Date: 20080807
Docket: T-351-08
Citation: 2008
FC 935
Vancouver, British
Columbia,
August 7, 2008
PRESENT: Roger R. Lafrenière, Esquire
Prothonotary
BETWEEN:
LI
MIN ("AMANDA") WU
Applicant
and
ROYAL
BANK OF CANADA
Respondent
REASONS FOR ORDER AND ORDER
LAFRENIÈRE P.
[1]
The present motion arises in the context of an application for
judicial review in respect of the decision of Adjudicator Petersen made
pursuant to the Canada Labour Code dismissing the Applicant’s complaint
that she was unjustly dismissed by the Royal Bank of Canada
(RBC). The Applicant seeks an order compelling answers to written
cross-examination questions that were refused by RBC on the grounds of
relevance.
Background
[2]
The Applicant’s employment as a credit
adjudication agent with RBC was terminated on July 12, 2006 based on
allegations of misappropriation of funds. The Applicant filed a complaint of
unjust dismissal and the matter proceeded to adjudication over a period
of six days in July 2007. Adjudicator Petersen heard the evidence of a number
of witnesses, including the Applicant, who testified on her own behalf. In a 24
page decision dated February 1, 2008, Adjudicator Peterson dismissed the
Applicant’s complaint.
[3]
The Applicant filed a Notice of Application on March 3, 2008 for
an order quashing the Adjudicator’s decision and referring the matter back for
redetermination. Four main grounds are cited. First, the Adjudicator acted
without or beyond jurisdiction by upholding the Applicant’s dismissal for
non-work-related conduct and contrary to RBC’s policies, practices and
guidelines for discipline. Second, the Adjudicator failed to observe the
principle of natural justice and procedural fairness, and in particular failed
to provide an interpreter. Third, the Adjudicator erred in law in making his
decision. Fourth, the Adjudicator based his decision on erroneous findings of
fact made in a perverse or capricious manner.
[4]
The Applicant filed an affidavit in support of her application on
March 28, 2008. Paragraphs 2 to 28 of the affidavit consist of facts leading to
the Applicant’s dismissal. It is unclear whether these facts were before the
adjudicator, or whether the Applicant is attempting to introduce new evidence.
At paragraphs 31 to 35, the Applicant complains about the conduct of the
hearing before the Adjudicator. She says that an interpreter was not provided
to her at the hearing. She also claims that she was visibly stressed and
anxious during cross-examination by RBC’s counsel. She further alleges that she
was denied an opportunity to speak to her lawyer before the Adjudicator ruled
that the speaking notes which she was referring to during her testimony should
be entered into evidence.
[5]
RBC responded by filing the affidavits of Joan Nicholson,
Jennifer Roper and Bob Montgomery. In the last four paragraphs of her
two page affidavit, Ms. Nicholson, Manager of Cards Contact Centre with RBC in Vancouver,
addresses four matters raised in the Applicant’s affidavit. First, she states
that the Applicant was not promoted to the Visa Credit Department, as asserted
by the Applicant, but rather that it was considered a lateral move. Second, in
response to the Applicant’s assertion that she received no warning that money
transferring activity was grounds for discipline, Ms. Nicholson points to the RBC
Code of Conduct, which refers specifically to misappropriation. Third, in
answer to the Applicant’s assertion that she was denied progressive discipline,
Ms. Nicholson declares that RBC has a consistent practice of terminating
employees immediately in cases of misappropriation or dishonesty. Fourth, Ms.
Nicholson observes that the Applicant did not appear to have any difficulty
understanding the proceedings before the Adjudicator.
[6]
Ms. Roper, who was co-counsel for RBC at the hearing before the
Adjudicator, filed an affidavit to respond to the Applicant’s allegations of
procedural unfairness. She declares that at no time during the hearing before
the Adjudicator did the Applicant request the assistance of an interpreter. Ms.
Roper states that she did not observe the Applicant experiencing any difficulty
in understanding the proceeding because of language issues. Ms. Roper also fleshes
out the facts leading the Adjudicator’s decision to admit the Applicant’s
speaking notes into evidence.
[7]
The Applicant served the Respondent with written
cross-examination questions. There are 84 questions addressed to Ms. Nicholson
and 37 questions to Ms. Roper. On June 27, 2008, Ms. Nicholson
and Ms. Roper provided their written responses to the written cross-examination.
In a cover letter to the written responses, counsel for the Respondent objected
to a number of the Applicant’s written examination questions and advised that
she had instructed Ms. Nicholson and Ms. Roper to not answer the objectionable
questions.
[8]
By this motion, the Applicant seeks an order compelling Ms.
Nicholson to answer questions 1, 2, 3, 9, 12, 13, 20, 27, 28, 29, 30, 31, 32,
33, 40, 41, 42, 45, 47, 49, 51, 53, 55, 56, 57, 58, 81, 82, 83, and 84, and an
order compelling Ms. Roper to answer questions 1, 2, 6, 7, 8, 9, 11, 12, 13,
14, 15, 17, 18, 19, 20, 21, 23, 24, 26, 27, 28, 29, 30, 31, 32, 33, 34, 36, and
37, as set out in the two Written Examinations dated June 23, 2008. In response
to the motion, RBC conceded that certain questions initially refused were
proper cross-examination questions and provided answers by supplementary
affidavits sworn by Ms. Nicholson and Ms. Roper. It maintained its
objections regarding the balance of the questions.
Analysis
[9]
The Applicant submits that the questions posed in the written
cross-examinations are directed to facts sworn by the affiants in their
affidavits, and are factually relevant to the judicial review application. RBC
counters that the Applicant is attempting to re-litigate her claim, and many of
the questions posed to its two affiants are outside the proper scope of
cross-examination. It submits that even when a fact has been sworn to in a
proceeding, it does not have legal relevance unless its existence or
non-existence can assist in determining whether or not the remedy sought can be
granted: Merck Frosst Can. Inc. v. Canada (Min. of Health)
(1997), 80 C.P.R. (3d) 550 (T.D.); affirmed (1999), 3 C.P.R. (4th)
286 (Fed. C.A.) (“Merck”).
[10]
The affidavit material in an application for judicial review
should be aimed at providing the reviewing court with a record of the
proceedings before the Adjudicator, and at supporting an argument going to
procedural fairness or jurisdiction. The purpose of a judicial review is to
review the decision on the basis of the record before the tribunal, and not to
determine, by trial de novo, questions that were not fully canvassed in
evidence before it. In Ochapowace First Nation v. Canada
(Attorney General), 2007 FC 920, the Court described the rationale for this
purpose as follows:
[10] The rationale for that rule is
well known. To allow additional material to be introduced at judicial review
that was not before the decision maker would in effect transform the judicial
review hearing into a trial de novo. The purpose of a judicial review
application is not to determine whether the decision of a tribunal was correct
in absolute terms but rather to determine whether its decision was correct on
the basis of the record before it: Chopra, at para 5; Canadian Tire Corp. v.
Canadian Bicycle Manufacturers Assn., 2006 FCA 56 (CanLII), 2006 FCA 56 at para
13.
[11]
Upon carefully reviewing the parties’ affidavits, I conclude that many
of the Applicant’s cross-examination questions go beyond testing the affiant’s
credibility, beyond establishing the record below for the reviewing court, and
beyond the issues of procedural fairness. A party is not entitled to exploit
cross-examination in order to correct deficiencies in the evidence before the
decision-maker.
[12]
Bearing these principles in mind, I now turn to the questions addressed
to Ms. Nicholson and Ms. Roper.
Written Examination of Ms. Nicholson
Questions
1 to 4
Ms. Nicholson has provided a response to these questions in her
affidavit sworn on July 21, 2008. No further response is required.
Question
9
Ms. Nicholson has provided a response to this question in her
affidavit sworn on July 21, 2008. No further response is
required.
Questions
12 and 13
Ms. Nicholson has provided a
response in her affidavit sworn on July 21, 2008.
Question
20
According to the Applicant, this question seeks to determine “what
the Applicant knew, how she knew it, and when she knew it” with regard to
misappropriation and kiting. The question is not formally relevant since no
deponent has sworn any facts on this issue, or questioned the evidence that was
before Adjudicator Petersen with respect to whether the terms of
misappropriation and kiting were thoroughly explained to Ms. Wu.
Questions
27 and 28
The questions are not formally relevant since no deponent has
questioned the evidence that was before Adjudicator Petersen with respect to
the definitions of “kiting” contained in the Code of Conduct.
Questions
29 and 30
The questions are not relevant.
Cross-examination on an affidavit is limited to the facts sworn to by the
deponents. Ms. Nicholson’s Affidavit does not contain any facts relating to Ms.
Wu’s money transferring activities. In addition, Ms. Wu, in her affidavit, does
not take issue with the evidence before Adjudicator Petersen on whether her
money transferring activities resulted in money being transferred to another
banking institution.
Questions
31 and 32
Adjudicator Petersen’s decision sets out the record of the evidence
before him on the issue of kiting, misappropriation and the reasons for the
Applicant’s termination of employment. The questions are not legally or
formally relevant.
Question
33
The question is irrelevant as it does not go to facts sworn to by Ms.
Nicholson or the deponent of any other affidavits filed in the proceeding.
Questions
40 to 42, 45, 47 and 49
Ms. Nicholson has provided a response to these questions in
her affidavit sworn on July 21, 2008 outlining the evidence that was
before Adjudicator Petersen. No further response is required.
Question
51
The Applicant inquires whether RBC terminates all employees
who are guilty in situations of misappropriation (emphasis added). The question
should be answered in light of the assertion made by Ms. Nicholson at paragraph
6 of her affidavit that RBC has a consistent practice of termination. The
ultimate relevance of the question and answer should be left to the judge
hearing the application.
Question
53
The question is not formally relevant since no deponent has
questioned any evidence that was before Adjudicator Petersen with respect to
comparing Ms. Wu’s termination for misappropriation with the discipline of
other employees caught in situations of misappropriation. The question also
goes beyond the proper scope of cross-examination and is an attempt to re‑litigate
Ms. Wu’s dismissal.
Questions
55 to 58
The questions are not legally or formally relevant. On the face of
the decision, Adjudicator Petersen noted that the Applicant had been summarily
terminated for cause and based his decision on whether or not the Respondent
had grounds for summary termination.
Questions
81 to 84
The questions are improper since they have no bearing on Ms.
Nicholson’s ability to observe whether Ms. Wu had difficulty understanding the
proceedings. Question 83 is also irrelevant relevant. Question 84 has already
been answered in Ms. Nicholson’s Answers to Written Examination dated June 26,
2008.
Written Examination of Ms. Roper
Questions
1, 2 and 23:
With respect to question 1, the issue of the pre-hearing
applications is only relevant in so far as they relate to whether Ms. Wu
required an interpreter. As such, the nature of the other pre-hearing
applications has no bearing on the outcome of the litigation. This question is
nothing more than a fishing expedition. As for questions 2 and 23, they are
irrelevant.
Questions
6 and 7:
The questions are irrelevant to the judicial review proceedings
since the answer to these questions do not assist in determining whether or not
the remedies sought by the Applicant can be granted.
Questions
8 and 9:
The questions have no bearing on Ms. Roper’s ability to comment on
her observations while in attendance at the hearing. Whether Ms. Roper herself
has ever learned a foreign language has no bearing on the issue of whether Ms.
Wu had difficulty understanding the proceedings, and no bearing on whether an
interpreter should have been provided.
Questions
11 to 15:
The application for judicial review does not allege that Adjudicator
Petersen’s alleged failure to provide equal time to the parties breached
the Applicant’s right to procedural fairness or breached the principles of
natural justice. On that basis, the questions are not relevant.
Questions
17 to 21:
This question asks Ms. Roper to comment on what factors led to her
concerns regarding Ms. Wu’s capacity to understand English. Ms Roper does
not depose that she herself expressed any concern. Question 17 is therefore not
relevant since it is outside the facts sworn to by Ms. Roper. Questions 18
to 21 have been answered in Ms. Roper’s Answers to Written Examination dated
June 27, 2008.
Question
24:
The Respondent concedes that this is a proper cross-examination
question. Ms. Roper has now provided an answer to this question in her
Affidavit sworn on July 18, 2008. No further response is required.
Questions
26 to 29:
Ms. Roper answered these questions in her Answers to Written
Examination dated June 27, 2008. No further response is
required.
Questions
30 to 34:
The general nature of the questions asked of Ms. Wu is not relevant.
Questions 32 is improper because it calls for a conclusion or opinion. Question
33 is irrelevant.
Questions
36 and 37:
The questions are improper as they go beyond the facts sworn to by Ms.
Roper or the deponent of any other affidavits filed in the proceeding. In any
event, the question appear to be irrelevant to any issues in the application.
Conclusion
[13]
The Respondent does not object to the Applicant filing a supplement to
the Applicant’s Record, provided any supplement is limited to the answers
sought in this Motion. In the circumstances, the Applicant is granted leave to
serve and file a Supplementary Applicant’s Record.
[14]
In light of the divided success of the parties, in that RBC conceded
that certain questions refused should be answered, and has been ordered to
answer an additional one, I conclude that the parties should bear their own
costs on this motion.
ORDER
THIS COURT
ORDERS that:
1.
Ms. Joan
Nicholson, affiant of the Respondent, Royal Bank of Canada, shall answer question 51 of the Applicant’s
written examination within 10 days of the date of this Order.
2.
The
Applicant is granted leave to serve and file a Supplementary Applicant’s
Record, limited to the additional answers provided by the Royal Bank of Canada, within 20 days of service of
the answer to question 51 of Ms. Nicholson’s written examination.
3.
The
Respondent shall serve and file the Respondent’s Record within 20 days of
service of the Applicant’s Supplementary Record, or the expiration of the time
for doing so, whichever is earlier.
4.
The motion
is otherwise dismissed, without costs.
“Roger R. Lafrenière”
Email this Content