Date: 20120618
Docket: T-686-11
Citation: 2012 FC 772
Ottawa, Ontario, June 18,
2012
PRESENT: The Honourable Mr. Justice Near
BETWEEN:
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COUCHICHING FIRST NATION
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Applicant
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and
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THE ATTORNEY GENERAL OF CANADA (MINISTER OF LABOUR)
AND AIMEE ADAMS
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Respondents
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REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review of a decision issued on March 12, 2011 of
an Adjudicator appointed under section 242 of the Canada Labour Code,
RSC, c L-2 (CLC). The Adjudicator found that the Respondent, Aimee Adams, was
unjustly dismissed from her employment because the Personnel Policy of the
Applicant, Couchiching First Nation (CFN), provided a legal right to a
pre-termination hearing before Chief and Council.
[2]
For
the reasons set out below, I am allowing the application.
[3]
Given
my conclusion with respect to the main application it is unnecessary to deal
with the Applicant’s Motion to Strike the Respondent’s Record. It should be
noted, however, that the Respondent’s record was deficient in many respects.
I. Preliminary
Matters
[4]
Due
to technical difficulties at the hearing on February 13, 2012, the Respondent
missed the initial remarks of the Applicant. By way of a Direction from the Chief
Justice of this Court, the hearing was re-opened on March 28, 2012 for the
Respondent to make further submissions on the relevant portion of the
transcript. At that time, the Respondent requested an adjournment citing
additional time needed to prepare and gather cases. This request was denied as
the cases referred to were considered wholly irrelevant to the matter at hand.
[5]
Mr.
Morrisseau, on behalf of his wife as the Respondent, also asked that I recuse
myself from these proceedings. I invited both parties to make submissions in
this regard and indicated my intention to reserve on that motion. I am now
providing the following written reasons in response.
[6]
The
Respondent submits that it was unfair for the trial to start before they were
present, even though this was a technical issue. They object to comments made
regarding their lateness. According to the Respondent, the decision was made
before they arrived and there was no chance to give submissions and be fully
heard. It was stated “we would like another shot at it with another Judge.”
[7]
The
Applicant opposes the motion for recusal insisting that there was no material
prejudice to the Respondent from the technical difficulties. They were given
various opportunities to make submissions, including the provision of two
recesses. The issues raised had been put to the Respondent several times prior
to the hearing. The nature of the process and what had occurred before the
Respondent arrived was fully explained to them.
[8]
Based
on these submissions, I am prepared to dismiss the Respondent’s motion for
recusal. I went out of my way to ensure the Respondent’s were given a full
opportunity to be heard on the main application. Unaware of the technical
difficulties, I stopped the proceedings to allow the Respondent to join us via
video-conference. Thereafter, I summarized where we stood up until that point.
I also clarified the three issues raised by the Applicant and gave the
Respondent an opportunity to consider its position and make submissions.
[9]
On
being made aware of the technical issues following the hearing, the proceedings
were reopened by the Court to accommodate the Respondent and allow further
submissions on the matters discussed prior to their joining the hearing as
available in the transcript. The Respondent did not make substantive
submissions, but again asked for additional time to prepare.
[10]
The
Respondent was accorded procedural fairness and given ample opportunity to be
heard on the issues raised by the Applicant. I also see no basis for
concluding that an informed person, viewing the matter realistically and
practically, and having thought the matter through, would conclude that I
demonstrated a reasonable apprehension of bias in allowing the Respondent to
make full submissions or in my consideration of the case presented by both
parties (see for example R v RDS, [1997] 3 S.C.R. 484, [1997] SCJ
no 84). The Respondent has provided no concrete evidence in this regard.
[11]
With
these preliminary matters resolved, I am prepared to address the legal issues
raised by this application for judicial review.
II. Background
to Main Application
[12]
The
Respondent was employed as a Personal Support Worker with the CFN Home and
Community Care Program providing care to elders. CFN terminated her employment
in March 2007 due to admissions relating to the theft and attempted
replacement of prescription narcotic medications of an elder patient.
[13]
On
hearing the Respondent’s admissions, the Band Manager, Mr. Morrisseau, first
suspended her without pay. He also told her that he would convey the
admissions to Chief and Council at the next regularly scheduled meeting for a
final decision regarding her employment status. A hearing was ultimately held
in camera and the decision made by the Chief and Council to dismiss the
Respondent from her position.
[14]
Following
this termination, the Respondent brought an unjust dismissal complaint against
CFN and requested the appointment of a labour Adjudicator.
[15]
The
Adjudicator held a bifurcated CLC hearing with phase I devoted to the
determination of liability as to whether the Respondent was denied a legal
right to a hearing before Chief and Council prior to her termination. A
decision was rendered in the Respondent’s favour on March 16, 2011.
[16]
Justice
Paul Crampton granted a stay to the Applicant in an order dated May 26, 2011 of
phase II of the hearing in the assessment of damages for unjust dismissal
pending the outcome of this application.
III. Adjudicator’s
Decision
[17]
According
to the Adjudicator, the critical issue was that the Respondent never had an
opportunity to state her case to the Chief and Council, a matter of procedural
fairness. It rejected the Applicant’s submissions based on previous
jurisprudence that he had to address the cause for dismissal.
[18]
Considering
the CFN Personnel Policy related to suspension and dismissal binding on all
employees along with the actions of CFN, the Adjudicator stated:
Chief and Council, however, took the
facts as given by Mr. Morrisseau, allegedly supported by a “confidential”
memorandum from a CFN employee, and determined to impose the discipline of
discharge. In that sense, I believe Chief and Council, on the facts as given
by Mr. Morrisseau, acted beyond their authority within the meaning of §11.2(c)
of the CFN Personnel Policy. Within the meaning of that section the Complainant
should have been notified of the in camera meeting and have been given the
opportunity to speak.
[Emphasis in original]
[19]
The
Adjudicator concluded:
[…] Chief and Council never had the
opportunity to hear from Ms. Adams her “side of the story” and, in that
regard, whether any claimed drug use existed and, if so, how she was coping
with that problem (including its origin and its relationship to her job
function as a personal care worker).
In listing these points, I emphasize that
in no way am I commenting on the truth of what the Complainant has alleged.
Rather, CFN failed to apply its own rules for employee discipline as to
fundamental procedural fairness.
I point out again the insistent position
of CFN Counsel that CFN had afforded the Complainant not only the opportunity
but the invitation to appear before Chief and Council to state her case. (See,
II(B), supra.) It was an argument which the facts presented in this
hearing simply would not support. But, it evidenced a position relative to an
interpretation of CFN Personnel Policy that was significant. It was a
position that stated that CFN saw it as a right for an employee faced with a
serious disciplinary charge to come before Chief and Council at its in camera meeting
to decide that person’s employment status, and to state her case.
The result must be that, on the facts,
the decision by Chief and Council to dismiss the Complainant must be set aside.
[Emphasis in original]
IV. Issues
[20]
This
application raises the following issues:
(a) Did the Adjudicator apply the proper
legal test for a finding of unjust dismissal under the CLC?
(b) Did
the Adjudicator fail to grant the Applicant the right to make full submissions
on the matter of reasons for termination and other matters material to the
complaint?
(c) Did
the Adjudicator breach the principles of natural justice by failing to allow
for a hearing on the reasons for termination?
(d) Did
CFN Personnel Policy grant Ms Adams the legal right to a pre-termination hearing
before Chief and Council in the circumstances of admissions of theft and dishonesty,
or in any circumstances?
V. Standard
of Review
[21]
The
correctness standard is applicable to all issues raised by the Applicant. The
use of the proper legal test is a question of law (Dunsmuir v New
Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190 at para 50). The right to make full submissions
and be heard on the reasons for termination constitute matters of procedural
fairness (Canada (Minister of
Citizenship and Immigration) v Khosa, 2009 SCC 12, 2009
CarswellNat 434 at para 43). Finally, assessing CFN’s Personnel Policy is
sufficiently similar to the interpretation of a Band Constitution where this
Court has adopted the standard of correctness in the past (see Ermineskin Cree
Nation v Minde, 2008 FCA 52, [2008] FCJ no 203 at para 32).
VI. Analysis
A. Proper
Legal Test for Unjust Dismissal
[22]
The
Applicant submits that the Adjudicator erred in his application of the proper
legal test for unjust dismissal by refusing to hear evidence and make a
determination as to the cause for termination.
[23]
Based
on my review of the relevant authorities, I am inclined to agree with this
position. While procedural deficiencies in the handling of the Respondent’s
termination by CFN were considered significant, the Adjudicator was still
required to consider the cause for her termination at the outset.
[24]
This
was stressed by this Court in Bell Canada v Halle, [1989] FCJ
no 555, 99 NR 149 in discussing the appropriate test to be applied by an Adjudicator:
To begin with, I would say
that the respondent's dismissal, assuming it to be otherwise justified, cannot
be regarded as unjust solely because the applicant did not follow the dismissal
procedure described in its internal directives to the letter. So far as I am
aware, this procedure is not a condition of the employment contracts of Bell Canada employees. The applicant can
therefore depart from it without giving rise to any objection, unless the
departure causes an injustice. Contrary to what the adjudicator thought,
therefore, it does not matter that the applicant did not follow the procedure
described in its directives before dismissing the respondent. The question
presented to him was whether the respondent had been unjustly dismissed. In
order to answer this, he first had to consider the nature, sufficiency and
merits of the reasons for dismissal. Accordingly, in the case at bar the
adjudicator should have considered whether the applicant had any basis for
complaint about the respondent's performance and whether this provided grounds
for dismissal. [Footnote: Certain passages of the adjudicator's decision
suggest that it may be worth noting that the adjudicator should have answered
this question by taking account of the respondent's entire record since she was
hired (a chronic problem and an accidental problem are not treated in the same
way) and also by looking at the special position an employer is in when it
comes to appraising his employees' competence and performance.] If the
adjudicator had answered these questions in the affirmative, he should then
have considered whether the procedure leading to dismissal of the employee was
fair. However, his duty was then to make a judgment on whether the dismissal
procedure used by the employer, taken by itself, was fair or unfair regardless
of the procedure described in the directives; and if the adjudicator concluded
that the procedure used in the case at bar was unfair in itself, and that
because of this the dismissal had been unfair, he should then in determining
the compensation to which the respondent was entitled as a consequence of the
dismissal have taken into account the fact that, though premature, the
dismissal was not entirely groundless.
[25]
More
recently, Justice Elizabeth Heneghan in Carry the Kettle First Nation v
O’Watch, 2007 FC 874, [2007] FCJ no 1127 at paras 63-64 found an error of
law in failing to apply the correct legal test where an Adjudicator addressed
the manner in which the termination was handled and its consequences but
neglected the issue of cause for dismissal.
[26]
I
must therefore find that the Adjudicator adopted the incorrect legal test by
failing to consider the cause for termination and directing his attention
solely to the procedures followed by CFN in the Respondent’s dismissal.
B. Right
to Make Full Submissions on Reasons for Termination
[27]
I
also agree with the Applicant’s contention that the Adjudicator breached
procedural fairness in failing to allow evidence to be submitted and
submissions made regarding the reasons for the Respondent’s termination.
[28]
Subsection
242(2)(b) of the CLC makes clear that while Adjudicators can establish their
own procedures they must “give full opportunity to the parties to the complaint
to present evidence and make submissions” and “consider the information
relating to the complaint.” This procedural fairness requirement was
highlighted in Jennings v Shaw Cablesystems Ltd, 2003 FC
1206, [2003] FCJ no 1539 at paras 15, 21.
[29]
The
Applicant was not given the full opportunity to present evidence and make
submissions as to the reasons for the termination, a critical aspect of the
complaint. As a result, the Adjudicator did not consider all of the pertinent
information in rendering his decision. This resulted in a breach of procedural
fairness that on its own warrants intervention by this Court.
C. Natural
Justice and Hearing on Reasons for Termination
[30]
Similarly,
natural justice or procedural fairness was violated by the Adjudicator’s
related decision not to allow any hearing on the cause for termination. He
focused solely on the procedures followed and the Respondent’s right to present
her side of the story, but seemingly ignored the circumstances that gave rise
to disciplinary action on the part of the Applicant.
[31]
In
Université du Québec à Trois-Rivières v Laroque, 101 DLR (4th) 491,
[1993] SCJ no 23, the Supreme Court found a violation of the right to be
heard resulted when a grievance arbitrator rejected relevant evidence.
[32]
The
same principle applies in this instance where the Applicant was denied the
opportunity to be heard on evidence related to the reasons for the Respondent’s
termination. Having heard all evidence on crucial aspects of the complaint, it
may have been appropriate for the Adjudicator to ultimately focus his attention
on procedural concerns. That is, however, not what occurred in this instance. Instead,
the Adjudicator refused to consider the reasons underlying termination and
confined the hearing to procedural matters. This prevented all aspects of the
complaint from being fully assessed.
D. CFN
Personnel Policy and Legal Right to Pre-Termination Hearing
[33]
Given
my findings that the Adjudicator applied the incorrect legal test and breached
procedural fairness in failing to hear the issue of the cause for dismissal, it
is unnecessary for me to deal with the correct interpretation of the CFN
Personnel Policy. This matter must now be addressed by a new Adjudicator who
will consider not only the procedure followed but also the reasons for
termination by the Applicant. I do recognize, however, that the interpretation
of this Personnel Policy and the obligations flowing from it will likely
continue to play a significant role in any reconsideration.
VII. Conclusion
[34]
As
demonstrated, by failing to provide an opportunity to address the issue of the
cause for termination at the hearing and consequently in his decision, the
Adjudicator breached natural justice and procedural fairness owed to the
Applicant and disregarded the proper legal test for unjust dismissal.
[35]
Accordingly,
this application for judicial review is allowed. The matter is remitted back
to a different Adjudicator for re-determination.
[36]
Costs
will be awarded to the Applicant in the nominal amount of $100.00.
JUDGMENT
THIS COURT’S
JUDGMENT is that this application for judicial
review is allowed. The matter is remitted back to a different Adjudicator for
re-determination. Costs will be awarded to the Applicant in the nominal amount
of $100.00.
“D.G.
Near”
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