Federal Court of Appeal Orders Redetermination
The Federal Court of Appeal recently ruled that an adjudicator’s decision in an unjust dismissal case was unreasonable. In doing so, the court ordered the case to be redetermined by another adjudicator.
Background: Maternity Leave and Job Elimination
The facts of the case are rather particular. The complainant took a maternity leave, during which time her business analyst position was backfilled. Upon returning from her maternity leave, the complainant worked alongside her fellow business analyst who previously backfilled her position. The employer then engaged in corporate downsizing, and determined it only needed one business analyst, choosing to lay off the complainant.
Adjudicator’s Decision: Employer Acted in Good Faith
The adjudicator determined the employer engaged in a good faith restructuring. Further, the adjudicator found that the employer decided to retain the complainant’s fellow employee because the fellow employee had more seniority, and the employer believed they also had more experience in the position. The adjudicator determined that the complainant was reinstated after her leave, and that her maternity leave was not a factor in the decision to terminate her.
Complainant’s Argument: Discriminatory Impact of Selection Criteria
However, the court noted that the adjudicator failed to consider another argument that the complainant made. Namely, the argument that the employer’s decision was ultimately discriminatory because the selection criteria adversely affected the complainant due to her maternity leave, hence the dismissal was unjust. The complainant argued that discounting time she spent on maternity leave was discriminatory. Furthermore, she argued that there cannot be proper lay off for shortage of work or discontinuance of function if that lay off violates the maternity leave protections of the Canada Labour Code, which requires an employee’s employment and seniority be deemed continuous through maternity leave.
Judicial Review and the Federal Court’s Overreach
After the adjudicator decided that the complainant was not unjustly dismissed, she pursued a judicial review at the Federal Court. The Federal Court ultimately upheld the adjudicator’s award but did so by making a decision on the arguments which the adjudicator ultimately did not. The Federal Court of Appeal rightly noted that a reviewing court is limited in its functions on judicial review in an unjust dismissal case. In citing the Supreme Court’s decision in Vavilov, the Federal Court of Appeal noted that “a reviewing court should not step in and decide issues of significance that are relevant to the outcome that were argued before the administrative decision maker that the decision maker neglected to consider”. Unfortunately, that is precisely what the Federal Court did in its decision. Instead, the Federal Court should have focused on the reasons given by the adjudicator and determined whether the adjudicator properly considered the arguments before them. In this case, the Federal Court of Appeal noted that, had the Federal Court done so, “it would have been apparent that the adjudicator’s decision was unreasonable for its failure to address important arguments advanced by the appellant”.
Federal Court of Appeal’s Decision: Unreasonable Ruling Warrants Redetermination
The Federal Court of Appeal noted that the complainant’s arguments regarding discrimination and violation of the maternity leave provisions in the Code were substantive and formed an important part of her case. While the Court did acknowledge that adjudicators do not need to respond to every possible line of analysis, failure to consider key issues or central arguments raised by the parties can undermine the reasonableness of an adjudicator’s decision. The Court also acknowledged that case law supported the argument that decisions are discriminatory if one of the factors it relied on was discriminatory. Further, the Court indicated that the employer’s approach to the Code violates the statutory protections of the minimum standards legislation. Nevertheless, the Court did not determine these issues, indicating that to do so would place it in the same error that the Federal Court made. Instead, the Court ordered that the complaint be considered by a different adjudicator for the alternative arguments she raised which had not been considered by the adjudicator.