SUPREME COURT OF CANADA

Appeal heard: January 19, 2016 Judgment rendered: July 14, 2016 Docket: 36354

Between:

Joseph Wilson

Appellant

and

Atomic Energy of Canada Limited

Respondent

and –

Canadian Labour Congress, Canadian Association for Non-Organized Employees, Federally Regulated Employers — Transportation and Communications and Canadian Association of Counsel to Employers

Interveners

Coram: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

Reasons for judgment: (paras. 1 to 69)

Abella J.

Joint concurring reasons: (para. 70)

McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.

Concurring reasons: (paras. 71 to 73)

Cromwell J.

Joint dissenting reasons: (paras. 74 to 149)

Côté and Brown JJ. (Moldaver J. concurring)

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770

Joseph Wilson Appellant

Atomic Energy of Canada Limited Respondent

and

Canadian Labour Congress,

Canadian Association for Non‑Organized Employees,

Federally Regulated Employers — Transportation and

Communications and Canadian Association

of Counsel to Employers Interveners

Indexed as: Wilson v. Atomic Energy of Canada Ltd.

2016 SCC 29

File No.: 36354.

2016: January 19; 2016: July 14.

Present: McLachlin C.J. and Abella, Cromwell, Moldaver, Karakatsanis, Wagner, Gascon, Côté and Brown JJ.

on appeal from the federal court of appeal

Employment law ― Unjust dismissal ― Dismissal without cause ― Non‑unionized employees ― Employer terminating non‑unionized employee on a without‑cause basis with severance package ― Employee filing unjust dismissal complaint under Canada Labour Code ― Whether non‑unionized employees can be lawfully dismissed without cause under Code ― Canada Labour Code, R.S.C. 1985, c. L‑2, s. 240 .

Administrative law — Judicial review — Standard of review — Employer terminating non‑unionized employee on a without‑cause basis with severance package ― Employee filing unjust dismissal complaint under Canada Labour Code ― Adjudicator allowing employee’s complaint ― Whether decision of Adjudicator reasonable ― Streamlining standard of review framework — Canada Labour Code, R.S.C. 1985, c. L‑2, s. 240 .

W worked as an Administrator for his employer for four and a half years until his dismissal in November 2009. He had a clean disciplinary record. He filed an “Unjust Dismissal” complaint , claiming that his dismissal was in reprisal for having filed a complaint of improper procurement practices on the part of his employer. In response to a request from an inspector for the reasons for W’s dismissal, the employer said he was “terminated on a non‑cause basis and was provided a generous dismissal package”. A labour adjudicator was appointed to hear the complaint. The employer sought a preliminary ruling on whether a dismissal without cause together with a sizeable severance package meant that the dismissal was a just one. The Adjudicator concluded that an employer could not resort to severance payments, however generous, to avoid a determination under the Code about whether the dismissal was unjust. Because the employer did not rely on any cause to fire him, W’s complaint was allowed. The Application Judge found this decision to be unreasonable because, in his view, nothing in Part III of the Code precluded employers from dismissing non‑unionized employees on a without‑cause basis. The Federal Court of Appeal agreed, but reviewed the issue on a standard of correctness.

Held (Moldaver, Côté and Brown JJ. dissenting): The appeal should be allowed and the decision of the Adjudicator restored.

Per Abella J.: At common law, a non‑unionized employee could be dismissed without reasons if he or she was given reasonable notice or pay in lieu. In 1978, Parliament added a series of provisions to Part III of the Canada Labour Code under the heading “ Unjust Dismissal”, now found at ss. 240 to 246. This Unjust Dismissal scheme consists of expansive protections like those available to employees covered by a collective agreement and applies to non‑unionized employees who have completed 12 consecutive months of continuous employment. A dismissed employee or an inspector can ask the employer for a written statement setting out the reasons for the dismissal. The employer must then provide the statement within 15 days. If an adjudicator determines that the dismissal was unjust, he or she has broad authority to grant an appropriate remedy, including requiring the employer to pay the person compensation or reinstate the person. No complaint can be considered by an adjudicator if the employee was laid off because of lack of work or the discontinuance of a function.

Before this Court, as they had in the prior judicial proceedings, the parties accepted that the standard of review was reasonableness. The decisions of labour adjudicators or arbitrators interpreting statutes or agreements within their expertise attract a reasonableness standard. Applying that standard, the A djudicator’s decision was reasonable and consistent with the approach overwhelmingly applied to these Unjust Dismissal provisions since they were enacted in 1978. The fact that a handful of adjudicators have taken a different approach to the interpretation of the Code does not justify deviating from a reasonableness standard. The Federal Court of Appeal’s position that even if a reasonableness review applied, the Adjudicator should be afforded “only a narrow margin of appreciation” because the statutory interpretation in this case “involves relatively little specialized labour insight”, is improper. The reasonableness standard must be applied in the specific context under review, but to attempt to calibrate reasonableness by applying a potentially indeterminate number of varying degrees of deference within it, unduly complicates an area of law in need of greater simplicity.

Some general comments on the need for greater simplicity may be worth airing. This obiter on streamlining the standard of review represents an attempt to start a conversation which will ultimately benefit in future cases from submissions from counsel. Collapsing the three standards of review into two has not proven to be the runway to simplicity the Court had hoped it would be in Dunsmuir . The terminological battles over which of the three standards of review should apply, have been replaced by those over the application of the remaining two. That leaves the merits waiting in the wings for their chance to be seen and reviewed. This complicated entry into judicial review is hard to justify, and directs us institutionally to think about whether there is a principled way to simplify the path to reviewing the merits. The goal is to build on the theories developed in Dunsmuir and apply them in a way that eliminates the need to sort cases into artificial categories.

The explanation in Dunsmuir for changing the framework then, remains a valid explanation for why it should be changed now. Most of the confusion in the jurisprudence has been over what to call the category of review in a particular case, reasonableness or correctness. The question is whether there is a way to move forward that respects the underlying principles of judicial review which were explained in Dunsmuir , while redesigning their implementation in a way that makes them easier to apply.

The most obvious and frequently proposed reform of the current system is a single reviewing standard of reasonableness. Nothing Dunsmuir says about the rule of law suggests that constitutional compliance dictates how many standards of review are required. The only requirement, in fact, is that there be judicial review in order to ensure, in particular, that decision‑makers do not exercise authority they do not have. There is nothing in its elaboration of rule of law principles that precludes the adoption of a single standard of review, so long as it accommodates the ability to continue to protect both deference and the possibility of a single answer where the rule of law demands it, as in the four categories singled out for correctness review in Dunsmuir.

A single standard of reasonableness still invites the approach outlined in Dunsmuir , namely, that it is concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. Approaching the analysis from the perspective of whether the outcome falls within a range of defensible outcomes has the advantage of being able to embrace comfortably the animating principles of both former categories of judicial review. Courts can apply a wider range for those kinds of issues and decision‑makers traditionally given a measure of deference, and a narrow one of only one “defensible” outcome for those which formerly attracted a correctness review. Most decisions will continue to attract deference, as they did in Dunsmuir .

Even if there proves to be little appetite for collapsing the two remaining standards of review, it would still be beneficial if the template developed in Dunsmuir were adhered to, including by applying the residual “correctness” standard only in those four circumstances Dunsmuir articulated.

Returning to this case, the issue is whether the A djudicator’s interpretation of ss. 240 to 246 of the Code was reasonable. The text, the context, the statements of the Minister of Labour when the legislation was introduced, and the views of the overwhelming majority of arbitrators and labour law scholars, confirm that the entire purpose of the statutory scheme was to ensure that non‑unionized federal employees would be entitled to protection from being dismissed without cause under Part III of the Code . The alternative approach of severance pay in lieu falls outside the range of “possible, acceptable outcomes which are defensible in respect of the facts and law” because it completely undermines this purpose by permitting employers, at their option, to deprive employees of the full remedial package Parliament created for them. The rights of employees should be based on what Parliament intended, not on the idiosyncratic view of the individual employer or adjudicator . The Adjudicator’s decision was, therefore, reasonable.

When the provisions were introduced, the Minister referred to the right of employees to fundamental protection from arbitrary dismissal and to the fact that such protection was already a part of all collective agreements. These statements make it difficult to draw any inference other than that Parliament intended to expand the dismissal rights of non‑unionized federal employees in a way that, if not identically, at least analogously matched those held by unionized employees. This is how the new provisions have been interpreted by labour law scholars and almost all the adjudicators appointed to apply them, namely, that the purpose of the 1978 provisions in ss. 240 to 246 was to offer a statutory alternative to the common law of dismissals and to conceptually align the protections from unjust dismissals for non‑unionized federal employees with those available to unionized employees. The new Code regime was also a cost‑effective alternative to the civil court system for dismissed employees to obtain meaningful remedies which are far more expansive than those available at common law.

The most significant arbitral tutor for the new provisions came from the way the jurisprudence defined “Unjust Dismissal”. In the collective bargaining context, “unjust dismissal” has a specific and well understood meaning: that employees covered by collective agreements are protected from unjust dismissals and can only be dismissed for “just cause”. This includes an onus on employers to give reasons showing why the dismissal is justified, and carries with it a wide remedial package including reinstatement and progressive discipline. The foundational premise of the common law scheme — that there is a right to dismiss on reasonable notice without cause or reasons — has been completely replaced under the Code by a regime requiring reasons for dismissal. In addition, the galaxy of discretionary remedies, including, most notably, reinstatement, as well as the open‑ended equitable relief available, is also utterly inconsistent with the right to dismiss without cause. If an employer can continue to dismiss without cause under the Code simply by providing adequate severance pay, there is virtually no role for the plurality of remedies available to the adjudicator under the Unjust Dismissal scheme. Out of the over 1,740 adjudications and decisions since the Unjust Dismissal scheme was enacted, only 28 decisions have not followed this consensus approach.

The remedies newly available in 1978 to non‑unionized employees reflect those generally available in the collective bargaining context. This is what Parliament intended. To infer instead that Parliament intended to maintain the common law under the Code regime, creates an anomalous legal environment in which the protections given to employees by statute — reasons, reinstatement, equitable relief — can be superseded by the common law right of employers to dismiss whomever they want for whatever reason they want so long as they give reasonable notice or pay in lieu. This somersaults the accepted understanding of the relationship between the common law and statutes, especially in dealing with employment protections, by assuming the continuity of a more restrictive common law regime notwithstanding the legislative enactment of benefit‑granting provisions to the contrary.

The argument that employment can be terminated without cause so long as minimum notice or compensation is given, on the other hand, would have the effect of rendering many of the Unjust Dismissal remedies meaningless or redundant. Only by interpreting the Unjust Dismissal scheme as representing a displacement of the employer’s ability at common law to fire an employee without reasons if reasonable notice is given, does the scheme and its remedial package make sense. That is how the 1978 provisions have been almost universally applied. It is an outcome that is anchored in parliamentary intention, statutory language, arbitral jurisprudence, and labour relations practice. To decide otherwise would fundamentally undermine Parliament’s remedial purpose.

Per McLachlin C.J. and Karakatsanis, Wagner and Gascon JJ.: The standard of review in this case is reasonableness and the Adjudicator’s decision was reasonable and should be restored. Justice Abella’s disposition of the appeal on the merits and her analysis of the two conflicting interpretations of the Unjust Dismissal provisions of the Code are agreed with. Although her efforts to stimulate a discussion on how to clarify or simplify the standard of review jurisprudence are appreciated, it is unnecessary to endorse any particular proposal to redraw the current standard of review framework at this time.

Per Cromwell J.: The standard of review in this case is reasonableness and the Adjudicator’s decision was reasonable. The appeal should be allowed and the decision of the Adjudicator restored for the reasons given by Abella J. Reasonableness is a single standard and must be assessed in the context of the particular type of decision making involved and all relevant factors. Developing new and apparently unlimited numbers of gradations of reasonableness review ― the margins of appreciation approach created by the Federal Court of Appeal ― is not an appropriate development of the standard of review jurisprudence. However, the standard of review jurisprudence does not need yet another overhaul and the approach developed by Abella J. in obiter is disagreed with.

Per Moldaver, Côté and Brown JJ. (dissenting): This case exposes a serious concern for the rule of law posed by presumptively deferential review of a decision‑maker’s interpretation of its home statute. In the specific context of this case, correctness review is justified. To conclude otherwise would abandon rule of law values in favour of indiscriminate deference to the administrative state.

For decades, labour adjudicators across the country have come to conflicting interpretations of the unjust dismissal provisions of Part III of the Canada Labour Code . These conflicting interpretations go to the heart of the federal employment law regime, and can in theory, persist indefinitely. The simultaneous existence of these conflicting interpretations undermines the rule of law by compromising the cardinal values of certainty and predictability. This state of affairs creates the risk that the very same federally regulated employer might be subjected to conflicting legal interpretations regarding whether it can or cannot dismiss an employee without cause. The existence of lingering disagreements amongst decision‑makers also undermines the very basis for deference. Where there is lingering disagreement on a matter of statutory interpretation between administrative decision‑makers, and where it is clear that the legislature could only have intended the statute to bear one meaning, correctness review is appropriate.

While the constructive spirit in which Abella J.’s revisions to the standard of review are proposed in obiter dicta is appreciated, it is preferable to confine any statement regarding what is already the subject of a peripatetic body of jurisprudence to a judicial pronouncement.

Sections 240 to 245 of the Code create a mechanism for employees to challenge the lawfulness of their dismissal. Employees who are covered by a collective agreement have a similar procedural option to grieve the lawfulness of their dismissals. This procedure is more efficient than a civil action, since it involves less stringent evidentiary rules, an expert adjudicator who is well versed in the factual nuances of employment relationships, and a stricter timeline than a court action. It is a time‑ and cost‑effective method of resolving employment disputes that provides an alternative to judicial determination. Additional remedies are available to employees who choose to use the unjust dismissal provisions. In this way, the unjust dismissal provisions of the Code increase access to justice for federal employees who are dismissed from their employment.

But a procedural mechanism that increases access to justice does not, in and of itself, fundamentally alter the legal basis of the federally regulated employment relationship. This procedural mechanism — access to which is dependent on the discretion of the Minister — is not the exclusive means by which a federal employee may challenge the lawfulness of a dismissal. Parliament has expressly preserved the continuing jurisdiction of the civil courts to decide the lawfulness of the dismissal, though the civil courts apply the common law of wrongful dismissal rather than the unjust dismissal provisions of the Code . An employee is always entitled to challenge the lawfulness of a dismissal in the civil courts, irrespective of whether the employee first chooses to resort to the unjust dismissal procedure in the Code , though subject to the doctrine of issue estoppel. The unjust dismissal provisions are therefore simply a procedural option for federal employees.

The common law continues to define the federal employment relationship and federally regulated employers are entitled to dismiss employees without cause, but with payment of the appropriate notice and severance pay as prescribed by ss. 230 and 235 of the Code , the contract of employment, or the common law (whichever is greater). Adjudicators and courts possess concurrent jurisdiction to determine the adequacy of the notice and severance pay and to order any other remedies that may be warranted in the circumstances. The mere provision of a notice and a severance payment does not allow an employer to escape the scrutiny of an adjudicator any more than it would allow the employer to escape the scrutiny of a court.

Permitting federally regulated employers to dismiss their employees without cause would not have the effect of rendering many of the unjust dismissal remedies meaningless or redundant. The remedy of reinstatement is consistent with a “without cause” regime. It is available in almost every provincial employment law regime irrespective of whether that regime permits an employer to dismiss an employee without cause. Under the Code , adjudicators currently order reinstatement based on their expert assessment of whether the employer and employee will be able to continue working together in a healthy and productive employment relationship in the future. If the adjudicator has reason to believe that the employer will simply dismiss the employee again, he or she will not order reinstatement. There is no reason to suppose that this practice would change were the continuing right of federally regulated employers to dismiss their employees without cause to be affirmed, as long as the appropriate notice and severance pay is provided.

A dismissal without cause is not per se unjust, so long as adequate notice is provided. Because the Adjudicator’s interpretation of ss. 240 to 246 of the Code is inconsistent with the text, context and purpose of these provisions, it ought to be set aside and the appeal dismissed.

Cases Cited

By Abella J.

Discussed: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ; referred to: Redlon Agencies Ltd. v. Norgren , 2005 FC 804 ; Nor‑Man Regional Health Authority Inc. v. Manitoba Association of Health Care Professionals , 2011 SCC 59 , [2011] 3 S.C.R. 616 ; Yue v. Bank of Montreal , 2016 FCA 107 , 483 N.R. 375 ; Toronto (City) v. C.U.P.E., Local 79 , 2003 SCC 63 , [2003] 3 S.C.R. 77 ; Smith v. Alliance Pipeline Ltd. , 2011 SCC 7 , [2011] 1 S.C.R. 160 ; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. , 2013 SCC 34 , [2013] 2 S.C.R. 458 ; Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 ; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ; British Columbia (Workers’ Compensation Board) v. Figliola , 2011 SCC 52 , [2011] 3 S.C.R. 422 ; Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 ; Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) , 2012 SCC 37 , [2012] 2 S.C.R. 345 ; Halifax (Regional Municipality) v. Canada (Public Works and Government Services) , 2012 SCC 29 , [2012] 2 S.C.R. 108 ; Agraira v. Canada (Public Safety and Emergency Preparedness) , 2013 SCC 36 , [2013] 2 S.C.R. 559 ; M.M. v. United States of America , 2015 SCC 62 , [2015] 3 S.C.R. 973 ; Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 S.C.R. 909 ; Tervita Corp. v. Canada (Commissioner of Competition) , 2015 SCC 3 , [2015] 1 S.C.R. 161 ; Ontario (Energy Board) v. Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3 S.C.R. 147 ; Wolf Lake First Nation v. Young (1997), 1997 5057 (FC) , 130 F.T.R. 115 ; Roberts v. Bank of Nova Scotia (1979), 1979 4019 (CA LA) , 1 L.A.C. (3d) 259 ; Knopp v. Westcan Bulk Transport Ltd. , [1994] C.L.A.D. No. 172 (QL) ; Sharma v. Maple Star Transport Ltd. , 2015 43356 ; G & R Contracting Ltd. and Sandhu, Re , 2015 CarswellNat 7465 (WL Can.) ; Pare v. Corus Entertainment Inc. , [2015] C.L.A.D. No. 103 (QL) ; Madill v. Spruce Hollow Heavy Haul Ltd. , [2015] C.L.A.D. No. 114 (QL) ; Swanson and Qualicum First Nation, Re (2015), 26 C.C.E.L. (4th) 139 ; O’Brien v. Mushuau Innu First Nation , 2015 20942 ; Newman v. Northern Thunderbird Air Inc. , [2014] C.L.A.D. No. 248 (QL) ; Taypotat v. Muscowpetung First Nation , [2014] C.L.A.D. No. 53 (QL) ; Payne and Bank of Montreal, Re (2014), 16 C.C.E.L. (4th) 114 ; Sharma and Beacon Transit Lines Inc., Re , 2013 CarswellNat 4148 (WL Can.) ; Syndicat de la fonction publique du Québec v. Quebec (Attorney General) , 2010 SCC 28 , [2010] 2 S.C.R. 61 ; Machtinger v. HOJ Industries Ltd ., 1992 102 (SCC) , [1992] 1 S.C.R. 986 ; Rizzo & Rizzo Shoes Ltd. (Re) , 1998 837 (SCC) , [1998] 1 S.C.R. 27 .

By Cromwell J.

Referred to: Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ; Catalyst Paper Corp. v. North Cowichan (District) , 2012 SCC 2 , [2012] 1 S.C.R. 5 ; Communications, Energy and Paperworkers Union of Canada, Local 30 v. Irving Pulp & Paper, Ltd. , 2013 SCC 34 , [2013] 2 S.C.R. 458 .

By Côté and Brown JJ. (dissenting)

Monsanto Canada Inc. v. Ontario (Superintendent of Financial Services) , 2004 SCC 54 , [2004] 3 S.C.R. 152 ; Celgene Corp. v. Canada (Attorney General) , 2011 SCC 1 , [2011] 1 S.C.R. 3 ; Dunsmuir v. New Brunswick , 2008 SCC 9 , [2008] 1 S.C.R. 190 ; Altus Group Ltd. v. Calgary (City) , 2015 ABCA 86 , 599 A.R. 223 ; Abdoulrab v. Ontario Labour Relations Board , 2009 ONCA 491 , 95 O.R. (3d) 641 ; Taub v. Investment Dealers Assn. of Canada , 2009 ONCA 628 , 98 O.R. (3d) 169 ; Pierre v. Roseau River Tribal Council , 1993 2974 (FC) , [1993] 3 F.C. 756 ; British Columbia (Attorney General) v. Christie , 2007 SCC 21 , [2007] 1 S.C.R. 873 ; Reference re Secession of Quebec , 1998 793 (SCC) , [1998] 2 S.C.R. 217 ; Reference re Manitoba Language Rights , 1985 33 (SCC) , [1985] 1 S.C.R. 721 ; Canada (Citizenship and Immigration) v. Khosa , 2009 SCC 12 , [2009] 1 S.C.R. 339 ; Champagne v. Atomic Energy of Canada Ltd. , 2012 97650 ; British Columbia Telephone Co. v. Shaw Cable Systems (B.C.) Ltd. , 1995 101 (SCC) , [1995] 2 S.C.R. 739 ; Sharma v. Maple Star Transport Ltd. , 2015 43356 ; G & R Contracting Ltd. and Sandhu, Re , 2015 CarswellNat 7465 (WL Can.) ; Pare v. Corus Entertainment Inc. , [2015] C.L.A.D. No. 103 (QL) ; Madill v. Spruce Hollow Heavy Haul Ltd. , [2015] C.L.A.D. No. 114 (QL) ; Swanson and Qualicum First Nation, Re (2015), 26 C.C.E.L. (4th) 139 ; O’Brien v. Mushuau Innu First Nation , 2015 20942 ; Newman v. Northern Thunderbird Air Inc. , [2014] C.L.A.D. No. 248 (QL) ; Taypotat v. Muscowpetung First Nation , [2014] C.L.A.D. No. 53 (QL) ; Payne and Bank of Montreal, Re (2014), 16 C.C.E.L. (4th) 114 ; Sharma and Beacon Transit Lines Inc., Re , 2013 CarswellNat 4148 (WL Can.) ; Klein v. Royal Canadian Mint , 2013 CLLC ¶210‑013; Paul v. National Centre for First Nations Governance , 2012 85154 ; Palmer v. Dempsey Laird Trucking Ltd. , 2012 CarswellNat 1620 (WL Can.) ; Gouchey v. Sturgeon Lake Cree Nation , 2011 CarswellNat 3430 (WL Can.) ; Stark v. Tl’azt’en Nation , 2011 CarswellNat 3074 (WL Can.) ; Dominic v. Tl’azt’en Nation , 2011 CarswellNat 3085 (WL Can.) ; McCloud v. Samson Cree Nation , [2011] C.L.A.D. No. 119 (QL) ; Prosper v. PPADC Management Co. , [2010] C.L.A.D. No. 430 (QL) ; Perley v. Maliseet First Nation at Tobique , 2010 CarswellNat 4618 (WL Can.) ; Daniels v. Whitecap Dakota First Nation , [2008] C.L.A.D. No. 135 (QL) ; Armsworthy v. L.H. & Co. , [2005] C.L.A.D. No. 161 (QL) ; Indian Resource Council of Canada and Whitecap (Re) , 2003 CarswellNat 7342 (WL Can.) ; Cooper v. Exalta Transport Services Ltd. , [2002] C.L.A.D. No. 612 (QL) ; Chalifoux v. Driftpile First Nation , [2000] C.L.A.D. No. 368 (QL) ; Halkowich v. Fairford First Nation , [1998] C.L.A.D. No. 486 (QL) ; D. McCool Transport Ltd. v. Bosma , [1998] C.L.A.D. No. 315 (QL) ; Jalbert v. Westcan Bulk Transport Ltd. , [1996] C.L.A.D. No. 631 (QL) ; Knopp v. Westcan Bulk Transport Ltd. , [1994] C.L.A.D. No. 172 (QL) ; Rizzo & Rizzo Shoes Ltd. (Re) , 1998 837 (SCC) , [1998] 1 S.C.R. 27 ; CanadianOxy Chemicals Ltd. v. Canada (Attorney General) , 1999 680 (SCC) , [1999] 1 S.C.R. 743 ; Black‑Clawson International Ltd. v. Papierwerke Waldhof‑Aschaffenburg A.G. , [1975] A.C. 591 ; R. v. G. (B.) , 1999 690 (SCC) , [1999] 2 S.C.R. 475 ; Berardinelli v. Ontario Housing Corp. , 1978 42 (SCC) , [1979] 1 S.C.R. 275 ; Gendron v. Supply and Services Union of the Public Service Alliance of Canada, Local 50057 , 1990 110 (SCC) , [1990] 1 S.C.R. 1298 ; Lum v. Shaw Communications Inc. , 2004 NBCA 35 , 270 N.B.R. (2d) 141 ; Cornelson v. Alliance Pipeline Ltd. , 2014 ABQB 436 ; Nelson v. Champion Feed Services Inc. , 2010 ABQB 409 , 30 Alta. L.R. (5th) 162 ; Chandran v. National Bank of Canada , 2011 ONSC 777 , 89 C.C.E.L. (3d) 256 ; Paquette v. TeraGo Networks Inc. , 2015 ONSC 4189 , 2015 CLLC ¶210‑056; Vist v. Best Theratronics Ltd. , 2014 ONSC 2867 , 2014 CLLC ¶210‑038; Wallace v. Toronto‑Dominion Bank (1983), 1983 1907 (ON CA) , 41 O.R. (2d) 161 ; Ryder v. Carry The Kettle First Nation , 2002 SKQB 32 , 215 Sask. R. 239 ; Nardocchio v. Canadian Imperial Bank of Commerce (1979), 1979 27 (NS SC) , 41 N.S.R. (2d) 26 ; Wilson v. Sliammon First Nation , 2002 BCSC 190 ; Chadee v. Norway House First Nation (1996), 1996 7297 (MB CA) , 113 Man. R. (2d) 110 ; Spilberg v. Total Transportation Solutions Inc. , [2014] O.J. No. 2903 (QL) ; Lazarus v. Information Communication Services (ICS) Inc. , [2015] O.J. No. 5304 (QL) ; Jackson v. Gitxsan Treaty Society , 2005 BCSC 1112 , 43 C.C.E.L. (3d) 179 ; Beatty v. Best Theratronics Ltd. , 2014 ONSC 3376 , 18 C.C.E.L. (4th) 64 ; Schimanski v. B & D Walter Trucking Ltd. , 2014 ABPC 288 ; Logan v. Progressive Air Service Ltd. , [1997] B.C.J. No. 129 (QL) ; Rodgers v. Sun Radio Ltd. (1991), 1991 4262 (NS SC) , 109 N.S.R. (2d) 415 ; Bell ExpressVu Limited Partnership v. Rex , 2002 SCC 42 , [2002] 2 S.C.R. 559 ; Pereira v. Bank of Nova Scotia (2007), 2007 27759 (ON SC) , 60 C.C.E.L. (3d) 267 ; Wyllie v. Larche Communications Inc. , 2015 ONSC 4747 ; Ng v. Bank of Montreal , 2010 ONSC 5692 , 87 C.C.E.L. (3d) 86 ; Canadian National Railway Co. v. Benson , 2004 MBQB 210 , 188 Man. R. (2d) 218 ; Vorvis v. Insurance Corporation of British Columbia , 1989 93 (SCC) , [1989] 1 S.C.R. 1085 ; Machtinger v. HOJ Industries Ltd. , 1992 102 (SCC) , [1992] 1 S.C.R. 986 ; Goodyear Tire and Rubber Co. of Canada v. T. Eaton Co. , 1956 2 (SCC) , [1956] S.C.R. 610 ; Slaight Communications Inc. v. Davidson , 1989 92 (SCC) , [1989] 1 S.C.R. 1038 ; Parry Sound (District) Social Services Administration Board v. O.P.S.E.U., Local 324 , 2003 SCC 42 , [2003] 2 S.C.R. 157 ; Lemieux Bélanger v. Commissaires d’Écoles pour la Municipalité de St‑Gervais , 1970 157 (SCC) , [1970] S.C.R. 948 ; Kelso v. The Queen , 1981 171 (SCC) , [1981] 1 S.C.R. 199 ; Ridley v. Gitxaala Nation , [2009] C.L.A.D. No. 267 (QL) ; Wallace v. United Grain Growers Ltd. , 1997 332 (SCC) , [1997] 3 S.C.R. 701 ; Poulter v. Gull Bay First Nation , 2011 CarswellNat 3466 (WL Can.) ; Morrisseau v. Tootinaowaziibeeng First Nation (2004), 39 C.C.E.L. (3d) 134 ; Parrish & Heinbecker, Ltd. and Knight, Re , 2006 CarswellNat 6950 (WL Can.) .

Statutes and Regulations Cited

Act respecting labour standards , CQLR, c. N‑1.1, ss. 82, 82.1(3) , 124 , 126 .

Act respecting labour standards , S.Q. 1979, c. 45, s. 124.

Act to Amend Chapter 10 of the Acts of 1972, the Labour Standards Code , S.N.S. 1975, c. 50, s. 4.

Act to amend the Canada Labour Code , R.S.C. 1970, c. 17 (2nd Supp.), s. 16.

Act to amend the Canada Labour Code , S.C. 1977‑78, c. 27, s. 21.

Canada Labour Code , R.S.C. 1985, c. L‑2, Part III, ss. 167(3), 168, 230, 235, 240 to 246.

Civil Code of Québec , art. 2925.

Employment Standards Act , R.S.B.C. 1996, c. 113, ss. 74 to 86.2, 79 .

Employment Standards Act , R.S.P.E.I. 1988, c. E‑6.2, s. 30.

Employment Standards Act , S.N.B. 1982, c. E‑7.2, ss. 61 to 76 , 65 .

Employment Standards Act, 2000 , S.O. 2000, c. 41, s. 104.

Employment Standards Code , C.C.S.M., c. E110, s. 96.1.

Employment Standards Code , R.S.A. 2000, c. E‑9, ss. 82, 89(1) .

Labour Standards Act , R.S.N.L. 1990, c. L‑2, ss. 62, 68 to 73 , 78 .

Labour Standards Code , R.S.N.S. 1989, c. 246, ss. 6, 21 , 23 , 71 , 72 , 78 .

Limitation Act , S.B.C. 2012, c. 13, s. 6(1).

Limitation of Actions Act , C.C.S.M., c. L150, s. 2(1).

Limitation of Actions Act , R.S.N.S. 1989, c. 258, s. 2(1).

Limitation of Actions Act , R.S.N.W.T. 1988, c. L‑8, s. 2(1).

Limitation of Actions Act , R.S.N.W.T. (Nu.) 1988, c. L‑8, s. 2(1).

Limitation of Actions Act , R.S.Y. 2002, c. 139, s. 2(1).

Limitation of Actions Act , S.N.B. 2009, c. L‑8.5, s. 5(1).

Limitations Act , R.S.A. 2000, c. L‑12, s. 3(1).

Limitations Act , S.N.L. 1995, c. L‑16.1, s. 9.

Limitations Act , S.S. 2004, c. L‑16.1, s. 5.

Limitations Act, 2002 , S.O. 2002, c. 24, Sch. B, s. 4.

Public Service Labour Relations Act , R.S.N.B. 1973, c. P‑25, ss. 97(2.1) and 100.1 .

Saskatchewan Employment Act , S.S. 2013, c. S‑15.1, ss. 2‑97(1), 3‑36(1).

Statute of Limitations , R.S.P.E.I. 1988, c. S‑7, s. 2(1).

Authors Cited

Arthurs, Harry W. Fairness at Work: Federal Labour Standards for the 21st Century , final report of the Federal Labour Standards Review. Gatineau, Que.: Human Resources and Skills Development Canada, 2006.

Bingham, Tom. The Rule of Law . London: Allen Lane, 2010.

Canada. House of Commons. House of Commons Debates , vol. II, 3rd Sess., 30th Parl., December 13, 1977, p. 1831.

Canada. House of Commons. Minutes of Proceedings and Evidence of the Standing Committee on Labour, Manpower and Immigration, Respecting Bill C‑8, An Act to amend the Canada Labour Code , No. 11, 3rd Sess., 30th Parl., March 16, 1978, p. 46.

Casey, James T., ed. Remedies In Labour, Employment and Human Rights Law . Scarborough, Ont.: Carswell, 1999 (loose‑leaf updated 2016, release 1).

Christie, Innis. Employment Law in Canada , 2nd ed. Markham, Ont.: Butterworths, 1993.

Cromwell, Thomas. “Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures, Appellate Courts: Policy, Law and Practice . Winnipeg: Law Society of Manitoba, 2006.

Daly, Paul. “ Dunsmuir ’s Flaws Exposed: Recent Decisions on Standard of Review” (2012), 58 McGill L.J. 483.

Driedger, Elmer. A. Construction of Statutes , 2nd ed. Toronto: Butterworths, 1983.

England, G. “Unjust Dismissal in the Federal Jurisdiction: The First Three Years” (1982), 12 Man. L.J. 9.

Evans, John M. “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P. 101.

Harris, David. Wrongful Dismissal. Toronto: Carswell, 1989 (loose‑leaf updated 2013, release 2).

Jones, David Phillip. “The Year in Review: Recent Developments in Administrative Law”, prepared for the Canadian Bar Association’s 2015 National Administrative Law, Labour and Employment Law Conference, held in Ottawa on November 27‑28, 2015 (online: http://sagecounsel.com/wp‑content/uploads/2015/12/CBA‑Recent‑Developments‑Nov‑2015.pdf).

Levitt, Howard A. The Law of Dismissal in Canada , 3rd ed. Aurora, Ont.: Canada Law Book, 2003 (loose‑leaf updated March 2016, release 43).

Lewans, Matthew. “Deference and Reasonableness Since Dunsmuir ” (2012), 38 Queen’s L.J. 59.

Mullan, David. “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q. 1.

Munro, John. “A better deal for Canada’s unorganized workers” (1977), 77 The Labour Gazette 347.

Ruslim, Reagan. “Unjust Dismissal Under the Canada Labour Code : New Law, Old Statute” (2014), 5:2 U.W.O. J. Leg. Stud. 3 (online: http://ir.lib.uwo.ca/uwojls/vol5/iss2/3).

Simmons, C. Gordon. Meaning of Dismissal: The Meaning of Dismissals Under Division V.7 of Part III of the Canada Labour Code . Ottawa: Minister of Supply and Services, 1979.

Sossin, Lorne. “The Complexity of Coherence: Justice LeBel’s Administrative Law” (2015), 70 S.C.L.R. (2d) 145 .

Stratas, David. “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency”, February 17, 2016 (online: http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2733751).

Sullivan, Ruth. Sullivan on the Construction of Statutes , 6th ed. Markham, Ont.: LexisNexis, 2014.

Trudeau, Gilles. “Is Reinstatement a Remedy Suitable to At‑Will Employees?” (1991), 30 Indus. Rel. 302.

Wihak, Lauren J. “Wither the correctness standard of review? Dunsmuir , six years later” (2014), 27 C.J.A.L.P. 173.

APPEAL from a judgment of the Federal Court of Appeal (Stratas, Webb and Near JJ.A.), 2015 FCA 17 , [2015] 4 F.C.R. 467 , 467 N.R. 201 , 22 C.C.E.L. (4th) 234 , 2015 CLLC ¶210‑023, [2015] F.C.J. No. 44 (QL), 2015 CarswellNat 64 (WL Can.), affirming a decision of O’Reilly J., 2013 FC 733 , 435 F.T.R. 300 , 9 C.C.E.L. (4th) 208 , 2013 CLLC ¶210‑043, [2013] F.C.J. No. 825 (QL) , 2013 CarswellNat 2376 (WL Can.) . Appeal allowed, Moldaver, Côté and Brown JJ. dissenting.

James A. LeNoury , Avi Sirlin and Reagan Ruslim , for the appellant.

Ronald M. Snyder and Eugene F. Derényi , for the respondent.

Steven Barrett and Louis Century , for the intervener the Canadian Labour Congress.

Stacey Reginald Ball and Anne Marie Frauts , for the intervener the Canadian Association for Non‑Organized Employees.

Christopher D. Pigott and Christina E. Hall , for the interveners the Federally Regulated Employers — Transportation and Communications and the Canadian Association of Counsel to Employers.

The judgment was delivered by

Background

(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.

Prior Proceedings

Analysis

It is well-settled that the reasonableness standard applies to review of adjudicators’ decisions under Division XIV of Part III of the Code , generally, and to their interpretations of what sorts of employer conduct constitute an unjust dismissal: Payne v. Bank of Montreal , 2013 FCA 33 at paragraphs 32-33 , [443] N.R. 253; MacFarlane v. Day & Ross , 2014 FCA 199 at paragraph 3 , 466 N.R. 53; Donaldson v. Western Grain By-Products Storage Ltd. , 2015 FCA 62 at paragraph 33 , 469 N.R. 189. [para. 5]

It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to their interpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their own view. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and the law. [para. 48]

The recent history of judicial review in Canada has been marked by ebbs and flows of deference, confounding tests and new words for old problems, but no solutions that provide real guidance for litigants, counsel, administrative decision makers or judicial review judges. The time has arrived for a reassessment of the question.

Despite the clear, stable constitutional foundations of the system of judicial review, the operation of judicial review in Canada has been in a constant state of evolution over the years, as courts have attempted to devise approaches to judicial review that are both theoretically sound and effective in practice. Despite efforts to refine and clarify it, the present system has proven to be difficult to implement. The time has arrived to re-examine the Canadian approach to judicial review of administrative decisions and develop a principled framework that is more coherent and workable.

. . . it has become apparent that the present system must be simplified. [paras. 1 and 32-33]

As a matter of constitutional law, judicial review is intimately connected with the preservation of the rule of law. It is essentially that constitutional foundation which explains the purpose of judicial review and guides its function and operation. Judicial review seeks to address an underlying tension between the rule of law and the foundational democratic principle, which finds an expression in the initiatives of Parliament and legislatures to create various administrative bodies and endow them with broad powers. Courts, while exercising their constitutional functions of judicial review, must be sensitive not only to the need to uphold the rule of law, but also to the necessity of avoiding undue interference with the discharge of administrative functions in respect of the matters delegated to administrative bodies by Parliament and legislatures.

By virtue of the rule of law principle, all exercises of public authority must find their source in law. All decision-making powers have legal limits, derived from the enabling statute itself, the common or civil law or the Constitution. Judicial review is the means by which the courts supervise those who exercise statutory powers, to ensure that they do not overstep their legal authority. The function of judicial review is therefore to ensure the legality, the reasonableness and the fairness of the administrative process and its outcomes. [paras. 27-28]

. . . reasonableness is concerned . . . with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [para. 47]

[that] a court may be more likely to conclude that a range of reasonable interpretative choices exists, and that deference is meaningful, when the tribunal’s authority is conferred in broad terms. If, for example, a tribunal is authorized to make a decision on the basis of the public interest, a reviewing court may well decide that the tribunal has a range of choices in selecting the factors it will consider in making its decision. At this point, questions of law shade imperceptibly into questions of discretion. Reasonableness review permits the court to determine whether the factors considered by the tribunal are rationally related to the generally multiple statutory objectives. It is not the court’s role to identify the factors to be considered by the tribunal, let alone to reweigh them. [Footnote omitted; p. 110.]

It is our hope that [the amendments] will give at least to the unorganized workers some of the minimum standards which have been won by the organized workers and which are now embodied in their collective agreements. We are not alleging for one moment that they match the standards set out in collective agreements, but we provide here a minimum standard. [Emphasis added.]

( House of Commons Debates , vol. II, 3rd Sess., 30th Parl., December 13, 1977, at p. 1831)

The intent of this provision is to provide employees not represented by a union, including managers and professionals, with the right to appeal against arbitrary dismissal — protection the government believes to be a fundamental right of workers and already a part of all collective agreements.

(House of Commons, Minutes of Proceedings and Evidence of the Standing Committee on Labour, Manpower and Immigration, Respecting Bill C-8, An Act to amend the Canada Labour Code , No. 11, 3rd Sess., 30th Parl., March 16, 1978, at p. 46)

I realize that the terms “just” or “unjust” are sometimes difficult to define. However, we have a vast body of arbitral jurisprudence on dismissals in the organized sector. They contain precedents that will enable arbitrators to determine whether a firing is warranted or not. Each case has to be decided according to its circumstances, but the application of the principles of fairness and common sense have established pretty clearly what constitutes just or unjust dismissal.

(The Hon. John Munro, “A better deal for Canada’s unorganized workers” (1977), 77 The Labour Gazette 347, at p. 349)

. . . over the years the adjudication system has not only remedied many of the procedural shortcomings of civil litigation, it has significantly modified the old civil and common law doctrines governing wrongful dismissal. . . . Adjudicators, borrowing extensively from the jurisprudence developed over the years by arbitrators in unionized workplaces, have built up their own distinctive doctrines that confer on unorganized federal workers quite extensive substantive and procedural protections. . . . [T]his has coincided with, and arguably hastened, the adoption of progressive attitudes and practices in the field of workplace discipline, many of which were also advocated by human resource and industrial relations professionals as a matter of best practice. [p. 178]

(See also Gilles Trudeau, “Is Reinstatement a Remedy Suitable to At-Will Employees?” (1991), 30 Indus. Rel. 302, at pp. 312-13.)

At common . . . law, employers who wish to reconfigure or reduce their workforce for business reasons are obliged to give “reasonable” notice to employees they intend to dismiss, unless the contract of employment provides otherwise. Of course, as with other protections supposedly enjoyed by workers under the general law, this one has always been difficult to enforce. Nonetheless, it remains the law today, and Part III does nothing to change it. What Part III does do is establish a different, more accessible procedure under which workers confronting discharge for business or economic reasons can claim notice and compensation without having to sue.

In effect, then, one great merit . . . is that it overcomes the main deficiencies of civil litigation. It provides effective remedies and it removes cost barriers to access to justice. It thereby translates a universally accepted principle — that no one should be dismissed without just cause — into a practical reality. Part III can therefore be understood as an exercise in the reform of civil justice. [pp. 172-73 and 177]

I am of the view that when Parliament used the notion of “unjustness” in framing [ss. 240 to 246], it had in mind the right that most organized employees have under collective agreements — the right to be dismissed only for “just cause”. I am of this view because the common law standard is simply “cause” for dismissal whereas “unjust” denotes a much more qualitative approach to dismissal cases. Indeed, in the context of modern labour relations, the term has a well understood content — a common law of the shop if you will: see Cox, “Reflections Upon Labour Arbitration”, 72 Harv. L. Rev. 1482 (1958) at p. 1492. But having said that, I do not deny that the statute is silent on a whole host of important considerations that will, in any particular case, affect the precise meaning to be given to “justness”. [pp. 264-65]

Under a collective agreement, arbitrators have adopted the concept of progressive discipline, subject to specific provisions under the collective agreement to the contrary. . . .

. . . Parliament must have had this basic concept in mind when it enacted the instant provision because it is the very essence of “justness” in any labour relations sense . . . . [M]ore fundamentally, it would be my view that on the enactment of [ss. 240 to 246] all employers subject to this new provision were accorded the powers to meet the requirements of progressive discipline. With the greatest of respect, [a] more technical and contrary interpretation . . . would simply frustrate and squander the purpose of this legislation. [Citations omitted.]

( Roberts , at pp. 265-66)

However, this does not mean that Adjudicators should import the law of the collective agreement in discipline cases unthinkingly and without modification. They should be extremely sensitive to the varying employment contexts subject to this new provision of the Code, many of which may not fit comfortably within the “industrial” discipline model. In such cases appropriate modifications can be made as required. Thus, I must ask whether the use of suspensions in the banking industry ought not to be required.

( Roberts , at p. 266)

For some guidance as to what constitutes just or unjust dismissal we can turn to nearly three decades of dismissal decisions pursuant to collective agreements. There are no hard and fast rules as each situation must be determined according to the particular circumstances of each case. However, the arbitral jurisprudence which has been developed can act as a guide to what have traditionally been regarded as sufficient or insufficient grounds for just dismissal.

(C. Gordon Simmons, Meaning of Dismissal: The Meaning of Dismissals Under Division V.7 of Part III of the Canada Labour Code (1979), at p. 1)

. . . the two types of proceedings differ most importantly in other respects.

The first relates to remedies. If successful in a civil action, an employee is entitled to damages equivalent to whatever compensation he or she would have received if the employment contract had been allowed to run its natural course — that is, for whatever period of notice would have been “reasonable.” If an employer has been unfair or high-handed in carrying out the discharge, the employee may be awarded additional damages. By contrast, if successful before an Adjudicator under Part III, an employee is entitled both to reinstatement and to compensation, not only for the duration of the notice period, but for all losses attributable to the discharge. These are potentially more extensive and expensive remedies than those a court might award . [Emphasis added; p. 177.]

The following are the reasons delivered by

The reasons of Moldaver, Côté and Brown JJ. were delivered by

I. Standard of Review

Rule of Law Concerns Justify Correctness Review in This Case

We must not forget that the parties involved in problems of this sort are often providing services of considerable importance to the public. It is the task of the legal system to provide them with clear guidance as to their legal obligations so that they can provide the services that they are required to provide in an efficacious and legal manner. When two different boards have given conflicting definitions of a body’s legal obligations, it is important that the body be afforded means of determining which obligation prevails and which it must obey. The boards themselves cannot determine this. The only body which can do it is the court. [para. 79]

II. Statutory Provisions

230 (1) Except where subsection (2) applies, an employer who terminates the employment of an employee who has completed three consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, give the employee either

(a) notice in writing, at least two weeks before a date specified in the notice, of the employer’s intention to terminate his employment on that date, or

(b) two weeks wages at his regular rate of wages for his regular hours of work, in lieu of the notice.

(2) Where an employer is bound by a collective agreement that contains a provision authorizing an employee who is bound by the collective agreement and whose position becomes redundant to displace another employee on the basis of seniority, and the position of an employee who is so authorized becomes redundant, the employer shall

(a) give at least two weeks notice in writing to the trade union that is a party to the collective agreement and to the employee that the position of the employee has become redundant and post a copy of the notice in a conspicuous place within the industrial establishment in which the employee is employed; or

(b) pay to any employee whose employment is terminated as a result of the redundancy of the position two weeks wages at his regular rate of wages.

(3) Except where otherwise prescribed by regulation, an employer shall, for the purposes of this Division, be deemed to have terminated the employment of an employee when the employer lays off that employee.

235 (1) An employer who terminates the employment of an employee who has completed twelve consecutive months of continuous employment by the employer shall, except where the termination is by way of dismissal for just cause, pay to the employee the greater of

(a) two days wages at the employee’s regular rate of wages for his regular hours of work in respect of each completed year of employment that is within the term of the employee’s continuous employment by the employer, and

(b) five days wages at the employee’s regular rate of wages for his regular hours of work.

(2) For the purposes of this Division,

(a) except where otherwise provided by regulation, an employer shall be deemed to have terminated the employment of an employee when the employer lays off that employee.

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 that complaint; and

(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial 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.

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

168 (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

III. Analysis

Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.

The modern principle requires that statutes “be read to give the words their most obvious ordinary meaning which accords with the context and purpose of the enactment in which they occur”: CanadianOxy Chemicals Ltd. v. Canada (Attorney General) , 1999 680 (SCC) , [1999] 1 S.C.R. 743 , at para. 14 ; Rizzo Shoes , at para. 41 . When a court interprets a statute, it is “seeking not what Parliament meant but the true meaning of what they said”: Black-Clawson International Ltd. v. Papierwerke Waldhof-Aschaffenburg A.G. , [1975] A.C. 591 (H.L.) , at p. 613 (per Lord Reid) . In our view, the true meaning of what Parliament said is clear: federally regulated employers can dismiss their employees without cause.

A. Problems With the Majority’s Reasoning

B. The Proper Interpretation

C. Concurrent Jurisdiction of the Civil Courts

D. Sections 230 and 235

Legislative History

It is our hope that Parts III and IV will give at least to the unorganized workers some of the minimum standards which have been won by the organized workers and which are now embodied in their collective agreements. We are not alleging for one moment that they match the standards set out in collective agreements, but we provide here a minimum standard. [Emphasis added.]

( House of Commons Debates , vol. II, 3rd Sess., 30th Parl., December 13, 1977, at p. 1831)

E. Discretion of the Minister

F. The Common Law Continues to Apply

Comparison With Other Regimes

71 (1) Where the period of employment of an employee with an employer is ten years or more, the employer shall not discharge or suspend that employee without just cause unless that employee is a person within the meaning of person as used in clause (d), (e), (f), (g), (h) or (i) of subsection (3) of Section 72 .

(2) An employee who is discharged or suspended without just cause may make a complaint to the Director in accordance with Section 21 .

(3) An employee who has made a complaint under subsection (2) and who is not satisfied with the result may make a complaint to the Board in accordance with Section 23 and such complaint shall be and shall be deemed to be a complaint within the meaning of subsection (1) of Section 23 .

Section 72 of the Nova Scotia LSC permits employers to dismiss all other employees without cause upon provision of the appropriate notice or payment of the appropriate pay in lieu of notice. The Nova Scotia LSC does not preserve concurrent jurisdiction of the courts over the lawfulness of the dismissal of employees covered by ss. 71 and 72. Instead, the Director and Board have exclusive jurisdiction to determine the lawfulness of the dismissal and order a remedy: ss. 21 , 23 and 78 . Further, an employee always has the right to complain about the lawfulness of a dismissal to the Director and the Board. Therefore unlike the Canada Labour Code , the employee’s right to have his or her claim investigated and adjudicated in Nova Scotia does not depend on the discretionary approval of the Minister: ss. 71(2) and 71(3).

G. Role of Remedies

H. Summary of the Proper Interpretation

IV. Conclusion

Appendix

Canada Labour Code , R.S.C. 1985, c. L-2

PART III

Standard Hours, Wages, Vacations and Holidays

DIVISION X

Individual Terminations of Employment

Notice or wages in lieu of notice

(a) notice in writing, at least two weeks before a date specified in the notice, of the employer’s intention to terminate his employment on that date, or

(b) two weeks wages at his regular rate of wages for his regular hours of work, in lieu of the notice.

Notice to trade union in certain circumstances

(b) pay to any employee whose employment is terminated as a result of the redundancy of the position two weeks wages at his regular rate of wages.

Where employer deemed to terminate employment

DIVISION XI

Severance Pay

Minimum rate

(b) five days wages at the employee’s regular rate of wages for his regular hours of work.

Circumstances deemed to be termination and deemed not to be termination

(2) For the purposes of this Division,

(a) except where otherwise provided by regulation, an employer shall be deemed to have terminated the employment of an employee when the employer lays off that employee.

DIVISION XIV

Unjust Dismissal

Complaint to inspector for unjust dismissal

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.

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.

Extension of time

Reasons for dismissal

Inspector to assist parties

(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.

Where complaint not settled within reasonable time

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

Reference to adjudicator

Powers of adjudicator

(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;

Decision of adjudicator

(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.

Limitation on complaints

(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.

Where unjust dismissal

(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.

Decisions not to be reviewed by court

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

No review by certiorari , etc.

(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.

Enforcement of orders

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.

Idem

(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.

Regulations

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.

Civil remedy

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

Application of section 189

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

Appeal allowed with costs throughout, Moldaver , Côté and Brown JJ. dissenting.

Solicitors for the appellant: LeNoury Law, Toronto; Avi Sirlin, Toronto; Reagan Ruslim, Toronto.

Solicitors for the respondent: Fogler, Rubinoff, Ottawa.

Solicitors for the intervener the Canadian Labour Congress: Goldblatt Partners, Toronto.

Solicitors for the intervener the Canadian Association for Non‑Organized Employees: Ball Professional Corporation, Toronto.

Solicitors for the interveners the Federally Regulated Employers — Transportation and Communications and the Canadian Association of Counsel to Employers: Fasken Martineau DuMoulin, Toronto.

[1] R.S.C. 1985, c. L-2 (see Appendix).

[2] An Act to amend the Canada Labour Code , R.S.C. 1970, c. 17 (2nd Supp.), s. 16.

[3] Currently Part III, Division X — Individual Terminations of Employment.

[4] Currently Part III, Division XI — Severance Pay.

[5] An Act to amend the Canada Labour Code , S.C. 1977-78, c. 27, s. 21.

[6] Currently Part III, Division XIV – Unjust Dismissal.

[7] AECL is a federally regulated Crown corporation.

[8] David Mullan, “Unresolved Issues on Standard of Review in Canadian Judicial Review of Administrative Action — The Top Fifteen!” (2013), 42 Adv. Q . 1, at pp. 76-81. As examples of where this occurred, Prof. Mullan cites British Columbia (Workers’ Compensation Board) v. Figliola 2011 SCC 52 , [2011] 3 S.C.R. 422 ; Canada (Canadian Human Rights Commission) v. Canada (Attorney General) , 2011 SCC 53 , [2011] 3 S.C.R. 471 ; Alberta (Education) v. Canadian Copyright Licensing Agency (Access Copyright) , 2012 SCC 37 , [2012] 2 S.C.R. 345; and Halifax (Regional Municipality) v. Canada (Public Works and Government Services) , 2012 SCC 29 , [2012] 2 S.C.R. 108. See also Lauren J. Wihak, “Wither the correctness standard of review? Dunsmuir , six years later” (2014), 27 C.J.A.L.P. 173, at pp. 174-75 and 183.

[9] See Lorne Sossin, “The Complexity of Coherence: Justice LeBel’s Administrative Law” (2015), 70 S.C.L.R. (2d) 145 ; Evans ; David Phillip Jones, Q.C., “The Year in Review: Recent Developments in Administrative Law” (paper prepared for the Canadian Bar Association’s 2015 National Administrative Law, Labour and Employment Law Conference) (online); Wihak; Matthew Lewans, “Deference and Reasonableness Since Dunsmuir ” (2012), 38 Queen’s L.J. 59; Paul Daly, “ Dunsmuir ’s Flaws Exposed: Recent Decisions on Standard of Review” (2012), 58 McGill L.J. 483; the Hon. Justice David Stratas, “The Canadian Law of Judicial Review: A Plea for Doctrinal Coherence and Consistency”, February 17, 2016 (online).

[10] See M.M. v. United States of America , 2015 SCC 62 , [2015] 3 S.C.R. 973 ; Kanthasamy v. Canada (Citizenship and Immigration) , 2015 SCC 61 , [2015] 3 S.C.R. 909 ; Tervita Corp. v. Canada (Commissioner of Competition) , 2015 SCC 3 , [2015] 1 S.C.R. 161 ; Ontario (Energy Board) v. Ontario Power Generation Inc. , 2015 SCC 44 , [2015] 3 S.C.R. 147 ; Irving Pulp & Paper, Ltd.

[11] An Act to Amend Chapter 10 of the Acts of 1972, the Labour Standards Code, S.N.S. 1975, c. 50, s. 4; An Act respecting labour standards , S.Q. 1979, c. 45, s. 124.

[12] The source the majority relies on for this number states that “[g]iven that ss. 240 to 246 of the Code have been in existence for over 35 years, and have been subject to over 1,740 adjudications and decisions before Wilson , it is hard to believe that such new and novel law can be created from an old statute”: R. Ruslim, “Unjust Dismissal Under the Canada Labour Code : New Law, Old Statute” (2014), 5:2 U.W.O. J. Leg. Stud. 3 (online), at p. 28 (footnote omitted).

[13] For a summary of the wide array of issues that are dealt with in the decisions rendered by adjudicators under ss. 240 to 245 of the Code , see Levitt, at pp. 2-1 to 2-172.

Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770

Case Summary

SUPREME COURT OF CANADA

Cited By (3 cases)

Mason v. Canada (Citizenship and Immigration), 2023 SCC 21

Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, [2019] 4 S.C.R. 653

1803275 Ontario Limited v The Corporation of the City of London, 2017 ONSC 3279