The Supreme Court of Canada recently released its decision Wilson v. Atomic Energy of Canada Ltd. 2016 SCC29. This case involved the question of whether an federally regulated employer could terminate the employment of a non-unionized employee without just cause.
In this case, the appellant Joseph Wilson worked for Atomic Energy of Canada Ltd. (“AECL”)
for 4½ years until he was dismissed in November of 2009. He had a clean
disciplinary record. Wilson filed an unjust dismissal complaint under the
Canada Labour Code (the “Code”) claiming that his dismissal was
in reprisal for having filed a complaint of improper procurement practices on
the part of AECL. AECL said Wilson was terminated on a non-cause basis
and was provided with a generous dismissal package.
A labour adjudicator was appointed to hear the
complaint. AECL sought a preliminary ruling on whether a dismissal
without cause, together with a severance package, meant that the dismissal was
just. The adjudicator concluded that an employer could not resort to
severance payments, no matter how generous, to avoid a determination under the
Code about whether the dismissal was unjust. Because AECL did not rely on
any cause to fire him, Wilson’s complaint was allowed.
On appeal to the Federal Court of Canada, a judge found that
the adjudicator’s decision was unreasonable because in his view nothing in the
Code prevented employers from dismissing non-unionized employees without
cause. The Federal Court of Appeal agreed but reviewed the issue on
a standard of correctness.
The appeal was heard by the Supreme Court of Canada.
In a 6 to 3 decision, the court held that the appeal should be allowed and that
the adjudicator’s decision should be restored.
The 6 judges of the majority wrote three separate reasons
for their decision.
Justice Abella wrote that at common law, a non-unionized
employee could be dismissed without cause if he or she was given reasonable
notice or pay in lieu of notice. However, in 1978, Parliament added a
series of provisions to Part III of the Code, i.e. an "unjust dismissal" scheme
which consisted of protections like those available to employees covered by a
collective agreement and which applied to non-unionized employees who had
completed 12 consecutive months of continuous employment. A dismissed
employee could ask the employer for a written statement setting out the reasons
for the dismissal. The employer was required to provide the statement within 15
days. If an adjudicator determined that the dismissal was unjust, he or
she had broad authority to grant an appropriate remedy including requiring the
employer to pay the person compensation or to reinstate the person.
Both Wilson and AECL accepted that the standard of review of
the adjudicator’s reasons was “reasonableness” because he was interpreting a
statute within his expertise. Applying that standard, Justice Abella
found that the adjudicator’s decision was reasonable and consistent with the
approach overwhelmingly applied to the unjust dismissal sections of the Code since they
were enacted. It made no sense, as the Federal Court of Appeal
had done, to attempt to “calibrate” reasonableness by applying a potentially
indeterminate number of varying degrees of deference within it. Such an
approach unduly complicated an area of law in need of greater simplicity.
Justice Abella then provided what she called "general
comments" on the need for greater simplicity with respect to the standards of
review of the decisions of administrative bodies. However, Justices
McLachlin, Karakatsanis, Wagner and Gascon, held that although Justice Abella’s
efforts to stimulate a discussion on how to clarify or simplify the standard of
review jurisprudence was appreciated, it was unnecessary to endorse any
particular proposal to redraw the current standard of review framework at this
time.
In separate reasons, Justice Cromwell agreed that the
standard of review in the case was reasonableness and that the adjudicator’s
decision was reasonable but held that reasonableness is a single standard and
must be assessed in the context of the particular type of decision making
involving all relevant factors. He held that the standard of review
jurisprudence does not need yet another overhaul and he disagreed with the
approach developed by Justice Abella in obiter.
Justices Moldaver, Cote and Brown dissented.
They held in a dissenting opinion written by Justice Moldaver, that in
the specific context of this case, a correctness review was justified.
The respondent's case was valiantly argued by my colleagues Ronald Snyder and Eugene Derenyi.
Regards,
Blair
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