Wayzhushk Onigum Nation v. Kakeway, (2001) 207 F.T.R. 299 (TD)

• Judge: Muldoon, J.
• Court: Federal Court (Canada)
• Case Date: May 02, 2001
• Jurisdiction: Canada (Federal)
• Citations: (2001), 207 F.T.R. 299 (TD)

Wayzhushk Onigum v. Kakeway (2001), 207 F.T.R. 299 (TD)

MLB headnote and full text

Temp. Cite: [2001] F.T.R. TBEd. AU.020

Wayzhushk Onigum Nation (applicant) v. Dorothy Kakeway (respondent)

(T-1777-99; 2001 FCT 819)

Indexed As: Wayzhushk Onigum Nation v. Kakeway

Federal Court of Canada

Trial Division

Muldoon, J.

July 20, 2001.

Summary:

The Wayzhushk Onigum Nation terminated Kakeway's employment. An adjudicator appointed under s. 242(1) of the Canada Labour Code awarded Kakeway 12 months' salary in lieu of notice. The Wayzhushk Onigum Nation applied for judicial review.

The Federal Court of Canada, Trial Division, dismissed the application.

Administrative Law - Topic 221

The hearing and decision - Right to be heard - General - An adjudicator was appointed under s. 242(1) of the Canada Labour Code to determine a complaint of wrongful dismissal against an Indian band - The band did not appear at the hearing due to its mismanagement - The adjudicator decided in the complainant's favour - The band asserted that the principles of procedural fairness were breached because of a lack of notice and the adjudicator's proceeding in its absence - The band relied on s. 242(2)(b) which required the adjudicator to give full opportunity to the parties to present evidence and make submissions - The Federal Court of Canada, Trial Division, held that the rules of procedural fairness were not breached - The band's "internal incompetence" to prepare for the hearing did not amount to a lack of notice - A party which failed to attend a hearing because of its own mismanagement could not complain that it did not have an opportunity to present its case - See paragraphs 7 to 29.

Administrative Law - Topic 2441

Natural justice - Procedure - Notice - General - [See Administrative Law - Topic 221 ].

Administrative Law - Topic 2495

Natural justice - Procedure - At hearing - Tribunal proceeding in absence of parties -[See Administrative Law - Topic 221 ].

Administrative Law - Topic 2605

Natural justice - Evidence and proof - Drawing of inferences - An adjudicator appointed under s. 242(1) of the Canada Labour Code heard a complaint against an Indian band in the band's absence - The following day, the adjudicator contacted the band to allow it to explain its position - Thereafter, the adjudicator discovered that the band's representative (Copenace) had misrepresented the reasons for the band's absence - The adjudicator stated in his reasons that, because of the misrepresentation, he was accepting the evidence of the complainant's witnesses wherever it differed from Copenace's evidence - The band asserted that the adjudicator's action constituted an ex parte investigation and denied it a fair hearing - The Federal Court of Canada, Trial Division, rejected the band's characterization of the adjudicator's actions - However, the adjudicator should have provided Copenace with the opportunity to respond before drawing the adverse inference - Nevertheless, the court declined to interfere where the adjudicator reviewed only the documentary evidence submitted by Copenace and did not apply the inference - The error was technical and did not the affect the hearing's outcome - See paragraphs 30 to 44.

Master and Servant - Topic 7714

Dismissal of employees - Damages for wrongful dismissal - Deduction for employment expenses - An Indian band dismissed a bus driver after 12 years' employment - An adjudicator appointed under s. 242(1) of the Canada Labour Code allowed the driver's complaint of wrongful dismissal and awarded her 12 months' salary in lieu of notice - The band sought judicial review, asserting that the decision was patently unreasonable because he failed to deduct expenses which would have reduced the net amount realized by the driver had her employment services been rendered over the notice period - It was a condition of the driver's employment that she provide an appropriate vehicle, and that all costs of licensing, insurance, financing, oil, gasoline, maintenance, cleaning and repairs be paid by her - The Federal Court of Canada, Trial Division, declined to interfere with the adjudicator's decision - See paragraphs 45 to 49.

Master and Servant - Topic 8000

Dismissal without cause - Notice of dismissal - What constitutes reasonable notice - [See Master and Servant - Topic 7714 ].

Master and Servant - Topic 8585

Employment and labour standards - Practice - Natural justice - [See Administrative Law - Topic 221 ].

Cases Noticed:

Wallace v. United Grain Growers Ltd., [1997] 3 S.C.R. 701; 219 N.R. 161; 123 Man.R.(2d) 1; 159 W.A.C. 1, refd to. [para. 5].

Roche Percée Coal Miners Union, Local 1623 and McLenehan v. Manalta Coal Ltd. (1990), 84 Sask.R. 212 (Q.B.), dist. [para. 15].

Cardinal and Oswald v. Kent Institution (Director), [1985] 2 S.C.R. 643; 63 N.R. 353, refd to. [para. 15].

Patrick (Jim) Ltd. v. United Stone and Allied Product Workers of America (1959), 21 D.L.R.(2d) 189 (Sask. C.A.), dist. [para. 17].

Sreedhar v. Outlook Union Hospital Board et al. (1972), 32 D.L.R.(3d) 491 (Sask. C.A.), dist. [para. 18].

Kane v. University of British Columbia, [1980] 1 S.C.R. 1105; 31 N.R. 214, refd to. [para. 30].

Canadian Cable Television Association v. American College Sports Collective of Canada Inc., [1991] 3 F.C. 626; 129 N.R. 296 (F.C.A.), refd to. [para. 32].

Schaaf v. Minister of Employment and Immigration, [1984] 2 F.C. 334; 52 N.R. 54 (F.C.A.), refd to. [para. 36].

Popov v. Canada (Minister of Citizenship and Immigration) (1994), 75 F.T.R. 93 (T.D.), refd to. [para. 38].

Samhat v. Minister of Employment and Immigration (1994), 80 F.T.R. 315 (T.D.), refd to. [para. 39].

Sorobey and Popoch v. Public Service Commission Appeal Board (Can.), [1987] 1 F.C. 219; 72 N.R. 318 (F.C.A.), refd to. [para. 39].

Dubé v. Direction des Pensions de Retraite (Can.) (1997), 131 F.T.R. 201; 3 Admin. L.R.(3d) 99 (T.D.), refd to. [para. 40].

Dubé v. Lepage - see Dubé v. Direction des Pensions de Retraite (Can.).

Nooshinravan v. Canada (Minister of Citizenship and Immigration), [2001] F.T.R. Uned. 367 (T.D.), refd to. [para. 42].

Bank of Nova Scotia v. Fraser (2000), 186 F.T.R. 225 (T.D.), refd to. [para. 47].

Gauthier v. Fortier et al. (2000), 191 F.T.R. 219 (T.D.), refd to. [para. 47].

Rogers Cablesystems Ltd. v. Roe (2000), 193 F.T.R. 240; 4 C.C.E.L.(3d) 170 (T.D.), refd to. [para. 47].

Lac La Ronge Indian Band v. Laliberte et al. (2000), 192 F.T.R. 100 (T.D.), refd to. [para. 47].

Counsel:

Darcie Yale, for the applicant;

Bernd Richardt, for the respondent.

Solicitors of Record:

D'Arcy & Deacon, Winnipeg, Manitoba, for the applicant;

Compton, Shewchuk, MacDonell, Ormiston, Richardt & Fregeau, Kenora, Ontario, for the respondent.

Muldoon, J., of the Federal Court of Canada, Trial Division, heard this application in Winnipeg, Manitoba, on May 2, 2001, and delivered the following reasons for order on July 20, 2001.