Unjust Dismissal Under Canada Labour Code

Standard of Correctness

The standard of correctness, however, provides that there is only one correct answer. 1

This standard may apply where one of the following submissions are made: 2

  1. There is an issue relating to the constitutional division of powers;
  2. There is a true question of “vires”;
  3. There are issues of competing jurisdictions between tribunals;
  4. There has been raised an issue of central importance to the legal system and one outside the expertise of the decision maker;
  5. There is shown a clear legislative intent to apply the standard of correctness.

Decisions which are jurisdictional in nature have been held to this standard. 3 Canada Post Corp. v. Pollard 1994 FCA [/efn_note] An example of this was found in a 2010 Federal Court decision dealing with overlapping jurisdictions of the Code and Human Rights Act. This was seen as a good example of applying the correctness standard as it considered “jurisdictional lines between two….competing tribunals”. 4

This being said, findings of fact which may form the basis of the jurisdictional argument, are yet reviewed on the standard of reasonableness. The legal and jurisdictional analysis may be separated, and if so, findings of fact will be given deference. 5 In this case, the adjudicator found that the same issues were presented in the unjust dismissal case and the human rights process, a finding that was supported by the reasonableness standard.

A similar example is the analysis conducted as to whether the complainant meets the test of employee. This is also reviewed based on the standard of correctness.

However, the manner in which the principles of the analysis are reviewed, is a question of mixed fact and law to which the standard of reasonableness applies. 6

A finding relevant to the issue of 12 consecutive months, in law, goes to jurisdiction which is then reviewable on the standard of correctness. 7

Similarly, a review based on the issue of jurisdiction due to the alleged discontinuance of a job function is also based on the standard of correctness. 8

Arguments for Correctness

In a review which challenged the right of the employee to proceed to adjudication in the face of a settlement agreement and release, the employer Bank of Montreal made several arguments to avoid the standard of reasonableness attaching to the decision under review.

The first argument was that the issue is of central importance to the system of justice and was outside the expertise of the decision maker.

Secondly the issue confronting the adjudicator was one of jurisdiction.

The third reason was the existence of significant conflicting decisions within the labour adjudicators on this issue.

Argument 1 Central Importance to System of Justice

It is true that the presumption of reasonableness may be displaced where a general question of law which is “both of central importance to the legal system as a whole and outside the adjudicator’s specialized area of expertise” may fall into this category. 9 The expertise of the decision maker is no longer a factor in the determination of the correct standard of review. 10

This submission failed in the Federal Court of Appeal. This court determined that the question was not one of fundamental importance “with significant legal consequences for the justice system as a whole or for other institutions of government”. 11 This issue lacked a constitutional dimension, and did not have legal implications for a wide variety of statutes. Framing an issue in a general or abstract sense would not make this issue one of central importance to the legal system as a whole.

Argument 2 Jurisdictional Question

This issue was not a true question of jurisdiction. Even were this so, it would still not lead to a reversal of the standard of correctness. The Federal Court of Appeal noted that even though Dunsmuir recognized a “narrow category of true jurisdiction questions” led to a correctness standard no such categories were set out. 12 Further, the Supreme Court of Canada concluded that this issue of jurisdiction would be considered on a test of reasonableness.  13

Argument 3  Conflicting adjudicator jurisprudence

This argument also failed. The Supreme Court concluded that the “more robust form of reasonableness review, combined with internal administrative processes, are sufficient to ensure legal coherence and to guard against threats to the rule of law. 14

Procedural Fairness

On this question of procedural fairness, no deference is owed. This is an issue for the reviewing court to determine.   15 The test is one of correctness. Essentially the court is asked to determine if the adjudicator’s manner of proceeding was fair. 16

When considering a challenge based on procedural fairness, the court must isolate any act or omission relevant to this issue. The procedural fairness question is then reviewed as a matter of law. The decision maker will be found to have complied with the duty of fairness relevant to the particular context or will have been seen to be in violation of this duty. This is based on the standard of correctness. 17

Adequacy of the Reasons

At paragraph 94 of Vavilov, the Supreme Court provided some guidance as to how Courts should approach the adequacy of a tribunal’s reasons:

The reviewing court must also read the decision maker’s reasons in light of the history and context of the proceedings in which they were rendered. For example, the reviewing court might consider the evidence before the decision maker, the submissions of the parties, publicly available policies or guidelines that informed the decision maker’s work, and past decisions of the relevant administrative body. This may explain an aspect of the decision maker’s reasoning process that is not apparent from the reasons themselves, or may reveal that an apparent shortcoming in the reasons is not, in fact, a failure of justification, intelligibility or transparency. Opposing parties may have made concessions that had obviated the need for the decision maker to adjudicate on a particular issue; the decision maker may have followed a well-established line of administrative case law that no party had challenged during the proceedings; or an individual decision maker may have adopted an interpretation set out in a public interpretive policy of the administrative body of which he or she is a member.

 Although not an unjust dismissal case, the Federal Court noted that the failure of the decision maker, in this case, the Assistant Deputy Minister, to state in the decision why she concluded the alternate remedy process in Part XX provided an effective and meaningful alternate administrative procedure. The court concluded that the Dunsmuir criteria were not met and the decision was not reasonable. 18

The Supreme Court of Canada also addressed the issue of adequacy of reasons in Newfoundland Nurses. The reasons given, this Court concluded, should allow the reviewing court to determine why the tribunal made its decision and to allow this court to determine whether the decision is within the range of reasonableness. The decision maker need not address each constituent element of the case or submissions made, in so doing. 19