Judgments

[1994] 3 .F.C. 376

T-1069-92

Norway House Indian Band (Applicant)

v.

George N. Bass, Q.C. and Florence Jean Duncan (Respondents)

and

Assembly of Manitoba Chiefs—Secretariat Inc. (Intervenor)

Indexed as: Norway House Indian Band v. Canada (Adjudicator, Labour Code) (T.D.)

Trial Division, Muldoon J.—Winnipeg, December 14, 1992; Ottawa, March 16, 1994.

Labour relations — Application to set aside labour adjudicator’s decision Indian Band employee unjustly dismissed — Adjudicator having jurisdiction — Labour relations field in regard to Indians manifesting federal competence, paramountcy — Creation of Bands, councils and their workings constituting federal work, undertaking or business — Meaning of “business” — Band subject to Canada Labour Code — Adjudicator exceeding jurisdiction by conducting hearing in patently unreasonable manner in not warning complainant of consequences of failure to testify, not applying consequences to her case, indifference to loss of opportunity to cross-examine, resulting in erroneous conclusions, apparent bias in drawing all adverse inferences against employer — Also erred in considering Band custom, disregarding cases on wrongful dismissal.

Judicial review — Application to set aside labour adjudicator’s decision Indian Band employee unjustly dismissed — Canada Labour Code, s. 243 providing every order of Adjudicator appointed under s. 242 final, not reviewable in any court — Review of case law on judicial review of such “protected” decisions — Court will transcend s. 243 only if adjudicator so patently unreasonably exceeded jurisdiction that perverted, evaded, avoided or contradicted will of Parliament — When issue going to tribunal’s jurisdiction, standard governing judicial review that of correctness — Adjudicator must not make any error in exercising powers — Adjudicator conducting hearing in patently unreasonable manner — Although decision set aside, matter remaining unadjudicated as no one to refer matter back to, outside Court’s jurisdiction to either order Minister to appoint new adjudicator or order adjudicator to dismiss complaint as outcome uncertain — Decision set aside because of manner of conducting hearing.

Evidence — Adjudication of Canada Labour Code complaint Indian Band employee wrongfully indefinitely suspended without pay — Complainant failing to testify — Adjudicator criticizing employer for not calling certain evidence while not criticizing complainant — Not criminal trial where judge prohibited from admonishing accused to testify — While complainant not compelled to testify, consequences would be adverse inferences by Adjudicator — Adjudicator should have encouraged complainant to testify — Should have drawn all adverse inferences open to him — Review of cases, legal writing on failure to produce cogent evidence — Criminal law cases on loss of opportunity to cross-examine applicable herein.

Constitutional law — Distribution of powers — Labour relations in regard to Indians within federal competence, paramountcy — Creation of Bands, councils and their workings constituting federal work, undertaking, business.

Estoppel — Application to set aside labour adjudicator’s decision Indian Band employee unjustly dismissed — Before adjudicator parties agreeing employment in connection with federal work — Applicant not estopped from contesting Adjudicator’s jurisdiction — If Adjudicator not having jurisdiction, never had jurisdiction and consent thereto immaterial.

Native peoples — Band subject to Canada Labour Code — Labour relations in regard to Indians within federal competence, paramountcy — Creation of Bands, councils and their workings constituting federal work, undertaking, business.

This was an application to set aside a decision of an Adjudicator appointed under the Canada Labour Code, section 242 that a Band employee had been unjustly dismissed. Section 242 is found within Division XIV of Part III of the Code dealing with unjust dismissal. Part III applied to employment in, or in connection with, the operation of any federal work, undertaking or business. The grounds for this application were: (1) that the Band did not come within that legislation because it was not a “federal work, undertaking or business”, or (2) the Adjudicator had lost his jurisdiction because of his conduct of the hearing.

The respondent Duncan, who had been the complainant in the proceedings before the Adjudicator, was suspended without pay in February 1991 for an indefinite period for allegedly participating in certain activities to undermine and discredit the actions of the Chief and Band Council, specifically her alleged participation in an incident involving pushing and shouting which occurred at a radio station when the Chief and some councillors arrived to make an address. The Adjudicator summarized the testimony of several witnesses, and characterized the foundation for one eye-witness’ conclusions as to the complainant not being respectful of elected leaders and trying to oust them from power as hearsay, and did not give much weight to it. The complainant’s version of that incident was not given in testimony. Although there was no probative evidence that the complainant had signed a letter requesting that certain funds be held in abeyance until consent was given by the Band members, the Adjudicator accordingly found that this was not valid justification for any employee discipline. The Adjudicator said that in reaching his decision he had considered Band customs of exacting peace, siblinghood harmony, co-operation with and caring for one’s neighbours, respecting all and defaming none. He “put little weight on the cases … which deal solely with wrongful dismissal.” He interpreted the Code as developing the common law by being legislation dealing with unfair or unjust dismissal, and having in mind a broader range of problems than would be addressed if one were to read “unjust dismissal” as incorporating the substantive test of cause as propounded by the courts in wrongful dismissal cases. The applicant alleged that the Adjudicator appeared biased by not requiring the complainant to testify on matters from which he drew inferences adverse to the employer. The Band submitted that the resulting process and decision were unfair because the employer had not had an opportunity to cross-examine the complainant, and because the Adjudicator did not even consider drawing negative inferences against the complainant when he ought to have done so in light of her failure to testify. The respondent alleged that the applicant was estopped from arguing that the Adjudicator lacked jurisdiction because it had consented to the Adjudicator’s jurisdiction in the first instance. Before the Adjudicator the parties had agreed that the complainant’s employment was in connection with the operation of a federal work.

Code, section 243 provides that every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

Held, the application should be allowed.

The applicant was not estopped from contesting the Adjudicator’s jurisdiction. If the Adjudicator had no jurisdiction, then he never had jurisdiction, and consent to his jurisdiction would be immaterial.

The Court will transcend the protective provisions of section 243 only if it is demonstrated that the Adjudicator has so patently unreasonably stepped outside of the jurisdiction which Parliament conferred that the Adjudicator can be clearly perceived to have perverted, evaded, avoided or contradicted the will of Parliament. When the issue goes to the jurisdiction of the tribunal, the standard governing judicial review of such protected decisions is one of correctness, meaning that the Adjudicator must not have made any error in exercising the powers conferred by Division XIV.

The Adjudicator had jurisdiction. Ordinarily labour relations fall within provincial jurisdiction as a matter of property and civil rights, but here the employer was a creature of Parliament and the employment operated under the Indian Act, all within the competence of the Parliament of Canada. Case law has established that the labour relations field in regard to “Indians, and Lands reserved for the Indians” manifests not only federal competence, but federal paramountcy. In order to find federal jurisdiction, it is necessary to further find that the creation of Indian bands, councils, and their workings do constitute a federal work, undertaking or business. In this context, “business” is what a government is to do, what powers it may wield pursuant to the Constitution. It does not connote commercial business for profit, but the constitutional array of legitimate legislative subjects of Parliament or the legislatures, and the activities generated therefrom. The creation, activities and operations of the applicant, and the work for which the applicant employed Ms. Duncan constituted a “federal work, undertaking or business” within the meaning of paragraph 2(i) of the Canada Labour Code.

If the question of law at issue is within the tribunal’s jurisdiction, it will exceed it only if it errs in a patently unreasonable manner. The Adjudicator’s order herein had to be set aside because it was the result of patently unreasonable proceedings, considerations and conclusions. The eye-witness’ account of the chaotic incident at the radio station was not hearsay. The complainant’s version of that incident was not given in testimony, thus denying the employer’s counsel the opportunity of cross-examination. In picking at the employer’s witnesses’ credibility, while blandly accepting testimony alleging malice on the Chief’s part and remaining silent as to certain inconsistencies in that evidence, the Adjudicator’s conduct gave rise to a reasonable apprehension of bias. Matters recounted in the Adjudicator’s reasons cried out for the complainant’s testimony, and the employer’s opportunity to cross-examine her. Without the complainant’s testimony in chief, tested by cross-examination, the Adjudicator was misled into making a wrong finding. He rejected one of the employer’s main contentions without hearing the complainant’s testimony as to whether the signature on the letter was hers or not. This disposition was an egregious error of fact and was patently unreasonable. The Adjudicator also displayed a lack of objectivity by criticizing the employer’s failure to call evidence but never criticizing the complainant’s failure to testify on many crucial, as well as peripheral issues.

Unless summoned to testify on subpoena, there is nothing in law to compel the complainant to testify, but she must thereby face the consequences, namely adverse inferences by the Adjudicator. He drew no adverse inferences regarding the complainant, only regarding the employer (Chief and Councillors) who did testify. The Adjudicator recited evidence which required the complainant to respond on pain of adverse inference. He should have warned the complainant about the consequences of failing to testify and encouraged her to testify. By not doing so he acquiesced in denying the employer the opportunity of cross-examination. Since she declined to testify on the substantive issues, the Adjudicator ought to have drawn all those adverse inferences open to him, which might have produced the dismissal of her complaint. The Adjudicator’s failure in that regard gives the appearance of bias. His failure to warn, to give any heed to the legal concept of adverse inferences in regard to the complainant’s case, his indifference to the employer’s loss of opportunity to cross-examine the complainant, to relate that loss to the signature about which he came to the dubious and wrong conclusion without any testimony of the complainant on that matter and accordingly found no justification for employment discipline thereby, his apparent bias in drawing all, or almost all adverse inferences against the employer, evinced patently unreasonable conduct of the inquiry. All the above created a probability that if the Adjudicator had not failed in the above-recited respects, the result would have favoured the employer.

The Adjudicator’s conclusions on unjust, as distinct from unlawful or illegal, dismissal and disregard for the case law on wrongful dismissal were a self-misdirection and egregious error in law. It was also an error of law to take account of Band customs in formulating conclusions of law. An Adjudicator appointed by secular authority must apply only secular law.

While affirming the allegations in the originating notice of motion, the Court could not proclaim that the Adjudicator was certainly biased. Although there was an appearance of bias, it was not a certainty. The Adjudicator was not a full-time, career, institutional board, commission or other tribunal, but an individual selected ad hoc and uniquely to perform a single, one-time adjudication, without any institutional expertise or collegiality. He was not a member of a board, commission or other tribunal to one of whose colleagues the adjudication could be referred to start all over again. The Court could neither order the Minister to appoint a new adjudicator nor on judicial review give the decision or order which the Adjudicator ought to have given. It could not order the Adjudicator to dismiss the complaint as it was not certain that he ought to have dismissed it—it was only certain that he approached his task and performed it in a patently unreasonable manner and came to a highly tainted conclusion which may be characterized as patently unreasonable. Thus, although the Adjudicator’s decision must be set aside, the complaint remained unadjudicated.

STATUTES AND REGULATIONS JUDICIALLY CONSIDERED

Assessment Act (The), R.S.O. 1914, c. 195.

Canada Labour Code, R.S.C., 1985, c. L-2, ss. 2 (as am. by S.C. 1990, c. 44, s. 17), 18, 166, 167(1)(a),(b),(c),(3), 168(1), 240 (as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15 ), 241(3), 242 (as am. idem, s. 16), 243, 244.

Constitution Act, 1867, 30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5], ss. 91, 92.

Criminal Code, R.S.C. 1970, c. C-34, s. 643 (as am. by S.C. 1974-75-76, c. 93, s. 76).

Federal Court Act, R.S.C., 1985, c. F-7, ss. 18 (as am. by S.C. 1990, c. 8, s. 4), 18.1 (as enacted idem, s. 5), 57 (as am. idem, s. 19).

Federal Court Rules, C.R.C., c. 663. RR. 301.1 (as enacted by SOR/92-43, s. 2), 1101, 1611 (as enacted idem, s. 19), 1618 (as enacted idem).

Indian Act, R.S.C., 1985, c. I-5.

CASES JUDICIALLY CONSIDERED

APPLIED:

Canadian National Railway Co. v. Canadian Transport Commission, [1988] 2 F.C. 437; (1987), 13 F.T.R. 52 (T.D.); Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724; (1993), 108 D.L.R. (4th) 1; 160 N.R. 321; Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72; (1982), 139 D.L.R. (3d) 9; 82 CLLC 14,208; [1982] 4 C.N.L.R. 94; 44 N.R. 136; Francis v. Canada Labour Relations Board, [1981] 1 F.C. 225; (1980), 80 CLLC 14,048; 33 N.R. 56 (C.A.); Qu’Appelle Indian Residential School Council v. Canada (Canadian Human Rights Tribunal), [1988] 2 F.C. 226; (1987), 10 C.H.R.R. D/5476; [1989] 2 C.N.L.R. 99; 14 F.T.R. 31 (T.D.); Tobique Band Council v. Sappier (1988), 22 C.C.E.L. 170; 87 N.R. 1 (F.C.A.); Keelan et al. v. Norray Distributing Ltd. et al. (1967), 62 D.L.R. (2d) 466; [1967] 60 W.W.R. 129 (Man. Q.B.); Canadian Pacific Air Lines Ltd. v. CALPA (1989), 59 D.L.R. (4th) 384; 95 N.R. 255 (F.C.A.); Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729; (1977), 76 D.L.R. (3d) 85; 77 CLLC 14,073; 14 N.R. 72; R. v. Paul Indian Band and Attorney General of Alberta and Attorney General of Canada (1983), 50 A.R. 190; [1984] 2 W.W.R. 540; 29 Alta. L.R. (2d) 310; [1984] 1 C.N.L.R. 87 (C.A.).

DISTINGUISHED:

Township of Cornwall v. Ottawa and New York Railway Co. et al. (1916), 52 S.C.R. 466; 30 D.L.R. 664.

CONSIDERED:

Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227; (1979), 25 N.B.R. (2d) 237; 97 D.L.R. (3d) 417; 51 A.P.R. 237; 79 CLLC 14,209; 26 N.R. 341; Teamsters Union, Local 938 v. Massicotte et al., [1982] 1 S.C.R. 710; (1982), 134 D.L.R. (3d) 385; 82 CLLC 14,196; 44 N.R. 340; Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983; (1989), 62 D.L.R. (4th) 437; [1989] 6 W.W.R. 673; 40 Admin. L.R. 181; 40 B.C.L.R. (2d) 1; 89 CLLC 14,050; 102 N.R. 1; Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614; (1991), 80 D.L.R. (4th) 520; 48 Admin. L.R. 161; 91 CLLC 14,017; 123 N.R. 161; Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941; (1993), 101 D.L.R. (4th) 673; 150 N.R. 161; Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230; (1993), 102 D.L.R. (4th) 609; 152 N.R. 1; Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al., Re (1982), 135 D.L.R. (3d) 128; [1982] 3 W.W.R. 554; 15 Sask. R. 37 (Sask. C.A.); Lount Corporation v. Attorney General of Canada, [1984] 1 F.C. 332; (1983), 2 D.L.R. (4th) 723; [1984] 2 W.W.R. 152; 77 C.P.R. (2d) 35 (T.D.); affd [1985] 2 F.C. 185; (1985), 19 D.L.R. (4th) 304; [1986] 6 W.W.R. 385; 6 C.P.R. (3d) 145; 59 N.R. 212 (C.A.); Barnes v. Union SS. Ltd., [1954] 4 D.L.R. 267; (1954), 13 W.W.R.(N.S.) 72; 71 C.R.T.C. 334 (B.C.S.C.); affd [1955] 2 D.L.R. 564; (1955), 14 W.W.R. 673; 72 C.R.T.C. 280 (B.C.C.A.); Pick (Otto) & Sons Seeds Ltd. v. Thomson (W.D.) Enterprises Ltd. and Thomson (1989), 100 N.B.R. (2d) 136; 252 A.P.R. 136 (Q.B.); Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848; (1989), 101 A.R. 321; 62 D.L.R. (4th) 577; [1989] 6 W.W.R. 521; 70 Alta. L.R. (2d) 193; 40 Admin. L.R. 128; 36 C.L.R. 1; 99 N.R. 277; Bond v. New Brunswick (Board of Management) (1992), 122 N.B.R. (2d) 351 (Q.B.); Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster, Re (1983), 147 D.L.R. (3d) 637; 45 B.C.L.R. 258; 22 M.P.L.R. 318 (B.C.S.C.).

REFERRED TO:

Toronto Newspaper Guild v. Globe Publishing Co., [1953] 2 S.C.R. 18; [1953] 3 D.L.R. 561; 106 C.C.C. 225; Jarvis v. Associated Medical Services Inc. et al., [1964] S.C.R. 497; (1964), 44 D.L.R. (2d) 407; 67 CLLC 15,511; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382; (1973), 41 D.L.R. (3d) 6; [1974] 1 W.W.R. 653; Public Service Alliance of Canada and Treasury Board and Econosult Inc. (1988), 13 P.S.S.R.B. Decisions 6; Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al., [1986] 1 S.C.R. 549; (1986), 69 N.B.R. (2d) 271; 27 D.L.R. (4th) 406; 177 A.P.R. 271; 66 N.R. 173; R. v. Davidson (1988), 42 C.C.C. (3d) 289 (Ont. C.A.); Murray v. Saskatoon, [1952] 2 D.L.R. 499; (1951), 4 W.W.R.(N.S.) 234 (Sask. C.A.).

AUTHORS CITED

Canadian Abridgment, second edition. vol. R15. Evidence. Toronto: Carswell, 1991.

Cross, Rupert Sir. Cross on Evidence, 7th Ed. by Rupert Cross and Colin Taper. London: Butterworths, 1990.

Sopinka, John and Sidney N. Lederman. The Law of Evidence in Civil Cases. Toronto: Butterworths, 1974.

APPLICATION to set aside a labour adjudicator’s decision that an Indian Band employee had been unjustly dismissed. Application allowed.

COUNSEL:

Sidney Green, Q.C. for applicant and intervenor.

Martin J. Pollock for respondent Florence Jean Duncan.

SOLICITORS:

Sidney Green, Q.C., Winnipeg, for applicant and intervenor.

Pollock & Company, Winnipeg, for respondent Florence Jean Duncan.

APPEARANCE:

George N. Bass, Q.C., Brandon, Manitoba, appearing on his own behalf.

The following are the reasons for order rendered in English by

Muldoon J.: The Assembly of Manitoba Chiefs—Secretariat Inc. was granted leave to intervene in this hearing of the application for judicial review pursuant to an order by Madam Justice McGillis dated September 29, 1992. It supports the applicant herein, and both organizations were represented by the same counsel, Sidney Green, Q.C.

The applicant seeks to have set aside the decision dated April 21, 1992, of an adjudicator appointed pursuant to Division XIV—Part III of the Canada Labour Code , R.S.C., 1985, c. L-2.

The applicant mounts two attacks against the jurisdiction of the Adjudicator, George N. Bass, Q.C. in this matter. The first attack is to the effect that the Band, as respondent, whether by its council or by the totality of its individual members, does not come within the relevant sections of the Code which “are applicable only to a federal work, undertaking or business and the Norway House Indian Band is not a federal work, undertaking or business.” The reference is obviously made to section 167 in Part III of the Code, in which is included Division XIV. This issue relates to statutory jurisdiction. In the alternative, the applicant alleges that the Adjudicator lost his jurisdiction because in his conduct of the hearing and in formulating his decision he “erred in law in [12 various stated] respects” and that his “decision is based on erroneous facts and was made in a perverse or capricious manner without regard to the material before him as herein … enunciated.” This alternative issue relates to the Adjudicator’s loss of jurisdiction because of his conduct.

ESTOPPEL

The above-recited issues are truly what are in serious contention in these proceedings. However, the respondent Duncan, among the “points to be argued,” in her filed application record, raises the matter of the applicant’s alleged estoppel “from arguing before this Honourable Court that the adjudicator lacked jurisdiction due to the appellant [sic], as a party to the litigation, consenting to the adjudicator’s jurisdiction at first instance.” Indeed in Part II of his written decision, titled Jurisdiction, the Adjudicator stated that the parties, by counsel, had agreed that “Ms. Duncan’s employment was in, or in connection with the operation of a federal work: s. 167(1) Code” among other points tracking specific statutory provisions. The applicant contends that it is not estopped.

In support of her contention that the applicant is estopped from pursuing any remedy on judicial review, the respondent cites Township of Cornwall v. Ottawa and New York Railway Co. et al. (1916), 52 S.C.R. 466, a case of which Mr. Justice Idington, in dissent, wrote (at page 476) “This appeal comes to us under somewhat peculiar circumstances.” So it did, but its ratio really has little to do with estoppel. That case of Township of Cornwall v. Ottawa and New York Railway Co. et al. concerned a municipal assessment appeal procedure around the township’s purported taxation of the railway’s bridge over the St. Lawrence River. The Assessment Act, R.S.O. 1914, c. 195, provided a series of appeals from imposed assessability: 1) township Court of Revision; 2) County Court Judge; 3) Ontario Railway and Municipal Board; and 4) the Divisional Court. The parties to the appeal, by consent, overleapt the second stage appeal to the county judge and presented themselves and the appeal to the board “as if it [the appeal] had gone before the county judge and we’re appealing against an adverse decision of the county judge.” At the outset the Board stated [at page 468] it had “no jurisdiction to entertain an appeal from the Court of Revision; an appeal only lies to the Board only from the county judge.” However, it ultimately yielded in face of the parties’ consent.

Chief Justice Sir Charles Fitzpatrick and Mr. Justice Idington dissented from the ratio of the majority holding, in effect, that where there is ab initio no jurisdiction vested in a tribunal to adjudicate a particular matter, all the consenting in the world cannot vest the tribunal with that jurisdiction, which was never conferred by appropriate legislation. Indeed the correctness of that posture is self-evident, for otherwise a tribunal created for a certain purpose (i.e. to entertain appeals from the county judge) could, if word got out, be recast into a different tribunal with a different caseload from that which the legislature created and foresaw. Consent cannot override the will of the legislature, provincial or federal.

The ratio of the Township of Cornwall v. Ottawa and New York Railway Co. et al. case appears to be a narrow reliance upon the fact that the face of the Board’s record contains no admission that it acted without jurisdiction, and so, according to Messrs. Justices Davies, Duff and Anglin (all future Chief Justices of Canada), the appeals both to and from the Divisional Court appeared to be regularly taken. Davies J. wrote concisely, at pages 472-473:

On the question of jurisdiction I have reached the conclusion that the Divisional Court of Appeal had jurisdiction to grant leave to appeal from the judgment of the Railway Board and to hear and determine the question of law raised, and that the appeal to this court from their judgment is competent.

Mr. Justice Duff wrote this pithy passage, at page 493:

I have no difficulty in holding that the appeal lies. The judgment of the Court of Appeal is ex facie a judgment pronounced in an appeal regularly before the court after leave given under section 80 of the “Assessment Act”. There is not a suggestion in the formal judgment, in the reasons for judgment, in the order giving leave to appeal that the court was acting otherwise than in the normal course. It must, therefore, be taken in the absence of evidence to the contrary, and there is none, that the appeal was heard and judgment was pronounced in the ordinary course of jurisdiction.

Mr. Justice Anglin came by his lights to the same conclusion, as reported on pages 509-510.

This is the first-instance curial review of the Adjudicator’s decision in this case and this Court will not conclude the question of jurisdiction according to the parties’ previous consent, nor on the basis of the applicant’s estoppel from raising the question here. A strong, clear statement of the principle is found, at pages 449-450 of the decision of McNair J. of this Court, in Canadian National Railway Co. v. Canadian Transport Commission, [1988] 2 F.C. 437. If the Adjudicator had no jurisdiction as the applicant now asserts, then he never had jurisdiction and that consent would be immaterial, except perhaps as to costs. Costs here, on judicial review, are not to be awarded “unless the Court, for special reasons, so orders” according to Rule 1618 [Federal Court Rules, C.R.C., c. 663 (as enacted by SOR/92-43, s. 19)]. The Court finds that the applicant is not estopped from contesting the adjudicator’s jurisdiction to adjudicate the matter.

ISSUE OF STATUTORY JURISDICTION

The Code’s pertinent provisions obviously constitute the starting point for the enquiry into this issue. The second section [as am. by S.C. 1990, c. 44, s. 17] of the Act expresses pertinent definitions:

2. In this Act,

“federal work, undertaking or business” means any work, undertaking or business, that is within the legislative authority of Parliament, including, without restricting the generality of the foregoing,

…

(i) a work, undertaking or business outside the exclusive legislative authority of the legislatures of the provinces, and

The Adjudicator herein was appointed and empowered to act, and restricted as to his jurisdiction, all pursuant to section 242 [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 16] of the Labour Code. This provision is found within Division XIV “Unjust Dismissal”, of Part III of that Act.

Part III contains its own further pertinent definitions:

166. In this Part,

…

“employer” means any person who employs one or more employees;

…

167. (1) This Part applies

(a) to employment in or in connection with the operation of any federal work, undertaking or business, other than a work, undertaking or business of a local or private nature, in the Yukon Territory or the Northwest Territories;

(b) to and in respect of employees who are employed in or in connection with any federal work, undertaking or business described in paragraph (a);

(c) to and in respect of any employers of the employees described in paragraph (b); and

…

(3) Division XIV does not apply to or in respect of employees who are managers.

168. (1) This Part and all regulations made under this Part apply notwithstanding any other law or any custom, contract or arrangement, but nothing in this Part shall be construed as affecting any rights or benefits of an employee under any law, custom, contract or arrangement that are more favourable to the employee than his rights or benefits under this Part.

Within Division XIV there are the following pertinent provisions:

242. (1) … [appointment of adjudicator]

(2) An adjudicator to whom a complaint has been referred under subsection (1)

(a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;

(b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and

(c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Labour Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).

(3) Subject to subsection (3.1) [no adjudication where complainant was laid off] an adjudicator to whom a complaint has been referred under subsection (1) shall

(a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and

…

(4) Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to

(a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person;

(b) reinstate the person in his employ; and

(c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal.

It may seem strange that this litigation is even entertained by this Court, since it seems to be contradicting the will of Parliament, in view of these provisions in Division XIV:

243. (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.

(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.

Finally section 244 provides that a copy of an adjudicator’s order may be filed in this Court, and registered to accord it the same force and effect as a judgment.

The undeniable and exclusive role of the Canadian judicature is not to usurp the function of the legislature, but rather to interpret officially the legislation which the latter enacts.

The Court presumes to transcend the protective provisions of section 243 only if it be demonstrated that the Adjudicator has so patently unreasonably stepped outside of the jurisdiction which Parliament conferred that the Adjudicator can be clearly perceived to have perverted, evaded, avoided or contradicted the will of Parliament. After all, the High Court of Parliament can hardly be convened for such matters which are the ordinary grist for the adjudicatory mills of the superior courts. Parliament’s protection of the adjudicators’ process awards and decisions is simply intended to cover a multitude of adjudicators’ “sins” so long as the manner of adjudication and the result be not patently unreasonable.

The above propositions are trite law as the jurisprudence discloses: Toronto Newspaper Guild v. Globe Publishing Co., [1953] 2 S.C.R. 18; Jarvis v. Associated Medical Services Inc. et al., [1964] S.C.R. 497; Service Employees’ International Union, Local No. 333 v. Nipawin District Staff Nurses Association et al., [1975] 1 S.C.R. 382; Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corporation, [1979] 2 S.C.R. 227, per Dickson J. [as he then was], having kept in mind the statute’s privative provision, at page 237:

Put another way, was the Board’s interpretation so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review? [Emphasis not in original text.]

Teamsters Union, Local 938 v. Massicotte et al., [1982] 1 S.C.R. 710, per Laskin C.J. for the Court, at page 719:

I do not see in these passages [from the above cited Nipawin case] any basis for questioning the jurisdiction exercised in the present case by the Canada Labour Relations Board. Essentially, this Court has admonished that there must be no failure of natural justice (and there was none here) and that the Board should address itself to an issue arising under the legislation which it is charged to administer. If it has done this (as the Federal Court of Appeal held and, in my opinion, rightly so) there can be no jurisdictional infirmity when the Board is protected in its determinations by a privative clause. It may be wrong in law in interpreting the range of powers confided to it but its decisions are nonetheless immunized from judicial review.

Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, reveals three judgments for each “pair” of the six judges who adjudicated, with La Forest J. and Dickson C.J. having the slightly variant concurrence of Sopinka and Lamer JJ. Here is a crucial passage written by La Forest J., at pages 1003-1004:

Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function; see Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in a manner “so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review” (p. 237). The test for review is a “severe test”; see Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result “patently unreasonable”. The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what result the tribunal has arrived at, but on how the tribunal arrived at that result. Privative clauses, such as those contained in ss. 31 to 34 of the Code, are permissible exercises of legislative authority and, to the extent that they restrict the scope of curial review within their constitutional jurisdiction, the Court should respect that limitation and defer to the Board. [Emphasis not in original text.]

Here is the slightly variant, but “important respect” in which Sopinka J. differs from his colleague, at pages 1017-1018:

While I agree generally with La Forest J. on the principles underlying the scope and standard of review of labour board decisions, I cannot agree that it is always necessary for the reviewing court to ignore its own view of the merits of the decision under review. Any adjudication upon the reasonableness of a decision must involve an evaluation of the merits. Reasonableness is not a quality that exists in isolation. When a court says that a decision under review is “reasonable” or “patently unreasonable” it is making a statement about the logical relationship between the grounds of the decision and premises thought by the court to be true. Without the reference point of an opinion (if not a conclusion) on the merits, such a relative statement cannot be made.

I share La Forest J.’s opinion of the importance of curial deference in the review of specialist tribunals’ decisions. But, in my view, curial deference does not enter the picture until the court finds itself in disagreement with the tribunal. Only then is it necessary to consider whether the error (so found) is within or outside the boundaries of reasonableness. The test is, as La Forest J. points out, citing Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, a “severe test”. But even here an appreciation of the merits is not irrelevant. Lamer J., speaking for himself and McIntyre J. in Blanchard, stated at pp. 494-95:

… though all errors do not lead to unreasonable findings, every unreasonable finding results from an error (whether of law, fact, or a combination of the two), which is unreasonable.

So long as the court is satisfied with the correctness of the tribunals’ decision, any reference to reasonableness is superfluous.

Canada (Attorney General) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, presents a six to one split decision, with Sopinka J., for the majority, being reported thus, at pages 629-630:

In determining whether there has been a simple error in interpreting a provision conferring or limiting jurisdiction, as in determining whether jurisdiction has been exceeded by a patently unreasonable error, a pragmatic, functional approach must be adopted. This emerges from the following statement of Beetz J. in Bibeault [[1988] 2 S.C.R. 1048] (at pp. 1088-89):

At this stage, the Court examines not only the wording of the enactment conferring jurisdiction on the administrative tribunal, but the purpose of the statute creating the tribunal, the reason for its existence, the area of expertise of its members and the nature of the problem before the tribunal. At this initial stage a pragmatic or functional analysis is just as suited to a case in which an error is alleged in the interpretation of a provision limiting the administrative tribunal’s jurisdiction: in a case where a patently unreasonable error is alleged on a question within the jurisdiction of the tribunal, as in a case where simple error is alleged regarding a provision limiting that jurisdiction, the first step involves determining the tribunal’s jurisdiction. (Emphasis added.)

…

Adopting a pragmatic and functional approach to the construction of these provisions, I have come to the conclusion that Parliament did not intend to confer jurisdiction on the Board with respect to the labour relations of employees who are not members of the Public Service. The Board by an error of law has assumed jurisdiction that it was not intended to have. Its decision is, therefore, reviewable. [Emphasis not in original text.]

Mr. Justice Sopinka, for the majority explained quite clearly why they did not defer to the decision of the PSSRB [Public Service Alliance of Canada and Treasury Board and Econosult Inc. (1988), 13 P.S.S.R.B. Decisions 6] in that PSAC v. R. case, at pages 630-631, thus:

In my opinion the wording of s. 33 itself, aided by the definition of the word “employee” provided by s. 2, is practically decisive in this case. Section 33 is intended to enable the Board to resolve any question as to whether an employee or class of employees is or is not included in a bargaining unit. In the absence of a definition of “employee”, it could be argued that the Board could determine who is an employee on the basis of tests that are generally employed in labour matters. These tests are customarily employed to resolve a dispute as to whether a person is an employee or an independent contractor. The express definition of “employee”, however, shows a clear intention by Parliament that it has decided the category of employee over which the Board is to have jurisdiction. It is restricted to persons employed in the Public Service and who are not covered by the Canada Labour Code. The Board’s function by the very words of s. 33 is not to determine who is an employee but rather whether employees who come within the definition provided, are included in a particular bargaining unit.

However one looks at the PSSRB’s conduct in this PSAC case, it is patently obvious that the PSSRB blundered outside of the jurisdiction which Parliament intended by enactment to confer on that Board.

Mr. Justice Cory in Canada (Attorney General) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, is reported, at page 957, as holding that on the question of its jurisdiction to entertain the complaint put before it, if the CLR Board made a simple error then it exceeded its jurisdiction. Regarding decisions made by a tribunal acting quite within its jurisdiction, the reviewing court must ensure that the tribunal’s decision was not patently unreasonable. If the question of law at issue is within the tribunal’s jurisdiction, it will exceed it only if it errs in a patently unreasonable manner.

The Supreme Court continued to refine the jurisprudence even after the judgment in Canada (Attorney General) v. Public Service Alliance of Canada in 1991. The development noted in Canada (Attorney General) v. Public Service Alliance of Canada (above), followed by Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230, presents a solid five-judge majority with somewhat variant opinions by Lamer C.J. and Cory J., this judgment being unanimous in the result to dismiss both the employer’s appeal and the union’s ill-founded and unargued cross-appeal. This case considered the jurisdiction of an arbitrator. The majority spoke through Mr. Justice La Forest, who wrote (at pages 250-251) the following:

The Court was not asked to review the arbitrator’s interpretation of the [collective] agreement at hand. Had that issue properly been before this Court, I have no doubt that the scope of our review of that aspect of the arbitration award would have been a narrow one—we would have embarked on a patent unreasonability enquiry. However, on the more general level at which the jurisdictional debate was engaged in this Court, I am of the view that the appropriate scrutiny of the arbitrator’s decision is to a standard of correctness. My reasons for this position are set out below, but at this juncture I should perhaps comment on this stratified approach to the issues arising from the arbitrator’s award.

To begin, I would not wish my conclusions on the standard of review in this case to be taken as a retreat from the deferential approach to judicial review of administrative tribunals since the decision of this Court in Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. Nor are the conclusions here inconsistent with the previous statements by this Court as to the appropriate scope of judicial review of arbitration awards made pursuant to s. 44 of the Act. This Court has stated in previous cases that courts should, as a matter of policy, defer to the expertise of the arbitrator in questions relating to the interpretation of collective agreements; … It is clear that an arbitrator has jurisdiction stricto sensu to interpret the provisions of a collective agreement in the course of determining the arbitrability of matters under that agreement. In that case the arbitrator is acting within his or her “home territory”, and any judicial review of that interpretation must only be to a standard of patent unreasonableness. But this is a different case. Here, the viability and subsistence of the collective agreement is challenged. The company alleges that regardless of the interpretation of the agreement, it cannot survive to serve as the basis for this arbitration. The collective agreement is the foundation of the arbitrator’s jurisdiction, and in determining that it exists or subsists the arbitrator must be correct.

La Forest J., on the principal appeal concluded, at page 305:

To summarize, I am of the view that retirement rights can, if contemplated by the terms of a collective agreement, survive the expiration of that agreement. Moreover, although it is not strictly necessary to decide the point in this appeal, I would also find that these surviving rights vest at the time of retirement, and would survive subsequent collective bargaining that purported to divest such rights. As such, I have concluded that the arbitrator’s general propositions in this respect were correctly stated, and the arbitrator had jurisdiction to hear the union’s grievance. Of course, I make no comment on whether the terms of the agreement between the company and the union do in fact create such a vested right. That is a question for the arbitrator to decide when the arbitration hearing proceeds on the merits.

Hard on the heels of the Dayco judgment, came the Supreme Court’s judgment in Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., [1993] 3 S.C.R. 724, a four-to-one decision with Mr. Justice Gonthier writing for the majority. It was a case concerning the powers of the Canada Labour Relations Board to compel production of documents prior to the commencement of a hearing, which came on appeal from the Federal Court of Appeal [(1989), 59 D.L.R. (4th) 384]. So far has the principle of reviewing questions of even “protected” administrative jurisdiction by ordinary criteria been advanced, that it suffices merely to quote a brief and preliminary analysis expressed by Gonthier J. in Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Assn., at page 735:

An analysis of the power granted to the Board by s. 118(a) of the Code first calls for a consideration of its wording. As the issue goes to the jurisdiction of the Board, the standard governing the judicial review of the Board’s order is one of correctness: U.E.S., Local 298 v. Bibeault, [1988] 2 S.C.R. 1048, and most recently Dayco (Canada) Ltd. v. CAW-Canada, [1993] 2 S.C.R. 230.

The standard of correctness for founding the Adjudicator’s jurisdiction means simply that the Adjudicator must not make any error in exercising the powers conferred by and under Division XIV. It is presumed that Parliament does not will the exceeding of those carefully crafted powers (and limitations) and that its privative clauses cannot have protection of such excesses as their purpose.

The Adjudicator exercised jurisdiction; and the applicant’s complaint about that, essentially comes at last to the interpretation of the statutory provisions. Did the Adjudicator act in consonance with those interpretations? The complaint asserts that the Adjudicator had no jurisdiction because the applicant Indian Band is simply not “any federal work, undertaking or business” as set forth in Code section 167, above recited.

In this regard, the applicant’s counsel admits:

We don’t deny we are the employer. There is no [dispute]; we are not saying that we are not the employer. You can forget that. We are the employer. [Transcript: page 155, lines 5 through 7]

He further stated:

… we will concede, that the activities of the Band council fall under the legislative jurisdiction of the federal government (sic) [Parliament?]. So he [respondents’ counsel] needn’t prove that. We agree with that. [Transcript: page 160, lines 14 through 17]

The applicant’s counsel summarized as follows:

She [Ms. Duncan] is an employee of the Band, not an employee of the Minister. The Band operates under the authority of the Indian Act…. [The Court:—so did the complainant act under the authority of the Indian Act, whatever the Band delegated her to do?] That’s right. No problem with that…. All of it is under the legislation of, competence of the Parliament of Canada. No problem there. [Transcript: page 167, lines 1 through 10]

The question to be answered here now comes to this, in light of the applicant’s counsel’s admission that the Band, or Band Council has been, at all material times, Ms. Duncan’s employer: was her employment “in or in connection with the operation of any federal work, undertaking or business” as described in paragraphs 167(1)(a) and (b)? If the answer be affirmative, the Adjudicator’s statutory jurisdiction is affirmed; if it be negative, his statutory jurisdiction is negated. Courts interpret the law authoritatively. The most authoritative judgments affirm.

In the case of Whitebear Band Council and Carpenters Provincial Council of Saskatchewan et al., Re (1982), 135 D.L.R. (3d) 128 (Sask. C.A.), it appears that the provincial board purported to certify the carpenters’ union as representing the majority of employees in the carpenters’ unit employed by the Band Council, and required it to bargain collectively. The Band Council applied to quash the L.R.B.’s orders on the principal ground that [at page 130] “the regulation of the labour relations in issue falls under federal and not provincial jurisdiction and accordingly is beyond the authority of the provincial Board.” The judgment of the Saskatchewan Court of Appeal was written by Mr. Justice Cameron. He assumed that the Band Council was the employer of the carpenters, that which, qualitatively, the applicant’s counsel admits herein.

Ordinarily in Canada’s distinct division of federal-provincial powers, labour relations, being considered to be a matter of “property and civil rights,” are accordingly a matter of provincial jurisdiction. In this instance, the employer is a creature of Parliament, and the employment operates under the Indian Act [R.S.C., 1985, c. I-5] as the applicant’s counsel expressed it: all of it is under the competence of the Parliament of Canada. Here is the essence of the Whitebear case. It is true that the Court’s task was to decide whether the provincial board could exercise jurisdiction, but in the result, the Court found federal jurisdiction, and had so to find, to the exclusion of provincial jurisdiction. The finding of federal jurisdiction over the employment of the Band’s member-carpenters was an essential finding, because only that could displace the authority of the provincial labour relations board.

Cameron J.A. recited the statutory provisions which were then the equivalents of subsections 167(1) and (2), and he turned to a judgment of the Supreme Court of Canada in Canada Labour Relations Board et al. v. Yellowknife, [1977] 2 S.C.R. 729, in which Mr. Justice Pigeon for the majority is quoted [at page 738]:

In my view, it would not be proper to seek to put a restricted meaning on any of the words “work, undertaking or business” as used in the Labour Code so as to exclude from their scope all activities of municipal corporations. Some of these operations, like waterworks and sewage systems, undoubtedly come within any concept of “work”. Others, like protection or sanitation services, cannot be excluded from the scope of “undertaking” without doing violence to the language, and “business” has been said to mean “almost anything which is an occupation, as distinguished from a pleasure—anything which is an occupation or duty which requires attention …” (per Lindley, L.J. in Rolls v. Miller (1884), 27 Ch.D. 71, at p. 88). There is no doubt that the word “business” if often applied to operations carried on without an expectation of profit. In my view, it would be contrary to the whole concept of classifying employees for jurisdictional purposes by reference to the character of the operation, to attempt to make a distinction depending upon whether the employer is a private company or a public authority.

Then Cameron J.A. concluded the Whitebear judgment in these terms [at pages 411-412]:

In the light of these observations, I believe that, in the context of the Canada Labour Code, the operations of the Whitebear Band Council may be classified as “a federal work, undertaking or business”, and accordingly the labour relations in issue are subject to this Act.

Conclusion

For these reasons I am of the opinion the Trade Union Act of Saskatchewan is inapplicable in this case, since power to regulate the labour relations in question forms an integral part of primary federal jurisdiction over “Indians” and “Lands Reserved for the Indians” and that such labour relations are subject to the Canada Labour Code. It follows that the Saskatchewan Labour Relations Board acted without jurisdiction in purporting to make the orders it did and accordingly I would quash those orders with costs of this application to the appellant.

The judgment of the Supreme Court of Canada in Public Service Alliance of Canada v. Francis et al., [1982] 2 S.C.R. 72, is complex in that it may illustrate that the conclusions of the Whitebear decision were in truth asserted by the Federal Court of Appeal in this case [Francis v. Canada Labour Relations Board] [1981] 1 F.C. 225. Mr. Justice Martland, writing for the Supreme Court in Public Service Alliance of Canada v. Francis et al. (above-cited), is reported, at page 74, thus:

Up to and including the hearing by the Federal Court of Appeal the respondents’ main ground of attack upon the Board’s orders was that the labour relations in issue were not within federal legislative competence, that the Code did not apply to them and that, in consequence, the Board had no jurisdiction to make the orders which were in dispute. This submission was not accepted by the Court. Heald and Le Dain JJ. held that the Code was applicable in respect of the labour relations in issue.

Adopted apparently by the Supreme Court of Canada, that conclusion is binding on this Court by authority of one or other, or both of those appellate Courts.

In matters of public law, such as this, courts ought really not to proceed on admissions by the parties, as they may do in private law cases, where the litigation “belongs” only to the contending private litigants. So in order to relieve that anxiety about the applicant’s admitted status of an employer (but, alas, in no way to shorten these reasons) the Court will recite the passages on the last page (78) of the Public Service Alliance of Canada v. Francis et al. decision:

The Band Council is a creature of the Indian Act. It is given power to enact by-laws for the enforcement of which it is necessary to employ staff. In fact, the Council does engage employees to do work for it and it pays them. In view of these circumstances, for the purposes of the Code, it is my opinion that the Council could properly be considered to be an employer within the meaning of that Act. I am fortified in that conclusion by the provision contained in s. 27(7) of the Interpretation Act, R.S.C. 1979, c. I-23, that words in the singular include the plural. The word “person” in the Code therefore includes “persons”. The Council is a designated body of persons which is given a specific role under the provisions of the Indian Act.

The respondents argued before this Court that it was the Band and not the Council which should have been certified by the Board. However, as Le Dain J. points out, if the Council cannot be treated as the employer because it lacks corporate status, the same must be said of the Band. If lack of corporate status prevents a body from being an employer under the Code, then there would be a situation in which Indian employees doing work for the Council or the Band would be denied the rights conferred by the Code.

The decision as to whether the Council or the Band should be regarded as the employer was one which is within the jurisdiction of the Board to determine under s. 118(p) of the Code, previously cited. It was for the Board to decide who was the employer, and the Board did so.

I would allow the appeal and set aside the judgment of the Federal Court of Appeal. The appellant should be entitled to its costs in this Court and in the Federal Court of Appeal.

What is set aside is not what was adopted or accepted, on page 74, but rather the Appeal Division’s majority decision holding that the St. Regis Band Council was not a “person” and therefore not an “employer.” The Supreme Court set that aside and held that the Council and/or Band was a “person” capable of being a statutory “employer.”

A similar case was decided by the Alberta Court of Appeal, for whom Mr. Justice Belzil wrote the judgment in R. v. Paul Indian Band and Attorney General of Alberta and Attorney General of Canada (1983), 50 A.R. 190. Three relatively brief passages will suffice to encapsulate the ratio of that scholarly judgment, at pages 191, 196-197:

The appellant, Paul Band, is a legally constituted Band under the Indian Act …. It was charged under the Alberta Labour Act … for failing to pay to two employees wages earned by them while employed by the Band as special constables on the Paul Band Wabamun Indian Reserve No. 133.

The Band was convicted in summary conviction proceedings in Provincial Court [reported at [1982] 4 C.N.L.R. 120]: it was fined, and judgments were awarded against it for the wages due. The conviction and judgments were sustained on appeal to the Court of Queen’s Bench. The appeal comes before us on points of law.

The principal issue raised in this appeal is whether the Alberta Labour Act applies to the labour relations of the “Band” and its special constables. It is on this constitutional issue that the intervenants appeared, and that the main submissions were made before us, and it is therefore on this issue that I propose to determine this appeal.

…

Band councils are created under the Indian Act and derive their authority to operate qua band councils exclusively from that Act. In the exercise of their powers they are concerned with the administration of Band affairs on their respective reserves whether under direct authority of Parliament or as administrative arms of the Minister. They have no other source of power. Band councils are thus within the exclusive legislative jurisdiction and control of the Parliament of Canada over “Indians, and lands reserved for Indians” assigned to it by s. 91(24) of the Constitution Act, 1867, and such Councils are thus immune to provincial legislation….

…

There can accordingly be no doubt that the normal operations or activities of the Paul Band Council were those which it was carrying on under authority of the Indian Act and thus constituted a federal undertaking or business. That the special constables in question may have been enforcing provincial statutes on the reserve is irrelevant.

The court was urged to adopt the reasoning of the Court of Appeal of Saskatchewan in Whitebear Band Council (supra). In that case, the operation of the Band Council under review arose under an agreement between the Council and the Department of Indian and Northern Affairs whereby the Council agreed to manage a capital spending program of house construction, etc., on the Reserve funded by the Department. While I do not disagree with that decision, I have not relied on it because different considerations may apply.

If different considerations do apply, they would seemingly arise out of the distinction between the matter of a provincial offence which was the subject of the Paul Band case, and the recruitment and union representation and provincial certification issues central to the Whitebear case.

What is notable about the two cited appellate decisions is that the exception to the norm of provincial hegemony in labour relations (“Property and Civil Rights in the Province”, head 13, section 92, Constitution Act, 1867 [30 & 31 Vict., c. 3 (U.K.) (as am. by Canada Act 1982, 1982, c. 11 (U.K.), Schedule to the Constitution Act, 1982, Item 1) [R.S.C., 1985, Appendix II, No. 5]]) had to be found not on some ethereal jurisdictional void, for that would have ipso facto confirmed the norm, but on a positive finding that the labour relations field in regard to “Indians, and Lands reserved for the Indians” (head 24, section 91, Constitution Act, 1867) manifests not only federal competence, but federal paramountcy. So held Mr. Justice Pinard in Qu’Appelle Indian Residential School Council v. Canada (Canadian Human Rights Tribunal), [1988] 2 F.C. 226 (T.D.), at page 242. That positive finding of federal legislative jurisdiction was, and is, quite necessary to the exclusion of provincial jurisdiction. Constitutional law, like nature, abhors a vacuum. Further, it was, and is, necessary in order to find federal jurisdiction, further to find that the creation of Indian bands, councils, and their workings do constitute a federal work, undertaking or business.

It is not straining the sense of “business,” to assert that the business of each compartment of governance in this federal state is what it is to do, what powers it may wield pursuant to the Constitution. Business in this sense does not connote commercial business for profit, but the constitutional array of legitimate legislative subjects of Parliament or the legislatures, and the activities generated therefrom.

So, also, a governmental or legislative undertaking is not necessarily a commercial enterprise as that word may be understood in certain legislation regulating business and commerce where it may carry that connotation. The filed affidavit of Margaret Jane Balfour is instructive and persuasive in this regard. The distinction was noted by this Court in Lount Corporation v. Attorney General of Canada, [1984] 1 F.C. 332, at page 357:

Here surely resides the essence of “undertaking” promulgated in the two [regulatory] statutes. It imports the aspect of justiciability for failure to meet a commercial obligation and is, therefore, to be distinguished from those undertakings mentioned in the Constitution which signal the division of legislative powers.

That question of “undertaking” was considered among other aspects, on appeal. It was not particularly mentioned by the Appeal Division and the appeal was dismissed [1985] 2 F.C. 185, at pages 198-199.

The same jurisdictional conclusion, regarding “business,” was drawn by Madam Justice Desjardins for herself and Mr. Justice Mahoney in Tobique Band Council v. Sappier (1988), 22 C.C.E.L. 170 (F.C.A.), at pages 177-178:

Having reached a conclusion in favour of federal legislative competence, I am also of the view that the Canada Labour Code occupies the field.

…

In the case of Yellowknife v. L.R.B. (Can.), [1977] 2 S.C.R. 729, at 738, 14 N.R. 72 … Pigeon J., for the Court, accepted the following definition of “business” given by Lindley L.J., in Rolls v. Miller (1884), 27 Ch. D. 71 at 88 (C.A.), as meaning “almost anything which is an occupation, as distinguished from a pleasure—anything which is an occupation or duty which requires attention” Pigeon J. added that the word “business” is often applied to operations carried on without an expectation of profit. The agency, in my view, qualifies under the word “federal business.” The band is an employer under the Code (Public Service Alliance of Canada v. Francis, [1982] 2 S.C.R. 72 (S.C.C.)). I therefore conclude that the adjudicator had jurisdiction under the Canada Labour Code.

So, this Court also finds that the creation, activities and operations of the applicant, and the work for which the applicant employed Ms. Duncan, all constitute a “federal work, undertaking or business” within the meaning of paragraph 2(i) of the Canada Labour Code. In light of the logic and in regard to the jurisprudence, to hold otherwise would be perverse. The applicant’s objection to Mr. Bass’ jurisdiction as an adjudicator is dismissed.

It does not appear that notification of a constitutional question to be litigated was given to the provincial attorneys-general. That omission must be remedied by the appellant, if an appeal be taken on this matter. In her order granting intervener status Madam Justice McGillis did not accord the intervener any right of appeal, because, no doubt, the then would-be intervener did not invoke Rule 1611(3) [as enacted by SOR/92-43, s. 19], even although its notice of application refers to Rule 1611(1) [as enacted idem]. The intervener should obtain counsel’s advice on this matter: it might not even now be too late to apply, if so advised, upon demonstrating proper grounds. The Supreme Court’s decision in Société des Acadiens du Nouveau-Brunswick Inc. et al. v. Association of Parents for Fairness in Education et al., [1986] 1 S.C.R. 549, deals with interveners’ rights of appeal.

Notification of a constitutional question, to be given to the federal and provincial attorneys-general, is provided and governed by section 57 of the Federal Court Act [R.S.C., 1985, c. F-7 (as am. by S.C. 1990, c. 8, s. 19)], and by Rules 301.1 [as enacted by SOR/92-43, s. 2] and 1101.

ISSUE OF LOSS OF JURISDICTION FOR ALLEGEDLY PATENT UNREASONABLENESS

The Court’s power to undertake judicial review of the Adjudicator’s manner of coming to his decision has been oft affirmed by authoritative jurisprudence, despite the provisions of section 243 of the Canada Labour Code. As may be gleaned from the statement by La Forest J. in the Dayco case (page 250), above cited: if review of the Adjudicator’s interpretation of all the admitted evidence before him be sought, the scope would be a narrow one. The Court must embark, in such a case, “on a patent unreasonability enquiry.” So be it. This is what the applicant seeks. If the enquiry be positive, the Adjudicator’s decision must obviously be set aside, or quashed, given the criterion of the enquiry: a patently unreasonable decision ought not to stand. It could never have been Parliament’s purpose to immunize such a decision from review, if that is what it turns out to be, after review.

If, on the other hand, the Adjudicator’s conduct of the enquiry, including the result, be not “patently unreasonable,” then the Court must dismiss the application for judicial review. In the Adjudicator’s reasoning and decision in the instant case, there are several inconsistencies and incongruencies as to what evidence to believe and what to reject, and inferences to be drawn therefrom. Such flaws are clearly protected by the operation of the Code’s section 243, even although the applicant’s counsel made reference to them in his presentation.

The major flaw among those to which applicant’s counsel directed his criticism had to do with the Adjudicator’s apparent equanimity about the complainant’s failure to testify on matters on which the Adjudicator drew inferences and made findings against the employer, giving at bottom an appearance of bias on the Adjudicator’s part. The employer, by counsel, therefore had no opportunity to cross-examine the complainant, and it is alleged, the resulting decision and the process were unfair because of that lack of opportunity to cross-examine the complainant; and because the Adjudicator did not even consider drawing negative inferences against the complainant, when he ought to have done that in view of her failure to give evidence personally.

THE ADJUDICATOR’S REASONS AND ORDER

The respondent Duncan, who was the complainant in the proceedings taken before the Adjudicator, was employed in the job of [welfare] program supervisor: she was a welfare administrator. The Adjudicator determined that she was not employed as a manager and so, her complaint remained within his jurisdiction on that score. The complainant had been suspended from her job in February, 1990, a year earlier than the material times. The Band Council later disagreed with that suspension and reinstated her.

The complainant was also suspended, and without pay, on February 13, 1991, effective immediately and for an indefinite period. The Council’s letter to her announcing that measure was exhibit 8 at that hearing and it recited the following alleged misconduct by the complainant, in the Adjudicator’s words:

1. Participating in certain activities to undermine and discredit the actions of the Chief and Council of the Norway House Indian Band.

2. Failing to keep the trust and loyalty that was a prerequisite of her position of responsibility and authority within the administration of the Norway House Indian Band.

3. Not being satisfied with the ongoing administration of the programs of the Norway House Indian Band.

The letter also said in referring to a section of the Policies and Procedural Guidelines Manual:

“Under Section 3.21, Terminations, sub-section 3.21.1 states ‘All employees may be terminated without notice for just cause’ as defined c) Insubordination.” [Record page 21, reasons page 7]

Then, further along, the Adjudicator wrote:

In the early evening of February 13, 1991, Mr. Hart [who earlier that day had written the letter, (ex. 8), to the complainant] accompanied Chief Ross and some councillors to the radio station. Chief Ross had intended to make an address concerning certain financial information which had been distributed to the community, other than by the Chief and Council. There were a number of people, including the Complainant, at the radio station. There was some evidence of pushing and shouting at the radio station by the group which was there when the Chief and his group arrived. This incident lasted approximately 30 minutes. The Complainant was one of the people who Mr. Hart saw blocking the doorway when some of the members of Chief Ross’ party were trying to leave the building. Mr. Hart saw the Complainant talking to all of the councillors. She was not yelling.

…

Mr. Hart [the applicant’s director of operations] was not aware of any problem with the Complainant from February 12, 1991, to March 21, 199l. On March 22, 1991, Mr. Hart wrote the Complainant (Exhibit 13) indicating that Chief Ross and Council had dealt with her request for an appeal of her suspension of February 13, 1991, and that Chief Ross and Council believed that a review of her suspension was not warranted. Mr. Hart’s evidence was that up to then the Complainant had not been fired and no decision had been made to terminate her employment. The Employer’s position is that based on the letter of March 22, 1991, the Complainant’s employment was terminated. On March 21, 1991, Mr. Hart had been instructed to write that letter to deny the Complainant’s appeal and to dismiss her. Chief and Council had made that decision based on her conduct on February 13, 1991. That conduct was subsequent to Exhibit 8 being sent to her. Mr. Hart was not aware of any other incidents that Chief and Council considered. [Record pages 21-22, reasons pages 7-8]

…

When pressed on cross-examination Mr. Hart indicated that the Complainant was suspended February 13, 1991, because the Chief and Council said she was to be suspended on their allegations against her that she was discrediting Chief and Council.

…

Neither he nor Mr. Folster investigated them nor obtained the Complainant’s side of the story.

…

Mr. [Sandy] Cromarty [a councillor for 20 years] confirmed that on February 13, 1991, there were a number of people already at the [radio] station when he arrived with Chief Ross and others. He saw the Complainant there and indicated that she was talking, pretty loudly. There was a lot of loud talking and shoving. [Record page 23, reasons page 9; emphasis not in original text.]

Next the Adjudicator wrote of the testimony of Peter Albert, who had been a member of the Norway House Band Council only since November, 1990:

Mr. P. Albert was part of the group with Chief Ross who attended at the radio station in the early evening of February 13, 1991. He confirmed that there were a number of people standing inside the station, including the Complainant. There was some shouting and shoving. He saw the Complainant in the exit doorway preventing some people from leaving. He was of the opinion that the Complainant was irate. She was verbally abusive, although none of the abuse he felt was directed at him. He felt that the Complainant was playing the part that everyone else in the station was playing and that was to resist Chief Ross and Council.

Prior to the incident at the radio station Mr. P. Albert had been informed at Council about the Complainant’s conduct and had been part of the decision to suspend her indefinitely until further investigation. After the incident at the radio station he was part of the Council decision which was made to terminate her employment.

…

He felt the Complainant was not being respectful of elected leaders by undermining the elected leadership, putting them down wherever possible and trying to get them out of power. [Record pages 24 and 25, reasons pages 10 and 11; emphasis not in original text.]

His [P. Albert’s] decision on the indefinite suspension of the Complainant was based on her insubordination. The basis of his knowledge was information given to him by others. He had no direct evidence of her involvement in any dissident group. He had not sought her explanation of it. He acknowledged that it was normal for band members to discuss how the Chief and Council were working. The concept of freedom of speech as set forth in the Charter of Rights is consistent with Band custom. He had believed that the Complainant was involved in the dissident political group but acknowledged that he might have been mistaken in that belief.

The foundation for Mr. P. Albert’s conclusions as to the Complainant not being respectful of elected leaders and trying to get them out of power is all hearsay and accordingly I do not put much weight on it. [Record page 26, reasons page 12; emphasis not in original text.]

One must realize that in the last above passage the Adjudicator was concerned with Peter Albert’s testimony about the suspension imposed by the Council, of which the complainant had notice before the evening incident at the radio station on February 13, 1991. Mr. Albert’s testimony about that chaotic incident was first-hand, eye-witness evidence and not hearsay. The complainant’s version of that incident was not given in testimony, thus denying the employer’s counsel the opportunity of cross-examination.

Here is a passage from the Adjudicator’s reasons concerning the testimony of Ms. Maggie (a.k.a. Myrna) Gamblin:

She testified of the existence of a definable group of individuals who were politically opposed to Chief Ross and Council. Evidence was given of some of the activities of the group including at some public band meetings. It is the theory of the Employer that the Complainant was a member of this group and participated in these activities. Ms. Gamblin provided no evidence that the Complainant was a member of the group and participated in these activities.

Ms. Gamblin was present at the radio station during the incident in the early evening of February 13, 1991. There were a number of people in the station including Ms. Gamblin, when the Chief and some of the councillors arrived. The Complainant was also present but Ms. Gamblin did not know why the Complainant was there. There was some shouting and confusion. Ms. Gamblin gave no evidence as to any radio broadcast on February 13, after this incident.

There was some evidence that the Complainant did accompany Ms. Gamblin when Ms. Gamblin travelled around to get signatures herself to a petition. There was no evidence as to the wording of the petition but its purpose was to remove Chief Ross and Council. This petition was started prior to February 13, 1991. Ms. Gamblin indicated that the Complainant did not go with Mr. Gamblin to deal with that petition until after February 13, 1991. [Record pages 26 and 27, reasons pages 12 and 13; emphasis not in original text.]

The testimony of Mr. J. J. Muswagon implicated the complainant in the dissident group at Norway House reserve. Members together of the Communications Board, he testified that the complainant had spoken unfavourably of Chief Ross’ conduct of his office.

Mr. Alphius Wilson’s testimony was reviewed by the Adjudicator, in part, thus:

He felt that the Complainant was part of it [the dissident group] because she was always asking him [the executive assistant to the chief and council] questions about what Chief Ross was up to. He also felt uncomfortable by her asking a number of questions about what was happening in Council. Mr. Wilson sensed that the Complainant was trying to keep track of Chief Ross. Her questioning was done through daily contact. On cross-examination he admitted that he could be exaggerating when he indicated that the Complainant called him every day. This was during the time that she was employed as Welfare Administrator by the Employer. Mr. Wilson felt that the Complainant was part of this concerned citizens group because she “hangs around” with the members of the group. He felt that if you hang around with a group that long the only conclusion is that you believe in that group. What he saw was that the group wanted to undermine the Chief and Council. I am not prepared to accept that one is a member of a group simply because of such association as Mr. Wilson has described.

Several other witnesses’ testimony was summarized by the Adjudicator, including that of Chief Ross which was reported at length in the reasons. Chief Ross, by testifying, accorded the complainant’s counsel the opportunity of cross-examination. (Emphasized passages, above, indicate where complainant should have been available for cross-examination.) The key importance of that opportunity is demonstrated within the Adjudicator’s lengthy summary of Chief Ross’ testimony:

In the minutes of the Band Council meeting on February 12, 1991, it is stated that Mr. Hubert Folster was also heavily involved in the activities and group which was working to remove the Chief and Council from office. It is reported in the minutes that his “action/statement” is recorded on tape of the January 9, 1991, Band meeting. Chief Ross stated that despite this Mr. Folster was not disciplined, suspended or his employment terminated. In his testimony Mr. Folster said that this allegation in the minutes was untrue. [Record page 46, reasons page 32; emphasis not in original text.]

The emphasized words show how important it is to give testimony about personal conduct which is alleged against one, so that the tribunal can have the benefit of both sides of the dispute. Needless to say, the adjudication under review was wholly concerned about the personal conduct of the complainant and that of the Chief and Council. But the Adjudicator never heard the complainant’s testimony nor was counsel for the employer ever accorded the opportunity to cross-examine her. Perhaps that was her counsel’s decision, but if so, that decision is far from the end of the matter.

ANALYSIS

Note how the Adjudicator makes no adverse comment on the credibility of the witness Ron Evans, even while blandly accepting that witness’ apparently unfounded allegation of malice on Chief Ross’ part for finding the February 12 [sic] 1991 incident reason enough to discharge the complainant, while the witness himself found it reason enough to discharge her.

Mr. Evans was present at the incident at the radio station on February 13, 1991. He confirmed that there was a lot of people there including the Complainant. He was the first one to leave and was able to walk out the door around the Complainant. He did not have to “shove past her”. At the time, and on the day after, he was upset by the incident at the radio station, that is to say being prevented [Who? Chief Ross] from going on the air. He was still upset the next day and at that time he was in favour of letting the Complainant go. There was no decision to let her go immediately. As of February 14, 1991, she was not fired. [Record pages 52-53, reasons pages 38-39.]

The Adjudicator appears to accept this testimony. So, was Mr. Evans harbouring malice, too, or was there a truly objective cause for dismissing the complainant? In picking at the employer’s witnesses’ credibility, but remaining silent on this sort of inconsistency, the Adjudicator gives the reader a reasonable apprehension of bias. Other such occasions in the Adjudicator’s reasons were mentioned by the employer’s counsel at the hearing of this case.

At page 45 of his reasons (record page 59) the Adjudicator reports: “The Complainant did not testify, other than on the initial jurisdictional point.”

There are matters recounted in the Adjudicator’s reasons which cry out for the complainant’s testimony, and the employer’s opportunity to cross-examine her. In the passages earlier above-recited herein with the Court’s own emphasis added, there are allegations upon which the complainant’s testimony was needed. Now, here is another, reported by the Adjudicator in his reasons, being the first of three circumstances which, the Adjudicator reports, were relied upon by the employer to justify termination of the complainant’s employment:

a) The Complainant’s signing of the letter Exhibit 15. Exhibit 15 is a letter signed by a number of people directed to Vic Savino, a lawyer for the Employer, requesting that any funds to be advanced under the Northern Flood Agreement be held in abeyance until consent is given by Band members. Chief Ross testified that this letter had the effect of hampering the ability of Chief and Council in their negotiations concerning the Northern Flood Agreement. There is a signature on this letter which purports to be that of the Complainant. The Employer’s position is that the Complainant should not have signed this letter. There was however no probative evidence presented that the Complainant had in fact signed this letter. I ACCORDINGLY find that this circumstance was not valid justification for any employee discipline (which I take herein to include dismissal). [Record page 72, reasons page 58; emphasis not in original text.]

There is a major finding of the Adjudicator.

Without the complainant’s testimony in chief, and tested by cross-examination, the Adjudicator was misled into making a wrong finding, a 180° wrong finding. He rejected one of the employer’s main contentions without hearing the complainant’s testimony as to whether it was her signature or not. The balance of probabilities, in the absence of her cogent sworn denial, steeply inclines to a finding that it was her signature. But the Adjudicator, finding no probative evidence that a signature which appeared to be the complainant’s signature, and without her testimony to deny it, accordingly found “that this circumstance was not a valid justification for … discipline.” (Record page 72, reasons page 58.) The implication is that it would have been a valid justification if the complainant had signed the protest letter. However, the evidence on a balance of probability—without her sworn denial—indicated that it was her signature. This disposition of the Adjudicator constitutes an egregious error of fact, and is patently unreasonable.

The Adjudicator’s reasoning about the employer’s points b) and c), and particularly c), is shaky. In c) he makes the order of events a key factor. How the complainant accepted her employer’s decision (obscenities and accusation of theft) is surely pertinent in assessing her behaviour. The decision conveyed to her was about removing her from the communications committee, not about her dismissal, which came later.

On page 60 of his reasons (record page 74) the Adjudicator evinces such a lack of objectivity as to criticize the employer’s failure to call evidence, without ever criticizing the complainant’s failure to testify on many crucial, as well as peripheral issues. On page 61 (record page 75) the Adjudicator notes “that no witnesses were called by the Employer to rebut this evidence given by Mr. Evans.” Mr. Evans was the one who accused the Chief of malice with nothing to support that allegation; he even testified that the letter from Chief and Council of February 13, 1991, before the incident at the radio station, really meant dismissal although stating “indefinite suspension.” This the Adjudicator accepted. The complainant regarded herself not as fired, but as a suspended employee even after February 13, 1991 as the Adjudicator notes in considering exhibit 9.

NON-PRODUCTION OF TESTIMONY

The Adjudicator conducted the hearing as if it were the trial of an accused, at which he, the judge, is forbidden by law to admonish the “accused” that she ought to testify. Alternatively the Adjudicator erred in apparently finding no evidence which required her to respond by testifying. The Adjudicator thereby acquiesced in denying the employer the opportunity to cross-examine the complainant.

Now, unless summoned to testify on subpoena, there is nothing in law to compel the complainant to testify, but she must thereby face the consequences. They are adverse inferences by the Adjudicator. He drew no adverse inferences regarding the complainant, only regarding the employer who (Chief and Councillors) did testify. The Adjudicator, himself, recited evidence which required her to respond, on pain of adverse inference. This was hardly a kind of “non-suit.” Whether the complainant failed to give evidence as required, in order to avoid adverse inferences, was upon advice of counsel or not, the Adjudicator ought to have admonished her about such a plight and encouraged her to testify. He thereby acquiesced in denying the employer the opportunity of cross-examination. Since she declined to testify on the substantive issues, the Adjudicator ought to have drawn all those adverse inferences open to him, and that might well have produced the dismissal of her complaint. The Adjudicator’s failure in that regard gives the appearance of bias.

There is much jurisprudence on the matter of non-production of evidence, and error of law and error of fact leading to a probably—or at least possibly—different decision. As to the failure to produce cogent evidence, there are the following judgments:

Barnes v. Union SS. Ltd., [1954] 4 D.L.R. 267, wherein Mr. Justice Wilson of the Supreme Court of British Columbia, in a personal injury case of negligence stated, at page 270:

I am reinforced in this conclusion by the mysterious absence from my Court room of any of the ship’s crew, except the steward. The steward says he went to get the chief steward. Where is the chief steward? The steward says three people helped Barnes up the ladder. None of them were witnesses, although at least one of them is known to be in the Air Force and hence readily traceable. None of the men who had last worked this hold, none of the officers in charge of those men were before me to tell me about the position of the hatch doors. None of the officers who must surely have investigated this very serious accident have been called as witnesses. Out of a large crew the defendant produces one man.

Martin C.J.S. deals with this sort of situation in Murray v. Saskatoon, [1952] 2 D.L.R. 499 and at p. 506 cites with approval this passage from Wigmore on Evidence, 3rd ed., Vol. II, p. 162: “The failure to bring before the tribunal some circumstance, document, or witness, when either the party himself or his opponent claims that the facts would thereby be elucidated, serves to indicate, as the most natural inference, that the party fears to do so, and this fear is some evidence that the circumstance or document or witness, if brought, would have exposed facts unfavourable to the party. These inferences, to be sure, cannot fairly be made except upon certain conditions; and they are also open always to explanation by circumstances which make some other hypothesis a more natural one than the party’s fear of exposure. But the propriety of such an inference in general is not doubted.”

The inferences which I draw from the absence of witnesses who ought to be available to help me are unfavourable to the defendant.

An appeal and cross-appeal from this decision were taken to the Court of Appeal and “thrice” dismissed by all of the appellate judges, writing individually, [1955] 2 D.L.R. 564.

Pick (Otto) & Sons Seeds Ltd. v. Thomson (W.D.) Enterprises Ltd. and Thomson (1989), 100 N.B.R. (2d) 136, is a judgment of the New Brunswick Queen’s Bench, wherein it is shown that the alleged signatory did testify (unlike the case at bar). Mr. Justice Creaghan is reported thus, at page 143:

The fact is that the guarantee tendered in evidence purports to be signed by Mr. Thomson. By his own admission it resembles his signature. His testimony is unequivocal that he did not sign a personal guarantee. However he takes pains in his testimony to explain that he is sure it is not his signature because of the nature of the document, that is because he would not have signed a personal guarantee. His testimony is that he does not sign personal guarantees with anyone but the bank.

The question must also be asked why the defendant, who certainly was in the better if not the only position to do so, did not call an expert who might testify as to the authenticity of his signature on the guarantee document. Further the matter of the defendant’s presence in Saint John on March 17, 1987 begs the question of why the defendant did not call some witness who might corroborate that fact by direct testimony. Surely if he was in Saint John on that date rather than in Richmond Hill, some person would be available to testify to that fact rather than rely on receipted utility bills which might have been paid by anyone.

Creaghan J. then recited [at pages 143-144] the following passages from Sopinka & Lederman [The Law of Evidence in Civil Cases. Toronto: Butterworths, 1974]:

“It is well recognized that the failure of a party or a witness to give evidence, which it was in the power of the party or witness to give and by which the facts might have been elucidated, justifies the court in drawing the inference that the evidence of the party or witness would have been unfavourable to the party to whom the failure was attributed.

…

“The rule is not restricted in its application to the plaintiff or other party who has the ultimate burden of proof. Failure on the part of a defendant to testify or to call a witness, once a prima facie case has been made out against the defendant, may be the subject of an adverse inference. While such failure will not, in itself, fill a gap in the case of the party who has the burden of proof, when sufficient evidence has been produced by the latter, so as to create a secondary burden on the opposite party, failure by such party to testify or to call on a witness strengthens the case against him.” [Sopinka and Lederman, supra, pp. 535, 536, 537]

In the case at bar a letter was tendered which, the employer testified bore the claimant’s signature. She did not even testify, but the Adjudicator rejected the evidence because he was not sure that it was her signature, and “I accordingly find that this circumstance was not a valid justification.” (Record page 72, reasons page 58.) Does that not point to the probability of a vastly different result? Why did the Adjudicator not accept the evidence, since the complainant was not heard to deny it? It was, or it was not her signature. It was a simple issue to determine. Without her testimony in repudiation—if it would have survived cross-examination—the Adjudicator gives the impression of bias to have made the finding which he made on this crucial issue.

The judgment of Chief Justice Tritschler in Keellan et al. v. Norray Distributing Ltd. et al. (1967), 62 D.L.R. (2d) 466 (Man. Q.B.), bears on this issue and bolsters the Court’s opinion. At pages 481-482 Tritschler, C.J.Q.B. is reported as having written:

… Platt must have known quite well that these men knew no more about the machines than he did. It is probable that Traders was hoodwinked out of its money just as Keelan, Mooney, Ritchie and Langdon were tricked out of their $6,000. Platt’s association and connection with the transaction is a vital factor. He alone knew why Traders’ money was put out. He might have elucidated the facts. In the circumstances I think he should have been called and the failure to do so leaves an unfavourable impression.

The Chief Justice then quoted the passage from Murray v. Saskatoon [[1952] 2 D.L.R. 499 (Sask. C.A.)] written by Martin C.J.S. set out above. The absence of cogent evidence upon which the tribunal could base its decision is discussed in Bond v. New Brunswick (Board of Management) (1992), 122 N.B.R. (2d) 351 (Q.B.), cited for the applicant and is helpful to this Court in this regard.

The matter of failure to give evidence is described at greater length in the Sopinka & Lederman text on The Law of Evidence in Civil Cases mentioned above, and in the Canadian Abridgment (2nd edition) vol. R15, Evidence, at pages 50-51, as well as in Cross on Evidence (7th edition) Butterworths, London, 1990, Chap. 1, Section 3, “Failure to Give Evidence or Call a Witness: civil cases,” especially at page 37. In this regard, one is moved to ask about the fact that the complainant never denied—never heard to deny—that she herself went on the air waves the evening of February 13, 1991.

Would it have been appropriate to issue a subpoena to compel the complainant’s testimony? Probably not. It was after all her case, and the risks were undertaken by her while represented by counsel. The Adjudicator went very wrong in not warning her of the risks of an unfavourable decision, and in not applying those risks to and in the formulation of his decision, whereby they would probably have resulted in a finding of just cause for dismissal and the dismissal of her complaint.

LOSS OF OPPORTUNITY TO CROSS-EXAMINE

The loss of the opportunity to cross-examine is typically considered in criminal law cases, where a transcript of testimony taken at a preliminary inquiry is sought to be introduced at trial. The modern locus classicus of judicial treatment of this matter in conjunction with the then section 643, now section 715, of the Criminal Code [R.S.C. 1970, c. C-34 (as am. by S.C. 1974-75-76, c. 93, s. 76)] is acknowledged to be the judgment of the Ontario Court of Appeal, written by Mr. Justice G. Arthur Martin in R. v. Davidson (1988), 42 C.C.C. (3d) 289. The opportunity to cross-examine is the paramount aspect of the right to confront one’s adversary, and is of the essence to fair proceedings. That much is made of that opportunity in criminal law cases, is no reason to dilute its importance in the case at bar.

Without having warned the complainant about her failure to testify, without having applied the consequence of the risks to her case, the Adjudicator apparently accepted the employer’s loss of opportunity to cross-examine. The Adjudicator’s failure to admonish, his failure to give any heed whatsoever to the legal concept of adverse inferences in regard to the complainant’s case, his indifference to the employer’s loss of opportunity to cross-examine the complainant, his failure to relate that loss to the signature about which he came to the dubious and wrong conclusion without any testimony of the complainant on that matter and accordingly found no justification for employment discipline thereby, his apparent bias in drawing all, or almost all, adverse inferences against the employer, evince patently unreasonable conduct of the inquiry. All the above create a lively probability that if the Adjudicator had not failed in the above-recited respects, the result would have favoured the employer. Paragraph 2b) of the originating notice is affirmed.

ERRORS OF LAW

The Adjudicator’s conclusions on unjust—as distinct from unlawful or illegal—dismissal were a self-misdirection and error in law. The error was compounded by his attempt to meld into the secular law, the Band’s customs. In common with most of the world’s great religions and benign philosophies, the Band customs were described as exacting peace, siblinghood harmony, co-operation with and caring for one’s neighbours, respecting all and defaming none, in effect, peace on earth and goodwill toward all. From the evidence in this case, it clearly appears that Norway House Band members are just as good, but no better, at adhering to and practising their Band custom virtues as are millions of Jews, Christians, Muslims, Hindus, Buddhists, et al. at adhering to and practising their respective, but virtually identical virtues. It is a good proof of common humanity, but it is an error of law to take account of those customs, as the Adjudicator said he did, in formulating conclusions of law. Those Band customs are as irrelevant in these circumstances as are the religious persuasions, if any, of the complainant, the lawyers, the Adjudicator, and this Judge. In the secular state which is Canada (and everyone’s protection) the Adjudicator, appointed by secular authority must apply only secular law. To assert otherwise is to assert an error of law. Freedom of religion, a prized value in Canada does not convert a secular state into anybody’s wished-for theocracy.

FURTHER ERRORS

In Division XIV of Part III of the Code the title is “Unjust Dismissal” and the expression of Parliament throughout that Division, for example paragraph 242(3)(a) and subsections 240(1) [as am. by R.S.C., 1985 (1st Supp.), c. 9, s. 15] and 242(4), speaks of dismissal being unjust, or a person being unjustly dismissed. One could certainly understand that a wrongful, or even unlawful dismissal would be, indeed are, also unjust. Certainly the notion that a dismissal may be unjust, even if not wrongful (record pages 62 and 63, reasons pages 48 and 49), could have some narrow application which may be imagined, but for the Adjudicator to proceed upon his own announcement that he has “put little weight on the cases referred to me which deal solely with wrongful dismissal” is the clearest self-misdirection in law, and a reviewable, egregious error. The Adjudicator’s interpretation of the Code as developing the common law by being legislation dealing with unfair or unjust dismissal, and having in mind a broader range of problems than would be addressed if one were to read “unjust dismissal” as incorporating the substantive test of cause as propounded by the courts in wrongful dismissal cases (record page 64, reasons page 50), carries him away from the Code and into Band custom. The Band custom is a civilized code of ethical niceness like other ethical and religious codes, but Parliament does not include such references in this legislation in this most decent of secular states. The applicant has made out its complaint in paragraph 2a) of its notice of motion.

According to his affidavit, Chief Alan Ross had been elected and re-elected by the voting public of Norway House Band in 1986, 1988, 1990 and 1992. The latter re-election occurred after the petitions, sourness exhibited by some (perhaps including the complainant, according to the evidence), against the Chief and/or Council, and many months after the incident at the radio station which caused the Band Council (including the Chief) to dismiss the complainant. There was ample evidence placed before the Adjudicator to prove the existence of a small group who were determined not to accept the will of the people. The question of the complainant’s membership in that group would have been more helpfully determined if she had presented her own sworn testimony exposed to cross-examination. Chief Ross who had the moral fortitude to testify and face cross-examination, swore in his affidavit of July 6, 1992, paragraph 5 that “Florence J. Duncan has, as is confirmed by the award, been actively engaged in this political activity.” The findings made by the Adjudicator are pretty inconsistent about a calm process at the radio station, but the complainant being present, blocking the doorway, and talking “to the Chief and Councillors pretty loudly, but not yelling.” Not calmly, either. The applicant has made out the allegations expressed in paragraphs 2e), k) and l).

In summation, after careful and oft repeated perusals of the Adjudicator’s reasons and decision, the Court finds that the other allegations of paragraphs 2c), d), f), g), h), i) and j) are all made out. Thus the Court affirms all of paragraphs 2a) through l). Indeed, those perusals of the Adjudicator’s reasons and decision fully support affirmation of paragraphs 3 and 4 of the applicant’s originating notice of motion, remarkable as that may seem, except for one matter. The Court cannot with certitude proclaim that the Adjudicator was certainly biased. His reasons and decision do import an impressive appearance of bias, but the appearance, serious as it is, is not a certainty. It may be that the Adjudicator did his best to be, and remain, indifferent as between the parties. In any event, the Adjudicator’s order—which he calls an “award”—must accordingly be set aside or quashed, because it is the result of patently unreasonable proceedings, considerations and conclusions as set out herein.

DISPOSITION

The applicant asked nothing more than that the Adjudicator’s “award” be set aside. In the respondent’s application record there is no plea or suggestion as to what the Court should do in the event that the applicant were successful. It is clear, for all the above-stated reasons that the Adjudicator’s order is to be quashed.

Is that all there is? What the applicant has requested the Court to do, in these judicial review proceedings, is to grant it relief in the nature of certiorari, as is contemplated in paragraph 18(1)(b) [as am. by S.C. 1990, c. 8, s. 4] of the Federal Court Act. Such remedy, according to subsection 18(3) [as am. idem] of that Act, can be obtained only on an application for judicial review made under section 18.1 [as enacted idem, s. 5]. These provisions are not specifically mentioned in the applicant’s originating notice, but that is far from fatal, although preferable, for the Court knows its own jurisdiction and recognizes when such jurisdiction is invoked. Subsection 18.1(3) runs as follows:

18.1 …

(3) On an application for judicial review, the Trial Division may

(a) order a federal board, commission or other tribunal to do any act or thing it has unlawfully failed or refused to do or has unreasonably delayed in doing; or

(b) declare invalid or unlawful, or quash, set aside or set aside and refer back for determination in accordance with such directions as it considers to be appropriate, prohibit or restrain, a decision, order, act or proceeding of a federal board, commission or other tribunal.

It will be noticed that the Court here, as is proper on judicial review, has not substituted this Judge’s view of what the outcome of the adjudication should have been, had it been conducted in accordance with proper application of the law and proper appreciation of the facts. In these particular circumstances that would be presumptuous, if not arrogant of this Court. This is not an appeal on the record, and no provision is made for such. The only conclusion one can draw from Division XIV, Part III of the Code is that with the pronouncement of the reasons and the order, the Adjudicator is functus officio. In any event, the complainant’s complaint should hardly be referred back to the same Adjudicator in view of this Court’s finding of the appearance of bias tainting the Adjudicator’s proceedings and conclusions. Referring back, although mentioned in subsection 18.1(3) of this Court’s constituent statute, evinces other problems which will be hereinafter mentioned.

Now it is true that the Supreme Court of Canada which has led the judiciary into reviewing statutorily protected adjudications, and with good reason (but more importantly, unanswerable reason, unless Parliament bestirs itself), has called upon the judiciary to be flexible. In the Supreme Court case of Chandler v. Alberta Association of Architects, [1989] 2 S.C.R. 848, Mr. Justice Sopinka, writing for the majority is reported thus [at pages 860-862]:

In Grillas v. Minister of Manpower & Immigration, [1972] S.C.R. 577, Martland J., [in dissent] speaking for himself and Laskin J., opined that the same reasoning [as in Paper Machinery Ltd. v. J. O. Ross Engineering Corp. [1934] S.C.R. 186] did not apply to the Immigration Appeal Board from which there is no appeal except on a question of law. Although this was a dissenting judgment, only Pigeon J. of the five judges who heard the case disagreed with this view.

…

I do not understand Martland J. to go so far as to hold that functus officio has no application to administrative tribunals. Apart from the English practice which is based on a reluctance to amend or reopen formal judgments, there is a sound policy reason for recognizing the finality of proceedings before administrative tribunals. As a general rule, once such a tribunal has reached a final decision in respect to the matter that is before it in accordance with its enabling statute, that decision cannot be revisited because the tribunal has changed its mind, made an error within jurisdiction or because there has been a change of circumstances. It can only do so if authorized by statute or if there has been a slip or error within the exceptions enunciated in Paper Machinery Ltd. v. J. O. Ross Engineering Corp., supra.

To this extent, the principle of functus officio applies. It is based, however, on the policy ground which favours finality of proceedings rather than the rule which was developed with respect to formal judgments of a court whose decision was subject to a full appeal. For this reason I am of the opinion that its application must be more flexible and less formalistic in respect to the decisions of administrative tribunals which are subject to appeal only on a point of law. Justice may require the reopening of administrative proceedings in order to provide relief which would otherwise be available on appeal.

Accordingly, the principle should not be strictly applied where there are indications in the enabling statute that a decision can be reopened in order to enable the tribunal to discharge the function committed to it by enabling legislation. This was the situation in Grillas, supra.

Furthermore, if the tribunal has failed to dispose of an issue which is fairly raised by the proceedings and of which the tribunal is empowered by its enabling statute to dispose, it ought to be allowed to complete its statutory task. If, however, the administrative entity is empowered to dispose of a matter by one or more specified remedies or by alternative remedies, the fact that one is selected does not entitle it to reopen proceedings to make another or further selection. Nor will reserving the right to do so preserve the continuing jurisdiction of the tribunal unless a power to make provisional or interim orders has been conferred on it by statute. See Huneault v. Central Mortgage and Housing Corp. (1981), 41 N.R. 214 (F.C.A.)

At pages 862-863 Sopinka J. quotes Madam Justice McLachlin, then of the Supreme Court of British Columbia in Trizec Equities Ltd. and Area Assessor Burnaby-New Westminster, (Re) (1983), 147 D.L.R. (3d) 637. That dictum would make it appear that the principle of functus officio is dead and buried, and that the notion of finality is abolished, even although that is not really what Sopinka J., himself, seems to be going so far as to adopt. In any event, the majority in Chandler found that the board had not exhausted its statutory jurisdiction and, institution as it was, it could be recalled to discharge all of its statutory duties.

Here, the Adjudicator is not a full-time, career, institutional board, commission or other tribunal, but an individual selected ad hoc and uniquely in order to perform a single, one-time adjudication, without any institutional expertise or collegiality. He is not a member of a collegial board, commission or other tribunal to one of whose colleagues the adjudication can be referred to start all over again. In fact the emphatic privative provisions of subsections 243(1) and (2) make one believe that Parliament did in fact contemplate such a reference back to an adjudicator, and rejected that possibility entirely and deliberately. In any event anything short of voluminous directions, more voluminous than these reasons, would not suffice for a new determination, and who would perform that new determination?

In terms of subsection 242(1) of the Code, the Minister has long ago received from a quite apparently functus inspector the latter’s report pursuant to subsection 241(3). Is the Court to assume that such report enjoys eternal life and can be resurrected any time in order to permit the appointment of a successive adjudicator, successive adjudicators, when a previous one goes “off the rails,” as it were? The emphasis of Parliament’s privative clause, which, the Supreme Court ordains, may be overridden in instances of “patent unreasonability” may be appreciated by contrast with section 18, in Division II—Canada Labour Relations Board, Part I of the Code. It, by extreme contrast with any provision of Division XIV, Part III, empowers the Board , thus:

18. The Board may review, rescind, amend, alter or vary any order or decision made by it, and may rehear any application before making an order in respect of the application. [Emphasis not in original text.]

That is a far cry from any of the provisions of Division XIV, Part III.

So, in these circumstances should the Court pretend that the inspector’s report lives ad vitam aeternam, and that the Minister has now received its late or latest resurrection? Should the Court therefore purport to order the Minister to appoint a new adjudicator to hear and adjudicate on the complaint? Could the Court lawfully do so? The Court thinks not.

This Court, on judicial review, is not empowered to give the decision or order which the Adjudicator ought to have given. Should the Court then purport to invoke paragraph 18.1(3)(a) of the Federal Court Act to order the Adjudicator to dismiss the complaint because he unlawfully failed to do so? It is not certain that he ought to have dismissed it; what is certain is that he approached his task and performed it in a patently unreasonable manner and accordingly came to a highly tainted conclusion which may likewise be characterized as patently unreasonable. If the Court were to order the Adjudicator to dismiss the complaint, how would that differ from the Court’s setting aside or quashing his order? The complaint, however, upon the quashing of the Adjudicator’s order, in these circumstances, remains unadjudicated.

Perhaps this state of affairs is just the natural and inevitable consequence of the mélange of statute law (no judicial review at all) and jurisprudence (judicial intervention in instances of patent unreasonability), which, rather than possessing a well-thought-out internal consistence, purpose and integrity, is riven by inconsistence, cross-purpose and contradiction. Courts, led by the Supreme Court of Canada, may override existing statutory privative provisions, but not even the Supreme Court can so usurp Parliament’s function as to enact new concordant statutory provisions. Judicial power can destroy legislation’s purpose, but it cannot create a new purpose to replace that set aside.

For all of the foregoing reasons the Adjudicator’s decision and order are set aside, or quashed—period—full stop. Money paid into Court on a garnishing order (T-1127-92) shall not be paid out pending expiry of the time for appeal herefrom, and if an appeal be taken, the matter of payment out of the money and to whom, shall be governed by order or direction of the Appeal Division to abide the result of such appeal.

As noted earlier herein, no costs are awarded to either party or the intervener.