Last month, the Supreme Court of Canada delivered the latest in a recent line of landmark victories for workers’ rights. In Wilson v Atomic Energy of Canada Ltd, the Court restored the decision of a Canada Labour Code adjudicator that non-unionized employees under federal jurisdiction cannot be dismissed from their employment without just cause. After the opposite conclusion was reached by both lower courts, and by a minority of the Supreme Court, it is worth reflecting on how close federally regulated employees came to losing such a significant right.

Background

Joseph Wilson was terminated from his employment with Atomic Energy of Canada Ltd. in 2009. The employer did not purport to have just cause for the termination, but rather stated that the reason for dismissal was “on a non-cause basis” with “a generous dismissal package”. Mr. Wilson filed an unjust dismissal complaint pursuant to the Canada Labour Code. The adjudicator found that employers under this regime cannot make a termination “just” by offering severance packages; rather, an employee can only be terminated if there is just cause.

The employer applied for judicial review of this decision to the Federal Court. The Court allowed the application, finding that nothing in the Code prevented employers from dismissing non-unionized employees on a without-cause basis and offering a severance package. The Federal Court of Appeal agreed.

Supreme Court’s judgment

In a 6-3 split decision, the Supreme Court allowed the appeal and restored the adjudicator’s decision. There were four separate sets of reasons in the judgment, with the majority of the Court concurring with the reasons of Justice Abella on the merits of the appeal.

Justice Abella held that the standard of review for this decision was reasonableness, and that deference was owed to the expertise of labour adjudicators under the Code. She held that the adjudicator’s decision in this case was reasonable, and was consistent with the purpose of the scheme under the Code, which was intended to provide non-unionized employees with similar protections available to unionized employees, as confirmed by statements from the Minister of Labour when the legislation as introduced. She further found that the adjudicator’s approach was consistent with the overwhelming majority of past adjudications since this regime was enacted.

The dissenting judges of the Court held that the standard of review was correctness. They found that the unjust dismissal regime under the Code was simply a procedural option for federal employees, and did not alter the common law approach to dismissal of non-unionized employees. They concluded that a dismissal without cause is not unjust per se, if adequate notice is provided.

Discussion

Wilson is a remarkable decision for a number of reasons: it affirmed the deference owed to administrative decision-makers interpreting their home statutes; it sparked a lively debate among the Supreme Court bench as to whether or not the standard of review analysis from Dunsmuir needs to be re-examined; and it restored likely the most significant employment right for non-unionized employees in any jurisdiction in Canada. Perhaps the most remarkable aspect of the Wilson judgment is how close we came to the opposite result.

Labour adjudicators have been ruling on unjust dismissal complaints under the Code for nearly forty years. As we learned from the Supreme Court’s judgment, there have been more than 1740 adjudications and decisions under this regime. Of those, only 18 decisions departed from the approach adopted by the adjudicator in Mr. Wilson’s case, and held that employees could be dismissed without just cause.

One would think that this number was so low, it could be easily dismissed as an outlier position. And yet, on the strength of essentially 1% of the decisions rendered on this issue, the entire unjust dismissal regime was nearly upended. The Federal Court held that the conclusion that employees could only be terminated for just cause was unreasonable. The Federal Court of Appeal held that, because there was such a deep jurisprudential conflict on this issue, the Court must intervene and pronounce upon the correct interpretation. Its chosen interpretation sided with the 18 decisions out of 1740.

Justice Abella flatly rejected the notion that this amounted to a conflict in the case law: “What we have here is a drop in the bucket which is being elevated to a jurisprudential parting of the waters.” Moreover, she unequivocally endorsed the approach of the adjudicator in Mr. Wilson’s case, finding not only that it was reasonable, but that the opposite approach was unreasonable and contrary to the purpose of the Code’s protections.

However, even at the Supreme Court level, three of the nine judges held that the correct approach under this scheme permitted non-unionized employees to be dismissed without cause. In other words, if two members of the Supreme Court had gone the other way, the right of tens of thousands of employees across Canada not to be dismissed without just cause would have been permanently lost.

Other than simply breathing a sigh of relief that the right result was reached, what should workers’ advocates take away from this case? Here are three thoughts:

  • First, when lobbying for employment rights in legislation, emphasize clarity. If the Code expressly stated that employees can only be dismissed for just cause, this litigation would have been unnecessary.
  • Second, even rights that appear solid and longstanding can never be taken for granted. Forty years of case law can be overturned by one well-placed application for judicial review.
  • Third, and related to the second, rights need to be actively protected, which requires good advocacy and resources. All federally regulated employees and their advocates should think about the consequences if Mr. Wilson, and those representing and supporting him, had not taken this case all the way.

[This article is for informational purposes only and does not constitute legal advice, which cannot be given without consideration of your individual circumstances.]