Federal Court Decisions

     T-2221-96

BETWEEN:

     ROBERT PRESTON

     Applicant

     - and -

     ATTORNEY GENERAL OF CANADA

     (HUMAN RESOURCES DEVELOPMENT CANADA, LABOUR BRANCH), RICK MORGENROTH,

     CHTK SKEENA BROADCASTING INC.

     Respondents

     REASONS FOR ORDER

JEROME, A.C.J.:

     This application for judicial review of two decisions by Human Resources Development came on for hearing before me at Edmonton, Alberta, on June 19, 1997. At the close of oral argument I took the matter under reserve and indicated that written reasons would follow.

     The applicant was laid off by Newcap Broadcasting Inc. in Charlottetown on September 22, 1995, effective December 29, 1995. On September 11, 1995, he received an offer of employment from Skeena Broadcasters in Prince Rupert and was to begin with them on October 2, 1995. While on his way to British Columbia, the applicant was informed that Skeena was unable to offer him immediate employment and that he should get back to them in six weeks. In December, 1995, the applicant and Skeena spoke about arranging an alternative start date. However, Mr. Preston had exhausted his savings and could not afford to complete his move to British Columbia. He asked for help from Skeena and has not heard from them since.

     On March 18, 1996, the applicant filed a complaint with Human Resources Development pursuant to the Canada Labour Code (the "Code"), claiming that he began employment with Skeena on October 2, 1995, and was unjustly dismissed by them on December 22, 1995. That claim was rejected on April 1, 1996, because the applicant did not meet the requirements of section 240 of the Code which reads in part:

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.

This April decision was confirmed in a letter dated September 10, 1996, which was prepared in response to submissions by the applicant's counsel. It appears that these decisions were premised on the fact that Mr. Preston had not worked for Skeena Broadcasters for twelve months before bringing his complaint.

     Counsel for the applicant argued that the text of paragraph 240(1)(a) would permit a very expansive interpretation due to the use of the term "an employer." Counsel suggested that this would allow an applicant who had worked for any federally-regulated employer for a period of twelve consecutive months to bring a claim against any other employer, regardless of the time spent working for that employer.

     Counsel for the respondent countered that the apparent ambiguity found in paragraph 240(1)(a) could be cleared up by referring to the French version:

240(1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si:

(a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;

(b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective.          [emphasis added]

By stipulating that a claimant needs to have worked for "the same employer" for a period of twelve months, Parliament has barred individuals in the position which the applicant now finds himself from seeking relief pursuant to the Code.

     Mr. Justice Noël has had occasion to comment on the appropriate means of reconciling the English and French versions of the legislation in Beothuk Data Systems, Seawatch Division v. Dean, [1996] 1 F.C. 451. He adopted the view expressed in Driedger on the Construction of Statutes, 3rd ed. (Toronto: Butterworths, 1994) which states that when the text in one language could have many meanings but the text in the other language could only have one, the meaning which is shared by both texts is deemed to represent the intention of Parliament. In reviewing the decision in Beothuk, the Federal Court of Appeal (court files A-757-95, A-758-95, A-759-95) (August 28, 1997) added that courts have to interpret any ambiguity between the two languages in favour of the complainant so long as this is consistent with the overriding purpose of the legislation. I see no reason to depart from this reasoning.

     The use of the indefinite article in the phrase, "an employer," in the English version leaves it open to a variety of interpretations, one of which is represented by the unambiguous French term, "le même employeur." Therefore, the shared meaning stipulates that employees must have worked for twelve months for the employer against whom they bring a complaint. The purpose served by this threshold criteria was described by Mr. Justice Noël as: (1) limiting the number of complaints lodged under the Code; (2) allowing for a probationary period during which the employer can assess the performance of the employee; and (3) creating a parallel to the job property rationale found in collective agreements. In my view, the threshold criteria at section 240 would serve no useful purpose if individuals could make claims against employers with whom they have a mere passing relationship. As a result, I find that Parliament intended that the "twelve consecutive months of continuous employment" were to be served with the same employer before a claim could be brought pursuant to the Canada Labour Code.

     For the reasons outlined above, I find that the decision by officials at Human Resources Development not to proceed with this complaint was correct. This application for judicial review is dismissed.

O T T A W A

October 30, 1997                      "James A. Jerome"                              A.C.J.