Date: 20070301
Docket: T-485-06
Citation: 2007 FC 233
Ottawa, Ontario, March 1,
2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
GAIL
L. YACUCHA
Applicant
and
CANADIAN
NATIONAL RAILWAY COMPANY
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
Gail
Yacucha’s complaint of unjust dismissal was dismissed by an adjudicator
appointed under the Canada Labour Code, who found that she had
voluntarily left her employment with the Canadian National Railway Company.
[2]
Ms.
Yacucha now seeks judicial review of that decision, asserting that the
adjudicator erred in failing to properly consider the implications of several
events occurring immediately prior to her departure from the company, in
particular a meeting that took place between Ms. Yacucha and her supervisor,
Larry Stevenson.
[3]
Ms.
Yacucha also submits that the adjudicator erred in failing to give sufficient
weight to the medical evidence indicating that she was in a psychologically
vulnerable condition at the time that she left her employment with CN.
[4]
For
the reasons that follow, I have not been persuaded that the adjudicator erred
as alleged by Ms. Yacucha. As a consequence, the application for judicial
review will be dismissed.
Background
[5]
Ms.
Yacucha began working for CN in Winnipeg in 1969. She occupied
a series of jobs, ultimately achieving a position as an account development
officer in 1997. Ms. Yacucha worked in Winnipeg for the bulk
of the time that she was with CN, with the exception of a period between 1992
and 1994, when she worked in Calgary.
[6]
It
appears that Ms. Yacucha enjoyed living in Calgary, and that when her position
in that city became redundant in 1994, she was faced with the choice of leaving
CN, or returning to Winnipeg. She reluctantly chose to return to Winnipeg, where she
continued in her career with CN until her departure from the company in 1998.
[7]
By
the late 1990’s, CN had been downsizing for a number of years. To this end,
the company had been making separation packages available to employees who
voluntarily agreed to leave their employment.
[8]
If
an employee was willing to leave the company, and was employed in a department
that had not been targeted for downsizing, the individual would notionally be
reassigned to a position within an affected department that was occupied by
someone who wanted to stay with the company. The individual who wanted to stay
at CN would then be reassigned the departing employee’s job number, and would
be kept on by the company. This practice was known as a “swap”.
[9]
The
pressure to downsize affected a number of departments within CN, and by 1998,
it was common knowledge that if the account development group did not meet its
revenue targets, it might cease to exist. This put considerable pressure on
the members of the department, including Ms. Yacucha.
[10]
While
the situation at CN put a generalized pressure on the members of the account
development group, the adjudicator found as a fact that there was no evidence
to suggest that there was any desire on the part of anyone in management at CN
to see Ms. Yacucha’s employment terminated.
[11]
It
also appears that conflict was developing in the relationship between Ms.
Yacucha and Mr. Stevenson, and that Ms. Yacucha was of the view that Mr.
Stevenson was mistreating her, although the adjudicator did not accept that
this was in fact the case.
[12]
In
May of 1998, Ms. Yacucha went on stress leave, which lasted until July 28,
1998. She was clearly unhappy with her situation at work, as on June 4, 1998,
Ms. Yacucha told her family physician, Dr. Giesbrecht, that she was thinking of
leaving her job within the next six to 24 months. Three weeks later, Ms.
Yacucha told Dr. Giesbrecht that she wanted to transfer to Alberta. In this
regard, it appears that Ms. Yacucha was interested in pursuing a relationship
with a man that she had recently met who lived in Calgary.
[13]
Within
a day or two of her return to work, Ms. Yacucha told Mr. Stevenson that she
would be interested in looking at a separation package. The adjudicator found
as a fact that it was Ms. Yacucha who approached Mr. Stevenson in this regard,
and not the other way around.
[14]
Mr.
Stevenson then made some inquiries on Ms. Yacucha’s behalf, and determined that
a separation package could indeed be made available to her. On July 30, 1998,
Ms. Yacucha received a one page document from Mr. Stevenson which indicated
that she would be entitled to an ex gratia payment of $73,705.01, or
77.83 weeks salary.
[15]
There
is a conflict in the evidence as to what happened next. Ms. Yacucha says that
she only agreed to consider the separation package, whereas Mr. Stevenson said
that Ms. Yacucha agreed to accept the package. Having regard to all of the
circumstances, the adjudicator accepted Mr. Stevenson’s version, and found as a
fact that Ms. Yacucha had confirmed her acceptance of the severance
arrangements, and indicated her willingness to voluntarily leave her employment
at CN.
[16]
There
is no dispute about the fact that during the month of August, Ms. Yacucha
sought financial advice with respect to the separation package from
representatives of Merrill Lynch and KPMG. Merrill Lynch was Ms. Yacucha’s
personal financial adviser, and the services of KPMG were provided to her at
CN’s expense as part of the severance arrangements.
[17]
In
the course of these discussions, a number of different pension scenarios were
reviewed with Ms. Yacucha, based upon pension information that had previously
been provided to her.
[18]
On
August 27, 1998, Ms. Yacucha received a letter from Mr. Stevenson dated August
26, 1998 which stated: “This letter will confirm that your employment with CN
will terminate effective August 31, 1998.” Attached to the letter was
information with respect to her severance entitlement and pension options. Ms.
Yacucha raised no concerns with respect to the wording of the letter with Mr.
Stevenson or anyone else at CN at this time.
[19]
The
following day, Ms. Yacucha was in attendance at a departmental staff meeting at
which a new organizational chart was circulated, which showed an employee, who
will be identified in these reasons as “AD”, occupying Ms. Yacucha’s position.
Ms. Yacucha says that she was in a state of shock about this, and that, as a
result, she did not voice any objection to the fact that her position appeared
to have been assigned to someone else.
[20]
On
August 31, 1998, Ms. Yacucha met with Terrence Wasylak, an outplacement
consultant with Main Stream Access Corporation. Main Stream had been retained
by CN to provide outplacement counselling and related services to CN employees
whose employment was being terminated, whether the termination was voluntary or
involuntary.
[21]
Ms.
Yacucha evidently told Mr. Wasylak that she had had second thoughts, and that
she did not wish to leave her employment with CN. Mr. Wasylak suggested she
return to CN in order to discuss the issue with Mr. Stevenson.
[22]
It
is common ground that that same day, Ms. Yacucha met with Mr. Stevenson, and
that she told him that she had changed her mind about leaving CN, and that she
did not want to sign the separation papers.
[23]
Mr.
Stevenson’s and Ms. Yacucha’s accounts of what happened next differ somewhat.
However, there is no dispute about the fact that Mr. Stevenson became upset,
and told Ms. Yacucha that she could not change her mind, as steps had already
been taken to implement her earlier decision to leave the company, including
effecting the “swap” with AD.
[24]
There
is also no dispute that Mr. Stevenson told Ms. Yacucha to go home and think
about what she wanted to do. Nor is there any question about the fact that Mr.
Stevenson also told Ms. Yacucha that if, after thinking the matter over, she
still wanted to stay with CN, Mr. Stevenson would see what he could do for her,
although he could not make any promises in that regard.
[25]
The
following day, Ms. Yacucha met with Mr. Wasylak and signed all of the paperwork
necessary to give effect to the separation package, including a release in
favour of CN. Mr. Wasylak testified that he would not have witnessed the
documents if he had any concern that Ms. Yacucha did not understand and accept
what she was signing.
[26]
That
same day, Ms. Yacucha called Mr. Stevenson, and left him a voicemail message
advising him that she had signed the release. Mr. Stevenson testified that Ms.
Yacucha also said that she had had a case of “cold feet” about leaving CN, but
that her decision to leave CN had been the right one, and that she was happy
with that decision. Ms. Yacucha admitted in cross-examination that she may
indeed have told Mr. Stevenson that she was comfortable with her decision to
leave the company.
[27]
Immediately
after leaving CN, Ms. Yacucha put her home in Winnipeg up for sale,
and took a number of other steps with a view to moving to Calgary. It appears
that her efforts to obtain new employment in Calgary were not immediately
successful, and that the hoped-for relationship with the man in Calgary did not
materialize.
[28]
According
to Dr. Giesbrecht’s notes from Ms. Yacucha’s visits in October and November of
1998, Ms. Yacucha told her doctor that she had quit her job at CN, but had
since come to regret her decision.
[29]
On
November 27, 1998, Ms. Yacucha filed a complaint with Human Resources
Development Canada pursuant to section 240 of the Canada Labour Code in
which she alleged that she was unjustly dismissed from her employment at CN.
[30]
After
a lengthy hearing, the adjudicator appointed to hear the case determined that
Ms. Yacucha had left her employment with CN voluntarily, and had not been
unjustly dismissed from her position. It is this decision that Ms. Yacucha now
seeks to judicially review.
Issues
[31]
Ms.
Yacucha raises two issues on this application. Her primary argument is that the
adjudicator erred in finding that she had voluntarily left her employment with
CN, in light of the events occurring during the last few days of August, 1998,
and, in particular, what transpired in the course of Ms. Yacucha’s last meeting
with Mr. Stevenson.
[32]
Although
this issue was not pressed at the hearing, Ms. Yacucha also says that the
adjudicator erred in failing to give due consideration to her vulnerable state
of mind, in finding that she voluntarily chose to leave her employment.
Standard of Review
[33]
Ms.
Yacucha says that the question of whether or not an individual had been
dismissed, or had voluntarily left his or her employment goes to the
jurisdiction of an adjudicator appointed under the Canada Labour Code.
As such, a finding that there has been a voluntary resignation should be
reviewed against the standard of correctness.
[34]
In
support of this contention, Ms. Yacucha relies on the decision of the Federal
Court of Appeal in Baldrey v. H. & R. Transport (2005), 334 N.R.
340, 2005 FCA 151.
[35]
A
review of the Baldrey decision discloses that what the Federal Court of
Appeal actually decided was that the adjudicator’s identification of the legal
principles applicable to the determination of the status of a person as an
employee is to be reviewed on the standard of correctness. However, the
application of those principles to the facts of a particular case is to be
reviewed on the standard of reasonableness.
[36]
In
coming to this conclusion, the Federal Court of Appeal adopted the pragmatic
and functional analysis conducted by Justice Sharlow in Dynamex Canada Inc.
v. Mamona (2003), 242 F.T.R. 159, (2003), 305 N.R. 295, 2003 FCA 248. In Dynamex,
Justice Sharlow concluded, albeit in the context of a different provision of
the Canada Labour Code, that the question of whether an employee had
been dismissed was also a question of mixed fact and law, which was to be
reviewed against the reasonableness standard.
[37]
In
this case, the adjudicator provided a lengthy and detailed discussion of the
legal principles governing a case such as this, observing that he had to
ascertain firstly, whether Ms. Yacucha had the subjective intent to voluntarily
leave her employment, and secondly, whether she took steps to fulfill that
intention. The adjudicator further recognized that the fact that Ms. Yacucha
had signed a release in favour of CN was not determinative, and that a release
could be rendered unenforceable, if it was coerced or was signed under duress.
[38]
Ms.
Yacucha has not pointed to any error in the adjudicator’s identification of the
principles governing voluntary resignation and involuntary dismissal, and it is
clear from her submissions that what she takes issue with is the adjudicator’s
application of those principles to the facts of this case. I am of the view
that this is a question of mixed fact and law, which is reviewable against the
reasonableness standard.
[39]
In
Canada (Director of Investigation and Research, Competition Act) v. Southam
Inc., [1997] 1 S.C.R. 748, the Supreme Court found that an unreasonable
decision was one that “in the main” was not supported by reasons that could
stand up to a “somewhat probing examination”. As a consequence, in reviewing a
decision on the reasonableness standard, the Court must ascertain whether the
reasons given by the decision-maker support the decision.
[40]
A
decision will only be found to be unreasonable if there is no line of analysis
within the reasons that could reasonably lead the decision-maker from the
evidence to the conclusion. A decision may be reasonable “if it is supported by
a tenable explanation even if this explanation is not one that the reviewing
court finds compelling”. See: Law Society of New Brunswick v. Ryan, [2003] 1
S.C.R. 247, 2003 SCC 20 at ¶ 55.
[41]
Insofar
as Ms. Yacucha’s second issue is concerned, she does not say that her mental
state was such that she was incompetent, or otherwise incapable of voluntarily
choosing to leave her employment. Rather she says that having accepted that
she was operating under significant stress, and that she sincerely believed
that she was being mistreated by her employer, the adjudicator erred in failing
to find that she was not ‘operating on all cylinders’ when she signed the
release finalizing her departure from CN.
[42]
I
do not need to decide whether this issue, which obviously has a significant
factual component to it, should be reviewed against the standard of
reasonableness or patent unreasonableness, as I am satisfied that it can
withstand scrutiny under the more exacting reasonableness standard.
Analysis
[43]
Before
commencing my analysis I should note that an issue was raised in CN’s
memorandum of fact and law with respect to the admissibility of an affidavit
sworn by Ms. Yacucha in support of her application for judicial review, given
that the affidavit allegedly contained extrinsic evidence that was not before
the adjudicator when he made his decision. This issue was not pursued at the
hearing, and it is not necessary for me to deal with it, as, having read the
affidavit, nothing in it affects my decision.
[44]
I
will start my analysis by considering Ms. Yacucha’s second issue, namely the
alleged failure of the adjudicator to properly consider her psychologically
vulnerable condition in assessing whether she had voluntarily resigned her
position with CN or had been dismissed.
[45]
In
this regard, it should be noted that Ms. Yacucha’s position with respect to the
import of the medical evidence has evolved somewhat since the hearing before
the adjudicator. Before the adjudicator, Ms. Yacucha took the position that the
condition of her mental health in August of 1998 was such that she did not have
the requisite capacity to make decisions with respect to her employment
situation at CN.
[46]
Ms.
Yacucha’s argument in this Court is a little different: that is, she argues
that the adjudicator did not properly take into account her psychological
vulnerability in assessing the significance of the events leading up to her
departure from CN.
[47]
I
would start by observing that the adjudicator went through a careful and
detailed analysis of the medical evidence before him regarding Ms. Yacucha’s
psychological state in coming to his conclusion that the evidence did not
support a finding that she lacked the requisite capacity to make a decision
regarding her employment at CN in August of 1998. I can see no error in his
analysis, and am satisfied that the adjudicator’s conclusion in this regard was
eminently reasonable on the record before him.
[48]
With
respect to the alleged failure of the adjudicator to properly consider the
impact that her psychological vulnerability had in assessing the events of
August, 1998, I am not persuaded that the adjudicator erred as alleged by Ms.
Yacucha.
[49]
In
arriving at his decision, the adjudicator was clearly aware of the stress that
Ms. Yacucha was under during the summer of 1998. Indeed, a review of the
adjudicator’s decision reveals that in coming to the conclusion that Ms.
Yacucha had voluntarily resigned from CN, the adjudicator carefully considered
the evidence before him with respect to the stressors in both Ms. Yacucha’s
employment and in her personal life.
[50]
That
is, in assessing whether Ms. Yacucha had the necessary subjective intent to
leave her employment, the adjudicator expressly took into account the fact that
she was clearly finding her employment with CN to be very stressful, and that
she longed to return to Calgary for personal reasons.
[51]
The
adjudicator also observed that Ms. Yacucha would have been well aware of the
fact that there were no guarantees of continuing employment with CN in Winnipeg over the
long term, and that the package offered by CN would constitute a significant
financial inducement.
[52]
Taking
all of these factors into account, the adjudicator specifically found that he
could not give effect to Ms. Yacucha’s submission that the decision to leave
her employment was irrational.
[53]
Moreover,
the adjudicator was clearly alert, alive and sensitive to the stress that Ms.
Yacucha was under at the time that she left CN. After carefully weighing the
evidence on this point, the adjudicator found that these stressors were
actually a large part of the reason why she wanted to leave CN and return to Calgary.
[54]
I
am thus satisfied that the adjudicator understood and considered the evidence
regarding Ms. Yacucha’s psychological state in August of 1998, and that the
conclusions reached by him in this regard were ones that were reasonably open
to him. As a consequence, I am not persuaded that there is any basis for
interfering with this aspect of the decision under review.
[55]
Turning
then to Ms. Yacucha’s primary argument, she says that the adjudicator erred by
not properly considering the cumulative effect of the letter sent to Ms.
Yacucha on August 27, 1998, indicating that her employment with CN would
terminate effective August 31, 1998, the inclusion of AD’s name in place of
that of Ms. Yacucha on the departmental organizational chart, and Mr.
Stevenson’s statements to Ms. Yacucha at their meeting on August 31, 1998.
[56]
According
to Ms. Yacucha, these events turned what may have started as a voluntary
separation into an involuntary termination, such that Ms. Yacucha should not be
bound by the release that she signed.
[57]
As
I understand Ms. Yacucha’s argument, she says that while she may have been
considering resigning from CN, she had not, as of August 27, 1998, made a final
decision in this regard. Nevertheless, CN sent her a letter telling her that
her employment would terminate at the end of the month. Moreover, CN acted
unilaterally in circulating an organizational chart that indicated that there
was no longer a position for her at the company.
[58]
Finally,
and most egregiously, she says, when she met with Mr. Stevenson on August 31,
1998, and tried to tell him that she had reconsidered, and did not want to
leave CN, he told her that there was no longer a job for her.
[59]
Ms.
Yacucha submits that until such time as she actually signed the release, she
was still a CN employee, and was entitled to her job. In telling her that she
no longer had a job in his department, Mr. Stevenson stripped her of all choice
in the matter, and effectively dismissed her. The fact that she subsequently
accepted the separation package, and signed the release is irrelevant, she
says, as she was coerced into doing so by Mr. Stevenson’s conduct.
[60]
I
cannot accept Ms. Yacucha’s arguments. The adjudicator found as a fact no one,
including Mr. Stevenson, wanted to see Ms. Yacucha leave CN, and that it was
only after Ms. Yacucha approached CN to see if a separation package could be
made available for her if she were to leave CN that the discussions about her
departure began.
[61]
Moreover,
the adjudicator expressly found that some time prior to August 27, 1998, Ms.
Yacucha advised Mr. Stevenson that she wanted to accept the package and
voluntarily leave her employment with CN.
[62]
Efforts
were then made to put the separation into effect. To this end, it was
necessary to identify someone who could swap positions with Ms. Yacucha. Ms.
Yacucha understood that this was the process, and knew that AD would be taking
over her position. A new organizational chart was then drawn up, reflecting
this change. The fact that the chart was circulated at a staff meeting on
August 28, 1998 is not particularly troubling, given that it was evidently
generally known in the department that Ms. Yacucha would be leaving CN to move
back to Calgary. Indeed,
Ms. Yacucha’s co-workers were in the process of organizing a farewell party for
her.
[63]
I
also cannot accept Ms. Yacucha’s submission that the wording of CN’s August 26,
1998 letter was somehow coercive. The letter simply reflected what appears to
have been both sides’ understanding to this point, which was that Ms. Yacucha
would be leaving the company, and that her employment would terminate on August
31, 1998.
[64]
In
this regard, the adjudicator observed that Ms. Yacucha did not question the
wording of the letter when Mr. Stevenson gave it to her, nor did she raise the
wording of the letter as a concern with anyone else at CN. Rather, she sought
financial advice with respect to the tax implications of the package, and made
what the adjudicator found to be thoughtful and intelligent decisions in order
to minimize her tax liabilities.
[65]
This
leaves Ms. Yacucha’s meeting with Mr. Stevenson on August 31, 1998. There is
no dispute between the parties that at that meeting, Ms. Yacucha told Mr.
Stevenson that she was having second thoughts about leaving CN, and that Mr.
Stevenson told her that he no longer had a position for her.
[66]
Given
the fact that Ms. Yacucha had previously indicated that she accepted the
severance package, and that the swap had already been arranged with AD,
specifically so that Ms. Yacucha could get the severance package that she had
asked for, Mr. Stevenson’s evident frustration with her last-minute change of
heart is perhaps understandable, if regrettable.
[67]
Nevertheless,
there is also no dispute about the fact that Mr. Stevenson quickly regained his
composure, and suggested that Ms. Yacucha go away and think things over, and
that if she still wanted to stay with CN, he would see what he could do for
her.
[68]
Contrary
to Ms. Yacucha’s submission, the adjudicator clearly understood and expressly
accepted that Ms. Yacucha had the right to change her mind at this point, given
that she was still a CN employee. However, the adjudicator went on to look to
what happened next, in order to determine whether her departure from CN was
indeed voluntary.
[69]
That
is, the adjudicator considered the fact that Ms. Yacucha did not take Mr.
Stevenson up on his offer, and did not call him back to have him see what could
be done for her, nor did she contact anyone else at CN in this regard. Rather,
what she did was to think things over, and to go back to the relocation
counsellors and sign the separation documents, including the release.
[70]
Ms.
Yacucha then left a voicemail message for Mr. Stevenson, telling him that she
had just had a case of cold feet, and that having thought the matter over some
more, she wanted to go ahead with her plan to leave CN. Moreover, she told Mr.
Stevenson that she was comfortable with her decision.
[71]
The
adjudicator also looked at what it was that Ms. Yacucha herself said to her
family doctor shortly after her departure about what had happened at CN. In
this regard, it bears repeating that Ms. Yacucha told her family doctor that
she had quit her job at CN, and that she had started to regret that
decision. There is nothing in Dr. Giesbrecht’s notes to suggest that Ms.
Yacucha said anything about having felt coerced into leaving CN, whether by Mr.
Stevenson or by anyone else at CN. Nor is there anything in Dr. Giesbrecht’s
notes from this period that would indicate that Ms. Yacucha believed that her
departure was anything but voluntary.
[72]
It
was thus entirely reasonable for the adjudicator to have concluded that had Ms.
Yacucha really believed that she had been coerced in some way into leaving her
employment at CN, that she would never have made these statements to Dr.
Giesbrecht. Moreover, it was entirely reasonable for the adjudicator to have
concluded that Ms. Yacucha voluntarily left her employment with CN, and that
she was not dismissed.
Conclusion
[73]
For
these reasons, I am satisfied that the adjudicator did not misapprehend the law
relating to resignation and involuntary dismissal. Moreover, his finding that
Ms. Yacucha voluntarily left her employment with CN is one that is amply
supported by the record, and which can withstand a somewhat probing
examination.
[74]
As
a consequence, Ms. Yacucha’s application for judicial review is dismissed, with
costs.
JUDGMENT
THIS COURT ORDERS AND
ADJUDGES that this application for judicial review is dismissed, with
costs.
“Anne
Mactavish”
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