Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok, (1988) 87 N.R. 178 (FCA)

• Judge: Heald, Mahoney and Stone, JJ.
• Court: Federal Court of Appeal (Canada)
• Case Date: Wednesday June 29, 1988
• Jurisdiction: Canada (Federal)
• Citations: (1988), 87 N.R. 178 (FCA)

Banca Naz. Del Lavoro v. Lee-Shanok (1988), 87 N.R. 178 (FCA)

MLB headnote and full text

Banca Nazionale Del Lavoro of Canada Limited (applicant) v. Peter Lee-Shanok (respondent)

(A-1351-87)

Indexed As: Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok

Federal Court of Appeal

Heald, Mahoney and Stone, JJ.

June 29, 1988.

Summary:

Lee-Shanok was dismissed by a bank from his job as a foreign exchange trader. He complained that he was unjustly dismissed under the Canada Labour Code. On a preliminary objection to his jurisdiction the adjudicator ruled that he had no jurisdiction over the matter, because Lee-Shanok was a manager. Lee-Shanok applied for review.

In a judgment reported [1987] 3 F.C. 578; 76 N.R. 359, the Federal Court of Appeal ruled that the adjudicator erred in finding that Lee-Shanok was a manager and that he lacked jurisdiction.

The adjudicator subsequently ruled on the merits that Lee-Shanok was unjustly dismissed and ordered him to be reinstated or, if his position was no longer available, to be compensated in damages. He awarded interest and costs on a solicitor-client basis. The bank applied for review on the grounds that there was a reasonable apprehension of bias from letters sent to the adjudicator by counsel for Lee-Shanok, that the orders for reinstatement and damages were flawed and that the orders for interest and costs were made without jurisdiction.

The Federal Court of Appeal allowed the application and held that there was a reasonable apprehension of bias, that the reinstatement order was improper in the absence of a finding that the position still existed, that the damage award was flawed, that the award of interest, although within the adjudicator's jurisdiction, was inequitable and that the costs award was premature.

Arbitration - Topic 4571

The hearing - Evidence - Presentation of - By written correspondence - During an arbitration proceeding concerning a complaint of unjust dismissal, counsel for the employee wrote letters to the adjudicator which included statements of fact not in evidence and one letter challenged the truth of one of the employer's claims - The Federal Court of Appeal held that the letters raised a reasonable apprehension of bias of the adjudicator on the part of the employer - The court held that it was wrong for counsel to send written communications amounting to evidence to the adjudicator - See paragraphs 8 to 14.

Arbitration - Topic 8406

Judicial review - Grounds - Misconduct - Bias - Lack of impartiality - Reasonable apprehension of - [See Arbitration - Topic 4571 above].

Labour Law - Topic 8571

Industrial relations - Sanctions - Complaints - Unjust dismissal - Remedial jurisdiction - The Federal Court of Appeal held that under s. 61.5(9)(c) of the Canada Labour Code an adjudicator of an unjust dismissal complaint may award interest and costs; although solicitor and client costs should be awarded only in exceptional circumstances - See paragraphs 16 to 28 - However, it was inequitable to award interest on damages as a lump sum as of the date of dismissal, because if the employee had not been dismissed he would have been paid in a series of payments, not a lump sum - See paragraphs 16 to 20.

Labour Law - Topic 8573

Industrial relations - Sanctions - Complaints - Unjust dismissal - Evidence - [See Arbitration - Topic 4571 above].

Labour Law - Topic 8575

Industrial relations - Sanctions - Complaints - Unjust dismissal - Remedies - Reinstatement - The Federal Court of Appeal held that an adjudicator erred in ordering reinstatement of an employee without first finding that the position still existed - The court held that an adjudicator's decision should be so cast that it is readily enforceable, so it was unsatisfactory to order reinstatement or damages in the alternative, if the position no longer existed - See paragraphs 4 to 7, 15.

Labour Law - Topic 8576

Industrial relations - Sanctions - Complaints - Unjust dismissal - Remedies - Damages - [See Labour Law - Topic 8575 above].

Labour Law - Topic 8576

Industrial relations - Sanctions - Complaints - Unjust dismissal - Remedies - Damages - The Federal Court of Appeal held that an adjudicator erred in awarding damages to a dismissed employee without deducting amounts earned by the employee after dismissal - See paragraph 15.

Cases Noticed:

Committee for Justice and Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369; 9 N.R. 115, appld. [para. 14].

Davidson v. Slaight Communications Inc., [1985] 1 F.C. 253; 58 N.R. 150, appld. [para. 18].

Reference Re National Energy Board Act, [1986] 3 F.C. 275; 69 N.R. 174, dist. [para. 24].

Isaacs v. MHG International Ltd. (1984), 3 O.A.C. 301; 45 O.R.(2d) 693 (Ont. C.A.), appld. [para. 27].

Vanderclay Development Co. Ltd. v. Inducon Engineering Ltd. et al., [1969] 1 O.R. 41 (Ont. H.C.), appld. [para. 27].

National Bank of Canada v. Granada, [1984] 2 F.C. 249; 60 N.R. 201 (C.A.), appld. [para. 28].

Statutes Noticed:

Labour Code, R.S.C. 1970, c. L-1, sect. 61.5(7)(b) [para. 12]; sect. 61.5(7)(c) [para. 14]; sect. 61.5(9) [paras. 17, 23]; sect. 61.5(12), sect. 61.5(13) [para. 7].

Counsel:

R.G. Keel, for the applicant;

P.F. Razulis, for the respondent.

Solicitors of Record:

Keel & Cottrelle, Toronto, Ontario, for the applicant;

Holden, Murdoch, Toronto, Ontario, for the respondent.

This case was heard on June 17, 1988, at Toronto, Ontario, before Heald, Mahoney and Stone, JJ., of the Federal Court of Appeal.

On June 29, 1988, Stone, J., delivered the following judgment for the Federal Court of Appeal: