A-1363-84
Slaight Communications Inc. (Operating as Q107
FM Radio) (Applicant)
v.
Ron Davidson (Respondent)
Court of Appeal, Urie, Mahoney and Marceau
JJ.—Toronto, March 25; Ottawa, April 23, 1985.
Labour relations — Unjust dismissal — Adjudicator order
ing applicant to give respondent letter of recommendation
containing express statements of fact, and ordering future
inquiries be answered only by delivery of copy — Adjudicator
retaining jurisdiction to decide dispute over implementation of
order — Adjudicator within authority under s. 61.5(9) of Code
— Purported retention of jurisdiction superfluous since Fed
eral Court of Appeal holding in Huneault v. General [sic]
Mortgage and Housing Corporation that retention not giving
Adjudicator power to reconsider, withdraw or change order —
Inclusion of superfluous order not vitiating decision — S.
61.5(9) giving Adjudicator power to order payment of compen
sation, reinstatement or "any other like thing ... in order to
remedy or counteract any consequence of dismissal" — Inclu
sion of "like" not intended to restrict remedial action to
something akin to compensation or reinstatement — National
Bank of Canada v. Retail Clerks' International Union distin
guished because there employer required to express opinions
not held — Order requiring provision of factual letter and
foreclosing foreseeable undermining of effect, equitable
remedial requirement — Application for review dismissed with
costs pursuant to Rule 1408 given applicant's harassment of
respondent — Canada Labour Code, R.S.C. 1970, c. L-1, s.
61.5(9) (as enacted by S.C. 1977-78, c. 27, s. 21), (12) (as
enacted idem), (13) (as enacted idem) — Federal Court Rules,
C.R.C., c. 663, R. 1408.
Constitutional law — Charter of Rights — Freedom of
expression — Applicant unjustly dismissing respondent —
Adjudicator ordering future inquiries concerning respondent's
employment be answered only by letter of recommendation
stating specified facts — Order not infringing right to freedom
of opinion and expression guaranteed by s. 2(b) of Charter —
S. 2 subject to "such reasonable limits prescribed by law as
can be demonstrably justified in a free and democratic socie
ty" pursuant to s. 1 — Since order authorized by s. 61.5(9)(c)
of Code, limits "prescribed by law" — Limits demonstrably
justified as evidence disclosing harassment — Canadian
Charter of Rights and Freedoms, being Part I of the Constitu
tion Act, 1982, Schedule B, Canada Act 1982, 1982, c. 11
(U.K.), ss. 1, 2(b) — Canada Labour Code, R.S.C. 1970, c.
L-1, s. 61.5(9) (as enacted by S.C. 1977-78, c. 27, s. 21), (12)
(as enacted idem), (13) (as enacted idem).
An application was brought to set aside an Adjudicator's
decision. The Adjudicator found that the respondent had been
unjustly dismissed and ordered the applicant to give the
respondent a letter of recommendation containing five explicit
statements and ordering it to answer future inquiries about the
respondent's employment exclusively by delivering a copy of the
letter. The Adjudicator also retained jurisdiction to decide any
dispute relating to the implementation of his order. The appli
cant submitted that the Adjudicator had no authority under
subsection 61.5(9) of the Canada Labour Code to make such
orders. The applicant argued that the presence of "like" in the
phrase "any other like thing" in paragraph 61.5(9)(c) limited
the Adjudicator's powers to ordering relief similar to payment
of compensation or reinstatement. It further argued that the
limitation on its response to inquiries infringes its constitution
ally guaranteed right to freedom of expression.
Held (Marceau J. dissenting), the application is dismissed
with costs.
Per Mahoney J.: The purported retention of jurisdiction
served no useful purpose since the Federal Court of Appeal
held in Huneault v. General [sic] Mortgage and Housing
Corporation that such a retention of jurisdiction does not give
an adjudicator power to reconsider, withdraw or change an
order made. Its inclusion, even where superfluous does not
vitiate the decision. Subsection 61.5(9) of the Code gives an
adjudicator power to order an employer to pay compensation,
to reinstate the person, and to do "any other like thing ... in
order to remedy or counteract any consequence of the dismis
sal." The French version does not contain a counterpart of the
word "like". The word "like" is not intended to restrict narrow
ly the remedial action authorized to something like monetary
compensation or reinstatement. Paragraph 61.5(9)(c) simply
expresses the ejusdem generis rule of construction.
The Supreme Court of Canada decision in National Bank of
Canada v. Retail Clerks' International Union is distinguishable
because there the employer was required to express opinions
which it did not hold. The ordering of provision. of a totally
factual letter of recommendation and foreclosing the undermin
ing of its effect which, in the circumstances disclosed by the
evidence was patently foreseeable, seems to be an equitable
remedial requirement. It is not punitive. It is authorized by
paragraph 61.5(9)(c).
The constitutionally guaranteed right of freedom of expres
sion and opinion in paragraph 2(b) of the Charter is subject to
the qualification of section 1. Section 1 is not merely introduc
tory, but is a substantive provision.
The limitations on the applicant's freedoms are prescribed by
law since the order was authorized under paragraph 61.5(9)(c).
On the evidence, they were demonstrably justified in a free and
democratic society.
This application was part of the applicant's harassment of
the respondent. The Court therefore exercised its discretion
under Rule 1408 to dismiss the application with costs.
Per Urie J.: Since it is difficult to ascertain a genus in the
words "any other like thing" common to the dissimilar reme
dies provided for in paragraphs 61.5(9)(a) and (b), it is prefer
able not to apply the ejusdem generis rule of construction. The
presence of "like" in paragraph 61.5(9)(c) demonstrates the
intent of the paragraph to enlarge the traditional and obvious
remedies for unjust dismissal.
Per Marceau J. (dissenting): The application should be
allowed. The Adjudicator had no power to retain jurisdiction.
When a decision is rendered with nothing to be completed, the
adjudicator is functus officio. However, the inclusion in the
decision of a stipulation to which no legal effect attaches
cannot of itself vitiate the decision.
Some of the remedies ordered are positive in that they consist
of the doing of something (a letter of recommendation stating
certain facts will be given to the respondent and thereafter
copies thereof will be sent or delivered to inquirers) whereas
others are negative in that they preclude the doing of something
(the letter of recommendation will not contain any other state
ments than those prescribed and in the future no information
other than that contained in the letter will be given). The
"positive remedies" were available to the Adjudicator, but the
"negative" ones were not, because they were not authorized by
the statute and because they infringed the applicant's constitu
tionally guaranteed right to freedom of opinion and expression.
The word "like" does not restrict narrowly the remedial
action. It is even difficult to apply the ejusdem generis rule of
construction since there is no common category into which
"compensation" and "reinstatement" fall with respect to the
nature of remedies. However, the words used thereafter, "to
remedy or counteract any consequence of the dismissal" indi
cate that the remedial measures must be aimed at compensat
ing for the unjust dismissal.
The letter was clearly aimed at remedying the damaging
effect of unjust dismissal, but the negative remedies were aimed
at the possible animosity of the applicant and its management
towards the respondent.
The limits imposed by section 1 of the Charter are to be
determined by rules of general application, hence the phrase
"prescribed by law" and the reference to the characteristics of
a free and democratic society.
Even if section 1 was meant to apply in individual cases
based on their particular circumstances, it cannot validate the
breach of freedom of opinion and expression in this case. It
cannot even be justifiable in a free and democratic society to
prohibit an employer from expressing in the future any opinion,
even in private, about a former employee on the ground that
there is some reason to believe that the employer may express a
dishonest or biased opinion because of resentment towards the
former employee.
CASES JUDICIALLY CONSIDERED
APPLIED:
Huneault v. General [sic] Mortgage and Housing Corpo
ration (1982), 41 N.R. 214 (F.C.A.).
DISTINGUISHED:
National Bank of Canada v. Retail Clerks' International
Union et al., [1984] 1 S.C.R. 269.
CONSIDERED:
Hunter et al. v. Southam Inc., [1984] 2 S.C.R. 145; 55
N.R. 241.
REFERRED TO:
Minister of National Revenue v. Kruger Inc., [1984] 2
F.C. 535; 55 N.R. 255 (C.A.); R. v. Big M. Drug Mart
Ltd. (1983), 7 C.R.R. 92 (Alta. C.A.); Re Reynolds and
Attorney General of British Columbia (1984), 11 D.L.R.
(4th) 380 (B.C.C.A.); Rauca v. R. et al. (1983), 4
C.R.R. 42 (Ont. C.A.); Attorney General of Quebec v.
Quebec Association of Protestant School Boards et al.,
[1984] 2 S.C.R. 66.
COUNSEL:
Brian A. Grosman, Q.C. for applicant.
Morris Cooper for respondent.
SOLICITORS:
Brian A. Grosman, Q.C., Toronto, for
applicant.
Morris Cooper, Toronto, for respondent.
The following are the reasons for judgment
rendered in English by
URIE J.: I have had the advantage of reading
the draft reasons for judgment prepared by my
brothers Mahoney J. and Marceau J. While Mr.
Justice Marceau's reasons are persuasive, with
deference, I find myself to be more in accord with
those of Mr. Justice Mahoney. I have only one
minor qualification in respect of that endorsement
and that relates to his view that paragraph (c) of
subsection 61.5(9) of the Canada Labour Code
[R.S.C. 1970, c. L-1 (as enacted by S.C. 1977-78,
c. 27, s. 21)] simply expresses "the generally appli
cable ejusdem generis rule of construction". I am
not sure that that rule applies in the context of the
subsection so that I would prefer not to rely upon
it in reaching my conclusion. The difficulty I have
in applying the rule here is in ascertaining a genus
in the words "any other like thing" common to the
quite dissimilar remedies provided for in the
preceding paragraphs (a) and (b). However,
whether or not the rule applies, there is, in my
view, no doubt as to the construction to be given
the subsection.
The presence of the word "like" in paragraph
(c) does not, as I see it, restrict the nature of the
remedies which may be granted, to one or more
which must be akin to those permitted by para
graphs (a) and (b), and which, as I have said, do
not have a common genus. Rather, its presence
demonstrates the intent of the paragraph, i.e. to
enlarge the traditional and obvious remedies which
should be available when an employee has been
wrongfully dismissed.
The intent of the subsection as a whole is to
provide authority for granting remedies which, as
nearly as an award may do, will make whole an
employee who has been wrongfully treated by his
employer. That is accomplished in part in the
manner contemplated by the powers granted by
either paragraphs (a) or (b), or both. The latter
permits the award of a remedy to a dismissed
employee which was not available in common law.
The same is true of paragraph (c). It is an author
ity which, in my opinion, ought not to be narrowly
construed. To make whole a person who has been
wronged depends upon the extent of the injury
inflicted as disclosed by the circumstances of each
case. On the facts of this case, the Adjudicator felt
it appropriate to utilize the authority to do what
was equitable, in his view, to ensure that the
aggrieved employee did not again become the
victim of what appears to have been a vendetta
against him. For the other reasons given by
Mahoney J. I am of the opinion that the wording
of paragraph (c) is sufficiently broad to permit the
Adjudicator to make the impugned order and that
the subsection does not offend the Canadian
Charter of Rights and Freedoms [being Part I of
the Constitution Act, 1982, Schedule B, Canada
Act 1982, 1982, c. 11 (U.K.)].
I also agree with the disposition of the applica
tion proposed by Mahoney J.
* * *
The following are the reasons for judgment
rendered in English by
MAHONEY J.: This section 28 application seeks
to set aside the decision of Edward B. Joliffe, Q.C.,
an Adjudicator under Part III of the Canada
Labour Code, who found that the respondent had
been unjustly dismissed. In my respectful opinion,
in view of his findings of fact, the Adjudicator was
fully justified in making the order he did.
While he did not say it in so many words, the
Adjudicator was plainly of the view that the
respondent had been the victim of a set-up, ini
tiated by his employer's general manager, and
executed by its sales manager. The sales manager
was the only witness for the applicant. The
Adjudicator stated: "her evidence must be con
sidered misleading". There is no verbatim record
of the Adjudicator's hearing. We must accept his
account of the evidence. Two critical passages
from his decision follow:
Notwithstanding suggestions that other salesmen were more
effective, no figures were produced to prove it. Ms. Stitt
testified that the company's General Manager, Mr. G. Slaight
"had been concerned about Davidson's performance. Mr.
Slaight had complained to me and said I had to do something
about it. If he failed to make budget, I'd hear about it. If he
made it, the complaint would be that he could do more."
The conclusion is inescapable that unsatisfactory perform
ance as a salesman of radio time has not been proved. If a
salesman is "unsatisfactory" when he doubles his sales in only
two years, thereby increasing commission earnings from
$31,428.92 to $62,171.95, it is difficult to imagine just what
would constitute satisfactory sales performance.
The Adjudicator found the other grounds
advanced to justify the dismissal equally fatuous
on the evidence.
The Adjudicator decided against ordering rein
statement. He awarded compensation of
$46,628.96 with interest and costs. The only issues
with which we need deal, and which counsel for
the respondent was called upon to argue, are those
arising out of the following:
Under the power given me by paragraph (c) in subsection (9)
of Section 61.5, I further order:
That the employer give the complainant a letter of recom
mendation, with a copy to this adjudicator, certifying that;
(1) Mr. Ron Davidson was employed by Station Q 107 from
June, 1980 to January 20, 1984, as a radio time salesman;
(2) That his sales "budget" or quota for 1981 was $248,000
of which he achieved 97.3 per cent;
(3) That his sales "budget" or quota for 1982 was $343,500
of which he achieved 100.3 per cent;
(4) That his sales "budget" or quota for 1983 was $402,200
of which he achieved 114.2 per cent;
(5) That following termination in January, 1984, an
adjudicator (appointed by the Minister of Labour) after
hearing the evidence and representations of both parties, held
that the termination had been an unjust dismissal.
I further order that any communication to Q107, its manage
ment or staff, whether received by letter, telephone or other
wise, from any person or company inquiring about Mr. Ron
Davidson's employment at Q107 shall be answered exclusively
by sending or delivering a copy of the said letter of
recommendation.
I retain jurisdiction to decide any dispute relating to the
implementation of the above orders if either party requests me
to do so.
The purported retention of jurisdiction seems to
be quite usual in Adjudicators' decisions. What
ever its intended purpose, it served no useful pur
pose here; the Adjudicator did not purport to act
on it. As held by this Court in Huneault v. General
[sic] Mortgage and Housing Corporation (1982),
41 N.R. 214 (F.C.A.), such a retention of jurisdic
tion does not give an adjudicator power to recon
sider, withdraw or change an order made. I would
say no more of it than that, in my opinion, its
inclusion, even where superfluous, does not of itself
vitiate the decision.
The applicant argues that the Adjudicator had
no authority to order it to give the letter nor to
limit its answer to the provision of a copy of the
letter. It further argues that the limitation on its
response to inquiries infringes its constitutionally
guaranteed right to freedom of expression.
The Code provides:
61.5...
(9) Where an adjudicator decides pursuant to subsection (8)
that a person has been unjustly dismissed, he may, by order,
require the employer who dismissed him to
(a) pay the person compensation not exceeding the amount
of money that is equivalent to the remuneration that would,
but for the dismissal, have been paid by the employer to the
person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the
employer to do in order to remedy or counteract any conse
quence of the dismissal.
The French version of paragraph (c) provides:
c) de faire toute autre chose qu'il juge équitable d'ordonner
afin de contrebalancer les effets du congédiement ou d'y
remédier.
The French version contains no counterpart of
the word "like" which appears in the English
version. In my opinion, the word "like" in the
English version is not intended to restrict narrowly
the remedial action authorized to something like
monetary compensation or reinstatement. Para
graph (a) imposes a ceiling on monetary compen
sation which renders potentially nonsensical au
thority to award any other remedy like it.
Reinstatement is reinstatement. It entails reem-
ployment by the same employer. There seems little
scope for anything else very much like it. I take
paragraph (c) as simply expressing the generally
applicable ejusdem generis rule of construction.
The intent of subsection 61.5(9) is to empower the
adjudicator, as near as may be, to put the wronged
employee in the position of not suffering an
employment related disadvantage as a result of his
unjustified dismissal.
I am, of course, aware of the decision in Nation
al Bank of Canada v. Retail Clerks' International
Union et al., [ 1984] 1 S.C.R. 269. The letter
ordered in that case required the employer to
express, or at least imply, opinions which it did not
necessarily hold. Here, the applicant has simply
been ordered to tell the truth. The letter sets out
bald facts that are neither misleading nor disputed.
The ordering of provision of a totally factual
letter of recommendation and foreclosing the
undermining of its effect which, in the circum
stances disclosed by the evidence, was patently
foreseeable, seems to me to be an equitable
remedial requirement. It is not punitive. It is
appropriate redress to the wronged employee with
out, in any way, injuring the employer. In my
view, the order was authorized by paragraph
61.5(9)(c).
The order undoubtedly imposes limitations on
the applicant's constitutionally guaranteed right of
freedom of expression and opinion both in dictat
ing what it must say in the letter and prohibiting it
from saying more. That fundamental freedom,
guaranteed by paragraph 2(b) of the Canadian
Charter of Rights and Freedoms, is subject only to
the qualification of section 1.
1. The Canadian Charter of Rights and Freedoms guaran
tees the rights and freedoms set out in it subject only to such
reasonable limits prescribed by law as can be demonstrably
justified in a free and democratic society.
2. Everyone has the following fundamental freedoms:
(b) freedom of thought, belief, opinion and expression,
including freedom of the press and other media of
communication;
With all due respect to contrary views, I do not
accept section 1 of the Charter as merely introduc
tory in the sense of it being something of a recital
or preamble. I think it is a substantive provision. It
appears to have been so regarded by the majority
of this Court in Minister of National Revenue v.
Kruger Inc., [1984] 2 F.C. 535; 55 N.R. 255
(C.A.), and it has certainly been so construed by a
number of provincial appellate courts: e.g. R. v.
Big M. Drug Mart Ltd. ( 1983), 7 C.R.R. 92 (Alta.
C.A.), at pages 112 ff.; Re Reynolds and Attorney
General of British Columbia (1984), 11 D.L.R.
(4th) 380 (B.C.C.A.) and Rauca v. R. et al.
(1983), 4 C.R.R. 42 (Ont. C.A.), at pages 58 ff.
While the Supreme Court of Canada appears not
yet to have dealt with the question in a definitive
way, its dicta indicate agreement with that
approach, e.g. Attorney General of Quebec v.
Quebec Association of Protestant School Boards
et al., [ 1984] 2 S.C.R. 66, at pages 77-78; 10
D.L.R. (4th) 321, at page 330. In Hunter et al. v.
Southam Inc., [1984] 2 S.C.R. 145, at page 169;
55 N.R. 241, at page 254, Dickson J., as he then
was, delivering the judgment of the court, said:
The phrase "demonstrably justified" puts the onus of justify
ing a limitation on a right or freedom set out in the Charter on
the party seeking to limit.
I fail to see how any but a substantive provision
can be construed as imposing a legal onus.
The order being one the Adjudicator was
authorized, under paragraph 61.5(9)(c), to make,
the limitations in issue are prescribed by law. On
the evidence as recorded by the Adjudicator, they
were demonstrably justified in a free and demo
cratic society.
Rule 1408 [Federal Court Rules, C.R.C., c.
663] provides:
Rule 1408. No costs shall be payable by any party to an
application to another unless the Court, in its discretion, for
special reason, so orders.
In my opinion, the bringing of this application was
part and parcel of the applicant's systematic
harassment of the respondent.
I would dismiss this application with costs.
* * *
The following are the reasons for judgment
rendered in English by
MARCEAU J. (dissenting): I have no difficulty
in adopting most of the views expressed by my
brother Mahoney J. in his reasons for judgment.
Indeed, I see absolutely no merit in the applicant's
contention that the Adjudicator based his decision
on erroneous findings of fact made without regard
for the material before him: the attempt of the
employer to invoke unsatisfactory performance on
the part of its former employee had clearly failed
and the conclusion that the dismissal was unjust
was fully justified. However, I am, unfortunately,
unable to share Mr. Justice Mahoney's opinion as
to the legitimacy of all of the orders made by the
Adjudicator as a result of his finding that the
dismissal was unjustified and I must, as a conse
quence, respectfully dissociate myself from his
conclusion that this application for review should
simply be dismissed.
The problem of course is with respect to those
orders made by the Adjudicator in addition to his
award of $46,628.96 compensation. The relevant
paragraphs of the decision are again here repro
duced for convenience:
Under the power given me by paragraph (c) in subsection (9)
of Section 61.5, I further order:
That the employer give the complainant a letter of recom
mendation, with a copy to this adjudicator, certifying that;
(1) Mr. Ron Davidson was employed by Station Q107 from
June, 1980 to January 20, 1984, as a radio time salesman;
(2) That his sales "budget" or quota for 1981 was $248,000
of which he achieved 97.3 per cent;
(3) That his sales "budget" or quota for 1982 was $343,500
of which he achieved 100.3 per cent;
(4) That his sales "budget" or quota for 1983 was $402,200
of which he achieved 114.2 per cent;
(5) That following termination in January, 1984, an
adjudicator (appointed by the Minister of Labour) after
hearing the evidence and representations of both parties, held
that the termination had been an unjust dismissal.
I further order that any communication to Q107, its manage
ment or staff, whether received by letter, telephone or other
wise, from any person or company inquiring about Mr. Ron
Davidson's employment at Q107 shall be answered exclusively
by sending or delivering a copy of the said letter of
recommendation.
I retain jurisdiction to decide any dispute relating to the
implementation of the above orders if either party requests me
to do so.
There is no need to insist on the inappropriate-
ness of the last paragraph of the decision. The
Adjudicator had no power to retain jurisdiction to
decide disputes relating to the implementation of
his orders. The implementation of an order made
under subsection (9) of section 61.5 of the Canada
Labour Code is dealt with by subsections (12) and
(13) of the section, which provide for the filing,
registration and enforcement of the order in this
Court.' When the adjudicator has not seen fit to
spell out all the constituent elements of his deci-
1 These subsections read as follows:
61.5...
(12) Any person affected by an order of an adjudicator
under subsection (9), or the Minister on the request of any
such person, may, after fourteen days from the date on which
the order is made, or the date provided in it for compliance,
whichever is the later date, file in the Federal Court of
Canada a copy of the order, exclusive of the reasons therefor.
(13) On filing in the Federal Court of Canada under
subsection (12), an order of an adjudicator shall be regis
tered in the Court and, when registered, has the same force
and effect, and all proceedings may be taken thereon, as if
the order were a judgment obtained in that Court.
sion, for example, when the calculation of the
amount of a reward on a determined basis has
been left to be made, it may be correct for him to
say (as he often does apparently) that he wishes to
be seized of any dispute relating to the exact
substance of the "missing elements". But the per
fecting of the decision is then involved, not its
implementation, and the purported retention of
jurisdiction merely indicates that the decision will
not be final and definitive until missing elements
are established. When a decision is rendered with
nothing to be completed, as here, there is, in my
mind, no doubt that the adjudicator is functus
officio: any further action would be entirely with
out authority. It remains nevertheless, as pointed
out by my brother, that the inclusion in the deci
sion of such a stipulation to which no legal effect
does attach cannot of itself vitiate the decision.
The concern is with regard to the mandatory
injunctions contained in the other provisions which
are meant to be immediately enforceable. The
applicant is required to give his former employee
forthwith a "letter of recommendation" containing
five precise statements and its management and
staff are ordered to answer any future inquiry
about the respondent's employment at the radio
station by delivering a copy of said letter and by
that "exclusively". The issue is obvious enough:
had the Adjudicator authority to make them? I
respectfully disagree with the view that he had.
The remedies devised by the Adjudicator in his
orders are of two types: some are positive in that
they consist in the doing of something (a letter of
recommendation stating certain facts will be forth
with given to the respondent and thereafter copies
thereof will be sent or delivered to inquirers); the
others are negative in that they preclude the doing
of something (the letter of recommendation will
not contain any other statements than those pre
scribed and in the future no information other
than that contained in the letter will be given). In
my view, the "positive remedies" were available to
the Adjudicator but the "negative" ones were not,
firstly because they were not authorized by the
statute and, secondly, because in any event, they
could not be imposed without infringing the appli
cant's constitutionally guaranteed rights to free
dom of opinion and expression.
1. The powers given to the adjudicator who has
come to the conclusion that a complainant has
been unjustly dismissed by his employer are
defined in subsection (9) of section 61.5 of the
Canada Labor Code in the following terms:
61.5.. .
(9) Where an adjudicator decides pursuant to subsection (8)
that a person has been unjustly dismissed, he may, by order,
require the employer who dismissed him to
(a) pay the person compensation not exceeding the amount
of money that is equivalent to the remuneration that would,
but for the dismissal, have been paid by the employer to the
person;
(b) reinstate the person in his employ; and
(c) do any other like thing that it is equitable to require the
employer to do in order to remedy or counteract any conse
quence of the dismissal.
The argument advanced in support of the con
tention that the Adjudicator had no authority to
require the writing of the letter was mostly based
on the presence of the word "like" in the phrase
"any other like thing" in paragraph (c). It was
said that the word effectively restricted the scope
of the Adjudicator's jurisdiction, limiting his
powers to ordering things similar to payment of
money compensation or reinstatement. The argu
ment is unconvincing. I agree with Mr. Justice
Mahoney that the word "like", which, as noted by
him, has no counterpart in the French version, 2
does not appear to have been used to restrict
narrowly the remedial action to which an unjust
dismissal could give rise under the Code. It could
be, as suggested, a sort of reinforcement of the
ejusdem generis rule of construction, but even that
rule would be difficult to apply, since there seems
to be no common category into which the words
2 Paragraph c), in the French version, reads thus:
61.5(9)...
c) de faire toute autre chose qu'il juge équitable d'ordon-
ner afin de contrebalancer les effects du congédiement ou
d'y remédier.
"compensation" and "reinstatement" would fall
with respect to the nature of the remedies (see
E. A. Driedger, Construction of Statutes, second
edition, pages 111 et seq.). So, the presence of the
word "like" should not be taken as restricting in
any particular way the remedial action contem
plated by the provision but there are words used
thereafter, namely "to remedy or counteract any
consequence of the dismissal" which cannot be
understood otherwise. The whole of the provision
emphasizes a clear and unequivocal limit to the
powers of the adjudicator, a limit which was
already dictated by common sense in view of the
role assigned to him but which Parliament has
chosen to emphasize: the measures an adjudicator
may impose must be strictly aimed at compensat
ing for the unjust dismissal, at counterbalancing or
making up for it.
There seems to be no doubt that the "positive
remedies" devised by the Adjudicator remained, in
that respect, within the Adjudicator's authority.
The letter which was setting out purely established
facts was clearly aimed at "remedying" or "coun-
teracting" the damaging effect that a dismissal
allegedly based on poor performance could have on
the respondent's chances of adequate reemploy-
ment and, for that matter, on his whole career.
But, I do not think that the same can be said of the
"negative remedies". The imposing of a gag on the
applicant and its staff was not, as I see it, aimed at
remedying the effect of the dismissal itself. The
Adjudicator had obviously in view the possible
animosity of the applicant and its management
towards the respondent, their possible resentment
following the filing of the complaint or even their
dislike for the man, all of which could give rise to
bias if not simple bad faith when inquiries about
him would be made. In my respectful opinion the
Adjudicator, however well intentioned he may
have been, was not entitled to try to counterbal
ance the effects on the respondent of such possible
evils, not to mention that he was acting on assump
tions that were in no way related to his inquiry and
determination. The negative measures contained in
the order were, in my view, completely outside the
purview of the statute.
2. Even if such measures could be said to be
theoretically falling within the boundaries of the
authority conferred on the Adjudicator by the
Code, I think that, in any event, they could not be
resorted to because they constituted a direct and
prohibited infringement upon the freedom of
thought, belief, opinion and expression of the
applicant, its management and staff constitutional
ly guaranteed by paragraph 2(b) of the Canadian
Charter of Rights and Freedoms. It is said that
the fundamental freedom guaranteed by this para
graph 2(b) of the Charter is subject to the qualifi
cation of section 1, that is to say subject "to such
reasonable limits prescribed by law as can be
demonstrably justified in a free and democratic
society", and that the limitations imposed by the
Adjudicator on the freedom of opinion and expres
sion of the applicant in this case were, on the
evidence recorded by him, "demonstrably justified
in a free and democratic society".
I have had occasion in the past to express some
doubts as to the exact purpose and meaning to be
attributed to section 1 of the Charter and more
precisely as to whether the provision contained
therein was meant to be given application on a
case-to-case basis, each one being considered
according to its particular context and with due
regard to its distinctive features. It seemed to me
that the control to be imposed was on the legisla
tive function of the State, and that the limits
contemplated were limits expressly determined by
rules of general application, hence the phrase "pre-
scribed by law" and the reference to the character
istics of a free and democratic society. If such was
the case, the justification required had to be that
of the rules themselves as adopted and made appli
cable, not of their application in a particular
instance (this incidentally appears to be the view
taken by Peter W. Hogg in Canada Act 1982
Annotated, pages 10 and 11). I do not think the
Supreme Court has had occasion to address the
question squarely and as a result, my doubts have
not been put to rest yet. But, in any event, even if I
were to leave aside these doubts and accept that
section 1 of the Charter was meant to have a role
to play in validating, in individual cases, on the
basis of their particular circumstances, a breach of
a right or freedom secured by the following sec
tions of the Charter, I would, nevertheless, be
forced to respectfully disagree that it could have
been so in this case. I simply cannot convince
myself that in a free and democratic society it may
ever be justifiable to prohibit the one-time employ
er of a man from expressing in the future even in
private (assuming the enforceability of such an
order in practice), any opinion about that man and
his qualifications as employee, on the sole ground
that there is some reason to believe that this
employer may be resentful towards his former
employee and therefore may express an opinion
that could be biased or dishonest.
Those are the reasons why I think that the
Adjudicator could not prohibit the applicant from
expressing any opinion about the respondent in
addition to delivering the letter of recommenda
tion. By resorting to such a remedy the Adjudica
tor was acting without statutory authority and in
contravention of the Charter. His decision cannot
be allowed to stand as it is. I would therefore allow
the application, set the decision aside and refer the
matter back to the Adjudicator for reconsideration
of the remedies he should impose within his au
thority to counteract the unjust dismissal of the
respondent.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.