Date: 20041014
Docket: T-1755-03
Citation: 2004 FC 1408
Ottawa, Ontario, the 14th day of October 2004
PRESENT: THE HONOURABLE MR. JUSTICE SHORE
BETWEEN:
LANCINE BAKAYOKO
Applicant
- and -
BELL NEXXIA
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
INTRODUCTION
[1] The point of departure in any proceeding for a party who appears without counsel and is thus, self-represented, to know which door to approach in order to be heard. This Court cannot hear a case as long as some other proper remedy exists.
BASIS OF JUDICIAL PROCEEDING
[2] This is an application for judicial review pursuant to section 18.1 of the Federal Courts Act of the decision by an adjudicator appointed pursuant to section 242 of the Canada Labour Code on August 25, 2003, in which the adjudicator dismissed the complaint of unjust dismissal filed by the applicant under section 240 of the Code.
FACTS
[3] The applicant Lancine Bakayoko was hired by the respondent Bell Nexxia (the respondent) on November 28, 2000, as a networking consultant.
[4] As a networking consultant, he had to provide technical support to outside businesses involving high ([TRANSLATION] "broad") technology, and direct the customer to the appropriate group as required.
[5] Between January and July 2002, Mr. Bakayoko was absent from work on January 29, February 10, April 12 and 24, May 18, June 6 and July 8. Because he gave illness as a reason for nearly all the absences, Bell Nexxia asked him to provide notes from a physician. He did not provide them.
[6] Mr. Bakayoko received a written warning for the absences of January 29, 2002 and February 10, 2002.
[7] On May 9, 2002, Mr. Bakayoko had a meeting with the director of human resources (the director). At the meeting, the director spoke to Mr. Bakayoko about his conduct, his attitude to work, his attendance, his poor test results in terms of the minimum performance required and his insubordination. The following day the director sent him a letter. The director warned him that, if the problems persisted, "further action will be taken up to and including termination of employment".
[8] Mr. Bakayoko was suspended from work on June 3 for inadequate attendance.
[9] On June 11, following two absences on June 6 and 11, the director sent Mr. Bakayoko the following message:
Please be advised that you are being suspended without pay for a period of one week effective immediately. This suspension is due to your incidental absence of Thursday June 6th, 2002 and Tuesday June 11th, 2002.
Furthermore, you will be on probation for a period of 3 months effective June 18th, 2002. During this period, if you are unable to report for duty due to illness a medical certificate must be provided. Failure to do so will result in immediate dismissal.
[10] Mr. Bakayoko was on vacation from June 20 to July 4. On July 9, he called in sick. Bell Nexxia called him and asked him to provide a medical certificate confirming that he was ill. He agreed to provide the certificate.
[11] When he arrived at work on July 11, the operations manager (the manager) asked Mr. Bakayoko to produce the medical certificate. He said, first, he had forgotten it at home and would produce it the next day. When the manager insisted on Mr. Bakayoko producing the certificate the same day, he said it was not he who had been ill, but his son. The manager told him she would be consulting human resources and would contact him to tell him about further action.
[12] On July 16, 2002, the manager contacted Mr. Bakayoko and asked him to report to the security office the following day. When he appeared, the manager gave him a letter of dismissal.
[13] On August 22, 2002, Mr. Bakayoko filed a complaint of unjust dismissal with the Department of Human Resources Development pursuant to section 240 of the Code.
ADJUDICATOR'S DECISION
[14] At the hearing Mr. Bakayoko alleged that Bell Nexxia had organized his work schedules badly. In his submission, because he had to work too many night shifts, he had become ill and had to be away from work.
[15] The adjudicator dismissed that allegation. He concluded that Mr. Bakayoko had not submitted any evidence in support of the allegation.
[16] Mr. Bakayoko also maintained that in January and February 2002 he was gradually returning to work after being absent on account of illness from August 23 to November 28, 2001, but Bell Nexxia did not observe the return to work procedure. It required him to do too many night shifts, and this made him ill again.
[17] The adjudicator analyzed the evidence before him. He attached little evidentiary value to the medical certificate submitted by Mr. Bakayoko, saying that between January and February 2002 he was gradually returning to work, because the medical certificate was dated May 12, 2003, whereas the gradual return to work was suppose to have taken place in January 2002. Further, Bell Nexxia filed a medical document prepared in January 2002 by Mr. Bakayoko's physician, in which she explained Mr. Bakayoko did not need a gradual return to work. The adjudicator accordingly dismissed Mr. Bakayoko's allegation.
[18] The adjudicator concluded:
[TRANSLATION]
In eight months of work, from his return in late December 2001, I find nine days of absence on sick leave. He may have been sick, but he was already consulting a doctor and could have referred to the latter.
* * *
He was warned at least four times, including two severe warnings, as well as two suspensions, one of which was very clear. On at least two occasions the human resources director laid down clear conditions and even gave him a probation period. [The director] gave him his opportunity, he could have improved, but he did not do so.
[19] The adjudicator dismissed Mr. Bakayoko's complaint.
POINTS AT ISSUE
[20] Is Mr. Bakayoko's affidavit admissible?
[21] Did the adjudicator contravene the Official Languages Act?
ANALYSIS
Is Mr. Bakayoko's affidavit admissible?
[22] Bell Nexxia argued that an informant cannot base his or her arguments on beliefs or suppositions nor speculate, argue or draw legal conclusions in an affidavit filed in connection with an application for judicial review. Consequently, paragraphs 9, 12, 13, 15, 29, 30, 32 and 34 to 40 should be struck out.
[23] The Court agrees with Bell Nexxia. Paragraphs 9, 12, 13, 15, 29, 30, 32 and 34 to 40 should be struck out.
Did the adjudicator contravene the Official Languages Act by presiding over the hearing when he did not know enough English?
[24] Mr. Bakayoko maintained that the adjudicator contravened the Official Languages Act at the hearing. Section 16 of the OLA requires all federal judges hearing a case in both official languages to understand the two official languages if the parties wish the hearing to be held in French and in English. In the case at bar, Mr. Bakayoko said that two Bell Nexxia witnesses testified in English. During their testimony, the adjudicator asked the Bell Nexxia attorney to translate the testimony several times. Additionally, the adjudicator put all his questions in French, and counsel for Bell Nexxia then translated them for the witnesses. Mr. Bakayoko maintained that the adjudicator contravened section 16 of the OLA because he heard the case despite not knowing enough English.
[25] Mr. Bakayoko also argued that the adjudicator contravened subsection 15(1) of the OLA because he did not obtain the services of an interpreter.
[26] Bell Nexxia maintained that the adjudicator made no error in hearing the case: since Mr. Bakayoko did not request the services of an interpreter, the adjudicator was not required to provide one and so did not contravene subsection 15(1) of the OLA.
[27] Bell Nexxia further maintained that the adjudicator did understand English. In the cross-examination, according to Bell Nexxia, Mr. Bakayoko could not provide any examples where the adjudicator had difficulty understanding the testimony given in English; and according to Mr. Bakayoko, the adjudicator did not analyze the series of e-mails written in English in detail.
[28] Finally, according to Bell Nexxia, the evidence was that Mr. Bakayoko and the two witnesses fully understood both official languages. Bell Nexxia accordingly maintained that the adjudicator did not contravene any section of the OLA.
[29] Bell Nexxia did not file affidavits from persons who were present at the hearing and so the Court only has the testimony of Mr. Bakayoko, who said the adjudicator asked that the English testimony be translated into French and put all his questions in French, and they were then translated into English for the Anglophone witnesses. Moreover, in cross-examination Mr. Bakayoko was consistent with his affidavit. The exchange between the Bell Nexxia counsel and Mr. Bakayoko on this point was as follows:
[TRANSLATION]
Q. When you say that "counsel for the defendant proceeded to translate testimony for the adjudicator, who constantly asked . . ." And I quote "what did he or she say?" - was that to each question?
A. Almost. Eighty percent of the questions.
. . . . .
Q. Right. O.K. Good. When the defendant translated, according to you the defendant translated the witnesses' statements. Was that translation accurate?
A. Definitely not.
. . . . .
Q. Just a moment. You told me the translation was not accurate?
A. Yes.
. . . . .
Q. At time of the hearing when you say counsel for the defendant - when counsel for the defendant inaccurately translated the statements, to use your expression, how did you react?
A. Well, I, I objected, and then it was not important.
Q. So it was not important?
A. No.
Q. What was the answer when you objected?
A. There was no answer.
. . . . .
Q. O.K. In allegation 26, you say that "The adjudicator constantly put his questions in French". What problem do you have with that?
A. I don't have a problem. But the witnesses did not understand.
[30] According to Mr. Bakayoko, the exchange showed not only that Mr. Bakayoko had not changed his testimony, but also that the attorney agreed that the adjudicator had asked for translations and put his questions in French.
[31] Did the adjudicator understand "English and French . . . without the assistance of an interpreter"? Did the adjudicator contravene the OLA when he heard the hearing despite not knowing enough English?
[32] Despite the substantial claims and arguments made by both parties, before the Court itself determines whether the adjudicator has contravened the Official Languages Act by presiding over the hearing, this Court must first determine whether it has jurisdiction to decide this point. It is well settled that the Court cannot hear a case so long as another appropriate remedy exists. In Vicrossano Inc. v. Canada (Attorney General), Gibson J. applied this principle to the OLA. He said:
. . . at section 58, the Official Languages Act provides for a scheme of registering complaints of alleged infringements of the Act and for the conduct of investigations into those complaints. Remedial provisions are reflected in sections 63 to 65.
Subsection 77(1) of the Official Languages Act provides for recourse to this Court by any person who has made a complaint in respect of certain rights or duties under the Official Languages Act, including those here at issue. Here, no complaint was made to the Commissioner of Official Languages. In the absence of such a complaint, and more particularly, in the absence of evidence that the President of the applicant has fully persuade the complaint procedure available to her under the Official Languages Act, I am satisfied that it is not open to the applicant to, in effect, initiate such a complaint as an element of this application for judicial review.
CONCLUSION
[33] The comments of Gibson J. also apply here. In accordance with that reasoning, the Court will not decide this point and the application for judicial review is accordingly dismissed.
JUDGMENT
THE COURT ORDERS that the application for judicial review be dismissed.
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"Michel M.J. Shore"
Judge
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Certified true translation
Jacques Deschênes, LLB
| Canada Labour Code, R.S.C. 1985, c. L-2:
240. (1) Subject to subsections (2) and 242(3.1), any person
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Code canadien du travail, L.R.C. (1985), ch. L-2 :
240. (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d'un inspecteur si :
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| (a) who has completed twelve consecutive months of continuous employment by an employer, and
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a) d'une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;
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| (b) who is not a member of a group of employees subject to a collective agreement,
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
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b) d'autre part, elle ne fait pas partie d'un groupe d'employés régis par une convention collective.
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| (2) Subject to subsection (3), a complaint under subsection (1) shall be made within ninety days from the date on which the person making the complaint was dismissed.
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(2) Sous réserve du paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours qui suivent la date du congédiement.
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| (3) The Minister may extend the period of time referred to in subsection (2) where the Minister is satisfied that a complaint was made in that period to a government official who had no authority to deal with the complaint but that the person making the complaint believed the official had that authority.
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(3) Le ministre peut proroger le délai fixé au paragraphe (2) dans les cas où il est convaincu que l'intéressé a déposé sa plainte à temps mais auprès d'un fonctionnaire qu'il croyait, à tort, habilité à la recevoir.
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| ...
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[...]
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| 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).
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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.
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| (2) An adjudicator to whom a complaint has been referred under subsection (1)
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(2) Pour l'examen du cas dont il est saisi, l'arbitre :
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| (a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe;
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| a) dispose du délai fixé par règlement du gouverneur en conseil; (b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and
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b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part;
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| (c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c).
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c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c).
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| (3) Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall
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(3) Sous réserve du paragraphe (3.1), l'arbitre :
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| (a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and
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a) décide si le congédiement était injuste;
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| (b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
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b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre.
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| (3.1) No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where
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(3.1) L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants :
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| (a) that person has been laid off because of lack of work or because of the discontinuance of a function; or
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a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste;
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| (b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament.
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b) la présente loi ou une autre loi fédérale prévoit un autre recours.
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| (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
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(4) S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur :
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| (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;
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a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié;
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| (b) reinstate the person in his employ; and
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| 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.
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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.
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| Official Languages Act, R.S.C. 1985, c. 31:
15. (1) Every federal court has, in any proceedings before it, the duty to ensure that any person giving evidence before it may be heard in the official language of his choice, and that in being so heard the person will not be placed at a disadvantage by not being heard in the other official language.
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Loi sur les langues officielles, L.R.C. (1985), ch. 31 :
15. (1) Il incombe aux tribunaux fédéraux de veiller à ce que tout témoin qui comparaît devant eux puisse être entendu dans la langue officielle de son choix sans subir de préjudice du fait qu'il ne s'exprime pas dans l'autre langue officielle.
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| (2) Every federal court has, in any proceedings conducted before it, the duty to ensure that, at the request of any party to the proceedings, facilities are made available for the simultaneous interpretation of the proceedings, including the evidence given and taken, from one official language into the other.
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(2) Il leur incombe également de veiller, sur demande d'une partie, à ce que soient offerts, notamment pour l'audition des témoins, des services d'interprétation simultanée d'une langue officielle à l'autre langue.
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| (3) A federal court may, in any proceedings conducted before it, cause facilities to be made available for the simultaneous interpretation of the proceedings, including evidence given and taken, from one official language into the other where it considers the proceedings to be of general public interest or importance or where it otherwise considers it desirable to do so for members of the public in attendance at the proceedings.
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(3) Ils peuvent faire aussi ordonner que soient offerts, notamment pour l'audition des témoins, des services d'interprétation simultanée d'une langue officielle à l'autre s'ils estiment que l'affaire présente de l'intérêt ou de l'importance pour le public ou qu'il est souhaitable de le faire pour l'auditoire.
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| 16. (1) Every federal court, other than the Supreme Court of Canada, has the duty to ensure that
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16. (1) Il incombe aux tribunaux fédéraux autres que la Cour suprême du Canada de veiller à ce que celui qui entend l'affaire :
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| (a) if English is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand English without the assistance of an interpreter;
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a) comprenne l'anglais sans l'aide d'un interprète lorsque les parties ont opté pour que l'affaire ait lieu en anglais;
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| (b) if French is the language chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand French without the assistance of an interpreter; and
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| b) comprenne le français sans l'aide d'un interprète lorsque les parties ont opté pour que l'affaire ait lieu en français; (c) if both English and French are the languages chosen by the parties for proceedings conducted before it in any particular case, every judge or other officer who hears those proceedings is able to understand both languages without the assistance of an interpreter.
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c) comprenne l'anglais et le français sans l'aide d'un interprète lorsque les parties ont opté pour que l'affaire ait lieu dans les deux langues.
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| (2) For greater certainty, subsection (1) applies to a federal court only in relation to its adjudicative functions.
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(2) Il demeure entendu que le paragraphe (1) ne s'applique aux tribunaux fédéraux que dans le cadre de leurs fonctions judiciaires.
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| (3) No federal court, other than the Federal Court of Appeal, the Federal Court or the Tax Court of Canada, is required to comply with subsection (1) until five years after that subsection comes into force.
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(3) Les tribunaux fédéraux autres que la Cour d'appel fédérale, la Cour fédérale et la Cour canadienne de l'impôt disposent toutefois, pour se conformer au paragraphe (1), d'un délai de cinq ans après son entrée en vigueur.
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FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1755-03
STYLE OF CAUSE: LANCINE BAKAYOKO
-and-
BELL NEXXIA
PLACE OF HEARING: MONTRÉAL, QUEBEC
DATE OF HEARING: OCTOBER 4, 2004
REASONS FOR JUDGMENT
AND JUDGMENT BY: MR. JUSTICE SHORE
DATE OF JUDGMENT
AND JUDGMENT: OCTOBER 14, 2004
APPEARANCES:
Lancine Bakayoko FOR THE APPLICANT
Reno Vaillancourt FOR THE RESPONDENT
SOLICITORS OF RECORD:
LANCINE BAKAYOKO FOR THE APPLICANT
Ville Mont-Royal, Quebec
LAROCHE, CHATIGNY FOR THE RESPONDENT
Montréal, Quebec
R.S.C. 1985, c. L-2 (the Code).
Applicant's record, adjudicator's decision, p. 21.
Respondent's record, Bell Canada, vol. 1 of 2, at pp. 37-39.
[2002] F.C.J. No. 1612 (QL), at paras. 21-22.
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