Slaight+Communications+inc.+v.+Davidson

Slaight Communications – appellant (now, Supreme Court of Canada), appellant (Federal Court of Appeal), ‘defendant’ (arbitration) Davidson – respondent (now), respondent (Fed Court of Appeal), ‘plaintiff’ (arbitration) **__Judicial History__**: Canada Labour Code (CLC): s. 61.5 (9): Where an adjudicator decides pursuant to subsection (8) that a person has been unjustly dismissed, he may, by order, require the employer who dismissed him 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. **__Issues__**: Was it within the adjudicator's jurisdiction to make the order to write the letter of recommendation? Did this order infringe on Charter rights? Order by adjudicator is valid, will remain. [Reasoning below is dissent: Lamer J. says part (3) of order [see above: “Appellant must only respond to requests for information about D using this letter.”] is unreasonable. Should be dismissed, and only part (1) and (2) should remain.]
 * __Facts__**:
 * Appellant dismissed Davidson from job as "radio time salesman" on ground of inadequate performance. Davidson filed complaint for unjust dismissal. Failure to settle complaint among parties. Davidson asked that complaint be referred to adjudicator.
 * Adjudicator ordered appellant to pay Davidson compensation and to pay his counsel for legal costs. Adjudicator also ordered that appellant write a letter of recommendation for Davidson: 1) Letter must state that D was wrongly dismissed. 2) Letter must state sales quotas which D had been set and those he actually made. 3) Appellant must only respond to requests for information about D using this letter.
 * Federal Court of Appeal dismissed the application to set aside. Mahoney J said that the presence of the word "like" was not intended to restrict the adjudicator's power (s. 61.5(9)(c) of Canada Labour Code). The part of the order prohibiting appellant from answering questions was //not// aimed at remedying the consequences of dismissal; not authorized by s. 61.5(9)(c). This also infringes Canadian Charter (freedom of thought, belief, opinion, expression)
 * __Holding__**: Appeal dismissed (previous appeal allowed).

**__Reasoning__**: (Lamer J., dissenting in part; not included here but Beetz J. dissents entirely) "...the presence of the word 'like' in this version does not have the effect of limiting the general power conferred on the adjudicator [...] Section 61.5 is clearly a remedial provision and must accordingly be given a broad interpretation [...] It would in fact be very difficult to find remedies __like__ the remedies mentioned in paras. (//a//) and (//b//) [...] I believe that, on the contrary, by enacting s. 61.5(9)(c), the legislator intended to vest in the adjudicator powers that would be sufficiently wide and flexible for him to adequately perform the duties entrusted to him, in each of the cases taht come before him." (p. 514 CB) Appellant argues that there is no connection between order made in the case at bar: adjudicator exceeded his power in the part of the order about the letter. Judge disagrees: this part is clearly intended to prevent negative consequences of dismissal (ex. effect on finding new employment). Judges said there was no relationship between the ‘creation of trust and sending of the letter’ (the remedy) and the act and its consequences. Letter was the opinion of the bank. Was therefore undemocratic and shouldn’t be authorized. "I am not prepared to say at this istage that the nature of this part of the order is such that the adjudicator necessarily exceeded his jurisdiction in making it. Quite apart from the constitutional argument that htis order infringes the freedom of expression guaranteed by the //Canadian Charter of Rights and Freedoms//, therefore, I consider that the adjudicator ahd the power to make this part of the order at issue here." (pp. 516-17 CB) **__Ratio __**: If not otherwise specified, discretionary power conferred in a statute must be broadly interpreted so as not to infringe on Charter rights and freedoms. It may be within the jurisdiction of power conferred by statute to limit Charter rights or freedoms if the limitation is reasonable and justified in a Type in the content of your page here.
 * Appellant argued that adjudicator had no power to make this order because orders made under s. 61.5(9)(c) of CLC must be "like" any orders mentioned in 61.5(9)(a) or 61.5(9)(b). Note, however, that the English and French versions of this section differ: the French does not contain the word "like." Judge agrees with Federal Court of Appeal judges that "like" does //not// limit powers conferred on adjudicator in this way. Application of e//jusdem generis// doctrine: see if there is a common characteristic in the specific terms (a) and(b) with the general term in (c). There is no common "denominator" here apart from the fact that all are intended to remedy/counteract the consequences of unjust dismissal.
 * s. 61.5 requires broad interpretation. Unlikelihood of there being many other remedies "like" those in (a) and (b). More likely that legislator in fact intended to invest **wide** powers on the adjudicator in (c) (//not// limited to remedies "like" (a), (b)).
 * This case is //not// like //National Bank of Canada v. Retail Clerks' International Union// (The National Bank of Canada had made the decision to close a unionized branch and incorporated it in a non-unionized branch for anti-union reasons, therefore infringing the //Canada Labour Code//. Canada Relations Board ordered the Bank to create a trust fund to further the Code's objectives among employees and send employees a letter to tell them about it. The order specifically dictated and limited what the letter would say. (pp. 515-516))
 * //This// case involves a different kind of letter: no opinions expressed, just facts. Adjudicator not pursuing an improper objective, was not exceeding his powers.
 * The part of the order prohibiting the appellant ot answer questions about D apart from providing the letter could create circumstances where letter of recommendation could be seen as an expression of appellant's opinion. By prohibiting the appellant from adding any comments, this part of the order exceeds the powers conferred by Parliament (is unreasonable):
 * see Wade ("discretion must be exercised reasonably and in good faith...")
 * see cases: //Blanchard v. Control Data Canada Ltd.//: an administrative tribunal can make mistakes, but it is //not// within its jurisdiction to be //unreasonable//.
 * The order was not unauthorized, but the //substance// of the order was unauthorized because the adjudicator "made a patently unreasonable decision" (p. 519 CB)
 * No need to consider whether s. 61.5(9)(c) empowered the adjudicator to make such an order because the legislator //clearly// wanted to confer //wider// powers than those ordinarily conferred under common law rules.
 * No violation of the Canadian //Charter// in this case:
 * The adjudicator derives his power from statute.
 * Impossible to interpret legislation (statute) as conferring power to infringe on the //Charter// because then the legislation would have to be declared of no force or effect.
 * see Hogg: legislation that is not precise as to the discretion allowed must be interpreted as not allowing //Charter// infringment
 * s. 61.5(9) must, therefore, be interpreted "as conferring on the adjudicator a power to require the employer to do any other thing that it is equitable to require the employer to do in order to remedy or coutneract any consequence of the dismissal, provided however that such an order, if it limits a protected right or freedom, only does so within reasonable limits that can be demonstrably justified in a free and democratic society." (p. 520 CB)
 * s. 1 of //Charter// does //not// provide //absolute// guarantee of rights and freedoms. 2 criteria to determine the validity of an administrative tribunal's order: 1) tribunal may not exceed the jurisdiction it has by statute; 2) imprecise discretion conferred within legislation must be interpreted so as //not// infringing on the //Charter// unless it expressly or clearly intends to do so.
 * 2 possibilities:
 * 1) Legislation confers power to infringe a protected right, so we need to **test the** //**legislation's**// **reasonableness in limiting rights in a free and democratic society** **(i.e. test it against s. 1** //**Charter**//**)**, OR
 * 2) legislation confers imprecise discretion and does NOT confer any power to limit //Charter// rights, so we need to **test the** //**order**// **against s. 1 of the** //**Charter**//
 * In this case, the order regarding the letter limits freedom of expression. However, this limitation is prescribed by law and justified under s. 1. The statute/legislation confers power to the adjudicator, who was only exercising his discretion under that statute. So, we need not test the legislation, but the order, to see if it complies with the //Charter//.
 * ** Test to see whether the order was reasonable and justified in a free and democratic society: **
 * 1) **Was the objective to be served sufficiently important to warrant limiting a** //**Charter**// **right or freedom?**
 * answer: Yes.
 * 2) **Are the means of maintaining the limitation reasonable and justifiable?**
 * answer: Yes:
 * Proportionality test:
 * 1) The measures were fair and not arbitrary. In cases like this, an order may be the //only// means of attaining the objective (of counteracting or remedying the consequences of dismissal).
 * 2) The means chosen impair the right or freedom as little as possible. In this case, there is no way of attaining the objective without impairing appellant's freedom of expression.
 * 3) The effects are proportional to the objective sought. The limitation on freedom of expression is not serious: it limits, but does not abolish that freedom, and is within reasonable limits that can be demonstrably justified in a free and democratic society.