|
Labour (Fed) - Canada Labour Code. Sieluzycki v. Coca-Cola Canada Bottling Limited
In Sieluzycki v. Coca-Cola Canada Bottling Limited (Fed CA, 2023) the Federal Court of Appeal considered a JR from a Canada Industrial Relations Board (CIRB) decision that declined jurisdiction regarding the setting aside "of the CIRB’s Registrar to process the applicant’s duty of fair representation and unfair labour practice complaints" "surrounding the applicant’s job applications for position(s) with the Coca-Cola Bottling Company, Canada (Coca-Cola)".
These brief quotes are useful for delineating the federal role in employment/labour matters:[2] I see no reviewable error in the CIRB’s conclusion that it lacked jurisdiction. The labour relations of Coca-Cola do not fall within the competence of Parliament but are rather subject to provincial regulation.
[3] Labour relations in most industries are a matter of provincial competence, as the Judicial Committee of the Privy Council confirmed nearly a hundred years ago in what has been called the Labour Conventions case, Canada (AG) v. Ontario (AG) 1937 CanLII 362 (UK JCPC), [1937] UKPC 6, [1937] A.C. 326.
[4] By way of exception, Parliament has jurisdiction over the labour relations of employees who work in federal works, undertakings, or businesses, as the Supreme Court of Canada confirmed in the case commonly known as the Stevedoring Reference, Validity and Applicability of the Industrial Relations and Disputes Investigation Act, 1955 CanLII 1 (SCC), [1955] SCR 529.
[5] The Constitution Act, 1867, 30 & 31 Vict., c. 3 governs which works, undertakings, or businesses are federal in nature. Section 2 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code) provides a useful listing of those works, undertakings, or businesses that are subject to federal regulation. Section 2 defines a federal work, undertaking, or business as meaning:federal work, undertaking or business means any work, undertaking or business that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,
entreprises fédérales Les installations, ouvrages, entreprises ou secteurs d’activité qui relèvent de la compétence législative du Parlement, notamment :
(a) a work, undertaking or business operated or carried on for or in connection with navigation and shipping, whether inland or maritime, including the operation of ships and transportation by ship anywhere in Canada,
(a) ceux qui se rapportent à la navigation et aux transports par eau, entre autres à ce qui touche l’exploitation de navires et le transport par navire partout au Canada;
(b) a railway, canal, telegraph or other work or undertaking connecting any province with any other province, or extending beyond the limits of a province,
(b) les installations ou ouvrages, entre autres, chemins de fer, canaux ou liaisons télégraphiques, reliant une province à une ou plusieurs autres, ou débordant les limites d’une province, et les entreprises correspondantes;
(c) a line of ships connecting a province with any other province, or extending beyond the limits of a province,
(c) les lignes de transport par bateaux à vapeur ou autres navires, reliant une province à une ou plusieurs autres, ou débordant les limites d’une province;
(d) a ferry between any province and any other province or between any province and any country other than Canada,
(d) les passages par eaux entre deux provinces ou entre une province et un pays étranger;
(e) aerodromes, aircraft or a line of air transportation,
(e) les aéroports, aéronefs ou lignes de transport aérien;
(f) a radio broadcasting station,
(f) les stations de radiodiffusion;
(g) a bank or an authorized foreign bank within the meaning of section 2 of the Bank Act,
(g) les banques et les banques étrangères autorisées, au sens de l’article 2 de la Loi sur les banques;
(h) a work or undertaking that, although wholly situated within a province, is before or after its execution declared by Parliament to be for the general advantage of Canada or for the advantage of two or more of the provinces,
(h) les ouvrages ou entreprises qui, bien qu’entièrement situés dans une province, sont, avant ou après leur réalisation, déclarés par le Parlement être à l’avantage général du Canada ou de plusieurs provinces;
(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and
(i) les installations, ouvrages, entreprises ou secteurs d’activité ne ressortissant pas au pouvoir législatif exclusif des législatures provinciales;
(j) a work, undertaking or activity in respect of which federal laws within the meaning of section 2 of the Oceans Act apply pursuant to section 20 of that Act and any regulations made pursuant to paragraph 26(1)(k) of that Act; (entreprises fédérales)
(j) les entreprises auxquelles les lois fédérales, au sens de l’article 2 de la Loi sur les océans, s’appliquent en vertu de l’article 20 de cette loi et des règlements d’application de l’alinéa 26(1)k) de la même loi. (federal work, undertaking or business) [6] It is the nature of the employer’s core business that is considered in characterizing its business or undertaking for constitutional purposes: Canadian Pacific Railway Co. v. Attorney-General of British Columbia, 1948 CanLII 18 (SCC), [1948] SCR 373. Thus, the fact that a manufacturing business employs a driver who makes deliveries outside the province does not transform the undertaking into a federal one.
[7] The contents of any collective agreement applicable to an employer and its employees is not relevant to determining whether the Code applies to them. It is rather the nature of the employer’s core business that governs. Thus, contrary to what the applicant submitted, it is not necessary to review the collective agreement applicable to the respondents to determine if the CIRB had jurisdiction over the applicant’s complaints.
[8] Nor do the Motor Vehicle Operators Hours of Work Regulations, C.R.C., c. 990 provide a basis for federal jurisdiction in this case. As explained to the applicant during the hearing, those regulations only apply to drivers whose employers are subject to federal regulation, such as interprovincial transportation companies. There are provincial regulations and legislation that apply to drivers who are employed by businesses, like Coca-Cola, whose labour relations are subject to provincial regulation.
[9] Thus, the CIRB did not err in finding it had no jurisdiction over the applicant’s complaints. I would accordingly dismiss this application. . Amer v. Shaw Communications Canada Inc.
In Amer v. Shaw Communications Canada Inc. (Fed CA, 2023) the Federal Court of Appeal considered substantial indemnity costs, here relating to labour arbitration under the CLC:[87] In the subsequent decision of this Court in Bank of Nova Scotia v. Fraser, 2001 FCA 267, [2001] F.C.J. No. 1404 (QL), however, this Court made it clear that Banca does not stand for the proposition that substantial indemnity costs can only be awarded where there has been objectionable conduct by the employer in the conduct of the litigation. In that case, Justice Sexton, writing for the Court, found at paragraphs 6-8:The Bank relies on a case in this Court, Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok (1988), 87 N.R. 178 at pp. 190-91 (F.C.A.), for the proposition that solicitor-client costs can only be awarded arising out of conduct during the litigation.
We do not agree that the Banca case stands for this proposition. Justice Stone wrote:An extraordinary award of this kind ought only to be made in circumstances that are clearly exceptional, as would be the case where an adjudicator wished thereby to mark his disapproval of a parties' conduct in a proceeding.
It is for the adjudicator to determine in the first instance the appropriateness of awarding solicitor-client costs. It is generally open to an adjudicator to select the basis on which costs will be awarded. It is clear from Justice Stone's reasons that he did not intend to restrict the ability of the adjudicator to award solicitor-client costs to situations involving conduct which took place only during the course of the legal proceedings. It is clear from his reasons that he was simply giving an example of exceptional circumstances in which solicitor-client costs could be awarded.
Other case law is more explicit that solicitor-client costs may be awarded based on things other than conduct during the proceedings. In Styles v. British Columbia, 1989 CanLII 235 (BC CA), 1989 B.C.J. No. 1450, (CA) the Court said:Solicitor and client costs should not be awarded unless there is some form of reprehensible conduct either in the circumstances giving rise to the cause of action or in the proceedings which make such costs desirable as a form of chastisement. Another reason for awarding solicitor-client costs is simply to save harmless an innocent litigant. In Goulin v. Goulin, 1995 CanLII 7236 (ON SC), 1995 O.J. No. 3115 at page 3, the Court said that:Where one party has made allegations of fraud and wrongdoing that were not borne out and admittedly could not be borne out costs on a solicitor-client scale should be awarded. The point is to chastise or punish reprehensible conduct and to save harmless an innocent litigant from the otherwise unnecessary expense of litigation. [Emphasis added]. [88] Justice Sexton’s reasons signal that it is open for adjudicators to award substantial indemnity costs in a number of scenarios, including when the decision maker feels it is appropriate “to save harmless an innocent litigant”.
[89] There are several awards issued under Division XIV of Part III of the Code where adjudicators have awarded substantial indemnity costs without finding the employer’s conduct, either before or during the litigation, to have been reprehensible, scandalous or outrageous: see e.g. Kaszyca v. Air Canada, [2015] C.L.A.D. No. 152; Ford v. King’s Transfer Van Lines Inc., 2013 CanLII 68183 (CALA); Deslauriers v. Canadian Auto Relocator Services Inc., [2013] C.L.A.D. No. 113; Roang v. Carrier Sekani Tribal Council, [2011] C.L.A.D. No. 3 [Roang]; Rosettani v. Bank of Nova Scotia, [2010] C.L.A.D. No. 278 [Rosettani]; Schinkel v. Brico Transportation Services Ltd., [2008] C.L.A.D. No. 378; Spyglass v. Mosquito Grizzly Bear's Head Lean Man First Nation, 2007 CanLII 81323 (CALA); Yesno v. Eabametoong First Nation Education Authority, [2006] C.L.A.D. No. 352; Decle c. 137049 Canada Inc. (Maisliner), [2006] D.A.T.C. no 300; Wilson v. Mowachaht/Muchlat First Nation, [2000] C.L.A.D. No. 147 [Mowachaht].
[90] In some of them, the adjudicators noted that an award of substantial indemnity costs was required to make a complainant whole. In those cases, substantial indemnity costs were awarded because, without them, the complainant would have been deprived of the benefits intended to be given under the Code: Roang at para. 113. As Adjudicator Noonan found in Rosettani at paragraphs 6 and 11-13:I am of the view that it is generally open to an adjudicator to decide the basis on which costs will be awarded and, for the reasons outlined below, I do not believe that an award of partial indemnity costs in this case … would allow for the Complainant to be made whole under the Code.
...
There is also a strong need here to protect the Complainant, an innocent party, from losing for winning and it bears repeating that the modest size of her damage award was as a direct result of her having taken the initiative to mitigate her loses [sic]. She should not be penalized for doing exactly what the courts and Tribunals have urged her to do.
I simply do not see any other way to fully compensate the Complainant for her unjust dismissal. If substantial indemnity costs were not awarded after the lengthy hearing in this case, the Complainant would have been effectively deprived of the benefits Parliament intended to give to her under the Code. It is only equitable to require the Bank to pay the substantial indemnity legal costs incurred by the Complainant.
It has been held that an award of costs may serve several useful functions, one being to ensure that financial compensation is not reduced by the need to pay legal fees, another to provide for a deterrent against the violation of employee rights and to level the playing field between otherwise unequal parties (See: Wilson v. Mowachaht First Nation, [2000] C.L.A.D. No. 147 (Can. Arb. Bd.)). [91] Thus, in these cases, there is recognition that one of the purposes of awarding costs is “to ensure that [an] award [under the Code] is not reduced because the employee is required to pay legal fees”: see Mowachaht at para. 21.
[92] While these cases are a minority trend in the case law under Division XIV of Part III of the Code, the Adjudicator is certainly not alone in making an award of substantial indemnity costs in the absence of reprehensible employer conduct.
[93] The unjust dismissal provisions, now contained in Division XIV of Part III of the Code, were designed to afford non-unionized non-managerial workers in the federal private sector, with at least one year’s service, protection from dismissal without cause similar to the protection against dismissal without cause enjoyed by unionized workers. When the provisions were first introduced in 1978, the then Minister of Labour, the Honorable John Monroe stated in his speech in the House of Commons:It is our hope that [the amendments] 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. [Emphasis added.]
(House of Commons Debates, vol. II, 3rd Sess., 30th Parl., December 13, 1977, at p. 1831). [94] He further explained the purpose of the unjust dismissal provisions to the Standing Committee on Labour, Manpower and Immigration in March 1978 as follows:The intent of this provision is to provide employees not represented by a union, including managers and professionals, with the right to appeal against arbitrary dismissal — protection the government believes to be a fundamental right of workers and already a part of all collective agreements.
(House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Labour, Manpower and Immigration, Respecting Bill C-8, An Act to amend the Canada Labour Code, No. 11, 3rd Sess., 30th Parl., March 16, 1978, at p. 46). [95] As noted by Justice Abella, writing for the Supreme Court in Wilson at paragraph 46, the provisions that are now in Division XIV of Part III of the Code:.... have been interpreted by labour law scholars and almost all the adjudicators appointed to apply them, namely, that the purpose of the 1978 provisions in ss. 240 to 246 was to offer a statutory alternative to the common law of dismissals and to conceptually align the protections from unjust dismissals for non-unionized federal employees with those available to unionized employees: Geoffrey England, “Unjust Dismissal in the Federal Jurisdiction: The First Three Years” (1982), 12 Man. L.J. 9, at p. 10; Innis Christie, Employment Law in Canada (2nd ed. 1993), at p. 669; Arthurs Report, at p. 172. [96] In the years following 1987, when Banca was decided, legal fees have increased substantially in this country, and legal representation for ordinary citizens in civil matters for which legal aid is not available has become increasingly unaffordable: for a discussion of this phenomenon, see Thomas A. Cromwell & Siena Anstis, “The Legal Services Gap: Access to Justice as a Regulatory Issue” (2016) 42:1 Queen's LJ 1 at 2-9; Action Committee on Access to Justice in Civil and Family Matters, Access to Civil & Family Justice: A Roadmap for Change (Ottawa: Action Committee on Access to Justice in Civil and Family Matters, 2013) at iii, online.
[97] In the unionized environment, trade unions provide legal representation to grievors in dismissal and other grievances, financing the cost of representation through the dues all members pay. Sometimes, lawyers are retained to represent grievors; sometimes, union representatives do so. Thus, unionized employees do not face the burden of paying for legal representation in a dismissal grievance.
[98] It seems to me that it should be open to an Adjudicator under Division XIV of Part III of the Code to award compensation for legal fees incurred by a wrongfully dismissed complainant to place them on a similar footing.
[99] Thus, in light of the purpose behind the unjust dismissal provisions in Division XIV of Part III of the Code, which were designed to put non-unionized workers on a more even footing with unionized workers, and the wide remedial authority enshrined in paragraph 242(4)(c) of the Code, I cannot conclude that substantial indemnity costs may only be reasonably awarded where there is unduly objectionable employer conduct. Several adjudicators have held otherwise.
[100] In the case at bar, the appellant was of limited means, earning just under $40,000.00 per year when employed by the respondent. In addition, she was a single parent. Given the amount of damages awarded in the instant case, which were limited to out-of-pocket losses for a relatively short period and a modest amount of severance pay, it is entirely possible that the fees charged by the appellant’s counsel might have been close to or perhaps even exceeded the amount of damages awarded. Were this the case, the appellant would have been worse off for pursuing the complaint than she would have been had she not filed a complaint. Such a result would be the antithesis of a remedial order and defeat the purpose of the unjust dismissal provisions in the Code.
[101] On the other side of the ledger, the appellant was faced with a large respondent, with substantial resources and the ability to pay experienced labour counsel, who mounted a lengthy case over several days of hearing and through lengthy written submissions.
[102] In the circumstances, I believe that it was reasonably open to the Adjudicator to have awarded the appellant substantial indemnity costs. Anything less may well have led to a denial of any real remedy. There is ample authority from other adjudicators to support the award, and it is allowable under the jurisprudence from this Court. Moreover, the award is in keeping with the purpose behind the unjust dismissal provisions in the Code. . Amer v. Shaw Communications Canada Inc.
In Amer v. Shaw Communications Canada Inc. (Fed CA, 2023) the Federal Court of Appeal considered (and allowed) an appeal of a successful JR against a federal labour arbitrator's decision "under Division XIV of Part III of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code)" (which found unjust termination).
In these quotes the court illustrates some Canada Labour Code (CLC) procedures:[12] The appellant filed an unjust dismissal complaint under section 240 of the Code in June 2016. Pursuant to subsection 241(1) of the Code, an inspector from the Labour Program of Employment and Social Development Canada wrote to the respondent on July 14, 2016, requesting that it provide a written statement giving the reasons for dismissal. The respondent replied on July 22, 2016, stating as follows:Ms. Amer consistently performed below expectations in regards to the quality of her work. She continually failed to meet the basic requirements of Technical Service Representative in the areas of sales, upgrades, and e-billings, in addition would repeat the unacceptable performance despite blatant warnings to improve. Furthermore, had been rated “Below Expectations” on several performance reviews. She was advised of our clear expectations and was provided coaching and reasonable timeframes to show improvement; however; failed to do so which resulted in Ms. Amer receiving a written warning in February 2016 for failing to meet the performance expectations.
In March 2016, Ms. Amer received a final written warning regarding her overall performance, more importantly, failing to offer relevant sales and upgrades; the requirement to appropriately promote and sell our products and services, not offering our customers the ability of electronic billing options, and inability to document what was required for all customer calls. She was clearly told that if she failed to show immediate improvement it would result in her termination with cause.
Then on April 14, 2016, Ms. Amer failed to offer e-billings during her calls with customers despite knowing this was a rudimentary expectation. Ms. Amer was fully aware she was not meeting the overall basic expectations of her role as Technical Service Representative as she signed all written warnings which obviously noted the consequences if she failed to meet the required expectations set out for her. [13] Subsection 241(1) of the Code at the relevant time provided:Reasons for dismissal
Motifs du congédiement
241(1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.
241(1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l’employeur de lui faire connaître les motifs du congédiement; le cas échéant, l’employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande. [14] An employer’s response to an inquiry under subsection 241(1) of the Code sets out the matters the employer will need to prove to establish cause for the termination in an adjudication conducted under Division XIV of Part III of the Code. The response therefore functions like a statement of defence in a civil trial and frames the points in issue.
[15] Pursuant to 242(1) of the Code, the Minister of Labour appointed the Adjudicator to hear the appellant’s complaint of unjust dismissal. The Adjudicator held a four-day hearing, during which several witnesses testified and multiple exhibits were tendered. As is usual in a labour case, there was no transcript of the hearings before the Adjudicator.
[16] The appellant and the respondent filed detailed written closing arguments, with the respondent proceeding first, as is typical in an adjudication under Division XIV of Part III of the Code or in a labour arbitration, where cause is in issue. . Amer v. Shaw Communications Canada Inc.
In Amer v. Shaw Communications Canada Inc. (Fed CA, 2023) the Federal Court of Appeal considers the deference owned to labour arbitrators in establising the remedy awarded, here under the Canada Labour Code:C. Did the Federal Court Err in Overturning the Adjudicator’s Award of Severance Pay and Costs?
[66] Which brings me to the most significant issues in this appeal, namely the Federal Court’s interference with the remedies selected by the Adjudicator.
[67] I commence by noting that, generally speaking, remedial awards made in labour cases are entitled to a wide margin of appreciation. This Court has commented on the significant deference due to remedial awards in the labour arena. In Canada (Attorney General) v. Gatien, 2016 FCA 3, 262 A.C.W.S. (3d) 742 at paragraph 39, this Court noted that “remedial matters are at the very heart of the specialized expertise of labour adjudicators, who are much better situated than a reviewing court when it comes to assessing whether and how workplace wrongs should be addressed”.
[68] In terms of awards like the one in the case at bar, in addition to the deference generally due to a remedial award, the Code specifically provides largely uncircumscribed remedial authority to decision-makers sitting under Division XIV of Part III of the Code consequent upon a finding that a dismissal is unjust. The relevant section, when the Adjudicator issued her award, read as follows:Where unjust dismissal
Cas de congédiement injuste
242(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to
242(4) S’il décide que le congédiement était injuste, l’arbitre peut, par ordonnance, enjoindre à l’employeur :
(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;
a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu’il aurait normalement gagné s’il n’avait pas été congédié;
(b) reinstate the person in his employ; and
b) de réintégrer le plaignant dans son emploi;
(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.
c) de prendre toute autre mesure qu’il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier. [69] As is clear from paragraph 242(4)(c), where a dismissal is unjust, any remedy in addition to those listed in paragraphs a and b of subsection 242(4) may be issued to remedy or counteract the dismissal. There are no constraints in the Code on the type of remedy that may be imposed, other than it must be one that remedies or counteracts a consequence of the dismissal.
[70] This Court and the Supreme Court of Canada have recognized the breadth of an adjudicator’s remedial authority, under a precursor version of paragraph 242(4), in Slaight Communications Inc. v. Davidson, 1989 CanLII 92 (SCC), [1989] 1 S.C.R. 1038 at 1049, holding that a wide range of remedies, including a requirement for provision of positive references, could be ordered.
[71] A somewhat similarly-worded provision contained in Part I of the Code, providing remedial authority to the Canada Labour Relations Board (now called the Canada Industrial Relations Board) (the Board) was interpreted by the Supreme Court of Canada in Royal Oak Mines Inc. v. Canada (Labour Relations Board), 1996 CanLII 220 (SCC), [1996] 1 S.C.R. 369 (Royal Oak Mines). The provision in question in that case, contained in subsection 99(2) of the Code, provided:99(2) For the purpose of ensuring the fulfilment of the objectives of this Part, the Board may, in respect of any contravention of or failure to comply with any provision to which subsection (1) applies and in addition to or in lieu of any other order that the Board is authorized to make under that subsection, by order, require an employer or a trade union to do or refrain from doing any thing that it is equitable to require the employer or trade union to do or refrain from doing in order to remedy or counteract any consequence of the contravention or failure to comply that is adverse to the fulfilment of those objectives.
99(2) Afin d’assurer la réalisation des objectifs de la présente partie, le Conseil peut rendre, en plus ou au lieu de toute ordonnance visée au paragraphe (1), une ordonnance qu’il est juste de rendre en l’occurrence et obligeant l’employeur ou le syndicat à prendre des mesures qui sont de nature à remédier ou à parer aux effets de la violation néfastes à la réalisation de ces objectifs. [72] Under the patently unreasonable standard then applicable to judicial review of Board decisions, the Supreme Court held that a remedy imposed by the Board will not be subject to being set aside unless it is punitive, offends the Canadian Charter of Rights and Freedoms, counteracts the purposes of the Code, or bears no rational connection to the breach sought to be remedied.
[73] By analogy, similar principles apply to remedial awards of adjudicators and now to the Board to whom complaints of unjust dismissal under Division XIV of Part III of the Code are now referred for adjudication. Under the reasonableness standard (as opposed to the patent unreasonableness standard that applied at the time Royal Oak Mines was decided), a remedial award under Division XIV of the Part III of the Code is not amenable to being set aside unless it is punitive, offends the Charter, counteracts the purposes of the Code, or cannot be said to reasonably remedy or counteract the unjust dismissal.
[74] Bearing the breadth of remedial authority enjoyed by the Adjudicator in mind, it is apparent that the Federal Court was much too invasive in its review of the remedies imposed by the Adjudicator and failed to accord her the deference she was due.
|
