Deadlocked Decision-makers: Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17
“A question of general law which will require the application of a correctness standard, aside from the constitutional questions and others mentioned in Dunsmuir, are becoming increasingly few and far between, if any still exist” — Loewen v. Manitoba Teachers’ Society, 2015 MBCA 13, at para. 54.
And yet, and yet, and yet…in Wilson v. Atomic Energy of Canada Limited, 2015 FCA 17, the Federal Court of Appeal caught sight of one, created by hopelessly deadlocked arbitral jurisprudence. The Canada Labour Code applies to a variety of enterprises falling under the authority of Parliament, i.e. federally-regulated entities. Section 240 protects some categories of employee from unjust dismissal. W was dismissed without cause. He claimed he was unjustly dismissed for whistleblowing on his employer’s activities. It fell to an independent adjudicator appointed under the Code to decide.
Unfortunately, there are two distinct streams of arbitral jurisprudence on a critical preliminary question. Some take the view that a without cause dismissal is per se unjust. Others prefer to say that the absence of cause is a factor to be taken into account in a global assessment of whether the dismissal was unjust.
Stratas J.A. applied a standard of correctness on the basis that this was a general question of law of central importance to the legal system and outside the decision-maker’s expertise. To justify this categorization, Stratas J.A. invoked rule-of-law concerns:
Adjudicators on one side do not consider themselves bound by the holdings on the other side. As a result, for some time now, the answer to the question whether the Code permits dismissals on a without cause basis has depended on the identity of the adjudicator. Draw one adjudicator and one interpretation will be applied; draw another and the opposite interpretation will be applied. Under the rule of law, the meaning of a law should not differ according to the identity of the decision-maker (at para. 52).
Now, the Supreme Court of Canada has said that inconsistent tribunal decisions are not an independent basis for judicial review (see also my post here). However, Stratas J.A. observed, tribunals often have internal procedures which allow them to work questions pure. Here, “because no one adjudicator binds another and because adjudicators operate independently and not within an institutional umbrella such as a tribunal, there is no prospect that the discord will be eliminated. There is every expectation that adjudicators, acting individually, will continue to disagree on this point, perhaps forever” (at para. 54).
On the merits, Stratas J.A. took the view that the Code does not exclude the common law of employment that “an employee dismissed without cause but given reasonable notice is not wrongfully dismissed” (at para. 63). Put simply: “If Parliament intended to limit the right of an employer to terminate an employment relationship to cases where just cause existed, it could have said so quite explicitly” (at para. 71).
What is interesting about Stratas J.A.’s approach is that it relies less on categorizing the question at issue as a ‘general question of law’ than it does on substantive analysis. Stratas J.A. appealed not to categories but to the dispute resolution function performed by reviewing courts: sometimes, a question needs a uniform answer and, sometimes, a court will be the only one able to provide it. There is much to commend this approach. It replaces metaphysical musings about reviewing courts’ role in keeping decision-makers within their “jurisdiction” with an approach that builds on the judicial role in establishing uniform national standards on important matters of principle.
It is, however, easier to justify this approach where there is statutory language that envisages the courts playing an active role. Such language exists: Rothstein J. identified some in Tervita; and Stratas J.A. found some more in Kanthasamy.
Stratas J.A.’s distinction between tribunals and arbitrators is based on the possibility of tribunals resorting to internal dispute mechanisms provided for (expressly or by implication) by legislation, mechanisms that are not at the disposal of arbitrators. Yet a tribunal too can become hopelessly deadlocked in spite of the availability of such mechanisms. The danger is that reviewing courts will fasten on apparent or invented deadlock to justify interventions that would otherwise be inappropriate. Better perhaps to require some indication from the legislature before intervening to break a tie.
Or from the decision-maker itself. Stratas J.A. also reminded readers of this case that federal decision-makers can state a question for resolution by the Federal Court (at para. 39). This may be a sensible solution for hopelessly deadlocked tribunals or arbitrators to take. For what harm could arise from decision-makers themselves seeking guidance from above?
Too readily allowing courts to determine on their own when a deadlock exists risks prising open the lid of Pandora’s box — out of which many correctness unicorns are liable to suddenly emerge. Concrete indications from the legislature or the decision-maker that judicial intervention is necessary or desirable would help to strike a balance between administrative autonomy and judicial standard-setting.
This content has been updated on February 13, 2015 at 10:24.