Date: 20090805
Docket: T-1848-07
Citation: 2009 FC 799
Ottawa, Ontario, August 5, 2009
PRESENT:
The Honourable Mr. Justice Martineau
BETWEEN:
JACYNTHE DESCHÊNES
Applicant
and
CANADIAN IMPERIAL
BANK OF COMMERCE
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
Jacynthe
Deschênes (the applicant) is challenging the legality of a decision dated
June 28, 2007, by an adjudicator/referee appointed under the
provisions of Part III of the Canada Labour Code, R.S.C. 1985,
c. L-2 (the Code), dismissing her unjust dismissal complaint and her monetary
claim for commission and other premiums, both against the Canadian Imperial
Bank of Commerce (the Bank or CIBC).
I. GENERAL BACKGROUND
[2]
The
applicant worked for CIBC from September 1989 to January 26, 1998.
From 1995 on, she held various positions, including that of investment
specialist (the specialist). Her pay was then based on a new incentive system,
where specialists were paid commissions based on the volume of total sales attributable
to them. Here, only the aspects necessary to assess the grounds of review
submitted by the applicant will be discussed. The applicant is representing
herself today.
[3]
The
following are some of the conditions specialists had to meet to receive commissions
in 1997:
-
Prepare
and submit sales reports in accordance with the directives in Sales
Reporting & Measurement;
-
Achieve $17.5
million in gross sales involving “new money” from other financial institutions:
$11 million from sales of “non‑money market” CIBC products and $6.5 million
from [translation] “sales of specific CIBC products”, as described in the Régime de rémunération liée aux résultats [Performance Pay
Plan]; and,
-
Comply
with the professional conduct rules set out in the Politiques et procédures
de déontologie à l'intention des spécialistes en placements [Professional
Conduct Policies and Procedures for Investment Specialists].
[4]
The circumstances
that formalized the applicant’s dismissal are not challenged.
[5]
Suffice it
to say, in November 1997, the applicant’s October 1997 sales report
indicated a sale of $1.2 million (client Samuel W.). Such a large amount
immediately attracted the attention of management in Toronto, who then decided to conduct an in‑depth
review of the applicant’s reports for the 1997 fiscal year. Other errors in the
applicant’s favour were discovered. More than 80 transactions were called into
question.
[6]
The
applicant was suspected of having inflated the sales figures reported in
November and December 1997. She was immediately asked to provide
explanations, as her job was in jeopardy. On January 26, 1998, dissatisfied with the
applicant’s answers and behaviour, management decided to dismiss her and claim
from her repayment of the $24,000 gross or $10,000 net that she had
been overpaid in commission. Three days later, she had a bank draft issued for
$10,000.
[7]
On
March 20, 1998, Human Resources Development Canada received an unjust
dismissal complaint made by the applicant against the Bank under section 240
of the Code. On July 3, 1998, the applicant filed a second
complaint with an inspector, this time claiming from the Bank unpaid commission
and overtime pay, as well as the performance bonus and CIBC stock option
certificates to which she felt she was entitled (the applicant’s monetary claim).
[8]
On
March 17, 1999, the inspector issued a payment order against the Bank,
which appealed that decision. The Minister of Labour therefore referred the
applicant’s unjust dismissal complaint and the Bank’s appeal against the
monetary claim to adjudication. Both matters were heard simultaneously by Jacques
Bélanger, acting as both adjudicator and referee.
[9]
The
adjudicator/referee heard 30 witnesses, including 26 called by the
applicant, reviewed more than 350 documents filed over approximately 90 days
of hearings and examined both parties’ written submissions. On
June 28, 2007, he rendered a detailed, 1673‑paragraph decision upholding
the validity of the applicant’s dismissal and dismissing her monetary claim: see
Deschênes v. Banque Canadienne Impériale de Commerce, [2007]
D.A.T.C. No. 215 (impugned decision).
II. ISSUES
[10]
The
applicant submits two main grounds for quashing the adjudicator’s dismissal of
her unjust dismissal complaint. I would state these grounds as follows:
(a) The
adjudicator based his decision on an erroneous finding of fact that he made in
a perverse manner in upholding her dismissal for breach of the relationship of
trust, even though the evidence in the record showed that there had been no
fraud; and
(b)
The
adjudicator otherwise erred in law or made an unreasonable decision in failing
to apply the principle of progressive discipline and substitute a lesser
penalty than dismissal, given that the applicant had no disciplinary record and
had received no warning before her dismissal.
[11]
As for her
monetary claim, the applicant raises the following three grounds of review:
(a)
The referee
failed to rule on all of the aspects of her monetary claim;
(b)
The referee
made a reviewable error of law, breached a principle of procedural fairness or acted
unreasonably in determining that the testimonial evidence was insufficient and
that the applicant had the burden of proving the commissions claimed by filing
documents from the Bank that would serve as a commencement of proof in writing;
and
(c) The referee
based his decision on an erroneous finding of fact that he made in a perverse
manner in dismissing the applicant’s monetary claim in the files where the
evidence shows that the investment had been deposited in a temporary account,
thereby erroneously interpreting the rules on retention money and new money.
III. STANDARD OF REVIEW
[12]
In practice,
the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, 2008 SCC 9 at para. 49;
[2008] 1 S.C.R. 190 (Dunsmuir) did not substantially change the applicable
standard of review for decisions made by an adjudicator or referee appointed
under the Code. In fact, the privative clauses at subsections 243(2) and 251.12(7)
of the Code for unjust dismissals and monetary claims, and the purpose and expertise
of the adjudicator or referee continue to command a very high degree of
deference (Alberta Union of Provincial Employees v. Lethbridge Community
College, [2004] 1 S.C.R. 727 at para. 48; Bitton v. HSBC Bank
Canada, [2006] F.C.J. No. 1690 at para. 29).
[13]
Overall, for
questions of fact, this Court will only intervene if the adjudicator/referee’s decision
was based on an erroneous finding of fact that was made in a perverse or
capricious manner, or if the decision was made without regard for the material
before the adjudicator/referee: (paragraph 18.1(4)(d) of the Federal
Courts Act, R.S.C. 1985, c. F‑7; Canada (Citizenship and
Immigration) v. Khosa, 2009 SCC 12 (Khosa) at para. 46. It
should also be noted that, according to Dunsmuir, in judicial review,
reasonableness is concerned mostly with the existence of justification,
transparency and intelligibility within the decision-making process. But it is
also concerned with whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir
at para. 47; Khosa at para. 59).
IV. UNJUST DISMISSAL COMPLAINT
[14]
The grounds of review submitted by the applicant essentially reiterate her
arguments before the adjudicator.
[15]
While she
admits that she may have made some errors in her 1997 sales reports, the
applicant submits that she was never guilty of serious misconduct, that she
never defrauded the Bank, that no Bank client was prejudiced and that she
received no written or verbal warning before being dismissed. The applicant
states that, on the contrary, her previous evaluations show her excellent performance
and competence in the field of investments. Nor is there any indication that she
was in a conflict of interest. In short, neither her integrity nor her honesty
is at issue here, and this is therefore a constructive dismissal.
[16]
The
applicant submits that the impugned decision is unreasonable because the adjudicator’s
conclusion that the breach of the relationship of trust justified the applicant’s
dismissal in this case is based on a finding of fact that fails to take into account
all of the evidence and the reason for her dismissal on January 23, 1998,
which was fraud. The applicant submits that 50% of the errors alleged by
the Bank are unfounded and that the rest are merely [translation] “administrative errors”. These administrative
errors were the result of poor organization of work, in circumstances where the
Bank’s directives and systems were unclear (in particular regarding new money versus
retention money). These errors occurred in a context of new procedures, a large
number of clients and the employer’s disorganized work procedures.
[17]
Alternatively,
the applicant submits that, if there was misconduct, which she denies, the
applicable disciplinary action must be proportional to the misconduct proved by
the employer. In this regard, the applicant submits that the Bank had practices
that were poorly documented (for example, for transferring new money into parking
places) or that were contrary to her pay contract. Some inconsistencies in
this area were noted by the adjudicator himself. Therefore, it was the Bank’s
responsibility to implement an adequate control system to assess its
specialists’ needs and diligently check transactions to quickly identify its
specialists’ reporting problems. These factors weighed in favour of a prior
warning rather than a dismissal.
[18]
The grounds of review raised by the applicant are unfounded. The impugned
decision seems reasonable in all respects and is based on both the evidence and
applicable law.
[19]
Clearly, an
employer’s discovery of fraud affects the relationship of trust that may exist
between the employer and the employee, and justifies the immediate dismissal of
the employee. However, aside from fraud, there are other circumstances, such as
gross negligence, where the relationship of trust may be irrevocably broken.
Each case must be judged on its own merits, and the adjudicator must consider
the overall situation before reaching a conclusion. See Durand v. Quaker Oats
Co. of Canada (B.C.C.A.), [1990] B.C.J. No. 725; Wilson v. Cornwall
Publishing Co., [1997] B.C.J. No. 2189 at paras. 22‑26; Denhamer
v. RBC Dominion Securities Inc., [2000] A.J. No. 1116 at paras. 41‑44;
McKinley v. BC Tel, [2001] 2 S.C.R. 161 at paras. 51‑57 (McKinley);
Christensen v. McDougall, [2001] O.T.C. 697 at para. 71; Bracken
v. Banque Royale du Canada, [2002] D.A.T.C. No. 465 at paras. 76,
77 and 81; Yeung v. HSBC Bank Canada, [2006] C.L.A.D. No. 175 at para. 147;
Plotogea v. Heartland Appliances Inc., [2007] O.J. No. 2717; Groulx v.
Centre de Sport Alary inc., [2008] D.C.R.T.Q. No. 537 at paras. 87,
89 and 92.
[20]
The breach
of the relationship of trust should also not be confused with an employee’s alleged incompetence. In the case of incompetence,
when an employer finds an employee’s performance to be unsatisfactory, the justification
for the employee’s dismissal meets objective criteria that have nothing to do
with the relationship of trust, as this relationship is presumed (see Re
Edith Cavell Private Hospital and Hospital Employees’ Union, Local 180,
[1982] B.C.C.A.A.A. No. 495 (Re Edith Cavell Private Hospital); Alberta
Union of Provincial Employees v. Lethbridge Community College, [2004] 1 S.C.R.
727 at paras. 42‑45).
[21]
The Court
must consider the principles of progressive discipline that would allow a
lesser penalty to be substituted for the dismissal, or for the dismissal to be quashed
and payment of compensation ordered instead of reinstatement, because an
adjudicator hearing an unjust dismissal complaint under Part III has broad
remedial powers under subsection 242(4) of the Code. This provision is
similar to other federal and provincial arbitration provisions.
[22]
In this
case, the adjudicator had to ask whether the applicant was indeed responsible
for the errors alleged by the employer. Next, to determine whether the
applicant’s dismissal was justified, the adjudicator had to ask whether the
evidence in the record supported a finding that the relationship of trust had
been irrevocably broken, based on the principles of case law that are
applicable to such cases. The adjudicator must also ask whether in this case
such a breach of trust justified imposing the ultimate punishment, which is
dismissal, or whether other disciplinary measures were appropriate under the
circumstances (Toronto (City) Board of Education v. O.S.S.T.F., District 15,
[1997] 1 S.C.R. 487; Heustis v. New Brunswick (Electric Power Commission), [1979] 2 S.C.R. 768).
[23]
In the
case at bar, the adjudicator stated that he was satisfied, in light of all of
the evidence in the record, that there had been an irreparable breach of the
relationship of trust justifying the dismissal (impugned decision, para. 1357).
As a result, the adjudicator dismissed the applicant’s submissions that she had
been constructively dismissed and that, as there had been no fraud, the errors
in her sales reports were not such as to cause a loss of confidence. The
evidence in the record shows that the applicant was indeed guilty of serious
misconduct and that the relationship of trust truly was irrevocably broken.
[24]
The
adjudicator’s determination that the applicant’s employment was terminated when
numerous errors were discovered in her 1997 sales reports was based on
circumstantial evidence of the events leading to the dismissal. However, the
adjudicator recognized that, in this case, there was no dishonest intention or
evidence of fraud in the applicant’s behaviour. Thus, [translation] “the evidence does not support the idea that the
complainant intentionally produced false sales reports in order to receive
commissions that were overpayments”. However, the adjudicator found that the
applicant had demonstrated [translation]
“carelessness, negligence and denial of responsibility”, such that the Bank
correctly determined that the relationship of trust with the complainant had
been irretrievably broken (impugned decision, paras. 1426, 1436 to 1438).
[25]
On this
point, the adjudicator relied on the testimony of Ms. Marshall, who aptly
summarized the Bank’s position at that time in this statement:
[translation]
Either we are dealing with someone who
intentionally produced false reports in order to receive commissions or a very
disorganized individual whom we would not want to represent us to our best
clients (impugned decision, para. 1436).
[26]
I have no doubt here that the adjudicator considered each party’s entire
testimony about the particular circumstances and the real reasons for the
dismissal. In this respect, the adjudicator’s conclusion that the dismissal was justified
under the circumstances was based on a thorough analysis of the evidence
submitted by both parties. The adjudicator found that the employer had indeed completely
lost confidence in the applicant because, over the course of a year, she had
submitted numerous sales reports that she had been unable to justify, most of
which turned out to be erroneous, unfounded, exaggerated or submitted past the
deadlines set out in the rules for investment specialists. The fact of the
matter is that the scope of the adjudicator’s
analysis reveals no unreasonable conclusion on this crucial point. The
adjudicator’s process was careful and exhaustive and turned on a three-step
methodology (impugned decision, at para. 1393).
[27]
First, the
adjudicator identified the regulatory and professional ethics body that governs
the applicant as an investment specialist. More specifically, he examined the
rules that apply under the Politique
et procédures de déontologie, Régime
de rémunération liée aux résultats
and Sales Reporting & Management, which established
the rules to follow for sales reports (impugned decision, at paras. 1393‑1403).
[28]
Next, the
adjudicator listed the sales reports for the 1997 fiscal year according to the
errors that the applicant had allegedly committed: sales reports made before
the investment; sales reported as “new money” even though they involved
retention money rather than new money; reported sales that did not exist or
could not be found; amounts in sales reports that exceeded the actual sale amounts;
the sale of products that were unauthorized for investment specialists; products
sold that were different from the ones reported; two sales reports filed for
the same sale; errors in the account number, class or code; failure to advise Gilbert
Aura of a sale over $500,000; use of a re‑balancing method that violates
the rules because a sale cannot be claimed for a balance of a statement minus
the sales already reported (impugned decision, at para. 1406).
[29]
Lastly,
the adjudicator considered the reasons given by the applicant when initially
questioned about these errors. He examined the applicant’s duties and
responsibilities and the way in which she carried them out in 1997 compared
with the practice of another investment specialist, Mr. Di Nardo, whose
work was highly regarded by both the applicant and the respondent. On this
point, he noted that the work of investment specialists involved an unusual
amount of pressure (impugned decision, at para. 1413). However, he did not
believe that this was enough to justify the applicant’s desire to maximize the
number of sales, sometimes at the expense of the drafting of her sales reports:
[translation] “As a result, not
only was this part of her work poorly done, but some methods developed by the complainant
to deal with her lack of time were questionable” (impugned decision, at
para. 1417). As such, he also stated that, contrary to the established
rules, the applicant sometimes produced a second sales report for the same sale:
[translation] “This procedure
ensured that she would be paid at least once if not twice, reflecting her total
disregard for the fact that she might confuse or mislead the auditors in
Toronto” (impugned decision, at para. 1418).
[30]
In
addition to all this, there is also the annual review that the applicant made
of her sales at the end of the fiscal year:
[translation]
[1419] . . . Certainly she
cannot be faulted for this action alone. However, claiming a sale on the
balance of the statements by subtracting all of the sales already reported from
the total of a given client’s statements, shows to what extent the complainant
may have been disorganized throughout the year. The evidence as a whole
indicates that it is highly likely that the cause of the complainant’s actions
was not that the auditors in Toronto forgot to register the
reported sales. Rather, it was the complainant who forgot to report certain
sales or who made numerous errors in her sales reports. The evidence shows
that she thought she could reconcile everything at the end of the year without
even asking for permission from her manager.
[1420] At the end of 1997, her
motivation for this annual review was not merely to correct her errors and
omissions during the year. She was ambitious and determined to receive the
bonus and excellence award. While her sales figures were very close to the
target objectives, in order to reach them she had to report sales that had
possibly been omitted during the year.
[31]
In addition
to these problems, there were also those caused by the sale of $1.2 million in Canada bonds for the client Samuel
W. This sale was indicated in the applicant’s October 1997 sales report,
aroused the suspicion of auditors in November 1997 and led to the review
of all of the applicant’s 1997 sales reports. The adjudicator himself recognized
that the applicant had been misled by a document issued by one of the
respondent’s subsidiaries, Investor’s Edge, which had not reported the right
figures, and that the evidence as a whole did not suggest that the applicant
had had any dishonest intention when making this sales report (impugned
decision, at para. 1423).
[32]
Despite
the explanation provided on this matter, the adjudicator pointed out that such
a major error, even though based on faulty data, should have been noted by the
applicant:
[translation]
[1421] . . . The evidence
shows that there was no other sale for this client in 1997, as his funds were
transferred to Wood Gundy in the summer of 1997. The evidence also shows that
the complainant knew this client very well and that she had encouraged him to
transfer his funds to CIBC in 1996. She met him several times, often at his
home, with GRACE LUTFY, an agent from Wood Gundy. How could the complainant have
made such an error on a substantial amount for a client she knew so well?
[1422] All of the witnesses agreed that,
when an investment specialist makes a sale of $1 million, it is an
extraordinary event which does not go unnoticed. Moreover, the established
rules require that the manager be notified of such a sale when it is made. The complainant
did not advise GILBERT AURA of this alleged sale of $1.2 million that she
classified as code 50. This report of a sale which never took place, coming
from an employee who had been assessed as being among CIBC’s best investment
specialists, was disturbing for the employer when it became aware of the
situation in November 1997.
[1423] . . . She knew that
these reports were reviewed in Toronto and believed that the worst
that could happen was that this sale would be refused. However, this still
shows the complainant’s extreme carelessness regarding her sales reports and
the minimal attention she devoted to this important part of her work.
[1424] This also shows the complainant’s
constant attitude of denying responsibility in the face of clear facts. Despite
her clear error of a false sale in the wrong product, in her opinion, the fault
lies with Investor’s Edge, which gave her a report with incorrect numbers. She
goes so far as to claim that there is a plot against her to dismiss her because
of her unpaid mortgage, a theory unsupported by the evidence. It is also mainly
the fault of the Toronto auditors who are poorly
organized and who fail to register some sales. She is under too much pressure;
her assistant is poorly trained because she lacks the time; the account
managers gave her incorrect information, etc.
[33]
Lastly,
the adjudicator noted the applicant’s [translation]
“attitude of . . . avoidance and denial of responsibility”
before being dismissed on January 26, 1998. The adjudicator asked the following
question: [translation] “But does
that justify such a serious decision by CIBC regarding one of its best
salespersons?”
[34]
Relying on
the case law, the adjudicator upheld the dismissal for irreparable breach of
the relationship of trust, despite the fact that there had been no progressive
disciplinary measures (impugned decision, at paras. 1427‑1438).
[35]
This brief
summary of the adjudicator’s approach reveals his thorough analysis and careful
consideration of the evidence submitted by both parties. Consequently, the
adjudicator’s conclusion that the relationship of trust was broken, and rightly
so, is amply supported and cannot under any circumstances be found to be
unreasonable, even if this Court could come to a different conclusion based on
the evidence noted by the adjudicator. In short, the adjudicator’s assessment
of the facts needs only to be rationally based on the evidence submitted. In
this case, the adjudicator’s in‑depth and reasoned review in the impugned
decision satisfies me that he made no reviewable error.
[36]
This leads
to the second ground of review submitted by the applicant, that the adjudicator
erred in his interpretation of the principles of case law applicable to the
field of banking that would allow him to uphold a dismissal for breach of the
relationship of trust in the absence of progressive discipline. On this point,
in the impugned decision, the adjudicator correctly cites Banque de Montréal
(Saint‑Hubert) v. Saint‑Michel, 1999 D.A.T.C. No. 480; Forget
v. Banque Laurentienne du Canada, [2001] D.A.T.C. No. 39 and National
Bank of Canada v. Lepire, 2004 FC 1555 (NBC v. Lepire). These
decisions all highlight the importance of the relationship of trust and the
seriousness of a violation of the rules of conduct for employees of financial
institutions.
[37]
The Court
should not intervene on this point, and the adjudicator’s conclusion again
seems reasonable given the state of the law on this issue. It is important to
highlight paragraphs 1126 and 1127 of the impugned decision, where
the adjudicator noted the evidence of [translation]
“an honour system in which tremendous trust was required between the investment
specialist, the accounts directors and the team in Toronto”, with the result that [translation] “the investment specialist
had to show exemplary integrity”.
[38]
Incidentally, I note
that, at paragraph 26 of NBC v. Lepire, to which the adjudicator
referred, Justice Blais wrote that the breach in the relationship of trust
results in most cases from the attitude, deeds and actions, reluctance, lack of
frankness and conduct of the employee (impugned decision, at para. 1432). As
can be seen, this case law supports the adjudicator’s finding that, here, the
applicant’s attitude of carelessness, negligence and denial of responsibility
justified the lack of trust in the applicant, which led to the investigation
that was conducted in December 1997 and January 1998.
[39]
The facts in this case can also be distinguished from those considered in Sauvé v. Banque Laurentienne
du Canada,
J.E. 99-256 (Sauvé), cited by the applicant. In that decision, the
evidence showed that the bank had previously condoned a non‑conforming
practice that was inconsistent with the bank’s code of ethics: a branch manager had advanced funds to
himself from an administrative account. The dismissal was found to be wrongful,
since the uncontradicted evidence showed that the appellant’s
practice had previously been condoned by the bank (Sauvé
at para. 17), which is not the case here, according to the evidence noted
by the adjudicator in the impugned decision. It should not be forgotten that
the adjudicator concluded in this case that the “rebalancing” technique was not
recognized or accepted by the Bank. Here, there was a period of five months
during which the sales reports had not yet been audited. However, as the
adjudicator noted at paragraph 1126 of the impugned decision, [translation] “As regards compensation,
specialists were paid first, and then the sales reports were sporadically audited”.
[40]
There is
no question here of re‑analyzing each and every one of the applicant’s
alleged errors and re‑evaluating whether a penalty that was proportionate
to the gravity of the impugned act should have been imposed. In short, it was
the seriousness of the errors, their recurrence over an extended period of time
and the absence of any possible justification, rather than the number of errors,
that led the respondent to conclude that the relationship of trust had been
broken, despite all of the applicant’s success. Consequently, there is no
reason for this Court to intervene.
V. APPLICANT’S MONETARY CLAIM
[41]
As regards
the applicant’s monetary claim, the referee had to ask whether the evidence in
the record supported a conclusion that the applicant was entitled to the commissions
and other premiums claimed under the Bank’s administrative rules applicable at
the time.
[42]
The
referee decided the respondent’s
appeal, made under section 251.11 of the Code, of a payment order issued against the
respondent following the applicant’s claim for unpaid commission, overtime pay,
a performance bonus and her CIBC stock option certificates.
[43]
At
paragraph 1156 of the impugned decision, the referee wrote the
following:
[translation]
In spite of a lack of evidence on record
from the complainant, the inspector rendered a decision that was unfounded in
fact and in law, indiscriminately ordering the payment of the full amount of
$46,617.37, including a bonus of $14,000.00, commissions increased to
$25,230.19, commissions for the cases of Dat H. and Lo. and Co. of $3,198.00 and commissions for
November, December and January for $4,189.19. According to the employer, this
decision is a gift for the complainant, who had stated that she was unsatisfied
with the details given by the employer. The employer wrote to the Honourable CLAUDETTE
BRADSHAW on March 22, 1999, noting that it believed that the inspector had
exceeded his jurisdiction. The employer appealed this decision on April 1, 1999.
[44]
The
applicant submits that the referee failed to rule on 16 files. In this
regard, the applicant refers the Court to the CORE Products Audit Fiscal
1997 (CORE) statement, filed before the referee as E‑39, concerning
the investments that gave rise to bonuses and a commission premium for
investment specialists who reached the $6.5‑million level. This exhibit
was prepared specifically by the witness Élizabeth Marshall for the hearing
before the referee. The referee took it into account and referred to it
extensively, according to the parties’ submissions, but he conducted his own
analysis of each of the files in turn (impugned decision, at para. 1495). The
impugned decision refers to all of the files supposedly omitted, and there is therefore
no need to intervene on this point. In fact, the referee incontestably
considered all of the documentary evidence submitted.
[45]
As for the
1997 list of sales of eligible CORE products, that is, products giving
rise to a bonus when total sales exceed $6.5 million, the applicant
submits that the referee erred in using $4,410,514 as the total amount of CORE product
sales reported by the applicant and accepted by the respondent for the 1997 fiscal
year, rather than the $4,302,594.29 indicated at Exhibit E‑39:
[translation]
[1666] Exhibit P-13 reports a total of
$4,410,514.00 in CORE products for October 1997, to which $1,194,570.00 is
added for a total of $5,605,084.00 in CORE products for 1997 (this total does
not include later adjustments). Since the complainant did not reach the $6.5
million of sales required, she is not entitled to the bonus and increased rate
for commissions received for her sales over $11 million.
[46]
Similarly,
since Exhibit E‑39 had been prepared for the hearing before the
referee, he was not bound by the figures in this document. The referee
considered this exhibit just as he reviewed all of the documentary evidence
submitted, and he conducted his own analysis of the transactions to be
reviewed.
[47]
In short,
after assessing each of the files upon which the applicant’s monetary claim was
based, the referee dismissed the claim because there was no evidence to support
the claim, the transaction was not a sale eligible for commission or the
applicant was shown to have already been paid the commission claimed.
[48]
The
referee dismissed the claims for which the applicant could provide no
documentary evidence confirming that the sale for which a commission was
claimed had been made and was eligible for this commission. These prerequisites
are established by the very terms of the Régime de rémunération liée aux
résultats and Sales Reporting & Measurement, according to which
investment specialists must submit a sales report to receive the commission associated
with the sale made (impugned decision, at paras. 1401-1402, 1460, 1462). Today
the applicant submits that the referee breached a rule of procedural fairness
in requiring that she provide documentary evidence of these claims, which she
was unable to do, since the documents were in the possession of the respondent.
[49]
An
adjudicator appointed under the Code has the power to control the evidence and
the procedure. The adjudicator can look to the rules of civil law, but he or
she is not bound by the same formalism as a judge of a court of law (Cogeco
Radio-Télévision inc. v. Croteau, [2000] D.A.T.C. No. 366). In this
regard, paragraph 242(2)(b) of the Labour Code provides as follows:
(2) An adjudicator to whom a complaint
has been referred under subsection (1)
. . .
(b) shall determine the procedure
to be followed, but shall give full opportunity to the parties to the complaint
to present evidence and make submissions to the adjudicator and shall consider
the information relating to the complaint; . . .
[50]
In this
case, the referee required the applicant to provide commencement of proof in
writing in order to admit the testimonial evidence intended to prove the accuracy
of the claims:
[translation]
[1488] At the outset, I wish to point out
that with respect to this monetary complaint, the complainant has the burden of
proving that the commissions are owing to her. The testimonial evidence is
insufficient to prove her sales; she must file documents from CIBC which could
serve as a commencement of proof in writing.
[51]
In doing
so, the referee relied on a civil standard of proof for proof of a juridical
act (article 2862 of the Civil Code of Québec, S.Q. 1991, c. 64). Since
there was insufficient evidence, the referee dismissed the applicant’s claims.
The referee also refused to proceed with the accusations that the respondent
knowingly refused to make the relevant documents available to the applicant and
thus prevented her from preparing her case.
[52]
Today, the referee’s conclusions
on this subject based on the evidence submitted do not need to be reviewed. I
am of the opinion that it was reasonable for the referee to require a
commencement of proof in writing proving the claims made, especially in circumstances
where the accuracy of these claims needed to be reviewed in light of the many
errors attributed to the applicant in her sales reports. Moreover, the referee
breached no rule of procedural fairness. As he had the power to control the
procedure and the evidence submitted, it was open to the referee to impose
certain formal requirements and to draw conclusions from the lack of evidence.
[53]
The
applicant also submits that the referee erroneously interpreted the rules and time
limits for retention money and new money. The applicant refers to the directive
regarding funds put in a parking place (i.e. specialists’
practice of using a temporary account, commonly referred to as a “parking place”, where funds are deposited
while waiting to be invested on a long‑term basis), and the rules to
follow in sales reports to distinguish between new money and retention money.
In doing so, the referee would give the respondent the right to unilaterally
modify, through a directive, the remuneration contract binding both parties. The
applicant submits that the referee also acknowledged that the directives and
systems were unclear regarding this question. Thus, according to the
interpretation suggested by the applicant, there is no time limit imposed on
specialists for funds deposited in a temporary account, the so‑called parking
place. The only time constraint in this regard is the one imposed for
reporting sales. Specialists had two months to report final investments,
but there was no time limit for money placed in temporary accounts.
[54]
Again, the
referee’s analysis on this point seems reasonable. Regarding the distinction between
the sources of the funds sold, that is, retention versus new money, the referee
used the exact words of the Régime de rémunération liée aux résultats (Exhibit E‑2A,
p. 3) (impugned decision, at para. 1463). As for the distinction between
retention and “parking place” situations, that is, the unwritten rule that funds
placed in a temporary account for more than two or three months become a
permanent investment and that the subsequent transfer is considered to be a retention
and no longer eligible for a commission, the referee referred to the
testimonial evidence confirming the parameters of this rule, in spite of the
applicant’s submissions (impugned decision, at paras. 1466‑1473). Lastly,
the referee also referred to the clarification dated July 7, 1997, which
states that sales reports must be made only after the final investment and which
was intended to clarify the situation of temporary investments eligible for conversion.
The referee noted the difficulties in implementing these rules and the respondent’s
[translation] “open attitude”
regarding the time limits imposed on specialists. The referee concluded as
follows:
[translation]
[1485] Therefore, I do not see why a
reasonable request for an extension of time limits made by the complainant for
certain sales would be refused, when the evidence shows that the delay was not
due to her negligence. I shall consider her claim with the same open‑mindedness
that she enjoyed when she was employed by CIBC.
[55]
Similarly,
the applicant submits that the referee’s analysis to determine which of the
applicant’s sales were considered to be new money and therefore eligible for commission
was flawed by the lack of evidence establishing the source of the money. As a
result, the referee allegedly erroneously described as retention certain sales where
the applicant invested funds for several months but later made a final
investment without being able to justify the duration of the temporary
investment. On this point, it was not for the referee to determine the
soundness of the respondent’s procedure, according to which only the final
investments should be included in sales reports. Since specialists need to get
authorization or justify the duration of the temporary investment, it was
reasonable for the referee to require evidence of these actions to analyze the
sales in question. Moreover, the July 1997 directive is consistent with
the procedure in Sales Reporting and Measurement, which states that “the
monthly sales reporting process . . . begins with the
completion of the sales. . . . A sales transaction is
considered to be complete when the new or converted funds are invested in the
instrument that is going to be claimed as the sale”.
[56]
For the foregoing
reasons, and since the impugned decision is in all respects reasonable in the
circumstances, there is no basis for this Court to intervene.
[57]
At the
hearing, the applicant also questioned the neutrality of the
adjudicator/referee. This extremely serious accusation was neither alleged nor
elaborated on in the prior proceedings. Essentially, the applicant accuses the adjudicator/referee
of making derogatory comments about her in the impugned decision, such as the applicant’s
being in the [translation]
“warmth of her home”, the [translation]
“applicant’s excuses” and her [translation]
“incredible attitude” regarding her dismissal. That said, an allegation of bias
is very serious one way or the other and not something to be trifled with. The
question is whether this objectively gives rise to a reasonable apprehension of
bias in the eyes of a properly informed person. I am not of the opinion that
this is the case here, considering the approximately 500‑page decision
as a whole. There may have been certain unfortunate comments, but that is not
enough in this case to give rise to a reasonable apprehension of bias.
[58]
The
application for judicial review must therefore be dismissed with costs.
JUDGMENT
THE COURT ORDERS AND ADJUDGES that the application
for judicial review be dismissed with costs.
“Luc Martineau”
Certified
true translation
Tu-Quynh
Trinh
Email this Content