Date:
20060927
Docket:
T-235-06
Citation:
2006 FC 1143
Ottawa, Ontario, September 27, 2006
Present: The Honourable Mr. Justice
Beaudry
BETWEEN:
GILLES
BÉGIN
Applicant
and
RADIO
BASSE-VILLE INC. (CKIA FM)
Respondent
Docket:
T-275-06
RADIO
BASSE-VILLE INC. (CKIA FM)
Applicant
and
GILLES
BÉGIN
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1] These are two applications for
judicial review that were heard together at Québec on September 7, 2006,
against an adjudicative decision dated June 16, 2006, made by adjudicator Mr.
Michel G. Boulianne (the adjudicator), who was appointed under section 242 of
the Canada Labour Code (the Code).
[2] After nine days of hearings, the
adjudicator determined that Mr. Gilles Bégin (the applicant) had voluntarily
resigned his position and had not been the victim of an unjust or constructive
dismissal.
[3] Notwithstanding this conclusion,
the adjudicator ordered Radio Basse-Ville Inc. (CKIA FM) (the respondent) to
pay the applicant two months’ salary as severance pay and $490 for statutory
holiday pay.
[4] In docket T-235-06, the applicant
is asking the Court to set aside the decision dismissing his complaint. In
docket T-275-06, the applicant (respondent in docket T-235-06) is asking the
Court to set aside the order to pay two months’ salary and the sum of $490.
[5] The applicant is representing
himself. He has not filed a respondent’s record in docket T‑275-06.
However, the Court has analyzed and considered his submissions on holiday pay
set out in his memorandum in docket T-235-06.
Factual context
[6] The applicant was hired by the
respondent on April 17, 2000, as an advertising representative. His salary was
established at $350 per week, 35 hours at $10 an hour.
[7] The respondent is a community radio
station, a non-profit corporation. Seventy percent of its revenues are derived
from public subsidies. In fact, the applicant’s position was made possible
because of government wage subsidies. They declined the following year and were
subsequently cancelled.
[8] As a largely volunteer operation,
the respondent had experienced serious financial difficulties since 1996. When
the applicant assumed his marketing duties, the respondent had four employees.
The applicant wrote to the general coordinator in November 2000 about some
potential courses of action to remedy the situation, in particular, commercial
development among business people.
[9] The situation changed little and
the Board of Directors (Board) decided to reduce the staff. On May 30, 2003,
the Board abolished the applicant’s position and in July of that year reduced
the general manager’s hours from 40 to 10 per week. The person holding this
position quit definitively at the end of the summer of 2003 and was replaced by
a volunteer.
[10] On June 10, 2003, the applicant
filed a complaint under section 240 of the Code alleging that he had been
unjustly dismissed on May 30, 2003, from his position as an advertising
consultant.
[11] In a detailed decision dated
November 14, 2003, adjudicator Gauvin allowed the complaint and ordered the
employer (the respondent) to reinstate the applicant in his advertising
consultant position within ten days of receipt of the decision. He also ordered
the employer to pay the applicant all of his lost salary with interest from the
date of his dismissal until the date of his reinstatement. Last, the
adjudicator retained his jurisdiction in case the parties were unable to reach
agreement on the quantum.
[12] Now without a general manager, the
Board established the conditions for the applicant’s return scheduled for
December 1, 2003. However, he did not return to the office until
December 2, 2003, saying he had been ill the previous day. On December 3,
he requested a meeting with his superior outside the station and told him that
he planned to leave his job if his contract were bought out. The Board rejected
this proposal and, in a letter dated December 5, counsel for the employer
reminded him that he had to comply with the instructions and details of the
previously established conditions for his return to work.
[13] On December 10, 2003, the applicant
presented his superior with a number of requests in order to improve his work
performance. On the same day, he left the office for health reasons. He asked
for ten days of vacation during the holiday period, which was denied. He then
submitted a medical report and was absent from December 18 to January 6, 2004.
On January 5, 2004, he submitted a new medical certificate extending
his sick leave to January 30, 2004. At the end of January 2004, he
submitted another medical certificate setting February 29, 2004 as the date of
his return to work.
[14] However, on January 27, 2004, the
respondent received a formal notice from the applicant in which he alleged he
was being psychologically harassed. Last, on February 18, 2004, the
respondent received a letter from Human Resources Development Canada stating
that the applicant had filed a complaint for unjust and constructive dismissal.
Taken by surprise and believing that the applicant was on sick leave, counsel
for the employer replied, requesting the date of the applicant’s alleged
dismissal.
[15] On March 9, 2004, the applicant
notified the respondent that his resignation took effect on February 20, 2004.
On March 11, the respondent agreed to his request and issued a Record of
Employment for him, indicating “Resignation” on February 20, 2004, as the
reason.
[16] The adjudicator was appointed on
June 9; some dates were scheduled in September, but the hearings did not occur
until the following dates: January 24-26, 2005, February 11, 2005, and March 8,
9, 11, 15 and 16, 2005.
ADJUDICATOR’S DECISION
[17] At paragraphs 120 and 121 of the
decision, the adjudicator wrote:
[TRANSLATION]
And were it not
for the fact that the complainant was entitled to not accept this modification,
I would reject the complaint for constructive dismissal forthwith and consider
that there was a resignation, pure and simple;
However, in
light of the job description in (E-27), compared with the description in the
spring of 2003, I think he could personally consider it as a modification that
was inappropriate for him and that he could choose to leave, in which case
he is entitled to a notice of termination.
[Boldface and underlining in the original text]
[18] The following
are the conclusions of the arbitration award:
[TRANSLATION]
ORDERS the employer to pay as severance pay the
equivalent of two months’ salary, less the sums collected by the complainant
from unemployment insurance and any other deductions normally made from the
salary, effective March 7, 2004;
ORDERS the employer to pay the sum of $490.00
representing the paid holidays owing to the complainant, i.e. seven days
during the Christmas period 2003;
THE WHOLE WITH
INTEREST AT THE LEGAL RATE EFFECTIVE MARCH 7, 2004;
RETAINS his jurisdiction in case the parties are
unable to agree on the actual determination of the quantum;
(boldface characters in the original text)
ISSUE (docket T-235-06)
[19] Did the
adjudicator make a decision or order based on an erroneous finding of fact made
in a perverse or capricious manner or without regard for the material before
him when he decided that the applicant was not the victim of a constructive or
unjust dismissal?
[20] For the
following reasons, I answer this question in the negative.
RELEVANT LEGISLATION
[21] Section 242 of
the Code states:
|
242. (1)
The Minister may, on receipt of a report pursuant to subsection 241(3),
appoint any person that the Minister considers appropriate as an adjudicator
to hear and adjudicate on the complaint in respect of which the report was
made, and refer the complaint to the adjudicator along with any statement
provided pursuant to subsection 241(1).
|
242. (1)
Sur réception du rapport visé au paragraphe 241(3), le ministre peut
désigner en qualité d’arbitre la personne qu’il juge qualifiée pour entendre
et trancher l’affaire et lui transmettre la plainte ainsi que l’éventuelle
déclaration de l’employeur sur les motifs du congédiement.
|
|
(3) Subject to subsection (3.1), an
adjudicator to whom a complaint has been referred under subsection (1)
shall
(a) consider whether the dismissal
of the person who made the complaint was unjust and render a decision
thereon; and
…
|
3) Sous réserve du paragraphe (3.1), l’arbitre :
a) décide si le congédiement était
injuste;
…
|
[22] Section 243 of
the Code provides:
|
243. (1)
Every order of an adjudicator appointed under subsection 242(1) is final
and shall not be questioned or reviewed in any court.
|
243. (1)
Les ordonnances de l’arbitre désigné en vertu du paragraphe 242(1) sont
définitives et non susceptibles de recours judiciaires.
|
|
(2) No order shall be made, process
entered or proceeding taken in any court, whether by way of injunction, certiorari,
prohibition, quo warranto or otherwise, to question, review, prohibit
or restrain an adjudicator in any proceedings of the adjudicator under
section 242.
|
(2) Il n’est admis aucun recours ou
décision judiciaire — notamment par voie d’injonction, de certiorari,
de prohibition ou de quo warranto — visant à contester, réviser,
empêcher ou limiter l’action d’un arbitre exercée dans le cadre de
l’article 242.
|
ANALYSIS
Standard of review
[23] It is not
necessary to conduct a pragmatic and functional analysis as suggested in Dr.
Q v. College of Physicians and Surgeons of British Columbia, [2003] 1
S.C.R. 226, in order to determine the appropriate standard in this case.
Indeed, in a similar matter, Mr. Justice Russell in Lesy v. Action Express
Ltd., 2003 FC 1455, [2003] F.C.J. No. 1900 (F.C.) (QL), stated at
paragraphs 24 and 25:
Notwithstanding s.
243 of the Canada Labour Code, this court may judicially review an
adjudicator’s decision on the grounds that an adjudicator either never had
jurisdiction or exceeded or failed to exercise jurisdiction that he or she did
have (Pioneer Grain Company Limited v. David Kraus, [1981] 2 F.C. 815
(F.C.A.)).
The standard of
review for decisions rendered by adjudicators appointed pursuant to s. 242(1)
has been held to be patent unreasonableness when the question is one of fact
which is within the tribunal’s powers (Lamontagne v. Climan Transportation
Services, [2000] F.C.J. No. 2063 (2747-7173 Québec Inc.), (F.C.T.D.)).
[24] I adopt the same
reasoning here; faced with a privative clause as watertight as the one in
section 243 of the Code, where the issues are, for the most part, factual in
nature as in this case, the Court will not intervene absent a patently
unreasonable error in the adjudicator’s decision.
[25] The applicant
submits that the adjudicator did not take into account the previous
adjudicative decision of Mr. Gauvin in which the respondent was required to
reinstate him. The applicant adds that the changes made by the respondent upon
his return to work meant that the respondent intended to get rid of him.
[26] He maintains
that the respondent required him to deal solely with advertising from business
people and removed some of the duties he had been performing at the time his
position was abolished. This contributed to altering the terms of his employment,
which is illegal.
[27] However, a
review of the decision reveals that the adjudicator did consider the decision
of adjudicator Gauvin and the changes in the applicant’s duties on his return
to work set for December 1, 2003. Relying on the case law on constructive
dismissal, the adjudicator did not err in applying the principles set out
therein to the facts of the case before him.
[28] He had to
decide, in these particular circumstances, whether this was a constructive
dismissal or whether the applicant had voluntarily resigned. He reached the
latter conclusion taking into account the evidence that was available to him.
[29] It is not for me
to determine whether the Court would reach some other conclusion, but rather to
analyze the decision as a whole and to ascertain whether this adjudicative
decision is supported by the evidence and is not based on an erroneous finding
of fact made in a perverse or capricious manner or without regard for the
material in the record.
[30] The adjudicator
ruled on the changes made by the respondent when the applicant returned to
work. The adjudicator considered the respondent’s financial requirements and
its explanation for asking the applicant to concentrate on advertising from
business people. The respondent took away certain duties previously performed
by the applicant so he could focus all his efforts on this sector. The
applicant’s salary was not reduced and the respondent added a 15% bonus for
sales achieved over and above $52,000 per year. The evidence established that
there was no reduction in salary if the applicant did not reach his objective.
Last, given that the applicant worked only ten days after his reinstatement and
considering the positive results in the two reports he submitted, it was not
patently unreasonable for the adjudicator to find as he did that this was not a
case of constructive dismissal but a voluntary resignation.
[31] This Court’s
intervention is therefore not necessary. The adjudicator analyzed the documents
and exhibits that the parties filed in evidence and had the advantage of seeing
the witnesses and assessing their credibility.
[32] The application
for judicial review by the applicant will be dismissed.
ISSUE (docket T-275-06) (Application for judicial review by the
applicant to set aside the orders regarding severance pay and the sum of $490
for paid statutory holidays)
[33] Did the
adjudicator exceed his jurisdiction?
[34] For the
following reasons, the application for judicial review is allowed in part.
RELEVANT LEGISLATION
[35] Subsection
242(4) of the Code reads as follows:
|
(4) Where an adjudicator decides pursuant
to subsection (3) that a person has been unjustly dismissed, the
adjudicator may, by order, require the employer who dismissed the person to
|
(4) S’il décide que le congédiement était
injuste, l’arbitre peut, par ordonnance, enjoindre à l’employeur :
|
|
(a) pay the person compensation
not exceeding the amount of money that is equivalent to the remuneration that
would, but for the dismissal, have been paid by the employer to the person;
|
a) de
payer au plaignant une indemnité équivalant, au maximum, au salaire qu’il
aurait normalement gagné s’il n’avait pas été congédié;
|
|
(b) reinstate the person in his
employ; and
|
b) de
réintégrer le plaignant dans son emploi;
|
|
(c) do any other like thing that
it is equitable to require the employer to do in order to remedy or
counteract any consequence of the dismissal.
|
c) de
prendre toute autre mesure qu’il juge équitable de lui imposer et de nature à
contrebalancer les effets du congédiement ou à y remédier.
|
[36] According to the
applicant, the adjudicator erred in law in partially allowing the respondent’s
complaint after determining that it involved a resignation, not a constructive
dismissal.
[37] The Court adopts
Mr. Justice Denault’s comments in Téléglobe Canada Inc. v. Larouche,
[1999] F.C.J. No. 1014 (T.D.) (QL), at paragraph 7:
The adjudicator’s jurisdiction comes from
subsection 242(3) of the Canada Labour Code, which authorizes him to
decide whether the dismissal was unjust. Only after holding that the dismissal
was unjust can he use his powers under subsection 242(4) of the Code, namely
pay the person compensation, reinstate the person in his employ, or do any
other like thing that is equitable. In the case at bar, after holding that the
dismissal was not unjust, he could not act on the authority of article
2091 of the Civil Code to grant the defendant compensation, without
exceeding his jurisdiction in the process.
[38] The error of law
made by the adjudicator in this case results, in particular, from paragraphs
119 and 120 of the adjudicator’s decision:
[TRANSLATION]
That said, it is
absolutely clear in my opinion that the respondent was entitled, under its
management authority, to alter the duties of the employee responsible for
advertising and marketing, within the employment context;
And were it not
for the fact that the complainant was entitled to not accept this modification,
I would reject the complaint for constructive dismissal forthwith and consider
that there was a resignation, pure and simple;
[Boldface in the original text]
[39] There is, in
fact, an obvious contradiction in the adjudicator’s decision. On the one hand,
the adjudicator finds that the applicant could, under its management authority,
alter the duties of the respondent (applicant in docket T-235-06) when he
returned to work. On the other hand, he states that the respondent could accept
or reject these changes and then goes on to write that if it were not for this
option available to the respondent, the adjudicator would consider that there
had been a resignation, pure and simple.
[40] With respect, it
is inconceivable to the Court that on the one hand, the adjudicator accepts
that there was a voluntary resignation and subsequently grants a notice of
termination. These two concepts are inconsistent, absent a statutory provision
to that effect or a written stipulation in an employment contract or an oral
agreement confirmed by both parties. This is evidently not the situation in the
matter before us.
[41] As for the order
to pay $490 for holiday pay, the Court notes that the adjudicator took into
account a document filed by the respondent in reaching this conclusion. Even if
the respondent had not filed an official complaint on this point under the
relevant provisions of the Code, the adjudicator, acting within his
jurisdiction, could dispose of this issue. The issue was whether the respondent
was entitled to these benefits considering the past practice in the company.
Accordingly, this finding of the adjudicator will not be set aside.
JUDGMENT
THE COURT
ORDERS that:
1. The application
for judicial review in docket T-235-06 be dismissed, without costs;
2. The application for judicial review
in docket T-275-06 be allowed in part. The following finding in the
adjudicator’s decision is set aside:
[TRANSLATION]
ORDERS the employer to pay as severance pay the
equivalent of two months’ salary, less the sums collected by the complainant in
unemployment insurance and any other deductions normally made from the salary,
effective March 7, 2004;
3. No costs are
awarded.
Judge
Certified true
translation
Mary Jo Egan, LLB
Email this Content