Docket: A-268-13
Citation: 2014 FCA 144
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CORAM:
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STRATAS J.A.
WEBB J.A.
NEAR J.A.
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BETWEEN:
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BOB RAFIZADEH
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Appellant
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and
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TORONTO DOMINION BANK
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Respondent
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REASONS FOR
JUDGMENT
WEBB J.A.
[1]
This is an appeal from the decision of Hughes,
J. (2013 FC 781) who dismissed Mr. Rafizadeh’s application for judicial review
of the decision of the adjudicator dated February 20, 2013.
[2]
Mr. Rafizadeh was employed by the Toronto
Dominion Bank (TD) as a Mobile Mortgage Specialist. In December 2010, Mr.
Rafizadeh was dismissed from his employment with TD. It is the position of TD
that Mr. Rafizadeh was dismissed for cause. Mr. Rafizadeh, however, disputes
this and he filed a complaint under the Canada Labour Code, RSC 1985, c.
L-2 (CLC) alleging that he was unjustly dismissed. Stephen Raymond was
appointed as the adjudicator to hear the complaint.
[3]
During the adjudication process, the adjudicator
issued an order in June 2012 requiring TD to produce certain documents and
ordering Mr. Rafizadeh to produce any documents that he intended to rely upon
at the hearing. As part of this disclosure of documents, Mr. Rafizadeh produced
printouts of an exchange of e-mails on August 9, 2010 between Mr. Rafizadeh and
his manager/supervisor, Craig Morrison, and an exchange of e-mails on July 15,
2009 between Mr. Rafizadeh and Jay Nicholson, Associate Vice President and
District Manager at TD (and who was Craig Morrison’s manager/supervisor). Mr.
Rafizadeh’s position is that these e-mails supported his argument that TD did
not have cause to dismiss him. TD disputed the validity of these e-mails and a
hearing to determine whether TD could establish that these e-mails were not
valid was held on October 15 and 17, 2012 and on January 14, 2013.
[4]
The adjudicator determined that Mr. Rafizadeh
had fabricated these e-mails and as a result his complaint was dismissed
without being heard on its merits. Mr. Rafizadeh applied for judicial review of
this decision and as noted above, his application was dismissed.
[5]
Based on Mr. Rafizadeh’s Memorandum of Fact and
Law and his oral arguments during the hearing of his appeal, the issues raised
by Mr. Rafizadeh can be summarized as the reasonableness of the decision and
whether there was a reasonable apprehension of bias.
I.
Reasonableness of the Decision
[6]
Mr. Rafizadeh expressed significant frustration
with the result of the decision of the adjudicator. In particular he is
frustrated that his case was not dealt with on its merits but rather his
complaint was dismissed as a result of the finding by the adjudicator that he
had fabricated the e-mails in question. In this appeal, the role of this Court
is to determine whether the Federal Court Judge correctly identified and
applied the appropriate standard of review in reviewing this decision of the
adjudicator. There is no dispute that the standard of review applicable to the
decision of the adjudicator is reasonableness and that this is the standard
that the Federal Court Judge applied.
[7]
The adjudicator reviewed the evidence that was
presented to him in relation to the issue of whether the e-mails had been
fabricated and found, on a balance of probabilities, that the e-mails had been
fabricated. The adjudicator noted in his decision that:
Having weighed all of the evidence, I am unable
to come to any other conclusion on the balance of probabilities other than that
the emails were fabricated. On the one hand, I had the testimony of the
complainant that he had not fabricated the emails. He stated clearly that he
would not have known how to do so. He firmly defended his reputation and
character as a highly principled and professional person. On the other hand, I
had (1) the testimony of the internal auditor who said they did not exist in
the journalled entries, (2) the testimony of Nicholson that he had not sent nor
received those emails, and (3) the testimony of Morrison that he had not sent
nor received those emails. Although all three were cross-examined by the
complainant, their positions were not shaken on the key evidentiary issue. The
emails should have been in the journalled entries which are kept forever. They
were not. Accordingly, they had not been sent by Nicholson nor received by him.
On the preponderance of the evidence, I
am left with no other choice but to decide that the emails had been fabricated.
It is possible had the complaint [sic] been represented by able and trained
legal counsel (as he would have been had he chosen to have either Mr. Heeney or
Mr. Fox represent him), he might have been able to deduce evidence to convince
me otherwise. I was left with an unrepresented complainant who despite my
attempts to fairly inform him of the procedure was not able to marshall his case in any compelling way. On the other hand, counsel for the bank presented
the evidence necessary to convince me that there was no conclusion open to me
other than that the emails had been fabricated. The facts set out in the notice
of motion were proven through the testimony of the three witnesses called. I am
satisfied that the emails were fabricated.
[8]
The Federal Court Judge found that this was a
reasonable decision and I would agree with this finding. This was simply a
factual finding made by a trier of fact supported by the evidence available to
him. As part of the evaluation of the evidence the adjudicator assessed the
credibility of the witnesses who testified. Mr. Rafizadeh indicated that there were some inconsistencies
in the testimony of the witnesses for TD and argued that the witnesses had
committed perjury. Perjury is a serious allegation and must be supported by
more than a mere assertion that a witness could not possibly remember whether a
particular e-mail was received or sent two or three years ago when that witness
receives and sends several e-mails each day. This assertion is but one factor
that the trier of fact must weigh in deciding credibility. In this case the
adjudicator accepted the testimony of the witnesses for TD on the key points
and deference should be shown to the trier of fact on findings of credibility (Canada (Attorney
General) v Almon Equipment Limited, 2010
FCA 193, [2011] 4 F.C.R. 203 at paragraph 62).
[9]
TD was only required to establish on a balance
of probabilities, (i.e., that it was more likely than not), that the
e-mails were fabricated. They were not required to establish this beyond a
reasonable doubt. Since this was an application for judicial review of the decision
of the adjudicator, the question is whether the decision of the adjudicator was
reasonable. As noted by the Supreme Court of Canada in Dunsmuir v. Her
Majesty the Queen in Right of the Province of New Brunswick, 2008 SCC 9,
[2008] 1 S.C.R. 190.
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.
[10]
The finding that the e-mails were fabricated was
reasonable. Having made this finding, the decision to dismiss Mr. Rafizadeh’s
complaint was also reasonable. Both of these decisions fall within a range of
possible acceptable outcomes which are defensible in respect of the facts and
the law.
II.
Reasonable Apprehension of Bias
[11]
Mr. Rafizadeh argued that the adjudicator was
biased. In R. v. R.D.S., [1997] 3 S.C.R. 484, Cory, J. stated that:
111 The manner in
which the test for bias should be applied was set out with great clarity by de
Grandpré J. in his dissenting reasons in Committee for Justice and Liberty
v. National Energy Board, [1978] 1 S.C.R. 369, at p. 394:
[T]he 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. . .
. [The] test is "what would an informed person, viewing the matter
realistically and practically -- and having thought the matter through – conclude.
. . ."
This test has been
adopted and applied for the past two decades. It contains a two-fold objective
element: the person considering the alleged bias must be reasonable, and the
apprehension of bias itself must also be reasonable in the circumstances of the
case. See Bertram, supra, at pp. 54-55; Gushman, supra, at para.
31. Further the reasonable person must be an informed person, with knowledge of
all the relevant circumstances, including "the traditions of integrity and
impartiality that form a part of the background and apprised also of the fact
that impartiality is one of the duties the judges swear to uphold": R.
v. Elrick, [1983] O.J. No. 515 (H.C.), at para. 14. See also Stark,
supra, at para. 74; R. v. Lin, [1995] B.C.J. No. 982 (S.C.), at
para. 34. To that I would add that the reasonable person should also be taken
to be aware of the social reality that forms the background to a particular
case, such as societal awareness and acknowledgement of the prevalence of
racism or gender bias in a particular community.
112 The appellant
submitted that the test requires a demonstration of "real likelihood"
of bias, in the sense that bias is probable, rather than a "mere
suspicion". This submission appears to be unnecessary in light of the
sound observations of de Grandpré J. in Committee for Justice and Liberty, supra, at pp. 394-95:
I can see no real difference between the
expressions found in the decided cases, be they 'reasonable apprehension of
bias', 'reasonable suspicion of bias', or 'real likelihood of bias'. The
grounds for this apprehension must, however, be substantial and I entirely
agree with the Federal Court of Appeal which refused to accept the suggestion
that the test be related to the "very sensitive or scrupulous
conscience". [Emphasis added.]
Nonetheless the
English and Canadian case law does properly support the appellant's contention
that a real likelihood or probability of bias must be demonstrated, and that a
mere suspicion is not enough. See R. v. Camborne Justices, Ex parte Pearce,
[1954] 2 All E.R. 850 (Q.B.D.); Metropolitan Properties Co. v. Lannon,
[1969] 1 Q.B. 577 (C.A.); R. v. Gough, [1993] 2 W.L.R. 883 (H.L.); Bertram,
supra, at p. 53; Stark, supra, at para. 74; Gushman, supra,
at para. 30.
[12]
At the hearing of his judicial review
application Mr. Rafizadeh argued that the adjudicator’s prior association with
the law firm that was representing TD, Hicks Morley, demonstrated a real
likelihood or probability of bias. While the adjudicator had been a partner in
that firm, he ceased to be a partner in 2000 when he joined the Ontario Labour
Relations Board. During the hearing of this appeal Mr. Rafizadeh stated that he
was no longer alleging that the adjudicator was biased as a result of his prior
affiliation with Hicks Morley but rather his conduct demonstrated a real
likelihood of bias.
[13]
The particular conduct of the adjudicator that
Mr. Rafizadeh focused on was the conduct of the adjudicator in January 2012 in
relation to the disclosure of e-mails. In January 2012, during a meeting with
the adjudicator and representatives from TD, Mr. Rafizadeh indicated that he
had a printout of certain important e-mails between himself and his manager.
Although he was reluctant to disclose this printout, he did so because the
adjudicator insisted that he disclose the e-mails. The printout of the e-mails
that was disclosed at that time indicated a string of e-mail messages between
Mr. Rafizadeh and Craig Morrison on July 17, 2009 and July 20, 2009. These were
not the e-mails that were found to have been fabricated by the adjudicator. The
printout of those e-mails was disclosed following the order of the adjudicator
issued in June 2012. Mr. Rafizadeh’s theory of the case is that after receiving
the printout of the e-mails in January 2012 TD deleted the other e-mails that
were found to have been fabricated. Mr. Rafizadeh does not have any proof that this
occurred, only his suspicions.
[14]
Insisting that a party who has a relevant
document must disclose that document to the other side prior to a hearing under
the CLC cannot give rise to a reasonable apprehension of bias. This is simply
part of the disclosure process that must precede any such hearing.
[15]
There is nothing more than mere suspicion on the
part of Mr. Rafizadeh that the adjudicator was biased. Mere suspicion is not
enough. Therefore, I would dismiss the appeal in relation to whether there was
a reasonable apprehension of bias.
III.
Costs
[16]
The Federal Court Judge awarded costs in the
amount of $10,000 because Mr. Rafizadeh made unfounded allegations of fraud and
perjury. In this appeal Mr. Rafizadeh also made allegations of collusion
(without any evidence of such) and perjury. These are serious allegations and
the person making such allegations must be prepared to prove such allegations. Mere
suspicions of alleged collusion or perjury are not enough. Also mere assertions
that contradictory statements were provided or questions related to the
recollections of witnesses who stated that they did not send certain e-mails
two or three years earlier are not proof that such witnesses committed perjury.
Since Mr. Rafizadeh was making these allegations, the onus was on him to prove
them. It is simply not enough to make the allegation.
[17]
I would award costs in the amount of $ 2,500.
IV.
Proposed disposition
[18]
As a result I would dismiss the appeal with
costs fixed in the amount of $2,500.
"Wyman W. Webb"
“I
agree,
David Stratas J.A.”
“I
agree,
D.G. Near J.A.”
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