Date: 20061109
Docket: T-1099-05
Citation: 2006 FC 1347
Ottawa, Ontario, the 9th
day of November 2006
Present: The Honourable Mr. Justice de Montigny
BETWEEN:
STACY BITTON
Applicant
and
HSBC BANK CANADA
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
application for judicial review concerns an adjudication decision rendered on
May 4, 2005, [2005] D.A.T.C. no 241 (QL), by Guy Lafrance. The adjudicator,
appointed pursuant to Part III, Division XIV of the Canada Labour Code,
R.S.C. 1985, c. L-2, (the Code) dismissed the grievance filed by the
applicant, Stacy Bitton, and held that his dismissal from HSBC Bank Canada was
justified.
[2]
In his
application for judicial review, Mr. Bitton asked this Court to overturn the
decision of the adjudicator and remit the matter to a new adjudicator so that
the complaint could be reconsidered taking these reasons into account. I note,
however, that in his memorandum, Mr. Bitton is seeking compensation in the
event that this Court sets aside the adjudicator’s decision. In any case, the
remedy sought is not reinstatement, since the applicant has been working for a
competing bank since September 2004 and does not wish to return to work for the
respondent even if his claim is successful.
THE FACTS
[3]
Because
the factual framework will be useful for gaining a solid grasp of the issues, I
will recall the main points. Mr. Bitton began working for HSBC Bank Canada (the
Bank) on December 11, 2000. A year and a half later, in August 2002, he
was placed in charge of commercial banking services at the McGill College
branch in Montreal.
[4]
The
evidence contains contradictory accounts of the climate in which this promotion
occurred. It is clear from reading the docket that there was tension between
the parties right from the time the applicant was appointed to his new duties,
and the disagreement regarding the reasons for his promotion only marked the
beginning of conflictual relations between the parties. The applicant’s
promotion did not receive unanimous support within the branch, to say the
least.
[5]
Shortly
after his promotion, Mr. Bitton was provided with about a week’s worth of
training so that he could upgrade his skills. It seems that Mr. Bitton failed
to take any notes during the training period, preferring to rely on his memory.
[6]
It was
in the fall of 2002 that Mr. Bitton began to receive reprimands from his
superiors. The then Vice-President, Financial Services, Mr. Trifonopoulos,
first pointed out to him that three of the accounts under his supervision were
in overdraft and that he lacked the necessary authority to expose the company
to such risks.
[7]
The
applicant received feedback again in February 2003, following an unsatisfactory
work evaluation. In the course of that discussion, Mr. Bitton was informed that
he needed to improve his performance, particularly deficiencies in his work
organization and his management of accounts in overdraft. He was told that the
credit in certain files was questionable; that reports were missing, misfiled
or late; and that some companies’ credit information contained errors.
[8]
Despite
these admonitions, Mr. Trifonopoulos noted that the client accounts under
Mr. Bitton’s responsibility remained in overdraft. Again, Mr. Bitton
received a verbal warning from his employer to respect their policies. Which he
did.
[9]
The
respondent claims to have received complaints throughout 2003 regarding the
applicant’s behaviour from companies that were clients of the Bank and from his
colleagues. The clients complained about unreturned telephone calls and
documents, delays in the issuing of credit cards, poor client relations, and an
inappropriate remark about the physical attributes of one of the branch
tellers. Mr. Bitton’s colleagues complained about his lack of
professionalism, which caused them all sorts of problems, such as having to
take on new clients and finding themselves placed in charge of disorganized
files from which documents were missing.
[10]
In
response to these complaints, Mr. Bitton denied all responsibility and
alleged the following: the delay in the issuing of credit cards was the fault
of the issuing employees in Vancouver, the absence of documents in the files
was the fault of clients who were late in submitting them, the documents were
disorganized because other bank employees had consulted them, clients were
dissatisfied with their credit because management had issued orders that
accounts were not allowed to go into overdraft, and finally, a document went
undelivered because it was the responsibility of a colleague to ensure that the
said document was delivered, since the client had been referred to him.
[11]
In
September 2003, Mr. Bitton was again reprimanded by his employer.
Ms. Josia Bélisle, who became Mr. Bitton’s supervisor in March
2003, met with the applicant individually to let him know that she was
dissatisfied. Mr. Bitton, however, maintains that the purpose of the
meeting in question was not to express his immediate supervisor’s
dissatisfaction, but rather to announce a promotion, since it was at that point
that he was promoted to a new level.
[12]
Around
the end of 2003, the Bank lost an important client. A company whose account was
managed by Mr. Bitton transferred more than a million dollars’ worth of
funds to a financial institution offering more competitive rates. Apparently,
the client had communicated its dissatisfaction to Mr. Bitton before
transferring its assets, and Mr. Bitton had failed to inform his superiors
to give them the opportunity to try to prevent this loss to the employer.
[13]
On
December 18, 2003, Mr. Bitton, Ms. Bélisle and Mr. Trifonopoulos met to discuss
the applicant’s work within the company. In their submissions to the
adjudicator, the individuals present at the meeting did not agree on the points
that had been discussed.
[14]
After
that meeting, Mr. Bitton wrote two letters to Ms. Bélisle requesting
explanations. Following the second of these letters, a new meeting was held
with Mr. Bitton on January 9, 2004, to clarify the complaints
against him. The management agreed verbally to give him one month to change his
conduct. In a letter dated the same day and confirming the verbal notice he had
been given, it was spelled out that the misconduct in question involved poor
interpersonal relations with his colleagues, unsatisfactory client service and
a lack of organization.
[15]
On
January 13, 2004, Mr. Bitton sent his supervisors a letter accusing them of
moral harassment in the workplace and demanding evidence of his alleged
shortcomings.
[16]
About
two weeks after the meeting of January 9, 2004, Mr. Bitton’s
“Performance Planning and Review 2003” reported the applicant’s hostile
reaction to the recommendations made by his superiors at the beginning of 2004
[translation]: “Stacy’s
[Mr. Bitton’s] response to opinions and advice from management was to
deny, contest and misinterpret the ‘alleged’ facts, behaviour that we consider
non-conducive to the efforts he will have to make in order for his overall
performance to come up to the required level” (Respondent’s Record, vol. 2, tab
21, p. 174).
[17]
On
February 23, 2004, Mr. Bitton received a letter of dismissal, effective
that day. After his termination, the applicant continued to demand explanations
from his ex‑employer about the circumstances and reasons leading to his
dismissal, and he issued a public letter accusing the Bank’s employees of
racism and harassment toward him.
THE DECISION OF THE
ADJUDICATOR
[18]
Claiming
to be the victim of a wrongful dismissal, Mr. Bitton filed a grievance
with the Canadian Department of Human Resources on March 8, 2004. The
adjudicator, Guy Lafrance, appointed pursuant to the Code, heard witnesses on
October 27 and 28 and December 7 and 8, 2004. Arguments were heard on
January 12, 2005; the parties also provided written submissions and
authorities to the adjudicator.
[19]
It is
important to note that the applicant represented himself with the assistance of
his father and brought no witnesses, despite the fact that the adjudicator had
agreed to hold the hearing near Mr. Bitton’s home so that it would be
easier for him to call witnesses. He preferred to rely on documentary evidence
and various recorded conversations he had had with his superiors in the final
months of his employment, the recordings having been made without their
knowledge. On the other hand, the respondent called on several of
Mr. Bitton’s former colleagues to testify.
[20]
In a
decision rendered on May 4, 2005, the adjudicator held that the
relationship of trust between Mr. Bitton and the Bank had been breached,
justifying the latter’s decision to dismiss Mr. Bitton without written
notice. In his thirty pages of reasons, Mr. Lafrance provided a detailed
review of the evidence submitted and reproduced long excerpts of the
documentary evidence. His findings can be found at paragraphs 67 to 81 of his
decision, [2005] D.A.T.C. no 241 (QL) [translation]:
67 In this case, the evidence shows
that Mr. Stacy Bitton was placed in a position of responsibility upon the
recommendation of Mr. Demetrios Trifonopoulos, despite doubts expressed by
certain individuals.
68 Once he was in this position, the
employer realized that its employee was failing to meet the required standards,
as is clear from his performance evaluations (P‑1).
69 At the beginning of his
employment, Mr. Stacy Bitton decided not to take any notes during his
training period, preferring to rely on his memory, despite having been told
that it would be advisable for him to take notes on the required procedures so
as to avoid errors in the future.
70 Throughout 2003, complaints from
clients and staff members began to accumulate. The complaints addressed poor
record keeping, accounts in overdraft, a lack of organization, unreturned
calls, unprofessional interaction with clients, etc.
71 Mr. Stacy Bitton was
verbally informed of these complaints, and each time, he attempted to deflect
the blame onto others.
72 Near the end of 2003, a client
unsatisfied with the rate offered by the Bank decided to transfer its assets to
another bank.
73 Mr. Stacy Bitton met with
his supervisors, who told him that he should have informed his immediate
superiors so that they could decide whether a more competitive rate could be
granted to the client in question before it transferred more than a million
dollars to another financial institution.
74 It was during that meeting that
he was told that he could not, on his own initiative, decide not to come to
work for Yom Kippur, and that he had to tell his superiors ahead of time, as
per the Bank’s policy. Moreover, it should have been leave without pay, but as
a result of his actions he had been paid for that day.
75 That meeting, which allegedly
took place on December 18, 2003, elicited a response from Mr. Stacy Bitton
that degenerated and led to his being dismissed without all the steps listed in
the Bank’s policy being followed:
1.- Discussions to give
guidance;
2.- Verbal notice;
3.- Written notice;
4.- Dismissal of employee.
76 In this case, step 3 was not
followed.
77 Following that meeting,
Mr. Stacy Bitton wrote the above-noted letters dated December 18, 2003
(P-16), January 7, 2004 (P-11), January 13, 2004 (E-5) and January 16,
2004 (P-9). The father of Mr. Stacy Bitton, Mr. Sam Bitton, wrote the
above-noted letter dated January 13, 2004 (E-6).
78 The letters dated January
13, 2004, contained threats by Messrs. Bitton, father and son, that they
would appeal to members of the Sephardic community who do business with HSBC
Bank to assure Mr. Stacy Bitton that his superiors would cease
reprimanding him and would grant him the bonuses to which he claimed to be
entitled.
79 The threatening tone was again
evident in the letter dated January 16, 2004 (P-9), in which Mr.
Stacy Bitton wrote [translation]:
“As for the threat, it is of the same nature”.
80 The letters dated
January 13, 2004, also show that Messrs. Stacy and Sam Bitton had met with
Mrs. …, a member of their community, to discuss with her the problems
Mr. Stacy Bitton was having at work.
81 In early 2004, Mr. Stacy
Bitton contacted at least ten on the Bank’s clients to ask them for letters of
congratulation. (P-6)
[21]
On the
basis of these findings, the adjudicator concluded that the relationship of
trust between the two parties had been breached, which he felt justified the
dismissal without written notice. I also note that the evidence failed to
demonstrate, according to the adjudicator, that Mr. Bitton had been the
target of racist behaviour or comments. Finally, the adjudicator saw fit to
mention certain events that followed Mr. Bitton’s dismissal. He notes the
following in paragraph 83 of his reasons in the challenged decision
mentioned above [translation]:
83 Even though the events following
Mr. Stacy Bitton’s dismissal cannot be taken into account in deciding
whether or not the dismissal was justified, it is worth mentioning the fact
that Mr. Stacy Bitton circulated a petition among the Bank’s clients, accusing
Bank employees of racism and harassment. (E-10)
ISSUES
[22]
The
issues before this Court are as follows:
- Did the adjudicator follow
the rules of procedural fairness and natural justice in rendering his decision?
-
Did the adjudicator
make any error of law or fact in concluding that the dismissal was justified?
THE
RELEVANT STATUTORY PROVISIONS
[23]
The
statutory provisions dealing with the powers and duties of the adjudicator are
set out in Division XIV, Part III of the Code and are reproduced in Schedule
“A” of these reasons.
ANALYSIS
Did the adjudicator follow the rules of procedural
fairness and natural justice in rendering his decision?
[24]
It is
well established that questions of procedural fairness should be assessed as
questions of law, giving rise to judicial review only if the decision is
incorrect. As Binnie J. observed, writing for the majority of judges of
the Supreme Court of Canada in C.U.P.E. v. Ontario (Minister of Labour),
[2003] 1 S.C.R. 539, at paragraph 102: “[t]he content of procedural fairness
goes to the manner in which the Minister went about making his decision,
whereas the standard of review is applied to the end product of his
deliberations.”
[25]
Having
carefully reviewed the record submitted by the parties, I find that the
applicant suffered no denial of fairness by the adjudicator. On the contrary,
the latter treated the case fairly, granting the applicant considerable
latitude to make his arguments. He heard the parties’ evidence over four days,
and his reasons cover in extensive detail the most important elements from the
hearing.
[26]
The
adjudicator cannot be faulted for refusing to hear evidence that he did not
consider relevant. After all, the adjudicator is the authority with respect to
evidence and procedure, and it is his role to weigh the probative value of the
evidentiary items submitted and the credibility of witnesses. I see nothing in
the way he presided over the hearings that can be said to constitute a
violation of the principles of natural justice.
[27]
On the
other hand, I am conscious of the fact that the only evidence I am entitled to
consider is that which was before the adjudicator. It is an oft-cited
principle, explained by the fact that judicial review is not about determining
whether the initial decision-maker made the right decision, but rather whether
he could make such a decision given the record before him. Accordingly, in my
consideration of the arbitration decision, I took into account only those
evidentiary items that had been submitted to Mr. Lafrance.
2. Did the adjudicator make any error of
law or fact in concluding that the dismissal was justified?
The standard of judicial
review
[28]
It is
well established that an adjudication decision pursuant to Part III of the Code
calls for great judicial restraint. Robert Décary J., writing on behalf of the
Federal Court of Appeal, recently reiterated it in Fontaine v. Innu Nation
of Uashat Mak Mani-Utenam, 2005 FCA 357, [2005] F.C.J. no 1802 (QL) at
paragraphs 4 and 5:
As
to the standard of review applicable to the findings of fact and inferences
drawn from them by the adjudicator, the parties have agreed − and I agree
with them − that the applicable standard is that of the patently
unreasonable decision, as the Supreme Court of Canada held in Toronto (City)
Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, indeed,
in issue was an arbitral award in relation to a dismissal without just cause.
(See also Defence Construction Canada Ltd. v. Girard, 2005 FC 1177, per
de Montigny J.).
In Toronto Board of Education, Cory
J. said that this standard was a “very strict test”, which he described at
paragraph 46 of his reasons as follows:
.
. . it is apparent that if the decision the Board reached, acting within its
jurisdiction, is not clearly irrational, that is to say evidently not in
accordance with reason, then it cannot be said that there was a loss of
jurisdiction.
At paragraphs 47 and 48, he added:
47 In
order to decide whether a decision of an administrative tribunal is patently unreasonable,
a court may examine a record to determine the basis for the challenged findings
of fact or law made by the tribunal . . .
48 Therefore,
in those circumstances where the arbitral findings in issue are based upon
inferences made from the evidence, it is necessary for a reviewing court to
examine the evidence that formed the basis for the inference. I would stress
that this is not to say that a court should weigh the evidence as if the
matter were before it for the first time. It must be remembered that even if a
court disagrees with the way in which the tribunal has weighed the evidence and
reached its conclusions, it can only substitute its opinion for that of
the tribunal where the evidence viewed reasonably is incapable of supporting
the tribunal's findings.
[29]
Because
the issue is the justifiability of an adjudication decision related to the
adequacy of reasons for a dismissal, the applicable standard of review is that
of patent unreasonableness. This is so because we are essentially dealing with
a finding of fact requiring the decision-maker to weigh evidence. My colleague
Judith A. Snider J. recently came to the same conclusion in a case
involving an issue similar to the one before me in this application for
judicial review. She wrote the following in paragraph 16 of North v. West Region Child
and Family Services Inc., 2005 FC 1366, [2005] A.C.F. no 1686 (QL):
Put simply, why did the
Employer terminate Mr. North’s employment? This is a determination of fact that
requires the adjudicator to analyze the evidence before him. In my view, the
standard of patent unreasonableness is applicable to this question. On
questions of fact, I can intervene only if I consider that the adjudicator
"based its decision or order on an erroneous finding of fact that it made
in a perverse or capricious manner or without regard for the material before
it" (Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)).
[30]
In
other words, with respect to this aspect of the case, the question I must ask
myself is not whether I would have arrived at the same conclusion as the
adjudicator; in the words of the Supreme Court of Canada at paragraph 46
of Canada (Attorney general) v. Public Service Alliance of Canada,
[1993] 1 S.C.R. 941, the adjudicator’s decision is only patently unreasonable
if it is “clearly irrational”. I will return to the issue of the appropriate
standard of judicial review below.
The reasons for dismissal offered by the employer to
justify the fairness of the dismissal
[31]
Pursuant
to subsection 242(3) of the Code, the adjudicator had to determine whether
Mr. Bitton had been wrongfully dismissed. To answer that question, the
adjudicator had to ask himself whether the employee had indeed committed the
acts alleged by his superiors and whether the dismissal constituted a fair and
appropriate disciplinary measure under the circumstances. This was the approach
advocated by the Supreme Court of Canada in Toronto (City) Board of Education v.
O.S.S.T.F., District 15, [1997] 1 S.C.R. 487. In that case, Peter deCarteret Cory
J. wrote the following:
The first step in any
inquiry as to whether an employee has been dismissed for “just cause” is to ask
whether the employee is actually responsible for the misconduct alleged by the
employer. The second step is to assess whether the misconduct gives rise to
just cause for discipline. The final step is to determine whether the
disciplinary measures selected by the employer are appropriate in light of the
misconduct and the other relevant circumstances. See Heustis, supra, at
p. 772.
[32]
While
the dispute in that decision originated in Ontario and was governed by the
provisions of a collective agreement, this Court has already held that the same
approach should also be followed in the context of section 242 of the
Code, pursuant to Kelowna Flightcraft Air Charter Ltd. v. Kmet,
[1998] F.C.J. no 740 (QL), (1998) 149 F.T.R. 246 (F.C.). The Federal Court of
Appeal recently adopted the same approach in Fontaine, cited above.
[33]
In
this case, did Mr. Lafrance follow this procedure? I do not think so.
Although he reported the evidence submitted in minute detail and drew certain
findings of fact from it, his analysis of the justifiability of the sanction
strikes me as tenuous at the very least, for several reasons.
[34]
It was
in the letter given to him by Mr. Miguel Barrieras, then Vice-President of
the McGill College branch, dated January 9, 2004, that the Bank set forth
for the first time, at least in writing, the reasons of Mr. Bitton’s
alleged misconduct and performance deficiencies. Three factors were raised in
that letter, an excerpt of which I am reproducing below in light of its
importance [translation]:
Should the cases of misconduct or
substandard performance reoccur, you will receive a formal written notice and
could potentially be relieved of your current duties and dismissed from the
Bank.
Details related to the misconduct:
1) Unsatisfactory
interpersonal relations, which have had a significant negative impact on morale
in other departments, and lack of respect for other staff members resulting in
poor communication between you.
One of the Bank’s departments informed the
Vice-President and Director that it had received several complaints from its
employees regarding business they had to conduct with you. They claim to have
been exposed to verbal abuse on several occasions.
2) Unsatisfactory client service
The branch has received several telephone
calls from clients expressing their dissatisfaction with the service they
received from you. For example: 1) difficulty reaching you (busy signals); 2)
unreturned phone calls; 3) incorrect information received by client regarding
certain products and services.
3) Lack of organization
The branch has taken note of your lack of
organization. Several documents have gone missing for accounts for which you
are responsible. This has been occurring ever since your appointment as a
credit agent.
Your response to new challenges or opinions
and advice from management on areas to be improved has been to deny, challenge
and misinterpret the facts outlined above, conduct we consider unprofessional
and difficult to manage.
[35]
In the
submissions and authorities it provided to the adjudicator on
January 28, 2005, Respondent’s Record at pages 41 and following, and
in its memorandum to this Court, the employer reiterated the same three
complaints to justify its decision to terminate its employment relationship
with Mr. Bitton. According to the Bank, each of the three reasons
independently constituted sufficient justification to dismiss the applicant,
given that he had already received notice and had been given the opportunity to
correct the problems.
[36]
As for
weighing the evidence before him, the adjudicator made a certain number of
findings that I have already reproduced above at paragraph 20. These
findings of fact are naturally entitled to significant deference, as was
established with respect to the first issue, given the adjudicator’s expertise
and his opportunity to assess the credibility of the witnesses and parties.
[37]
His
analysis of the adequacy of the reasons for dismissal put forth by the
employer, however, strikes me as debatable. One can search in vain in the
adjudicator’s reasons for an actual analysis of the reasons for dismissal
invoked by the Bank, which should nevertheless underlie the justification of
this measure that can be described at the very least as draconian. On the other
hand, he was clearly aware of the applicable principles, given that he prefaced
his observations with the following paragraph [translation]:
66 It is well established in the caselaw
that an employer may terminate an employment unilaterally and without notice on
reasonable grounds, which it was up to the employer to demonstrate in this
case.
[38]
At no
time did the adjudicator actually establish a connection between his findings
of fact and the reasons invoked by the employer for dismissing Mr. Bitton.
There is room for interpretation on both sides. While it is true that the
correlation is sometimes obvious, that is not always the case. For example, the
fact that he did not take any notes during his training in itself neither
proves nor explains his incompetence. Was the accumulation of complaints
against the applicant in itself enough to lead to a finding of incompetence or
insubordination on Mr. Bitton’s part? Furthermore, the allegations of poor
interpersonal relations with other staff members are barely mentioned in his
conclusions.
[39]
But
there is more. The adjudicator concluded, on the basis of the meeting held on
December 18, 2003, and the letters that followed, that the relationship of
trust between Mr. Bitton and the Bank no longer existed, which justified
his dismissal without written notice. It seems therefore that it was for this
reason more than for the complaints against him in the letter dated
January 9, 2004, that the adjudicator found that the dismissal was
justified.
[40]
Also,
nowhere in the adjudicator’s reasons does there appear a discussion of the
seriousness or irremediable nature of the applicant’s conduct. Given that the
breach of the relationship of trust between Mr. Bitton and his employer
seems to be, in the eyes of the adjudicator, the real justification for the
dismissal, it seems reasonable to expect a at least a minimal explanation for
this. I am not questioning the adjudicator’s finding that there were problems
with Mr. Bitton’s performance during his final months of employment with
the Bank. The fact that he recorded conversations with his employers without
their knowledge, threatened the Bank that he would call upon the members of his
community for support, and that after his dismissal, he circulated a petition
among the respondent’s clients accusing its employees of racism and harassment,
all certainly constitute reprehensible acts that could not help but rupture the
relationship of trust between the two parties.
[41]
Nevertheless,
it is reasonable to expect that the adjudicator not be content merely to state
that given that breach of the relationship of trust between the parties, the
respondent was justified in dismissing Mr. Bitton without any other form
of notice. After all, we must never lose sight of the fact that dismissal is
the ultimate weapon, which the employer should only be able to use as a last
resort, thereby resisting arbitrary action in individual employment contracts.
It should go without saying that Part III, Division XIV of the Code was amended
primarily to provide further job protection to employees, as was stated by the
Federal Court of Appeal in Beothuk Data Systems Ltd., Division Seawatch v.
Dean, [1998] 1 F.C. 433 (C.A.), which cited, at paragraph 33, the debate
in the House of Commons related to the Labour Minister’s observations.
[42]
Was
this breach of the relationship of trust irremediable? Could the employer have
employed other sanctions to deal with this employee? Did dismissal constitute a
disproportionate measure under the circumstances? None of these issues are
dealt with in the impugned decision, which leaves too much room for
interpretation with respect to the appropriateness of the disciplinary measure
taken by the employer with regard to Mr. Bitton.
[43]
In
conclusion, I am of the view that the adjudicator erred in giving too little
consideration to the third stage of the test described by Cory J. in the
above-cited Toronto Board of Education, which involves assessing the
adequacy of the employees’ alleged breaches under the circumstances before
finding that there were grounds for dismissal. In reading the adjudicator’s
reasons, I am led to believe that he committed the same error as the
adjudicator whose decision was under review in Fontaine, noted above.
Without saying it explicitly, as in this case, he wrote as though the employer
were entitled to exercise the sanction from the moment it could demonstrate
sufficient grounds for invoking a breach of the relationship of trust. As
Décary J. wrote at paragraph 29 of that case, “[h]e confused the
fault committed, which warranted a penalty (the first and second stages), with
the breach of the relationship of trust, which may justify the nature of the
penalty applied (the third stage).”
[44]
As for
the appropriate standard of review to be applied in this case, it should be
noted that the error committed by the adjudicator involves a question of mixed
law and fact. I
am not calling into question his findings of fact drawn from the evidence
submitted by the parties. As I pointed out above, these findings are entitled to
considerable deference, which the Court must respect. At no time were the
adjudicator’s findings of fact clearly irrational. For example, the companies’
complaints brought to the attention of the employer with respect to
Mr. Bitton’s unsatisfactory work and the verbal reprimands he received
from his supervisors are not called into question here.
[45]
However,
when the adjudicator bypasses the last stage of the test set out by the Supreme
Court in Toronto Board of Education and jumps to the conclusion that the
dismissal was justified purely on the basis of the fault committed, he
committed an error in applying a legal rule to the facts. Because we are
dealing with a question of mixed law and fact, the degree of deference owed to
the resulting findings is necessarily lesser and entitles this Court to
intervene to the extent that the adjudicator’s decision “is not supported by
any reasons that can stand up to a somewhat probing examination” (Canada
(Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R.
748, at paragraph 56).
[46]
In
this case, the Court has a responsibility to intervene because the adjudicator
provided no support for his finding that the disciplinary measure taken by the
employer, namely dismissal, was justifiable. It is worth noting that an
employee who has been dismissed should never be left to wonder about the
reasons for the termination of his employment. That is why an adjudicator is
generally appointed when a conflict of this sort arises, so that any complaints
against the employee can be fully clarified.
[47]
Accordingly,
I will adopt the same solution as that adopted by the Federal Court of Appeal
in Fontaine, cited above, and refer the case back to the adjudicator so
that he can decide, on the basis of the evidence available to him in light of
these reasons, whether the dismissal without compensation was an appropriate
measure. The parties should be authorized to give their point of view on this
issue, orally or in writing, on the basis of the record as it now exists.
JUDGMENT
THIS COURT
ORDERS THAT the matter be referred back to the adjudicator so that he can decide, on
the basis of the evidence available to him in light of these reasons, whether
the dismissal without compensation was an appropriate measure. The parties
should be authorized to give their point of view on this issue, orally or in
writing, on the basis of the record as it now exists.
"Yves de Montigny"
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