Date: 20110628
Docket: A-367-09
Citation:
2011 FCA 216
CORAM: NOËL J.A.
NADON J.A.
PELLETIER J.A.
BETWEEN:
JACYNTHE DESCHÊNES
Appellant
and
CANADIAN IMPERIAL BANK OF COMMERCE
Respondent
REASONS FOR JUDGMENT
NADON J.A.
[1]
This is an appeal from
a decision of Martineau J. of the Federal Court (the “judge”), 2009 FC 799, in
which he dismissed the appellant’s application for judicial review of a
decision dated June 28, 2007, rendered by Jacques Bélanger (the “adjudicator/referee”),
the adjudicator/referee appointed under the Canada Labour Code, R.S.C.,
1985, c. L-2 (the “Code”).
[2]
Specifically, the
adjudicator/referee dismissed two complaints filed by the appellant against her
employer, namely the respondent, the Canadian Imperial Bank of Commerce (the “Bank”),
following the termination of her employment on January 26, 1998. The
appellant’s first complaint was that she was unjustly dismissed by the Bank, while
in the second, she claimed unpaid commission and overtime pay, as well as a
performance bonus and stock option certificates from her employer, to which she
felt she was entitled.
FACTS
[3]
A brief summary of the
facts will assist in understanding the issues.
[4]
The appellant was
employed by the Bank from September 1989 until January 25, 1998. As
of 1995, she worked as an investment specialist.
[5]
Investment specialists
were paid in the following manner. In addition to a base salary, they were paid
commission based on the total sales volume attributable to them. In other
words, the cornerstone of the compensation package was an incentive system. Specifically,
investment specialists received commission if they made $17.5 million in gross
sales, involving “new money” from other financial institutions.
[6]
Investment specialists
had two objectives in selling this amount: investing $11 million of this
outside money by selling the Bank’s “non-money market” products, and investing
$6.5 million of this money in Bank products described in a document
entitled Régime de rémunération lié aux résultats [Performance Pay
Plan]. Investment specialists who achieved these objectives were awarded a
$12,000 bonus and an increase in the percentage of the commission payable on
sales beyond $11 million. Some also received an end-of-year bonus.
[7]
A crucial element
governing the work of investment specialists was that, after planning with the
client and obtaining the client’s consent to transfer his or her money to the
Bank, they had to ensure that the money had been received by the Bank and
invested as agreed with the client. Once this task was completed, investment
specialists had to produce a sales report in accordance with the instructions
in a document entitled Sales Reporting and Measurements.
[8]
In carrying out their
work, investment specialists were subject to professional conduct rules set out
in a document entitled Politiques et procédures de déontologie à l’intention
des spécialistes en placements [Professional Conduct Policies and
Procedures for Investment Specialists]. At paragraph 27 of his
reasons, the adjudicator/referee had the following to say about the principles
of professional conduct by which investment specialists had to abide:
[translation]
27. In her new position as an
investment specialist, the complainant was subject to rules of professional
conduct set out in a document entitled Politiques et procédures de
déontologie à l’intention des spécialistes en placements [Professional Conduct
Policies and Procedures for Investment Specialists]. She signed a declaration
on April 6, 1997, indicating that she had read and accepted the contents of
that document. Article 4 of the document states that investment specialists
have to act in good faith, honestly and fairly toward clients. They also have
to respect the confidentiality of purchasers’ transactions and act in purchasers’
best interests. Finally, they have to avoid being in a conflict of interest
with clients or CIBC. All of this is explained more fully in Appendix IV of the
document. Moreover, the role of investment specialists in planning investments
and maintaining accounts is explained, and Appendix II contains a list of
approved products for specialists.
[9]
As indicated earlier,
the appellant’s employment with the Bank was terminated on January 26,
1998. This event took place in the following circumstances.
[10]
On December 11,
1997, the appellant learned that the Bank had undertaken to have all her 1997
transactions audited and that over 80% of these transactions were being questioned.
A $1.2 million sale appearing in the appellant’s sales report for
October 1997 (client: Samuel W.) was the factor that triggered the Bank’s
audit. According to the appellant’s sales report, the sum in question had been invested
in government bonds by her client. Given the size of the investment and the
fact that it could not be traced by the Bank, Bank managers at the Toronto head
office decided to carefully review all the appellant’s sales reports for 1997.
[11]
In the course of its
audit, the Bank asked the appellant to explain the many errors appearing in her
sales reports. In early January 1998, in light of the appellant’s
precarious situation, Gilbert Aura, her immediate superior, advised her to
focus on 1997 so that she would be able to satisfactorily explain the errors
discovered by the Bank. Mr. Aura also counselled the appellant not to meet
with new clients for the time being.
[12]
On January 26,
1998, dissatisfied with the appellant’s explanations, the Bank, through
Mr. Aura, terminated the appellant’s employment and asked her to reimburse
the commission payments the Bank found it had overpaid her, namely $24,000
gross or $10,000 net. Three days later, the appellant repaid the Bank $10,000.
[13]
On March 20, 1998,
the appellant filed a complaint for unjust dismissal under section 240 of
the Code, and on December 18, 1998, she asked the Minister of Labour to
appoint an adjudicator. On February 8, 1999, the adjudicator/referee was
appointed to act as adjudicator and to hear the appellant’s unjust dismissal
complaint.
[14]
On July 3, 1998,
the appellant filed a claim for unpaid commissions and other premiums and, on
March 17, 1999, asked that this claim also be referred to adjudication. Regarding
this claim, an inspector from Human Resources Development Canada (the “inspector”)
issued a payment order in the amount of $46,617.38 against the Bank on
March 17, 1999, and the Bank remitted this amount to the Receiver General
for Canada on the same day.
[15]
In September 1999,
the parties agreed that the adjudicator/referee hear both complaints filed by
the appellant.
Adjudicator/Referee’s Decision
[16]
On June 26, 2007,
following a 90-day hearing at which 30 witnesses testified – 26 of which at the
appellant’s request – and 350 documents were submitted, the adjudicator/referee
rendered a decision of 251 pages (1673 paragraphs) supporting the validity of
the appellant’s dismissal and dismissing the monetary claim (Deschênes v.
Banque canadienne impériale de commerce, 2007 DATC 215).
[17]
Following a brief
introduction, the adjudicator/referee summarized the relevant facts at
paragraphs 9 to 61 of his reasons. From paragraph 62 to
paragraph 351, he reviewed the evidence submitted by the employer and the
testimony of the following persons: Jacynthe Deschênes, Maura Levine, Elizabeth
Marshall and Gilbert Aura. Then, the adjudicator/referee reviewed the appellant’s
evidence, namely the testimonies of 26 witnesses, three of whom testified twice.
[18]
From paragraph 721
to paragraph 859, the adjudicator/referee focussed on the
cross-examination of the appellant. Subsequently, at paragraphs 860 to
1105 of his reasons, he described the reply evidence filed by the appellant.
[19]
Having completed an
in-depth, thorough review of the evidence presented by the parties, the
adjudicator/referee provided a detailed summary of the appellant’s and the Bank’s
arguments at paragraphs 1106 to 1356 of his reasons before starting his
analysis.
[20]
From paragraph 1357
to paragraph 1438, the adjudicator/referee dealt with the appellant’s
first complaint, the one concerning her dismissal. Following a detailed
analysis of the evidence and the applicable principles, he concluded at
paragraph 1438 that the bond of trust between the Bank and the appellant
had been irreparably broken and that, consequently, the dismissal complaint had
to be dismissed.
[21]
From paragraph 1439
onwards of his reasons, the adjudicator/referee considered the appellant’s
second complaint. More particularly, at paragraphs 1487 to 1672, he
examined in detail all the sales for which the appellant claimed she was
entitled to commission. At paragraph 1670, the adjudicator/referee determined
that the Bank had overpaid the appellant the amount of $19,385.53, writing as
follows:
[translation]
1670. Exhibit E-33 indicates the
uncontested advance payment of $33,835.24 in commissions made to the complainant
in November 1997. The calculations made after adjustments in the Schedule to E-33
show that the complainant was owed $9,185.65 in commissions. When $5,264.06 is
added to these commissions, there is a new total $14,449.71 owed in commissions.
If one deducts the $14,449.71 owed in commissions from the $33,835.24 paid to
the complainant, the result is an overpayment to the complainant of $19,385.53.
Once the 50% in taxes payable on this type of income are deduced, one is left
with $9,692.77, owed by the complainant to CIBC. CIBC had calculated very
fairly in 1998 when it asked the complainant to pay it $10,000 in overpaid
commissions.
[22]
At paragraph 1671
of his reasons, the adjudicator/referee disposed of the appellant’s claim for
overtime pay and Bank stock option certificates in the following terms:
[translation]
1671. With respect to the complainant’s
other requests for overtime pay and CIBC stock option certificates, there is
nothing in the evidence before me to justify the legitimacy of these requests.
In addition, the stock option certificates relate to what is called the “Prix
du Président” [President’s
Prize] and are at the
employer’s discretion like any other similar benefit in a company.
[23]
Lastly, at
paragraph 1673 of his reasons, the adjudicator/referee dismissed the
appellant’s two complaints. He also cancelled the payment order imposed by the
inspector on March 17, 1999, and ordered that the Bank be reimbursed the
money it had deposited with the Receiver General for Canada.
Decision of the Federal Court
[24]
The judge dismissed the
appellant’s application for judicial review. His reasons for that conclusion
can be summarized as follows.
[25]
Relying on the Supreme
Court of Canada’s decision in Dunsmuir v. New Brunswick, [2008] 1 S.C.R.
190 (Dunsmuir), the judge was of the view that the appropriate standard
was reasonableness (paragraphs 12 and 13).
[26]
Having determined the
appropriate standard, the judge dealt with the appellant’s dismissal complaint.
In his opinion, the adjudicator/referee’s decision was reasonable
(paragraph 18).
[27]
After noting the
principle that a breach of the relationship of trust between an employer and
its employee could justify the employee’s dismissal, the judge indicated that,
aside from fraud, there were other circumstances, such as gross negligence,
where the relationship of trust could be broken. According to the judge, each
case had to be judged on its own merits, and the adjudicator/referee had to
determine, in consideration of the circumstances, what the appropriate finding
was (paragraph 19).
[28]
At paragraph 24 of
his reasons, the judge reviewed the adjudicator/referee’s determination
according to which the numerous errors discovered by the Bank in the appellant’s
1997 sales reports, despite the absence of fraud on the part of the appellant,
were, in the circumstances of the case, the result of the appellant’s
carelessness, negligence and denial of responsibility. Moreover, the judge
noted that because of this determination, the adjudicator/referee had concluded
that the relationship of trust between the Bank and the appellant had been
irretrievably broken.
[29]
After making this
observation, the judge examined the reasons supporting the adjudicator/referee’s
finding. He noted that the adjudicator/referee had undoubtedly fully considered
all of the evidence submitted by the parties. He also remarked that the
adjudicator/referee had performed a thorough and detailed analysis of this
evidence. In addition, he noted that the adjudicator/referee’s determination
that the relationship of trust had been irretrievably broken relied in large
part on the fact that the appellant’s 1997 sales reports contained numerous
errors and that the reports were erroneous, unfounded and exaggerated or had
been submitted past the deadlines prescribed by the Bank without any
explanation from the appellant for the delay.
[30]
Lastly, the judge found
that the adjudicator/referee’s analysis “. . . reveal[ed] no unreasonable conclusion on this crucial
point” (paragraph 26).
[31]
At paragraphs 27
to 36 of his reasons, the judge carefully reviewed the adjudicator/referee’s
process, which he described as careful and exhaustive, writing the following at
paragraph 35:
[35] This
brief summary of the adjudicator’s approach reveals his thorough analysis and
careful consideration of the evidence submitted by both parties. Consequently,
the adjudicator’s conclusion that the relationship of trust was broken, and
rightly so, is amply supported and cannot under any circumstances be found to
be unreasonable, even if this Court could come to a different conclusion based
on the evidence noted by the adjudicator. In short, the adjudicator’s
assessment of the facts needs only to be rationally based on the evidence
submitted. In this case, the adjudicator’s in-depth and reasoned review in the
impugned decision satisfies me that he made no reviewable error.
[32]
At paragraphs 36
and 37 of his reasons, the judge found that the adjudicator/referee had
properly understood and applied the relevant case law on breaches of the
relationship of trust between an employer and its employee. In addition, the
judge reviewed the case law according to which the relationship of trust was particularly
important in banking and finance. At paragraphs 36 and 37, he commented as
follows:
[36] This leads to the second ground of review submitted by the
applicant, that the adjudicator erred in his interpretation of the principles
of case law applicable to the field of banking that would allow him to uphold a
dismissal for breach of the relationship of trust in the absence of progressive
discipline. On this point, in the impugned decision, the adjudicator correctly
cites Banque de Montréal (Saint-Hubert) v. Saint-Michel, 1999 D.A.T.C.
No. 480; Forget v. Banque Laurentienne du Canada, [2001] D.A.T.C. No. 39
and National Bank of Canada v. Lepire, 2004 FC 1555 (NBC v. Lepire).
These decisions all highlight the importance of the relationship of trust and
the seriousness of a violation of the rules of conduct for employees of
financial institutions.
[37] The Court should not intervene on this point, and the
adjudicator’s conclusion again seems reasonable given the state of the law on
this issue. It is important to highlight paragraphs 1126 and 1127 of the
impugned decision, where the adjudicator noted the evidence of [translation] “an honour system in which
tremendous trust was required between the investment specialist, the accounts
directors and the team in Toronto”, with the result that [translation] “the investment specialist
had to show exemplary integrity”.
[33]
Lastly, at
paragraph 40, the judge wrote that the errors made by the appellant over
an extended period of time, errors that she had not explained, could not be
characterized other than by their seriousness. This led the judge to conclude
that the adjudicator/referee’s conclusion had been reasonable and that there
was no reason for him to intervene.
[34]
Then, the judge
examined the appellant’s second complaint, namely her monetary claim for unpaid
commissions and other premiums to which she claimed she was entitled under the
Bank’s administrative rules applicable at the time. The judge began his
analysis by reviewing the appellant’s submission that the adjudicator/referee had
failed to rule on 16 files. According to the judge, the appellant’s
submission had no merit since the adjudicator/referee had incontestably
considered “. . . all of the files supposedly omitted”
(paragraph 44).
[35]
Regarding the appellant’s
arguments relying on the document she had prepared and filed as Exhibit E‑39, namely, CORE Products Audit Fiscal
1997, which concerns investments that entitled her to bonuses and a
commission premium if she reached the $6.5‑million level, the judge found that the
document had been prepared for
the hearing before the adjudicator/referee and that the adjudicator/referee had
not been bound by the figures in this document. The judge added that the
adjudicator/referee had undoubtedly considered the document when he analyzed
the transactions on which the appellant relied in support of her claim. At
paragraph 47 of his reasons, the judge wrote the following:
[47] In
short, after assessing each of the files upon which the applicant’s monetary
claim was based, the referee dismissed the claim because there was no evidence
to support the claim, the transaction was not a sale eligible for commission or
the applicant was shown to have already been paid the commission claimed.
[36]
At paragraph 48 of
his reasons, after noting that the adjudicator/referee dismissed all the claims
for which, in his view, the appellant could provide no documentary evidence
confirming “. . . that the sale for which a commission was claimed
had been made and was eligible for this commission”, the judge examined the
appellant’s submission that the adjudicator/referee had breached a rule of
procedural fairness “. . . in requiring that she provide documentary
evidence of these claims, which she was unable to do, since the documents were
in the possession of the respondent”. According to the judge, an adjudicator
appointed under the Code has the power to control the evidence and the
procedure; consequently, the adjudicator could require commencement of proof in
writing in order to admit the testimonial evidence intended to prove the
accuracy of the claims. At paragraph 50 of his reasons, the judge
reproduced paragraph 1488 of the adjudicator/referee’s reasons, where the
adjudicator/referee wrote as follows:
[translation]
[1488] At the outset, I wish to point out that with respect to this
monetary complaint, the complainant has the burden of proving that the
commissions are owing to her. The testimonial evidence is insufficient to prove
her sales; she must file documents from CIBC which could serve as a
commencement of proof in writing.
[37]
Lastly, at paragraph 57
of his reasons, the judge considered the appellant’s argument that some of the adjudicator/referee’s
comments gave rise to a reasonable apprehension of bias. The judge had the
following to say:
[57] At the hearing, the applicant also questioned the
neutrality of the adjudicator/referee. This extremely serious accusation was
neither alleged nor elaborated on in the prior proceedings. Essentially, the
applicant accuses the adjudicator/referee of making derogatory comments about
her in the impugned decision, such as the applicant’s being in the [translation] “warmth of her home”, the
[translation] “applicant’s
excuses” and her [translation] “incredible
attitude” regarding her dismissal. That said, an allegation of bias is very
serious one way or the other and not something to be trifled with. The question
is whether this objectively gives rise to a reasonable apprehension of bias in
the eyes of a properly informed person. I am not of the opinion that this is
the case here, considering the approximately 500-page decision as a whole. There
may have been certain unfortunate comments, but that is not enough in this case
to give rise to a reasonable apprehension of bias.
[38]
At paragraph 58 of
his reasons, the judge dismissed, with costs, the applicant’s application for judicial
review.
Issues
[39]
This appeal raises the
following issues:
1.
Did the judge err in
concluding that the adjudicator/referee’s decision concerning the unjust
dismissal complaint was reasonable?
2.
Did the judge err in
concluding that the adjudicator/referee’s decision to reject the appellant’s
monetary claim was reasonable?
3.
Did the judge err in
dismissing the appellant’s claims that the adjudicator/referee’s conduct during
the course of the hearing gave rise to a reasonable apprehension of bias?
Analysis
[40]
As I indicated earlier,
the judge, relying on the Supreme Court’s decision in Dunsmuir,
determined that the appropriate standard of review in this matter was
reasonableness. In my opinion, given the privative clauses found in the Code
and the expertise of the adjudicator/referee appointed under the Code, and
given that the issues before the adjudicator/referee were mainly questions of
fact, there can be no doubt that the judge did not err in finding as he did. Consequently,
the issues before us, other than the issue concerning the reasonable
apprehension of bias, are reviewable on a standard of reasonableness.
[41]
I would add that our
role as an appellate court sitting in review of a judge’s decision on an
application for judicial review is as this Court defined it in Canada
Revenue Agency v. Telfer, 2009 FCA 23 (Telfer), at
paragraph 18, where our colleague Evans J.A. wrote as follows:
[18] Despite some earlier confusion, there is now ample
authority for the proposition that, on an appeal from a decision disposing of
an application for judicial review, the question for the appellate court to
decide is simply whether the court below identified the appropriate standard of
review and applied it correctly. The appellate court is not restricted to
asking whether the first-level court committed a palpable and overriding error
in its application of the appropriate standard.
[Emphasis added]
[42]
Before dealing with the
appellant’s arguments, it is important to recall the principles enunciated by
the Supreme Court in Dunsmuir, which must govern our approach in a
matter such as the one before the Court. Specifically, at paragraph 47 of
its reasons, the Supreme Court had the following to say about the standard of
reasonableness.
[47] Reasonableness is a deferential standard animated by the
principle that underlies the development of the two previous standards of
reasonableness: certain questions that come before administrative tribunals do
not lend themselves to one specific, particular result. Instead, they may give
rise to a number of possible, reasonable conclusions. Tribunals have a margin
of appreciation within the range of acceptable and rational solutions. A
court conducting a review for reasonableness inquires into the qualities that
make a decision reasonable, referring both to the process of articulating the
reasons and to outcomes. 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 law.
[Emphasis added]
[43]
In my opinion, despite
the use of words that may leave the reader perplexed, namely the fact that the
reasonableness of a decision can be determined by “the existence of
justification, transparency and intelligibility within the decision-making
process”, what Dunsmuir requires of the decision maker is that he or she
make a decision the reasons for which explain in an understandable manner why
he or she arrived at a particular conclusion and why this conclusion is “possible”
in light of the facts in the case and the applicable law.
[44]
I will now look at the
first issue before the Court.
1. Did the judge err in concluding that the
adjudicator/referee’s decision concerning the unjust dismissal complaint was reasonable?
[45]
The judge concluded
that the adjudicator/referee’s decision was reasonable. In my opinion, he did
not err in so concluding. The adjudicator/referee satisfactorily explained why
he concluded that the unjust dismissal complaint had to be dismissed and, more
importantly, his conclusion was amply supported by the evidence and the applicable
law.
[46]
The adjudicator/referee
set out his analysis at paragraphs 1393 to 1438, some 45 paragraphs. In
his analysis, the adjudicator/referee essentially concluded that the Bank had
ample reason to dismiss the appellant since it had lost confidence in her because
of the numerous mistakes discovered in her sales reports for 1997 (adjudicator/referee’s
reasons, paragraph 1405). Errors such as those found in the appellant’s
sales report are particularly worrying in the banking and finance industry (adjudicator/referee’s
decision, paragraph 1427). Consequently, the Bank was entitled to expect
not only good faith and honesty of its employees, but also that their conduct
be above reproach in all respects. These expectations are set out in the
document Professional Conduct Policies and Procedures for Investment Specialists,
which the appellant had to comply with.
[47]
According to the
adjudicator/referee, there was no doubt that the appellant’s conduct, in light
of the errors found in her sales report, could not satisfy the Bank’s policy
governing, among other things, the professional conduct requirements. According
to the adjudicator/referee, these errors resulted in a breach of the
relationship of trust between the Bank and the appellant and, consequently,
justified her dismissal. At paragraphs 1434 and 1437 of his reasons, the
adjudicator/referee wrote as follows:
[translation]
1434. This led to an investigation,
as we know, and the discovery of numerous errors made throughout the entire
year. CIBC was right to argue that the discovery of so many errors throughout
1997 exacerbated the complainant’s situation. These errors were not simple
administrative errors in that they demonstrated several failures on the part of
the complainant, who was unable to meet deadlines, who produced duplicate sales
reports, who did not verify whether the funds were actually invested in the
product claimed before making her sales reports, and who made numerous errors
in codes, classifications, account numbers and amounts in her sales reports. As
a result, she was able to obtain one commission twice, commission to which she
was not entitled and commission on a greater amount than the actual sale.
. . .
1437. In one way or another, the
relationship of trust was irretrievably broken. However, I want to reiterate
that the evidence does not support the idea that the complainant intentionally
produced false sales reports in order to receive commission payments to which
she was not entitled. The evidence shows an excellent CIBC salesperson who was
struggling to meet all the requirements of her job but who, unfortunately, in
the circumstances and because of her excessive pride and ambition, was not
honest enough to admit that she was out of her depth at the time.
[48]
Furthermore, to justify
his conclusions, the adjudicator/referee relied on various elements of the
evidence before him. For example, at paragraphs 1421 to 1423, he explained
the main error made by the appellant, concerning the $1.2 million sale to
client Samuel W. More particularly, the adjudicator/referee explained that in
October 1997, the appellant reported this sale even though it never took
place. Here is how the adjudicator/referee dealt with the matter:
[translation]
1421. What caught the attention of
the Toronto auditors at the beginning of November 1997 were eight (8) questionable
sales from her October report. But particularly a $1.2 million sale reported as
code 50 (Government of Canada bonds) for client Samuel W. The complainant
testified that she prepared her October sales report at the last minute at
home, at around 8 or 9 p.m. on the evening of October 31, even though Exhibit
E-15B indicates October 27. We know that there never was a sale of $1.2
million of Government of Canada bonds for this client. The evidence
shows that there was no other sale for this client in 1997, as his funds
were transferred to Wood Gundy in the summer of 1997. The evidence also
shows that the complainant knew this client very well and that she had
encouraged him to transfer his funds to CIBC in 1996. She met him several
times, often at his home, with GRACE LUTFY, an agent from Wood Gundy. How could
the complainant have made such an error on a substantial amount for a client
she knew so well?
[1422] All of the witnesses agreed that, when an investment
specialist makes a sale of $1 million, it is an extraordinary event which does
not go unnoticed. Moreover, the established rules require that the manager
be notified of such a sale when it is made. The complainant did not advise
GILBERT AURA of this alleged sale of $1.2 million that she classified as code
50. This report of a sale which never took place, coming from an employee who
had been assessed as being among CIBC’s best investment specialists, was
disturbing for the employer when it became aware of the situation in November
1997.
1423. I must confess that I am still
puzzled by what the complainant did in the quiet of her home on the evening of
October 31. We know that she was misled by a document that did not report the
right figures and that it was rather a $10,000.00 sale, not in Government of
Canada bonds, but in mining bonds. That is no excuse for falsely reporting a
sale in Government of Canada bonds. However, the evidence as a whole does not
suggest that the complainant’s intention was dishonest when she produced this
sales report. She knew that these reports were reviewed in Toronto and believed
that the worst that could happen was that this sale would be refused. However, this
still shows the complainant’s extreme carelessness regarding her sales reports
and the minimal attention she devoted to this important part of her work.
[Emphasis added]
[49]
At paragraphs 1424
and 1425 of his reasons, the adjudicator/referee reviewed the appellant’s
attempts to deny responsibility for the errors she made. The adjudicator/referee
concluded at paragraph 1426 that the appellant’s [translation] “incredible” attitude
towards her dismissal was typical of the attitude of [translation] “carelessness,
negligence and denial of responsibility” she exhibited [translation] “before being
dismissed on January 26, 1998”.
[50]
In my opinion, the
adjudicator/referee’s analysis clearly and understandably explains the basis of
his decision. In fact, there can be no doubt about the adjudicator/referee’s conclusion,
namely that the Bank had ample reason to dismiss the appellant because of the many
errors in her 1997 sales reports since these errors had resulted in undermining
the Bank’s confidence in the appellant. In light of the arbitral case law (see Banque
de Montréal (St. Hubert) v. St. Michel, 1999 D.A.T.C. No. 480; Forget c.
Banque Laurentienne du Canada, 2001 D.A.T.C. No. 39; and National Bank
of Canada v. Lepire, 2004 FC 1555 (NBC v. Lepire)), according to
which the relationship between an employer and its employee in the banking and
finance industry is of great importance, the adjudicator/referee’s conclusion,
having regard to the specific circumstances of the case, seems entirely
reasonable.
[51]
The arguments put
forward by the appellant to challenge the adjudicator/referee’s decision do not
persuade me that we must intervene. I turn now to those arguments.
[52]
First, the appellant
argues that the Bank dismissed her for fraud, but that, subsequently, the Bank
attempted to change the reasons for the dismissal, the whole contrary to case
law (Appellant’s Memorandum, paragraphs 5 and 30). This argument results
from a misunderstanding of the Bank’s letter informing the appellant of her
dismissal.
[53]
Jean-Pierre Paiement,
the Bank’s labour relations advisor, testified that the letter template used,
namely letter No. 14, is a letter used for dismissing employees for
professional misconduct, including fraud. There is no reason to impose
progressive disciplinary action in such cases since, from the Bank’s
perspective, they entail intentional misconduct and, consequently, a breach of
the relationship of trust.
[54]
It should be noted that
the letter terminating the appellant’s employment dated January 26, 1998,
signed by Mr. Aura, does not use the word [translation] “fraud” as a reason
for her dismissal. The first paragraph of the letter (Appeal Book, Vol. I, page
65) reads as follows:
[translation]
To follow up on our meeting today, we confirm that, given the
results of our recent investigation (and for the reasons we mentioned at our
meetings), your employment with CIBC is hereby immediately terminated for just
cause, and without pay.
[55]
I am therefore
confident that the Bank did not waver in its position, namely that it had lost
confidence in the appellant because of the numerous serious errors she had made
throughout 1997.
[56]
Second, the appellant
alleges that the Bank’s actions played a significant part in her errors. She
specifically refers to the instructions given in respect of sales reporting
(Appeal Book, Vol. 1, page 100) which she had to comply with. In her
opinion, the majority of the errors attributed to her resulted from her having strictly
followed these rules and from clients often taking months to decide how to
invest their money (Appellant’s Memorandum, paragraph 18).
[57]
In my view, these
excuses are without merit. The instructions issued by Mr. Aura were not
ambiguous in that they stipulated that investment specialists should not report
a sale [translation] “. . . as long as the conversion into long-term products has
not been made or if the client has decided to remain in the money market”. These
instructions cannot justify the majority, if not all, of the appellant’s
errors, including the times when she reported the same sale twice (Adjudicator/referee’s
decision, paragraph 1360).
[58]
It is possible that
some clients took several months before making a final decision on their
investments, but, in my opinion, that in no way excuses the sales specialist
who had to report a sale only when it had been finalized, with the right
amounts. At paragraph 1408 of his reasons, the adjudicator/referee made
the following observation about the appellant’s attitude towards the errors
discovered by the Bank:
[translation]
1408. . . . An evasive and
negative attitude was also noted on the part of the complainant, who denied
responsibility by shifting the blame to assistants or account managers. This
specific concerned the managers and was one of the reasons that led to the
decision to dismiss her.
[59]
In my opinion, in light
of the evidence, this conclusion is entirely reasonable.
[60]
Third, the appellant
alleges that the Bank’s in-house policies were ambiguous and that they had
contributed to her errors (Appellant’s Memorandum, paragraphs 19 and 46). With
respect, there is no support for this argument in the evidence. The Bank’s
compensation scheme for payments and commission is very detailed and provides a
number of examples to explain how commissions should be calculated (Appeal
Book, Vol. I, at pages 73 to 83). In addition, following its disclosure of the
compensation scheme to the investment specialists, the Bank answered a number
of the questions raised by the investment specialists (Appeal Book,
Vol. I, at pages 84 to 90). In my opinion, the document suggests that the
Bank attempted to establish an intelligible compensation scheme and answer the
questions of those the scheme applied to. Consequently, I have no doubt in the
circumstances that if the appellant had had questions about the compensation
scheme, she could have referred them to the Bank, which would have attempted to
clarify matters.
[61]
I therefore cannot see
how the Bank can be held responsible for the errors made by the appellant.
[62]
According to Dunsmuir,
the judge had to ensure that the adjudicator/referee had made a reasonable
decision based on the evidence before him. His role did not allow him to
substitute his assessment of the evidence for that of the adjudicator/referee. As
the respondent submits at paragraph 37 of its Memorandum:
[translation]
37. The Adjudicator/Referee’s reasoning was analysed at great
length by the trial judge, who found that his decision could in no way be
deemed unreasonable despite the Adjudicator/Referee’s decision that the
evidence did not support the fact that the complainant had intentionally
produced false sales reports. . . .
[63]
As to the appellant’s
arguments that the adjudicator/referee did not consider all the mitigating
factors and evidence she submitted and that he did not consider all of the
testimony adduced by both parties, it is my view that, given the length of the
adjudicator/referee’s decision and the thoroughness with which he reviewed all
of the evidence, these arguments have no merit.
[64]
Consequently, the judge
did not err in concluding that the adjudicator/referee’s decision concerning
the unjust dismissal complaint was reasonable.
2. Did the judge err in concluding that the
adjudicator/referee’s decision to reject the appellant’s monetary claim was
reasonable?
[65]
Before this Court, as
she did before the judge, the appellant submits that the adjudicator/referee
failed to rule on a certain number of files and that, had it not been for this
error, he would have concluded that she had achieved the sales volume required
to entitle her to additional earnings of $40,000. At paragraph 44 of his
reasons, the judge addressed this issue as follows:
[44] The
applicant submits that the referee failed to rule on 16 files. In this regard,
the applicant refers the Court to the CORE Products Audit Fiscal 1997
statement, filed before the referee as E-39, concerning the investments that
gave rise to bonuses and a commission premium for investment specialists who
reached the $6.5-million level. This exhibit was prepared specifically by the
witness Élizabeth Marshall for the hearing before the referee. The referee took
it into account and referred to it extensively, according to the parties’
submissions, but he conducted his own analysis of each of the files in turn
(impugned decision, at para. 1495). The impugned decision refers to all of the
files supposedly omitted, and there is therefore no need to intervene on this
point. In fact, the referee incontestably considered all of the documentary
evidence submitted.
[66]
The appellant has not
satisfied me that the adjudicator/referee did, as she alleges, fail to rule on
certain files. I completely agree with the judge’s comments at
paragraph 44 of his reasons. There is no doubt from reading the
adjudicator/referee’s decision, with due respect for the contrary opinion, that
the adjudicator/referee performed an exhaustive analysis of all the appellant’s
sales files. After this analysis, the adjudicator/referee found that some of
the appellant’s sales files should be rejected, for three reasons: in some
cases, because there was insufficient evident to support the claim; in other
cases, because the transaction was not a eligible sale for obtaining a
commission; and, in still other cases, because she had already been paid the
commissions in question by the Bank.
[67]
I therefore cannot
accept the appellant’s argument that the adjudicator/referee refused or failed
to rule on some of her files.
[68]
The appellant also
submits that the adjudicator/referee breached a rule of procedural fairness
when he required documentary evidence from her before considering her testimony
on certain claims for which she alleged to be unable to provide documentary evidence
since, according to her, the relevant documents were in the Bank’s possession.
[69]
The judge found that
the adjudicator/referee, as the person in control of the evidence and
procedure, could look to the rules of civil law in requiring the appellant to
provide commencement of proof in writing. The judge wrote the following at
paragraph 52 of his reasons:
[52] … I am of the opinion that it was reasonable for the referee to
require a commencement of proof in writing proving the claims made, especially
in circumstances where the accuracy of these claims needed to be reviewed in
light of the many errors attributed to the applicant in her sales reports.
Moreover, the referee breached no rule of procedural fairness. As he had the
power to control the procedure and the evidence submitted, it was open to the
referee to impose certain formal requirements and to draw conclusions from the
lack of evidence.
[Emphasis added]
[70]
That conclusion is unassailable.
[71]
It is therefore my view
that the adjudicator/referee’s decision on the appellant’s monetary claim for
unpaid commissions was reasonable and that it meets the reasonability test set
out in Dunsmuir. Consequently, I find that the judge did not err.
[72]
As regards the
appellant’s claim for overtime pay and Bank stock option certificates, which
the adjudicator/referee dismissed on the grounds that there was no evidence
before him [translation] “to justify the legitimacy of her requests” (adjudicator/referee’s decision,
paragraph 571), the appellant has not satisfied me that the judge erred in
concluding that there was no reason to intervene.
3. Did the judge err in dismissing the appellant’s claims
that the adjudicator/referee’s conduct during the course of the hearing gave
rise to a reasonable apprehension of bias?
[73]
The appellant takes
issue with the adjudicator/referee’s neutrality (Appellant’s Memorandum,
paragraphs 66 to 75). Briefly, she relies on certain passages in the
adjudicator/referee’s decision, which she considers to be derogatory towards
her, in support of her argument that the adjudicator/referee’s conduct gave
rise to a reasonable apprehension of bias. In Committee for Justice and
Liberty et al. v. National Energy Board et al., [1978] 1 S.C.R. 369, at
page 394, the Supreme Court of Canada set out the test to be applied by
the courts in determining whether a decision maker’s conduct gave rise to a
reasonable apprehension of bias. The test was described by Justice de
Grandpré (even though Justice de Grandpré was dissenting in that case, the
test he formulated was subsequently adopted by the Supreme Court), as follows:
The proper test to be applied in a matter of this type was correctly
expressed by the Court of Appeal. As already seen by the quotation above, the
apprehension of bias must be a reasonable one, held by reasonable and right
minded persons, applying themselves to the question and obtaining thereon the
required information. In the words of the Court of Appeal, that test is “what
would an informed person, viewing the matter realistically and practically–and
having thought the matter through–conclude. Would he think that it is more
likely than not that Mr. Crowe, whether consciously or unconsciously, would not
decide fairly.”
[74]
At paragraph 57 of
his reasons, the judge reviewed the adjudicator/referee’s comments that,
according to the appellant, call into question the adjudicator/referee’s
neutrality. Even though the judge found that some of the comments might have
been “unfortunate”, he was of the opinion that a properly informed person would
not find that they gave rise to a reasonable apprehension of bias.
[75]
In my view, the judge
was not wrong in concluding as he did. Other than the comments of the
adjudicator/referee reported by the judge, there is no evidence before us that
would lead a reasonable and judicious person to conclude that the
adjudicator/referee’s conduct could give rise to a reasonable apprehension of
bias. Consequently, it is my opinion that the judge did not err in rejecting
the appellant’s argument to that effect.
Decision
[76]
I would therefore
dismiss the appeal with costs.
“M. Nadon”
“I agree.
Marc Noël, J.A.”
“I agree.
J.D. Denis Pelletier J.A.”
Certified true
translation
Johanna Kratz
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