Chalifoux v. Driftpile First Nation
T-1738-98
Campbell J.
21/5/99
8 pp.
Judicial review of Adjudicator's decision awarding applicant compensation for unjust dismissal, but declining to order reinstatement-Canada Labour Code, s. 242(4) granting Adjudicator wide discretion to grant compensation, reinstatement, other equitable remedy-Adjudicator holding no reason to depart from general proposition that in most cases of unjust dismissal award measuring compensation employee would have received had reasonable notice been given appropriate, equitable-Erred in law in not conforming with weighing of considerations requirement respecting reinstatement expressed in Atomic Energy of Canada Ltd. v. Sheikholeslami, [1998] 3 F.C. 349 (C.A.)-Atomic Energy binding although approach to be adopted in applying discretion to award reinstatement under s. 242(4)(b) matter of debate, ex. Ball, Stacey Reginald in Canadian Employment Law (Aurora, Ontario: Canada Law Book, 1996) of opinion reinstatement norm, and will not be ordered only in situations where relationship between parties soured past point of repair versus Grosman's (Grosman, M. Norman) view expressed in Federal Employment Law in Canada (Toronto: Carswell, 1990) reinstatement should be limited to unique circumstances where real prospect of viable working relationship between parties exists-Marceau J.A. stating in Atomic Energy unfair dismissal provision for non-unionized employees in Canada Labour Code simply providing for reinstatement as possible remedy that may be resorted to in proper situations-Létourneau J.A. stating finding of unjust dismissal finding work relationship should not have been severed, therefore presumption favours reinstatement unless clear evidence to contrary-Establishing principle that in exercise of discretion under s. 242(4)(b) adjudicator must weigh considerations for, against such award, including as far as Marceau J.A. concerned, evaluation of nature of employer/employee relationship at time reinstatement being considered-Atomic Energy not restricted to facts (argument for reinstatement by employee found to be dishonest) because Marceau, Létourneau JJ.A.'s comments expressed as statements of general principle-By being forced to take teaching position off Driftpile reserve, applicant forced to work, and/or reside in another community; thus separated from family still living on Driftpile Reserve; and because status Indian, by having to accept employment off-Reserve, applicant required to pay income tax-Adjudicator neither addressing such real, important considerations nor mentioning relationship between parties, except for findings of fact that applicant's 1996 teaching evaluation excellent, had never received negative teaching evaluation, yet not recommended for continued employment-Only directing addressing considerations respecting reinstatement that applicant otherwise employed, respondent would have to dismiss teacher if applicant reinstated-Not conducting required analysis patently unreasonable error in law-Adjudicator's decision set aside with respect to reinstatement only-Issue referred back for reconsideration on direction such reconsideration include weighing all considerations for, against award, reinstatement including fact award of compensation made-Canada Labour Code, R.S.C., 1985, c. L-2, s. 242(4).