THE REPUBLIC OF TRINIDAD AND TOBAGO IN THE HIGH COURT OF JUSTICE CV 2010-03257 BETWEEN BRIAN MOORE Claimant And PUBLIC SERVICES CREDIT UNION CO-OPERATIVE SOCIETY LIMITED Defendant Before the Honourable Mr. Justice R. Rahim Appearances: Ms. K. Lightbourne for the Claimant. Mr. E. O Connor and Mr. Clarke for the Defendant.
Judgment 1. The Defendant seeks to appeal the decision of the Minister of Labour, Small and Micro Enterprise Development ( the Minister of Labour ) by Notice of Application dated the 26 th February 2013 and amended on the 5 th March 2013. The said application is supported by Affidavit evidence of Hugh Clarke dated 26 th February 2013 and Supplemental Affidavit dated 5 th March 2013. The present appeal is made pursuant to Section 74 of the Co-operative Societies Act Chapter 81:03 ( the Act ). 2. For the reasons that follow the order of the court is as follows: i. The appeal by way of Notice of Application of the 25 th February 2013 is dismissed. ii. The order of suspension of the Writ of Execution dated 27 th June 2012 is lifted. Background 3. It is necessary at this stage to set out a short background to the present appeal: 5 th June 2008 A Complaint was made to the Commissioner for Cooperative Development by the Claimant challenging the decision of the Board of Directors of the Public Services Credit Union Co-operative Society Limited (the Defendant) to declare his seat on the Board of Directors vacant before the expiration of his term of office, in accordance with the amended Bye-Laws of the Public Services Credit Union Cooperation Society Limited. The Claimant sought to be reinstated to complete the full term of office (two years). 19 th May 2010 Determination of dispute by Commissioner that (1) petition to be reinstated is dismissed, (2) Award of financial entitlement Page 2 of 19
for (a) stipend for April 2008 March 2010 - $24,000.00 (b) Honoraria for April 2008 March 2010 - $15,631.00. 15 th July 2010 Defendant appealed to the Minister of Labour the decision of the Commissioner requesting that paragraph 2 of the order be reversed. Paragraph 2 of the order dealt with the award of financial entitlement. 19 th April 2012 Request for Writ of Execution filed for the recovery of the sum of $49,208.06 representing the award made by the Commissioner plus interest to date. 27 th June 2012 Application by the Defendant to suspend the Writ of Execution filed until determination of appeal before the Minister. Consent Order entered in same terms. 22 nd February 2013 Decision of the Minister of Labour denying appeal and affirming paragraph 2 of the Commissioner s decision. 26 th February 2013 Notice of Application to appeal decision of Minister of Labour filed by Defendant together with Affidavit evidence in support. 5 th March 2013 Amended Notice of Application to appeal decision filed by Defendant together with Supplemental Affidavit evidence in support. 4. By it s amended application of the 5 th March 2013, the Defendant sought the following relief: i. An order suspending the Writ of Execution dated 26 th April 2012 granted to the Claimant until the Appeal filed herein on the 25 th February 2013, by way of Notice of Application pursuant to section 74 of the Co-operative Societies Act Chapter 81:03 challenging the decision of the Minister of Labour is heard and determined or until further order; Page 3 of 19
ii. A declaration that the Minister of Labour acted and misdirected himself when he purported to change part (1) of the decision of the Commissioner delivered on the 19 th May 2010; iii. A declaration that the Minister of Labour erred in considering what the Commissioner claimed to have thought even though it was not stated in his written or verbal decision given at the end of the proceedings before him on the 19 th May, 2010; iv. A declaration that the decision of the Commissioner to award financial entitlements after dismissing the Claimant s substantive claim was legally incorrect. v. An order reversing the entire order of the Minister of Labour given on the 22 nd February, 2013; vi. An order dismissing part (2) and affirming part (1) of the decision of the Commissioner given on the 19 th May 2010; vii. An order that the Minister of Labour pay the Respondent s costs in this cause; viii. An order that the Commissioner pay the Respondent s costs of the appeal concluded before the Minister of Labour on the 22 nd February 2013 ix. If this Honourable Court finds favour with the decision of the Minister of Labour, an order that the Commissioner pay the sums awarded in part (2) of his decision of the 19 th may 2010 to the Respondent, as he sanctioned the Page 4 of 19
Respondent s amended Bye-Law, declaring the Claimant s seat vacant and offered the position to be filled by fresh elections; and; 5. The grounds of the appeal are as follows: i. That the Minister of Labour erred in his decision given on the 22 nd February, 2013 when he purported to and changed part (1) of the decision of the Commissioner given on the 19 th May, 2010, to which there was no complaint given by the Respondent, in which he included parts of a decision that were never previously given in his decision or documented in his written decision of 19 th May, 2010. The Commissioner submitted at the appeal hearing that he had kept in his thinking that he intended to include in his decision that the Claimant was successful in his claim. ii. iii. iv. That the Minister of Labour erred when he purported to amend part (1) of the Commissioner s decision given on the 19 th May 2010 even though the Respondent did not complain against that section and the appeal before him was only in relation to part two of the Commissioner s decision. The Respondent suffered serious prejudice by that decision when the Minister of Labour amended part (1) of the Commissioner s decision, effectively reversing same and substituting a decision that the Commissioner submitted that he intended to give and affirming part (2) of the said decision. That the Minister of Labour should have referred to the matter to the High Court as there were several issues of law to be interpreted and decided Issues 6. The issues for this court on this appeal after an examination of the ambit of the court s jurisdiction, pursuant to s. 74 of the Act therefore are as follows: Page 5 of 19
i. Whether the Minister of Labour should have referred the matter to the High Court and the effect of not so doing. ii. iii. Whether the Minister of Labour erred in his treatment of part (1) of the Commissioner s decision; Whether the decision of the Minister to uphold the Commissioner s financial award was incorrect. The jurisdiction of the court 7. The court must determine the nature of its jurisdiction on this appeal and the consequential orders it is entitled to make. 8. The entitlement to appeal to the High Court as was done by the Defendant is found in section 74 of the Act. It states: 74. A party aggrieved or adversely affected by any order or decision of the Commissioner under this Act may appeal therefrom to the Minister within two months of such order or decision, and a further appeal may lie therefrom to a Judge in Chambers within one month of such order or decision of the Minister. 9. The court has had regard to section 58 of the Interpretation Act Chap 3:01 in determining its jurisdiction. It provides: 58. (1) Where a written law passed or made after the commencement of this Act provides that an appeal against any decision or determination of a Court, Tribunal, authority or person (in this section called the original Tribunal ) may be brought to any Court (in this section called the appellate Court ) that appellate Court may, for all the purposes of and incidental to hearing or Page 6 of 19
determining that appeal, exercise all the powers, authority and jurisdiction of the original Tribunal. (2) In addition the appellate Court may (a) confirm, reverse or vary the decision or determination of the original Tribunal; b) remit the appeal or any matter arising thereon to the original Tribunal with such declaration or directions as the appellate Court may think proper; or (c) make such order as to costs and expenses as the appellate Court may think proper. (3) The original Tribunal shall have regard to all such declarations and obey all such directions, if any, as may be given by the appellate Court pursuant to subsection (2)(b). (4) Orders made by an appellate Court have the like effect and may be enforced in like manner as orders made by the original Tribunal. 10. Thus, while the court is exercising an appellate role, it is also fitted with equal jurisdiction as that exercised by the Commissioner and may make orders to the effect. 11. However, it is a well settled principle of law, that the role of an appellate court in reviewing the exercise of a lower court or body s discretion is limited to the appellant proving that the decision was plainly wrong. In Christianne Kelsick (an infant suing by her father and next of kin, Rawle Kelsick) v Dr Ajit Kuruvilla; North West Regional Health Authority; Attorney General of Trinidad and Tobago C.A.CIV.P.277/2012, Jamadar JA explained that a decision is plainly wrong, not only if a judge is shown to have erred in principle, by disregarding relevant considerations or taking into consideration irrelevant ones, or because the decision is against the weight of or cannot be supported by the evidence; but also when a judge is required to balance multiple Page 7 of 19
considerations and the approach to and/or result of this balancing exercise is plainly wrong: see also A.G. v Regis, Civ. App. No. 79 of 2011. The First Issue 12. It was submitted on behalf of the Claimant that the Minister of Labour being the holder of a public office, ought to submit intricate questions of law to be determined by the High Court. 13. According to the Claimant, in addressing the appeal, the Minister highlighted the issues to be determined as follows:- i. Was the issue of financial compensation included in the Claimant s substantive complaint; ii. What weight, if any, is the Appeal tribunal to give to the Commissioner s reliance at the dispute hearing on the testimony of Mr. Ronald Bobb, witness for the Complainant regarding the undertaking to exclude sitting Directors from the amended By-laws; iii. Can financial relief be granted to a successful plaintiff; iv. Was the complainant successful or unsuccessful based on the ruling of the Commissioner; v. Was the Complainant entitled to the honorarium and stipend awarded by the Commissioner. Page 8 of 19
14. It was therefore submitted by the Claimant that of the issues highlighted to be addressed by the Minister of Labour, numbers ii, iii and v were questions of law requiring statutory interpretation and legal analysis which is the remit of the High Court and ought to have been directed to the High Court. 15. Like the Claimant, it was also argued by the Defendant that the Minister, faced with an appeal with several issues of law, should have referred same to the High Court for its interpretation. Further, it was contended that while the Minister referred to the correct Authorities, his application of the principles of law to the facts before him, was misapplied. 16. The material section in relation to this issue is section 68. It provides as follows: 68. (1) Notwithstanding anything contained in section 67, the Commissioner at any time when proceeding to a decision under this Act or the Minister when an appeal has been referred to him against any decision of the Commissioner under this Act may refer any question of law arising out of such decision for the opinion of the High Court. (2) Any Judge of the High Court may consider and determine any question of law so referred and the opinion given on such question shall be final and conclusive. 17. The court must first decide whether the issues before the Minister were issues of law. If the finding of the court is that the issues were not issues of law, the provisions of s. 68 are inapplicable. However, if it is found that the issues were issues of law, the court must consider whether the referral provided for by s. 68 is one to be exercised mandatorily or whether there exists a discretion in the tribunal to do so. This in essence requires a finding on the meaning of may in s. 68. 18. The court shall therefore deal with the issues in respect of which there has been complaint in this regard in turn: Page 9 of 19
ii) What weight, if any, is the Appeal tribunal to give to the Commissioner s reliance at the dispute hearing on the testimony of Mr. Ronald Bobb, witness for the Complainant regarding the undertaking to exclude sitting Directors from the amended By-laws The weight to be given to a particular item of evidence is a matter of fact which will be decided largely on the basis of common sense, in the light of the circumstances of the case and of the views formed by the jury (or judge where there is no jury) on the reliability and credibility of the witnesses and exhibits: Halsbury Laws of England 5 th Edn, Volume 11 (2009) para 766. Thus a finding of the weight to be placed on the evidence of Mr. Bobb is one of fact for the tribunal which would have had the opportunity to assess his evidence and decide whether his testimony was plausible, reliable, credible and accorded with common sense. It is certainly not a matter of law. In the court's view it therefore follows that the Minister did not err by the non referral of this issue to the High Court and the court so finds. iii) Can financial relief be granted only to a successful plaintiff The Minister considered this issue to be one in relation to an award of damages. The question of damages and the measure awardable is one of both law and fact. v) Was the Complainant entitled to the honorarium and stipend awarded by the Commissioner Page 10 of 19
The Minister opined that the honorarium and stipend was in effect the measure of damages to which the Claimant was entitled. The treatment of this issue therefore raised both questions of fact and law. 19. Thus issues (iii) and (v) were issues which involved questions of law. The court therefore must consider whether s. 68 bestowed upon the Minister a discretion to refer such questions of law to the high court or are the provisions of the section mandatory in nature thereby imposing a duty on the Minister to refer the question(s) to the high court. 20. In ordinary language, may connotes a discretion or a choice to act or not. Statutorily, although may has been interpreted as shall, may usually creates a discretionary authority. In R v Mitchell et al (1913) 1 KB 561 Lord Coleridge J stated: Originally, and apart from surrounding circumstances, the word "may" in a statute means "may" and nothing else. That has often been laid down, especially by Cotton L.J. in In re Baker, Nichols v. Baker. (1) But it is equally clear that there are cases where the word "may" has the effect of "must... regard must be had to the surrounding circumstances to discover whether the word "may" is to have a permissive or a compulsory meaning. 21. It appears that where the context of the statute requires it, the courts have departed from the rule that may establishes a discretion. This is because in construing a provision the court must seek to ascertain the intention of the legislature after reviewing the Act as a whole. 22. The court was guided by the principle affirmed in Secretary for Trade v Langridge (1991) Ch 402 : Page 11 of 19
"When Parliament prescribes the manner or form in which a duty is to be performed or a power exercised, it seldom lays down what will be the legal consequences of failure to observe its prescriptions. The courts must therefore formulate their own criteria for determining whether the procedural rules are to be regarded as mandatory, in which case disobedience will render void or voidable what has been done, or as directory, in which case disobedience will be treated as an irregularity not affecting the validity of what has been done (though in some cases it has been said that there must be 'substantial compliance' with the statutory provisions if the deviation is to be excused as a mere irregularity). Judges have often stressed the impracticability of specifying exact rules for the assignment of a procedural provision to the appropriate category. The whole scope and purpose of the enactment must be considered, and one must assess 'the importance of the provision that has been disregarded, and the relation of that provision to the general object intended to be secured by the Act.' In assessing the importance of the provision, particular regard may be had to its significance as a protection of individual rights, the relative value that is normally attached to the rights that may be adversely affected by the decision and the importance of the procedural requirement in the overall administrative scheme established by the statute. Furthermore, much may depend upon the particular circumstances of the case in hand. Although 'nullification is the natural and usual consequence of disobedience,' breach of procedural or formal rules is likely to be treated as a mere irregularity if the departure from the terms of the Act is of a trivial nature, or if no substantial prejudice has been suffered by those for whose benefit the requirements were introduced, or if serious public inconvenience would be caused by holding them to be mandatory, or if the court is for any reason disinclined to interfere with the act or decision that is impugned."[emphasis mine] Page 12 of 19
23. The provision in question provides for the Commissioner or Minister to refer questions of law to the high court. The section makes the decision of the high court, on a referral, final and conclusive. Contextually, the Act provides the framework within which co-operative societies, credit union societies and agricultural credit societies operate. It makes provisions for inter alia administration, membership, funds, duties, dispute resolution, and offences. 24. While s. 68 provides for case stated on questions of law, section 74 makes provision for further appeal of the Minister s decision. Therefore where the Minister did not refer the matter to the high court pursuant to s. 68, and the aggrieved party is dissatisfied with the outcome, there, nonetheless lies a further appeal to the high court in any event. It would seem therefore that the Act intended that should the discretion not have been exercised in s. 68, a party aggrieved would have a means of further redress should the outcome not be acceptable to that party. Put another way, the legislation envisages a scenario where the parties may be satisfied with the outcome even when the Tribunal in the exercise of its discretion, does not refer the issue of law to the High Court. In such a scenario it would be contrary to reason to argue that the decision is irregular because of the non referral and to seek to set aside the decision in respect of which both parties are satisfied on that basis. 25. The court must therefore examine the issue of prejudice in this context. In the main, there appears to be no real prejudice suffered by an aggrieved person where questions of law are not referred as an appeal lies as of right. The appellate tribunal, at that stage is in fact the very High Court to which the question of law may have been referred ab initio. Save perhaps therefore in few cases, it could rarely be successfully argued in the main that the failure to refer a question of law to the High Court would raise such prejudice as to vitiate the decision. The court is further fortified in its view by the phrasing of s. 68(2) which dictates that on a referral to the high court the decision is final and conclusive so that there lies no further appeal. May as it appears in s. 68, thus in the court's view confers a discretion upon the Tribunal. Page 13 of 19
26. The court therefore finds that the Minister in fact exercised his discretion as to whether to refer the matter to the High Court in keeping with the relevant legislation. Before moving on however, it must be noted that no challenge was made by the Defendant as to the wrongful exercise of the discretion by the Minister. The ground relied on by the Defendant was solely that referral on a question of law was in fact mandatory and the Minister's failure to refer was therefore unlawful on this basis only. The court is therefore not called upon to make a finding as to the exercise of the discretion. The Second Issue 27. The Defendant argued that the Minister of Labour erred when he purported to and changed part (1) of the decision of the Commissioner to which there was no complaint by the Respondent as the appeal before him was only in relation to part (2) of the Commissioner s decision. Further, it was submitted that when the Commissioner stated at the appeal hearing that he had kept in his thinking that he intended to include in his decision that the Claimant was successful in his claim it was a 'shifting of the goal post', on which the Respondent was not given any opportunity to be heard. 28. The Claimant argued that one of the Defendant s submissions on the appeal had been that the Claimant was not entitled to any damages since he was unsuccessful in his application. Thus it was submitted that the issue of whether the claimant was successful was a relevant consideration and therefore the Minister of Labour did not misdirect himself in considering Part 1 of the decision of the Commissioner. 29. In addressing this issue therefore the court must consider whether the Minister dealt with an issue not made the subject of appeal. Page 14 of 19
30. By letter dated 15 th July 2010 to the Minister, the Defendant appealed the decision of the Commissioner. In the letter, the Defendant gave a history of the dispute and stated that the Commissioner for Co-operative Development proceeded to dismiss the Complainant s application by order dated 19 th May 2010. 31. In the letter it was submitted by the Defendant that: Having dismissed the substantive complaint, the Commissioner for Co-operative Development eared as he was not in a position to award damages or any other form of compensation in the cause as damages compensation should only be awarded to a successful plaintiff. It follows that the Complainant would not be entitled to damages or any other form of monetary compensation since the substantive action was dismissed. By virtue of the power vested in you under Section 74 of the Co-operative Societies Act Chapter 81:03 we hereby request that you review this, our Appeal of the Commissioner s decision, and take the necessary steps to have paragraph 2 of his order dated the 19 th May 2010 and reverse same. 32. In giving his decision the Minister addressed his mind to several issues. These issues were stated at paragraph 12 above. Of note is the issue whether the complainant was successful or unsuccessful based on the ruling of the Commissioner. 33. In the court s view, the Defendant appealed the decision of the Commissioner to the Minister on the assumption that the Commissioner s decision meant the Claimant was unsuccessful. While that may be how the appeal to the Minister was phrased a necessary Page 15 of 19
step on that appeal would be to first determine whether the Claimant was in fact unsuccessful as the order of the Commissioner was phrased in an ambiguous way. 34. The Commissioner s award was as follows: i. That the Complainant s petition to be reinstated to complete the full term of office, that is, remaining two years is hereby dismissed. ii. That the Complainant receive all financial entitlements which he would have received as a member of the Board of Directors for the period April 2008 to March 2010. 35. The order then goes on to set out the amount of the financial entitlement owing to the Claimant. 36. What is more, while the Defendant argues that financial compensation was not part of the Claimant s complaint, the Claimant in his written submissions did ask the Commissioner for the following relief: a) To be reinstated to complete his full term, i.e. the remaining two years of his term b) To receive all prerequisites to which he would have been entitled during the period contested c) To be granted any relief decided by the commissioner. 37. The court is of the view that a review of the Commissioner s award could not have been done correctly without the award having been placed in context. As stated above, an integral step towards the determination as to whether the award was correctly made would have as a matter of course included a finding on whether the Claimant was Page 16 of 19
successful. The court is of the view therefore that the Minister correctly considered part 1 of the Commissioner s decision. 38. The Claimant submitted on the issue of the Minister s consideration of the Commissioner s intention that in determining the matter the Minister had to seek the reasons for the Commissioner s decision as there were no written reasons. The Minister was therefore able to hear the evidence of the Commissioner at the appeal and to read the submissions presented by the commissioner at the hearing. It was based on the information received that the Minister was able to clarify all questions of fact relating to the Commissioner s decision. 39. The court does not consider that this was a re-writing of the Commissioner s decision as was contended by the Defendant. Again, the Commissioner s evidence in the appeal was a necessary step in placing into context the ambiguous order. The Commissioner s first paragraph in his order does not provide any assistance in determining whether the Claimant s complaint was dismissed. The order states that the Claimant s petition to be reinstated is dismissed. Further, while the complaint was first made to the Commissioner in June 2008, the decision was given in May 2010 when the full term of the Claimant s appointment would have expired. The Claimant s term had been for a three year period having been appointed in April 2007. Thus, it would have expired in March 2010. So that in any event, by the date of the decision, there was no unexpired period of service left for the Claimant to serve. In that regard, a decision by the Minister that the Claimant be reinstated to serve out the balance of his term would have been unenforceable and an exercise in futility. 40. In the court s view, therefore the Minister did not err in his treatment of part (1) of the Commissioner s decision. The questions necessary to resolve the appeal were the correct ones. The Minister addressed his mind to relevant considerations. Page 17 of 19
The Third Issue 41. The Defendant contended that the Minister misinterpreted the law as it pertains to an award of Damages, as an unsuccessful party could not be awarded damages or any other monetary compensation. 42. In the court s opinion, this was not the finding of the Minister. The Minister raised the issue as to whether financial relief be granted only to a successful plaintiff. He concluded at paragraph 3.3.7 of his decision that if the plaintiff fails to prove his case under these two heads then no damages can be awarded. It therefore follows that damages cannot be awarded to an unsuccessful plaintiff. Thus in answer to the issue, the Minister found that financial relied could only be granted to a successful party. 43. The Defendant further submitted that since part (1) of the Commissioner s award dismissed the Claimant s petition to be reinstated to complete the full term of office, the Minister erred when he proceeded to award damages or other monetary compensation to the unsuccessful Claimant. 44. The Court reiterates that the effect of paragraph 1 of the Commissioner s order was not made in terms that the Claimant was unsuccessful. The Defendant thus bases his submissions on an incorrect assumption. 45. The Minister s findings were therefore that (1) the Claimant was not unsuccessful but that the request to be reinstated was unworkable and impractical (2) because he was successful he was entitled to compensation for the period he ought to have been in the position from which he was removed. 46. For these reasons, the court disposes of the application in the manner set out at paragraph 1 above. Page 18 of 19
47. The parties will be heard on the issue of costs. Dated this 30 th day of October 2013 Ricky Rahim Judge Page 19 of 19