Appellants’ Submissions. [20] The appellants submit that since the implementation of the Pilot Plan “might” adversely affect their Aboriginal rights, i.e. commercial and FSC rights, it triggered the respondent’s duty to consult. They argue that the respondent’s rejection of consultations with respect to impacts other than on their commercial right to fish was an error of law that is reviewable on a correctness standard and that Xxxxx J. erred in law by failing to apply this standard when reviewing the respondent’s determination. The appellants also say that the Judge made a patently unreasonable finding when he found that they were not concerned about the effects of the Pilot Plan upon their FSC rights. [21] With respect to the scope of the duty to consult, the appellants say that Xxxxx J. erred in law in limiting the duty to consult to their commercial right to fish and in finding that the duty fell at the lower end of the spectrum. On the basis of X. x. Xxxxxxx, [1990] 1 S.C.R. 1075 and X. x. Xxxxxxxxx, [1996] 2 S.C.R. 723, the appellants submit that whether the respondent’s action was justified depends on the degree of consultations rather than on whether the objective of the action was conservation. Furthermore, they submit that the Judge erred in law in failing to look at each aspect of the Pilot Plan in determining whether it was justified and point to the fact that the transferable IQs found in the Pilot Plan did not have conservation as their main objective. [22] The appellants also submit that Xxxxx J. erred in determining that the respondent had met his duty to consult because he incorrectly determined the scope of consultations required. Further, the appellants submit that the multilateral stakeholder consultations, the nature of the Pilot Plan, the 2008 FCA 212 (CanLII) accommodation made by the respondent and their behaviour did not and cannot serve to eliminate their right to be meaningfully consulted. [23] With respect to the issue of multilateral consultations, the appellants assert that the Judge erred in finding that these consultations were sufficient to satisfy the respondent’s duty to consult. In their view, such consultations were not sufficient, even if the scope of the duty to consult is at the lower end of the spectrum. [24] The appellants further argue that it was wrong for the Judge to consider the urgency of implementing the Pilot Plan and the fact that that plan was a three-year pilot project only in determining whether the Minister had met his duty to...
Appellants’ Submissions. [23] Xx. Xxxxxx submitted that the appellant was constructively dismissed under (a). If the appellant was dismissed under (a) he did not have to comply with the requirements in (b). Xx. Xxxxxx relied on section 19 of the Act in support of the submission that Xxxxxxxx had been constructively dismissed. Section 19 provides for an implied or constructive termination of contract by the employee because of any act on the part of the employer or any event affecting an employer. Xx. Xxxxxx submitted that the act of the respondent in sending home the appellant without work entitled the employee to terminate his employment and to a severance payment under section 3(1)(a)
