Lamontagne v. 2747-7173 Québec Inc., docket T-303-00

                                                                                                                               Date: 20001215

                                                                                                                            Docket: T-303-00

BETWEEN:

                                                      RICHARD LAMONTAGNE

                                                                                                                                              Plaintiff

                                                                        - and -

                                                       2747-7173 QUÉBEC INC.

                                                                                                                                        Defendant

                                           REASONS FOR ORDER AND ORDER

BLAIS J.

[1]         This is an application for judicial review of a decision on January 6, 1999 by Francis Léger, an adjudicator appointed under the Canada Labour Code, dismissing the complaint of unjust dismissal filed by the plaintiff pursuant to Part III of the Canada Labour Code, R.S.C. 1985, c. L-2.

FACTS

[2]         The plaintiff, a long-distance Canada-U.S. trucker for 13 years, was employed by the defendant as a truck driver from February 11, 1997 to July 6, 1998, that is for a period of some 17 months.

[3]         Shortly before completing his first year of service with the defendant, the plaintiff was first dismissed by his supervisor for refusing to work. However, Richard Climan, the owner of the business, considering that the plaintiff was a good driver and that the incident deserved to be overlooked, reversed the decision and reinstated the plaintiff. The plaintiff was allegedly even given a rise in salary as of April 15, 1998.

[4]         Nonetheless, the situation became progressively worse from April 9, 1998 onwards. On April 9, 1998 the defendant received a complaint from a customer telling it that the plaintiff had tried to obtain compensation directly from the customer for certain expenses incurred when he crossed the U.S. border. The plaintiff was blamed for this incident and suspended for a few days.

[5]         On April 29, 1998 the defendant informed the plaintiff by letter that customers had told the defendant that the plaintiff [TRANSLATION] "came to the premises wearing an undershirt that was not clean". The plaintiff was informed by letter that he [TRANSLATION] "should always be professionally dressed, namely in trousers and a clean shirt".

[6]         On May 6, 1998 the plaintiff received a disciplinary notice for signing the inspection report before the end of the day.

[7]         On May 28, 1998, when he was in U.S. territory, the plaintiff refused to do transportation because he regarded the trip as domestic work and in his opinion, under U.S. law such transportation is illegal.

[8]         On June 5, 1998 the plaintiff was informed by letter that he had been suspended for two weeks because of his conduct, which had continued to get worse after the suspension of April 9, 1998.

[9]         On June 9, 1998 the plaintiff received a disciplinary notice regarding the cleanliness of his truck.

[10]       On June 30, 1998 the plaintiff damaged a trailer in a coupling manoeuvre.

[11]       On July 2, 1998 the plaintiff was informed by letter that he had been dismissed.

ADJUDICATOR'S DECISION

[12]       The adjudicator noted that the plaintiff had made it his mission to reorganize the defendant's management methods and the defendant's alleged unlawful practices. The adjudicator observed, however, that none of the plaintiff's attempts to expose these alleged unlawful or abusive practices by the defendant had disclosed any unlawful deficiency, abuse or action in the administration or management of the defendant's business affairs.

[13]       The adjudicator concluded that the defendant had discharged his burden of establishing the various incidents which led to the plaintiff's dismissal. However, with regard to the various incidents the adjudicator concluded that some of the charges made against the plaintiff were insubstantial and inconsequential. The incident of June 30, when damage was caused to the trailer, was regarded by the adjudicator as a normal occurrence in the industry. Further, the places where the plaintiff allegedly damaged the trailer had already been damaged on May 30 and there was no way of determining the proportion of damage that might be attributed to the plaintiff. In any case, the damage for which the defendant held the plaintiff responsible was not so significant as to demonstrate any lack of care on the part of the plaintiff.

[14]       The adjudicator nonetheless noted the plaintiff's systematic refusal to accept his function as a driver and be subject to the practices and instructions recommended by the defendant. The adjudicator noted that the plaintiff constantly sought to usurp the defendant's authority and to question the decisions and the validity of the defendant's policies and guidelines.

[15]       Although the adjudicator acknowledged that the plaintiff was sincere in his efforts and actions to establish the validity of his beliefs, the adjudicator also found that the plaintiff's actions had helped to strengthen the position of the defendant, which considered that the trust necessary to maintaining a sound employer-employee relationship had been irremediably breached.

[16]       The adjudicator concluded that the defendant had acted properly in imposing progressive disciplinary measures and in trying to give the plaintiff every opportunity to correct his approach.

[17]       The actions committed by the plaintiff, far from being minor, seriously affected the defendant's operations, and it no longer believed that the plaintiff could improve. For example, the adjudicator noted that in itself wearing an undershirt was a negligible occurrence. However, when the plaintiff was encouraged to cease this practice he undertook to obtain the opinion of customers so as to show that the dress code imposed by his employer had no effect on maintaining their business relations.

[18]       Equally, when the plaintiff refused to undertake transport, the defendant decided to check with its U.S. counsel to be sure that its requirements were legitimate. That was not enough to persuade the plaintiff, who remained sincerely convinced that there was a conspiracy by the employer to force him to contravene Canadian and U.S. legislation.

[19]       In the adjudicator's opinion, the plaintiff's attitude in systematically refusing legitimate instructions constituted significant insubordination, which is a direct challenge to the employer's management rights. According to the adjudicator, when an employee is given instructions the validity of which he questions, he must first obey and then raise the question in an orderly framework and consistent with established rules, unless he is placed in a position of imminent danger.

[20]       Further, the fact that the defendant had no written policy on the wearing of undershirts and that the wearing of an undershirt was accepted in many situations, including those of customers, did not in any way deprive the employer of the right to choose its methods and procedures by itself. If there is no abuse or discrimination, an employee must comply.

[21]       The plaintiff's incongruous position and the persistence and tenacity with which he tilted at windmills in order to trap the employer and its representatives convinced the adjudicator that the employer had taken its disciplinary measures and its decision to dismiss the plaintiff in good faith. The plaintiff's complaint was dismissed.

PLAINTIFF'S ARGUMENTS

[22]       The plaintiff alleged that the adjudicator made a decision based on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it. In the plaintiff's submission, the decision was contrary to the testimony and the written evidence.

[23]       In this connection, the plaintiff stated that the adjudicator preferred the testimony of the defendant's representative to the written testimony of witnesses who were better informed about the subject in question than the defendant's representative. According to the plaintiff, the adjudicator accepted the story of the defendant's representative without the latter being able to prove his allegations by tangible evidence.

[24]       The plaintiff argued that the adjudicator also failed to take into account relevant evidence such as that connected with the alleged unlawful practices of the defendant, the evidence of customers regarding the wearing of an undershirt and the incident of April 9, 1998, the fact that the plaintiff was not dismissed on January 13, 1998 and the fact that he never received the promised salary increase. Further, he alleged that the adjudicator misinterpreted the plaintiff's testimony.

[25]       The plaintiff argued that the adjudicator made no distinction between the statements by the defendant's representative at the hearing and the defendant's real motivation in suspending him.

[26]       He argued that the adjudicator also erred in confusing the employer's authority with the legal authority to which the employer was subject.

[27]       The plaintiff maintained that the adjudicator erred by agreeing that the defendant had complied with the principles of progressive discipline, since he did not take the trouble to look objectively at the truth of the incidents leading to the dismissal.

DEFENDANT'S ARGUMENTS

[28]       The defendant mentioned that since the adjudicator's jurisdiction was not at issue in the case at bar, the Court should consider whether he made one or more patently unreasonable errors.

[29]       The defendant contended that the adjudicator's conclusion was based on the evidence submitted and, in light of the events and the plaintiff's conduct, the defendant had no alternative but to proceed to dismiss the plaintiff.

POINT AT ISSUE

[30]       Does the adjudicator's decision contain one or more patently unreasonable errors justifying intervention by this Court?

ANALYSIS

Standard of review

[31]       For decisions rendered by an adjudicator appointed pursuant to s. 242(1) of the Canada Labour Code, the standard of review is that of correctness when the question concerns the definition of the adjudicator's jurisdiction. However, if the question is one of fact and law which is within the tribunal's powers, the standard of review then is that of the patently unreasonable decision.

[32]       In Maliseet Nation At Tobique v. Bear, [1999] F.C.J. No. 1846 (F.C.T.D.), Pinard J. considered the question of the standard of review of a decision by an adjudicator appointed pursuant to s. 242(1) of the Canada Labour Code. At para. 21, he indicated:

In considering the applicant's second argument that the Adjudicator's findings were not supported in fact or law, I must adopt a standard of review corresponding to the functional and pragmatic approach which has been affirmed by the Supreme Court of Canada in several recent cases (see, for example, Veluppilai Pushpanathan v. Canada (M.C.I.) et al., [1998] 1 S.C.R. 982 and Canada (Director of Investigation and Research) v. Southam Inc. et al., [1997] 1 S.C.R. 748).

In the case at bar, considering the privative clause contained in subsection 243(1) of the Code; considering that the Adjudicator acted within the limits of the jurisdiction conferred upon him by the same Code; considering that the administrative structure imposed by the Code creates an effective mechanism to achieve the goals of managing the interests of employers and employees with the aim of effecting solutions which concurrently balance the advantages and disadvantages of the parties involved; considering that Adjudicator McGinley possesses a high degree of expertise in the matters raised by this application as he is charged with resolving disputes between employers and employees on a continual basis and has developed a specialized knowledge in this area and considering that with respect to the merits of the complaint, the issue is primarily based on factual findings; I conclude that a high degree of deference must be accorded to the decision of the Adjudicator and that the standard of patent unreasonableness must be applied.

[33]       In Gauthier v. Bank of Canada, [2000] F.C.J. No. 1453 (F.C.), Lemieux J. came to the same conclusion. After referring to Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, Lemieux J. concluded at para. 28:

As we can see, Parliament has in fact, in section 243 of the Code, provided a privative clause covering the decisions of an adjudicator in the context of a complaint filed under section 240. Thus it goes without saying that this Court, in the context of judicial review of such decisions, must act with great circumspection and deference.

Furthermore, I share the opinion of Heald J.A. in Aziz v. Telesat Canada (1995), 104 F.T.R. 267 (F.C.A.), who, following an analysis of the relevant case law, correctly summarized the applicable standards of review in the case of decisions rendered by an adjudicator:

To summarize, the relevant jurisprudence clearly establishes that the standard of review relating to errors of fact and law is the high or strict test of patent unreasonableness. It also established that the lower standard of correctness applies where the errors relate to provisions defining the jurisdiction of an adjudicator.

[34]       In the case at bar, as the defendant noted, the plaintiff is not raising any questions about the jurisdiction of the adjudicator but rather is raising questions of fact and law which were within the adjudicator's jurisdiction. Based on the case law and the facts of the case at bar, therefore, I conclude that the standard of review is that of the patently unreasonable decision.

[35]       The test of the patently unreasonable decision was defined in Caimaw v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983 as follows:

Where, as here, an administrative tribunal is protected by a privative clause, this Court has indicated that it will only review the decision of the Board if that Board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function; see [1979] 2 S.C.R. 227">Canadian Union of Public Employees, Local 963 v. New Brunswick Liquor Corp., [1979] 2 S.C.R. 227. The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" (p. 237). The test for review is a "severe test"; see [1984] 2 S.C.R. 476">Blanchard v. Control Data Canada Ltd., [1984] 2 S.C.R. 476, at p. 493. This restricted scope of review requires the courts to adopt a posture of defence to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make that result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. The emphasis should be not so much on what the tribunal has arrived at, but on how the tribunal arrived at that result.

[36]       Did the adjudicator's decision contain one or more patently unreasonable errors justifying intervention by this Court?

[37]       The plaintiff argued that the adjudicator's decision was contrary to the testimony and written evidence admitted at the hearing. I cannot accept this argument by the plaintiff.

[38]       The adjudicator concluded that the defendant had established on a balance of probabilities the various events leading up to the plaintiff's dismissal. I cannot conclude that the adjudicator made a patently unreasonable error in assessing the evidence in the record.

[39]       As was indicated in Sedpex, Inc. v. Canada (Adjudicator appointed under the Canada Labour Code), [1989] 2 F.C. 289 (F.C.T.D.), per Strayer J.:

. . . As noted earlier, I am limited in the extent to which I can substitute my view of the facts for that of the adjudicator. He heard the only witness to be called as yet, Mr. Bryant, who was District Manager of Sedpex, Inc. during the period in question. The adjudicator heard the examination and cross-examination of Mr. Bryant, and his explanations with respect to the exhibits. I have heard none of these nor do I have a transcript of his evidence. I am unable to say that the adjudicator had no evidence or no substantial evidence upon which he could conclude that the reasons for the termination of Deveraux's employment was the preference of Sedpex, Inc. to employ Langevin instead. The adjudicator correctly held - and the applicant does not dispute this - that the burden was on Sedpex, Inc. to show that the reason for the lay-off was lack of work. It was certainly open to the adjudicator to find that this burden of proof had not been met.

[40]       Also, Décary J.A. of the Federal Court of Appeal reviewed the applicable case law and defined the test for the patently unreasonable nature of a decision:

The patently unreasonable test is a severe one . . . a very strict one . . . It sets a high standard of review: it is not enough that the decision of the tribunal is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational, that is to say evidently not in accordance with reason . . . or not sustainable on any reasonable interpretation of the facts or of the law . . . The severity of the test requires the courts to adopt a posture of deference to the decision of the tribunal . . . Deference is particularly suited in labour disputes . . . although the degree of deference will vary depending on whether the tribunal falls towards the lower or the upper end of the spectrum of those administrative tribunals charged with policy deliberations to which the courts should defer . . .^[1]

[41]       In the case at bar, the adjudicator drew his conclusions on his assessment of the evidence presented and I cannot conclude that there was any error by him.

[42]       The adjudicator concluded that the relationship between the plaintiff and the defendant had been irremediably breached by the plaintiff's actions. This conclusion by the adjudicator is supported by the evidence and is reasonable in view of the circumstances of the case. The evidence showed that the plaintiff undertook a campaign against his employer to uncover alleged unlawful practices of the employer. The evidence also showed that the plaintiff's attitude had not changed since that time and that he still continued his fight against his employer and did not accept the latter's authority. The plaintiff's attitude towards his employer persuaded the adjudicator that the employment relationship had been breached. This conclusion by the adjudicator cannot be described as patently unreasonable.

[43]       The adjudicator also assessed the evidence in accordance with the rules on progressive disciplinary action and concluded that the defendant had observed those rules. The adjudicator did not err in his application of those rules and his conclusion is reasonable and based on the evidence.

[44]       The plaintiff would have liked to file additional evidence in support of his arguments. However, the Court could not accept it since the arbitral decision in question had to be assessed in accordance with the evidence filed at that time.

[45]       Consequently, the adjudicator made no patently unreasonable error and the intervention of the Court is not necessary. The application for judicial review is therefore dismissed.

Pierre Blais                                 

Judge

OTTAWA, ONTARIO

December 15, 2000

Certified true translation

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

                                                 FEDERAL COURT OF CANADA

                                                                TRIAL DIVISION

                            NAMES OF COUNSEL AND SOLICITORS OF RECORD

COURT No.:                                                   T-303-0

STYLE OF CAUSE:                          RICHARD LAMONTAGNE v.

2747-7173 QUÉBEC INC.

PLACE OF HEARING:                                  Montréal, Quebec

DATE OF HEARING:                                    December 13, 2000

REASONS FOR ORDER AND ORDER BY:         BLAIS J.

DATED:                                                          December 15, 2000

APPEARANCES:

Richard Lamontagne                                                                         Plaintiff

(for himself)

Louise Baillargeon                                                                             for the defendant

SOLICITORS OF RECORD:

Robinson, Sheppard, Shapiro                                                          for the defendant

Montréal, Quebec