Federal Court of Appeal - Kawacatoose First Nation v. Ireland

[1] The principal argument advanced by the appellant is that paragraph 242(3.1)(a) of the Canada Labour Code R.S.C. 1985, C. L-2 (the Code) should have been read by the Adjudicator and Gibson J. to include financial crisis on other legitimate business reasons so as to give rise to a situation that would trigger its application in the present case.

[2] Paragraph 242 (3.1)(a) of the Code reads as follows:

Limitation on complaints

(3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where

(a) that person has been laid off because of lack of work or because of the discontinuance of a function;

Restriction

(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants_:

a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;

[3] We cannot read this paragraph as argued by the appellant. In our analysis, the sole question which this paragraph raises is whether, based on the evidence, the dominant reason for termination was a lack of work or termination of a function. Here, the budget crisis did not result in a lack of work or the termination of any teaching function. Indeed, there is no evidence that the appellant's reorganization solved the Band's budget crisis but there is evidence to the effect that the respondents met the requirements for the type of replacement teachers that were eventually hired by the Band.

[4] Considering that the Adjudicator clearly had jurisdiction (and that the parties agreed that she did) and considering that the appellant conceded that the dismissals were unjust and that remedy was the only issue to be decided, we are well satisfied that Gibson J. did not commit any legal or factual errors.

[5] The respondents should have one set of costs on appeal.

"B. Malone"

J.A.

FEDERAL COURT OF APPEAL

NAMES OF COUNSEL AND SOLICITORS OF RECORD

DOCKET: A-7-05

STYLE OF CAUSE: KAWACATOOSE FIRST NATION v. DONALD IRELAND ET AL

PLACE OF HEARING: REGINA, SASKATCHEWAN

DATE OF HEARING: SEPTEMBER 29, 2005

REASONS FOR JUDGMENT OF THE COURT: (Nadon, Sexton & Malone JJ.A.)

RENDERED FORM THE BENCH BY: Malone J.A.

DATED: September 29, 2005

APPEARANCES:

Mr. Gregory J. Curtis FOR THE APPELLANT

Mr. Kenneth J. Karwandy FOR THE RESPONDENT

SOLICITORS OF RECORD:

Semaganis Worme FOR THE APPELLANT

Saskatoon, SK

KMP Law FOR THE RESPONDENT

Regina, SK