layoff. Although the duration of their annual layoff was longer than in Pioneer Grain, I am of the view that the Adjudicator did not make any reviewable error in concluding that the appellants' employment relationship with the respondent continued during their annual layoff. While the interpretation of paragraph 240(1)(a) is properly subject to review for correctness, the application of that provision to the facts of the case (i.e., the determination as to whether the employer-employee relationship did, in fact, last uninterrupted for at least 12 consecutive months) is within the particular expertise of the Adjudicator. His findings should not be interfered with unless patently unreasonable. I do not find them so.

The Motions Judge recognized that he owed deference to the Adjudicator's finding that the appellants had established a consistent pattern of seasonal employment with the respondent.⁴³ However, he refused to recognize the Adjudicator's finding on the evidence that the appellants were permanent seasonal employees whose employment relationship was not interrupted by their annual layoff. He ought to have accorded deference to that finding, rather than coming to his own determination on the evidence that the appellants were merely temporary employees, terminated at the end of each season, with but "a lingering right of recall". More importantly, by interpreting the qualifying condition in paragraph 240(1)(a ) as requiring 12 consecutive months of uninterrupted work, the Motions Judge, in effect, failed to follow the binding decision of this Court in Pioneer Grain. The basis for distinguishing this case from Pioneer Grain offered by the Motions Judge does not, in my respectful view, withstand scrutiny once the factual context in which that decision was made is understood in its entirety.

Finally, although it is not strictly necessary to dispose of these appeals, I wish to comment on the reasoning of the Motions Judge with respect to section 29 of the Regulations. Section 29, as it now stands, makes it clear that the absence of an employee from employment due to layoff shall not be construed as an interruption in the continuity of employment unless the layoff constitutes a termination. The amendment, however, came into force after the appellants had filed their complaints. The Motions Judge, therefore, held that the fact that Parliament enacted this amendment meant that, prior to the amendment gaining the force of law, a layoff did constitute an interruption in the continuity of an otherwise ongoing employment relationship. This reasoning is entirely inconsistent with accepted principles of statutory interpretation. It is as likely, indeed, probably more likely, that the purpose of the amendment was to reflect, for greater certainty, the state of the law as it existed at the time of the enactment. To illustrate this error, I need go no further than refer to subsections 45(2) and (3) of the Interpretation Act⁴⁴ which read:

45. . . .

(2) The amendment of an enactment shall not be deemed to be or to involve a declaration that the law under that enactment was or was considered by Parliament or other body or person by whom the enactment was enacted to have been different from the law as it is under the enactment as amended.

(3) The repeal or amendment of an enactment in whole or in part shall not be deemed to be or to involve any declaration as to the previous state of the law.

For all of these reasons, I conclude that the Motions Judge erred in law in setting aside the decision of the Adjudicator. The Adjudicator made no reviewable error which warranted the interference of the Motions Judge in determining that he had jurisdiction to hear the complaints laid by the appellants under Part III, Division XIV of the Code. Accordingly, I would allow the appeals with costs, set aside the judgment of the Motions Judge, dismiss the application for judicial review, and affirm the decision of the Adjudicator.

Stone J.A.: I agree.

* * *

The following are the reasons for judgment rendered in English by

McDonald J.A. (dissenting): This is an appeal from a decision of the Trial Division which set aside the decision of an adjudicator appointed pursuant to the provisions of the Canada Labour Code, R.S.C., 1985, c. L-2, Part III, Division XIV. The appellants in this case allege that they were unjustly dismissed from their employment. The main issue is whether the Trial Judge erred in concluding that the appellants were not eligible for statutory protection from unjust dismissal under the Labour Code as they did not meet the requirements of paragraph 240(1)(a) of the Code. A copy of the reasons will be filed in each of the files mentioned in the style of cause.

In order for an individual to make a complaint of unjust dismissal under the Labour Code, paragraph 240(1)(a) of the Code specifies that the individual must have completed 12 consecutive months of continuous employment. In this case, the appellants worked for 10 to 12 weeks and were then laid off for the remainder of each year. The Adjudicator found that the employment relationship continued during the layoff, and held that the appellants met the 12 consecutive months requirement. The employer appealed to the Trial Division, and the Trial Judge reversed the decision of the Adjudicator. The Trial Judge found that the annual layoffs broke the employment relationship and prevented the employees from completing 12 consecutive months of continuous employment. The former employees now appeal to this Court.

FACTS

The appellants were employed as river guardians by Beothuk Data Systems (BDS"the respondent). As river guardians, they were responsible for ensuring the public's compliance with the provisions of the Fisheries Act , R.S.C., 1985, c. F-14 and related regulations. Their work season generally ran from July 15 to September 15.

The appellants originally began work as river guardians in 1978 through the Department of Fisheries and Oceans (DFO). In 1983, DFO began contracting out the river guardian program under tender. BDS was the successful bidder every year from 1984 to the time of the hearing. Upon the awarding of the first contract in 1984, BDS hired the appellants as river guardians.

The appellants were employed on a "call-back basis" first by DFO and then BDS. Each year, once BDS had received the contract, a BDS supervisor would call the appellants and tell them when to report for work. The appellants did not have to reapply each year. Further, it appears that the appellants understood and expected that they would be called back at the beginning of each season. At the end of each season, the appellants would receive a record of employment which provided that the reason for its issuance was "shortage of work" and the date of recall was "unknown." These terms of employment were universally applied to all river guardians.

The appellants Dean and Carew were dismissed from BDS effective July 27, 1990. The appellant Davis was dismissed effective June 22, 1991.

HISTORY OF THE CASE

Upon their dismissals, the appellants complained to the Labour Relations Board alleging unjust dismissal. They were first directed to the provincial Board, but were later advised that their complaint fell under federal jurisdiction. They then sought remedies under Part III of the Labour Code, and an official of Labour Canada was appointed to assist them in settling their complaints. After the procedures had been exhausted and no settlement had been reached, the Minister of Labour appointed an adjudicator to hear the complaints.

The Adjudicator wrote a lengthy decision wherein he decided, among other things, that the appellants were entitled to the protection of the unjust dismissal provisions of the Canada Labour Code as they had been in a continuing employment relationship for at least 12 consecutive months.

The employer appealed to the Trial Division, which set aside the decision of the Adjudicator. The appellants now appeal to this Court.

DECISION OF THE TRIAL JUDGE

The main issue before the Trial Judge was whether these employees met the requirements of paragraph 240(1)(a) of the Code. As a preliminary matter, the employer argued that the Adjudicator was without jurisdiction to hear the matter, as it was an issue for the provincial, not federal, Labour Board. The employees argued that it was not open to the employer to raise a jurisdictional issue at that stage in the proceedings. The employees argued that once the Minister accepts a complaint as having been validly filed and appoints an adjudicator, objections based on the propriety of the complaint can no longer be raised.

The Trial Judge considered the jurisdictional arguments and concluded that (at page 464):

. . . it is always open to a party to question the legislative authority of the adjudicator by reference to the propriety of the complaint with respect to which he or she has been appointed.

The Trial Judge went on to hold that the filing of a valid complaint was at the root of the adjudicator's jurisdiction, thus the issue of jurisdiction was properly raised by the employer.

Having dealt with this preliminary issue, the Trial Judge went on to consider the three grounds of review.

Issue 1:  Was this an issue properly before the federal Labour Board?

The Adjudicator concluded that he did have jurisdiction to hear this case, as the work of river guardians is tied closely to the federal head of power over sea coast and inland fisheries. The employer took the position that this was an error: the complaint was properly within provincial, not federal jurisdiction.

The Trial Judge noted that pursuant to Cuddy Chicks Ltd. v. Ontario (Labour Relations Board), [1991] 2 S.C.R. 5, the standard of review with respect to jurisdictional decisions which have at their root the division of powers between the federal and provincial governments is that of correctness. The Trial Judge went on to note that river guardians are appointed under the federal Fisheries Act, and the powers of river guardians are set out in the same Act. The Trial Judge concluded that, in his view (at page 476):

. . . the provisions in the Fisheries Act describing the powers of fishery guardians as well as the description of their scope of work provide ample evidence that fishery officers and guardians are the agents chosen by Parliament to supervise and enforce the legislative scheme of the Fisheries Act . . . . The work of the river guardians can thus fairly be characterized as "vital", "essential" or "integral" to the core federal undertaking.

Issue 2:  Was the Adjudicator correct in deciding that the respondents had completed 12 consecutive months of continuous employment as required by paragraph 240(1)(a) of the Labour Code?

The Adjudicator was persuaded by the fact that paragraph 240(1)(a) requires 12 consecutive months of employment, not 12 consecutive months of work. In the Adjudicator's view, this revealed the intention of Parliament to allow seasonal workers such as the employees in this case who have 12 months of "continuous employment relationship" to make a complaint under the Labour Code.

The Trial Judge disagreed with this interpretation. He noted that the French version of the provision used the verb "travailler""to work. He applied the shared meaning rule and found that where the English version allowed for two interpretations, whereas the French allowed for only one of those interpretations, the shared meaning is presumed to be the correct meaning in the absence or any reasons to reject it.

Having said this, the Trial Judge noted that the French text had been revised under the authority of the Statute Revision Act which provided for revisions which did not change the substance of the enactment. The original version of the French was much closer to that of the English, so the Trial Judge was forced to continue his analysis based on the language in the English version.

The Trial Judge then turned to the jurisprudence relating to paragraph 240(1)(a). The Adjudicator found the decision of this Court in Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C. 815 to be applicable to the case at bar. This approach and interpretation was consistent with other decisions of adjudicators purporting to apply Pioneer Grain: see, e.g., Ghislain Simard v. Cablevision Baie St-Paul Inc. (Tousignant, 1989); Pierre Mongrain v. Pelee Island Transportation (Abramowitz, 1986). These cases among others have interpreted Pioneer Grain as meaning that where a continuous pattern of employment can be said to exist between the parties, there is continuous employment for the purposes of subsection 240(1). According to this reasoning, a right of recall may be evidence of an ongoing contractual relationship and proscribes the limitation in paragraph 240(1)(a) with respect to seasonal workers.

The Trial Judge took an entirely different tack. He found that Pioneer Grain stands only for the proposition that a brief stoppage of work each year in the context of an otherwise ongoing and continuous employment does not necessarily bring that employment to an end. That is, where the layoff is of a de minimis duration, the employment contract will be found to subsist. In the Trial Judge's view, the subsequent decisions of adjudicators purporting to extend the application of Pioneer Grain to seasonal workers are in error.

Issue 3:  Is the amendment to section 29 of the Regulations determinative of the finding that the appellants' seasonal layoff does not constitute an "interruption of employment" for the purposes of paragraph 240(1)(a)?

The employees attempted to rely on the amended version of section 29 of the Regulations which provides that seasonal workers will be deemed not to have interrupted continuity of employment. The Trial Judge noted that this provision came into effect after these employees were terminated and therefore it was not applicable.

ISSUES

There are three main issues in this case:

(1) Did the Trial Judge err in concluding that the employer could raise the issue of jurisdiction on judicial review;

(2) Did the Trial Judge err in concluding that the appellants did not meet the requirements of paragraph 240(1)(a) of the Labour Code; and

(3) Is the amendment to section 29 of the Regulations determinative of the finding that the appellants' seasonal layoff does not constitute an "interruption of employment" for the purposes of paragraph 240(1)(a )?

ANALYSIS

Issue 1:  Did the Trial Judge err in concluding that the employer could raise the issue of jurisdiction on judicial review?

The appellants argue that this issue was not properly before the Trial Judge on an application for judicial review. The appellants submit that once an adjudicator is appointed by the Minister, there is no longer an issue as to the jurisdiction of the adjudicator. In response, BDS argues that the issue of jurisdiction is always alive, and the Trial Judge was correct to address the issue.

I am of the view that the Trial Judge was correct in his interpretation of this issue. Jurisdictional issues are always alive and may be raised at any point in the proceedings. Simply because a Minister believes a dispute to be subject to federal jurisdiction does not mean that a dispute necessarily is a matter for federal jurisdiction.

As for the merits of the jurisdictional argument, it is clear that the river guardian positions are governed by federal statute. I agree with the Trial Judge's conclusion that these positions are federal in nature as they are vital to the core federal undertaking of enforcement of the Fisheries Act. In my view, this matter was properly considered to be within federal, not provincial jurisdiction.

Issue 2:  Did the Trial Judge err in concluding that the appellants did not meet the requirements of paragraph 240(1)(a) of the Labour Code?

Section 240 of the Labour Code states:

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.

As a starting point it is important to note that on issues of law, the standard of review of the decision of the Adjudicator is that of correctness: Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (C.A.); Byers Transport Ltd. v. Kosanovich, [1995] 3 F.C. 354 (C.A.). The interpretation of subsection 240(1) is clearly a question of law, so the question for this Court is whether the Adjudicator's or Trial Judge's interpretation of section 240 was the correct approach in law.

(a)  Principles of Interpretation

In interpreting section 240 of the Labour Code, I am mindful of the words of the Supreme Court of Canada in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, where Lamer J. [as he then was] spoke to the purpose of the provisions in the Labour Code with respect to unjust dismissal. In his view, the purpose of the provisions is to (at page 1072):

. . . give non-unionized employees a means of challenging a dismissal they feel to be unjust and at the same time to equip the adjudicator with the powers necessary to remedy the consequences of such a dismissal.

While this statement of purpose is true of the remedial provisions, access to the relief provided by those provisions is governed by section 240. In effect, subsection 240(1) is a gatekeeper provision which operates to limit the application of the subsequent remedial provisions. It is the scope of that limitation and not the scope of remedy which is at issue in this case.

(b)  Was there a subsisting employment relationship?

In argument before this Court, BDS took the position that it does not agree that the employees in this case were "permanent employees" of BDS. The respondent noted that the employment of the appellants would generally consist of 10 weeks per year, although in some years this would be extended an additional two or three weeks. The respondent argued there was no employment relationship between BDS and the appellants for the rest of the calendar year.

BDS also argued that there was no subsisting employment relationship due to the fact that each year, the contract had to be renewed by the federal government. Thus, there was no reasonable prospect of employment until and unless the contract was renewed. The employer argued that the employment contract terminated each year.

BDS went on to take the position that the jurisprudence developed by tribunals with respect to paragraph 240(1)(a) and its application to seasonal workers has been that where the employee's recall from seasonal layoff depends on the employer funding the job by winning a tender competition, continuity is generally held to have been interrupted. In the case at bar, further employment was entirely dependent on BDS winning a new contract each year, so BDS contended that the continuity of the employee's employment was broken.

In Employment Law In Canada by Christie et al., 2nd ed. (Toronto: Butterworths, 1993, at page 672), the authors state:

The requirement that the claimant have 12 consecutive months of continuous employment reflects three concerns:

(1) to reduce a heavy caseload that would otherwise likely exist;

(2) to provide a rough and ready "probationary" period enabling the employer to assess the employee's capability; and

(3) to parallel the "job property" rational of seniority as it is commonly understood in their collective agreements.

The Code, with few exceptions, does not specify which events will rupture "continuous" employment, unlike most collective agreements . . . it has largely fallen to the adjudicator to develop a jurisprudence on the matter.

. . .

Similarly, where the employee's recall from seasonal lay-off depends on the employer funding the job by winning a tender competition, it has been held that continuity is interrupted because the employer could not fairly be said to intend to guarantee a recall under such circumstances. Rather, the employee is hired under a series of fixed-term contracts that expire at the end of each season with the termination of each funding contract. [Emphasis added.]

In the case at bar, BDS' contract with the government became an option contract in 1988. That is to say, the contract was presumed to be renewed each year unless BDS was informed otherwise. The appellants argued that the fact that the contract has been on an option basis supports a finding that there was a continuous employment relationship.

While the existence of an option contract suggests that there was some reasonable expectation of future employment, the Adjudicator specifically found:

Notwithstanding the option provisions the company cannot count on more than a one year (season) contract and therefore, they cannot make employment commitments to River Guardians beyond any particular season. [Decision of the Adjudicator, at p. 5.]

Given the fact that BDS' contract was regularly renewed as an option contract and was not subject to the tendering process each year, it is clear that there was no guarantee that BDS would be awarded the contract in any future year. The Adjudicator notes that the period of notice between the awarding of the contract each year and the commencement of the season was quite short: decision of the Adjudicator, at page 6. In such a situation, it seems unreasonable to conclude that the employee could be held to have a subsisting employment relationship from year to year when the employer could not guarantee work from year to year.

I am not persuaded that the existence of an option to renew the contract with BDS was sufficient to maintain the employment relationship from year to year. I prefer the approach laid out by Christie et al. above, whereby the employment is more properly viewed as a series of fixed term contracts. In my view, it would impose an overly onerous obligation on the employer to find a subsisting employment relationship with all the attending rights and obligations where the employer has no guarantee that there will be future work for the laid-off employees.

(c)  Right of recall

It was argued by the appellants that the employer's recall practice year after year also suggests that there was a subsisting employment relationship. The employees were subject to a right of recall each year and did not have to reapply or reinterview for their positions.

The Trial Judge concluded that paragraph 240(1)(a) specifically required "continuous employment". In his view, the plain meaning of the provision required more than 10 to 12 weeks of work per year. He did not accept the argument that the employment contract subsisted throughout the rest of the year due to the call-back practice of the employer.

Conversely, the Adjudicator was quite persuaded by the call-back process. The Adjudicator considered all the elements of the employment arrangement, including the fact that this cycle of employment was repeated for over 10 years, the employees had neither to reapply nor reinterview for the positions, and the same period of employment was involved each year. Further, these employees expected to be rehired each year. It appears that the Adjudicator found this to be a reasonable assumption based on past practice.

While the employees were recalled each year for 10 years, I do not agree that this practice of recall establishes a continuing employment relationship. As explained above, the employment each year was contingent on BDS being awarded a yearly contract. Without that contract, there would be no available employment. In my view, the lack of certainty associated with the acquisition of a new contract overrides the employer's recall practices.

(d)  The French and English text of the statute

The Adjudicator noted, quite correctly in my view, that the English version of the statute refers to "employment" not to continuous weeks of work. Thus, if there is a continuing "employment relationship" (not necessarily continuous "work") throughout the year, the employees come within paragraph 240(1)(a ).

The Trial Judge looked to the French language text of the statute for assistance in interpreting the English text of the provision. While this is often a useful practice, I am not convinced that this was at all helpful in this case. As noted by the Trial Judge, while the current version of the French provision uses the word "travailler", the previous version had language similar in substance to that of the present English provision. The change in French wording came about as a result of actions taken under the Statute Revision Act , an Act which specifically mandates only those revisions which do not change the substance of the enactment. In my view, the change in wording, in so far as it changed the sense of the French provision, was done without proper authority, rendering the current French version of limited assistance in this case.

(e)  Jurisprudence

Subsection 240(1) (then section 61.5) was considered by this Court in the case of Pioneer Grain Co. Ltd. v. Kraus, [1981] 2 F.C. 815. In Pioneer Grain, the Court was faced with a long-term construction worker who complained of unjust dismissal. The employee was laid off for several weeks each year when the weather was too cold to work. For the remainder of the year, the employee was permanent and full-time. The employer argued that the employee was not entitled to the protection of the Labour Code, as the employee had not completed 12 consecutive months of continuous employment. The Court concluded that the employee was entitled to the protection of the statute, as the employment relationship continued during the lay-off period.

The Adjudicator purported to apply Pioneer Grain to the case at bar and concluded that it stood for the proposition that seasonal workers may have an employment relationship that continues throughout the lay-off period. Thus, in the view of the Adjudicator, seasonal employees such as the appellants meet the requirement of 12 consecutive months of continuous employment laid out in paragraph 240(1)(a) where there is evidence of a continuing employment relationship. The Adjudicator found such evidence of a continuing employment relationship and concluded that the appellants met the requirements of paragraph 240(1)(a).

The appellants submit that the Adjudicator was correct in his application and interpretation of Pioneer Grain to this case. In the appellants' submissions, the employment relationship continued throughout the layoff period, and the approach of the Adjudicator should be upheld. The appellants go on to argue that once the correct interpretation of subsection 240(1) is established, it falls to the Adjudicator to assess the facts of the case. The decision of the Adjudicator with respect to the assessment of these facts is reviewable only where it is patently unreasonable.

Conversely, BDS argues that the Adjudicator erred in his interpretation and application of Pioneer Grain and takes the position that the Trial Judge was correct in his interpretation of the law relating to paragraph 240(1)(a).

I am inclined to the view that the Adjudicator erred in his interpretation and application of Pioneer Grain in the case at bar. I do not agree that Pioneer Grain operates to extend the scope of paragraph 240(1)(a) so as to include all seasonal workers. Firstly, it is not at all clear that the employee in Pioneer Grain could actually be termed a "seasonal employee." As I understand the term "seasonal employee," it refers to employees who work for a fixed period of time each year. Fishers are a classic example of seasonal employees, as are river guardians. I do not see that this perception of what constitutes a seasonal employee includes an individual such as the employee in Pioneer Grain . In that case, the employee was laid off for a short and variable amount of time each year. His layoff was entirely of a de minimis duration. This short period of layoff when the weather was too cold to permit work does not render the worker a "seasonal employee".

Subsequent application of Pioneer Grain by adjudicators has extended the case to a seasonal employee who worked for three or four months per year (Simard, supra). Upon considering the employment relationship as a whole, including the recall practice of the employer, the Adjudicator in Simard found that there was a continuing employment relationship.

The Trial Judge concluded that this subsequent consideration of Pioneer Grain extended the decision beyond its intended scope. I am compelled to agree. In Pioneer Grain, the worker was laid off for a few weeks each year while it was too cold to work. The Court found that this layoff was not sufficient to sever the employment relationship, as the worker resumed work once this de minimis layoff ended. In my view, this does not mean that all seasonal employees are capable of having a continuous employment relationship for 12 consecutive months when they are actually employed for a few months of the year.

A more crucial, distinguishing feature than the length of the layoff is the fact that in Pioneer, the employee was given a specific restart date at the time of the layoff. The Court in Pioneer found, and I agree, that this specification of a restart date suggested that the employment relationship continued during the lay-off period.

In this case, the employees worked for 12 to 14 weeks per year. Upon termination, there was no restart date specified. In fact, there could not have been such a date specified, as the availability of future work was contingent on the employer successfully bidding for the work the following year.

Another important distinction between Pioneer and the case at bar is that in Pioneer there was no argument that the employer was dependent upon a successful contract bid to renew the claimant's employment. The employee in Pioneer was laid off not because the necessary work had been completed, but because environmental conditions precluded the necessary work from being done. In my view, this is entirely distinguishable from the case at bar where there was a specified employment contract which was completed at the end of each year.

In my view, the application of Pioneer to this case stretches the application of Pioneer well beyond its intended scope. The Court in Pioneer could not have intended to negate the clear wording of paragraph 240(1)(a). The facts of Pioneer simply dictate that although there was a layoff, the fact that there was a specified date of recall and the layoff was of de minimis duration rebutted any presumption that the employment relationship had ended.

Even if I am in error and the Adjudicator did not exceed the intended scope of Pioneer, I believe this case is distinguishable on the contract issue. I cannot agree that there is a continuing employment relationship throughout the year when there is no remaining work and no confirmed prospect of work until the contract is renewed.

Issue 3:  Is the amendment to section 29 of the Regulations determinative of the finding that the appellants' seasonal lay-off does not constitute an "interruption of employment" for the purposes of paragraph 240(1)(a)?

Section 29 of the Regulations as amended by SOR/91-461 reads as follows:

29. For the purposes of Divisions IV, VII, VIII, X, XI, XIII and XIV of the Act, the absence of an employee from employment shall be deemed not to have interrupted continuity of employment where

(a) the employee is absent from employment as a result of a layoff that is not a termination under these Regulations; or

(b) the employer permits or condones the employee's absence from employment.

This amendment came into force after the layoff of the appellants but before the hearing before the Adjudicator.

BDS took the position that there is a general presumption against retroactivity in Canadian law. BDS further suggested that the amendment to section 29 of the Regulations "is strongly suggestive" that during the relevant period of the severance, a layoff did interrupt the continuity of employment. The respondent also argues that it is inconsistent for the appellants to argue that the amendment is not suggestive of the law, but then they seek to use the amendment to confirm the decision of the Adjudicator.

In the alternative, BDS took the position that these employees were not laid off each year. Instead, their employment was severed due to the fact that BDS had no right to continue with the work. The ability to do this work each year was dependent on BDS being successful in a contract bid. It would be impossible to suggest that the appellants have any greater rights vis-à-vis BDS than BDS has with respect to the federal government. Thus, it was submitted, even if the amended Regulation were to apply, it would not have any effect.

The appellants submitted that prior to amendment, the Regulations were silent on the issue of whether a seasonal layoff would constitute an interruption for the purposes of section 240. While the effective date of the amendment was after they had been dismissed, the appellants argue that pursuant to section 44 of the Interpretation Act, R.S.C., 1985 c. I-21, the new amendment ought to have applied to the proceedings before the Adjudicator. It is further submitted that the appellants' employment met the requirements of section 240 when the provision is read in light of section 29 of the Regulations.

The appellants also took the position that the Trial Judge erred in drawing an inference that the law was other than the regulation states before the regulation came into effect. The regulation, it is submitted, was simply declaratory and made no changes to the state of the law pre-amendment.

Under subsections 45(2) and (3) of the Interpretation Act, no inference can be drawn from an amendment with respect to the state of the law previous to the amendment. That is, the amendment will neither be assumed to be declaratory nor be representative of a change in the law. One must look, then, to the state of the law as it existed before the amendment to determine whether the amendment was declaratory or represented a change in the law. If the amendment is a statement of the law as it existed at the time and thus is simply declaratory, the appellants are correct in asserting that it was proper for the Adjudicator to consider the amendment. If the amendment represents a change in the law, the amendment was not properly before the Adjudicator.

It has been argued that the amendment is consistent with previous decisions of adjudicators which extended the protection of section 240 to seasonal workers. If this is the correct approach, the amendment is declaratory and should have been applied by the Adjudicator. Given my interpretation of Pioneer Grain and my conclusion that the subsequent decisions of the adjudicators extended that case well beyond its intended scope, I am unable to conclude that the provision is indeed declaratory. The clear wording of subsection 240(1) indicates that 12 consecutive and continuous months of employment are required, and this raises a presumption that seasonal workers will not be covered. Further, the Regulations were previously silent on whether seasonal workers were covered. The presumption then remained, and was not, in my opinion, disturbed by the decision of this Court in Pioneer Grain. In my view, the regulation was not declaratory.

I agree that the amendment demonstrates that Parliament intended for seasonal workers to be afforded the protection of section 240. Previous to that amendment, however, the language chosen by Parliament offered no exception for seasonal workers. I am not persuaded that a line of adjudicative decisions which in my view extend a decision of this Court well beyond its intended scope are sufficient to change the intention of Parliament as evidenced by the language of the statute and Regulations as they existed at the time of the lay-off of these employees.

In any event, I agree with the submission in the alternative of BDS that the new Regulation would not change the position of the appellants. BDS has argued that the termination of the government contract each year resulted in the termination of employment and any reasonable expectation thereof. Even if the provision were to apply (i.e. if it were declaratory), then, it would not advance the appellants' case. As far as the employer is concerned, there was a termination of employment at the end of each contract. This is consistent with my view of the employment relationship.

Public Policy Considerations

Certainly, there are public policy arguments in favour of finding that these appellants meet the requirements of subsection 240(1). The unjust dismissal provisions exist to give protection to workers not covered by collective agreements. The appellants in this case were employed in the same positions for more than 10 years and reasonably expected to return to their jobs. Without the protection of section 240, they are unable to bring an action against their employer for wrongful dismissal under the Canada Labour Code.

At the same time, it is easy to see how such a precedent could be abused. Granting coverage to employees who work far less than a full calendar year could open the door to more coverage of potential claimants than Parliament intended at the time that these employees were dismissed. If this Court attempts to stretch the language of the provision to include that which it clearly was not meant to include, the Court is effectively negating one of the gatekeeper functions of subsection 240(1).

I am further persuaded by the fact that denial of the protection of the Canada Labour Code does not deprive these employees of action against their employer. It was suggested in argument before this Court that to deny these appellants redress under the Labour Code is to deny them any relief for their alleged unjust dismissals. With due respect to that submission, I cannot agree. Even absent the protection of the Labour Code, the appellants have remedies at common law against their employer particularly since it appears from the evidence that they were erroneously forced into the federal arena to their detriment.

CONCLUSION

For these reasons, I am of the view that the Adjudicator erred in concluding that the appellants had completed 12 consecutive months of continuous employment. I would dismiss the appeal with costs and affirm the decision of the Trial Judge.

¹ R.S.C., 1985, c. L-2, as amended (the Canada Labour Code or the Code).

² R.S.C., 1985, c. F-14 (the Fisheries Act or the Act). S. 5(1) [as am. by S.C. 1991, c. 1, s. 2] reads:

5. (1) The Minister may designate any persons or classes of persons as fishery officers or fishery guardians for the purposes of this Act and may limit in any manner the Minister considers appropriate the powers that a fishery officer or fishery guardian may exercise under this Act or any other Act of Parliament.

³ In the matter of an adjudication pursuant to Part III of the Canada Labour Code, R.S.C., 1985, c. L-2, as amended, between Michael Carew, Hugh Davis, Douglas Dean (Complainants) and Beothuk Data Systems, Ltd. Seawatch Division (respondent) (the Adjudicator's reasons), at p. 5.

⁴ Adjudicator's reasons, at p. 1.

⁵ Adjudicator's reasons, at p. 10.

⁶ 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5].

⁷ S. 167(1) [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 5] reads:

167. (1) This Part [III] applies

(a) to employment in or in connection with the operation of any federal work, undertaking or business, other than a work, undertaking or business of a local or private nature, in the Yukon Territory or the Northwest Territories;

(b) to and in respect of employees who are employed in or in connection with any federal work, undertaking or business described in paragraph (a);

(c) to and in respect of any employers of the employees described in paragraph (b); and

(d) to and in respect of any corporation established to perform any function or duty on behalf of the Government of Canada, other than a department as defined in the Financial Administration Act.

⁸ R.S.C., 1985, c. F-14, as amended.

⁹ S. 242(3.1) reads:

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.

¹⁰ [1994] 1 F.C. 652 (C.A.) (Pollard).

¹¹ It is well-settled law that consent cannot give to a tribunal a jurisdiction which statutory authority denies. See e.g., Dominion Canners Ltd. v. Costanza, [1923] S.C.R. 46, at pp. 66-67; Essex Incorporated Congregational Church Union v. Essex County Council, [1963] A.C. 808 (H.L.), at pp. 820-821; and Canadian National Railway Co. v. Canadian Transport Commission, [1988] 2 F.C. 437 (T.D.), at pp. 449-450. By similar reasoning, a party cannot be estopped from challenging the jurisdiction of a tribunal because it failed to raise the objection in an earlier proceeding. See e.g., Norway House Indian Band v. Canada (Adjudicator, Labour Code), [1994] 3 F.C. 376 (T.D.).

¹² S. 243(1) reads:

243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

¹³ [1995] 3 F.C. 354 (C.A.).

¹⁴ The Motions Judge points to the decisions of adjudicators appointed under the Code in Pierre Mongrain v. Pelee Island Transportation (12 August 1986, Adjudicator: Abramowitz); Re Beaudril v. Preignitz (27 October 1986, Adjudicator: J. W. Samuels); and Ghislain Simard v. Cablevision Baie St-Paul Inc. (27 September 1989, Adjudicator: Tousignant).

¹⁵ [1981] 2 F.C. 815 (C.A.) (Pioneer Grain).

¹⁶ The French text of s. 240(1)(a) reads:

240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si:

a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur. [Emphasis added.]

¹⁷ Reasons for judgment, at p. 484.

¹⁸ Reasons for judgment, at p. 484.

¹⁹ C.R.C., c. 986, as amended (the Regulations).

²⁰ See Syndicat des employés de production du Québec et de l'Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412; U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; and CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983.

²¹ R. Sullivan, Driedger on the Construction of Statutes, 3d. ed. (Toronto: Butterworths, 1994), at p. 220.

²² Reasons for judgment, at p. 484.

²³ Official Languages Act, R.S.C., 1985 (4th Supp.), c. 31, s. 13.

²⁴ Reasons for judgment, at p. 485.

²⁵ (Cowansville, Qué.: Éditions Yvon Blais Inc., 1991), at p. 276.

²⁶ (Toronto: Butterworths, 1983), at p. 171. See: Juster v. The Queen, [1974] 2 F.C. 398 (C.A.); Food Machinery Corpn. v. Registrar of Trade Marks, [1946] Ex. C.R. 266; The King v. Dubois, [1935] S.C.R. 378; R. v. Black & Decker Manufacturing Co. Ltd., [1975] 1 S.C.R. 411; and R. v. Compagnie Immobilière BCN Ltée, [1979] 1 S.C.R. 865. In all of these cases, the contest was between a wide and narrow construction in the two language versions. In Juster, Food Machinery Inc., Black & Decker and Compagnie Immobilière, the courts endorsed the wider meaning. In Dubois, the Court endorsed the narrower meaning. But, in all cases, the courts went beyond the bare meaning of the words, and resolved the ambiguity by considering the purpose and effect of the legislative provision at issue in order to arrive at the intention of Parliament.

²⁷ R.S.C. 1970, c. L-1, as amended.

²⁸ An Act to amend the Canada Labour Code, S.C. 1977-78, c. 27. Bill C-8 was tabled in the House of Commons on 27 October 1977 and received Royal Assent on 20 April 1978.

²⁹ For a discussion of the specific deficiencies, see G. England, "Recent Developments in Wrongful Dismissal and Some Pointers for Reform" (1978), 16 Alta. L. Rev. 470; and I. Christie et al., Employment Law in Canada, 2d ed. (Toronto: Butterworths, 1993).

³⁰ House of Commons Debates, Vol. II, 3rd Sess., 30th Parl., 1977-78, at pp. 1831-1832. See also "A Better Deal for Canada's Unorganized Workers", an address by the Hon. John C. Munro, The Labour Gazette (19 August 1977), at p. 347; and G. England, "Unjust Dismissal in the Federal Jurisdiction: The First Three Years" (1982), 12 Man. L.J. 9, at p. 10.

³¹ As stated by J. Channell in Reigate Rural District Council v. Sutton District Water Company; Ewart, Third Party (1908), 99 L.T.R. 168 (K.B.), at p. 170, "it is always necessary in construing a statute, and in dealing with the words you find in it, to consider the object with which the statute was passed, because it enables one to understand the meaning of the words introduced into the enactment." Cited by Anglin C.J.C. with approval in Hirsch v. Protestant Board of School Commrs. , [1926] S.C.R. 246, at p. 267; and see Ottawa, City of, v. Canada Atlantic Ry. Co. (1903), 33 S.C.R. 376; Attorney-General for Canada v. Hallet & Carey Ld., [1952] A.C. 427 (P.C.), at p. 449, per Lord Radcliffe; and Nokes v. Doncaster Amalgamated Collieries, Ld., [1940] A.C. 1014 (H.L.), at p. 1022, per Viscount Simon L.C.

³² S.C. 1970-71-72, c. 48, as amended.

³³ [1983] 1 S.C.R. 2, at p. 10.

³⁴ See N. Grosman, Federal Employment Law in Canada (Toronto: Carswell, 1990), at p. 91.

³⁵ Reasons for judgment, at p. 491.

³⁶ Supra, note 29, at p. 672.

³⁷ (19 August 1987, Adjudicator: D. G. Pyle, Ref. No. 771-Ont.), at p. 19.

³⁸ An Act to amend the Canada Labour Code and the Financial Administration Act, R.S.C., 1985 (1st. Supp.), c. 9.

³⁹ S.C. 1974-75-76, c. 20.

⁴⁰ It is clear that the principle that Parliament's last act governs does not apply where the change in one language version of the statute amounts to a mistake. Rather, where there is such a mistake, the untouched version will usually take precedence. See e.g., R. v. Popovic et al., [1976] 2 S.C.R. 308, per Pigeon J.; and Laberge v. Carbonneau et le Procureur Général de la Province de Québec (1921), 30 B.R. 385 (Que.).

⁴¹ The Court quoted the following passage from the decision of the adjudicator, at p. 823:

The evidence is that workers in the construction maintenance crew are laid off during the period between about December 15 and December 21 in each year, and are called back sometime between early January and late February or early March. This is referred to by the employer as "cold weather lay off". When the employees leave in December they are paid vacation pay earned up to that date. When they resume work they begin to earn vacation pay again. They are never granted a paid vacation as such.

⁴² Reasons for judgment, at p. 491.

⁴³ Reasons for judgment, at p. 490.

⁴⁴ R.S.C., 1985, c. I-21, as amended.