Federal Court


Arbitration

Disqualification of arbitrator
Canada Labour Code was silent on issue of withdrawal of complaint

Employee filed complaint under Canada Labour Code alleging he was dismissed without cause from his employment as community support worker development coordinator with employer. Seven days of hearings took place over span of one year. By August 2014, adjudicator had all material necessary to render decision. Employer contacted adjudicator in May 2015 and on July 13, 2015 seeking decision but none was forthcoming. Adjudicator responded, noting that determination on merits was made some time ago, but that his reasons needed to be amplified given recent decision of Federal Court of Appeal. On July 14, 2015 employee withdrew complaint, intending to pursue civil action. Employer opposed withdrawal of complaint given that determination had already been made on merits. Adjudicator advised that he was functus officio and did not have jurisdiction to determine if employee could withdraw complaint. Employer brought application challenging adjudicator’s decision to accept employee’s withdrawal of his complaint. Application dismissed. Code was silent on issue of withdrawal of complaint, and did not explicitly convey whether or not adjudicator’s broad discretion to control its procedure conferred on adjudicator power to disallow unilateral withdrawal of complaint. In absence of direction on issue of withdrawal, employee was entitled to withdraw complaint by providing proper notice to adjudicator and ensuring affected parties were notified. Once employee had done so, adjudicator’s jurisdiction to act was exhausted. If employee pursued civil action, employer could raise forum shopping and issue estoppel with court.

Inter Tribal Health Authority v. Sinclair (June 1, 2016, F.C., Michael D. Manson J., T-1609-15) 269 A.C.W.S. (3d) 82.

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