In Giffen v. TM Mobility Inc., 2024 FCA 213, released on Dec. 17, Justice Mary Gleason held that the Federal Court had erred in dismissing a judicial review application after considering arguments that the adjudicator had not addressed.
“Rather than proceeding as it did, the Federal Court should instead have focused on the reasons given by the adjudicator and determined whether the adjudicator reasonably considered the appellant’s arguments,” the judge wrote.
The appellant, Chelsea Giffen, commenced employment with the respondent TM Mobility Inc. in 2007.
Giffen took two maternity leaves during her employment with the respondent. The appellant’s second maternity leave ran from June 22, 2017 to Sept. 11, 2018. At the time she held the position of business systems analyst.
Another employee of the respondent backfilled for the appellant during this period. Shortly before the appellant’s return to work, the respondent added another business systems analyst position to the department where the appellant worked.
The employee who replaced the appellant was hired permanently in that role in September 2018.
Soon after the appellant returned to work, the respondent decided to cut one of the business analyst positions in the department as part of a corporate downsizing.
Giffen’s manager testified that he learned of the requirement to cut a position from his department only in November 2018. The respondent chose to lay off the appellant instead of the employee who had filled in for her during her maternity leave.
The appellant filed an unjust dismissal complaint under the Canada Labour Code. At the time, complaints of unjust dismissal were decided by individual adjudicators. Such complaints are now heard by the Canada Industrial Relations Board (CIRB).
The adjudicator found that the respondent had undertaken a bona fide restructuring of the appellant’s department.
The adjudicator also found that the respondent had decided to retain the employee who replaced the appellant during her maternity leave because the other employee had greater overall seniority with the company and the appellant’s manager believed that the replacement worker had more experience in the business analyst position.
However, the respondent had discounted the time that the appellant spent on maternity leave in making this assessment.
The adjudicator found that the appellant’s manager, in good faith, believed that the replacement had greater seniority and job experience than the appellant and concluded that the respondent had offered a reasonable explanation for selecting the appellant for layoff.
However, the adjudicator did not address the appellant’s alternative argument that the decision was discriminatory, even if it was not made in bad faith, because the selection criteria adversely impacted the appellant by reason of her maternity leave and her termination was therefore unjust.
The appellant had submitted that discounting the time she spent on maternity leave from the experience criterion was discriminatory because this adversely impacted her and those who take maternity leaves.
The appellant filed an application for judicial review.
In Giffen v. TM Mobile Inc., 2023 FC 1666, the Federal Court held that discounting the period of the maternity leave in determining the appellant’s experience was not discriminatory or in violation of the maternity leave provisions in the Code.
The Federal Court observed that s. 209.2(1) of the Code requires that an employee continue to accumulate seniority during a maternity leave and that the appellant had conflated seniority with years of experience in the position of business systems analyst.
Giffen appealed the decision.
Justice Gleason noted that the Federal Court had correctly selected reasonableness as the appropriate standard of review but had applied it incorrectly, in turn wrongfully deciding on issues that the adjudicator failed to consider.
The judge cited Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, in which the Supreme Court of Canada noted that absent exceptional circumstances, a reviewing court should not step in and decide issues of significance that were argued before the administrative decision-maker and not considered by the decision-maker.
The court noted that administrative decision-makers’ reasons must be responsive to what the parties argued and must address their central concerns and arguments.
“The appellant’s arguments on discrimination and the violation of the maternity leave provisions in the Code are far from frivolous and were an important part of her case before the adjudicator,” the judge wrote.
The court noted that the Canadian Human Rights Act prohibits both intentional or direct discrimination, as well as adverse effect discrimination, which exists when a practice or decision gives rise to discrimination on a prohibited ground in the absence of any intent to discriminate.
The judge observed that there is support in case law for the view that the respondent had violated statutory protections in minimum standards legislation, like the Code, “because allowing others to accumulate experience that those who take maternity leaves cannot accumulate renders the right to reinstatement a hollow one.”
Justice Gleason also noted that the test to ascertain whether an employee was laid off due to a lack of work or discontinuance of a function requires an employer to establish that there was an economic justification for the layoff and that it had a reasonable explanation for the selection of the employee to be laid off.
She added that it was arguable that reliance on discriminatory reasons for selection of the employee to be laid off or making the selection in violation of the maternity leave provisions in the Code cannot constitute a reasonable explanation.
The court allowed the appellant’s application for judicial review and remitted the appellant’s complaint to another adjudicator.
Justices Judith Woods and Anne Mactavish concurred in the decision.
Counsel for the appellant, Ken Krupat, said that decision was “somewhat disappointing” from an access to justice perspective, adding that the court could have resolved these issues with greater finality.
“On a positive note, the Court of Appeal’s disposition suggests that it is highly likely that this will all turn out in Ms. Giffen’s favour, eventually. However, it may well involve extended and lengthy proceedings in addition to the lengthy proceedings that Ms. Giffen has already been forced to endure,” he told Law360 Canada in an email.
Melynda Layton, who also acted as counsel for the appellant, said that the decision confirmed equity seekers’ right to job protection during protected leaves.
Counsel for the respondent were Bonny Mak and Alex Ognibene of Fasken Martineau DuMoulin LLP. They were not immediately available for comment.
If you have any information, story ideas, or news tips for Law360 Canada on business-related law and litigation, including class actions, please contact Karunjit Singh at karunjit.singh@lexisnexis.ca or 905-415-5859.