Date: 20010126
Docket: A-786-99
OTTAWA, ONTARIO, FRIDAY, JANUARY 26, 2001
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN: TRANSPORT THOM LTÉE,
Appellant
AND:
AURÈLE GAGNON,
Respondent
JUDGMENT
The appeal is dismissed with costs.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20010126
Docket: A-786-99
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN: TRANSPORT THOM LTÉE,
Appellant
AND:
AURÈLE GAGNON,
Respondent
Hearing held at Ottawa, Ontario on Wednesday, January 24, 2001
Judgment rendered at Ottawa, Ontario on Friday, January 26, 2001
REASONS FOR JUDGMENT BY: LÉTOURNEAU J.A.
CONCURRED IN BY: DESJARDINS J.A.
DÉCARY J.A.
Date: 20010126
Docket: A-786-99
CORAM: DESJARDINS J.A.
DÉCARY J.A.
LÉTOURNEAU J.A.
BETWEEN: TRANSPORT THOM LTÉE,
Appellant
AND:
AURÈLE GAGNON,
Respondent
REASONS FOR JUDGMENT
LÉTOURNEAU J.A.
[1] Did the motions judge err when he concluded that the arbitrator's decision regarding the amount of indemnity payable to the respondent for unjust dismissal was not unreasonable? That is the issue that was before him by way of judicial review. It comes to this Court by an appeal from his decision dismissing the application for judicial review with costs.
Facts
[2] Since the injustice of the dismissal is not at issue, the relevant facts may be readily summarized in a few lines.
[3] The respondent Mr. Gagnon was working for a public transportation company with two divisions: a school transport division and a charter-party transport division (charter transport), which began modestly in 1992 and gathered strength when it was granted a charter transport licence in January 1994.
[4] The staff of the school transport division was unionized: that of the charter transport division was not. In 1993, Mr. Gagnon was working in both divisions. In that year his total income was $24,670.23, broken down as follows: $16,008.31 for charter transport, $7,374.18 for school transport and a balance of $1,187.21 as employee benefits.
[5] Between 1993 and September 1994 Mr. Gagnon was absent from his work on account of illness. When he returned he notified his employer that he no longer intended to work in school transport and would work only in the field of charter transport. He was told that by withdrawing from the school transport division he would lose his union status and seniority in that division and would be without seniority in a non-unionized division. Accordingly, it was with full knowledge of the impacts of his transfer that Mr. Gagnon chose to give the benefits of the first division and sustain the uncertainties of the second. Among those uncertainties it should be mentioned that the charter transport division was already operating with five or six regular drivers: Mr. Gagnon was added to the number as a regular driver, and there were a number of part-time drivers.
[6] On May 1, 1995 Mr. Gagnon was dismissed and received severance pay of $293.02. A complaint was filed with the Minister of Labour against dismissal pursuant to s. 240 of the Canada Labour Code, R.S.C. 1985, c. L-2.
Adjudicator's decision
[7] By a decision of an adjudicator on October 28, 1998 Mr. Gagnon was awarded the sum of $20,558.52 as severance pay, the equivalent of ten months' salary. In determining this amount the adjudicator relied on Mr. Gagnon's salary in 1993, which was his last full year of work. She also sought to justify the reasonableness of the amount of the pay by reference to the average annual income of regular drivers in the charter division, which was $28,114.88.
[8] I set out in full the relevant passage from the adjudicator's decision, approved by the motions judge, since it is the focus of the dispute:
[TRANSLATION]
Based on the complete evidence presented to her, the undersigned adjudicator will indicate the exact amount of what is represented by these ten months of salary. In this connection, she cannot accept the employer's contentions that the basis should be the salary of the last six months of work, as before that date the complainant was on sick leave and prior to that leave was doing school transport. Accepting this argument would simply allow the employer to reduce a complainant's income significantly prior to his dismissal so as to minimize the possible damages he might be ordered to pay if the dismissal proved to be unjust. Instead, we will take as a basis for calculation the year 1993, the last full year of work done by the complainant for the employer. In 1993 he had an income of $24,670.23. This figure appears to us to be entirely reasonable, as regular drivers in the employer's charter division had an average annual income of $28,114.88. Consequently, the employer is ordered to pay the complainant the sum of $20,558.52.
(My emphasis)
Analysis of decisions of motions judge and umpire
[9] With force and conviction counsel for the appellant submitted that the adjudicator erred in selecting her basis for calculating the severance pay. The argument does not lack appeal and takes the following form.
[10] The adjudicator should have based the pay on Mr. Gagnon's annual income in 1995 as a driver in the charter transport division. The average annual income which she used as a reference, the amount of $28,114.88, was not an average annual income but, as an accounting report showed at p. 116 of the appeal case, an average of income for 25 months. Converted to an annual basis, this average income amounts to only $13,505.20. Counsel for the appellant further argued, in the alternative, that if the adjudicator wished to take Mr. Gagnon's income in 1993 as a basis for calculation she should have deducted all the income from the school transport, since the exercise was to determine his earnings in the charter transport division. She should therefore have taken the amount of $16,008.31 as a basis for calculation.
[12] I feel it is important to go back to the adjudicator's decision and make a very careful analysis of it so as to see what she really used as the basis for calculation. It is clear from the decision that she first selected 1993 before looking at the question of income, because 1993 was more representative of what Mr. Gagnon would have earned if he had remained in the appellant's employ. As she saw it that year was more representative, first because it was a full year of work, and second because the employer had considerably reduced Mr. Gagnon's hours of work during his last six months of work, and this could accordingly reduce the amount of the severance pay payable. I agree with the motions judge that in the circumstances the choice of 1993 was not unreasonable, although Mr. Gagnon was dismissed in May 1995.
[13] The adjudicator went on to examine the income earned in 1993. It is true, as counsel for the appellant maintained, that she erred in regarding the sum of $28,114.88 as an average annual income, whereas it is an average income spread over a period of 25 months. I would add that she also erred in taking this average income as that of regular drivers, whereas it is in fact an average income of all drivers, including the part-time ones, and this clearly has the effect of appreciably reducing the average earned by the regular drivers.
[14] Having said that, I feel that these two errors were not significant, since she had before her evidence, referred to at p. 2 of her decision, that Mr. Lance, a regular driver like Mr. Gagnon, had accumulated in 1993, in his first year of service spent largely in the charter transport division,
earnings of $25,000, and subsequently his annual earnings in that division were between $25,000 and $30,000. Mr. Lance testified that the sum of $3,000 in tips should be added to that amount.
[15] In my opinion, in view of that evidence the motions judge was right to conclude that the amount of $24,670.23 used by the adjudicator to calculate compensation for ten months' salary was reasonable. For these reasons, I would dismiss the appeal with costs.
I concur in these reasons.
Alice Desjardins J.A.
I concur.
Robert Décary J.A.
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
APPEAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
FILE: A-786-99
STYLE OF CAUSE: TRANSPORT THOM LTÉE v. AURÈLE GAGNON
PLACE OF HEARING: Ottawa, Ontario
DATE OF HEARING: January 24, 2001
REASONS BY: LÉTOURNEAU J.A.
DATED: January 26, 2001
APPEARANCES:
Michel Lewis FOR THE APPLICANT
Martin Gosselin FOR THE RESPONDENT
SOLICITORS OF RECORD:
Lewis et Associés FOR THE APPLICANT
Gatineau, Quebec
Martin Gosselin FOR THE RESPONDENT
Gatineau, Quebec
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