Pascal v. Kitigas Inc., 2003 FC 894

Date: 20030717

Docket: T-410-01

Citation: 2003 FC 894

Ottawa, Ontario, this 17 ^th day of July, 2003

PRESENT:      The Honourable Mr. Justice James Russell

BETWEEN:

                                                               SYLVIA PASCAL

                                                                                                                                            Applicant

                                                                         - and -

                                                              KITIGAS INC. and

THE ATTORNEY GENERAL OF CANADA

                                                                                                                                      Respondents

                                            REASONS FOR ORDER AND ORDER

[1]                This is an application for judicial review of the Canada Labour Code decision of adjudicator Jack M. Chapman Q.C. (the "Adjudicator") made on January 31, 2001 (the "Decision"), dismissing the complaint of the Applicant that she had been unjustly dismissed from employment with the Respondent, Kitigas Inc.

[2]                The Applicant, Sylvia Pascal, is a 45-year-old mother and grandmother presently residing in Winnipeg, Manitoba, and is originally from the Little Grand Rapids First Nation. She was employed by the Respondent, initially as a trainee, and for the majority of her employment as a full-time child care worker from December 8, 1995 until January 7, 1999. Kitigas Inc. maintained and operated a group home for children (the "Group Home") at Little Grand Rapids First Nation Reserve where the Applicant was employed.

[3]                Brian Brown and Paula Christine Gale were co-managers of the Group Home during the relevant time period. On November 25, 1998, the Applicant and Ms. Gale had a telephone conversation about the Applicant's desire to pursue further education related to her employment. On December 15, 1998, Ms. Gale and Mr. Brown signed a memorandum indicating that the Applicant would be leaving her employment with the Respondent on January 6, 1999 to pursue educational goals (the "Memorandum"). The Applicant did not sign this memorandum.

[4]                On or about December 22, 1998, the Applicant wrote to Ms. Gale in response to the Memorandum and indicated as follows:

RE: December 15, 1998 Memo to Kitigas Co-Manager Brian Brown

On November 25, 1998, you telephoned me in Winnipeg regarding some work related issues. At that time, I requested from you a Leave of Absence from the Kitigas Children's Home while I completed my education. I requested that my Leave of Absence commence on January 8, 1999 and end sometime in July or August 1999. Our conversation ended with your approval for this Leave of Absence.

Your memo of December 15, 1998 suggests that I resigned from the Kitigas Children's Home in order to pursue my educational goals. This was not discussed or eluded (sic) to during our telephone conversation November 25, 1998. Further, I have no intention of resigning now or in the future. I am committed to the ongoing success of the Kitigas Children's Home, and hope to continue my employment with Kitigas once my educational pursuits are completed this summer.

I trust this clears up any misunderstanding.

[5]                Ms. Gale then responded on December 23, 1998 with a brief letter stating that a leave of absence would only be granted for full-time courses, and the course which the Applicant intended to take was not a full-time course. Ms. Gale also requested that the Applicant speak to her further. The Applicant alleges that she wrote back to Ms. Gale that same day asking her to reconsider her position on the leave of absence.

[6]                On January 8, 1999, Mr. Brown and Ms. Gale wrote to the Applicant advising her that her employment would be terminated effective January 22, 1999 and indicating that she would receive two weeks pay in lieu of notice and holiday pay. The grounds for dismissal were set out as follows:

1              Refusal to sign your job description which is a condition of your employment as a Child Care Worker at Kitigas Children's Home.

2.             Numerous occasions on which you abandoned your position without notice and immediately left the community.

3.             Your failure to complete your monthly report forms as required for your key kids even after receiving numerous requests for the reports.

4.             Your continued and consistent failure to follow protocol when dealing with requests and grievances as an employee of the Children's Home. You consistently by-passed Management and chose to take requests and grievances directly to the Board of Directors even when you were advised by Management that you were not following proper protocol and further advised what protocol should be followed.

[7]                The Applicant subsequently filed a complaint of unjust dismissal with Human Resources Development Canada. The Respondent provided a written statement giving the reasons for the dismissal on March 27, 2000, in accordance with paragraph 241(1) of the Canada Labour Code.    An adjudicator was appointed pursuant to the Canada Labour Code and the proceedings took place on October 3, 2000 before Mr. Jack M. Chapman, Q.C. The Decision was issued on January 31, 2001 and dismissed the complaint of unjust dismissal.

ISSUES

1.          What is the appropriate standard of review?

2.          Does the Adjudicator's Decision contain a reviewable error?

RELEVANT LEGISLATION

[8]                The relevant statutory provisions in Division XIV - Unjust Dismissal of Part III of the Canada Labour Code, R.S.C. 1985, c. L-2 read as follows:

What is the Appropriate Standard of Review?

[9]                Notwithstanding section 243 of the Canada Labour Code, the Court may judicially review an adjudicator's decision in very limited circumstances.

[10]            As Rouleau J. Pointed out in Kelowna Flightcraft Air Charter Ltd. v.Kmet (1998), F.C.J. No. 740 (Fed. T.D.), :

¶ 17       It is immaterial therefore, whether the Court agrees with the tribunal's conclusion on the issue before it. Provided the decision does not contain such a grievous error of law as to be a misinterpretation of the statutory provisions under which it was made, it is not based on a material finding of fact for which there is no evidence, or the tribunal has not exceeded its jurisdiction in some other way, the decision will not be interfered with. In order for the Adjudicator's decision to be considered patently unreasonable, it must be found by the court to be clearly irrational insofar as there is no evidence to support it.

I regard this as the appropriate standard to be applied in this case.

Applicant's Submission

[11]            Relying upon Ackman v. the Minister of Labour, Feb 20, 1998 (Fed T.D., T-1448-97), the Applicant submits that the Decision is patently unreasonable and contrary to the laws of natural justice for the following reasons:

The reasons given by the employer Kitigas, Inc., in the termination letter are similar to the reasons given for the termination in the letter to Human Resources Development Canada and the Adjudicator found that many of these reasons did not in fact exist in fact. The Adjudicator then went on to find grounds for the dismissal that differ significantly from those put forward by the employer, Kitigas Inc.

It is respectfully submitted that the employer is limited to calling evidence with respect to the reasons for dismissal given in the termination letter and in a letter written pursuant to Section 241(1)(I) of the Canada Labour Code [Rogers Cantel Inc. v. Meilleur (1992), 40 C.C.E.L. 95 (Can. Adj.)]. It is respectfully submitted that it is an excess of jurisdiction and patently unreasonable for the Adjudicator to find there to be grounds for dismissal outside the reasons given to the Applicant for the dismissal and the reasons given to Human Resources Development Canada for the dismissal.

[12]            As regards the grounds for dismissal set out in the termination letter of January 8, 1999, the Applicant points out that the Adjudicator takes the following position in his Decision:

Ground 1 - Refusal to sign job description

[13]            "During cross-examination she [Ms. Gale] acknowledged that she was one of the signatories to Exhibit 7 [the letter of dismissal]. She acknowledged that she had never made any written request for the job description to be signed and it was suggested to her that possibly it had been misplaced in the office."

[14]            The Applicant says this shows the Adjudicator placed little weight on this ground.

Ground 2 - Abandoning position and leaving the community without notice

[15]            "With respect to the second reason, i.e. the abandonment, she [Ms. Gale] acknowledged that on one occasion, the Complainant had been sick, however, she also stated that she was of the view that the Complainant was finding the position very, very stressful because of family requirements in Winnipeg."

[16]            The Applicant argues that this shows there was no evidence that abandonment and absenteeism ever occurred. The only evidence was that the Applicant had been sick on one occasion.

Ground 3 - Failure to Complete Ministry Reports

[17]            "She [Ms. Gale] was adamant that she had offered the same assistance to Ms. Pascal as she had with respect to the others relating to monthly reports. However, Ms. Pascal would not do them at all."

[18]            On this issue, the Applicant argues that there was no evidence she had been warned about the reports and no evidence she had ever been disciplined in the matter. Therefore, even if she had failed to submit her monthly reports this could not be a legitimate ground for dismissal.

[19]            In fact, the Applicant argues that the only real ground relied upon by the Adjudicator in making his Decision was in relation to Ground 4, and on this issue he made a fundamental error.

Ground 4 - Failure to Follow Protocol

[20]            The Adjudicator's Decision reads as follows on this issue:

There is no question that the Complainant was a conscientious employee, especially in the earlier years of her employment. However, it appears to me that what has developed here is that the children's home operated by Little Grand Rapids First Nation has become far more sophisticated and regimented than initially contemplated. There are more Governmental Regulations and requirements, and the proceedings had become far more formalized. Additionally, the staff has become more sophisticated and the organization itself is more structured. It appears to me that the Complainant had some difficulty in adjusting to the new regime. Additionally, it is clear that she resented the imposition of a Board of Directors as an intermediary between staff and the Chief and Band Council.

I am satisfied in reviewing all of the evidence in more detail than has been recited above, that the Complainant wanted to take the part-time training leading to a Certificate in prevention of sexual abuse offences, however, this was not part of the full-time program for which a leave of absence might be granted. It is clear that during November, December and January, there was some considerable dialogue between Ms. Pascal, the administration of the children's home and the Band Chief and Council. I believe that the letter of December 22 (Exhibit 4) in which she stated that she hoped to continue her employment with Kitigas once her educational pursuits were completed this summer, is quite significant. She had not received the leave of absence at the time of writing that letter and clearly stated that she would not return until the summer. That letter and all of the other matters were dealt with on January 7 and a decision was made to terminate her employment for the reasons stated. A review of Note 10 shows that it was only after 4:45 p.m. on that date that she retracted her previous statement and said that she would return to work on the 14^th. However, the administration, in dealing with the situation that existed prior to that conversation had come to a conclusion that she should be dismissed.

As stated above, a review of the evidence shows that she had not complied with the more stringent procedures which had evolved during the latter part of her employment. It is obvious that the children's home have had some difficulty in obtaining and retaining qualified staff. It must be able to depend on staff to attend on a regular basis and to comply with its administrative policies. I am satisfied the Complainant did not follow those procedures and was upset over not receiving a leave of absence and payment for the part-time course shw was taking. Under all of the circumstances, I have concluded that the Employer had just cause for terminating her employment and accordingly, her Complaint is dismissed.

I hasten to add that I have a great deal of admiration for Ms. Pascal and what she has accomplished, especially in view of the personal problems which beset her. However, the requirements imposed by the Employer were reasonable.

[21]            The Applicant points out that there was no separate Board of Directors apart from the Chief and Band Council, so that, in communicating with members at the Band Council, the Applicant had followed the protocol.

[22]            Furthermore, as the correspondence shows, the Applicant made every attempt to resolve her educational leave of absence issues with Ms. Gale. She then went to one of the members of the Band Council and put the matter to the de facto directors. None of this was a breach of the protocol.

[23]            The Applicant argues that this shows that the Adjudicator fundamentally misunderstood what was required of her pursuant to the protocol and the truth of the matter is that management were just angry with her for raising the issue and going over their heads, when all that she did was in accordance with the protocol.

[24]            Hence, the Applicant argues that the reasons given by the Adjudicator for holding the dismissal not to be unfair were not in accord with the reasons given in the letter of dismissal of January 8, 1999 and, even if the Adjudicator had referred to the reasons given in the dismissal letter, it would have been patently unreasonable anyway because those grounds were not sufficient to justify dismissal. At most, they were matters that required discipline.

[25]            The Applicant feels that the Adjudicator completely misunderstood the protocol situation and the significance of the letter which the Applicant wrote to Ms. Gale, dated December 22, 1998.

[26]            The Adjudicator felt that this letter showed the Applicant defying protocol, and that she was determined to take the summer educational leave she had requested and the Respondent had refused. However, all the Applicant was doing in this letter was confirming her understanding that the leave had been granted. She was not being insubordinate and refusing to follow protocol. This is why she had taken the matter up with the Band Council. She was complying with the protocol.

Respondent's Position

[27]            Generally speaking, the Respondent takes the position that:

a)         the breach of protocol alone would be adequate to warrant the dismissal because, to permit it to occur could result in chaos throughout the system. Others, finding the Applicant's breach accepted, would follow the same pattern or procedure;

b)         the Adjudicator stated in his reasons that the employer "must be able to depend on staff to attend on a regular basis and to comply with its administrative policies" and that he was satisfied that the "Complainant did not follow those procedures... .";

c)         it is clear that the Adjudicator refers to the reasons given by the employer: failure to sign job description; failure to be in attendance; abandoning her work or position; failure to complete monthly reports; and failure to follow protocol or procedure in dealing with requests and grievances;

d)         the Applicant incorrectly states in her Notice of Application that the Decision of the Adjudicator "found grounds for dismissal not advanced by the employer." In holding that the employer "must be able to depend on staff to attend on a regular basis and to comply with its administrative policies" and that he was satisfied that the "Complainant did not follow these procedures", the Adjudicator referred to the very reasons given by the employer; and

e)         the grounds for the decisions in the cases referred to in the record of the Plaintiff are inapplicable to and have no bearing on the within matter, dealing with entirely different facts, questions, and issues.

[28]            As regards the specific grounds set out in the January 8, 1999 letter of dismissal, the Respondent points out that:

Ground 1

Although no written request had been made for a job description, implicit in the Adjudicator's Decision is that verbal requests had been made.

Ground 2

Implicit in the Adjudicator's Decision is that, although the Applicant may only have been absent once for reasons of sickness, she was absent on several occasions for no legitimate reason.

Ground 3

The Adjudicator's Decision makes it clear that the Applicant would not do her monthly reports: "However, Ms. Pascal would not do them at all."

Ground 4

It is true that the Adjudicator did give significant weight to the Applicant's letter of December 22, 1998, but this letter was merely a self-serving confirmation by the Applicant of approval for the leave of absence. The fact that the Applicant actually refers in this letter to the Respondent's memo of December 15, 1998 means that she fully understood that a leave of absence for the course she wished to pursue was not available. Hence, it made no sense, other than as a self-serving confirmation, for the Applicant to say that "our conversation ended with your approval for this Leave of Absence."

[29]            The fact is that the Applicant's letter of December 22, 1998 reveals that she still intended to take the course even though she knew, from the memo of December 15, 1998, that this was not permitted.

[30]            Hence, there was nothing wrong with the Adjudicator saying in his Decision that "I believe that the letter of December 22 (Exhibit 4) in which she stated that she hoped to continue her employment with Kitigas once her educational pursuits were completed this summer, is quite significant. She had not received the leave of absence at the time of writing that letter and clearly stated that she would not return until the summer."

[31]            Even though the Adjudicator felt the letter of December 22, 1998 was significant, he does not rely upon this letter alone for his Decision because he says "that letter and all the other matters were dealt with on January 7 and a decision was made to terminate her employment for the reasons stated."

Analysis

[32]            The Applicant referred to the Arbitration Decision in Rogers Cantel Inc. v. Meilleur [1992] C.L.A.D. No. 5, as authority for the proposition that an employer is limited to calling evidence with respect to the reasons given in the termination letter and in a letter written pursuant to paragraph 241(1) of the Canada Labour Code. There are a number of other Canada Labour Code arbitration awards that rely on Rogers Cantel, supra.

[33]            T.E. Valentine, the adjudicator in Gutsell v. WestJet Airlines Ltd. [2002] C.L.A.D. No. 213 applied Rogers Cantel to find that the employer failed to advise the complainant employee of the cause for dismissal at issue at the time of dismissal, and in fact waited until the parties were preparing for the hearing to first raise the issue:

The general rule, therefore, which appears to have been universally recognized and accepted by Adjudicators is that the responding employer is limited at the Hearing, in terms of its justification for the individual's dismissal, to those matters raised in its letter of response to the Inspector for Labour Canada.

[34]            R.A. Grant, the adjudicator in Maracle v. Mohawks of the Bay of Quinte Tyendinaga [1993] C.L.A.D. No. 927 also applied Rogers Cantel in circumstances that have some similarity to the case at bar:

¶ 60       It is argued by Counsel for Mr. Maracle that the reason initially advanced was the Day Care Centre issue. Therefore the attempt to rely on the Roberts case or the audit problem is an attempt to rely on grounds other than those originally relied on. Counsel argues that I may consider only the Complainant's involvement in the purchase of excess groceries by Carol Anne Maracle. In support of this argument, Counsel refers me to the Aerocide rule as articulated by Professor G.E. Eaton in an adjudication under the Canada Labour Code re Meilleur and Rogers Cantel Inc. (Jan. 9, 1992) (Eaton) [sic]. The arbitrator refers to the Arocide rule in the following terms:

The so-called Arocide rule or general proposition that the employer be required to justify the action it has taken on the same grounds upon which it originally relied in invoking that disciplinary action has been an influential principle in industrial Jurisprudence, which has been widely upheld by arbitrators in collective bargaining arbitration. The principle has also been applied by arbitrators in dispute/complaints made and brought for resolution under the Canada Labour Code, thereby conferring on non-unionized or unorganized employees some measure of protection against the arbitrary or capricious or unreasonable exercise of authority by employers as far as job termination is concerned.

¶ 61       Whilst the incident which triggered the dismissal was the Day Care Centre issue, the grounds given by the Employer were broader than that, being stated as "Due to irregularities within the sphere of Jackie's responsibility of employment with the Mohawks Bay of Quinte". It was quite clear from the exchange of particulars between Counsels that the Employer relied on irregularities in general, not only on the one incident.

[35]            Counsel for both the Applicant and the Respondent agree upon the extremely high standard of deference owed to the Arbitrator in this case. In order to find his Decision reviewable, I must find that it was patently unreasonable and, in the words of Rouleau J. in Kelowna Flightcraft Air Charter, supra, "it must be found by the Court to be irrational insofar as there is no evidence to support it."

[36]            Both counsel also agree that an examination of the Decision in this case is severely hampered by the absence of a written transcript of the proceedings that led to the Decision.

[37]            The Adjudicator specifically acknowledged what the Applicant had achieved and expressed "a great deal of admiration for Ms. Pascal and what she had accomplished, especially in view of the personal problems which beset her." Nevertheless, he found that "the requirements imposed by the Employer were reasonable."

[38]            It is not immediately obvious from the Decision itself that the Adjudicator placed no store by the reasons for dismissal stated as Grounds 1, 2 and 3 in the letter of January 8, 1999. First of all, the Adjudicator's specific references to these three grounds on page 7 of his Decision was ambiguous, to say the least, to anyone who was not party to the proceedings and who did not hear the evidence called in the cross-examination. So it is not possible to conclude with the Applicant that these grounds were discounted by the Adjudicator. In addition, the Adjudicator does specifically say that "[t]hat letter and all of the other matters were dealt with on January 7 and a decision was made to terminate her employment for the reasons stated," and that "[u]nder all of the circumstances, I have concluded that the Employer had just cause for terminating her employment and accordingly, her Complaint is dismissed."

[39]            So, as regards the first three grounds of dismissal enumerated by the Employer, I cannot conclude that the Adjudicator left them out of account in the Decision or that, in the circumstances of this case, it was patently unreasonable for the Adjudicator to regard those grounds (at least cumulatively and when taken in conjunction with ground 4) as being reasonable grounds for dismissal.

[40]            The evidence and reasoning on Ground 4 also has its ambiguities. However, reading the Decision as a whole, the Adjudicator appears to be saying that the Applicant's December 22, 1998 letter was significant because it was illustrative of the fact that "a review of the evidence shows that she had not complied with the more stringent procedures which had evolved during the latter part of her employment."

[41]            The Applicant invites me to conclude that there was no evidence of non-compliance other than the leave of absence issue, and the Adjudicator got this completely wrong.

[42]            With all respect for the Applicant and what she obviously achieved at Kitigas (as acknowledged by the Adjudicator), I am not in a position to re-weigh any evidence that the Adjudicator took into account when he concluded that she had not complied with the new procedures. The Adjudicator obviously had general notions of compliance in mind when he said that "the complainant had some difficulty in adjusting to the new regime." The letter of December 22, 1998, rather than being absolutely determinative is "significant" because it highlighted the general difficulties of adjustment. This was not an unreasonable conclusion to reach.

[43]            For these reasons, this application is dismissed.

                                               ORDER

THE COURT HEREBY ORDERS THAT:

1.          The application for judicial review is dismissed.

2.          There shall be no order as to costs.

                     "James Russell"                        

J.F.C.C.

FEDERAL COURT OF CANADA

Names of Counsel and Solicitors of Record

DOCKET:                                           T-410-01

STYLE OF CAUSE:                             Sylvia Pascal v. Kitigas Inc. and AGC

DATE OF HEARING:                        May 20 2003

PLACE OF HEARING:                      Winnipeg, Manitoba

REASONS FOR ORDER BY:             Justice James Russell

DATED:                                                July 17, 2003

APPEARANCES BY:                       

Mr. Andrew Kelly

                                                                                                             For the Applicant

                                                              Mr. Jeff Kunzman

For the Respondents

SOLICITORS OF RECORD:          

Mr. Andrew Kelly

Booth, Dennehy, Ernst, Kelsch,

Winnipeg, Manitoba

                                                                                                              For the Applicant

                                                            Mr. Jeff Kunzman

Bueti, Baumstark, Kunzman

Winnipeg, Manitoba

For the Respondents

FEDERAL COURT OF CANADA

          Date: 20030717

                  Docket: T-410-01

BETWEEN:

SYLVIA PASCAL

Applicant

- and -

KITIGAS INC. and

THE ATTORNEY GENERAL OF CANADA

                                     Respondents

REASONS FOR ORDER AND ORDER