Société Radio-Canada v. Lemieux, 2001 FCT 1314

Date: 20011129

Docket: T-231-00

OTTAWA, Ontario, November 29, 2001

BEFORE: Rouleau J.

BETWEEN:

                                                         SOCIÉTÉ RADIO-CANADA

                                                                                                                                                          Plaintiff

AND:

                                                                 ÉRIC F. LEMIEUX

                                                                                                                                                      Defendant

                                                                            ORDER

[1]        The application for judicial review is allowed and the arbitral award set aside.

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

Date: 20011129

Docket: T-231-00

Neutral citation: 2001 FCT 1314

BETWEEN:

                                                         SOCIÉTÉ RADIO-CANADA

                                                                                                                                                          Plaintiff

AND:

                                                                 ÉRIC F. LEMIEUX

                                                                                                                                                      Defendant

                                                              REASONS FOR ODER

ROULEAU J.

[1]                 This is an application for judicial review pursuant to s. 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, from an arbitral award dated January 10, 2000 which the adjudicator Diane Fortier made pursuant to Part III, Division XIV of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended ("the Code"), allowing the defendant's complaint and ordering the plaintiff to pay the defendant compensation of $54,253 less money earned elsewhere. The plaintiff is seeking an order setting aside the arbitral award on the basis that the adjudicator exceeded her jurisdiction in dismissing the defendant's complaint.

[2]                 In September 1990 the defendant, who is a lawyer by training, met with André Larin and Vincent Leduc, working for the plaintiff. The latter were then seeking a lawyer primarily to draft contracts for its acquisitions branch.

[3]                 On September 17, 1990 Mr. Leduc handed over a contract already signed by Pierre Therrien of the plaintiff and asked the defendant to sign it, which he did. The defendant was accordingly first hired by Société Radio-Canada as assistant to the chief, acquisitions, by a term contract of employment dated September 14, 1990 and covering the period from September 17, 1990 to June 30, 1991.

[4]                 Clause 15 of the said contract provided terms for renewal, if required: it can at once be seen that renewal was not automatic and would not occur if the parties were silent on the matter. Essentially, for a renewal to be possible the plaintiff first had to inform Mr. Lemieux in writing of its intention to renew the contract 60 days before the contract expired. If the contract was to be renewed, Mr. Lemieux would have to answer the notice within ten days. If his answer was positive, the parties would initiate negotiations. If there was no agreement, the contract would expire on the termination date and accordingly would not be renewed.

[5]                 The contract also contained in clause 19 a provision expressly stating that the contract contained all the agreements between the parties and that no understandings, promises, guarantees or arrangements other than those expressly stipulated therein existed.

[6]                 The renewal procedure set out above was followed by the plaintiff before the first contract expired and also before the expiry of each of the renewals and other contracts covering the periods from July 1 to December 31, 1991 and January 1 to June 30, 1992.

[7]                 Another contract of employment was made for the period from July 1, 1992 to June 30, 1993, but this time as administrator of production contracts. This simple change in title meant a significant increase in the defendant's salary without his having to negotiate it. The new contract also included a renewal clause on comparable terms (clause 16) and clearly indicated that it contained all the agreements between the parties.

[8]                 Mr. Lemieux had a final contract of employment with Société Radio-Canada for the period from July 1, 1993 to June 30, 1994.

[9]                 All the contracts which the defendant signed had already been pre-signed by a representative of the plaintiff. He never negotiated any aspect of them. Accordingly, the defendant signed five contracts with the plaintiff without any negotiation.

[10]            Within the deadlines laid down by the last contract the corporation informed Mr. Lemieux by a letter dated April 8, 1994 of its intention not to renew the contract when it expired on June 30, 1994 and gave no reasons.

[11]            In accordance with the provisions of s. 240 of the Code, the defendant challenged what he felt to be an unjust dismissal.

[12]            In a decision made on January 10, 2000 the adjudicator Diane Fortier concluded that the defendant had been dismissed and that this dismissal was unjust. She ordered the plaintiff to pay the defendant compensation of $54, 253 less the money earned elsewhere: hence the instant application for judicial review brought by the plaintiff.

[13]            In response to an objection made by the plaintiff the adjudicator first had to decide whether the oral evidence about the circumstances surrounding the signature and renewal of the employment contracts, which the defendant wished to present, was admissible. She dismissed the objection as follows:

[TRANSLATION]

COUNSEL FOR THE EMPLOYER OBJECTED TO THE ADMISSIBILITY OF THE COMPLAINANT'S EVIDENCE AS IN HIS SUBMISSION IT SOUGHT TO CONTRADICT A VALIDLY MADE WRITING. THAT IS NOT WHAT I UNDERSTOOD FROM THIS EVIDENCE. THE COMPLAINANT ACTUALLY TESTIFIED REGARDING THE CIRCUMSTANCES OF HIS HIRING, THE RENEWALS OF HIS CONTRACTS, THE CIRCUMSTANCES SURROUNDING THE NON-RENEWAL, AND FINALLY THE RADIO-CANADA HIRING PRACTICES. IN VIEW OF MY RESPONSE TO THE FIRST OBJECTION MADE BY THE EMPLOYER, I CONCLUDE THAT THIS ORAL EVIDENCE IS ENTIRELY ADMISSIBLE AS I DO IN FACT HAVE BOTH JURISDICTION AND A DUTY TO CONSIDER ALL THE CIRCUMSTANCES LEADING TO THE TERMINATION OF MR. LEMIEUX'S EMPLOYMENT.

[14]            The adjudicator then had to respond to the preliminary objection to her jurisdiction made by the plaintiff on the basis that this was a non-renewal of the complainant's contract, not a dismissal within the meaning of s. 240 of the Code. After taking all the circumstances into account, she concluded that it was a constructive dismissal and that she had jurisdiction to rule on the instant case:

[TRANSLATION]

WE OFTEN HEAR OF A CONSTRUCTIVE DISMISSAL IN LAYOFFS. CAN WE NOT SPEAK HERE OF A PERMANENT CONTRACT OF EMPLOYMENT DISGUISED AS A TERM CONTRACT? ORDINARILY, A TERM CONTRACT DEPENDS ON THE LENGTH OF THE DUTIES PERFORMED. ACCORDINGLY, A SPECIAL PROJECT, REPLACEMENT OF SOMEONE WHO IS ON LEAVE, A FUNCTION WITH A ONE-TIME BUDGET ARE COVERED BY TERM CONTRACTS: BUT WHEN THE DUTIES ARE REGULAR DUTIES WHICH HAVE EXISTED FOR MANY YEARS AND WHICH WILL CONTINUE, THE PERSONS PERFORMING THOSE DUTIES GENERALLY HAVE A PERMANENT CONTRACT OF EMPLOYMENT, AND THIS WAS THE CASE AT RADIO-CANADA PRIOR TO 1989.

IN SUCH CIRCUMSTANCES, IT WAS NATURAL FOR THE COMPLAINANT TO THINK THAT HE WOULD CONTINUE TO PERFORM HIS DUTIES AS CONTRACT ADMINISTRATOR LIKE THE OTHER MANAGERS, ESPECIALLY AS HIS EMPLOYER APPEARED TO BE SATISFIED WITH HIS PERFORMANCE AND HAD AWARDED HIM TWO SALARY INCREASES BETWEEN SEPTEMBER 1990 AND JUNE 1993, REPRESENTING AN INCREASE OF 40%.

IN VIEW OF THE CIRCUMSTANCES DESCRIBED IN THE EVIDENCE SUBMITTED BY THE COMPLAINANT, IT SEEMS TO ME THAT THE NON-RENEWAL OF HIS CONTRACT AMOUNTED TO A DISMISSAL AND IS SUBJECT TO REVIEW BY THE ADJUDICATOR UNDER SECTION 242.

[15]            The adjudicator then concluded that the defendant had been the victim of an unjust dismissal.

[16]            Additionally, at the hearing before the adjudicator Fortier unopposed evidence of the following facts was presented:

(a) the defendant has legal training: he is a member of the Bar and was fully aware of the meaning and scope of the signature of a term contract of employment;

(b) on the first contract signed by the defendant on September 17, 1990, Messrs. Larin and Leduc said that it was a policy of the plaintiff to have term contracts signed and then renew them over the years;

(c) the term contracts offered to the defendant were not all for a year: the first three contracts were for periods less than 12 months;

(d) at each contract period, within the deadlines specified by each contract, the plaintiff indicated to the defendant that it was prepared to renew his contract and the defendant confirmed his agreement at that time: the defendant chose to accept the contract proposal made to him by the plaintiff each time;

(e) the defendant was fully aware of the essentially temporary nature of his employment with the plaintiff, since he asked to be considered for a permanent position and this was refused;

(f) the defendant received a significant increase in his salary at the time of a change made to his job title, which resulted from a reorganization of the branch, not from a performance appraisal and promotion being awarded to him;

(g) all managerial positions with the plaintiff except one had been hired on a contractual basis since 1989 since "permanent employees" were not hired: their contracts were renewed from ;

(h) positions held by permanent employees had been replaced by contract employees, the cutoff year being 1989;

(i) these were positions appearing in the various organization charts entered in evidence by the defendant, positions requiring the performance of regularly scheduled work for an indeterminate period;

(j) although a large number of employees on term contracts have their contracts renewed when both parties express the intention to renew, others are not renewed;

(k) some employees who are initially hired on term contracts do obtain permanent status;

(l) the contracts of other employees of the plaintiff with the same status as the defendant are identical, with minor alterations;

(m) the employment contract of the person replacing the defendant in the plaintiff's organization was identical to the defendant's contract;

(n) the defendant had never had any complaints made about his work (except for the first time before the adjudicator Fortier, namely that the defendant lacked leadership);

(o) at the termination of the employment on April 8, 1994 the defendant was informed of new departures to be undertaken in the branch in which he was employed and told that the branch's requirements were for a more specialized person.

[17]            The primary question raised by the instant judicial review is whether the adjudicator made a reviewable error and exceeded her jurisdiction when she concluded that the non-renewal of the defendant's term contract when the term ended was a constructive dismissal. The case at bar also raises the interesting question of whether the adjudicator made a reviewable error in dismissing the plaintiff's objection to the evidence that the defendant wished to present of promises allegedly made to him verbally before he was hired.

[18]            At the hearing the plaintiff first mentioned the fact that the adjudicator Fortier's decision was based on oral evidence and submitted that the adjudicator exceeded her jurisdiction and made a patently unreasonable error of law when she concluded that the non-renewal of the defendant's term contract at the expiry of the term was a constructive dismissal.

[19]            The plaintiff recalled that at the hearing before the adjudicator the defendant sought to testify that prior to signature of his first contract in 1990 Société Radio-Canada representatives had indicated to him that he should sign an annual contract but that it would be renewed from year to year. Relying on the provisions of art. 1234 of the Civil Code of Lower Canada ("C.C.L.C."), which applied to the first contract signed by the defendant, but also to the last contract signed by him, in accordance with s. 141 of the Act respecting the implementation of the reform of the Civil Code, the plaintiff objected to this evidence since it was evidence that directly contradicted the express language of a valid written instrument. Article 1234 of the Civil Code of Lower Canada reads as follows:

[20]            The plaintiff argued that by dismissing the objection the adjudicator did not understand its actual meaning. It is clear from reading her decision on the objection that the adjudicator decided it as if the plaintiff had objected to all the defendant's evidence, whereas the plaintiff objected only to one statement, namely that the defendant was told that despite the signature of an annual contract it would be renewed from year to year, and this directly contradicted the term contract language.

[21]            To begin with, as to the applicable standard of review, the plaintiff maintained that the relevant precedents, both in the Trial Division of the Federal Court and in the Federal Court of Appeal, are consistent and unanimous in holding that the standard for review of an adjudicator's decision, as regards her jurisdiction to hear and dispose of a complaint of unjust dismissal, is absence of error: Lemieux v. Canada, [1998] 4 F.C. 65, at 87 (F.C.A.). The plaintiff submitted that not only was the adjudicator's decision not free of error, the decision was in fact patently unreasonable.

[22]            On the merits of the point, the plaintiff argued based on art. 2086 C.C.Q. that the parties to a contract of employment are free to choose to bind each other for a fixed term, and unless tacitly renewed the contract would end when the term expired. The plaintiff contended that although the C.C.L.C. did not provide that a contract of employment may be for a fixed or indeterminate term in the same way, the position was the same by virtue of art. 1138 C.C.L.C. In the case at bar the complainant, a lawyer by training, had never been permanent, was aware of the meaning and scope of the term contract, signed term contracts in full knowledge of the situation without objection, asked to be made permanent but was not, received notices of intention to renew and still agreed to sign further term contracts on four occasions.

[23]            The plaintiff maintained that the adjudicator Fortier erred in formulating the theory that term contracts cannot exist for regular duties and must only apply to special projects, replacements of employees on leave and duties with a one-time budget. In other words, the adjudicator said, we are dealing with a [TRANSLATION] "contract for indeterminate employment disguised as a term contract", and this led to her conclude that it was [TRANSLATION] "natural for the complainant to think that he would continue to perform his duties . . . like the other managers". The plaintiff maintained that there was no legal basis for this theory. There is no limit on the nature of this choice made by the parties. The plaintiff submitted that this was a very significant error of law which in itself justified the Court's intervention.

[24]            The plaintiff further submitted that the adjudicator erred in law in assuming that the fact the complainant had had two salary increases during the currency of two of his five contracts indicated the employer's satisfaction. There was no evidence to this effect. On the contrary, the plaintiff argued, it was established that the significant increase received by the complainant in one of his contracts resulted not from an assessment of his performance but from a reorganization and an organizational change. The only salary increase which the defendant had apart from that came at the end of his first nine-month contract and was quite small. The plaintiff further noted that the complainant had had two of his four renewals made without any salary increase. Could one draw the opposite conclusion, the plaintiff wondered, and say that the renewals without increases were evidence of dissatisfaction by the employer?

[25]            The plaintiff further maintained that the adjudicator made an error in imposing on the employer a burden of proof which completely disregards the existence of a term contract and the case law, stating that [TRANSLATION] "The employer should rather show that an employee is incompetent in order to justify dismissal". The plaintiff respectfully submitted that in a case concerning non-renewal of a contract, it is actually the employee who should show that he was dismissed. Here, the employer explained the reasons which led it to take the decision not to renew the contract and those reasons were neither unlawful, discriminatory or unjust.

[26]            Additionally, the plaintiff submitted that the adjudicator contradicted herself in her conclusions when, on the one hand, she found that the employer was not justified in not renewing the contract, and in the same breath decided not to order reinstatement because the complainant [TRANSLATION] "himself recognized that he was placed in a catastrophic and untenable situation". This situation of fact, whatever its cause and whatever the circumstances, fully justified the plaintiff in not renewing the contract.

[27]            Finally, the plaintiff submitted that the adjudicator would be justified in intervening and concluding that there had been a constructive dismissal only in cases where she was persuaded by the complainant's evidence that there was a connection between the employer's decision not to renew a term contract and the exercise at that time by the complainant of a right protected by a particular provision of public order: Mark C. Moore v. Compagnie Montréal Trust et autres (1988) R.J.Q. 2339, at 2345; C.A.L.F.A. v. Nationair, 1986, Carswell Nat 1002, 67 di 217. In the case at bar, there is no evidence that the complainant was in such a position and the plaintiff submitted that it had only exercised a right specified in a contract duly signed between the parties because it found, as was its right, that it was advisable to do so for reasons which were neither unlawful, discriminatory or unjust.

[28]            The plaintiff submitted that concluding that this non-renewal was a dismissal, and moreover an unjust dismissal, was a legal abomination that fully justified the Court's intervention.

[29]            The defendant submitted that it did not appear, as the plaintiff suggested in its memorandum of fact and law, that Parliament allowed the adjudicator [TRANSLATION] "to intervene and conclude there was a constructive dismissal only in cases where she is persuaded by the complainant's evidence that there is a connection between the employer's decision not to renew a term contract and the exercise at that time by the complainant of a right protected by a particular provision of a law of public order". The courts have never limited a finding of dismissal in a situation involving renewal of term contracts to breach of a law of public order. In the case at bar the Federal Court of Appeal has even said that this concept "has not been cast in stone" (see Lemieux, supra at 70, 84 and 85). Additionally, the defendant submitted that the Superior Court of Quebec's decision in Gagnon v. Ville de Chambly, [1996] R.J.Q. 398, affirmed by the Supreme Court of Canada, [1999] S.C.R. 8">[1999] S.C.R. 8, does not represent a solution to the case at bar as it is clearly to be distinguished from the latter.

[30]            Accordingly, the defendant submitted that the adjudicator Fortier properly considered the evidence before her, correctly applied the legal rules to that evidence and made no error in exercising the jurisdiction conferred on her by the Code.

[31]            Section 242(2)(b) provides that in reviewing a case before her an adjudicator determines the procedure to be followed, but must give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and must consider the information relating to the complaint.

[32]            In the circumstances, the adjudicator was entitled to admit the oral evidence.

[33]            It is well settled that in exercising its principal powers the federal government may trench incidentally on areas of provincial jurisdiction, leaving the ordinary provincial law to regulate the subject in other respects. In the case at bar, the context and the exhaustive nature of the division of powers indicate that jurisdiction over "civil" procedure and evidence is conferred on the provinces by s. 92(14) of the Constitution Act. However, that subsection states that the procedure is that applicable in the provincial courts since the Constitution Act was framed on the basis that it was the provincial courts which would be responsible for implementing both federal and provincial legislation. A contrario, it is the federal government which may determine the "civil" (other than criminal) procedure and rules of evidence applicable in federal courts: H. Brun & G. Tremblay, Droit Constitutionnel, 3d ed., Cowansville, Quebec, Yvon Blais, 1997, at p. 508. In my view, the federal government may validly enact rules of procedure and evidence in connection with disputes involving labour relations and working conditions in private businesses falling under federal jurisdiction, such as the plaintiff in the case at bar, by virtue of the powers "necessarily incidental" to its primary powers, not its exclusive powers (Division XIV of Part III of the Code, which contains s. 242(2)(c) was adopted by Parliament to give non-union workers a remedy in the event of unjust dismissal). Accordingly, where valid legislation exists, namely s. 242(2)(c) of the Code and art. 1234 of the C.C.L.C., the question is whether the province of Quebec may concurrently regulate the same subject, namely the administration of justice, in connection with disputes involving labour relations and working conditions in private businesses under federal jurisdiction.

[34]            In my opinion, where there is an irreconcilable conflict between the provisions of the Code and of the C.C.L.C. those of the Code take priority over the provisions of the C.C.L.C. to the extent of the inconsistency. Concomitant or complementary application of these provisions is clearly impossible in the case at bar, since the adjudicator Fortier would have at the same time a broad power to hear any evidence or testimony which in her estimation is necessary, whether admissible at law or not, and would be prevented from admitting any oral evidence contradicting a valid written instrument. Accordingly, as art. 1234 C.C.L.C. conflicts directly with the provisions of ss. 16(c) and 242(2)(c) of the Code, it is invalid to the extent of the conflict with the Code's provisions on evidence. Simply on this basis, I consider that the adjudicator Fortier properly dismissed the plaintiff's objection to the admissibility of the oral evidence on the circumstances surrounding the signature and renewal of the employment contracts.

[35]            Further, and quite apart from the preceding argument, it seems clear to me that the adjudicator Fortier not only had jurisdiction to admit the defendant's oral evidence but should have assessed all the evidence surrounding both his hiring and the renewal of his contracts and termination of his employment to determine whether he was in fact "dismissed" by the plaintiff. It is clear from the procedure laid down in ss. 16(b) and (c) and 242(2)(b) of the Code that the "complaint" in fact filed by "any person" is the complaint which the Minister may "refer" to an adjudicator, that the adjudicator must "hear and adjudicate on the complaint" and that each party is permitted "to present evidence and make submissions". Curiously, the Code contains no provision limiting the adjudicator's powers over procedure and evidence: on the contrary, as the defendant noted, the powers conferred on the adjudicator to consider evidence, for example, are very broad so as to enable him or her to carry out his or her function and weigh all the facts relating to the hiring and the termination of employment. The adjudicator is not bound by the strict rules of evidence and may give evidence whatever weight he or she thinks best: Canadian Union of Public Employees (CUPE) v. Ashton, [1994] F.C.J. No. 852 (QL) at para. 5 (F.C.A.); Frezza v. Canadian Pacific Railway, [1999] F.C.J. No. 105 (QL) at paras. 38-40 (F.C.); Canadian Pacific Air Lines Ltd. v. Canadian Air Line Pilots Association, [1993] 3 S.C.R. 724, at paras. 8 and 10. Although the Code's provisions give the adjudicator the power to admit evidence that would otherwise be inadmissible, they cannot allow him or her to exercise jurisdiction and decide the validity of the defendant's complaint where there is no persuasive evidence to that effect: R. v. Barber et al., Ex parte Warehousemen and Miscellaneous Drivers' Union Local 419 (1968), 68 D.L.R. (2d) 682, at 689-690 (Ont. C.A.).

[36]            Moreover, it cannot reasonably be argued that art. 1234 C.C.L.C. is applicable to and limits the powers conferred on the adjudicator under the Code since the effect of this would be to exclude relevant evidence that might have a very important impact on the adjudicator's decision. A refusal by the adjudicator to allow the defendant "to present evidence and make submissions" on such a crucial question as that of the adjudicator's decision to decide whether the defendant's "dismissal" is unjust would be a breach of the rules of natural justice and a refusal by the adjudicator to exercise his or her jurisdiction: Eamor v. Air Canada Ltd. et al. (1999), 179 D.L.R. (4th) 243, at paras. 55-58 (B.C.C.A.) (per Esson J.A.). Consequently, art. 1234 C.C.L.C. cannot have the effect of preventing the adjudicator Fortier from proceeding to exercise the functions conferred on her by the Code. In carrying out those functions she must, on the basis of all the evidence and submissions received, make a determination of her jurisdiction to dispose of the defendant's complaint on the merits: Lee-Shanok v. Banco Nazionale Del Lavoro of Canada, [1987] 3 F.C. 578 (F.C.A.). Accordingly, I am unable to conclude that the adjudicator Fortier made any error in hearing the defendant's oral evidence regarding promises of year-to-year renewal allegedly made to him when he was hired, and dismissing the preliminary objection alleging that she lacked jurisdiction.

[37]            First, as regards the applicable standard of review, the Federal Court of Appeal has held that one of the essential prerequisites for the adjudicator's jurisdiction to hear a complaint of unjust dismissal under s. 240(1) of the Code is for the complainant to prove that he or she was "dismissed", or in other words for the employer to have clearly intended to unilaterally terminate the employment relationship. This Court has several times held that the interpretation given by an adjudicator to prerequisites set out in the Code regarding the form in which a complaint is filed under s. 240(1) is subject to the standard of absence of error: Lemieux, supra, at 87 (and the decisions cited there).

[38]            On the assessment of evidence, it is well-settled law that this Court should only intervene to review an administrative tribunal's findings of fact when it is clear that the adjudicator made an error in interpreting the facts established by the evidence: Gauthier v. Bank of Canada, [2000] F.C.J. No. 1453 (QL), at paras. 27 and 35 (F.C.). In my view the evidence, which was in fact viewed reasonably by the adjudicator Fortier, cannot support her conclusion on this point.

[39]            As the plaintiff noted in its memorandum, a large part of the adjudicator's decision on this point is devoted to erroneous findings of fact which led to the conclusion that the defendant had actually been "dismissed". These inferences drawn from the evidence by the adjudicator depend in large part on the undue emphasis placed by her on the defendant's oral evidence that at the time he was hired he was told he had to sign term contracts, but they would be renewed from year to year. Accordingly, the adjudicator wrote that [TRANSLATION] "at the meeting with Messrs. Leduc and Larin he was told that the hiring procedure was by annual contracts but that the contracts were renewed. That evidence was not disputed" and, subsequently, that [TRANSLATION] "What Messrs. Leduc and Larin said proved to be correct as there were four contract renewals". Although not expressly contradicted by the plaintiff, this oral evidence was the subject of a preliminary objection to the adjudicator's power to accept it on the basis that it contradicted a valid written instrument, which at least indicates that the plaintiff intended to oppose it. Further, there was no corroboration for it and the defendant did not take the trouble to call other managers with a similar status to testify regarding these alleged promises which had also been made to them.

[40]            It is true that the adjudicator Fortier did not fail to take relevant evidence into consideration and made no error of law in this regard. In law an adjudicator must take each of the factors and points in evidence into account and the complainant must persuade the adjudicator on a balance of probabilities that he or she was "dismissed". Although the according of weight to the various points in evidence is left up to the adjudicator, at least at the outset, this Court is justified in intervening if it comes to the conclusion that by according too much weight to some evidence or insufficient weight to certain relevant factors the adjudicator acted unreasonably and made an error: Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 43. In the case at bar, the importance accorded to the defendant's oral evidence vitiated the rest of the adjudicator Fortier's decision, and in my opinion she made a reviewable error when she concluded almost exclusively on the basis of the defendant's evidence that he had been "dismissed".

[41]            The decisions of this Court have held that an adjudicator has jurisdiction to hear a complaint of unjust dismissal once it has been found that the employer's actions indicate that the latter clearly intended to unilaterally terminate the contract of employment between itself and the its employee, whatever the reason: Eskasoni School Board et al. v. MacIsaac et al. (1986), 69 N.R. 315, at 317, para. 11. The adjudicator had to weigh all the facts and determine whether the effect of the employer's action was to terminate the defendant's contract of employment. In the particular circumstances of the case at bar, the adjudicator inevitably had to conclude that the term contracts signed by the defendant were in fact constructive indeterminate contracts and so that the defendant in fact enjoyed a kind of "permanent" employee status. That is what she did, moreover, relying on the theory that term contracts could not exist for regular duties and should exist only for special projects, replacement of employees on leave and duties with a one-time budget. Additionally, this led her to conclude that it was [TRANSLATION] "natural for the complainant to think that he would continue to perform his duties . . . like the other managers". As the plaintiff noted, there is no legal basis for this theory. There is no limitation on the parties' freedom of choice to organize their labour relations as they see fit. It is worth reproducing here a passage from this Court's decision in Sagkeeng, supra,^* at 399-400, which has a great bearing on the case at bar:

An employment policy introduced by an employer does not become a term of the employment contract unless and until it has been clearly agreed to by the employee. Knowledge of the policy by an employee while he or she continues in the same employment without asserting an objection will not necessarily be construed as acquiescence particularly where a denunciation of the policy could invite termination. However . . . if there is clear and unequivocal acceptance of the policy as a term of employment, the policy is binding on the employee.

[42]            How should this rule be applied in the case at bar? Since 1989 the plaintiff has told its employees, including those newly hired or about to be so, that it would be requiring them to sign term contracts with it (lasting 12 months or less, as in the case of the first two contracts signed by the defendant) and that all managerial positions would be contractual and not "permanent". It is clear that in doing this the plaintiff was trying to alter its contractual policy regarding employment. In my view, the adjudicator did not have jurisdiction to decide on the validity of this contractual arrangement entered into between the plaintiff and its employees: her jurisdiction was limited to what is mentioned in the Code, in this case solely to decide whether the termination of the employment relationship between the parties to the dispute could be characterized as a "dismissal", and if so whether that dismissal was unjust: National Bank of Canada, supra, at 736.^** What choices were available to the defendant when he was concluding his first contract with the plaintiff or the last contract, which is the subject of this case? The defendant could accept the terms and conditions of the said contracts, which he in fact did. He could also refuse to accept the plaintiff's policy to have term contracts signed for work requiring [TRANSLATION] "unlimited working hours". If that were the case, negotiations would probably have followed on the validity of the alleged promises made by the plaintiff regarding automatic renewal of the contracts, and in particular their relationship to the following standard clauses contained in all contracts signed by the defendant:

[TRANSLATION]

RENEWAL

Sixty days before expiry of this agreement RADIO-CANADA shall advise ÉRIC F. LEMIEUX in writing whether it intends to renew the present contract. In the event of a renewal proposal, ÉRIC F. LEMIEUX shall respond to this notice in writing within ten working days. In the event of renewal, the parties shall undertake negotiations immediately.

AMENDMENT

No withdrawal or change to any of the conditions of this contract shall be valid unless made in writing and bearing the signature of both parties.

COMPLETE AGREEMENT

This contract contains all the agreements between the parties. No understandings, promises, guarantees or arrangements other than those expressly stipulated therein exist.

[43]            However, in signing the first annual contract and each of the others thereafter over a period of some five years, the defendant consented as clearly as possible to the policy governing the employment offered by the plaintiff. Assuming that this consent was validly given, a term contract of employment containing the aforesaid terms and conditions came into effect between the parties. It is thus clear that the defendant is not in the position of an employee confronted by a contractual policy imposed unilaterally which was not expressly accepted, and it cannot be said that there was anything [TRANSLATION] "morally reprehensible" about the circumstances in which the contracts were concluded. As the plaintiff very properly pointed out, the defendant, a lawyer by training, was never a permanent employee, knew the meaning and scope of the term contract, signed term contracts with full knowledge of the facts without protest year after year, applied for permanent status but did not get it, received notices of intent to renew and still agreed to sign other term contracts on four occasions. The adjudicator therefore made an error in not taking this acceptance into account, attaching undue weight to the defendant's oral evidence and advancing a theory without legal basis, which finally led her to conclude that the defendant had been "dismissed".

[44]            Further, in Mark C. Moore, supra, at 2342, the Quebec Court of Appeal noted that [TRANSLATION] "while one does not deny the existence of an employer or employee's right not to renew a term contract of employment, that right cannot be used by the employer as a pretext to terminate an employee's employment because the latter is exercising a right conferred on him or her by the Act respecting labour standards (s. 122)", or here by the Code. According to the Court of Appeal, therefore, it is necessary [TRANSLATION] "to look at the circumstances of the case and consider whether, but for the existence of negative economic conditions or a just and sufficient cause not to renew, the employee could ordinarily expect here that his or her contract of employment would be renewed". The defendant in the case at bar cannot plead any right protected by a particular provision of public order, and it should be noted that there is no legal entitlement to permanent employment: Sagkeeng, supra,^* at 401. In general, the Quebec Superior Court is reluctant to transform a term contract into which the parties have freely entered into an indeterminate contract unless there is an automatic renewal clause or an obligation on the employer to renew, solely because the term contract was renewed year after year. Mark C. Moore does not conclusively indicate that a term contract successively renewed resulted in an indeterminate contract (see p. 2344 of Superior Court judgment; see also as to this C.A.L.F.A. v. Nationair, supra, at paras. 4-7). In the case at bar the plaintiff maintained that it could not accept its employees having the status of "permanent" employees. The contracts signed by the defendant contained no automatic renewal clause, which in the absence of any indication to the contrary could suggest that the contract was presumed to be renewed annually when it expired. I am not persuaded that the existence of a contract renewal option like that contained in the contracts signed by the defendant is sufficient to maintain the employment relationship from one year to another. There is thus no guarantee of employment so long as the defendant's contract has not been renewed. In spite of all this, the adjudicator Fortier noted that the defendant's contract had been renewed four times and concluded that it was [TRANSLATION] "natural for the complainant to think that he would continue to perform his duties . . . like the other managers". In so doing, the adjudicator converted a term contract into an indeterminate contract.

[45]            In the plaintiff's submission the adjudicator, after accepting the defendant's illegal testimony, considered that the term contracts signed by the defendant were [TRANSLATION] "merely a legal fiction", whereas the evidence in the case at bar clearly showed that first, the contracts were not renewed from year to year, but sometimes for shorter periods, and second, that the renewal procedure laid down in the contract was scrupulously followed each time. It appears to the Court from the adjudicator Fortier's decision that she found that a term contract of employment was [TRANSLATION] "simply a legal fiction" within the broader framework of the theory that once term contracts are not renewed there may be dismissal within the meaning of s. 240(1) of the Code. She did not rule that the term contracts of employment signed by the plaintiff's contract managers, including the defendant, were all without exception [TRANSLATION] "simply a legal fiction". In my opinion, the adjudicator simply found that if the foregoing strict argument is applied, it would mean that in the event of employment termination certain managers ("permanent employees") would be entitled to protection by s. 240 of the Code while others, in this case those who signed term contracts, would not be, and the effect of this would be to create a two-level system of protection which clearly was not intended by Parliament.

[46]            Additionally, as the plaintiff pointed out, the adjudicator Fortier also erred when she assumed that the fact the complainant had two salary increases in two of his five contracts indicated the employer's satisfaction. There was no evidence to that effect. On the contrary, the evidence was that the significant increase received by the complainant for one of this contracts resulted not from an appraisal of his performance but from a reorganization and an organizational change. This erroneous finding of fact was very significant since the adjudicator Fortier made it one of the reasons why it was natural for the plaintiff to believe that his contract would be again renewed.

[47]            In a case where a contract is not renewed the employee has the burden of showing on a balance of probabilities that he or she has been dismissed. The adjudicator had a duty to take into account all the circumstances surrounding the signature and renewal of the employment contracts of the plaintiff's contract managers, and in particular of the defendant, in order to decide whether the two parties to the dispute in fact intended to plan their relationship so that there could be no dismissal in a given case, regardless of the way in which the defendant's employment terminated and the reasons given by the plaintiff: Lemieux, supra, at 84-85. Though not an exhaustive list, the following factors may be relevant: the duration of the employment relationship; the terms of the written contract of employment; the information given to the employee on hiring and layoff policy; representations made to the employee by the employer when the contract was negotiated; and industry practice. In determining whether the adjudicator Fortier, appointed to hear the defendant's dismissal complaint, correctly concluded that there was such a dismissal and so made no reviewable error in that respect, emphasis should not be placed both on the reasoning which led the adjudicator to her decision and on the final result attained. In the case at bar, after considering all the circumstances and the evidence presented, I feel that the adjudicator erred and exceeded her jurisdiction when she concluded on the basis of the evidence before her that the non-renewal of the defendant's contract amounted to a constructive "dismissal", and her decision is therefore subject to review. As the plaintiff's decision not to renew the defendant Lemieux's last contract was made in accordance with the latter's provisions and does not constitute "dismissal" within the meaning of s. 240(1) of the Code, the adjudicator did not have jurisdiction to hear the unjust dismissal complaint under s. 242 of the Code.

[48]            For the foregoing reasons, I allow the application for judicial review and set aside the decision by the adjudicator Diane Fortier.

OTTAWA, Ontario

November 29, 2001

Certified true translation

Suzanne M. Gauthier, LL.L. Trad. a.

                                                    FEDERAL COURT OF CANADA

                                                                 TRIAL DIVISION

                              NAMES OF COUNSEL AND SOLICITORS OF RECORD

FILE:                                                     T-231-00

STYLE OF CAUSE:                           Société Radio-Canada v. Éric F. Lemieux

PLACE OF HEARING:                     Montréal, Quebec

DATE OF HEARING:                       November 6, 2001

REASONS FOR ORDER BY:        Rouleau J.

DATED:                                                November 29, 2001

APPEARANCES:

Pierre Flageolle                                                                  FOR THE PLAINTIFF

David Rhéaume                                                                 FOR THE DEFENDANT

SOLICITORS OF RECORD:

Borden, Ladner, Gervais S.R.I.                                        FOR THE PLAINTIFF

Montréal, Quebec

Grégoire, Rhéaume, Payette                                              FOR THE DEFENDANT

Granby, Quebec