Date: 20030507
Docket: T-857-02
Neutral citation: 2003 FCT 560
BETWEEN:
SEASPAN INTERNATIONAL LTD.
Applicant
- and -
JOHN BAUER
Respondent
A. BACKGROUND
[1] This judicial review application by the applicant, Seaspan International Ltd. ("Seaspan"), seeks to set aside the May 4, 2002 decision of Adjudicator Glenn Gary Hall (the "Adjudicator") on a preliminary point of jurisdiction in a proceeding under section 240 of the Canada Labour Code (the "Code") arising out of a complaint by John Bauer, a non unionized employee, concerning his termination of employment by Seaspan.
[2] Section 240 of the Code reads:
| 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. 240(2) Time for making complaint (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. 240(3) Extension of time (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. [emphasis mine]
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240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si_: a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur; b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective. 240(2) Délai (2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement. 240(3) Prorogation du délai (3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l'intéressé a déposé sa plainte à temps mais auprès d'un fonctionnaire qu'il croyait, à tort, habilité à la recevoir. |
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[3] Seaspan urged upon the Adjudicator he did not have jurisdiction to embark upon an adjudication of John Bauer's complaint(s) for two reasons: (1) the complaint(s) was out of time and he had no jurisdiction to extend the time for filing of a complaint under that section because only the Minister could; and (2) the June 15 document sent by Mr. Bauer and received that same day by Art Ramos, Acting Early Resolution Officer, Labour Programs, Human Resources Development Canada ("HRDC") did not make a complaint of unlawful dismissal, i.e. in the terms of the Code "make a complaint ... the employee [Mr. Bauer] . . . considers the dismissal to be unjust." Seaspan says what was sent by Mr. Bauer was an inquiry about how to pursue a complaint for unlawful dismissal.
[4] The Adjudicator found that out of the three versions of the complaint sent by Mr. Bauer to Mr. Ramos, only one - the first one, the June 15, 2001 version - was made within the 90-day limit provided for in the Code. Since he did not have jurisdiction to extend time, he ruled that "neither of these documents [the June 19 version and the June 25 version] can be used to give me jurisdiction to hear a complaint of unjust dismissal against Seaspan."
[5] Of the June 15, 2001 document, he stated "[it] can be the foundation for my jurisdiction to hear and determine a complaint of unjust dismissal if I am satisfied it complains of unjust dismissal." [emphasis mine]
[6] Seaspan does not seek judicial review of the Adjudicator's determination the June 15, 2001 complaint was made within the 90 days. What Seaspan challenges, and is the sole question before me, is whether he was correct in making his second determination that the June 15 complaint made a complaint of unjust dismissal.
[7] Mr. Bauer testified before the Adjudicator but unfortunately there is no transcript of that proceeding. The Adjudicator's notes were, however, available.
B. THE ADJUDICATOR'S RULING AND CONTEXT
[8] The Adjudicator opened his consideration of this question by the following, at page 5 of his decision:
The June 15 Complaint [Form] at section D seeks details of the Complaint. Mr. Bauer has printed the following description:
" - Termination Pay; Severance pay; Holiday pay never rec'd.
- I also would like to pursue the fact that my termination of employment may fall into an "unjust dismissal" category of the Labour Standards Code."
Mr. Hunter argues this description does not found a claim for unjust dismissal because: (a) the June 15 Complaint is not in the particular format (properly evidenced by the June 25 Complaint form) of required words used to found an unjust dismissal complaint; and (b) the June 15 Complaint uses the word "may" and as a consequence is only expressive of a possible intention to complain and is not an actual complaint. [emphasis mine]
[9] The Adjudicator noted neither the Code nor the Regulations prescribe the form or the content of a complaint. Contrasting other sections of the Code and the Governor-in-Council's regulation-making power as to forms, he stated "[U]nder Part III of the Code the legislature was seeking a more expedited and informal process to resolve complaints. As a consequence there is no particular format for a complaint, nor even requirements as to content, and the June 25 Complaint document is not an iron clad precedent for making a claim for unjust dismissal." [emphasis mine]
[10] For completeness, I add the June 25, 2001 form was sent to Mr. Bauer by fax that day by Joan Wood with HRDC who had been assigned on or about June 18, 2001, to investigate his complaint. Her comment on the fax cover sheet reads:
Enclosed is the unjust dismissal complaint form to be completed and returned at your earliest convenience. Also, information regarding Alternate Dispute Resolution Mediation. Please return by regular mail the original signed Unjust Dismissal complaint form and the response form for Alternate Dispute Resolution.
[11] On the June 25, 2001 complaint form are printed or typed under Section D: "Details of Your Complaint" the following words:
I feel that I was unjustly dismissed from my position. Therefore I wish to register an unjust dismissal complaint as provided under Division XIV of the Canada Labour Code, Part III, Labour Standards.
[12] The Adjudicator ruled on Seaspan's objection in the following terms at page 6 of his decision:
So we come to the last principled objection as raised by Seaspan and that is that when Mr. Bauer used the word "may" in the June 15 Complaint he was not actually complaining of being unjustly dismissed. He was only musing about a possibility, perhaps at best evidencing an intention to make a future complaint of unjust dismissal. And of course, after June 18, 2001 he was out of time to make that future complaint. I cannot agree with this submission. At the March hearing Mr. Bauer gave evidence that he wanted to file for unjust dismissal and that he filled out the June 15 Complaint form with that in mind. He stated that Mr. Ramos sent him only one form to fill out and he thought he was making a complaint of unjust dismissal. His wording on the form is "I also would like to pursue the fact that my termination of employment may fall into an 'unjust dismissal' category...". I have no hesitation in concluding that the wording in the June 15 Complaint form is a complaint of unjust dismissal. [emphasis mine]
C. ANALYSIS
(a) The position of the parties
i) Seaspan
[13] Counsel for Seaspan argues the question whether Mr. Bauer's complaint is a complaint of unjust dismissal is a jurisdictional question and the standard of review is correctness - the Adjudicator must be right.
[14] Counsel for Seaspan argues the Adjudicator got it wrong in two ways.
[15] First, he did not consider the totality of the evidence before him in that he ignored a vital piece of evidence which was the covering letter Mr. Bauer sent to Mr. Ramos enclosing the June 15 complaint. It reads in part:
In addition I would like to discuss with you more, the possibility of an "Unjust dismissal" situation as I felt at the time that there were many persons with much less continuous service occupying the same position description and in addition have been made aware of the fact that a new employee has recently been hired in the same department and position as occupied by me. [emphasis mine]
[16] Second, he argues intention to make a complaint of unjust dismissal is not sufficient - the Act requires he actually make a complaint of unlawful dismissal. He points the Federal Court of Appeal's decision in Fréchette v. Canada (Minister of Labour), [1984] F.C.J. No. 533, where Justice Pratte wrote: "It is true that before that deadline expired, Mr. Fréchette verbally indicated his intent to file a complaint, but this is not relevant since the complaint which must be filed within thirty days under s. 61.5 [now section 240 of the Code] is a written complaint".
ii) Mr. Bauer
[17] Counsel for Mr. Bauer did not disagree with Seaspan's counsel the standard of review of the Adjudicator's ruling is correctness because the question involved is a jurisdictional one but he tempered that statement with a plea for deference to the Adjudicator's findings of fact which underpinned his preliminary determination.
[18] Counsel for Mr. Bauer denies the complaint he made when sending it to HRDC on June 15, 2001, was only an intention to complain about his unjust dismissal. He argued Mr. Bauer wanted to complain about having been unjustly dismissed, did complain and said he had been unjustly dismissed. In his June 15, 2001 complaint form, Mr. Bauer wrote "he would like to pursue the fact that his termination may fall in the unjust dismissal category". In his covering letter enclosing that complaint, Mr. Bauer mentioned unjust dismissal, the fact that people junior to him were not terminated and a person had been newly hired to take over his job.
[19] He argued Mr. Bauer explained in evidence before the Adjudicator and in his affidavit before this Court why he used the particular words he did in the June 15 complaint form and in his covering letter. His explanation was that he knew his complaint would be investigated, it was up to the investigator to decide whether he had a case of unjust dismissal and he wanted to discuss more with the investigator so as to convince him he had been unjustly terminated.
[20] He argues Seaspan's argument ignores the fact that neither the Code nor the Regulations made under the Code prescribe the form to be used when making a complaint of unjust dismissal. Seaspan's argument ignores the intent of section 240 which is not to require a complainant to use the most precise written English words which then can be examined under a microscope.
(b) The standard of review
[21] It is settled law by the Federal Court of Appeal an Adjudicator mandated to enquire under section 240 of the Code must consider whether the conditions precedent to a validly filed complaint have been met. A validly filed complaint is a condition precedent to the jurisdiction of such an Adjudicator and his decision must be reviewed on a standard of correctness. Three cases are on point: Beothuk Data Systems Ltd. et al. v. Dean, [1998] 1 F.C. 433 (F.C.A.); Byers Transport Ltd. v. Kosanovich (1995), 126 D.L.R. (4th) 679, leave to appeal to the Supreme Court of Canada dismissed and Canada Post Corp. v. Pollard, [1994] 1 F.C. 652 (F.C.A.).
[22] However, as discussed in Byers Transport Ltd., supra, Justice Strayer referring to his decision as a member of the Trial Division in Sedpex, Inc. v. Canada (Adjudicator appointed under the Canada Labour Code), [1989] 2 F.C. 289, states there are two elements or components to a jurisdictional decision by an Adjudicator under section 240 of the Code: a legal one involving the interpretation of the section where deference is uncalled for and correctness as to the findings of jurisdictional facts where those findings must be based on substantial evidence calling for a degree of deference to those findings.
c) Conclusions
[23] Counsel for Seaspan pointed to the Federal Court of Appeal's decision in Fréchette, supra, to support his argument that what Mr. Bauer had done here was simply to express an intention to file a complaint of unjust dismissal. Fréchette, supra, is of no assistance to Seaspan in this respect. In Fréchette, supra, Mr. Fréchette had only expressed his intent to file a complaint within the time limit prescribed by the Code. He had not actually filed a written complaint within that time as required.
[24] Here, the facts are different. Mr. Bauer has, in fact, filed a complaint within the ninety-day time limit. The question to be resolved is whether that complaint is one of unjust dismissal, i.e. as expressed by the statute, one that reflects his consideration that his termination is unjust.
[25] In arriving at his decision, the Adjudicator reviewed the words Mr. Bauer wrote in his June 15 complaint form and considered his explanation why he expressed himself that way. He concluded the wording he used in the complaint form was a complaint of unjust dismissal. In my view, he was correct in reaching such a conclusion.
[26] I cannot agree with the submission by Seaspan's counsel the Adjudicator overlooked the words Mr. Bauer wrote on the fax cover-sheet when he transmitted his June 15, 2001 complaint to Mr. Ramos at HRDC.
[27] In my view, the meaning of the words in the fax cover-sheet, when read in their entirety, against the background fact that no form is prescribed and gauged against the purpose of the provision which is "to provide non-unionized workers with an avenue of redress in cases of unjust dismissal", (see paragraph 34 in Beothuk, supra,) convey the same thought Mr. Bauer expresses in the complaint form itself: he considers himself to have been unjustly dismissed, seeks to pursue that complaint and wants to persuade the investigator by giving him facts his complaint is valid. There was substantial evidence upon which the Adjudicator could draw this conclusion.
[28] For these reasons, this judicial review application must be dismissed. Mr. Bauer's counsel asked for solicitor-client costs. There is nothing in the record which could justify the award of such costs to Seaspan.
[29] As a result, I would fix costs payable by Seaspan by May 23, 2003, at $2,500.00.
"François Lemieux"
J U D G E
OTTAWA, ONTARIO
MAY 7, 2003
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-857-02
STYLE OF CAUSE: Seaspan International Ltd. v. John Bauer
PLACE OF HEARING: Vancouver, British Columbia
DATE OF HEARING: February 20, 2003
REASONS FOR Order : Lemieux, J..
DATED: May 7, 2003
APPEARANCES:
Mr. Michael Hunter FOR APPLICANT
Mr. Michael Blaxland FOR RESPONDENT
SOLICITORS OF RECORD:
Fasken Martineau DuMoulin LLP FOR APPLICANT
Vancouver, British Columbia
Forrest Gray Lewis & Blaxland FOR RESPONDENT
North Vancouver, British Columbia