Judgments

[1994] 1 F.C. 710

A-33-93

Michel J. Murphy (Appellant) (Applicant)

v.

Adjudicator, Martin Teplitsky, Q.C. and Purolator Courier Ltd. (Respondents) (Respondents)

Indexed as: Murphy v. Canada (Adjudicator, Labour Code) (C.A.)

Court of Appeal, MacGuigan, Linden and McDonald JJ.A.—Toronto, November 1; Ottawa, November 26, 1993.

Labour relations — Adjudicator ordering reinstatement of employee provided that for three years, following absence of more than three days, employee would submit to medical examination if so requested, and if employer of opinion employee not physically able to do job, could apply for order discharging him — Holding unfair to require employer to pay compensation — Trial Judge quashing portion of decision setting out conditions — Erred in assuming conditions imposed on employee — Conditionality falling on employer — Canada Labour Code, s. 242(4)(c) not limiting adjudicator to making orders similar to those in ss. 242(4)(a), (b) — Adjudicator functus officio only when finally determining complaint before him — Underpinning of s. 242(4) “make-whole” philosophy allowing adjudicator to tailor remedy to circumstances — Adjudicator’s reliance on fairness not reason for review, but final justification of decision.

Construction of statutes — Canada Labour Code, s. 242(4)(c) permitting adjudicator to require employer to “do any other like thing” to remedy unjust dismissal — Paras. (a), (b) permitting orders for payment of compensation, reinstatement — As remedial, s. 242(4)(c) given broad interpretation — “Like” not limiting power conferred on adjudicator to make orders similar to those in ss. 242(4)(a), (b).

This was an appeal from the trial judgment upholding the Adjudicator’s decision to order reinstatement without compensation, but quashing that portion of the decision imposing conditions. The appellant was dismissed from his job as a courier because the Workers’ Compensation Board had indicated that he was “unable to return to [his] position as a courier” and the respondent did not have alternative work available. Canada Labour Code, paragraph 242(4)(a) permits an adjudicator to order payment of compensation to an employee who has been unjustly dismissed; 242(4)(b) permits an order of reinstatement; and 242(4)(c) permits an order requiring the employer to do any other like thing that it is equitable to require the employer to do to remedy any consequence of the unjust dismissal. The Adjudicator ordered the employer to reinstate the appellant, but imposed the following conditions for a three-year period: following any absence of more than three days, the appellant was required to submit to a medical, if so requested. If the employer was of the opinion that the appellant’s back could not handle the stress of the job, the employer could apply for an order discharging him. He held that it would not be fair to require the employer to pay compensation in the circumstances of this case. On application for judicial review, the Trial Judge held that the Adjudicator did not have the jurisdiction to impose conditions for three years and to remain seized of the matter during that period. He held that paragraph 242(4)(c) refers only to what an adjudicator may require the employer to do and he was functus after deciding the issues of reinstatement and compensation. As to compensation, the appellant argued that fairness was an extraneous consideration. The respondent cross-appealed, arguing that the Trial Judge erred in holding that the Adjudicator did not possess jurisdiction to reinstate the appellant conditionally. The issue was the point at which an adjudicator becomes functus officio, thereby losing all remedial powers.

Held, the appeal should be dismissed, the cross-appeal allowed, the trial judgment set aside to the extent that it quashed a portion of the Adjudicator’s decision, and the Adjudicator’s decision restored.

The Trial Judge correctly stated that paragraph 242(4)(c) refers only to what the employer may do, but seems to have regarded it as self-evident that the conditions were imposed on the employee and not on the employer. Although the Adjudicator did not expressly state on whom the conditions were imposed, the provision for an application by the employer to discharge the appellant made it clear that the conditionality fell on the employer. The employer was required to take the appellant back conditionally, but if the appellant did not prove equal to the challenge of the work, the order itself, and not the conditions, could be abrogated.

Paragraph 242(4)(c) is part of a remedial provision and must be given a broad interpretation. The presence of “like” in paragraph 242(4)(c) does not limit the powers conferred on the adjudicator to making only orders similar to those expressly mentioned in paragraphs 242(4)(a) and (b).

The test as to when an adjudicator is functus officio is not the form of the order, but whether the adjudicator has finally determined the complaint before him. The underpinning of subsection 242(4) is a “make-whole” philosophy, allowing an adjudicator to tailor the remedy to fit the circumstances. The Adjudicator’s ultimate reliance on fairness was not a reason for review but, as a make-whole concept, was the final justification of the Adjudicator’s decision in terms of the statutory provision.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C. 1970, c. L-1, s. 61.5(9).

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 242 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16), 243.

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

CASES JUDICIALLY CONSIDERED

APPLIED:

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; 93 N.R. 183; Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768; (1979), 25 N.B.R. (2d) 613; 51 A.P.R. 613; 79 CLLC 14,200; NBLLC 24273; 27 N.R. 103; Huneault v. Canada Mortgage and Housing Corporation (1981), 41 N.R. 214 (F.C.A.); Blanchard v. Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476; (1984), 14 D.L.R. (4th) 289; 14 Admin. L.R. 133; 84 CLLC 14,070; 55 N.R. 194.

REFERRED TO:

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 C.L.L.C. 14,069; Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382; (1973), 41 D.L.R. (3d) 6; [1974] 1 W.W.R. 653.

AUTHORS CITED

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

Levitt, Howard A. The Law of Dismissal in Canada, 2nd ed., Aurora, Ont.: Canada Law Book Inc., 1992.

APPEAL and cross-appeal from trial judgment ((1992), 59 F.T.R. 1) upholding the Adjudicator’s decision to order reinstatement without compensation, but quashing the portion of the order imposing conditions. Appeal re: compensation dismissed and cross-appeal re: jurisdiction to impose conditions allowed.

COUNSEL:

Timothy J. Law for appellant (applicant).

Carl W. Peterson for respondents (respondents).

SOLICITORS:

David S. Wilson, Toronto, for appellant (applicant).

Winkler, Filion & Wakely, Toronto, for respondents (respondents).

The following are the reasons for judgment rendered in English by

MacGuigan J.A.: The principal issue on this appeal is the extent of labour adjudicators’ remedial authority under the powers conferred on them by paragraph 242(4)(c) of the Canada Labour Code (the Code), R.S.C., 1985, c. L-2, as amended. The whole of section 242 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16] reads as follows:

242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1).

(2) An adjudicator to whom a complaint has been referred under subsection (1)

(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;

(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and

(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Labour Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).

(3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall

(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

(b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.

(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where

(a) that person has been laid off because of lack of work or because of the discontinuance of a function; or

(b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.

(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to

(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

(b) reinstate the person in his employ; and

(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

The next provision in the Code, section 243, is a privative clause which limits judicial review of orders made under section 242. It reads as follows:

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

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.

I

The appellant was hired by the respondent Purolator Courier (the respondent) as a freight sorter in 1981 and was promoted to courier in 1985. He had already injured his back while working as a freight sorter, an injury for which he underwent a discotomy in 1983. On returning to work, he reinjured his back, and the problem worsened after he became a courier, because that job requires the repetitive lifting of packages weighing up to seventy pounds. He was assessed by the Workers’ Compensation Board of Ontario (WCB) for a permanent partial disability of 15% in 1988, but he sought reinstatement as a courier with the respondent on June 19, 1989, armed with a letter from an orthopedic surgeon that he could return to work as of that date. He was dismissed by the respondent the next day on the basis that the WCB had indicated that he was “unable to return to [his] position as a courier” (Appeal Book, at page 14), and that the respondent did not have alternative work available.

The appellant filed a complaint with Labour Canada, alleging that he had been unjustly dismissed from his employment. Adjudicator Martin Teplitsky was accordingly appointed as adjudicator of the complaint pursuant to subsection 242(1). After on-again, off-again hearings over a period of a year, the details of which I do not find it necessary to set out, on 19 February 1992 the Adjudicator issued a decision reinstating the appellant as of April 6, 1992.

However, the rest of Adjudicator Teplitsky’s decision was not so pleasing to the appellant. I set the remainder out in full (Appeal Book, at pages 71-72):

The following conditions are imposed for a 3 year period:

(1) Mr. Murphy will maintain reasonable attendance;

(2) Following any absence of more than 3 days, Mr. Murphy will submit, if requested, to a medical, at the employer’s expense with a doctor of the employer’s choosing. Mr. Murphy shall be given a copy of any medical report.

(3) I will remain seized should any problems arise with these conditions.

If during this 3 year period the employer is of the opinion that Mr. Murphy’s back cannot handle the stress of the job, the employer may apply, on notice to me, for an order discharging the grievor.

The final matter is Mr. Murphy’s claim for compensation. He no doubt lost some money. No evidence was provided by him of the amount. In any event, I do not think that this is a proper case for compensation. The employer’s decision in light of the medical evidence was fully justified. The subsequent difficulty in obtaining a “clear” medical certificate was not the employer’s fault. Moreover, I am putting the employer at risk of Workers’ Compensation Board problems by this order. To require the employer to pay compensation in these circumstances would not be fair.

The appellant then sought judicial review under section 18.1 [as enacted by S.C. 1990, c. 8, s. 5] of the Federal Court Act, R.S.C., 1985, c. F-7, as amended, seeking (1) to have the conditions set out in his order above declared invalid on the ground that the Adjudicator had no jurisdiction under section 242 to establish conditions, and (2) to have the part of his decision denying the appellant compensation set aside for several reasons.

The Trial Judge reached his conclusion as follows ((1992), 59 F.T.R. 1, at page 11):

What applicant seeks is not a quashing of the adjudicator’s entire decision, but a finding that compensation should have been ordered. I believe that the weight of the jurisprudence indicates that an adjudicator acting under s. 242(4) of the Canada Labour Code may order reinstatement without compensation for lost earnings in the interval between the dismissal and reinstatement. The use of the word “may” in the said subsection gives an adjudicator sufficient latitude to do so. With respect to compensation therefore the adjudicator’s decision should not be interfered with.

I do not find, however, that para. (c) gives the adjudicator sufficient latitude to require applicant to be reinstated subject to three years’ probation and for the adjudicator to consider himself still seized of the issue during this period. It refers only to what he may require the “employer” to do, and he is “functus” after deciding the issues of reinstatement and compensation (see Huneault, supra).

The last paragraph of the decision, supra, is more in the nature of an explanation of the reasons of the adjudicator for making the decision he did with respect to not awarding compensation. Save for the non-awarding of compensation which I have found to be within his jurisdiction, the comments about absence of fault on the part of the employer, and the speculative risk of putting the employer at risk of the Workers’ Compensation Board are gratuitous and unnecessary.

The Trial Judge thereupon quashed that portion of the Adjudicator’s decision setting out the conditions.

II

On appeal the appellant raised questions about the Adjudicator’s evidentiary findings, which I have not taken the trouble to set out, since I do not find this line of attack sustainable.

On this issue, it was admitted by the appellant that the applicable standard of review was that of patent unreasonableness, but it was said that the Adjudicator’s error in the case at bar was jurisdictional in nature rather than a mere error of law (Syndicat des employés de production du Québec et de l’Acadie v. Canada Labour Relations Board, [1984] 2 S.C.R. 412), and one moreover which came within the examples of jurisdictional error that fell outside the protection of privative clauses (Service Employees International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382, at page 389, per Dickson J. [as he then was]). However, in Blanchard v. Control Data Canada Ltd. et al., [1984] 2 S.C.R. 476, at page 479, Beetz J. wrote for the majority of the Court, with respect to a provision of Quebec law analogous to section 242, that “the existence of good and sufficient cause of dismissal is not a prerequisite to the exercise of the arbitrator’s jurisdiction, but is the very subject of his inquiry, and it is the principal question which the arbitrator must decide before making any other order he thinks proper and reasonable in view of all circumstances.” Such issues are therefore within jurisdiction, and, if erroneously decided, are not automatically patently unreasonable, unless a case to that effect is established on the facts, which the appellant has not succeeded in doing. The Trial Judge was therefore correct in holding, with respect to various pieces of evidence before the Adjudicator, that “the weight, if any, to be given to them was a matter for him to decide” (at page 5) and that “[t]his is not a case where there was no evidence on any of the facts before the adjudicator” (ibid.).

As applied to the issue of compensation, it must be admitted that the Trial Judge’s reference [at page 3] to “putting the employer at risk of Workers’ Compensation Board problems by this order” is purely gratuitous, and irrelevant to the issue to be decided. However, he advanced ample other reasons for his conclusion, summarized in his ultimate finding that “[t]o require the employer to pay compensation in these circumstances would not be fair.” The appellant argued that such fairness is an extraneous consideration, a matter that can best be addressed under the cross-appeal.

The respondent’s cross-appeal was that the Trial Judge erred in holding that Adjudicator Teplitsky did not possess sufficient jurisdiction to reinstate the appellant conditionally. That issue necessitates an interpretation of paragraph 242(4)(c).

The Trial Judge was clearly right in stating [at page 11] that this provision “refers only to what he may require the employer to do”, but seems to have regarded it as self-evident that the conditions here were imposed on the employee and not on the employer. But this is only the apparent reading of the Adjudicator’s order. Admittedly, the Adjudicator does not state expressly on whom the conditions are imposed, but the paragraph immediately following the three conditions makes it apparent to me that the conditionality falls on the employer. If “the employer” becomes convinced that the employee is not up to the tasks imposed on him [at page 11], “the employer may apply … for an order discharging the grievor.” In other words, the employer is required to take the appellant back conditionally, but if the appellant does not prove equal to the challenge of the work, the order itself, and not the conditions, may be abrogated. Of course, it would have been more helpful if the Adjudicator had expressed himself throughout in less abbreviated concepts, but I cannot doubt that he thought he was imposing conditions on the employer, as the statutory provision requires.

The question remains as to whether paragraph (c) of subsection 242(4) can be taken implicitly to authorize such a conditional order, especially in the light of the fact that the English version specifies an order “to do any other like thing” (emphasis added)”like, it was urged, to the paying and reinstating mentioned in the two previous paragraphs.

I regard the issue as having been settled by Lamer J. (as he then was), speaking for the Court on this point and interpreting the same statutory provision, in Slaight Communications Inc. v. Davidson, [1989] 1 S.C.R. 1038, at pages 1071-1072:

In the case at bar I consider, like the Federal Court of Appeal judges, that the presence of the word “like” in para. (c) of the English version was not intended to limit the powers conferred on the adjudicator by allowing him to make only orders similar to the orders expressly mentioned in paras. (a) and (b) of that subsection, and does not have that effect. Interpreting this provision in this way would mean applying the ejusdem generis rule. I think it is impossible to apply this rule in the case at bar since one of the conditions essential for its application has not been met. The specific terms (here the orders referred to in paras. (a) and (b)) which precede the general term (the power conferred on the adjudicator in para. (c) to make any order that is equitable) must have a common characteristic, a common genus. As Maxwell writes in Maxwell on the Interpretation of Statutes (12th ed. 1969), at p. 299:

Unless there is a genus or class or category, there is no room for any application of the ejusdem generis doctrine.

Professor Côté also notes this requirement when he writes in his work titled The Interpretation of Legislation in Canada (1984), at p. 245:

As a third condition, the specific terms must have a significant common denominator to be considered within one given category. If this is lacking, ejusdem generis does not apply.

In the case at bar I do not see what characteristic could be described as common to a compensation order and a reinstatement order. The only “denominator” which seems to me common to these two orders in the context of s. 61.5(9) [now s. 242] is the fact that these orders are both intended to remedy or counteract the consequences of the dismissal found by the adjudicator to be unjust. However, para. (c) expressly provides that an order made under that paragraph must be designed to remedy or counteract any consequence of the dismissal. This “common denominator” cannot therefore assist in the application of the ejusdem generis rule, since the legislator has already expressly provided that the orders the adjudicator is empowered to make must have this characteristic. Even if I were to admit that the English version should prevail over the French version, which I do not admit, I would still consider that this provision is ambiguous and that the most rational way of interpreting it is to say that the presence of the word “like” in this version does not have the effect of limiting the general power conferred on the adjudicator. This interpretation is in any case much more consistent with the general scheme of the Code, and in particular with the purpose of Division V.7 [unjust dismissal], which is to 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. Section 61.5[1] is clearly a remedial provision and must accordingly be given a broad interpretation. The consequence of interpreting para. (c) in the manner suggested by appellant would be to limit considerably the type of order the adjudicator could make. It would in fact be very difficult to find remedies like the remedies mentioned in paras. (a) and (b). The extent of the compensation that can be ordered has been carefully limited by the legislator and there is not really any similarity between reinstatement and any other measure. I believe that, on the contrary, by enacting s. 61.5(9)(c) [now s. 92(4)(c)], the legislator intended to vest in the adjudicator powers that would be sufficiently wide and flexible for him to adequately perform the duties entrusted to him, in each of the cases that come before him. I therefore consider that the meaning to be given to both versions is what clearly appears on the face of the French version and that accordingly the type of order the adjudicator can make should not be limited to orders like those expressly authorized in paras. (a) and (b).

In the words of Lamer J. the statutory provision in the case at bar is part of “a remedial provision and must accordingly be given a broad interpretation.” If other authority were required, reference might be had to Heustis v. New Brunswick Electric Power Commission, [1979] 2 S.C.R. 768, at pages 780 and 782, where Dickson J. said of a similar provision that a continuum from financial penalty through suspension to discharge inhered in the exercise of adjudicative authority. In Heustis the Court’s finding depended on there being nothing in the collective agreement or the Act which expressly precluded the adjudicator’s exercise of remedial authority, and the appellant argued that in the case at bar the role of “spoiler” was played by the requirement that any remedial order must be made against the employer. However, as I have stated, I regard the order herein to have been so made.

The final issue is as to the point at which an adjudicator becomes functus officio, thereby losing all remedial powers. In the case at bar the Trial Judge held [at page 11] that the Adjudicator “is functus after deciding the issues of reinstatement and compensation.”

A contrary view on an adjudicator’s powers is taken by Howard A. Levitt, The Law of Dismissal in Canada, 2nd ed., at pages 53-54, 203.9:

The adjudicator’s duty is to tailor a remedy that is appropriate to the specific situation. Unlike in a wrongful dismissal action, the adjudicator has the right to reinstate the employee in his position, with or without back pay. Furthermore, damages are not limited to those which would be appropriate in an action for wrongful dismissal.

…

An adjudicator can order that the employee not only be reinstated but also be placed on probation for a certain period of time in order to determine if he is sufficiently rehabilitated to return on a permanent basis, to his position.

As authority for his statement that an employee may be placed on probation, Levitt cites Huneault v. Canada Mortgage and Housing Corporation (1981), 41 N.R. 214 (F.C.A.), a case in which an adjudicator was held to be acting functus officio. The Trial Judge in the case at bar was correct in stating that Huneault “does not specifically deal with” (at page 9) the issue of probation, but to my mind it does imply an answer.

In that case the initial order of an adjudicator under the same provision of the Code [R.S.C. 1970, c. L-1, s. 61.5] provided for the conditional restoration of the complainant’s employment for four months, after which the matter would be reviewed again by the adjudicator. On the four-month review the adjudicator ordered the complainant restored to permanent employment and made provision for his reclassification and salary increase, concluding that “the above Order now effectively and finally disposed of this complaint.” Nevertheless, the adjudicator went on to request further argument as to the deduction and refunding of unemployment insurance benefits. It was as to this final requirement that the issue of functus officio was raised, which led Thurlow C.J. to state for the Court (at page 217):

In our view the first and second orders made by the adjudicator exhausted the powers he was authorized by subs. 61.5(9) [now 242(4)] to exercise and he thereupon became and was functus officio. He had ordered reinstatement. He had ordered the payment of compensation. He had not ordered anything falling within paragraph 61.5(9)(c), but he had finally determined the complaint before him. He no longer had any power, statutory or otherwise, to reconsider or withdraw or change either order. Moreover, the purported reservation by him of authority to make such orders, if any, as might be appropriate and necessary after receipt of submissions on the question of the Unemployment Insurance benefit refunds cannot affect our conclusion.

In our view it follows from our conclusion that Mr. Cohen was functus officio, that he was without authority to refer the question to the court and that the present proceeding should be quashed.

It could hardly be doubted that the Adjudicator “had finally determined the complaint before him” by his second order before arriving at the addendum concerning unemployment insurance, especially since he himself had said so. But for present purposes what is important is that the Court apparently accepted without cavil the conditional nature of the first order. Indeed, as long as the condition continued, the Adjudicator could be said not to have finally determined the complaint before him. In my view, the test is not the form in which the order is cast. The test, and the only test, is whether the Adjudicator could be said to have finally determined the complaint before him.

This ties in with the view of M. Norman Grossman, Federal Employment Law in Canada, 1990, at page 180, that “the underpinning of the section [s. 242(4)] is a `make-whole’ philosophy.” And again (at page 179):

The use of the permissive term “may” in this section of the legislation [s. 42(4)] permits the adjudicator sufficient latitude to essentially craft the remedy to fit the individual circumstances of any case.

In the case at bar, the Adjudicator’s ultimate reliance on fairness is therefore not a reason for review, as the appellant would have it, but, as a make-whole concept, is rather the final justification of the Adjudicator’s decision in terms of the statutory provision.

III

In the result, the appeal must be dismissed with costs here and below, the cross-appeal allowed, the decision of the Trial Judge set aside to the extent that it quashed a portion of the decision of Adjudicator Teplitsky, and the decision of the Adjudicator restored.

Linden J.A.: I agree.

McDonald J.A.: I agree.

---