Docket: A-360-12
Citation: 2015
FCA 62
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CORAM:
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GAUTHIER J.A.
NEAR J.A.
SCOTT J.A.
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BETWEEN:
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PETER DONALDSON
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Appellant
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and
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WESTERN GRAIN BY-PRODUCTS STORAGE LTD.
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Respondent
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REASONS FOR JUDGMENT
NEAR J.A.
I.
Introduction
[1]
Peter J. Donaldson appeals
from the June 21, 2012 decision of the Federal Court (2012 FC 804), in which
Justice Campbell allowed the application for judicial review of the respondent,
Western Grain By-Products Storage Ltd. (Western Grain).
[2]
The decision under review at
the Federal Court was the November 9, 2011 decision of an adjudicator appointed
under Division XIV of the Canada Labour Code, R.S.C. 1985, c. L-2
(Code). The adjudicator, Dr. Daniel J. Baum, determined that Western Grain had
unjustly dismissed Mr. Donaldson.
[3]
For the reasons that follow,
I would dismiss the appeal.
II.
Facts and Judicial History
A.
Facts
[4]
At the relevant time, the
appellant had been employed by the respondent, the operator of a grain terminal
located in Thunder Bay, Ontario, for approximately 20 years.
[5]
The chain of events in
question began on May 9, 2007, when the appellant left work ill. He attended
the emergency room at Thunder Bay Regional Health Sciences Centre complaining
of abdominal pain and vomiting, and was hospitalized until May 20, 2007.
[6]
On June 22, 2007, the
appellant filed a claim with the Workplace Safety and Insurance Board (WSIB).
In this claim, the appellant stated that the symptoms he experienced on May 9,
2007 possibly resulted from a toxic allergic reaction to grain dust.
[7]
During the summer of 2007,
in both July and August, the appellant visited the premises of Western Grain
and notified his employer (the respondent) that his doctor had advised him that
he could not return to work due to health concerns.
[8]
In a decision dated October
17, 2007, the WSIB informed the appellant that the evidence did not establish
an occupational disease. The WSIB based this conclusion on an examination of
the appellant’s medical records by one of its occupational medical consultants.
In its decision, the WSIB explained that entitlement to compensation requires
proving that “it is … more probable than not that your
work contributed in a significant way to the development of a
disease/condition” (at p. 202, Appeal Book (AB) Vol. I).
[9]
The respondent was first
advised of the finding of the WSIB on October 23, 2007. The record before this
Court contains an objection to this finding completed by the appellant, but
there is no information indicating that the decision of the WSIB was ever
reversed.
[10]
On October 25, 2007, the
appellant attended the premises of Western Grain and presented a handwritten,
two-line note from his family physician. The note, dated October 24, 2007,
stated: “Mr. Donaldson is now capable of returning to
his job & employment at Western Grain” (at p. 203, AB Vol. I). Upon
receiving the note, Mr. Mailhot, Western Grain’s principal, told the appellant
that he could not return to work until he presented “a
better doctor’s note as to his fitness level in relation to his duties and the
work environment” (at p. 113, AB Vol. I).
[11]
Not long after, on October
31, 2007, the respondent notified the appellant in writing that the shipping
season was reduced to very occasional work and that as a result, he was being
placed on temporary layoff, effective November 9, 2007. Seasonal layoffs occur
each year at Western Grain. In 2007, four other employees were also temporarily
laid off.
[12]
On November 16, 2007, the
appellant filed a complaint with Human Resources and Social Development Canada
(HRSDC), stating: “was not allowed to go back to work
with a Dr.’s note, I feel unjust dismissal” (at p. 185, AB Vol. I).
[13]
By way of letter dated
December 12, 2007, in response to HRSDC’s inquiry into the appellant’s
complaint, Mr. Mailhot indicated that he had found the doctor’s note to be
suspicious and had requested that the appellant obtain a better note. In the
letter, Mr. Mailhot also explained that the appellant was currently on seasonal
layoff along with four other employees.
[14]
On March 5, 2008, Mr.
Mailhot wrote to the appellant seeking “previously
requested information”, including: a doctor’s certificate indicating
that the appellant was unable to work during the period from May 9, 2007 to
October 25, 2007, and a current doctor’s certificate verifying that he was fit
and able to resume normal work duties (at p. 208, AB Vol. I). Mr. Mailhot asked
the appellant to provide this information within 15 days of receiving the
request.
B.
Adjudicator’s Decision
[15]
The adjudicator, in a
rambling and disjointed decision, concluded that the respondent had
constructively dismissed the appellant, and that this dismissal was unjust.
[16]
The adjudicator defined
constructive dismissal as “an alteration of a
fundamental term of employment by the employer without justification”
(at p. 28). In support, he cited Farber v. Royal Trust Co., [1997] 1
S.C.R. 846, 145 D.L.R. (4th) 1 and Shah v. Xerox Canada Ltd., 131 O.A.C.
44, [2000] O.J. No. 849 (QL).
[17]
Early in his decision, the
adjudicator made a finding which became the main basis upon which he concluded
that the respondent had constructively dismissed the appellant:
… In my view, the WSIB
decision fully responds to the medical opinion apparently sought by Mr. Mailhot
from Mr. Donaldson’s physician.
There was no medical
basis for finding that Mr. Donaldson suffered from an allergic reaction in the
handling of grain at Western Grain. That was the only issue to be resolved. …
The question, indeed the only question faced by Mr. Mailhot, was whether, given
the claimed allergic reaction by Mr. Donaldson, he was able to return to work.
An authoritative answer to this question was given in the WSIB report, per se.
The medical note “required” by Mr. Mailhot of Dr. Adams simply was not relevant
to answering this question.
(emphasis removed from
original; at pp. 36-37)
[18]
The adjudicator repeated
this finding a number of times, in a number of different ways, throughout his
decision. At page 39, he stated that Mr. Donaldson had a right to return to
work on October 25, 2007 because “[t]he underlying
cause of Mr. Donaldson’s job absence ended on October 17, 2007 – the date on
which the WSIB entered its finding and decision denying Mr. Donaldson’s claim”
(emphasis removed from original). At page 50, he stated that:
… Mr. Donaldson needed
no certification to return to work. It was as if he had never left work. His
absence for 25 weeks was occasioned to allow for consideration, investigation
and determination of Mr. Donaldson’s claim for a finding of occupational
disease resulting from a one-time exposure to grain dust. In such a situation
there was no need for a “doctor’s note.”
[19]
Later in his decision, in
distinguishing the case at bar from Re Thompson General Hospital, [1991]
M.G.A.D. No. 57, 20 L.A.C. (4th) 129 (Manitoba Grievance Arbitration), a case
which the respondent had argued was analogous, the adjudicator stated: “… the only “illness” allegedly suffered by Mr. Donaldson was
his claim to have suffered an allergic reaction to a one-time incident of grain
dust exposure – an illness that the WSIB denied had occurred” (emphasis
removed from original; at pp. 58-59).
[20]
In considering whether the
respondent had constructively dismissed the appellant, the adjudicator stated
the following:
What the record
demonstrates is that Western Grain wanted the identity, the notes, and the
production as witnesses for examination and cross-examination of all those
doctors who treated Mr. Donaldson – at any point in time for any ailment that
on the surface might affect his fitness to work at Western Grain beyond the one
time claimed allergic reaction to grain dust. …
The position of Mr.
Mailhot was clear: Mr. Donaldson could not return to his job without first
meeting Mr. Mailhot’s demand of proof of fitness, as described above. And, this
was a demand that went far beyond the asserted medical reason for Mr.
Donaldson’s absence – an absence that had its genesis in a WSIB claim by Mr.
Donaldson of allergic grain dust reaction – a claim which the WSIB denied. Mr.
Mailhot’s position as to the required “medical note” in fact was a demand that,
in the context of these hearings, Mr. Donaldson simply could not, as a
practical matter, meet. The result, as I described in some detail, brought
about the “dismissal” of Mr. Donaldson. A fundamental change in Mr. Donaldson’s
employment occurred as a result of the action of Mr. Mailhot. He was rendered
unable to return to his job at Western Grain.
… Contrary to what
[counsel for the respondent] argued, it was no “simple” note with additional
information that Mr. Mailhot demanded of Mr. Donaldson. It was a full list of
physicians who treated Mr. Donaldson – a list that went back more than 20 years
together with the nature of their treatment, their production as witnesses and
their availability for examination and cross-examination, along with the
relevant medical documents, including physician notes.
(my emphasis; at pp.
64-65)
[21]
In concluding that the
appellant was unjustly dismissed, the adjudicator found that Mr. Mailhot “placed effective barriers” that denied the appellant
the right to return to work, and that these barriers “exceeded
any reasonable term of employment” (at p. 68).
[22]
The hearing before the
adjudicator was bifurcated into two portions, liability and damages. The
damages portion of the hearing has been stayed by an Order of the Federal Court
pending the final disposition of these proceedings (at pp. 441-447, AB Vol. 3).
C.
Federal Court Decision
[23]
The Federal Court judge
allowed the respondent’s application for judicial review.
[24]
The Judge found that it was
clear that the appellant’s claim related only to the conversation between
himself and Mr. Mailhot on October 25, 2007, and not to the seasonal layoff
notice sent October 31, 2007.
[25]
On this basis, the Judge
held that although the adjudicator had properly cited the law, his conclusion
was unreasonable as it was based on a fact that had nothing to do with the conversation
of October 25, 2007.
[26]
The Judge cited from the
decision of the adjudicator, who stated in his conclusion:
…Western Grain imposed
conditions on Mr. Donaldson’s return to work which went beyond the ken both of
what was reasonable in the context of Mr. Donaldson’s reason for absence
(namely, a WSIB consideration of his claim of a one-time allergic reaction to
grain dust that, in the result was denied by the WSIB) and Western Grain’s
demand for the production for examination and cross-examination of all doctors
who have treated Mr Donaldson [sic] over a period of two decades.
(at p. 69)
The Judge held that if
Western Grain had made such a demand for production, which was disputed before
him, this demand “could only be identified as an
evidentiary incident in the course of the adjudication, and, as such, was not
capable in any way of being linked to Mr. Donaldson’s complaint …” (at
para. 10).
[27]
The Judge concluded that the
adjudicator’s decision was unreasonable and set it aside.
III.
Positions of the Parties
[28]
The appellant asks this
Court to allow the appeal, set aside the decision of the Federal Court, and
restore the decision of the adjudicator. The appellant submits that the Judge
properly selected reasonableness as the standard of review, but did not apply this
standard correctly. In the appellant’s submission, the Judge failed to consider
the adjudicator’s finding that no further medical information was needed.
[29]
The respondent asks this
Court to dismiss the appeal. The respondent submits that the Judge properly
allowed the application for judicial review, and that the adjudicator’s
decision is unreasonable in the following respects:
- Finding
that he had jurisdiction to hear the complaint even though the appellant
was subject to a bona fide layoff at the time he filed his
complaint;
- Finding that the respondent’s request for better medical
information consisted of a constructive dismissal; and
- Finding
that the appellant did not quit or resign for failing to provide the
medical information requested.
[30]
The respondent also
submitted that the adjudicator should be prohibited from re-determining the
liability portion of this matter or from hearing the damages portion due to his
demonstrated bias in favour of the appellant.
IV.
Issues
[31]
It is not necessary to
review all of the issues raised by the parties in order to render a decision in
this appeal. In my view, this Court must only consider the following two
issues:
1.
Was the adjudicator’s
decision reasonable?
2.
What is the appropriate
remedy?
V.
Standard of Review
[32]
This Court must determine
whether the Federal Court judge correctly chose and properly applied the
standard of review. This has been described as “stepping
into the shoes” of the Federal Court (Agraira v. Canada (Public
Safety and Emergency Preparedness), 2013 SCC 36 at paras. 46-47, [2013] 2
S.C.R. 559).
[33]
The Judge properly selected
reasonableness as the standard of review applicable to the adjudicator’s
decision (at para. 11). The issue that was before the adjudicator – whether or
not the appellant was unjustly dismissed – is a question of mixed fact and law.
As such, the standard of review is presumed to be reasonableness (Dunsmuir
v. New Brunswick, 2008 SCC 9 at para. 51, [2008] 1 S.C.R. 190). Moreover,
this Court has held that the reasonableness standard generally applies to
decisions of adjudicators considering unjust dismissal under the Code (Guydos
v. Canada Post Corp., 2014 FCA 9 at paras. 5, 7, [2014] F.C.J. No. 91 (QL),
Payne v. Bank of Montreal, 2013 FCA 33 at paras. 32-35, 443 N.R. 253).
VI.
Analysis
A.
Was the Adjudicator’s
Decision Reasonable?
[34]
In my view, the Federal
Court judge properly found that the record clearly indicated that the
appellant’s complaint related to the conversation he had with Mr. Mailhot on
October 25, 2007. Indeed, during the hearing of this matter, both the appellant
and the respondent agreed that the crucial issue for determination was whether
the employer was justified in asking for a more substantive medical note before
the appellant could return to work. The parties agreed that this issue “crystallized” on October 25, 2007 as a result of the
conversation between Mr. Mailhot and the appellant.
[35]
I also agree with the Judge
that the adjudicator’s finding that the respondent sought from the appellant,
prior to his complaint, medical evidence spanning twenty years is clearly
untenable based on the evidence. Even the adjudicator himself referred to the
respondent’s requests as “requests for what I believe
to be discovery” in his decision (at p. 52).
[36]
Nevertheless, the
adjudicator repeated this erroneous finding multiple times in his analysis and
conclusion. The respondent is incorrect in arguing that this erroneous finding
was the sole basis for the adjudicator’s decision (at paras. 16, 63, 65,
respondent’s Memorandum of Fact and Law); however, the gravity of the
adjudicator’s error seriously brings into question the soundness of his result.
Therefore, it is my view that this Court would be justified in finding his
decision unreasonable for this reason alone, as did the Judge.
[37]
The appellant conceded
during the hearing before us that the adjudicator had no basis in fact to
conclude that the respondent had demanded medical evidence spanning 20 years,
particularly at the pivotal October 25, 2007 date, or in any of its requests
for a more fulsome doctor’s note. However, the appellant argues that despite
this fundamental error, the adjudicator’s decision is reasonable.
[38]
In the appellant’s
submission, there was enough evidence to support the adjudicator’s finding that
the respondent had no right to demand a more substantive medical note before
allowing the appellant to return to work, and that as such, the respondent’s
requests amounted to constructive dismissal of the appellant. The appellant
points to two pieces of evidence in support of this submission: the October 17,
2007 WSIB report, and the doctor’s note dated October 24, 2007.
[39]
In my view, even the most
cursory examination of the October 17, 2007 WSIB decision indicates that the
appellant continued to have substantial health problems. The decision, prepared
by a claims adjudicator at the WSIB based on the observations of a WSIB
occupational medical consultant, merely concludes that the appellant’s claim
based on a possible toxic allergic reaction was not supported by the medical
evidence that the appellant had adduced. The decision did not give the
appellant a clean bill of health. To the contrary, the adjudicator noted that
the appellant’s medical records indicate that the appellant has had multiple investigations
into various medical conditions (at p. 201, AB Vol. I).
[40]
There is therefore no
evidence in the record that supports the adjudicator’s finding that the WSIB
report was conclusive as to the appellant’s capability to return to work and
precluded the respondent from asking for a more substantive medical note. Similarly,
the two-line note from the appellant’s physician lacks any explanation as to
why the appellant was now fit to return to work.
[41]
It is important to consider
that the appellant had been off work for close to six months when he attempted
to return to work, and that he had been hospitalized for nearly two weeks at
the beginning of this period. The appellant had also indicated to the
respondent during the summer months that he remained unwell and could not
return to work. In addition, prior to the events in question, the appellant had
never been off work for such a long period, nor had he ever made any WSIB
claims.
[42]
As mentioned above, while
the WSIB report indicated that the appellant may not have suffered from an
allergy to grain dust, it clearly indicated that as of October 17, 2007, the
appellant was not particularly well. In addition, it is clear from the record
that the respondent was not aware of the report’s findings until the respondent
received a copy on October 23, 2007, two days prior to receiving the two-line
doctor’s note stating that the appellant could return to work.
[43]
No finding of fact was made
that could support the conclusion that the respondent was unaware of the
appellant’s significant health issues prior to October 23, 2007, when it
received the WSIB report. As such, there is no support for the adjudicator’s
conclusion that the WSIB report precluded the respondent from seeking a more
fulsome explanation before allowing the appellant to return to work.
[44]
Similarly, there is no support
in the record or in the factual findings of the adjudicator for the conclusion
that the respondent significantly changed the terms of the appellant’s
employment in such a way as to amount to constructive dismissal.
[45]
While the adjudicator
properly outlined the test for constructive dismissal (that from Farber v.
Royal Trust Co.), there was no basis upon which he could have reasonably
concluded that the respondent had constructively dismissed the appellant. The
conversation that occurred between Mr. Mailhot and the appellant did not amount
to a change in a fundamental term of the appellant’s employment.
[46]
The adjudicator improperly
distinguished Re Thompson General Hospital, which stands for the
proposition that in certain circumstances, employers may demand further medical
information of employees before allowing them to return to work after being on
sick leave. Considering the factual circumstances, it was reasonable for the
respondent, who has an obligation to ensure the safety of its employees, to
request further medical information from the appellant upon his return. The
two-line doctor’s note that the appellant provided did not contain enough
information for the respondent to satisfactorily conclude that the appellant
may safely return to work.
B.
What is the Appropriate
Remedy?
[47]
The Federal Court judge
issued an Order setting aside the adjudicator’s decision. He did not, however,
refer the matter back for re-adjudication. Subsequently, there was disagreement
between the parties as to the effect of the Judge’s Order on the appellant’s
underlying complaint.
[48]
At the hearing of this
appeal, however, the parties agreed that should this appeal fail, the matter
will come to an end. They do not ask that this Court return the matter to a
different adjudicator for re-determination. I agree entirely. As such, the
appeal will be dismissed without any modification to the remedy ordered by the
Judge.
VII.
Conclusion
[49]
I would dismiss the appeal.
There will be no award of costs.
"David G. Near"
“I agree
Johanne Gauthier J.A.”
I agree
A.F. Scott J.A.”
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