Date: 20031020
Docket: T-2314-01
Citation: 2003 FC 1206
OTTAWA, ONTARIO, MONDAY, THIS 20TH DAY OF OCTOBER, 2003
PRESENT: THE HONOURABLE MADAM JUSTICE SNIDER
BETWEEN:
PATRICK JENNINGS
Applicant
- and -
SHAW CABLESYSTEMS LTD.
Respondent
REASONS FOR ORDER AND ORDER
SNIDER J.
[1] Mr. Patrick Jennings, the Applicant, was employed for 14 months as a telemarketer with Shaw Cablesystems Inc. On April 6, 1999, he was terminated. Mr. Jennings filed a complaint of unjust dismissal under Part III of the Canada Labour Code. The hearing of his complaint before Adjudicator John E. D. Savage ("Adjudicator") of the Canada Labour Relations Board ("Board") commenced on March 8, 2001. Shaw put forward three allegations of just cause for Mr. Jennings' dismissal, those being:
2. That he surreptitiously drugged a fellow employee at a company Christmas party;
3. That he defrauded his employer; and,
4. That he offered drugs to fellow employees and others while at work.
[2] In his decision dated September 21, 2001, the Adjudicator dismissed the complaint of Mr. Jennings. While not accepting the first two allegations of Shaw, the Adjudicator found that Mr. Jennings offered to procure drugs for another employee while at the place of employment, was on drugs at work and solicited and received phone calls at work for the procurement of drugs. The termination was, in the opinion of the Adjudicator, not unjust.
[3] Mr. Jennings seeks judicial review of this decision.
Issues
[4] This application raises the following issues:
1. Did the Board err in law or fail to properly exercise its jurisdiction by failing to consider the manner in which the Respondent dismissed the Applicant?
2. Did the Board err by admitting into evidence the expanded grounds for dismissal introduced by Shaw at the commencement of the hearing and well past the 15 day response period provided for in section 241(1)?
3. Did the Board base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
Issue #1: Did the Board err in law or fail to properly exercise its jurisdiction by failing to consider the manner in which the Respondent dismissed the Applicant?
[5] Mr. Jennings submits that the manner in which his employment was terminated by Shaw was procedurally unfair. In support of this submission, Mr. Jennings filed an affidavit containing allegations regarding the actions of Shaw and, in particular, the composition and actions of an investigating committee. Unfortunately, none of this information was before the Adjudicator and is, therefore, irrelevant for the purposes of this judicial review.
[6] In any event, it would likely have been an error of law for the Adjudicator to consider whether an employer's internal procedures were followed, since the only question posed for the adjudicator is whether the employer has just cause to dismiss the employee (Bell Canada v. Hallé, [1989] F.C.J. No. 555 (C.A.) (QL) at para. 14).
[7] Thus, there is no reviewable error.
Issue #2: Did the Board err by admitting into evidence the expanded grounds for dismissal introduced by Shaw at the commencement of the hearing and well past the 15 day response period provided for in section 241(1)?
[8] Shaw was not very forthcoming in providing full reasons to Mr. Jennings or the Adjudicator for his termination. At the time of his dismissal, Mr. Jennings was given no reasons for his termination. After the filing of his complaint with the Board, by letter of June 2, 1999, a copy of the complaint together with a request, pursuant to section 241(1) of the Canada Labour Code, was sent to Shaw. Section 241(1) requires that the employer provide a written statement giving the reasons for the dismissal within 15 days. On August 26, 1999, Shaw gave the following reasons for dismissal:
Mr. Jennings was terminated as a result of inappropriate conduct and potential danger to his co-workers.
[9] On October 12, 1999, in response to a request from the Adjudicator, Shaw expanded on this statement as follows: "The reason for Mr. Jennings' dismissal was that he was distributing narcotics, such as "Ecstasy" to other employees and more particularly, dropping it into drinks surreptitiously". At the commencement of the hearing on March 8, 2001, Shaw once again expanded the grounds to allege that Mr. Jennings was "trafficking drugs to other employees of Shaw" and that he was "a significant trafficker, a producer of chemical compounds to make narcotics". Finally, after the lunch break on the first day of the hearing before the Adjudicator, Shaw added one final allegation namely that Mr. Jennings had "fraudulently supplied a friend with free cable, provided with services, without payment".
[10] At the hearing, as here, Mr. Jennings objected to the introduction of the "new grounds" brought forward by Shaw after the 15 day deadline provided in section 241(1) of the Canada Labour Code. The Adjudicator dismissed Mr. Jennings' objection.
[11] Secondly, given the criminal nature of the allegations, Mr. Jennings argues that the response to the request for reasons violated the Applicant's right to procedural fairness.
[12] Mr. Jennings has correctly identified two sub-issues in this question. Firstly, I must determine whether the Canada Labour Code prevents the Adjudicator from admitting additional grounds for Mr. Jennings' dismissal as late as the commencement of the hearing. The second question that arises in the event that the Adjudicator did not err in considering the new evidence is whether Mr. Jennings' rights to procedural fairness were violated in the circumstances of this case.
Could the Adjudicator admit the late evidence?
[13] Mr. Jennings submits that the Adjudicator erred by accepting the late responses from Shaw on the reasons for the dismissal and by allowing Shaw to introduce new grounds for the dismissal at the beginning of the hearing. He bases his argument on the mandatory language in section 241(1) that provides that, when an employee requests "a written statement giving the reasons for the dismissal", the employer "shall provide the person who made the request with such a statement within fifteen days after the request is made". In Mr. Jennings' submission, sections 241 and 242 of the Canada Labour Code make it clear that a section 241(1) notice must be provided and must be complete as to the grounds alleged for the dismissal.
[14] Unfortunately, I cannot find any support in law for Mr. Jennings' submissions.
[15] It is clear from the wording in section 242(2)(b) that adjudicators are masters of their own procedures. In doing so, adjudicators are required "to give full opportunity to the parties to present evidence and make submissions". Thus, in my view, the Adjudicator had, in this case, not only the discretion to admit evidence of the employer's reasons for dismissal in spite of the employer's failure to comply with section 241(1) of the Canada Labour Code , but an obligation to do so.
[16] Although section 241(1) creates a mandatory obligation on the employer to provide reasons to the employee, the Code is silent as to the consequences of failing to comply. In particular, there is absolutely no language in section 242, the section dealing with the powers of an adjudicator, that creates a bar to the adjudicator proceeding whether or not the employer has complied with section 241(1). Indeed, the Code appears to contemplate that such a statement may not exist; section 242(1) provides that the "Minister may . . . refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1)". The use of the word "any" suggests strongly that circumstances may arise where no section 241(1) statement exists. And such circumstances cannot, in my view, be limited to situations where the employee did not request a written statement.
[17] Where Parliament intended that the adjudicator be bound by certain procedural rules, it did so in clear terms. For example, section 242(2)(a) states that the complaint must be dealt with "within such time as the Governor in Council may by regulation prescribe". However, in the area of procedure, Parliament left the adjudicator with substantial room to develop processes to meet the needs of each case before him.
[18] In this case, Shaw did provide a statement, albeit outside the fifteen-day limit and with the very vague reasons of "inappropriate conduct and potential danger to his co-workers". It was only as the case developed that further particulars concerning those reasons were forthcoming. While it must have been frustrating to Mr. Jennings to receive his section 241(1) statement late and in such vague terms and to have new evidence brought up right up to the commencement of the hearing, I am not persuaded that it was an error for the Adjudicator to consider the new evidence on the basis that it was relevant to the dismissal. As pointed out by the adjudicator in Wygant v. Regional Cablesystems Inc. , [2000] C.L.A.D. No. 424, at paragraph 58 of her decision, "The fundamental criterion for the reception of evidence in these proceedings is relevance." The evidence submitted by Shaw was relevant. The Adjudicator properly admitted it into the proceedings.
[19] I do not agree with Mr. Jennings that allowing employers to introduce new grounds after the fifteen-day deadline set out in section 241(1) will lead to employers failing to give any reasons for dismissal. Since it is evident that the adjudication process must always be conducted fairly, an employee must, at that stage, be aware of the case being made by the employer and be given a reasonable opportunity to respond to allegations made against him. An employee can always seek a delay in the proceeding to allow time for preparation.
[20] Thus, the Adjudicator did not err in allowing the addition of new grounds and in hearing evidence related to those grounds. Such evidence is relevant and necessary for both parties to receive a full and fair hearing.
Were Mr. Jennings' rights to procedural fairness violated?
[21] Having admitted the evidence, it was incumbent on the Adjudicator to provide Mr. Jennings with an opportunity to respond to it. As well as being a fundamental principle of administrative law, the requirement of fairness is built into section 242(2) which allows the adjudicator to determine the procedure to be followed but makes that freedom subject to a very important caveat that the adjudicator "shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator". A failure to accord Mr. Jennings a reasonable and meaningful opportunity to respond to the new allegations would clearly have been a breach of the rules of natural justice and of section 242(2)(b).
[22] In this case, Mr. Jennings was given an adequate opportunity to address these new allegations. The hearing was adjourned for several weeks to give Mr. Jennings, who was represented by counsel at the adjudication, to prepare. At the hearing, the Adjudicator allowed the parties to submit written reasons on the late admission of the statutory response. Mr. Jennings' rights to procedural fairness were respected.
[23] In conclusion on this issue, it is my view that it was not an error for the Adjudicator to take the additional evidence into account on the basis that such evidence was relevant and that Mr. Jennings was given a reasonable opportunity to respond to it.
Issue #3: Did the Board base its decision on an erroneous finding of fact that it made in a perverse or capricious manner or without regard to the material before it?
[24] Mr. Jennings submits that the Adjudicator's decision was based on erroneous findings of fact. In particular:
· The Adjudicator relied on the tainted testimony of Mr. Lacey and Ms. Ewan that the Applicant offered drugs to them and ignored the independent testimony of Constable McNamara of the RCMP that there was no evidence that the Applicant is a drug trafficker.
· The Adjudicator incorrectly relied on Mr. Lacey and Ms. Ewan's evidence to find that the Respondent had sufficient cause to dismiss the Applicant from its employ.
· Since the Adjudicator rejected questionable evidence from Mr. Jamieson (the perpetrator of an acid attack on the Applicant) and Mr. Reeves, his friend, he should also have dismissed the testimony of Mr. Lacey, whose spouse accused the Applicant of drugging her and openly spoke of her dislike for the Applicant.
[25] Mr. Jennings is complaining about findings of fact made by the Adjudicator. In this particular area, the expertise of the Adjudicator must be respected. The Courts have consistently held that the standard of review of the decision of an adjudicator is that of patent unreasonableness.
[26] As recently stated by Mr. Justice Iacobucci speaking on behalf of a majority of the Supreme Court of Canada in the case of Parry Sound (District) Social Services Administration Band v. 2003 SCC 42">Ontario Public Service Employees Union, Local 324, 2003 SCC 42, [2003] S.C.J. No. 42 (QL):
As this Court has repeatedly recognized, the prompt, final and binding resolution of workplace disputes is of fundamental importance, both to the parties and to society as a whole. . . . It is essential that there exists a means of providing speedy decisions by experts in the field who are sensitive to the workplace environment and which can be considered as final by both sides.
[27] In keeping with the desire for finality of disputes of the nature before me, section 243 of the Canada Labour Code contains a very strong privative clause. That provision reads as follows:
| 243 (1) Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition or quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator made under section 242.
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243 (1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires.
(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.
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[28] A privative clause of this nature means that a decision of an Adjudicator is not subject to judicial review unless it is so patently unreasonable that it cannot be rationally supported by its enabling legislation and justice requires the intervention of the Court. (Kelowna Flightcraft v. Kmet, [1998] F.C.J. No. 740 (QL) (T.D.))
[29] Thus, as long as there was evidence on the record that supports the Adjudicator's conclusions, this Court should not intervene. It is not the role of the Court in a judicial review to re-weigh the evidence before the Adjudicator.
[30] With respect to the allegation that Mr. Jennings drugged a drink of another employee, the Adjudicator found that "without corroboration from more reliable witnesses", he could not give credence to the testimony of Mr. Jamieson and his acquaintances. With respect to the allegation of offering drugs, I note that there was corroboration of the testimony of these same witnesses. Specifically, the testimony of Mr. Lacey, Ms. Ewan, and Ms. Kelter was that Mr. Jennings used drugs and offered to procure drugs for employees and others while at work. The Adjudicator acknowledged the possible motive of Mr. Lacey but considered his testimony carefully. In the end, he accepted Mr. Lacey's testimony and commented that his evidence was "candid and unrehearsed". Thus, although the testimony from any one witness on this issue might have been insufficient, the combined testimony was persuasive to the Adjudicator. Given this evidence, the decision cannot be held to be patently unreasonable on the grounds of insufficient evidence (Blanchard v. Control Data Canada Ltd. et al., 14 D.L.R. (4th) 289).
Conclusion
[31] For these reasons, I would dismiss this application for judicial review.
Costs
[32] Shaw seeks its costs in this judicial review. Normally, costs would be awarded to Shaw as the successful party. However, I note that, during this process, Shaw or its counsel have missed deadlines or made errors that required correction, thereby requiring additional time of this Court in dealing with motions that should have been unnecessary. In the final days leading up to the hearing of this application, the date of which has been known to the parties since April 3, 2003, counsel for Shaw requested an adjournment for reasons that ought to have been readily apparent to him months earlier. Fortunately, both the Court and Mr. Jennings were able to accommodate this last-minute request.
[33] For all these reasons, in my discretion pursuant to Rule 400(1) of the Federal Court Rules, 1998, I decline to award costs to Shaw.
ORDER
THIS COURT ORDERS THAT:
1. The application of Patrick Jennings is dismissed
2. There is no award of costs.
"Judith A. Snider"
Judge
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-2314-01
STYLE OF CAUSE: PATRICK JENNINGS
APPLICANT
v.
SHAW CABLESYSTEMS LTD.
RESPONDENT
PLACE OF HEARING: OTTAWA, ONTARIO
DATE OF HEARING: THURSDAY, OCTOBER 9, 2003
REASONS FOR ORDER
AND ORDER : THE HONOURABLE MADAM JUSTICE SNIDER
DATED: MONDAY, OCTOBER 20, 2003
APPEARANCES:
MR. PATRICK JENNINGS FOR APPLICANT
MR. HOWARD LEVITT FOR RESPONDENT
SOLICITORS OF RECORD:
MR. JENNINGS ON HIS OWN BEHALF FOR APPLICANT
OTTAWA, ONTARIO
LANG MICHENER FOR RESPONDENT
TORONTO ONTARIO
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