Joseph Wilson Appellant v. Atomic Energy of Canada Limited, 2016 SCC 29

SUPREME COURT OF CANADA Citation: Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770 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 v. 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 ofwhether the employer and employee will be able to continue working together in a healthy and productive employment relationship in thefuture. If the adjudicator has reason to believe that the employer will simply dismiss the employee again, he or she will not orderreinstatement.

There is no reason to suppose that this practice would change were the continuing right of federally regulated employers todismiss 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’sinterpretation of ss. 240 to 246 of the Code is inconsistent with the text, context and purpose of these provisions, it ought to be set asideand the appeal dismissed. Cases Cited By Abella J. Discussed: Dunsmuir v.

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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.

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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 [ 1 ] 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. The issue in this appeal is whether Parliament’s intention behind amendments to the Canada Labour Code [1] in 1978 was to offer an alternative statutory scheme consisting of expansive protections much like those available to employees covered by a collective agreement. In my respectful view, like almost all of the hundreds of adjudicators who have interpreted the scheme, I believe that is exactly what Parliament’s intention was.

Background [ 2 ] In 1971, Parliament passed amendments to the Canada Labour Code [2] setting out the notice requirements for firing non-unionized employees who had worked for three or more consecutive months. [3] The amendments also stipulated a minimal rate of severance pay for those who had worked for 12 months. [4] Employees dismissed for just cause are not entitled to either notice or severance pay. [ 3 ] More fundamental reforms were enacted in 1978, when the Code was again amended by adding a series of provisions to

Part III under the heading “Unjust Dismissal”. [5] They are found at ss. 240 to 246. [6] This Unjust Dismissal scheme applies to non-unionized employees who have completed 12 consecutive months of continuous employment. Any such employee who has been dismissed has 90 days to make a complaint in writing to an inspector if the employee considers the dismissal to be unjust (s. 240). [ 4 ] 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 (s. 241(1)). [ 5 ] An inspector is required to try to immediately settle the complaint (s. 241(2)). If the complaint cannot be settled within a reasonable time, the inspector can, at the request of the dismissed employee, refer the matter to the Minister (s. 241(3)), who may appoint an adjudicator to hear the complaint (s. 242(1)). The report of an inspector acts as a screening mechanism to prevent complaints which are frivolous, vexatious or clearly unmeritorious from proceeding to adjudication: Harry W.

Arthurs, Fairness at Work: Federal Labour Standards for the 21st Century (2006), at pp. 179-80 (Arthurs Report). [ 6 ] The mandate of the adjudicator is to determine whether the dismissal was unjust (s. 242(3)). If it was, the adjudicator has broad authority to grant an appropriate remedy (s. 242(4)), including requiring the employer 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. [ 7 ] 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 (s. 242(3.1)(a)). Prior Proceedings [ 8 ] Joseph Wilson was hired by Atomic Energy Canada Limited (AECL) [7] as a Senior Buyer/Order Administrator in 2005 and was later promoted to Procurement Supervisor. He worked for four and a half years until his dismissal in November 2009. He had a clean disciplinary record. [ 9 ] Mr.

Wilson filed an “Unjust Dismissal” complaint in December 2009, claiming that he was unjustly dismissed contrary to s. 240(1) of the Code . In response to a request from an inspector for the reasons for Mr. Wilson’s dismissal, AECL sent a letter in March 2010 saying that he was “terminated on a non-cause basis and was provided a generous severance package that well exceeded the statutory requirements. We trust you will find the above satisfactory.” [ 10 ] Mr. Wilson claimed that his dismissal was in reprisal for having filed a complaint of improper AECL procurement practices. [ 11 ] A labour Adjudicator, Prof.

Stanley Schiff, was appointed to hear the complaint. AECL sought a preliminary ruling on whether a dismissal without cause together with a sizeable severance package meant that the dismissal was a just one. [ 12 ] The parties agreed that regardless of the Adjudicator’s ruling on this preliminary issue, he retained jurisdiction to

hear Mr. Wilson’s allegations of reprisal. [13] The Adjudicator concluded that he was bound by Redlon Agencies Ltd. v. Norgren, 2005 FC 804, which had heldthat an employer could not resort to severance payments, however generous, to avoid a determination under the Code about whether thedismissal was unjust. Because AECL did not rely on any cause to fire him, Mr. Wilson’s complaint was allowed. [14] The Application Judge found this decision was unreasonable because, in his view, nothing in

Part III of the Codeprecluded employers from dismissing non-unionized employees on a without-cause basis. The Federal Court of Appeal agreed, butreviewed the issue on a standard of correctness. Analysis [15] The parties before this Court, as they had in all the prior judicial proceedings, accepted that the standard of reviewwas reasonableness. I agree. The decisions of labour adjudicators or arbitrators interpreting statutes or agreements within their expertiseattract a reasonableness standard: Dunsmuir v. New Brunswick, 2008 SCC 9 , [2008] 1 S.C.R. 190, at para. 68; Nor-ManRegional Health Authority Inc. v.

Manitoba Association of Health Care Professionals, 2011 SCC 59 , [2011] 3 S.C.R. 616, atpara. 42. [16] The Federal Court of Appeal itself, including two of the judges who decided the case before us, recently held in Yuev. Bank of Montreal, 2016 FCA 107, 483 N.R. 375, that the decisions of adjudicators applying the Unjust Dismissal provisions of theCode attract a reasonableness standard: 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, 2013FCA 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] [17] Applying that standard, the Adjudicator’s decision was reasonable and consistent with the approach overwhelminglyapplied to these provisions since they were enacted.

It is true that a handful of adjudicators have taken a different approach to theinterpretation of the Code, but as this Court has repeatedly said, this does not justify deviating from a reasonableness standard: Toronto(City) v. C.U.P.E., Local 79, 2003 SCC 63 , [2003] 3 S.C.R. 77, at para. 71; Dunsmuir, at paras. 55-56; Smith v. AlliancePipeline Ltd., 2011 SCC 7 , [2011] 1 S.C.R. 160, at para. 38; Communications, Energy and Paperworkers Union of Canada,Local 30 v.

Irving Pulp & Paper, Ltd., 2013 SCC 34 , [2013] 2 S.C.R. 458, at paras. 7-8. [18] Nor do I accept the position taken in this case by the Federal Court of Appeal that even if a reasonableness reviewapplied, the Adjudicator should be afforded “only a narrow margin of appreciation” because the statutory

interpretation in this case“involves relatively little specialized labour insight”. As this Court has said, the reasonableness standard must be applied in the specificcontext under review. But to attempt to calibrate reasonableness by applying a potentially indeterminate number of varying degrees ofdeference within it, unduly complicates an area of law in need of greater simplicity. [19] But while it is true that the standard of review in this case falls easily into our jurisprudence, it seems to me thatsome general comments about standard of review are worth airing, albeit in obiter.

There are undoubtedly many models that would helpsimplify the standard of review labyrinth we currently find ourselves in. I offer the following proposal as an option only, for purposes ofstarting the conversation about the way forward. Because it is only the beginning of the conversation, which will benefit over time fromsubmissions from counsel, this proposal is not intended in any way to be comprehensive, definitive, or binding. [20] A substantial portion of the parties’ factums and the decisions of the lower courts in this case were occupied withwhat the applicable standard of review should be.

This, in my respectful view, is insupportable, and directs us institutionally to thinkabout whether this obstacle course is necessary or whether there is a principled way to simplify the path to reviewing the merits. [21] For a start, it would be useful to go back to the basic principles set out in Dunsmuir, under which two approacheswere enunciated for reviewing administrative decisions. The first is deferential, and applies when there is a range of reasonable outcomesdefensible on the facts and law. This is by far the largest group of cases.

Deference is succinctly explained in Dunsmuir as follows: It does not mean that courts are subservient to the determinations of decision makers, or that courts must show blind reverence to theirinterpretations, or that they may be content to pay lip service to the concept of reasonableness review while in fact imposing their ownview. Rather, deference imports respect for the decision-making process of adjudicative bodies with regard to both the facts and thelaw. [para. 48] [22] The reason for the wide range is, as Justice John M.

Evans explained, because “[d]eference . . . assumes that there isno uniquely correct answer to the question”: “Triumph of Reasonableness: But How Much Does It Really Matter?” (2014), 27 C.J.A.L.P.101, at p. 108. The range will necessarily vary. As Chief Justice McLachlin noted, reasonableness “must be assessed in the context ofthe particular type of decision making involved and all relevant factors” and “takes its colour from the context”: Catalyst Paper Corp. v.North Cowichan (District), 2012 SCC 2 , [2012] 1 S.C.R. 5, at paras. 18, citing with approval Canada (Citizenship andImmigration) v.

Khosa, 2009 SCC 12 , [2009] 1 S.C.R. 339, at para. 59. [23] The other approach, called correctness, was applied when only a single defensible answer is available.

As set out inDunsmuir, this applied to constitutional questions regarding the division of powers (para. 58), “true questions of jurisdiction or vires”(para. 59), questions of general law that are “both of central importance to the legal system as a whole and outside the adjudicator’sspecialized area of expertise” (para. 60), and “[q]uestions regarding the jurisdictional lines between two or more competing specializedtribunals” (para. 61). [24] Most of the confusion in our jurisprudence has been over what to call the category of review in a particular case.

Perhaps it is worth thinking about whether it is really necessary to engage in rhetorical debates about what to call our conclusions at the

end of the review. Are we not saying essentially the same thing when we conclude that there is only a single “reasonable” answer available and when we say it is “correct”? And this leads to whether we need two different names for our approaches to judicial review, or whether both approaches can live comfortably under a more broadly conceived understanding of reasonableness. [ 25 ] It may be helpful to review briefly how we got here. In Dunsmuir , this Court sought to provide “a principled framework that is more coherent and workable” for the judicial review of administrative decisions (para. 32).

As a result, the three existing standards of review were replaced by two. The aim was to simplify judicial review. But collapsing three into two has not proven to be the runway to simplicity the Court had hoped it would be. In fact, 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.

And so we still find the merits waiting in the wings for their chance to be seen and reviewed. [ 26 ] However, where once the confusion was over the difference between patent unreasonableness and reasonableness simpliciter , we now find ourselves struggling over the difference between reasonableness and correctness. In my respectful view, this complicated entry into judicial review is hard to justify.

Ironically, the explanation in Dunsmuir for changing the framework then remains a valid explanation for why it should be changed now, as the following excerpts show: 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] [ 27 ] Dunsmuir had pointed out that courts were struggling with the “conceptual distinction” between two of the standards — patent unreasonableness and reasonableness simpliciter — and were finding that “any actual difference between them in terms of their operation appears to be illusory” (paras. 39-41). An argument can be made, as Prof.

David Mullan has, that this Court too has blurred the conceptual distinctions in a number of cases, this time between correctness and reasonableness standards of review, and has sometimes engaged in “disguised correctness” review while ostensibly conducting a reasonableness review. [8] Others too have expressed concerns about inconsistency and confusion in how the standards have been applied. [9] The question then is whether there is a way to move forward that respects the underlying principles of judicial review which were so elegantly and definitively explained in Dunsmuir , while redesigning their implementation in a way that makes them easier to apply. [ 28 ] The most obvious and frequently proposed reform of the current system is a single reviewing standard of reasonableness.

Before accepting it, it is important to remember the rule of law imperatives of judicial review. Dunsmuir discussed the relationship between judicial review and the rule of law in the opening paragraphs of its analysis: 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] [ 29 ] What this means is that “[t]he legislative branch of government cannot remove the judiciary’s power to review actions and decisions of administrative bodies for compliance with the constitutional capacities of the government. . . .

In short, judicial review is constitutionally guaranteed in Canada, particularly with regard to the definition and enforcement of jurisdictional limits” ( Dunsmuir , at para. 31 ). [ 30 ] Notably, judicial review also “performs an important constitutional function in maintaining legislative supremacy”, which results in “the court-centric conception of the rule of law [being] reined in by acknowledging that the courts do not have a monopoly on deciding all questions of law”: Dunsmuir , at para. 30 , citing Justice Thomas Cromwell, “Appellate Review: Policy and Pragmatism”, in 2006 Isaac Pitblado Lectures , at p.

V-12. [ 31 ] 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.

I see 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 .

[32] A single standard of reasonableness still invites the approach outlined in Dunsmuir, namely: . . . reasonableness is concerned . . . with whether the decision falls within a range of possible, acceptable outcomes which are defensiblein respect of the facts and law. [para. 47] [33] Approaching the analysis from the perspective of whether the outcome falls within a range of defensible outcomeshas the advantage of being able to embrace comfortably the animating principles of both former categories of judicial review.

Courts canapply a wider range for those kinds of issues and decision-makers traditionally given a measure of deference, and a narrow one of onlyone “defensible” outcome for those which formerly attracted a correctness review. Most decisions will continue to attract deference, asthey did in Dunsmuir, which means, as Justice Evans noted [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 thepublic interest, a reviewing court may well decide that the tribunal has a range of choices in selecting the factors it will consider inmaking its decision. At this point, questions of law shade imperceptibly into questions of discretion. Reasonableness review permits thecourt to determine whether the factors considered by the tribunal are rationally related to the generally multiple statutory objectives.

It isnot the court’s role to identify the factors to be considered by the tribunal, let alone to reweigh them. [Footnote omitted; p. 110.] [34] Even in statutory

interpretation, the interpretive exercise will usually attract a wide range of reasonable outcomes.This Court in Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 , [2013] 2 S.C.R. 559, forexample, found that the Minister had considerable latitude in interpreting a statutory provision that required decisions be made in the“national interest”. [35] But there may be rare occasions where only one “defensible” outcome exists. In Canada (Canadian Human RightsCommission) v. Canada (Attorney General), 2011 SCC 53 , [2011] 3 S.C.R. 471, for example, this Court found that the ordinarytools of statutory

interpretation made it clear that the administrative body under review did not have the authority to award costs in aspecific context. In the particular circumstances of that case, no other result fell within the range of reasonable outcomes. Similarly, thisCourt has set aside decisions when they fundamentally contradicted the purpose or policy underlying the statutory scheme: Halifax(Regional Municipality) v.

Canada (Public Works and Government Services), 2012 SCC 29 , [2012] 2 S.C.R. 108. [36] The four categories, however, which were identified as attracting correctness under Dunsmuir based on rule of lawprinciples, always yield only one reasonable outcome. [37] I acknowledge that no attempt to simplify the review process will necessarily guarantee consistent outcomes.

Evenunder the current Dunsmuir model, there have been cases in this Court where judges applied the same standard, yet came to differentconclusions about the decisional effect of applying the standard.[10] But the goal is not to address all possible variables, it is to build onthe theories developed in Dunsmuir and to apply them in a way that eliminates the need to sort cases into artificial categories. [38] Even if, however, there proves to be little appetite for collapsing the two remaining standards of review, it would, Ithink, still be beneficial if the template so compellingly developed in Dunsmuir, were adhered to, including by applying the residual“correctness” standard only in those four circumstances Dunsmuir articulated. [39] But as previously noted, in this case we need not do more than apply our usual approach to reasonableness.

Theissue here is whether the Adjudicator’s

interpretation of ss. 240 to 246 of the Code was reasonable. The text, the context, the statementsof the Minister 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 toprotection from being dismissed without cause under

Part III of the Code. The alternative approach of severance pay in lieu falls outsidethe range of “possible, acceptable outcomes which are defensible in respect of the facts and law” because it completely undermines thispurpose by permitting employers, at their option, to deprive employees of the full remedial package Parliament created for them.

Therights of employees should be based on what Parliament intended, not on the idiosyncratic view of the individual employer oradjudicator. [40] Adjudicator Schiff’s decision was, therefore, reasonable. [41] As previously noted, Parliament passed amendments to the Code in 1971 which included provisions setting out theminimum remuneration owed to an employee whose employment had been terminated if that employee worked for a threshold numberof consecutive months and was not dismissed for just cause. These provisions are now found in ss. 230(1) and 235(1) of the Code, bothin

Part III. The enactment of these provisions neither codified nor extinguished the common law; instead, it offered an alternative togoing to court by setting out minimum entitlements for dismissed employees who wanted to avoid the expense and uncertainty of civillitigation: Arthurs Report, at pp. 172-74. [42] In 1978, Parliament further amended the Code and established the Unjust Dismissal scheme, currently found in ss.240 to 246 in

Part III of the Code. The central question in this case is what effect the 1978 amendments had on the rights of non-unionized employees whose employment had been terminated. When the provisions were introduced, the then Minister of Labour, theHon. John Munro, said: It is our hope that [the amendments] will give at least to the unorganized workers some of the minimum standards which have beenwon by the organized workers and which are now embodied in their collective agreements.

We are not alleging for one moment that theymatch 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)

[43] He explained the purpose of the new “Unjust Dismissal” provisions to the Standing Committee on Labour,Manpower and Immigration in March 1978 as follows: The intent of this provision is to provide employees not represented by a union, including managers and professionals, with the right toappeal against arbitrary dismissal — protection the government believes to be a fundamental right of workers and already a part of allcollective 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) [44] The references in this statement to the right of employees to “fundamental” protection from arbitrary dismissal and tothe fact that such protection was “already a part of all collective agreements”, make it difficult, with respect, to draw any inference otherthan that Parliament intended to expand the dismissal rights of non-unionized federal employees in a way that, if not identically, thencertainly analogously matched those held by unionized employees. [45] Parliament’s intentions were also on display when, the previous August, the Minister acknowledged that while theterminology of “just” and “unjust” was, on its face, ambiguous, the extensive arbitral jurisprudence from organized labour wouldilluminate the way forward for non-unionized federal employees who were dismissed: I realize that the terms “just” or “unjust” are sometimes difficult to define.

However, we have a vast body of arbitral jurisprudence ondismissals 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 haveestablished 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) [46] And this, in fact, is how the new provisions have been interpreted by labour law scholars and almost all theadjudicators appointed to apply them, namely, that the purpose of the 1978 provisions in ss. 240 to 246 was to offer a statutoryalternative to the common law of dismissals and to conceptually align the protections from unjust dismissals for non-unionized federalemployees with those available to unionized employees: Geoffrey England, “Unjust Dismissal in the Federal Jurisdiction: The FirstThree Years” (1982), 12 Man.

L.J. 9, at p. 10; Innis Christie, Employment Law in Canada (2nd ed. 1993), at p. 669; Arthurs Report, atp. 172. [47] The effect of the 1978 amendments was to limit the applicability of the notice requirements in s. 230(1) and theminimum severance provisions in s. 235(1) to circumstances that fell outside the Unjust Dismissal provisions.

The notice and severancepay requirements under ss. 230(1) and 235(1), for example, apply to managers, those who are laid off due to lack of work ordiscontinuance of a function, and, in the case of s. 230(1), employees who have worked for the employer for more than 3 consecutivemonths but less than 12 months. In other words, ss. 230(1) and 235(1) are not an alternative to the Unjust Dismissal provisions in ss. 240to 246, they apply only to those who do not or cannot avail themselves of those provisions: Redlon Agencies, at paras. 38-39; Wolf LakeFirst Nation v.

Young (1997), (FC), 130 F.T.R. 115, at para. 50. [48] The soundness of the consensus among adjudicators interpreting the Unjust Dismissal provisions was confirmed inProf. Arthurs’ 2006 report on

Part III of the Code, commissioned by the then Minister of Labour. In preparing his report, Prof. Arthursestablished a 16-person Commission Secretariat, consulted two advisory panels (one consisting of impartial experts and the other oflabour and management representatives), held two academic round tables engaging 38 participants from almost 20 universities as well asindustry groups, and consulted 23 independent research studies conducted by leading Canadian and foreign experts. Nine additionalstudies were provided by Commission staff on topics such as comparisons between

Part III and labour standards legislation acrossCanada and in other countries. The Commission heard from 171 groups and individuals at public hearings and received over 154 briefsand other submissions. The Commission also met with labour, management and community-based organizations, and labour standardsadministrators and practitioners. [49] After this extensive review of

Part III of the Code and its application, Prof. Arthurs confirmed that the goal of thenew “Unjust Dismissal” provisions was meant to give “unorganized workers protection against unjust dismissal somewhat comparableto that enjoyed by unionized workers under collective agreements” (p. 172 (emphasis added)): . . . over the years the adjudication system has not only remedied many of the procedural shortcomings of civil litigation, it hassignificantly modified the old civil and common law doctrines governing wrongful dismissal. . . .

Adjudicators, borrowing extensivelyfrom the jurisprudence developed over the years by arbitrators in unionized workplaces, have built up their own distinctive doctrines thatconfer on unorganized federal workers quite extensive substantive and procedural protections. . . . [T]his has coincided with, andarguably hastened, the adoption of progressive attitudes and practices in the field of workplace discipline, many of which were alsoadvocated 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.) [50] The new Code regime was also a cost-effective alternative to the civil court system for dismissed employees toobtain meaningful remedies which are far more expansive than those available at common law. As Prof. Arthurs observed: 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 protectionssupposedly enjoyed by workers under the general law, this one has always been difficult to enforce. Nonetheless, it remains the lawtoday, and

Part III does nothing to change it. What

Part III does do is establish a different, more accessible procedure under whichworkers 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 itremoves cost barriers to access to justice. It thereby translates a universally accepted principle — that no one should be dismissedwithout just cause — into a practical reality.

Part III can therefore be understood as an exercise in the reform of civil justice. [pp. 172-73and 177] [51] The most significant arbitral tutor for the new provisions came from the way the jurisprudence defined “UnjustDismissal”. It is true, as the Federal Court of Appeal noted, that the word “unjust” is a familiar one in the legal profession’s tool kit andhas a generic, even iconic role.

In the collective bargaining context, however, it has a specific and well understood — and no less iconic— meaning: that employees covered by collective agreements are protected from Unjust Dismissals and can only be dismissed for “justcause”. This includes an onus on employers to give reasons showing why the dismissal is justified, and carries with it a wide remedialpackage including reinstatement and progressive discipline.

As in the 1978 provisions, there is no Unjust Dismissal protection in the caseof layoffs or discontinuance of a job. [52] Notably, adjudicators did not interpret their mandate as requiring the automatic application of the arbitraljurisprudence or any remedies. Instead, while they “have drawn heavily” from it, they also “modified it in order to reflect the differencesat play in the non-unionized environment”: Christie, at p. 688. [53] The decision which continues to be the accepted theoretical template, was the 1979 decision of Prof. George W.Adams in Roberts v.

Bank of Nova Scotia (1979), (CA LA), 1 L.A.C. (3d) 259 (Can.). It helps illuminate what isgenerally understood by the terms “just cause” and “Unjust Dismissal”: 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 mostorganized employees have under collective agreements — the right to be dismissed only for “just cause”.

I am of this view because thecommon 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: seeCox, “Reflections Upon Labour Arbitration”, 72 Harv. L. Rev. 1482 (1958) at p. 1492.

But having said that, I do not deny that thestatute 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] [54] He concluded that Parliament must also have had the concept of progressive discipline in mind (Roberts, at pp. 265-66).

This concept generally requires employers seeking to justify the dismissal to demonstrate that they have made the employee awareof performance problems, worked with the employee to rectify them, and imposed “a graduated repertoire of sanctions before resortingto the ultimate sanction of dismissal”: Arthurs Report, at p. 96; Christie, at pp. 690-91. [55] Prof.

Adams explained why he thought progressive discipline was incorporated into the scheme: Under a collective agreement, arbitrators have adopted the concept of progressive discipline, subject to specific provisions under thecollective 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 employerssubject 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) [56] But he also noted that adjudicators should be mindful of the varying employment contexts under the Code, so thatthe arbitral jurisprudence is not rigidly applied: However, this does not mean that Adjudicators should import the law of the collective agreement in discipline cases unthinkingly andwithout 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 asrequired. Thus, I must ask whether the use of suspensions in the banking industry ought not to be required. (Roberts, at p. 266) [57] Ultimately Prof. Adams concluded that while the dismissal in the case before him was unjust, he did not considerreinstatement to be an appropriate remedy in the circumstances. Instead, he awarded Ms.

Roberts the equivalent of five months’ wages.

[58] What turned out to be the consensus

interpretation of the new provisions as reflected in the Roberts decision, wasalso the

interpretation accepted by Prof. Gordon Simmons in a report commissioned by Labour Canada to explain the provisions: For some guidance as to what constitutes just or unjust dismissal we can turn to nearly three decades of dismissal decisions pursuant tocollective agreements. There are no hard and fast rules as each situation must be determined according to the particular circumstances ofeach case. However, the arbitral jurisprudence which has been developed can act as a guide to what have traditionally been regarded assufficient 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) [59] Until 1994, when Adjudicator T. W. Wakeling broke away in Knopp v. Westcan Bulk Transport Ltd., [1994]C.L.A.D. No. 172 (QL), the adjudicative path was clear that an employee could only be dismissed for just cause as that term wasunderstood in the collective bargaining context. Adjudicator Wakeling’s revisionism led him to conclude that the common law approachapplied, and that if the employer has satisfied the requirements in ss. 230(1) and 235(1) of the Code or according to the common law,whichever amount is higher, the dismissal would not be unjust. His is the

interpretation accepted by the Federal Court of Appeal in thiscase. [60] Out of the over 1,740 adjudications and decisions since the Unjust Dismissal scheme was enacted, my colleagueshave identified only 28 decisions that are said to have followed the Wakeling approach: Reagan Ruslim, “Unjust Dismissal Under theCanada Labour Code: New Law, Old Statute” (2014), 5:2 U.W.O. J. Leg. Stud. 3 (online), at p. 28.

Of these 28 decisions, 10 wererendered after this case was decided at the Federal Court and are therefore not relevant to determining the degree of “discord” amongstadjudicators before this case was heard: Sharma v. Maple Star Transport Ltd., ; 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 HollowHeavy 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, ; 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; and Sharmaand Beacon Transit Lines Inc., Re, 2013 CarswellNat 4148 (WL Can.). [61] That leaves 18 cases that have applied the Wakeling approach. Three of them were decided by Adjudicator Wakelinghimself. In other words, the “disagreement [that] has persisted for at least two decades” referred to by my colleagues consists of, at most,18 cases out of over 1,700 (para. 74).

What we have here is a drop in the bucket which is being elevated to a jurisprudential parting ofthe waters. [62] Even AECL concedes in its factum that “[t]he majority of adjudicators have held that employees may only bedismissed for just cause.” This consensus is hardly surprising given the unchallenged goals of the Unjust Dismissal scheme and theirincompatibility with what is available under the common law. [63] In fact, the foundational premise of the common law scheme — that there is a right to dismiss on reasonable noticewithout cause or reasons — has been completely replaced under the Code by a regime requiring reasons for dismissal.

In addition, thegalaxy of discretionary remedies, including, most notably, reinstatement, as well as the open-ended equitable relief available under s.242(4)(c), are also utterly inconsistent with the right to dismiss without cause.

If an employer can continue to dismiss without causeunder the Code simply by providing adequate severance pay, there is virtually no role for the plurality of remedies available to theadjudicator under ss. 240 to 245. [64] It is true that under s. 246, dismissed employees may choose to pursue their common law remedy of reasonablenotice or pay in lieu in the civil courts instead of availing themselves of the dismissal provisions and remedies in the Code. But if theychoose to pursue their rights under the Unjust Dismissal provisions of the Code, only those provisions apply. As Prof.

Arthurs observedin his Report: . . . 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 heor she would have received if the employment contract had been allowed to run its natural course — that is, for whatever period of noticewould have been “reasonable.” If an employer has been unfair or high-handed in carrying out the discharge, the employee may beawarded additional damages. By contrast, if successful before an Adjudicator under

Part III, an employee is entitled both toreinstatement and to compensation, not only for the duration of the notice period, but for all losses attributable to the discharge.

Theseare potentially more extensive and expensive remedies than those a court might award. [Emphasis added; p. 177.] [65] It is worth noting that the Code’s scheme, which was enacted in 1978, was preceded by similar Unjust Dismissalprotection in Nova Scotia in 1975, and followed by a similar scheme in Quebec in 1979.[11] Unlike other provinces, the Nova Scotia andQuebec schemes display significant structural similarities to the federal statute. They apply only after an employee has completed acertain period of service and do not apply in cases of termination for economic reasons or layoffs.

Like the federal scheme, the twoprovincial ones have been consistently applied as prohibiting dismissals without cause, and grant a wide range of remedies such asreinstatement and compensation.

[66] It seems to me to be significant that in Syndicat de la fonction publique du Québec v. Quebec (Attorney General),2010 SCC 28 , [2010] 2 S.C.R. 61, interpreting the Unjust Dismissal provision in the Quebec Act, this Court concluded that“[a]lthough procedural in form”, the provision creates “a substantive labour standard” (para. 10).

It would be untenable not to apply thesame approach to the Unjust Dismissal provision in the federal Code, and instead to characterize the provision as a mere proceduralmechanism. [67] The remedies newly available in 1978 to non-unionized employees reflect those generally available in the collectivebargaining context. And this, as Minister Munro stated, is what Parliament intended.

To infer instead that Parliament intended tomaintain the common law under the Code regime, creates an anomalous legal environment in which the protections given to employeesby statute — reasons, reinstatement, equitable relief — can be superseded by the common law right of employers to dismiss whomeverthey want for whatever reason they want so

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