Date: 19980506
Docket: A-193-95
CORAM: STONE, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
BETWEEN:
CANADIAN AIRLINES INTERNATIONAL LTD.
Appellant
(Applicant)
- and -
IMTAZ HUSAIN
Respondent
(Respondent)
HEARD at Toronto, Ontario, Tuesday, May 5, 1998
JUDGMENT delivered from the Bench at Toronto, Ontario, Tuesday, May 5, 1998
REASONS FOR JUDGMENT BY: STONE, J.A.
Date: 19980506
Docket: A-193-95
CORAM: STONE, J.A.
LINDEN, J.A.
ROBERTSON, J.A.
BETWEEN:
CANADIAN AIRLINES INTERNATIONAL LTD.
Appellant
(Applicant)
- and -
IMTAZ HUSAIN
Respondent
(Respondent)
REASONS FOR JUDGMENT OF THE COURT
(Delivered from the Bench at Toronto, Ontario
on Tuesday, May 5, 1998)
STONE, J.A.:
[1] This is an appeal from an order of the Trial Division, upholding an award of an adjudicator acting pursuant to section 242 of the Canada Labour Code (the "Code"). The adjudicator determined that the dismissal of the respondent from his employment with the appellant was "unjust".
[2] Paragraph 242(3.1)(a) prohibits a complaint of a person from being considered by an adjudicator, where:
| ... that person has been laid off because of a lack of work or because of the discontinuance of a function; |
[3] The evidence before the adjudicator was that the respondent commenced to work with the appellant in June 1990 on a computer based training system. On November 29 of that year, he was informed by his employer that his position was terminated and that the decision had "resulted from the severe economic downturn facing our industry and the reorganization of personnel by that, resulting in a lack of work."
[4] The adjudicator found at page 9 of his award that:
| The reorganization was a business decision based on the desire of Canadian to transfer computer based training to the Flight Operations Division from the Technical Training Division. |
He went on at pages 9-10 to find that:
| ... the Complainant was not laid off as a result of a discontinuance of a function or because of a lack of work. I hold that the Complainant was terminated without just cause. His termination resulted because Flight Operations was successful in obtaining control of the Computer Assisted Training Programme. |
[5] The respondent's former duties are outlined in Appendix "A" to the adjudicator's award. Evidence was adduced before the adjudicator with respect to whether these duties were performed after his employment was terminated. One of these duties consisted of "authoring". The evidence was that this duty was henceforward to be performed by the aircraft manufacturer in Toulouse, France. The adjudicator found at page 9 of his award that:
| ... aside from the authoring functions, the work done by the Complainant was continued by other employees of Canadian. |
[6] There is, indeed, evidence that the bulk of the remaining functions were performed by simulator technicians who took over computer assisted training for Flight Operations and Maintenance and Repairs, and that the respondent did not have the ability to work on flight simulators used for training flight crew.
[7] In dismissing the appellant's application for judicial review of the award, the learned Motions Judge stated, at page 5 of his reasons:
| Thus, the applicant's complaint reduces itself to one with respect to the Adjudicator's assessment of the evidence before him, but I find no fault with his treatment of the evidence nor his conclusion. In his view, the facts demonstrated the respondent's position was not eliminated because of "cost saving measures" as alleged by Canadian Airlines, but rather because of an inter-divisional conflict which, when resolved in favour of Flight Operations, led to Mr. Husain's dismissal. That was a finding entirely within his jurisdiction and supported by the evidence before him. |
[8] In Flieger v. New Brunswick, [1993] 2 S.C.R. 651, the Supreme Court of Canada was faced with construing the language of subsection 26(1)of the Civil Service Act, S.N.B. 1984, c. C-5.1 which contains the same phrase "discontinuance of a function" as appears in subsection 242(3.1) of the Code. At page 664, Cory J. writing for the majority stated:
| Therefore, a "discontinuance of a function" will occur when that set of activities which form an office is no longer carried out as a result of a decision of an employer acting in good faith. For example, if a particular set of activities is merely handed over in its entirely to another person, or, if the activity or duty is imply given a new and different title so as to fit another job description then there would be no "discontinuance of a function". On the other hand, if the activities that form part of the set or bundle are divided among other people such as occurred in Mudarth, supra, there would be a "discontinuance of a function". Similarly, if the responsibilities are decentralized, as happened in Coulombe, supra, there would also be a "discontinuance of a function". |
[9] A review of the record satisfies us that the appellant is correct in its submission that the respondent's former job functions are no longer intact, and are being performed elsewhere or have been added to the job functions of existing employees or are no longer being performed within the appellant's operations. In short, the bundle of work functions formerly performed by the respondent have been decentralized or are being performed outside of those operations by the aircraft manufacturer. As the adjudicator found, apart from the authoring functions, the work done by the respondent was continued by other employees of the appellant.
[10] The decision to discontinue a function or functions must, as Cory J. stated in Flieger, supra, be made "in good faith". The respondent pointed to some features of the record as indicating an absence of good faith. We have considered whether in fact the record does contain any clear evidence that the decision to terminate the respondent's employment was not a good faith decision. In our view no such evidence exists. While the adjudicator mentioned these same features in his award, he made no specific finding that the appellant had acted in bad faith.
[11] We conclude, therefore, that the adjudicator erred in his interpretation of subsection 242(3.1) of the Code and his application of that subsection to the factual record before him. In effect, therefore the adjudicator was without jurisdiction to make the award. The Motions Judge correspondingly erred in law in upholding the award.
[12] The appeal will be allowed, the order of the Trial Division of March 3, 1995 set aside, the application for judicial review allowed and the award of the adjudicator of October 6, 1993, is quashed.
"A.J. Stone"
J.A.
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
DOCKET: A-193-95
| STYLE OF CAUSE: CANADIAN AIRLINES INTERNATIONAL LTD. |
- and -
| IMTAZ HUSAIN |
DATE OF HEARING: MAY 5, 1998
PLACE OF HEARING: TORONTO, ONTARIO
REASONS FOR JUDGMENT OF THE COURT BY: STONE, J.A.
Delivered from the Bench at Toronto, Ontario
on Tuesday, May 5, 1998
APPEARANCES: Mr. William J. McNaughton
For the Appellant
Mr. Michael B. Fraleigh
Mr. Stephen Shantz
For the Respondent
SOLICITORS OF RECORD: Smith Lyons
5800-40 King Street West
Toronto, Ontario
M5H 3Z7
For the Appellant
McCarthy Tétrault
4700 TD Bank Tower
P.O. Box 48
Station Toronto Dominion
Toronto, Ontario
M5K 1E6
For the Respondent
| FEDERAL COURT OF APPEAL |
| Date: 19980506 |
| Docket: A-193-95 |
| BETWEEN: |
| CANADIAN AIRLINES INTERNATIONAL LTD. |
| Appellant |
| -and- |
| IMTAZ HUSAIN |
| Respondent |
| REASONS FOR JUDGMENT OF THE COURT |