Docket: T-1987-11
Citation: 2012 FC 804
Toronto, Ontario, June 21,
2012
PRESENT: The Honourable Mr. Justice Campbell
BETWEEN:
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WESTERN GRAIN BY-PRODUCTS
STORAGE LTD.
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Applicant
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and
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PETER DONALDSON
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Respondent
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REASONS FOR ORDER AND
ORDER
[1]
The
present Application concerns a decision by an Adjudicator acting under the
authority of section 240 of the Canada Labour Code, Canada Labour
Code, RSC 1985, c L-2. The central question was whether the Respondent, Mr.
Donaldson, was unjustly dismissed from his employment by the Applicant
corporation (Western Grain) operating as a repository for grains out of Thunder Bay, Ontario. Counsel for
Western Grain argues that the Adjudicator’s decision was rendered in reviewable
error on the primary ground that the Adjudicator’s conclusion that Mr.
Donaldson was constructively dismissed from his employment is erroneous. For
the reasons that follow, I agree with this argument.
[2]
The
Adjudication arose from a fact scenario in which a request was made by Western
Grain’s principal, Mr. Maurice Mailhot, of Mr. Donaldson arising from the fact
that Mr. Donaldson left work on May 9, 2007 and did not return until October
25, 2007, some five and a half months later. Upon return to work Mr. Donaldson
presented the Applicant with a doctor’s note, dated October 24, 2007, which
stated the following: “Mr. Donaldson is now capable of returning to his job and
employment at Western Grain” (Application Record, Volume 3, Exhibit 6). In his
affidavit filed in the present Application, Mr. Mailhot, attested to having the
following conversation with Mr. Donaldson:
[…] I asked Mr. Donaldson to
get a better doctor’s note as to his fitness level in relation to his duties
and the work environment before I could allow him to return to work. Mr.
Donaldson indicated that he would get a better note and I anticipated that once
he provided the note that he could return to work.
(Application Record, Volume 1,
Tab 6, para. 15)
In his affidavit filed in the present Application,
Mr. Donaldson attests that “Mr. Mailhot indicated that he wanted more
information but he did not challenge the note until the 4th day of
January, 2008”, and also offers the following opinion:
There was no need for me to
have brought a doctor’s note to be called back to work. Nor was there any
reason for Mr. Mailhot to ask for more medical information.
(Application Record, Volume 5,
Exhibit G, para. 5)
[3]
An
important intervening feature of the fact scenario is that, shortly after
leaving work on May 7th, on June 22, 2007, Mr. Donaldson filed a
Workplace Safety and Insurance Board (WSIB) compensation claim on the report
that that he had experienced “abdominal pain and possible toxic allergic
reaction” attributed to exposure at the workplace (Application Record, Volume
3, Tab 5, p. 784). The WSIB’s response to Mr. Donaldson’s claim came in a
letter dated October 17, 2007 in which the WSIB rejected his claim on a finding
that “an occupational disease ha[d] not been established” (Application Record,
Volume 3, Tab 5, p. 785). The Applicant received notice of this rejection on
October 23, 2007. Two days later, Mr. Donaldson returned to work with his
doctor’s note and the conversation with Mr. Mailhot ensued.
[4]
On
November 16, 2007, Mr. Donaldson filed a complaint with the Human Resources and
Social Development Canada (HRSDC) Labour Branch in which he stated that his
reason for filing was because he “was not allowed to go back to work with a
dr.’s note, I feel unjust dismissal” (Application Record, Volume 3, Tab 9).
[5]
On
two occasions, specific detail was put to Mr. Mailhot’s request of October 25,
2007. In response to a November 26, 2007 inquiry from HRSDC about the complaint,
Mr. Mailhot provided the following reply on December 12, 2007:
Peter Donaldson left work ill
during the day on May 9/07. He did not return.
On June 28/07 we received an
accident claim regarding Peter Donaldson from WSIB for a toxic allergic
reaction due to exposure at the work place.
Mr. Donaldson stopped at the
work place for coffee with the crew in July and August and was asked when he
anticipated returning to work. His answer was my doctor says I cannot return to
work. I’m not allowed in the building.
On October 23/07 we received a
letter from WSIB dismissing Mr. Donaldson’s claim.
On October 25/07 Peter
Donaldson presented me with a hand written note dated Oct.24/07 suggesting he
was capable of returning to his job. The time, working and handwriting was
suspicious and at that time I requested Mr. Donaldson obtain a letter from the
doctor who treated him on his long term claim. The letter would have to
indicate that Mr. Donaldson was fit to resume normal duties at Western Grain.
On November 9/07 our shipping
season was reduced to very occasional work and Mr. Donaldson, along with four
other employees were sent lay off notices.
It is our position that Mr.
Donaldson is on seasonal layoff until deliveries of rail cars resume in
February or March.
(Application Record, Volume 3,
Tab 11)
By letter dated March 5, 2008, Mr. Mailhot
made the following formal request to Mr. Donaldson:
Dear Peter,
Just a reminder that we still
have not received the following previously requested information from you:
1. we require that you provide
us with a written doctors [sic] certificate, certifying that you were unable to
work for the 25 week period from May 9/07 until October 25/07.
2. the reason you have been
unable to report your accident on June 1/07 to your supervisor – WSIB claim
number 24678476.
3. a current doctor’s certificate
verifying that you are fit and able to resume normal work duties.
You have 15 days from receipt
of this letter to reply.
(Application Record, Volume 3,
Tab 12)
[6]
On
the face of this record, it is clear that the Mr. Donaldson’s complaint, which
resulted in the Arbitration under review, crystalized in the conversation
between Mr. Mailhot and Mr. Donaldson on October 25, 2007. While Mr. Donaldson
received a seasonal lay-off notice on November 9, 2007, the complaint filed did
not relate to this fact.
[7]
Going
into the arbitration under consideration, Mr. Mailhot’s position with respect
to the request made of Mr. Donaldson was as follows:
I did not terminate the
employment of Mr. Donaldson on the basis of the WSIB claim or for any other
reason, but only requested a better medical note that he was fit to resume his
duties given that WSIB found he did not have a work-related illness due to
grain or otherwise. […]
(Application Record, Volume 1,
Tab 6, para. 59)
However, the characterization of the request
advanced by Mr. Donaldson was that it constituted a constructive dismissal
because it was a breach of his employment contract with Western Grain. In the decision
under review dated November 9, 2011, the Adjudicator found constructive
dismissal. In my opinion, this conclusion is made in fundamental error because
it is based on a fact that has absolutely nothing to do with the complaint crystalized
in the conversation between Mr. Mailhot and Mr. Donaldson on October 25, 2007.
[8]
In
the decision under review the Adjudicator correctly cited the law with respect
to constructive dismissal as follows:
Again, I accept Mr. Firman’s
[Counsel for Western Grain in the Adjudication] general proposition that Farber
v. Royal Trust Company (1996), (1997) 1 S.C.R. 846 (S.C.C.) [Farber] is the
seminal case on the subject of constructive dismissal for setting out the legal
criteria relating thereto. Where we differ is in the application of the holding
in Farber.
Mr. Firman quoted in
extensio relevant portions of Farber, at [paragraphs] 24-27. See, Volume 1,
General Written Argument on Behalf of the Employer, at pp. 67-70. The
underlining is that of Mr. Firman:
Ҧ 24 - Where an employer
decided unilaterally to make substantial changes to the essential terms of an
employee’s contract of the employment and the employee does not agree to the
changes and leaves his or her job, the employee has not resigned, but has been
dismissed. Since the employer has not formally dismissed the employee, this is
referred to as constructive dismissal. By unilaterally seeking to make substantial
changes to the essential terms of the employment contract, the employer is
ceasing to meet its obligations and is therefore terminating the contract. The
employee can then treat the contract as resiliated for breach and can leave. In
such circumstances the employee is entitled to compensation in lieu of notice
and, where appropriate, damages.
Ҧ 25- On the other hand, an
employer can make any changes to an employee’s position that are allowed by
contract, inter alia, as part of the employer’s managerial authority. Such
changes to the employee’s position will not be changes to the employment
contract, but rather applications thereof. The extent of the employer’s
discretion to make changes, will depend on what the parties agreed to when they
entered into the contract....
Ҧ26 - To reach the conclusion
that an employee has been constructively dismissed, the Court must therefore determine
whether the unilateral changes imposed by the employer substantially alter the
essential terms of the employee’s contract of employment. For this purpose,
the Judge must ask whether at the time the offer was made, a reasonable person
in the same situation as the employee would have felt that the essential terms
of the employment contract were being substantially changed. The fact that the
employee may have been prepared to accept some of the changes is not conclusive
because there might be other reasons for the employee’s willingness to accept
less than what he or she was entitled to have.
Ҧ 27 - Moreover, for the
employment contract to be resiliated, it is not necessary for the employer to
have intended to force the employee to leave his or her employment or to have
been acting in bad faith when making substantial changes to the contract’s
essential terms. However, if the employer was acting in bad faith, this
would have an impact on the damages awarded to the employee.”
(Decision, pp. 66 – 67)
[9]
In
reaching the final conclusion on the arbitration that a constructive dismissal
had taken place, the Adjudicator applied the following analysis at pages 67 –
68 of the decision:
1. Mr. Donaldson was absent
from work essentially during the pendency of the WSIB investigation,
consideration and determination of Mr. Donaldson’s claim for compensation for
an alleged allergic reaction to a single incident of grain dust at Western
Grain. Mr. Mailhot was notified of the application and he was given the
opportunity to respond to it. He chose not to seek further information, or to
question Mr. Donaldson in the WSIB proceedings.
In the result, the WSB claim
of Mr. Donaldson was rejected by the WSIB, and Mr. Mailhot was notified of that
decision. That rejection was a denial by the WSIB that Mr. Donaldson had
suffered a compensable allergic reaction while on the job. There was no reason
for Mr. Mailhot to require a “doctor’s note” -- simple or detailed -- as a
condition for Mr. Donaldson to return to his job.
2. The facts do not support
the conclusion that Mr. Mailhot only wanted a “better” doctor’s note that might
explain in somewhat more detail Mr. Donaldson’s physician’s conclusion that he
was “fit” to return to work.
I have set out in some detail
Mr. Firman’s [Counsel for Western Grain in the arbitration] argument --
reflecting the view of Mr. Mailhot -- that Mr. Donaldson should be compelled to
name all doctors who treated Mr. Donaldson over a period of two decades, and
to produce such doctors at Mr. Donaldson’s expense, along with their medical
records, including their notes, for examination and cross-examination.
3. Such a demand far exceeds
the subject matter which was the cause for Mr. Donaldson’s absence, namely, a
claimed allergic reaction to a single incident of grain dust. Rather, what Mr.
Mailhot was seeking was not only a medical pronouncement that Mr. Donaldson was
“fit” to do his job in general, but that he would be fit to do his job in
general in the future.
4. Mr. Mailhot placed
effective barriers, that is, conditions quite outside the employment
relationship between Western Grain and Mr. Donaldson, that denied Mr. Donaldson
the right to return to work. On the face of it, they were barriers to which Mr.
Donaldson and other Western Grain employees had not been subject in the past.
And, insofar as they related to past and future guarantees of physical health
-- in their generality -- they exceeded any reasonable term of employment.
[Emphasis in original]
The
following passage of the decision on page 69 clearly emphasizes the reason upon
which the constructive dismissal finding is based:
On the record, for the reasons
stated, I have found that Western Grain imposed conditions on Mr.
Donaldson’s return to work which went beyond the ken both of what was
reasonable in the context of Mr. Donaldson’s reason for absence (namely, a WSIB
consideration of his claim of a one-time allergic reaction to grain dust that,
in the result was denied by the WSIB) and Western Grain’s demand for the production
for examination and cross-examination of all doctors who have treated Mr
Donaldson over a period of two decades.
[Emphasis added]
[10]
If
Counsel for Western Grain acting in the adjudication made the “demand for
production”, which is contested by Counsel for Western Grain acting in the
present Application, I find that it could only be identified as an evidentiary
incident in the course of the adjudication, and, as such, was not capable of
being linked in any way to Mr. Donaldson’s complaint made on November 16, 2007;
at best, it was merely an irrelevant litigation feature of a fractious arbitration
that ran for some 32 days.
[11]
Therefore,
I find that the decision under review does not fall within a range of possible, acceptable
outcomes which are defensible in respect of the
facts and law (see: Dunsmuir v. New Brunswick [2008] 1 S.C.R. 190, para. 47).
ORDER
THIS COURT
ORDERS that:
1. The
decision under review is set aside.
2. I
make no award as to costs.
“Douglas
R. Campbell”
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