Mar 22

The Intricacies of Procedural Fairness and Employment Law: A Deep Dive into the Shaw Communications Canada Inc (2023 FCA 237) Case


Shaw Communications Canada Inc. (2023 FCA 237) <>, decided by the Federal Court of Appeal on December 5, 2023, is a pivotal case in the landscape of Canadian employment law. It highlights crucial aspects of procedural fairness, the role of adjudicators, and the interpretation of employment-related disputes. The case, presided over by Justices Gleason, Woods, and Mactavish, involved an appeal by Shaw Communications Canada Inc. (“Shaw Communications”) against a previous Federal Court ruling. This ruling had overturned an adjudicator’s decision regarding the unjust dismissal of an employee from Shaw Communications. This comprehensive analysis aims to dissect the intricacies of the case, focusing on the key legal takeaways and their
broader implications in employment law.

Background of the Case

The case centered on an employee of Shaw Communications who was dismissed after approximately seven and a half years of service. The employee initially held the position of Customer Service Representative and later transferred to the role of Technical Service Representative (TSR). The dismissal was contested as unjust, leading to a series of legal proceedings, including an adjudicator’s ruling, a Federal Court decision, and ultimately, the appeal to the Federal Court of Appeal.

Decision and Reasoning

Justice Gleason opposed the conclusions reached by the Federal Court, arguing that the nature of the Plaintiff’s responsibilities and the sufficiency of the Shaw Communications’ evidence were subjects of dispute during the adjudicator’s hearing. Finding that the Federal Court improperly reassessed the evidence, resulting in an inaccurate judgment. Additionally, the Court of Appeal deemed the adjudicator’s decision to include severance pay in the damages and grant full indemnity costs as justifiable. The Court of Appeal’s ruling reinstates the initial award by the adjudicator, acknowledging it as a proper remedy for the unjust termination.

Key Issues and Legal Analysis

1. Procedural Fairness and Adjudicator’s Role: One of the critical issues in this case was whether the Federal Court erred in its assessment of procedural fairness and its subsequent overturning of the adjudicator’s findings. The Federal Court of Appeal scrutinized the adjudicator’s decision-making process, particularly regarding the employee’s core duties and the employer’s statistical evidence of performance.

2. Nature of Core Duties and Performance Metrics: The Federal Court of Appeal examined the determination of what constituted the core duties of the TSR role at Shaw Communications and whether the employee met these requirements. The court evaluated how the adjudicator and the Federal Court interpreted these duties and the evidence presented.

3. Award of Severance Pay and Costs: Another significant aspect of the appeal was the appropriateness of the adjudicator’s award, which included severance pay and costs. The Federal Court of Appeal delved into whether the adjudicator had the authority to make such awards and if the Federal Court was justified in its intervention.

4. Interpretation of Employment Legislation: The case also involved a deep analysis of relevant sections of the Canada Labour Code, particularly those pertaining to unjust dismissal and the powers of an adjudicator in such cases.

Legal Takeaways

1. Importance of Procedural Fairness: The case reaffirms the principle of procedural fairness in employment disputes, emphasizing the need for a fair and transparent process in adjudicating such cases.
2. Role of Adjudicators in Employment Disputes: The decision highlights the significance of adjudicators in interpreting employment legislation and the deference given to their findings, provided they adhere to procedural fairness and reasonable interpretation of evidence.
3. Clarification of Core Duties in Employment: For employers, this case underscores the importance of clearly defining an employee’s core duties and the metrics for assessing performance.
4. Severance Pay and Legal Costs: The ruling provides insights into the adjudicators; discretion in awarding severance pay and costs, particularly in cases of unjust dismissal.
5. Comprehensive Review of Employment Legislation: The case offers a detailed examination of the Canada Labour Code, particularly regarding unjust dismissal, providing valuable guidance for both employers and legal practitioners.


This decision offers a nuanced look into the complexities of employment law, procedural fairness, and the roles of adjudicators in Canada. It serves as a critical reference point for understanding unjust dismissal cases and the interpretation of employment contracts and duties. This case is a reminder of the ongoing evolution of employment law and the need for both employers and employees to stay informed about their rights and obligations.

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