Archived - Discussion Paper on the Review of Labour Standards in the Canada Labour Code

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III. Smart Compliance

3. A New Adjudicative Structure

a) Director of Adjudication Services

Commission Recommendations:
  • A new adjudication system should be established under a Director of Adjudication Services (DAS). The DAS should report not to the Chief Compliance Officer, but to a more senior official at the Labour Program. The DAS should have the authority to:
    • provide information to workers and employers concerning their procedural and substantive rights and responsibilities;
    • receive and process complaints concerning unjust dismissal;
    • assist the parties to such complaints to resolve their differences;
    • dismiss claims that are patently frivolous or vexatious or belong elsewhere;
    • assign cases for adjudication; and
    • take all necessary steps to ensure the proper operation of the adjudication system.
  • Separate reporting lines and a clear division of responsibilities should be established between the Chief Compliance Officer and the Director of Adjudication Services, in order to ensure the adjudicative independence of Hearing Officers.
  • Staff of the Director of Adjudication Services should process incoming unjust dismissal complaints and appeals from inspectors’ decisions; ensure that those that are eligible for adjudication are dismissed or diverted elsewhere; and assist the parties to resolve their differences, if possible, and if not, bring matters forward to a hearing promptly and with the issues clearly defined. The Director of Adjudication Services should develop strategies for assisting unrepresented workers and employers to secure representation or to represent themselves at hearings. (R. 8.6, 8.7, 9.13, 9.15, 9.16, 9.17, 9.18)

The Commission proposed the creation of the new position of the Director of Adjudication Services, who would oversee all the adjudicative elements related to compliance. Although this change could be made administratively, a codification of the position and the new proposed structure would serve to highlight the importance of the role and the new adjudication services that would be part of the Labour Program. However, it is also possible that the codification of the position and its responsibilities could be too restrictive if a new position or a different set of responsibilities is required as the Labour Program evolves.

One of the changes contemplated in the recommendation is giving staff of the Director of Adjudication Services the power to screen out complaints. While Part III provides a specific complaint process for unjust dismissal complaints, it considerably constrains the Labour Program’s ability to handle complaints because non-meritous ones cannot be screened out near the beginning of the process. The Commission recommended that staff under the Director of Adjudication Services be given the power to decline to deal with unjust dismissal complaints if they are frivolous, vexatious, trivial or not made in good faith, the dispute is resolved, the matter is outside the jurisdiction of Part III, or a complaint is filed after a specified time limit. Complainants would be given the right to appeal such decisions, possibly to the Director of Adjudication Services, or to the Canada Industrial Relations Board.

Under these recommendations, inspectors would continue to have the power to settle complaints. One possibility would be to also give inspectors the specific power to decline to further investigate complaints following a settlement.

The recommendation to require Labour Program staff to identify and clarify the issues of each case may be a useful suggestion and could be supported by an explicit statutory authority.

The implementation of strategies to assist unrepresented employees and employers to secure some form of representation, or represent themselves effectively, may make the system more efficient and ensure that there is a level playing field for all parties.

For discussion:
  • Should the new position of Director of Adjudication Services be created? If so, should that involve a legislative change or an administrative one?
  • Should staff of the Director of Adjudication Services (or inspectors, if applicable) have the ability to dismiss frivolous, vexatious, or otherwise inappropriately filed wrongful dismissal claims? If so, where should the right of appeal lie?
  • Should inspectors be entitled to decline to proceed further with investigations if there is a settlement in place?
  • How useful is it for adjudicative staff to identify and clarify the issues of a case? Should this be grounded in explicit legislative authority?
  • What strategies would assist unrepresented employers and employees to secure representation for hearings, or allow them to effectively represent themselves?

b) Hearing Officers

Commission Recommendations:
  • A permanent roster of full- and part-time Hearing Officers should be appointed to hear appeals from the decisions of inspectors in certain cases and to perform adjudicative functions now undertaken by Referees and Adjudicators. Hearing Officers should possess knowledge of and experience in labour standards issues, labour law, industrial relations or related disciplines. Senior departmental field staff should be eligible for appointment, as well as arbitrators, tribunal members and persons who previously represented workers or employers.
  • Hearing Officers should be paid at a level commensurate with their responsibilities; they should be well trained; they should be hired in sufficient numbers to enable them to perform their functions efficiently; and they should be deployed in accordance with a well-designed and carefully monitored strategy. (R. 5.10, 8.8, 9.14)

Under the present system, Referees hear appeals from inspectors’ decisions in wage recovery cases and Adjudicators hear cases involving unjust dismissals. The Commission proposed that there be a permanent roster of Hearing Officers appointed on a term basis to do the roles currently filled by Referees and Adjudicators. The type of adjudication system that could exist with Hearing Officers may be similar to the system under Part II of the Canada Labour Code (which covers occupational health and safety). Consideration must be given as to whether or not Hearing Officers would best be hired for an indefinite term (much like adjudicators under Part II), for term appointments, or on an ad hoc basis.

The extra costs associated with this proposal will need to be weighed against the potential benefits and other options for achieving similar efficiencies in the system. It is possible that permanent Hearing Officers will not expedite the process. For example, there are sometimes delays in obtaining appeal decisions under Part II, even though there is currently an in-house system in place for such appeals.

One possibility is to have a “hybrid” system and have some matters, such as the complaints that would otherwise be heard by Referees, heard by internal Hearing Officers, and wrongful dismissal complaints to continue to be heard by independent external Adjudicators.

If the decision is made to continue to use independent external Referees and Adjudicators, the inventory of possible appointees could be enhanced, additional research assistance could be made available to Referees and Adjudicators, and mediation assistance could be made available to the parties.

For discussion:
  • Would bringing the work currently done by external Referees and Adjudicators in-house be more cost or time efficient?
  • Would there be concerns about the independence of the adjudication process if Hearing Officers were paid employees of the Labour Program?
  • For what period of time should Hearing Officers be appointed? Indefinitely? A fixed term? On an ad hoc basis?
  • Would it be appropriate to have a “hybrid” system, under which Hearing Officers deal with wage complaints and external Adjudicators deal with unjust dismissal cases?
  • If applicable, what resources could be offered to external Referees or Adjudicators to assist in their work and make the process more efficient?

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Date Modified:
2012-02-15