Date: 20081002
Docket: T‑1936‑07
Citation: 2008 FC 1095
Ottawa, Ontario, October 2, 2008
PRESENT:
The Honourable Mr. Justice Beaudry
BETWEEN:
TRANSPORT
D. LALIBERTÉ INC.
Applicant
and
GEORGES
MANCAS
Respondent
REASONS FOR JUDGMENT AND
JUDGMENT
[1]
This
is an application for judicial review by Transport D. Laliberté Inc. (the
applicant) under section 18.1 of the Federal Courts Act, R.S.,
1985, c. F‑7, challenging the decision dated
October 9, 2007, by Adjudicator Claude Roy, in response to a
dismissal complaint filed by Mr. Georges Mancas (the respondent) under
Division XIV of Part III of the Canada Labour Code
(the Code), R.S. 1985, c. L‑2.
I. Facts
[3]
This
company is affiliated with another transport company, SGT 2000 Inc.,
which has between 300 and 400 employees, is located in Saint‑Germain-de-Grantham
near Drummondville,
Quebec, and is also
run by Mr. Coderre.
[4]
The
drivers must use SGT 2000 Inc.’s facilities, yard and garage, and
they are asked to refuel there when they drive past on their way to the United States.
[5]
On
April 1, 2001, the respondent began working for Transport Laliberté Inc.,
which made an assignment in bankruptcy near the end of 2002. Its shares
were acquired by a new company incorporated on November 29, 2002, in
the applicant’s name. Mr. Mancas continued to work for the applicant as a
truck driver from early 2003 to July 17, 2006.
[6]
On
October 4, 2005, a one‑week notice of suspension was issued
against the respondent, who refused to sign it. The notice refers to a note
dated June 7, 2004, regarding the respondent’s behaviour towards the
company’s clients and employees. The notice also mentions a log book performance
report dated January 12, 2005, which criticized Mr. Mancas for
not completing log books properly. The last event occurred on
September 1, 2005; the respondent allegedly did not want to open the
doors of his trailer at the SGT 2000 Inc. guardhouse and was rude and
uncooperative with the guard on duty. The notice also refers to telephone
complaints made by the guard at SGT 2000 Inc. but does not specify
when they were made or the reasons for them. However, there is mention of an e‑mail
sent on September 28, 2005, by the guard at the SGT 2000 Inc.
guardhouse, Mr. Joël Paillé, who complained that the respondent had
criticized him and the procedures.
[7]
On
July 17, 2006, the respondent received a notice of dismissal in which
the word [translation] “Attitude”
is checked off under the heading [translation]
“Nature of the Incident”. The notice does not mention other grounds such as
disobedience, negligence, driving, lateness or driving hours. Under the heading
[translation] “Employer’s Comments”,
the following appears:
[translation]
Mr. Mancas, your driver file
indicates that your attitude towards the SGT2000/TDL companies is unacceptable.
On several occasions, you have behaved aggressively towards employees of these
companies.
. . .
Based on two other similar incidents that
occurred after you were suspended, we note that your behaviour has not
improved. Since SGT2000 is a sister company of TDL and we must work so as to
not endanger other users of the road, and because you do not want to submit to
various policies on control and surveillance of TDL/SGT equipment without
always behaving aggressively towards them, we must terminate your employment
immediately.
[8]
The
notice of dismissal indicates that disciplinary action was taken in the past,
such as the notice of suspension dated October 4, 2005, as well as
the two new incidents that occurred subsequently. On
November 14, 2005, the respondent allegedly let his truck motor run
for more than ten minutes at SGT 2000 Inc.
[9]
On
July 10, 2006, a guard noticed an air leak on the respondent’s truck.
The respondent was returning to work after a week’s vacation, and a truck had
been assigned to him that was not the one he normally drove. That day, the
respondent went to the garage to have the braking system repaired. A little
later in the day, when he arrived at the SGT 2000 Inc. guardhouse,
Dominic Lemire noticed an air leak on the blue pipe of the braking system,
as well as a disconnected electrical wire. The notice of dismissal states that
the respondent refused to go to the garage after these new defects were
discovered. However, the garage repair statement shows that the respondent arrived
at the garage at 2:30 p.m.
[10]
On
August 28, 2006, he made a complaint under subsection 240(2) of
the Code. The complaint was heard on April 30, May 1 and May 2, 2007,
in Québec, and the adjudicator’s decision was issued on
October 9, 2007.
II. Issues
[11]
This
application for judicial review deals with the following issues:
1.
What is
the appropriate standard of review for the adjudicator’s decision?
2.
Did the
adjudicator breach the principles of natural justice and procedural fairness?
3.
Is
the adjudicator’s decision reasonable in the circumstances?
III. Impugned
decision
[12]
First,
it must be noted that in the case of a dismissal complaint under
section 240(1) of the Code, the adjudicator does not have the power to
change the employer’s decision. His or her jurisdiction is limited to
considering whether the dismissal was unjust (paragraph 242(3)(a)
of the Code). The adjudicator need not determine the legality of the employer’s
decision or whether the adjudicator would have rendered a different decision in
the circumstances.
[13]
Accordingly,
the adjudicator had to analyze the allegations against the respondent to
determine whether the dismissal of July 17, 2006, was unjust.
[14]
With
respect to the incident on November 14, 2005, the adjudicator noted
that the respondent did not receive a notice for this incident and was not disciplined.
[15]
According
to the applicant, the culminating incident occurred on July 10, 2006,
(air leak and disconnected wire). The adjudicator explained that the respondent
did not refuse to go to the garage to have the repairs done. The adjudicator
stated that the respondent was angry because the mechanic who repaired the
truck in Saint‑Apollinaire that morning should have seen the air leak and
the disconnected wire if they were present at that time.
[16]
The
adjudicator decided that this incident did not justify dismissal nor could it
be viewed as a culminating incident leading to a dismissal. In his view, it was
unjust to base the respondent’s dismissal on this incident.
[17]
He
set aside the dismissal and ordered the applicant to reinstate the respondent
with compensation for lost wages. He retained his jurisdiction in case the
parties were unable to agree on the quantum.
IV. Relevant
legislation
[18]
The
relevant legislation can be found in Schedule A at the end of these reasons.
V. Analysis
A. What is the appropriate
standard of review?
[19]
In
the recent decision in Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, the Supreme Court
held that there are now two standards of review: correctness and
reasonableness. In the past, the appropriate standard for an adjudicator’s
decision on a question of fact would have been patent unreasonableness.
[20]
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 the law (Dunsmuir, at paragraph 47).
[21]
The
parties submit here that the appropriate standard of review should be
reasonableness. The Court concurs with this statement. An assessment of the
facts is involved. However, where procedural fairness or natural justice is
concerned, the jurisprudence teaches us that the Court does not have to conduct
a pragmatic and functional analysis.
B. Did the adjudicator breach
the principles of natural justice and procedural fairness?
[22]
The
applicant contends that the adjudicator prevented it from making its case, thus
breaching the audi alteram partem rule. The applicant also submits that
refusing to allow it to cross‑examine the respondent on certain aspects
of the case is a breach of procedural fairness.
[23]
The
applicant states that a party must be heard prior to a decision being made that
may affect it. The adjudicator must give each party the opportunity to present
all its evidence (Siu v. Royal Bank of Canada, 2005 FC 1483,
283 F.T.R. 101 at paragraph 56).
[24]
Under
paragraph 242(2)(b) of the Code, the adjudicator determines the
presentation of evidence and the procedure to be followed, but he or she must
comply with the principles of natural justice. The adjudicator cannot deprive a
party of the right to cross‑examine a witness for a party adverse in
interest (Précis de procédure du Québec, 4th edition, vol. 1,
Cowansville, Éditions Yvon Blais, 2003, at page 534).
[25]
The
incident that allegedly breached the principles of natural justice took place
during the hearing. After counsel for Mr. Mancas filed the log books, the
applicant noticed that the departure times from Saint‑Apollinaire that
Mr. Mancas had listed on July 10, 2006, did not match those that
appeared on the satellite positioning or the repair times before his departure as
well as the time he arrived at the SGT 2000 Inc. guardhouse.
[26]
The
adjudicator refused to allow the applicant to cross-examine the respondent on
this issue. The applicant wanted to attack Mr. Mancas’ credibility. In the
Court’s view, this decision is at the very heart of the adjudicator’s
jurisdiction. The decision-maker was completely entitled to assess the relevance
of the cross-examination in relation to the grounds for dismissal. The hearing
lasted more than two days. The employer was not represented by counsel but was
able to have his witnesses heard and to present reply evidence.
C. Is the adjudicator’s decision
reasonable in the circumstances?
[27]
The
applicant contends that the adjudicator made a critical error regarding the
facts of the dispute. It submits that the evidence before the adjudicator
clearly showed that, on the morning of July 10, 2006, the respondent
had his truck repaired and then attached the trailer to it. He should have
noticed the air leak at that time and should have had it taken care of before
driving away. However, an e‑mail written by Mr. Lemire, the
employer’s representative, stated the following (page 140, applicant’s
record):
[translation]
Driver had a very significant (major) air
leak on the blue hose but on the truck. He did not know about it. . . .
[Emphasis
added.]
[28]
Did
this defect exist when the respondent left the garage that morning or did this
defect appear en route? The evidence before the adjudicator shows that the
guard noticed it when the truck arrived at SGT 2000 Inc.
at 2:30 p.m. It was repaired, and the respondent left
at 3:00 p.m. The adjudicator considered the testimony and the written
evidence and found that this criticism, in particular, could not be the basis
of a dismissal (paragraphs 83 to 88 of the decision, tab 2,
applicant’s record). There is no reason for the Court to intervene as this
finding is supported by the evidence.
[29]
The
applicant also submits that the adjudicator did not take into account the
respondent’s disciplinary file. On this point, the applicant raises
paragraph 62 of the adjudicator’s decision:
[translation]
The Employer cannot use an act that has
already been sanctioned as grounds for a new sanction, i.e., the dismissal of
July 17, 2006.
[D‑7; P‑4]
However, it is clear from reading
paragraphs 59 to 65 that paragraph 62 deals with the production of certain
documents. The Court finds that the adjudicator’s determinations on this point
are reasonable.
[30]
The
applicant also objects to the fact that the adjudicator’s decision does not
discuss the Guide published by the Société de l'assurance automobile du Québec
(S.A.A.Q.) concerning [translation]
“Pre‑Departure Inspection” (Exhibit D‑4, tab 10, the
applicant’s record).
[31]
Given
that the notice of dismissal (page 139, applicant’s record) indicates that
the main reason was the respondent’s attitude, not his driving or his
negligence, the Court cannot accept this argument.
[32]
Last,
the Court believes that the adjudicator’s decision satisfies the reasonability
test because the findings are justified based on the evidence that was adduced.
JUDGMENT
THE COURT
ORDERS that the application for
judicial review is dismissed. A lump sum of $1500 is awarded to the respondent
for costs.
“Michel Beaudry”
Certified
true translation
Mary
Jo Egan, LLB
SCHEDULE A
The
following provisions of the Canada Labour Code, R.S. 1985, c. L‑2,
are relevant to this case:
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240. (1) Subject to subsections
(2) and 242(3.1), any person
|
240. (1) Sous réserve des
paragraphes (2) et 242(3.1), toute personne qui se croit injustement
congédiée peut déposer une plainte écrite auprès d’un inspecteur si :
|
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(a)
who has completed twelve consecutive months of continuous employment by an
employer, and
|
a) d’une part, elle travaille
sans interruption depuis au moins douze mois pour le même employeur;
|
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(b)
who is not a member of a group of employees subject to a collective agreement,
may
make a complaint in writing to an inspector if the employee has been
dismissed and considers the dismissal to be unjust.
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b) d’autre part, elle ne fait
pas partie d’un groupe d’employés régis par une convention collective.
|
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(2)
Subject to subsection (3), a complaint under subsection (1) shall be made
within ninety days from the date on which the person making the complaint was
dismissed.
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(2) Sous réserve du
paragraphe (3), la plainte doit être déposée dans les quatre-vingt-dix jours
qui suivent la date du congédiement.
|
|
242. (1) The Minister may, on
receipt of a report pursuant to subsection 241(3), appoint any person that
the Minister considers appropriate as an adjudicator to hear and adjudicate
on the complaint in respect of which the report was made, and refer the
complaint to the adjudicator along with any statement provided pursuant to
subsection 241(1).
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242. (1) Sur réception du
rapport visé au paragraphe 241(3), le ministre peut désigner en qualité
d’arbitre la personne qu’il juge qualifiée pour entendre et trancher
l’affaire et lui transmettre la plainte ainsi que l’éventuelle déclaration de
l’employeur sur les motifs du congédiement.
|
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(2)
An adjudicator to whom a complaint has been referred under subsection (1)
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(2)
Pour l’examen du cas dont il est saisi, l’arbitre :
|
|
(a)
shall consider the complaint within such time as the Governor in Council may
by regulation prescribe;
|
a) dispose du délai fixé par
règlement du gouverneur en conseil;
|
|
(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
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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;
|
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(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).
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c) est investi des pouvoirs
conférés au Conseil canadien des relations industrielles par les
alinéas 16a), b) et c).
|
|
(3)
Subject to subsection (3.1), an adjudicator to whom a complaint has been
referred under subsection (1) shall
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(3)
Sous réserve du paragraphe (3.1), l’arbitre :
|
|
(a)
consider whether the dismissal of the person who made the complaint was
unjust and render a decision thereon; and
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a) décide si le congédiement
était injuste;
|
|
(b)
send a copy of the decision with the reasons therefor to each party to the
complaint and to the Minister.
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b) transmet une copie de sa
décision, motifs à l’appui, à chaque partie ainsi qu’au ministre.
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(3.1)
No complaint shall be considered by an adjudicator under subsection (3) in
respect of a person where
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(3.1)
L’arbitre ne peut procéder à l’instruction de la plainte dans l’un ou l’autre
des cas suivants :
|
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(a)
that person has been laid off because of lack of work or because of the
discontinuance of a function; or
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a) le plaignant a été
licencié en raison du manque de travail ou de la suppression d’un poste;
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(b)
a procedure for redress has been provided elsewhere in or under this or any
other Act of Parliament.
|
b) la présente loi ou une
autre loi fédérale prévoit un autre recours.
|
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(4)
Where an adjudicator decides pursuant to subsection (3) that a person has
been unjustly dismissed, the adjudicator may, by order, require the employer
who dismissed the person to
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(4)
S’il décide que le congédiement était injuste, l’arbitre peut, par
ordonnance, enjoindre à l’employeur :
|
|
(a)
pay the person compensation not exceeding the amount of money that is
equivalent to the remuneration that would, but for the dismissal, have been
paid by the employer to the person;
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a) de payer au plaignant une
indemnité équivalant, au maximum, au salaire qu’il aurait normalement gagné
s’il n’avait pas été congédié;
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(b)
reinstate the person in his employ; and
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b) de réintégrer le plaignant
dans son emploi;
|
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(c)
do any other like thing that it is equitable to require the employer to do in
order to remedy or counteract any consequence of the dismissal.
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c) de prendre toute autre mesure
qu’il juge équitable de lui imposer et de nature à contrebalancer les effets
du congédiement ou à y remédier.
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243. (1) Every order of an
adjudicator appointed under subsection 242(1) is final and shall not be
questioned or reviewed in any court.
(2)
No order shall be made, process entered or proceeding taken in any court,
whether by way of injunction, certiorari, prohibition, quo warranto
or otherwise, to question, review, prohibit or restrain an adjudicator in any
proceedings of the adjudicator under section 242.
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243. (1) Les ordonnances de
l’arbitre désigné en vertu du paragraphe 242(1) sont définitives et non
susceptibles de recours judiciaires.
(2) Il n’est admis aucun
recours ou décision judiciaire — notamment par voie d’injonction, de certiorari,
de prohibition ou de quo warranto — visant à contester, réviser,
empêcher ou limiter l’action d’un arbitre exercée dans le cadre de l’article
242.
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