Docket:
T-2215-12
Citation:
2013 FC 1258
Toronto, Ontario, December 18, 2013
PRESENT: The Honourable
Madam Justice Mactavish
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BETWEEN:
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TIPPET-RICHARDSON LIMITED
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Applicant
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and
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GERARD LOBBE
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Respondent
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REASONS FOR JUDGMENT AND JUDGMENT
[1]
On December 2,
2010, Gerard Lobbe got into a heated telephone conversation with his supervisor,
Jeff Brennan. By the end of the conversation, Mr. Lobbe no longer worked
for Tippett-Richardson Ltd. (TRL). TRL says that Mr. Lobbe quit. Mr. Lobbe
says that he was fired. An adjudicator appointed under the Canada Labour Code, R.S., 1985 c. L-2 sided with Mr. Lobbe, finding that
he had been unjustly dismissed by his employer.
[2]
TRL seeks judicial
review of the adjudicator’s decision, asserting that it was denied procedural
fairness in this case as it is evident from the adjudicator’s reasons that she
was biased against the company. TRL further submits that the adjudicator erred
by failing to draw an adverse inference from the failure of Mr. Lobbe’s
wife to testify at the hearing, and by failing to consider relevant evidence
that would have assisted Tippett‑Richardson in its case. Finally, TRL
argues that the adjudicator’s decision was unreasonable.
[3]
For the reasons that
follow, I have not been persuaded that the adjudicator was actually biased
against the company or that a reasonable apprehension of bias exists on her
part. I am moreover satisfied that the adjudicator’s decision was reasonable.
Consequently, the application for judicial review will be dismissed.
Background
[4]
TRL is a moving and
storage company. Mr. Lobbe worked for TRL from 1997 until December 2,
2010, with a three month break in service in 2003. For the last four years of
his employment, Mr. Lobbe worked as a long distance truck driver.
[5]
The events giving
rise to the December 2, 2010 telephone call related to a cross-border trip
assigned to Mr. Lobbe in late November, 2010. Mr. Lobbe was to leave Toronto and end up in Texas, with various pick-ups and deliveries along the way. In Texas, he was to pick up a further shipment which was to be brought back to Toronto.
[6]
TRL drivers are
required to have an “Automated Commercial Environment” (ACE) manifest for
shipments crossing the Canada/United States border. ACE manifests are prepared
by TRL Operations and are provided to drivers once they have completed their
last pick-up before reaching the border crossing. There was a disagreement
between the parties as to whether the manifest is ordinarily sent to the
location of the last pick-up or to a secure location near to the border
crossing.
[7]
The parties do agree
that Mr. Lobbe completed his last pick-up in London, Ontario on December
1, 2010 and that he sent the details of his shipment to be included in the ACE manifest to Jeff Brennan (who was TRL’s Operations Manager)
at 5:00 p.m. that afternoon. Both parties anticipated that Mr. Lobbe would
receive the completed ACE manifest early the following morning and that this
did not happen
[8]
It is not necessary
to review the parties’ competing versions of events at length as both versions
were set out in detail in the adjudicator’s decision. Suffice it to say, the
parties disagree as to whether Mr. Lobbe was supposed to pick up his
manifest in London or in Windsor. Jeff Brennan assumed that Mr. Lobbe would be
making his way to Windsor the next morning, whereas Mr. Lobbe understood that
he was to remain at a London truck stop awaiting the ACE manifest that was to
be sent there.
[9]
On the morning of December 2, 2010, Mr. Lobbe provided a TRL dispatcher
in Ottawa with a fax number at a truck stop where the manifest was to be sent.
The area code for London is the same as for Windsor, so the fax number did not
identify where Mr. Lobbe was located.
[10]
When Mr. Lobbe
had not received the manifest by mid-day on December 2, he contacted Mr. Brennan.
It appears that TRL was having issues with the software used to generate the
manifest, and that it had not yet been sent to Mr. Lobbe.
[11]
The document was
finally sent to Mr. Lobbe at 1:04 pm on December 2, 2010. Mr. Lobbe
testified that the normal practice was for the driver to be contacted when the
manifest was sent so that they could go and pick it up. However, he says that
he did not receive a call on December 2, 2010, and was thus unaware that the
document had been faxed to him.
[12]
In the meantime, Mr. Lobbe
became concerned about the impact that the delay in receiving the manifest
would have on his ability to meet his schedule. Consequently, he contacted a
TRL agent in Madison, Wisconsin, the first destination on his shipment route,
and re-scheduled the labour to assist in the unloading of the truck from
December 4 to December 6, 2010. TRL contends that this was done unilaterally by
Mr. Lobbe, without company knowledge or authorization.
[13]
When Mr. Lobbe
still had not received the manifest by 2:30 p.m. on the afternoon of December
2, he contacted Mike Donnachie, the Central Operations Manager of TRL to advise
him of the situation. Mr. Donnachie then went to see Mr. Brennan to
find out what was going on, at which time he informed Mr. Brennan that Mr. Lobbe
was still in London. Mr. Brennan was surprised and upset by this as he assumed
that Mr. Lobbe was already in Windsor.
[14]
Mr. Brennan was
concerned that Mr. Lobbe’s delay in getting to the border could jeopardize
his schedule, specifically, his ability to make the pick-up in Texas on time for the return trip. This was a particular concern as much of the profit on
such shipments is made on the return trip.
[15]
Mr. Lobbe had no
recollection of being asked to drive to Windsor or to pick up the manifest there.
He explained that he chose to not move the truck from London to Windsor on the morning of December 2 because he wanted to delay “opening his log” until he
actually received the manifest. Mr. Lobbe explained that Ministry of
Transportation rules limited him to a maximum of 14 hours of driving in one day,
and that he did not want to start the clock until he had the manifest in hand
so that he would have enough driving hours left to get the deliveries done on
time.
[16]
Upon learning that Mr. Lobbe
was still in London, Mr. Brennan contacted him by phone, and what followed
is the discussion that forms the basis of this claim.
[17]
TRL maintains that
during this exchange Mr. Lobbe called Mr. Brennan a “fucking moron”,
amongst other things, and that Mr. Lobbe resigned by saying: “Look you
fucking moron, I’m parking this fucking truck right here and you can come and
get the fucking thing”. According to Terry Cochrane, one of TRL’s witnesses, it
was well known within TRL that if a driver were to “put down his keys”, it
amounted to a resignation.
[18]
In contrast, Mr. Lobbe
testified that Mr. Brennan started the call by saying “what the fuck are
you still doing in London?”, and that in the course of the ensuing discussion, Mr. Lobbe
was told that he was fired. TRL’s Operations Manager in London subsequently
came to pick up the truck from Mr. Lobbe and arrangements were made to get
Mr. Lobbe back to Ottawa. Another driver then completed the trip to Texas.
[19]
In support of his
claim that his employment had been terminated by TRL, Mr. Lobbe pointed to
an internal TRL document entitled “Employment Termination Notice”. This
document, which was prepared by TRL’s Human Resources Department, cites the
reason for the termination of Mr. Lobbe’s employment as being “‘M’
Dismissal”.
[20]
On March 4, 2011, Mr. Lobbe
filed a complaint under section 240 of the Canada Labour Code alleging
that he had been unjustly dismissed by TRL. The adjudicator was subsequently
appointed to hear his complaint.
The Adjudicator’s Decision
[21]
The hearing before
the adjudicator took five days. Eleven witnesses testified, nine on behalf of
TRL and two on Mr. Lobbe’s behalf, and a substantial volume of documentary
evidence was filed with the adjudicator.
[22]
Early in her
decision, the adjudicator noted that John Novak, TRL’s President, was the first
witness for the company and that he had stayed in the hearing room for the
remainder of the hearing. According to the adjudicator, this “seemed to send a
strong message to all giving testimony as to its importance, and to his interest
and commitment”. The adjudicator further noted that sentiments of loyalty to
TRL “came through strongly” in the evidence given by TRL employees: at para. 4
of the adjudicator’s decision.
[23]
It was also apparent
to the adjudicator that long distance moving is a tough industry, and that
driving trucks over long distances is a challenging way of life. The
adjudicator noted that drivers are often a bit “rough around the edges”, and
that the frequent use of the “F-bomb” in the discussion at issue had to be considered
in this context: at para. 5.
[24]
The adjudicator
identified the question of whether Mr. Lobbe resigned as the central issue
for determination, acknowledging that if he resigned, she would have no further
jurisdiction to deal with the matter: at para. 44.
[25]
The adjudicator found
that there was a “misunderstanding” between Mr. Brennan and Mr. Lobbe
as to where he should pick up the manifest, and that they “got their wires
crossed”: at paras. 8 and 47. She further noted that there was no evidence that
Mr. Lobbe had any interest in deliberately delaying the trip, or that
there was any advantage to him in waiting for the manifest in London rather
than in Windsor. The adjudicator also found it “significant” that Mr. Lobbe
did not open his log book in order to save his full 14 hours of driving time, to
start the clock running only once he had his manifest: at para. 28.
[26]
The adjudicator also
found that Mr. Brennan was having a bad day: in addition to the
difficulties with the server that was supposed to be generating the manifests,
“it was a particularly hectic morning generally at
TRL-Ottawa”: at para. 12. Mr. Brennan
was, moreover, feeling under tremendous pressure, believing as he did that the
return load was now lost: at para. 25.
[27]
The adjudicator
further found that Mr. Brennan was clearly angry to discover that Mr. Lobbe
was still in London at 2:30 on December 2, especially given his mistaken belief
that the manifest had been faxed to him hours before.
[28]
With respect to the
critical phone call, the adjudicator considered the evidence of the three
parties to the communication: Mr. Brennan, who initiated the call, Ottawa
Branch Dispatcher Trevor Butler (one of TRL’s
witnesses) who was present
at the time of the call, and Mr. Lobbe.
[29]
Based upon this
evidence, the adjudicator found that a “frustrated and flustered” Mr. Brennan
“went on the attack” with Mr. Lobbe: at para. 23. From Mr. Lobbe’s
standpoint, he had done nothing wrong, and he “got his back up and immediately
shot back”: at para. 23. The adjudicator commented that Mr. Lobbe’s
statements during the call were “in all likelihood … much more colourful” than
he cared to admit: at para. 49. The adjudicator did not, however, accept that Mr. Lobbe
resigned during the call, or that the words he used suggested his intention to resign.
[30]
The adjudicator
specifically referred to the evidence of Terry Cochrane suggesting that it was well known within
TRL that if a driver were to “put down his keys”, it amounted to a resignation.
However, she found that Mr. Lobbe did not “put down his keys”; rather,
they were taken from him: at para. 50. On a balance of probabilities, the
adjudicator found that Mr. Lobbe did not resign, but was in fact
terminated.
[31]
Having found that Mr. Lobbe
had been dismissed by TRL, the adjudicator noted that the onus shifted to the
company to adduce evidence to demonstrate that, on a balance of probabilities,
the dismissal was just.
[32]
Insofar as Mr. Lobbe’s
past disciplinary record was concerned, the adjudicator held that a minor
incident from 2001 was “too far gone to be fairly considered in this
assessment”: at para. 53. A second incident allegedly occurring a week before Mr. Lobbe’s
last trip was only raised after December 2, 2010, and had never been brought to
Mr. Lobbe’s attention. As a consequence, the adjudicator did not give this
incident much weight. While there were general complaints about Mr. Lobbe,
none of these complaints had been documented and the adjudicator found that
“they were in no way disciplinary”: at para. 55. There was, moreover, positive
evidence regarding Mr. Lobbe’s skills and integrity as an employee.
[33]
Accordingly, the
adjudicator assessed the justness of Mr. Lobbe’s termination based solely
on the events of December 2, 2010, asking whether the telephone exchange on
that date gave TRL the right to terminate Mr. Lobbe for cause.
[34]
After reviewing the legal
principles relating to just cause for dismissal, the adjudicator concluded that
Mr. Lobbe should not have reacted as he did during the December 2 call,
but that Mr. Brennan’s attack on Mr. Lobbe was inappropriate: at
para. 64. Although the adjudicator accepted that Mr. Lobbe’s behaviour
could have warranted some discipline, she was not persuaded that there was
insubordination on the part of Mr. Lobbe that could be characterized as
misconduct warranting dismissal.
[35]
In coming to this
conclusion, the adjudicator noted that serious misconduct is required for an
employer to terminate an employee without notice, and that the context must be
considered. In this case, there was a single incident with a host of mitigating
circumstances. The decision to terminate was rational, and was inspired by the
employer’s desire to salvage the return shipment, but it was not proportionate
to Mr. Lobbe’s misconduct.
[36]
The adjudicator
declined to reinstate Mr. Lobbe on the basis that the relationship between
Mr. Lobbe and his employer was not salvageable on a going-forward basis.
However, she awarded Mr. Lobbe the equivalent of seven months salary as
compensation in lieu of notice, for a total of $37,975. This was reduced by one
month, in part to take into account the potential disciplinary measures that
could have been imposed against Mr. Lobbe, for a total award of $32,550.
[37]
In a subsequent costs order, the adjudicator did not find that there
were ‘exceptional circumstances’ justifying an award of solicitor-client costs,
but that some costs were in order, fixing Mr. Lobbe’s costs at $10,000: Lobbe
v. Tippet Richardson Ltd., [2013] C.L.A.D. No. 12.
Analysis
[38]
Before turning to
address TRL’s arguments with respect to the merits of its application, it is
first necessary to address Mr. Lobbe’s objections to the affidavit of John
Novak which was filed in support of TRL’s application for judicial review.
The Admissibility of Mr. Novak’s
Affidavit
[39]
Mr. Lobbe argues
that Mr. Novak’s affidavit contains evidence that was not before the
adjudicator and is thus inadmissible. Moreover, Mr. Lobbe says that much
of the affidavit should be disregarded as it contains argument and opinion.
[40]
I agree that portions
of Mr. Novak’s affidavit constitute argument and opinion: see, for
example, paras. 13, 14, 20, 21, 25, 29, 49, 50, 53, 54, 55, 58, 61, 62, 67, and
80-82. However, given that these arguments were repeated by TRL’s counsel in
his submissions, they will be considered in that context.
[41]
While Mr. Lobbe
submits that the affidavit contains evidence that was not before the
adjudicator, there is no evidence before me to support that assertion. The only
affidavit filed by Mr. Lobbe in support of his response to the application
was from a legal assistant in the office of his counsel. This affidavit appends
copies of documents that were before the adjudicator, but does not address the
question of whether or not the evidence referred to in Mr. Novak’s
affidavit was before the adjudicator.
[42]
There is no
transcript of the proceedings before the adjudicator. However, as was noted
previously, Mr. Novak was present throughout the hearing, and is thus in a
position to attest to what went on at the hearing.
[43]
More fundamentally,
the modern approach to standard of review analysis requires the Court to determine the reasonableness of a decision having regard to
the reasons offered by the decision-maker and to the reasons “which
could be offered in support of a decision”: Dunsmuir v. New Brunswick,
2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48.
[44]
The Court is,
moreover, required to determine whether the decision falls within a range of
possible acceptable outcomes which are defensible in respect of the facts and
the law: see Dunsmuir, at para. 47, and Canada (Citizenship
and Immigration) v. Khosa, 2009 SCC 12, [2009] 1 S.C.R. 339 at para. 59. In
order to do this the Court must have an appreciation of the record that was
before the first instance decision-maker.
[45]
As a consequence, I
am prepared to consider the information contained in Mr. Novak’s affidavit
to the extent that it addresses the contents of the evidentiary record that was
before the adjudicator.
[46]
The portions of Mr. Novak’s
affidavit that address the allegation of bias on the part of the adjudicator
are also admissible, given that they go to an issue of procedural fairness: Association
of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency,
2012 FCA 22, 428 N.R. 297, at para. 20. This issue will be addressed next.
The Procedural Fairness Arguments
[47]
TRL advances three
arguments that it says relate to the fairness of the proceedings before the
adjudicator.
[48]
Where an issue of
procedural fairness arises, the task for the Court is to determine whether the
process followed by the decision-maker satisfied the level of fairness required
in all of the circumstances: see Khosa, above, at para. 43.
Is there a Reasonable Apprehension that
the Adjudicator was Biased?
[49]
TRL’s first argument
is that the adjudicator’s disproportionate criticism of the TRL management
personnel and her comments regarding Mr. Novak’s continued presence in the
hearing room demonstrated actual bias on her behalf or, at a minimum, gave rise
to a reasonable apprehension that she was biased against TRL.
[50]
As I understand TRL’s
argument, it is that the testimony of TRL’s witnesses was either not believed,
or was given less weight by the adjudicator because Mr. Novak was in the
room when they gave their evidence and she believed that his presence
influenced the witnesses’ testimony.
[51]
TRL states that it
was not aware of the adjudicator’s concerns in this regard until it received
the adjudicator’s decision. Consequently it had no opportunity to address those
concerns in the course of the hearing.
[52]
TRL also points out
that Mr. Novak gave his evidence before any of TRL’s other witnesses, and
that he had every right to be present during the hearing. Not only was he the
instructing client, the exclusion order issued by the adjudicator at the
commencement of the hearing expressly exempted Mr. Novak from its purview.
[53]
The test for
determining whether actual bias or a reasonable apprehension of bias exists in
relation to a particular decision-maker is what an informed person, viewing the
matter realistically and practically and having thought the matter through
would conclude. That is, would he or she think it more likely than not that
the decision-maker, either consciously or unconsciously, would not decide
fairly: see Committee for Justice and Liberty v. Canada (National Energy
Board), [1978] 1 S.C.R. 369, 68 D.L.R. (3d) 716, at p. 394.
[54]
An allegation of
bias, especially an allegation of actual, as opposed to apprehended, bias, is a
serious allegation. Indeed, it challenges the integrity
of the administration of justice as well as the very integrity of the adjudicator whose decision is
in issue. As a consequence, the threshold for establishing bias is high: R.
v. R.D.S., [1997] 3 S.C.R. 484, 151 D.L.R. (4th) 193, at para. 113.
[55]
It is not entirely
clear why the adjudicator commented on Mr. Novak’s continued presence in
the hearing room, other than to note his interest in the case and its
importance to the company. That said, I am not persuaded that bias (either
actual or apprehended) has been established in this case.
[56]
I will deal with the
alleged failure of the adjudicator to make reference to certain evidence when I
address the reasonableness of the decision. Suffice it to say that the fact
that this evidence may not have been specifically referred to in the
adjudicator’s reasons does not, in my view, suggest that the adjudicator was
biased.
[57]
Moreover, the fact
that the adjudicator preferred one version of events over another does not give
rise to an inference of bias – it is the very essence of the adjudicator’s task
to weigh conflicting evidence in order to come to a decision. In particular,
there is no suggestion in the adjudicator’s reasons that any of the witnesses’
testimony was negatively affected by Mr. Novak’s continued presence in the
hearing room or was accorded any less probative value as a result.
[58]
In considering this
matter “realistically and practically”, an informed person would be
hard-pressed to find bias. Indeed, on several occasions the adjudicator chides Mr. Lobbe
for his “colourful language” and his response to Mr. Brennan’s call on the
afternoon of December 2, 2010. In fact, she goes so far as to reduce Mr. Lobbe’s
unjust dismissal award by one month’s pay, in part in recognition of the fact
that his conduct was not entirely blameless.
[59]
TRL raises two
additional arguments which it characterizes as issues of procedural fairness.
These relate to failure of the adjudicator to draw an adverse inference from
the fact that Mr. Lobbe’s wife did not testify at the hearing, and her
alleged failure to properly address the issue of mitigation.
[60]
In my view, these are
not issues of procedural fairness at all, and go instead to the reasonableness
of the adjudicator’s decision. As such, these issues will be addressed in the
next section of these reasons.
Was the Adjudicator’s Decision
Reasonable?
[61]
The adjudicator was
faced with a threshold question of whether Mr. Lobbe was “dismissed”
within the meaning of section 240 of the Canada Labour Code or whether
he resigned. Also at issue was whether TRL had just cause to dismiss Mr. Lobbe
and if not, the determination of the appropriate measure of damages.
[62]
Each of these issues
involves questions of mixed fact and law, and each is heavily fact-dependent.
As such, the adjudicator’s decision is reviewable against the standard of
reasonableness.
[63]
In reviewing a decision
against the reasonableness standard, the Court must consider the justification,
transparency and intelligibility of the decision-making process, and whether
the decision falls within a range of possible acceptable outcomes which are
defensible in respect of the facts and the law: see Dunsmuir, above at para. 47, and Khosa, above at para. 59.
[64]
Dealing first with Mr. Lobbe’s
failure to call his wife as a witness, TRL points out that in her opening
statement before the adjudicator, Mr. Lobbe’s counsel indicated that the
wife would be called. I have not, however, been provided with any information
as to what it was that she was expected to say.
[65]
No explanation was
provided to the adjudicator for Mr. Lobbe’s wife’s ultimate failure to
testify. According to TRL, in these circumstances the adjudicator should have
inferred that her testimony would not have assisted Mr. Lobbe.
[66]
I do not agree.
[67]
First of all, Mr. Lobbe’s
wife was not an “arm’s length” witness, and one can only assume that Mr. Lobbe
and his counsel would both have been well aware of what it was that she would
have said long before the commencement of the case. There could be, moreover,
any number of reasons why they may have decided not to call her as a witness.
[68]
Furthermore, Mr. Lobbe’s
wife was not a party to the telephone call that forms the heart of this case,
nor was she a first-hand witness to any of the other relevant events. As such,
it is not clear what evidence she could have provided, other than to confirm
whatever it was that Mr. Lobbe may have told her, after the fact. Indeed,
one could reasonably anticipate that counsel for TRL may well have objected to
her testifying on the basis that her testimony would be entirely hearsay.
[69]
As a consequence, it
was not unreasonable for the adjudicator not to draw an adverse inference from
the failure of Mr. Lobbe’s wife to testify.
[70]
TRL also takes
exception to the fact that the adjudicator did not address portions of the
evidence in her analysis. In particular, TRL refers to Mr. Lobbe’s conduct
in unilaterally changing the arrangements for the unloading of the truck in Madison, Wisconsin from December 4, 2010 to December 6, 2010, thereby allegedly
jeopardizing the scheduling of the remainder of the trip.
[71]
I would note that although Mr. Lobbe had mentioned the possibility of changing
the arrangements relating to the December 4, 2010 labour earlier in the day, no one at TRL was aware that the change had already been made at the time of the telephone call at the heart of
this case. As a result, it played no role in the discussions between Mr. Lobbe
and Mr. Brennan, and was thus largely irrelevant to the question of
whether Mr. Lobbe quit or was fired in the course of that call.
[72]
I accept that
“after-acquired cause” could potentially be relevant in a case of unjust
dismissal. That is, there are cases where it may be appropriate for an employer
to rely on circumstances of which it was not aware at the time of a dismissal
in order to support a claim that there was just cause for the dismissal.
[73]
That said, while it
is not for me to decide the issue, one would have to question whether Mr. Lobbe’s
actions in unilaterally changing the delivery arrangements in Wisconsin could
possibly justify the summary dismissal of an employee with 23 years of service
and a good disciplinary record.
[74]
More fundamentally, however,
an adjudicator is presumed to have weighed and considered all of the evidence
before her: see Florea v. Canada (Minister of Citizenship and Immigration)
[1993] F.C.J. No. 598, (F.C.A.) at para. 1.
[75]
Furthermore,
“perfection is not the standard”. An adjudicator’s reasons do not need to
address all of the evidence and arguments, and she is not required to make
explicit findings on each constituent element leading to her final conclusion: Newfoundland
and Labrador Nurses' Union v Newfoundland and Labrador (Treasury Board),
2011 SCC 62, [2011] 3 S.C.R. 708, at paras. 14-18.
[76]
As a consequence, I
have not been persuaded that the failure of the adjudicator to make express
reference to this evidence renders her findings that Mr.
Lobbe was dismissed and that TRL did not have just cause to dismiss Mr. Lobbe unreasonable.
[77]
TRL also submits that
the adjudicator considered irrelevant matters, specifically events occurring
after the December 2, 2010 telephone call. I am not satisfied that these events
were completely irrelevant to the task that the adjudicator had to undertake,
as the totality of the relationship between Mr. Lobbe and TRL was relevant
to the question of whether reinstatement was an appropriate remedy in this
case.
[78]
I am also not
persuaded that the adjudicator erred in her treatment of other decisions under
the Canada Labour Code dealing with the dismissal of truck drivers,
which were relied upon by TRL in support of its case. Each of these cases
clearly turned on their own facts and the adjudicator had to evaluate the
evidence of each of the witnesses to the events in issue in this case and to
draw her own conclusions from that evidence. This she did.
[79]
Finally, TRL submits
that the adjudicator erred in failing to properly address the issue of
mitigation.
[80]
Mr. Lobbe
remained unemployed from December of 2010 to July of 2011. The adjudicator
found that Mr. Lobbe “did make some efforts to mitigate his losses … but
that he could have pushed harder”: at para. 71 of the
adjudicator’s decision. It
is apparent from the adjudicator’s reasons that her decision to reduce Mr. Lobbe’s award by one month’s
pay was, at least in part, to take into account his failure to pursue his quest
for alternate employment with sufficient vigour.
[81]
In a case such as this,
the onus is on the employee to prove his damages. However, if it is the
employer’s position that the former employee has failed to sufficiently
mitigate his losses and that other employment was reasonably available to him,
then the onus is on the employer to demonstrate that this was in fact the case:
Michaels v. Red Deer College, [1976] 2 S.C.R. 324, 57
D.L.R. (3d) 386. I have not
been directed to any evidence in the record that would support such a finding.
As a consequence, I have not been persuaded that the adjudicator erred as
alleged.
Conclusion
[82]
For these reasons, TRL’s
application for judicial review is dismissed, with costs to Mr. Lobbe
fixed in the amount of $4,250.00.
Mr. Lobbe’s Request for Interest
[83]
In her oral
submissions, counsel for Mr. Lobbe requested that I order that TRL pay
interest on the award made by the adjudicator from the date of her decision to
the date of this Court’s order. Not only has Mr. Lobbe failed to provide
any authority for the Court’s ability to make such an order, this relief was
not identified in his memorandum of fact and law. Consequently I decline to
make any such order.
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