T-2010-05
Ottawa, Ontario, November 1, 2006
PRESENT: The Honourable Mr. Justice O'Reilly
BETWEEN:
THOMSON NATIONAL PERSONNEL LIMITED
and
VIJAY MAHARAJ, CROWN IN RIGHT OF CANADA
(MINISTER OF LABOUR) AND
ATTORNEY GENERAL OF CANADA
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Thomson National Personnel Limited hired Mr. Vijay Maharaj in
1998. Thomson dismissed Mr. Maharaj on April 25, 2003. In 2004, Mr. Maharaj
complained to the Minister of Labour that he had been wrongfully dismissed and
asked for an extension of time within which to file his complaint under the Canada
Labour Code, R.S.C. 1985, c. L-2. The Minister granted Mr. Maharaj the
extension and appointed an adjudicator to hear the complaint.
[2]
Thomson argues that the Minister erred in granting the extension
of time because Mr. Maharaj failed to satisfy the applicable statutory criteria
and because the Minister failed to provide Thomson an opportunity to make
submissions before the extension was granted. Thomson also argues that the
Minister erred in appointing an adjudicator, given that Mr. Maharaj’s
underlying complaint was untimely. Thomson asks me to overturn the Minister’s
decisions. However, I can find no basis for overturning them and must,
therefore, dismiss this application for judicial review.
I. Issues
1. What is the appropriate standard of review to apply to the Minister’s decisions?
2. Did the Minister err in granting Mr. Maharaj an extension of time?
3. Did the Minister err in deciding to appoint an adjudicator?
II. Analysis
1. What is the appropriate standard of
review to apply to the Minister’s decisions?
[3] The usual time frame for making complaints of wrongful dismissal under the Canada Labour Code is 90 days from the date of dismissal (s. 240(2) – relevant provisions are set out in an Annex). However, the Code goes on to state in s. 240(3) that the Minister may extend that time period if he or she is satisfied that the following conditions apply:
· the person made a complaint within the 90-day period to a government official who had no authority to deal with it; and
·
the person believed that the official did have authority
to deal with it.
[4]
The Federal Court of Appeal has decided that the Minister is
entitled to considerable deference in deciding whether to grant an extension of
time under s. 240(3): Loomis Courier Service v. Danis, [1994] F.C.J. No.
946 (QL), at para. 2. The Court stated that s. 240(3) accords the Minister
“very wide discretionary powers”. In keeping with that approach, I can overturn
the Minister’s decision to grant an extension only if I find that it was unreasonable.
Alternatively, I can intervene if I am satisfied that Thomson was treated
unfairly.
2. Did the Minister err in granting Mr. Maharaj an extension of time?
(a) Factual background
[5] As mentioned, Thomson dismissed Mr. Maharaj on April 25, 2003. However, as part of a severance agreement, it continued to pay his salary and benefits until August 22, 2003.
[6]
Mr. Maharaj did not make a complaint until November 13, 2003 when he
communicated in writing with the provincial Office of the Worker Advisor. He
also made complaints to the Ontario Human Rights Commission and the Ontario
Employment Standards Branch. He did not submit a formal complaint to the federal
Labour Program Office until February 24, 2004, although he claimed that he had sent
a complaint by e-mail in November 2003. He requested an extension of the 90-day
time limit in a letter dated April 14, 2004. In that letter, Mr. Maharaj set
out the grounds for his request, referring to the letter he had sent to the
provincial Office of the Worker Advisor on November 13, 2003, and his belief
that that office had authority to deal with his complaint.
[7] Mr. Maharaj’s request for an extension was dealt with first by an inspector. The inspector advised Thomson in a letter dated April 30, 2004 that Mr. Maharaj was seeking an extension of time. He attached Mr. Maharaj’s letter of request and invited Thomson to contact him if it had any comments.
[8]
The inspector drafted an internal report briefly setting out the
relevant facts. The report, in error, states that Mr. Maharaj was employed with
Thomson until August 22, 2003 (i.e. the last day on which he was paid by
Thomson) - his last date of employment was actually April 25, 2003. The
inspector, based on this misinformation, recommended that Mr. Maharaj be
granted an extension of time, given that he had made a complaint within 90 days
to a government official who he believed had authority to deal with his
complaint but, in fact, did not. This recommendation was relayed to Ottawa for
the Minister’s consideration. On July 5, 2004, the Minister authorized Mr.
Maharaj to file his complaint and he did so on July 28, 2004.
[9]
At that point, Thomson was invited to make submissions in response to
Mr. Maharaj’s complaint and did so in August 2004. Thomson challenged the
timeliness of Mr. Maharaj’s complaint and noted that the date of his dismissal
was actually April 25, 2003, not August 22, 2003. Mr. Maharaj then asked that
his complaint be forwarded to an adjudicator. On December 30, 2004, the
Minister appointed an adjudicator to hear the complaint.
(b) The Minister’s decision to grant an extension of time
[10] The Minister had before her information indicating that:
• Mr. Maharaj had been dismissed on August 22, 2003;
• Within 90 days of that date, he complained to a government official;
• That official had no authority to deal with the complaint; and
• Mr. Maharaj mistakenly believed that the official did have authority to deal with the complaint.
[11] However, Thomson notes that the information before the Minister concerning Mr. Maharaj’s dismissal date was incorrect. It also points out that Mr. Maharaj should have known that the provincial authorities he contacted had no authority to deal with his complaint given that he had been employed by Thomson as a payroll clerk and, later, as a business analyst. Accordingly, he was well aware of the fact that Thomson was a federally-regulated entity and should have known where to complain.
[12] In any case, though, there was some information before the Minister indicating that the statutory criteria for an extension of time were met. In particular, Mr. Maharaj’s Record of Employment stated that the last day for which he was paid by Thomson was August 22, 2003, from which the inference might naturally be drawn that this was his dismissal date. Further, in his letter of April 14, 2004, in which he requested an extension of time, Mr. Maharaj stated that he had previously submitted his complaint to provincial authorities in error. He said that he later learned that he should have contacted federal officials.
[13] Accordingly, based on the information before the Minister, I cannot conclude that the decision to grant Mr. Maharaj an extension of time was unreasonable. Certainly, if the Minister had been aware of the actual date of dismissal and further particulars of Mr. Maharaj’s employment history, she might have concluded otherwise. But that information was not before the Minister.
[14] This leads to Thomson’s further argument that it was denied an opportunity to supply information that would have contested the basis on which Mr. Maharaj was seeking an extension of time. It notes that the letter it received from the inspector on April 30, 2004 did not specifically invite submissions. Nor did it include the information on which Mr. Maharaj’s request for an extension was founded. Accordingly, Thomson submits that it was treated unfairly, having been shut out of the process leading to the granting of the extension.
[15] I cannot agree with Thomson’s submissions on this point. True, Thomson was not specifically invited to make submissions on the issue of an extension of time, and was given minimal information about Mr. Maharaj’s application. But I believe that the inspector’s letter of April 30, 2004 was adequate in the circumstances. It provided Thomson an opportunity to comment on the matter of an extension of time. In addition, the inspector gave Thomson a copy of Mr. Maharaj’s letter in which he set out the grounds for his request: that is, the fact that he had complained to the provincial Office of the Worker Advisor on November 13, 2003, believing it had authority to deal with his complaint.
[16] In my view, with that letter, Thomson was given enough information to put it in a position to oppose the extension of time and could have taken up the invitation to comment on Mr. Maharaj’s request. It could have pointed out to the inspector that the criteria for an extension of time under s. 240(3) could not be met because Mr. Maharaj’s complaint was made too late and because he could not have reasonably believed that a provincial official had authority to deal with it. Thomson had a meaningful opportunity to participate in the decision-making process and failed to take it up.
[17] Accordingly, I cannot conclude that the Minister’s decision to grant Mr. Maharaj an extension was unreasonable, and nor can I find that Thomson was treated unfairly.
3. Did the Minister err in deciding to appoint an adjudicator?
[18] Thomson argues that the decision to appoint an adjudicator was unreasonable because, by then, the Minister was aware of Mr. Maharaj’s actual dismissal date and should have stopped the complaint from going forward.
[19] However, given that the Minister granted Mr. Maharaj’s request for an extension of time and allowed him to file his complaint, the timeliness of his original complaint was no longer a live issue when Mr. Maharaj asked the Minister to appoint an adjudicator. The question at that point was simply whether an adjudicator should hear and decide Mr. Maharaj’s complaint. The Minister exercised her discretion under s. 242(1) of the Code to make the appointment after efforts to settle the complaint had failed. I cannot find her decision to be unreasonable in the circumstances.
[20] Based on the foregoing, I must dismiss this application for judicial review, with costs.
JUDGMENT
THIS COURT’S JUDGMENT IS that:
1. The application for judicial review is dismissed with costs.
Annexe
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Canada Labour Code, R.S.C. 1985, c. L-2
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 (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.
Reasons for dismissal
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. Reference to adjudicator 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).
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Code canadien du travail, L.R.C. 1985, ch. L-2
Congédiement injuste 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.
Délai (2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement
Prorogation du délai (3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l’intéressé a déposé sa plainte à temps mais auprès d’un fonctionnaire qu’il croyait, à tort, habilité à la recevoir
Motifs du congédiement
241. (1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l’employeur de lui faire connaître les motifs du congédiement; le cas échéant, l’employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande.
Renvoi à un arbitre
242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d’arbitre la personne qu’il juge qualifiée pour entendre et trancher l’affaire et lui transmettre la plainte ainsi que l’éventuelle déclaration de l’employeur sur les motifs du congédiement |
FEDERAL COURT
NAME OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2009-05
T-2010-05
STYLE OF CAUSE: THOMSON NATIONAL PERSONNEL LIMITED v.
VIJAY MAHARAJ, ET AL
PLACE OF HEARING: Toronto, Ontario
APPEARANCES:
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Blair W. McCreadie
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Vijay Maharaj Sadian Campbell
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FOR THE RESPONDENT/Representing himself FOR THE RESPONDENTS |
SOLICITORS OF RECORD:
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FRASER MILNER CASGRAIN LLP Toronto, ON |
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VIJAY MAHARAJ. Brampton, ON
JOHN H. SIMS, Q.C. Deputy Attorney General of Canada Toronto, ON
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FOR THE RESPONDENT/Representing himself
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