Judgments

[1994] 1 F.C. 652

A-554-92

Canada Post Corporation (Appellant) (Plaintiff)

v.

Ronald Pollard and Douglas C. Stanley, Adjudicator, appointed under Section 240 of Part III of the Canada Labour Code (Respondents) (Defendants)

Indexed as: Canada Post Corp. v. Pollard (C.A.)

Court of Appeal, Heald, Décary and McDonald JJ.A.—Ottawa, October 5 and 12, 1993.

Labour relations — Appeal from Motions Judge’s decision Adjudicator right in finding respondent not excluded from making complaint of unjust dismissal under Canada Labour Code, s. 240(1)(b) — Dismissal resulting from alleged misconduct during lawful strike — Complaint filed after coming into force of new collective agreement — Jurisdiction of adjudicator under Code, s. 242(3.1)(b) limited to unjust dismissal — No final say as to who could make complaint — Appropriate standard of judicial review at issue — Case law suggesting pragmatic, functional analysis of legislation — Appropriate test correctness of decision attacked not patent unreasonableness.

This was an appeal from an order by MacKay J. that the Adjudicator was right in ruling that the respondent, Pollard, was not excluded from making a complaint of unjust dismissal under the Canada Labour Code, paragraph 240(1)(b). His employment with Canada Post being terminated by reason of his alleged misconduct during a lawful strike, Pollard filed a complaint that he had been unjustly dismissed. The Adjudicator appointed by the Minister pursuant to section 242 of the Code held that he had jurisdiction to hear the complaint and that the exclusion within paragraph 240(1)(b) was limited to persons who were subject to the terms of a collective agreement at the time of the dismissal, which was not the case for Pollard. Upon an application for judicial review of the Adjudicator’s decision, the Motions Judge held that jurisdictional issues were subject to judicial review despite a privative clause but that, the appropriate standard for review being one of patent unreasonableness, the Adjudicator’s decision should not be disturbed. The two main issues raised in this appeal were 1) the jurisdiction of the adjudicator under Division XIV of the Code and 2) the appropriate standard of judicial review.

Held, the appeal should be dismissed.

1) Parliament did not intend an adjudicator to embark erroneously on an inquiry with respect to a person who should not be subjected to it or to refuse erroneously to embark on an inquiry with respect to a person to whom the legislator intends to give that very remedy. The question is whether Parliament intended to let the adjudicator decide virtually unchecked whether the applicant is a proper claimant. The Motions Judge did not give sufficient consideration to the area of expertise and the powers of the Adjudicator nor, with respect to paragraph 242(3.1)(b), to the wording of the enactment and the nature of the problem. The status of the adjudicator under the Code as compared to that of other decision-makers indicates that Parliament did not intend the adjudicator to have a final say as to who could or could not make a complaint. The area of expertise of the adjudicator is a rather limited one since he is to consider complaints made by a limited class of employees with respect to a single issue, unjust dismissal. The legislator did not see fit to give the adjudicator a general, exclusive jurisdiction over implementation of and compliance with all the provisions of the Code. Subsection 242(3.1) is couched in terms that limit the jurisdiction of the adjudicator and paragraph (b) thereof refers to a question of law of general application which the Court is in the best position to decide. To decide whether a procedure for redress exists elsewhere in the Code or in other federal legislation is beyond the area of expertise of the adjudicator. Although the adjudicator’s decisions are protected by a broadly worded privative clause (section 243), it is doubtful whether such a clause, per se, is capable of being decisive at this juncture of the review process. There is no legislative intent to entrust the Adjudicator with the jurisdiction to determine virtually unchecked whether the complainant was among those entitled by Parliament under paragraphs 240(1)(b) and 243(3.1)(b) to make a complaint. The fact that Parliament has left untouched any civil remedy of an employee against his employer (subsection 246(1)) is no reason to have a decision depriving the employee of the easier, quicker and less costly administrative remedy to which he would be entitled should the legislation be correcty interpreted, subject to review only if that decision was patently unreasonable.

2) At the outset of the judicial review process, there is but one question the Court should ask itself: whether the legislator intended, expressly or by implication, the question to be within the jurisdiction conferred on the tribunal. When the answer to that question is negative, the tribunal will still have the jurisdiction to answer the question, but a mere error in the interpretation of the provision will constitute a jurisdictional error and cause the tribunal to lose jurisdiction, even in the face of a privative clause. The test is that of correctness. When the answer to the question is positive, the tribunal will be deemed to have acted within its jurisdiction in interpreting the provision and the Court, even in the face of a privative clause, will not intervene unless the tribunal has erred in a patently unreasonable manner. The severity of the patently unreasonable test requires the courts to adopt a posture of deference to the tribunal’s decision, particularly in labour disputes. This first step in judicial review, which is to determine the tribunal’s jurisdiction having regard to the legislative intent, requires the court to make a pragmatic and functional analysis of the legislation, consisting in the examination of a number of factors. The appropriate test for judicial review herein was that of correctness of the decision being attacked; that test has been met.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 3, 16, 60, 167 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 5), 240 (as am. idem, s. 15), 241, 242 (as am. idem, s. 16), 242 (3.1) (as enacted idem), 243, 244, 245, 246.

Federal Court Act, R.S.C. 1970 (2nd Supp.), c. 10, s. 28.

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 28 (as am. idem, s. 8).

CASES JUDICIALLY CONSIDERED

FOLLOWED:

U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048; (1988), 35 Admin. L.R. 153; 95 N.R. 161; Université du Québec à Trois-Rivières v. Larocque, [1993] 1 S.C.R. 471; (1993), 148 N.R. 209; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161.

APPLIED:

Lee-Shanok v. Banca Nazionale del Lavoro of Canada Ltd., [1987] 3 F.C. 578; (1987), 26 Admin. L.R. 133; 76 N.R. 359 (C.A.).

REFERRED TO:

Sedpex, Inc. v. Canada (Adjudicator appointed under the Canada Labour Code), [1989] 2 F.C. 289; (1988), 34 Admin. L.R. 23; 25 F.T.R. 3 (T.D.); Bell Canada v. Canada (Canadian Radio-television and Telecommunications Commission, [1989] 1 S.C.R. 1722; (1989), 60 D.L.R. (4th) 682; 38 Admin. L.R. 1; 97 N.R. 15; Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 102 N.R. 1; National Corn Growers Assn. v. Canada (Import Tribunal), [1990] 2 S.C.R. 1324; (1990), 74 D.L.R. (4th) 449; 45 Admin. L.R. 161; 114 N.R. 81; Lester (W.W.) (1978) Ltd. v. United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry Local 740, [1990] 3 S.C.R. 644; (1990), 88 Nfld. & P.E.I.R. 15; 48 Admin. L.R. 1; 91 CLLC 14,002; 123 N.R. 241; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; Zurich Insurance Co. v. Ontario (Human Rights Commission), [1992] 2 S.C.R. 321; (1992), 9 O.R. (3d) 224; 93 D.L.R. (4th) 346; 138 N.R. 1; 55 O.A.C. 81; Canada (Attorney General) v. Mossop, [1993] 1 S.C.R. 554; (1993), 100 D.L.R. (4th) 658; 149 N.R. 1; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; (1993), 102 D.L.R. (4th) 609; 152 N.R. 1; United Brotherhood of Carpenters and Joiners of America, Local 579 v. Bradco Construction Ltd., [1993] 2 S.C.R. 316; (1993), 102 D.L.R. (4th) 402; 153 N.R. 81; University of British Columbia v. Berg, [1993] 2 S.C.R. 353; (1993), 152 N.R. 99; Domtar Inc. v. Quebec (Commission d’appel en matière de lésions professionnelles), [1993] 2 S.C.R. 756; (1993), 105 D.L.R. (4th) 385; 154 N.R. 104; Canadian Imperial Bank of Commerce v. Bateman (1992), 140 N.R. 399 (F.C.A.); affg [1991] 3 F.C. 586; (1991), 91 CLLC 14,028; 42 F.T.R. 218 (T.D.); Transport Guilbault Inc. v. Scott, A -618 -85, Pratte J., judgment dated 21/5/86, not reported; Beaudoin v. National Bank of Canada (1981), 49 N.R. 238 (F.C.A.); Canada Post Corp. v. C.U.P.W. (1987), 46 D.L.R. (4th) 716; 88 CLLC 12,023; 82 N.R. 249 (F.C.A.).

AUTHORS CITED

Desjardins, Hon. Madam Justice Alice. “Review of Administrative Action in the Federal Court of Canada: The New Style in a Pluralist Setting”, in Special Lectures of the Law Society of Upper Canada. Scarborough: Carswell, 1992, 405.

APPEAL from a decision by the Motions Judge ([1992] 2 F.C. 697) that the Adjudicator was right in holding that the respondent, Pollard, was not excluded from making a complaint of unjust dismissal under paragraph 240(1)(b) of the Canada Labour Code. Appeal dismissed.

COUNSEL:

John A. Coleman for appellant (plaintiff).

David Migicovsky for respondents (defendants).

SOLICITORS:

Ogilvy Renault, Montréal, for appellant (plaintiff).

Perley-Robertson, Panet, Hill & McDougall, Ottawa, for respondents (defendants).

The following are the reasons for judgment rendered in English by

Décary J.A.: The respondent Pollard (Pollard) was an employee of the appellant (Canada Post) and a member and officer of a duly certified bargaining unit represented by the Public Service Alliance of Canada when the union commenced a lawful strike on August 24, 1988. In a letter addressed to the union on August 23, Canada Post advised that the collective agreement previously in effect would not govern terms and conditions of employment during the strike. In place of that agreement Canada Post set out basic terms and conditions that would apply until further advice from it or until conclusion of a new collective agreement.

On August 31, 1988, Pollard’s employment with Canada Post was terminated by reason of his alleged misconduct, said to have occurred on August 27 and 29, committed during the course of the strike.

Canada Post and the union concluded a return to work agreement terminating the strike and reinstating the previous collective agreement upon return to work on September 14, and providing that a newly negotiated collective agreement would be effective on September 25, 1988.

No provision was made in the return to work agreement or in the new collective agreement, neither of which was retroactive, for Pollard, whose employment had been terminated, to return to work. He did not return to work on September 14, as he was no longer employed by Canada Post on that date.

On October 4, 1988, Pollard filed a complaint pursuant to section 240 of the Canada Labour Code [R.S.C., 1985, c. L-2 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15)] (the Code), a complaint that he had been unjustly dismissed. An Adjudicator was appointed by the Minister of Labour (the Minister) pursuant to section 242 [as am. idem, s. 16] of the Code. When the matter came on for hearing before the Adjudicator in October, 1991, Canada Post argued that the Adjudicator was without jurisdiction to hear and determine that complaint.

Canada Post raised two arguments. In its view, Pollard, at the time of filing the complaint, was “a member of a group of employees subject to a collective agreement” within the meaning of paragraph 240(1)(b) of the Code and therefore excluded from making a complaint for unjust dismissal under Division XIV of the Code (sections 240 to 246). In any event, argued Canada Post, the complaint should not have been considered by the Adjudicator because “a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament” within the meaning of paragraph 242(3.1)(b) [as enacted idem] of the Code.

The Adjudicator held that the exclusion within paragraph 240(1)(b) was limited to persons who were subject to the terms of a collective agreement at the time of the dismissal, which was not the case for Pollard, and that the exclusion for cases where an alternative procedure for redress is provided, as set out in paragraph 242(3.1)(b), must be a procedure that provides redress to a complaint that the dismissal was unjust and no other process relating to that cause was open to Pollard in the case at bar under the Code or other statute. The Adjudicator therefore found that Pollard was not excluded from making a complaint for unjust dismissal under Division XIV of the Code.

Canada Post applied for judicial review under the provisions of section 18 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 4)] (the Act) as it read prior to February 1, 1992.

The key provisions of the Code here in issue are those found in Part III of the Code, Division XIV which concerns unjust dismissal. They are the following:

240. (1) Subject to subsections (2) and 242(3.1), any person

(a) who has completed twelve consecutive months of continuous employment by an employer, and

(b) who is not a member of a group of employees subject to a collective agreement,

may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.

(2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.

(3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.

241. (1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.

(2) On receipt of a complaint made under subsection 240(1), an inspector shall endeavour to assist the parties to the complaint to settle the complaint or cause another inspector to do so.

(3) Where a complaint is not settled under subsection (2) within such period as the inspector endeavouring to assist the parties pursuant to that subsection considers to be reasonable in the circumstances, the inspector shall, on the written request of the person who made the complaint that the complaint be referred to an adjudicator under subsection 242(1),

(a) report to the Minister that the endeavour to assist the parties to settle the complaint has not succeeded; and

(b) deliver to the Minister the complaint made under subsection 240(1), any written statement giving the reasons for the dismissal provided pursuant to subsection (1) and any other statements or documents the inspector has that relate to the complaint.

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

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

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

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

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

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

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

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

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

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

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

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

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

(b) reinstate the person in his employ; and

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

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.

244. (1) Any person affected by an order of an adjudicator under subsection 242(4), or the Minister on the request of any such person, may, after fourteen days from the date on which the order is made, or from the date provided in it for compliance, whichever is the later date, file in the Federal Court a copy of the order, exclusive of the reasons therefor.

(2) On filing in the Federal Court under subsection (1), an order of an adjudicator shall be registered 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.

245. The Governor in Council may make regulations for the purposes of this Division defining the absences from employment that shall be deemed not to have interrupted continuity of employment.

246. (1) No civil remedy of an employee against his employer is suspended or affected by sections 240 to 245.

(2) Section 189 applies for the purposes of this Division.

At the beginning of his reasons, the learned Motions Judge, Mr. Justice MacKay [[1992] 2 F.C. 697], decided to proceed to deal with the application despite the privative clause contained in section 243 which on its face value would preclude judicial review. He found, correctly in my view, that jurisdictional issues, as are those here involved, are open to proceedings for judicial review despite the terms of any privative clause.[1]

Dealing with the appropriate standard for review, MacKay J. was of the view that the question in issue was intra-jurisdictional and that the appropriate standard was one of patent unreasonableness rather than the correctness of the decision being attacked.

He went on to find that the decision of the Adjudicator was not patently unreasonable and he added, in the event the standard of review be perceived otherwise than he had found it, that the interpretation given by the Adjudicator was in his view correct.

The learned Motions Judge’s principal conclusions with respect to the two issues raised by Canada Post were formulated as follows [at pages 721-723, 725-726]:

As to the first issue, the interpretation of paragraph 240(1)(b), it is my view that the finding of the adjudicator, that Pollard was not excluded by this paragraph, is not patently unreasonable. Indeed, in my view, that finding is correct, in the event the standard for review be perceived otherwise than I have found it. In my view, arbitrator Stanley was correct in interpreting paragraph 240(1)(b) as relating to the time of the dismissal complained of, not the time of filing the complaint, and that there was no collective agreement in force between the parties at the time Pollard was dismissed, August 31. Thus, though he may then have been a member of a group of employees who comprised a bargaining unit engaged in a lawful strike, at the time of his dismissal there was no collective agreement to which that group of employees were subject.

The applicant’s argument is that the relevant time for assessing the status of the complainant is the date of the complaint and that this is consistent with the scheme of section 240 as a whole. Yet paragraph 240(1)(a), requiring a person complaining of unjust dismissal to have completed twelve consecutive months of continuous employment by an employer, is a requirement that must be measured from the date of dismissal if it is to have any sensible application. Moreover, subsection 240(2) provides a time limit for filing a complaint, specifically 90 days from the date of the dismissal alleged as unjust.

It seems to me that section 240 can only be interpreted on the basis of the relevant time being the date of dismissal. That has been held by an adjudicator to be the relevant time for determination of the status of the complainant as a manager. (John B. Macdonald v. Eastern Broadcasters Limited, unreported, 1985, decision of J. MacPherson, Adjudicator). That is consistent with judicial decisions in Lee-Shanok and Bateman, where the functions of the complainant at the time of his dismissal were assessed in determining whether he was a “manager” and thus excluded by subsection 167(3). It is consistent as well with sensible application of paragraph 242(3.1)(a), excluding consideration of a complaint from a person laid off because of lack of work or the discontinuance of a function, the relevant time at issue being the date of termination of the complainant as is clearly implied in Sedpex, Inc.

Moreover, the interpretation urged by the applicant could lead to anomalous, if not absurd, results that are inconsistent with the purposes of the Code. A person within a bargaining unit subject to a collective agreement at the time of his dismissal but not at the time of his complaint would have access to arbitration under the collective agreement and also be free to complain of unjust dismissal under the Code. Moreover, the interrelated purposes of Part I of the Code, to promote collective bargaining, and Part III of the Code, to provide minimum standards in federally regulated employment, if the relevant date for section 240(1)(b) were the date of the complaint, would permit the employer to unilaterally suspend a collective agreement during a lawful strike and to discharge employees who then would have no recourse to arbitration under a collective agreement, assuming no retroactive application of a subsequent agreement, or no recourse under section 240.

…

When I turn to the adjudicator’s ruling on the second issue, the application of paragraph 242(3.1)(b), in my view his finding, that Pollard was not excluded because his complaint was not one where a procedure for redress has been provided otherwise in or under the Code or any other statute, is not patently unreasonable. Indeed, in the circumstances, I believe that finding is consistent with, or correct in light of, the facts and the legislative intent of the paragraph in question.

I do not share the adjudicator’s reasons, related to legislative intent, for that result. The possibility of future legislative change by Parliament is not a prime consideration in the interpretation of legislation which, in accord with section 10 of the Interpretation Act, R.S.C., 1985, c. I-21, “shall be considered as always speaking”. It is to have meaning in light of the situation prevailing, including existing legislation, at the time of its interpretation and application.

I agree with the respondent’s submissions that alternative processes urged by the applicant as available to Pollard under the Code, sections 37 and 94, do not provide a process to address the issue of unjust dismissal for alleged misconduct, the basis of the respondent’s complaint and the matter dealt with in sections 240 to 245 of the Code. Section 37 provides for complaints by a member against his or her union in relation to matters included in a collective agreement. As I have earlier indicated this does not provide a procedure for redress against the employer for alleged unjust dismissal. Nor does section 94 provide such a procedure. Rather, it concerns complaints concerning unfair labour practices defined by statute, all relating to discriminatory behaviour because of participation in union activities. I share the adjudicator’s conclusion that sections 94 and 97 [as am. by S.C. 1991, c. 39, s. 2] do not provide a procedure for redress by the employer who is found to have unjustly dismissed an employee.

Counsel for the respondent points to other circumstances dealt with under the Code, not referred to by the adjudicator, where dismissal alleged to be unjust may be redressed, apart from sections 240 to 245, and thus excluded by paragraph 242(3.1)(b). Where a collective agreement has expired prior to the right to strike being obtained, an employee who has been discharged without just cause still retains the right to have the discharge arbitrated under the terms of the expired agreement, pursuant to subsection 67(4) which provides that the mandatory requirement for a provision in a collective agreement for final settlement of differences without stoppage of work remains in force after expiry of the agreement until lawful strike action. Another circumstance, it is urged, is where an employee is discharged for exercising a right to refuse unsafe work, in which case a process for redress of any complaint is provided under Part II of the Code. Counsel points as well to the Public Service Staff Relations Act, R.S.C., 1985, c. P-35, s. 92(1)(b) and Schedule I, Part II … as an example of other legislation providing for redress, which if applicable would exclude a complaint under paragraph 242(3.1)(b) of the Code.

These submissions seek to support, aside from sections 37 and 94, an interpretation of the words “a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament” in paragraph 242(3.1)(b). In my view it is not essential to finally determine what those words may be deemed to include. Where no other statutory provision is found by an adjudicator to provide a procedure for redress of a complaint of alleged unjust dismissal, the complaint is not excluded from consideration under paragraph 242(3.1)(b). That, it seems to me, is consistent with the intent of Parliament that the procedures for dealing with complaints of unjust dismissal set out in Division XIV of Part III of the Code be available for all employees engaged in employment subject to federal regulation except those specifically excluded.

I —      The appropriate standard of judicial review[2]

There has been such an avalanche of decisions dealing with the appropriate standard of judicial review since the landmark decision of the Supreme Court of Canada in U.E.S., Local 298 v. Bibeault,[3] that it is easy to lose sight of what Bibeault basically stands for. The subsequent application to particular cases of the “functional and pragmatic approach” suggested by Beetz J. in Bibeault should not distract us from the essential teaching of that decision, i.e. that at the very beginning of the judicial review process there is but one question the Court should ask itself: whether the legislator intended, expressly or by implication, the question to be within the jurisdiction conferred on the tribunal. That this is the essential teaching of Bibeault appears clearly in the following remarks of Chief Justice Lamer in Université du Québec:[4]

For some years, since the decision of Dickson J. in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227, this Court has made an effort to limit the scope of the theory of preliminary questions. In U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, Beetz J. favoured instead a functional and pragmatic approach to identifying questions of jurisdiction. He said (at p. 1087):

The concept of the preliminary or collateral question diverts the courts from the real problem of judicial review: it substitutes the question “Is this a preliminary or collateral question to the exercise of the tribunal’s power?” for the only question which should be asked, “Did the legislator intend the question to be within the jurisdiction conferred on the tribunal?”

Before the excerpt quoted above by Lamer C.J., Beetz J. had noted in Bibeault, at page 1087 that:

The theory of the preliminary or collateral question does not appear to recognize that the legislator may intend to give an administrative tribunal, expressly or by implication, the power to determine whether certain conditions of law or fact placed on the exercise of its power do exist. [My emphasis.]

and had gone on, at page 1089 to state that the first advantage of the new approach he was proposing was that:

… it focuses the Court’s inquiry directly on the intent of the legislator rather than on interpretation of an isolated provision. Determining the legislator’s intent is especially desirable when the Court has to intervene in the decisions of administrative tribunals such as the labour commissioner or Labour Court.

At this early stage, I hasten to add, no curial deference to the tribunal is to be shown, for the courts are eminently well suited for determining whether a tribunal has exceeded the jurisdiction which is granted to it by its enabling statute (PSAC (1993), at page 963, Cory J.).

When the answer to the question is that the legislator did not intend the question to be within the jurisdiction conferred on the tribunal, the tribunal will still have the jurisdiction to answer the question, but a mere error in the interpretation of the provision will constitute what has been referred to as a jurisdictional error and cause the tribunal to lose jurisdiction, even in the face of a privative clause (Université du Québec, at page 494, L’Heureux-Dubé J.). The test is that of correctness.

When the answer to the question is that the legislator did intend the question to be within the jurisdiction conferred on the tribunal, the tribunal will be deemed to have acted within its jurisdiction in interpreting the provision and the court, even in the face of a privative clause,[5] will not intervene unless the tribunal has erred in a patently unreasonable manner (Bibeault, at page 1086, Beetz J.; Paccar, at page 1003, La Forest J.; PSAC (1993), at page 962, Cory J.). The patently unreasonable test is a severe one (Paccar, at page 1003, La Forest J.), a very strict one (PSAC (1993), at page 964, Cory J.). It sets a high standard of review: it is not enough that the decision of the tribunal is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational, that is to say evidently not in accordance with reason (PSAC (1993), at page 963, Cory J.; Domtar, at page 775, L’Heureux-Dubé J.) or not sustainable on any reasonable interpretation of the facts or of the law (National Corn Growers Assn., at page 1369, Gonthier J.). The severity of the test requires the courts to adopt a posture of deference to the decision of the tribunal (Paccar, at pages 1003-1004, La Forest J.). Deference is particularly suited in labour disputes (Bibeault, at page 1089, Beetz J; Paccar, at pages 1004-1005, La Forest J.), although the degree of deference will vary depending on whether the tribunal falls towards the lower or the upper end of the spectrum of those administrative tribunals charged with policy deliberations to which the courts should defer (Dayco, at page 266, La Forest J.; Mossop, at page 585, La Forest; Bradco, at pages 336-337, Sopinka J.).

To get back, then, to the first step in judicial review, which is to determine the tribunal’s jurisdiction having regard to the legislative intent, the Court is to make a pragmatic and functional analysis of the legislation, consisting in the examination of: a) the wording of the provision conferring jurisdiction on the tribunal; b) the purpose of the statute creating the tribunal; c) the reason for the tribunal’s existence; d) the area of expertise of the tribunal’s members and e) the nature of the problem before the tribunal. (Bibeault, at page 1088, Beetz J.) These factors are so intertwined that they may be in some cases conveniently considered in one analysis (Dayco, at page 266, La Forest J.).

Of these factors, the one pertaining to the nature of the problem before the tribunal will generally be the easiest to ascertain: where an administrative tribunal is asked to decide a question which is not ordinarily within its expertise, there is an assumption that the legislator did not intend to give the tribunal the right to be wrong. (Bibeault, at page 1097, Beetz J.; Dayco, at page 267, La Forest J.; Domtar, at page 775, L’Heureux-Dubé J; Bradco, at page 336, Sopinka J.). I must confess I have some concern, in practice, with respect to factors b), c) and d). In most cases, no evidence will have been led as regards the purpose of the statute and the reason for the tribunal’s existence, leaving the court with some untested and general judicial knowledge of what it is a specific tribunal is meant to be better at resolving than another tribunal. This is particularly true when it comes to labour-related tribunals: courts will invariably express the view that the legislature created these tribunals with the intent of providing a fast and final resolution of disputes. Once this is said, however, it falls short of explaining why there are so many different types of labour tribunals each with its own powers and limitations. As regards the so-called “expertise of the tribunal’s members”, I assume that Beetz J. had not so much in mind the personal expertise of individual members, which in some cases would be equivalent to zero expertise at the time of their appointment, but rather their statutory expertise as deduced from the scheme of the enabling statute.

II —     The jurisdiction of the adjudicator

What is at issue, in the case at bar, is not whether the subject-matter of the complaint, i.e. the unjust dismissal, can be considered by the Adjudicator, but whether the complainant is a person allowed to file the complaint. At first blush it would seem that a provision defining what person can make a complaint is a provision with respect to which the legislator does not normally wish to have the tribunal make any error. It is fair to assume that Parliament, absent express or implicit indication to the contrary, will not intend an adjudicator to embark erroneously on an inquiry with respect to a person who should not be subjected to it or to refuse erroneously to embark on an inquiry with respect to a person to whom the legislator intends to give that very remedy. The decision of this Court in Lee-Shanok,[6] which dealt with what is now subsection 167(3) of the Code, appears to be precisely on point:

The rationale for reviewing errors of jurisdiction, it seems, is basically that it would be anomalous for the legislature to create a tribunal of limited jurisdiction while according it unlimited power to determine the scope of its jurisdiction. Such errors do not usually fall within the area of special knowledge and expertise of an administrative tribunal, skills that often lead a court to adopt a deferential attitude to the decision of a tribunal on an intra-jurisdictional question of law. In the present case, absence of this review power would mean that the adjudicator could, virtually unchecked, narrow the extent of his jurisdiction by an overly broad construction of the term “manager” and yet the Court would be unable to ensure that he deal with the real issue referred to him under the legislation. The undesirability of such a result is self-evident, in my view. [My emphasis.]

The question that has to be answered is whether Parliament intended to let the adjudicator decide virtually unchecked whether the applicant is a proper claimant. The learned Motions Judge found that Parliament had such an intent as regards the five exclusions listed in Division XIV (i.e. paragraphs 240(1)(a), 240(1)(b), subsection 240(2) (untimely complaint), paragraphs 242(3.1)(a) and 242(3.1)(b)), and no such intent as regards the exclusion listed in subsection 167(3) (i.e. employees who are managers) which had already been found by this Court not to be within the jurisdiction of the Adjudicator.[7] With respect, I am unable to reach the same conclusion. I note, in passing, that as far as paragraph 242(3.1)(a) is concerned, such a conclusion runs contrary to the one reached by Strayer J. in Sedpex.[8]

The learned Motions Judge’s decision precedes most of the recent pronouncements of the Supreme Court I have alluded to. He did not, in my view, give sufficient consideration to the area of expertise and the powers of the Adjudicator, nor, with respect to paragraph 242(3.1)(b), to the wording of the enactment and the nature of the problem.

Of considerable importance is the status of the adjudicator under the Code as compared to that of other decision-makers. Contrary to the Canada Labour Relations Board (the Board) which is given by paragraph 16(p) the power:

16. …

(p) to decide for all purposes of this Part any question that may arise in the proceeding, including … any question as to whether

(i) a person is an employer or an employee,

(ii) a person performs management functions …

…

(vii) any person … is a party to … a collective agreement …

and as compared to an arbitrator or arbitration board appointed to settle a difference arising with respect to the content and interpretation of collective agreements who is given by subsection 60(1):

60. …

(a) … the powers conferred on the Board … by paragraphs 16(a), (b) and (c); and

(b) power to determine any question as to whether a matter … is arbitrable.

the adjudicator is only given by paragraph 242(2)(c):

242. …

(c) … the powers conferred on the Canada Labour Relations Board … under paragraphs 16(a), (b) and (c).[9]

These differences are a strong indication, in my view, that Parliament did not intend the adjudicator to have a final say as to who could or could not make a complaint.[10]

Furthermore, the area of expertise of the adjudicator is a rather limited one. He is “any person that the Minister considers appropriate as an adjudicator” (subsection 242(1)), he is appointed on an ad hoc basis and he is to consider complaints made by a limited class of employees (subsections 240(1) and 242(3.1)) with respect to one single issue, namely, unjust dismissal (paragraph 242(3)(a)). His expertise is far less extensive than that of the members of the Canada Labour Relations Board and that of an arbitrator appointed pursuant to Part I of the Code. The Supreme Court, in Bradco, at page 337, and in Mossop, at page 585, was not very much impressed, albeit at a different stage of the review process, with the status of ad hoc bodies which have as restricted powers and expertise as the adjudicator has under the Code. To paraphrase the words of counsel approved by Beetz J. in Bibeault, at pages 1094-1095, it can be seen at the outset that the legislator did not see fit to give the adjudicator a general, exclusive jurisdiction over implementation of and compliance with all the provisions of the Code. He chose instead the approach of conferring a general power to the Canada Labour Relations Board and several specific powers over specific and defined matters to other decision-makers and even then he did not give the same powers to all.

There is an additional argument with respect to paragraph 242(3.1)(b). Subsection 242(3.1) is clearly couched in terms that limit the jurisdiction of the adjudicator. The words “no complaint shall be considered” (“ne peut procéder à l’instruction de la plainte” in the French text) are prima facie limiting the jurisdiction. More decisive, though, is the fact that paragraph 242(3.1)(b) clearly refers to a question of law of general application which the court is in the best position to decide. To decide whether a procedure for redress exists elsewhere in the Code or in the federal legislation is clearly beyond the area of expertise of the adjudicator; it is a long way from his “home territory”.[11]

While the conclusion reached with respect to paragraph 242(3.1)(b) need not be the same as that reached with respect to paragraph 240(1)(b), their interrelationship, as expressed by the words “subject to subsections … 242(3.1)” which appear at the very beginning of subsection 240(1), is an invitation to consider them in practice on the same footing.

I appreciate the distinction made by the learned Motions Judge between the exclusion relating to managers found in the introductory section of Part III of the Code and the five exclusions found in Division XIV itself, but with respect I am unable to attach to that factor the importance that he did. Parliament has obviously taken great care in the Code not to equate managers with employees. That being done in a general way through definition or application provisions (see subsection 3(1), paragraph 167(2)(a) and subsection 167(3)), Parliament has further sought to establish some distinctions amongst the employees themselves and has done so, appropriately, on a case-by-case basis. It was to be expected that distinctions amongst employees with respect to claims for unjust dismissal be found in that very Division of the Code which deals with unjust dismissal. The most that can be said is that these distinctions will be decided under the procedure set out in that Division, by the persons identified therein and in accordance with the powers given to such persons. We are therefore back to the starting point: in the context of the Code and under the provisions of Division XIV, what is precisely the jurisdiction of the adjudicator?

I fully realize that the adjudicator’s decisions are protected by a broadly worded privative clause (section 243) and when registered in the Federal Court have the same force and effect as if they were a judgment obtained in that Court (section 244). I also recognize that the existence of such a clause “is an indication of the scope of jurisdiction intended by the legislature” (Dayco, at page 263, La Forest J.). It is possible that, in some cases, a broad privative clause will tip the balance in favour of a positive finding on the question of jurisdiction. However I doubt whether such a clause, per se, and absent indications of legislative intent appearing elsewhere in the enabling statute, is capable of being decisive at this juncture in the review process.

After considering what it is the Adjudicator is called upon to decide in the present case, his limited area of expertise, the wording and interrelationship of the enactments at issue, the absence of specific powers to deal with the question when compared to other decision-makers under the Code and notwithstanding the privative clause, I am unable to find a legislative intent to entrust the Adjudicator with the jurisdiction to determine virtually unchecked whether the complainant was amongst those entitled by Parliament under paragraphs 240(1)(b) and 242(3.1)(b) to make a complaint. The fact that Parliament has left untouched any civil remedy of an employee against his employer (subsection 246(1)) is no reason, in my view, to have a decision depriving the employee of the easier, quicker and less costly administrative remedy to which he would be entitled should the legislation be correctly interpreted, subject to review only if that decision was patently unreasonable.

We are not dealing here with arbitrators involved in questions relating to the interpretation of collective agreements, where “courts should, as a matter of policy, defer to the expertise of the arbitrator” (Dayco, at page 250, La Forest J.) because “an arbitrator has jurisdiction stricto sensu to interpret the provisions of a collective agreement in the course of determining the arbitrability of matters under that agreement” and in so doing “is acting within his or her home territory” (Dayco, at page 251, La Forest J. See, also, Mossop, at page 585, La Forest J.; Bradco, at page 336, Sopinka J.; Université du Québec, at page 486, Lamer C.J.).

Nor are we dealing with boards such as the Public Service Staff Relations Board to which “Parliament has given the Board broad powers to consider and resolve a wide variety of problems that arise in the field of labour relations” and in which “Parliament has clearly placed its trust and confidence” (PSAC (1993), at pages 952, 962 and 968, Cory J. See, also, Econosult, at pages 628, 659, 660 and 661) or the Canada Labour Relations Board (Bibeault, at page 1094, Beetz J.), the Labour Relations Board of British Columbia (Paccar) or the Commission d’appel en matière de lésions professionnelles (Domtar).

Nor are we dealing with boards which are expressly intended by the legislator to answer the question put to them (see Econosult, at pages 631-632, Sopinka J. and Lester, at page 659, McLachlin J.).

As in PSAC (1993) where the first question that had to be answered was “whether the Board had jurisdiction to entertain the respondent’s reference under [the Act]” and where Cory J. expressed the view that “[i]t is clear from the Bibeault decision that the Board must have been correct in its determination of this issue” (at page 964), I have come to the conclusion that the appropriate test for judicial review, in this case, as well, is that of correctness.

III —    The correctness of the decision

Albeit in obiter, the learned Motions Judge found that the Adjudicator had reached the right conclusion. As I am in general agreement with his finding and with his reasons which I have quoted earlier, I see little point in repeating them in different words. The test of correctness has been met.

The appeal should be dismissed with costs.

Heald J.A.: I agree.

McDonald J.A.: I agree.

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