Date: 20081024
Docket: T-1036-07
Citation: 2008 FC 1181
BETWEEN:
NADINE KASSAB
Applicant
and
BELL CANADA
Respondent
REASONS FOR JUDGMENT
Pinard J.
[1]
This is an
application for judicial review of the decision of Nathalie Faucher, appointed
as an adjudicator under Division XIV of Part III of the Canada Labour Code,
R.S.C. 1985, c. L-2 (“the adjudicator”), who dismissed the applicant’s
complaint concerning the termination of her employment by the respondent.
[2]
The
applicant was hired by the respondent on April 28, 2003. On December 13, 2004, she was appointed Billing Solutions
Director.
[3]
The
applicant’s immediate supervisor in her new position, Francine Ahern, was
replaced by Anne Couture on April 11, 2005. According to the applicant, from
her first meeting with Ms. Couture, their relationship was fraught with
numerous difficulties, as Ms. Couture was [translation]
“aggressive” and said [translation]
“very insulting things”. On the other hand, according to Ms. Couture’s
version, she simply tried to help the applicant to improve by arranging monthly
coaching sessions.
[4]
On October 31, 2005, two new employees began
working in the same division as the applicant. Those two employees had previously
worked for the respondent for 7 and 25 years respectively.
[5]
On November
3, 2005, the applicant was advised that her employment was to be terminated on February 2, 2006. She received a letter of
termination of employment explaining that [translation]
“because of
changes in the business, your employment with the company is terminated”.
[6]
According
to Ms. Couture’s testimony at the hearing before the adjudicator, she was
advised of the elimination of two positions in her division during a conference
call on October 24, 2005. It was up to Ms. Couture to set the criteria for
choosing which employees would be laid off. Ms. Couture also explained
that the two other employees who began working on October 31, 2005, had been hired before she was
advised of the cutbacks.
[7]
According
to the applicant’s affidavit, within three months following the end of her
employment, Ms. Couture hired two other billing solutions directors. The
applicant also alleges that in January 2006, a third person was hired,
supposedly to work under the supervision of Sylvie Carbonneau, although she later
learned that the third person’s supervisor was actually Ms. Couture. However, the
evidence does not show whether the applicant raised the issue of those two hirings
by Ms. Couture before the adjudicator, who in her order only mentioned the
person who was allegedly supervised by Ms. Carbonneau. In her affidavit, the
applicant also referred to a fourth position that had been posted in April 2006
and for which she had applied, but without success. In its written submissions
to the adjudicator, the respondent explained that this position became
available because one of the directors had accepted another position and had to
be replaced.
[8]
On April
26, 2006, the applicant filed a complaint of unjust dismissal under section 242
of the Canada Labour Code.
* * * * * * * *
[9]
After
having summarized the evidence and the submissions of the applicant and the
respondent, the adjudicator began her analysis as follows:
[translation]
[57] The issue in this case is whether
the termination of Ms. Kassab’s employment results from a lack of work or the
closing of a position and whether the decision to terminate her employment was
made in good faith by the employer. . . .
[58] If I conclude that the termination
of the complainant’s employment actually is a lay off due to a lack of work or
to the closing of a position, I must allow the employer’s preliminary objection
and rule that I do not have jurisdiction. . . .
[10]
The
adjudicator considered the case law that defined “lack of work” and “discontinuance
of a function”, noting that it is up to the employer not only to establish the
economic justification for terminating employment, but also to explain the
choice to dismiss an employee. If the employer succeeds, it is up to the
applicant to show that the termination is in fact a constructive dismissal:
[translation]
[64] The fact that the employer actually
did reorganize its operations on November 3, 2005, is not really contested as
well as the fact that two positions had to be cut in the department where Ms.
Kassab worked, as it appears from the documentary evidence as well as from the
testimonies given. The evidence also showed that this reorganization was part
of a broad restructuring process which led the employer to lay off several
hundreds of employees during 2005.
. . .
[66] It was shown that when she was
advised that she had to cut positions, Ms. Couture determined the criteria
according to which she would make the selection of the persons targeted. She
decided to cut the positions which would affect team efficiency and customer satisfaction
as little as possible and which would dampen team spirit as little as possible.
Case law is to the effect that the choice of criteria used to cut positions
belongs to the employer. To the extent that such criteria are not
discriminatory and they are applied in good faith, the adjudicator cannot
intervene. . . .
[68] Nothing in the evidence shows that
the criteria used by Ms. Couture were selected in bad faith to target
someone in particular. Quite the contrary, it is noted that she tried to proceed
with cutbacks so that their impact be as small as possible on the employer’s
operations. It can certainly not be considered that such an objective is
contrary to good faith. In addition, the criteria retained by her were relevant.
[69] In fact, the complainant’s allegation is
rather to the effect that it was in applying these criteria that the employer
acted in bad faith and used the pretext of this reorganization to get rid of
her. To do so she first of all alleged that Ms.Couture chose her because of a
conflict of personality which put them at loggerheads. Secondly, she submitted
that the employer used a pretext because it hired employees in the days
preceding the termination of her employment and a position opened in January.
Finally, she submitted that she should have been treated like Mr. N.A. and be
considered as an employee who was recently hired and therefore she was treated
in a discriminatory manner when compared with this co-worker.
[11]
The
adjudicator refers to an assessment that Ms. Couture made of employees in her
division before she was advised of the cutbacks, an assessment that was
approved by her superiors without modification. The applicant’s performance was
assessed as being [translation] “not as good”:
[translation]
[72] . . . The undersigned does not see
anything which may be considered as being discriminatory or unreasonable in the
fact of using the assessment in making the decision. . . . In addition,
the evidence corroborates the fact that Ms. Kassab had not reached the level of
performance expected by the employer because various measures had been applied
to help her improve her performance. . . .
[12] The adjudicator considered the positive assessments
that the applicant had previously obtained in her employment. However, these assessments
do not show that the applicant had [translation] “attained
the results expected by the employer in the position she held when her
employment was terminated”.
[13] Regarding the other two persons hired in the days
preceding the applicant’s termination of employment, the adjudicator concludes
that the hirings were made before the reorganization was known and were not intended
to replace the applicant: [translation] “In other words, there is no
evidence of a fictional discontinuance of Ms. Kassab’s position for the benefit
of these two persons. There is also no evidence to the effect that this hiring
was a pretext on behalf of the employer”.
[14] In relation to the posting of a billing solutions
director’s position in January 2006, the adjudicator concludes that the
evidence does not show that this position was intended to replace the one that
had been held by the applicant.
[15] Finally, the adjudicator dismisses the applicant’s claim
to the effect that she had been treated in a discriminatory manner because her
conduct had not been assessed in the same way as that of Mr. N.A., another billing
solutions director who had been hired shortly after the applicant. According to
the adjudicator:
[translation]
[77] . . . According to the testimony
given by Ms. Couture, when she had conducted her assessment she was not yet
able to assess him differently and this is why she classified him in square no.
7. As previously underlined, the privilege of assessing employees belongs
strictly to the employer and the undersigned does not have jurisdiction on this
issue, especially considering the fact that this assessment was prepared even
before Ms. Couture knew there was going to be a reorganization.
[16] The adjudicator concludes that [translation]
“. . . the
layoff of Ms. Kassab results from the discontinuance of her position resulting
from a reorganization made for economic reasons and the employer clearly
explained the reasons for its choice”. Accordingly, the adjudicator was of the
opinion that under subsection 242(3.1) of the Canada Labour Code, she
did not have jurisdiction to hear the applicant’s complaint.
* * * * * * * *
[17] The following provisions of the Canada Labour Code
are relevant to this case:
|
16. The Board has, in relation to any
proceeding before it, power
. .
.
(c)
to receive and accept such evidence and information on oath, affidavit or
otherwise as the Board in its discretion sees fit, whether admissible in a
court of law or not;
242. (2) An adjudicator to whom
a complaint has been referred under subsection (1)
(a)
shall consider the complaint within such time as the Governor in Council may
by regulation prescribe;
(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;
and
(c)
has, in relation to any complaint before the adjudicator, the powers
conferred on the Canada Industrial Relations Board, in relation to any
proceeding before the Board, under paragraphs 16(a), (b) and (c).
(3)
Subject to subsection (3.1), an adjudicator to whom a complaint has been
referred under subsection (1) shall
(a)
consider whether the dismissal of the person who made the complaint was
unjust and render a decision thereon; and
(b)
send a copy of the decision with the reasons therefor to each party to the
complaint and to the Minister.
(3.1)
No complaint shall be considered by an adjudicator under subsection (3) in
respect of a person where
(a)
that person has been laid off because of lack of work or because of the
discontinuance of a function; or
(b)
a procedure for redress has been provided elsewhere in or under this or any
other Act of Parliament.
|
16. Le Conseil peut, dans le
cadre de toute affaire dont il connaît :
[…]
c) accepter sous serment, par
voie d’affidavit ou sous une autre forme, tous témoignages et renseignements
qu’à son appréciation, il juge indiqués, qu’ils soient admissibles ou non en
justice;
242. (2) Pour l’examen du cas
dont il est saisi, l’arbitre :
a) dispose du délai fixé par
règlement du gouverneur en conseil;
b) fixe lui-même sa
procédure, sous réserve de la double obligation de donner à chaque partie
toute possibilité de lui présenter des éléments de preuve et des
observations, d’une part, et de tenir compte de l’information contenue dans
le dossier, d’autre part;
c) est investi des pouvoirs
conférés au Conseil canadien des relations industrielles par les alinéas 16a),
b) et c).
(3)
Sous réserve du paragraphe (3.1), l’arbitre :
a) décide si le congédiement
était injuste;
b) transmet une copie de sa
décision, motifs à l’appui, à chaque partie ainsi qu’au ministre.
(3.1)
L’arbitre ne peut procéder à l’instruction de la plainte dans l’un ou l’autre
des cas suivants :
a) le plaignant a été
licencié en raison du manque de travail ou de la suppression d’un poste;
b) la présente loi ou une
autre loi fédérale prévoit un autre recours.
|
[18] The following provision of the Federal Courts
Rules, SOR 98/106, is also relevant:
|
81. (1) Affidavits shall be
confined to facts within the personal knowledge of the deponent, except on
motions in which statements as to the deponent’s belief, with the grounds
therefor, may be included.
|
81. (1) Les affidavits se
limitent aux faits dont le déclarant a une connaissance personnelle, sauf s’ils
sont présentés à l’appui d’une requête, auquel cas ils peuvent contenir des
déclarations fondées sur ce que le déclarant croit être les faits, avec
motifs à l’appui.
|
* * * * * * * *
[19] The issues raised by the applicant may be summarized as
follows:
(1) Did the adjudicator make
erroneous findings concerning the facts surrounding dismissal?
(2) Did the adjudicator err in law
in accepting oral evidence based on hearsay and documentary evidence that was
modified by the respondent?
(3) Did the adjudicator infringe
the applicant’s right to procedural fairness at the hearing?
* *
* * * * * *
[20] As a preliminary matter, the respondent asks that
paragraphs 3, 7, 8, 14, 17, 24, 26, 28, 34, 36, 38, 39 and 41-3 of the
applicant’s affidavit be struck because they do not comply with
subsection 81(1) of the Federal Courts Rules, which provides that
affidavits shall be confined to facts within the personal knowledge of the
deponent, who may not “base his or her arguments on beliefs or suppositions nor
speculate, argue or draw legal conclusions in an affidavit filed in connection
with an application for judicial review” (Bakayoko v. Bell Nexxia, 2004 FC
1408 at paragraph 22, [2004] F.C.J. No.1705 (T.D.) (QL)).
[21] I agree with the respondent that several paragraphs
of the applicant’s affidavit contain statements that are beyond her knowledge and
include suppositions, opinions and arguments. However, most of those paragraphs
also contain facts that are within the applicant’s personal knowledge.
Accordingly, I am of the opinion that instead of completely striking those
paragraphs, the evidence therein that is not clearly within the personal
knowledge of the applicant must not be given any weight.
[22] First of all, the applicant submits that the
adjudicator made erroneous findings concerning the facts surrounding her
dismissal.
[23] The question the adjudicator had to answer was
whether the applicant’s employment was terminated because of lack of work or
the discontinuance of a function. If so, under subsection 242(3.1) of the Canada
Labour Code, the adjudicator did not have jurisdiction to hear the
applicant’s complaint concerning the merits of the decision to lay her off.
[24] For an employer to rely on subsection 242(3.1) of the
Canada Labour Code, it has to show two things: “first,
an economic justification for the layoff; and second, a reasonable explanation
for the choice of the employees to be laid off” (Enoch Cree Nation Band v.
Arleen Thomas, 2004 FCA 2 at paragraph 5, [2004] F.C.J. No. 3
(C.A.) (QL)).
[25] When an employer proves these facts, it is up to the
complainant to persuade the adjudicator that “the otherwise justifiable action of the employer is a ‘sham’,
a ‘subterfuge’, ‘malicious’ or ‘covert’ ”, which may be the case if the set of
activities performed by the laid-off employee is handed over in its
entirety to another person (Flieger
et al. v. New
Brunswick,
[1993] 2 S.C.R. 651).
[26] Here, the applicant contests above all the
adjudicator’s conclusion to the effect that the termination of her employment
was part of the restructuring of the business, a restructuring which, according
to the submissions of the parties, affected either 950 or 4,000 of the
respondent’s employees.
[27] The parties filed their written submissions before
the judgment of the Supreme Court of Canada (SCC) in Dunsmuir v.
New-Brunswick, [2008] 1 S.C.R. 190, in which the SCC ruled that there are only two standards
of review applicable to decisions of administrative tribunals: correctness and
reasonableness. To determine the applicable standard of review, the SCC noted:
[53] Where the question is one of fact,
discretion or policy, deference will usually apply automatically (Canada
(Attorney General) v. Mossop, [1993] 1 S.C.R. 554, at pp. 599-600; Dr. Q,
at para. 29; Suresh, at paras. 29-30). We believe that the same standard
must apply to the review of questions where the legal and factual issues are
intertwined with and cannot be readily separated.
[28] In this case, the applicant contests the adjudicator’s
findings of fact. Therefore, the applicable standard of review is
reasonableness, which “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, above, at
paragraph 47).
[29] The applicant criticizes the adjudicator for having written
that the dismissal of the two employees by Ms. Couture was [translation] “not
really contested”, as it was part of the restructuring of the respondent’s
organization. In my view, that choice of words cannot invalidate the decision,
which when read as a whole clearly shows that the adjudicator properly
considered the applicant’s submissions to the effect that she had not been the
victim of a reorganization affecting her. I am of the opinion that the
adjudicator reasonably concluded that the respondent discharged the burden of
showing that there was an economic reason for terminating the applicant’s employment,
namely the complete restructuring of the business. Although the applicant and
the respondent disagree about the number of positions affected by that
restructuring, a review of the evidence shows that such a restructuring did
indeed take place. In addition, in my opinion, the evidence amply supports the
adjudicator’s conclusion to the effect that there was a reasonable explanation
for the choice to lay off employees, which had been based on criteria
established by Ms. Couture for efficiency and team spirit.
[30] Accordingly, it was up to the applicant to show that the
termination of her employment was a “subterfuge”. I cannot conclude that the
adjudicator drew unreasonable conclusions in that regard. The evidence shows
that of all the employees supervised by Ms. Couture, it was the applicant and
another employee who were classified in square 2, which meant satisfactory
performance but a potential for growth that was considered to be low. That
assessment was approved by Ms. Couture’s supervisors. The adjudicator took into
consideration the applicant’s allegations of discrimination and concluded that
there was a difference between her situation and that of Mr. N.A., who was
classified in square 7 because he was recently hired. In my opinion, the
Court’s intervention is unwarranted regarding this conclusion reached by the
adjudicator.
[31] The applicant also submits that the adjudicator
should have considered Ms. Couture’s attitude toward her and that by omitting
to do so, the adjudicator deprived her of the [translation]
“possibility of arguing that the decision was arbitrary and even
discriminatory”. However, a reading of the adjudicator’s order shows that she considered
the applicant’s allegation to the effect that Ms. Couture had a negative
attitude towards her but concluded that there was no basis to this allegation
and that in reality Ms. Couture did what she could to improve the applicant’s
performance. I cannot conclude that this conclusion is unreasonable.
[32] Finally, the applicant submits that Ms. Couture
should have cancelled the hiring of the two new employees in her division when
she was advised of the cutbacks. However, as the adjudicator noted, it is up to
the employer to determine the way in which employees are chosen for cutbacks.
It is not up to the adjudicator to assess the employer’s specific choice (Enoch
Cree Nation Band, above). The adjudicator considered the applicant’s
allegations but concluded that the respondent chose a reasonable method for
determining which employees would be affected by the cutbacks. Once again, her
decision cannot be characterized as unreasonable.
[33] Secondly, the applicant submits that the adjudicator
erred in law because she admitted the testimony of Ms. Couture, which was based
on hearsay, and because she accepted [translation]
“documentary evidence having been modified by the respondent”.
[34] As regards the latter allegation, the applicant did
not submit any evidence showing how the respondent had modified the documents
in question. In my opinion, this allegation is without merit.
[35] As regards the former allegation, paragraph 242(2)(b)
of the Canada Labour Code is clearly to the effect that an adjudicator
has the authority to determine the procedure to be followed. Under section 16
and paragraph 242(2)(c) of the Canada Labour Code, the
adjudicator may also determine what evidence is admissible. Accordingly, I cannot
conclude that the adjudicator erred in admitting the evidence.
[36] Thirdly, the applicant alleges that the adjudicator
deprived her of the right to make representations at the hearing because she
constantly interrupted her, thereby [translation]
“making her forget her ideas”. There is no doubt that the adjudicator was
obliged to give the applicant the chance to submit her arguments, as set out at
paragraph 242(2)(b) of the Canada Labour Code. However, the
applicant did not submit any evidence showing such interruptions and indicating
which of her arguments she was unable to bring to the adjudicator’s attention.
I conclude that this argument is also without merit.
[37] For these reasons, the intervention of this Court is unwarranted,
and in spite of all the sympathy one may have for the applicant, who was a
victim of a justified reorganization, her application for judicial review must
be dismissed with costs.
“Yvon Pinard”
Ottawa,
Ontario
October
24, 2008
Certified
true translation
Michael
Palles
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