Docket: T-1722-14
Citation:
2017 FC 380
St. John’s, Newfoundland and Labrador, April 19, 2017
PRESENT: The
Honourable Madam Justice Heneghan
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BETWEEN:
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GARY CURTIS
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Applicant
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And
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BANK OF NOVA
SCOTIA
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Respondent
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JUDGMENT AND REASONS
I.
INTRODUCTION
[1]
Mr. Gary Curtis (The “Applicant”) seeks judicial
review, pursuant to section 18.1 of the Federal Courts Act, R.S.C.,
1985, c. F-7, of the decision of Mr. George Monteith, acting as an adjudicator (the
“Adjudicator”) appointed under Part III of the Canada Labour Code,
R.S.C., 1985, c. L-2, (the “Code”). In that decision, dated July 11, 2014, the
Adjudicator determined that he did not have jurisdiction to hear the
Applicant’s complaint of constructive dismissal against his employer, the Bank
of Nova Scotia (the “Respondent”) and refused to re-open the hearing of the
complaint.
II.
PROCEDURAL HISTORY
[2]
The Applicant commenced this application for
judicial review on August 8, 2014. In support, he filed his affidavit sworn on
October 14, 2014. The application for judicial was filed by Mr. Osborne
Barnwell.
[3]
On November 10, 2014, the Applicant filed a
Notice of Intention to Act in Person.
[4]
By Notice of Motion filed on January 20, 2015,
the Respondent sought an Order striking out the affidavit sworn on
October 14, 2014, in its entirety, on the basis that it contained evidence that
was not before the Adjudicator and in the alternative, an Order allowing the
Respondent to examine Mr. Andrew Pinto, the lawyer who represented the
Applicant before the Adjudicator.
[5]
In response, the Applicant filed a Notice of
Motion seeking an Order to strike out the Respondent’s Notice of Motion.
[6]
The Applicant filed his first Application Record
on January 21, 2015.
[7]
By Order dated March 6, 2015, Prothonotary
Milczynski dismissed the motion, without prejudice to the Respondent to advance
the Motion before the Applications Judge.
[8]
On March 12, 2015, Prothonotary Lafrenière
conducted a mediation pursuant to the Federal Courts Rules, SOR/98-106
(the “Rules”). The Mediation was not successful and at its conclusion,
Prothonotary Lafrenière ordered that the application continue as a specially
managed proceeding.
[9]
By further Order made on March 19, 2015, Prothonotary
Milczynski ordered costs in the amount of $600.00 to be paid by the Respondent
to the Applicant in any event of the cause.
[10]
By Order dated April 8, 2015, Prothonotary Lafrenière
was appointed Case Management Judge. The Applicant objected to this
appointment, on the grounds of possible prejudice due to Prothonotary
Lafrenière’s participation in the mediation, and asked that another Case
Management Judge be appointed. By Order dated April 22, 2015, Prothonotary
Milczynski was appointed as Case Management Judge.
[11]
By Notice of Motion filed on July 27, 2015, Mr.
Andrew Pinto, the former Solicitor for the Applicant, sought leave to intervene
in this application as a party, with leave to cross-examine the Applicant and
to make oral and written submissions. This Motion was dismissed by Justice Zinn
by Order made on August 17, 2015, with costs to the Applicant.
[12]
On August 26, 2015, the Applicant filed a Notice
of Motion seeking leave to cross-examine Ms. Meighan Ferris-Miles, Counsel for
the Respondent in the proceedings before the Adjudicator and Ms. Shirley
Roberts, Employee Relations Manager with the Respondent. By Order of
Prothonotary Aalto, this Motion was dismissed on September 9, 2015.
[13]
By Oral Direction dated September 21, 2015,
Prothonotary Milczynski directed that the Applicant was permitted to file a
reply affidavit, as part of his Application Record, in respect of the affidavit
of Mr. Pinto to be filed on behalf of the Respondent. The Respondent filed the
affidavit of Mr. Pinto, as part of its Application Record, on October 26, 2015.
[14]
The Applicant filed his second Application
Record on October 16, 2015.
[15]
On November 17, 2015 a Notice of Appointment of
Solicitor was filed on behalf of the Applicant, appointing Mr. Anser Farooq as
his solicitor.
[16]
By Oral Direction dated December 7, 2015,
Prothonotary Milczynski directed that the Applicant file his amended
Application Record by February 19, 2016 and that the Respondent file its
amended Memorandum of Fact and Law by March 14, 2016. The Applicant
filed a third Application Record on February 19, 2016.
[17]
The Applicant filed another Motion of Intention
to Act in Person on February 15, 2016 and he argued the application for
judicial review on his own behalf.
III.
THE EVIDENCE
[18]
The information below is taken from the
Certified Tribunal Record, the Applicant’s affidavits, sworn October 14, 2014, July
27, 2015 and August 31, 2015, the affidavit of Mr. Pinto, sworn August 10, 2015
filed on behalf of the Respondent, as well as from the transcripts of the
cross-examinations that were conducted of the Applicant and Mr. Pinto, and from
the Decision of the Adjudicator.
IV.
BACKGROUND
[19]
The Applicant worked for the Respondent from
August 19, 1991 to October 17, 1997. He was rehired by the Respondent on August
8, 2000 to April 30, 2012 as a Mortgage Development Manager. In April 2012, he
was paid solely on a commission basis. During that time, he received positive
performance evaluations and his delinquency rate was very low.
[20]
In February 2012, in the course of an unrelated
investigation, the Respondent’s Security and Investigation Department
identified a number of fraudulent documents used to support mortgages submitted
by the Applicant. This triggered an investigation which showed that 11 of 16
mortgage files contained fraudulent documents.
[21]
On April 3, 2012, the Applicant received an
email from National Director, Mr. Barry Ray, requesting an urgent meeting. That
meeting was scheduled for April 10, 2012.
[22]
Later on April 3, 2012, the Applicant met with
his supervisor, Ms. Sue Pimento, to discuss two of his client files. The
Applicant asked if there were any discrepancies with any of his files was told
there were no issues. He further asked if Ms. Pimento knew why Mr. Ray wanted
to meet with him. Ms. Pimento told the Applicant that his input on market
conditions was needed.
[23]
At the meeting on April 10, 2012, Mr. Ray told
the Applicant he was concerned with the poor performance of Ms. Pimento’s team,
particularly the decline in the 2012 fiscal year. The Applicant asked if there
were any issues with his performance, specifically in relation to the two files
discussed with Ms. Pimento on April 3, 2012. Mr. Ray said there were no issues
and that the Applicant was exceeding his expected targets in mortgage sales.
[24]
On April 24, 2012, Mr. Ray called the Applicant
and asked that he attend a meeting with Ms. Shirley Roberts, Employee Relations
Manager, the following day. Mr. Ray stated he did not know the nature of that
meeting.
[25]
The Applicant attended the meeting the following
day. Ms. Roberts, Mr. Christopher Hucalak, Corporate Security and a third woman,
later identified as Ms. Jessica Feiereisen, an investigator, were present at
the meeting. The meeting was recorded, with the Applicant’s consent upon the
condition that he receive a copy of the recording at the conclusion of the
meeting. Notes of that meeting are included in the Certified Tribunal Record at
Tab 25.
[26]
During the meeting, Ms. Feieresien questioned
the Applicant regarding six or seven of his files which she claimed had
discrepancies.
[27]
At the conclusion of the meeting, Ms. Roberts
gave the Applicant a suspension letter dated April 25, 2012 which was signed by
her on behalf of Mr. Kevin Conroy, Vice President, National Mortgage Sales. The
letter stated that effective immediately, the Applicant was suspended with pay,
pending the conclusion of the ongoing investigation.
[28]
Ms. Roberts said that this matter was private
and not to be discussed with anyone. Ms. Roberts also advised she would update
the Applicant by the beginning of the following week.
[29]
The following day, the Applicant received calls
from several associates inquiring why he was suspended.
[30]
On April 27, 2012, the Applicant’s workplace
email was terminated. The following day, emails from the Applicant’s phone were
downloaded and copied by the Respondent’s IT Security Department.
[31]
The Applicant claims he attempted to contact Ms.
Roberts and Mr. Conroy on April 30, 2012, but was unsuccessful in doing so.
[32]
According to the transcript of his
cross-examination, the Applicant contacted Paulette Hayes, an employment
lawyer, on April 27, 2012 to discuss his situation. An email from Ms. Hayes to
the Applicant dated April 30, 2012 indicates that the Applicant spoke on the
telephone and met with her on April 27, 2012. The email says that Ms. Hayes
discussed the consequences of resignation with the Applicant and reviewed a
draft resignation letter.
[33]
On April 30, 2012, the Applicant submitted a
letter of resignation. That letter provides as follows:
April 30, 2012
Dear Mr. Conroy,
This letter is to inform you of my
resignation from my current position as Mortgage Development Manager at
Scotiabank, effective immediately.
I appreciate the opportunity to have been
employed with Scotiabank and wish you and Scotiabank all the best.
Should you require any additional notice,
please feel free to discuss that with me.
Sincerely,
Gary Curtis
[34]
By letter dated May 2, 2012, the Respondent
accepted the resignation effective April 30, 2012. The Respondent coded the Applicant
as “non re-hireable”.
V.
THE COMPLAINT
[35]
On June 11, 2012, the Applicant filed a
complaint under section 240 of the Code. He alleged that he had been
constructively dismissed by the Respondent. He claimed an estimated $25,000 in
unpaid commissions.
[36]
The Respondent objected to the unjust dismissal
complaint in August, 2012 submitting that the Applicant had resigned and as
such the Adjudicator did not have jurisdiction pursuant to section 240 of the
Code. At this time the Respondent proposed that the Adjudicator determine, as a
preliminary issue, whether the Applicant had resigned or had been
constructively dismissed.
[37]
On October 12, 2012, Human Resources Service and
Development Canada (“HSRDC”) determined that the Respondent violated Part III
of the Canada Labour Code in failing to pay the Applicant $37,028.70 in wages.
This preliminary determination was reconsidered and the amount owing by the Respondent
was reduced to $12,876.50 on November 16, 2012.
[38]
The Applicant was initially represented by Mr. Osborne
Barnwell, the lawyer who signed the Application for Judicial Review.
[39]
In April 2013, the Applicant filed a complaint
with the Human Rights Commission of Canada (the “Commission”). He alleged that
he had been discriminated against on the basis of race.
[40]
The first day scheduled for hearing of the
Applicant’s Code complaint was July 10, 2013. The proceeding was adjourned
pending a determination by the Commission under section 41(1) of the Canadian
Human Rights Act, R.S.C. 1985, c. H-6, about the Applicant’s complaint to
the Commission.
[41]
On July 29, 2013, the Applicant retained Mr.
Andrew Pinto to represent him in the adjudication of his Code complaint.
[42]
On October 9, 2013, the Commission decided not
to deal with the Human Rights Complaint as it could more appropriately be dealt
with by the Adjudicator.
[43]
By letter dated October 29, 2013, Counsel for the
Applicant submitted that the Adjudicator should decline bifurcation of the issues
and require the Respondent to proceed with its case first.
[44]
The Respondent, by letter dated November 6,
2013, sought a determination from the Adjudicator about bifurcation of the
hearing and the order of the proceeding. The Respondent proposed that the hearing
be split into two stages and that the preliminary issue of jurisdiction be
heard first. It also submitted that the Applicant should present his case
first. The Respondent requested that the parties address the issue of
bifurcation on a conference call with the Adjudicator scheduled for November 8,
2013.
[45]
Counsel for the Applicant replied by letter
dated November 7, 2013 opposed making submissions on bifurcation in that telephone
conference. The letter also says that bifurcation and the order of proceedings
are critical to the Applicant and that he insisted on being present during any
argument on these issues.
[46]
On November 8, 2013, Counsel for the parties and
the Adjudicator participated in a conference call to deal with the procedural
issues. Counsel for both parties advised the Adjudicator that the parties had
reached an agreement as to the proceeding. They agreed that the proceeding
would be split into two phases. During the first phase, the parties would
address the Adjudicator’s jurisdiction, specifically whether the Applicant had
been constructively dismissed. The second phase would address whether there was
just cause for the dismissal of the Applicant, including whether the Respondent
had violated the Applicant’s human rights.
[47]
The hearing before the Adjudicator took place on
November 13 and 14, 2013. At the commencement of the hearing on November 13,
the parties, through Counsel, confirmed the agreement to bifurcate the hearing.
[48]
On the first day of the hearing, the Applicant
and Ms. Roberts gave evidence. During the course of cross-examination of the
Applicant, portions of the audio tape of the investigation meeting, which took
place on April 25, 2012, were played. A draft transcript, prepared by a legal
assistant at Mr. Pinto’s firm, was entered into evidence.
[49]
On November 14, 2013, before the second day of
hearing commenced, the Applicant gave Mr. Pinto a note terminating his services.
According to the Applicant, Mr. Pinto told him he could not discharge him in
the middle of a hearing. Mr. Pinto then took the note and went to speak with
the Adjudicator. He returned and told the Applicant the Adjudicator had said
the hearing would continue.
[50]
The Applicant was not satisfied that his case
had been heard. On November 15, 2013, the Applicant emailed Mr. Pinto and
requested that he contact the Adjudicator to re-open the hearing. The
Adjudicator was copied on this email.
[51]
Mr. Pinto did not comply with this request. The
Applicant ended his retainer agreement with Mr. Pinto on November 19, 2013.
[52]
By letter dated November 22, 2013, the
Applicant, acting on his own behalf, asked the Adjudicator to re-open the
hearing to consider his human rights issues. He went on to submit that the
letter of resignation dated April 30, 2012 was a “resign
for cause”. He argued that the Respondent’s reckless conduct denied him
the opportunity to carry on his business.
[53]
The Respondent filed submissions on November 25,
2013. It opposed re-opening the hearing on two grounds: first, the Applicant
had the benefit of legal counsel and second, he had ample opportunity to
present his evidence at the November 13 and 14 hearing. It submitted that the
burden of proof, in a request to re-open the hearing, lay on the Applicant to show
that a miscarriage of justice would probably occur if the issue was not re-opened.
[54]
The Respondent argued that the Applicant,
through his Counsel, consented to splitting the case into two stages.
Furthermore, it submitted that the Applicant’s Counsel, in concluding his
submissions before the Adjudicator, argued that the suspension without pay
amounted to constructive dismissal.
[55]
The Respondent also submitted that the
Applicant’s submissions went beyond the narrow issue of whether his suspension
without pay was constructive dismissal. In its opinion, the Applicant was now arguing
that he was constructively dismissed due to other circumstances.
[56]
The Applicant made reply submissions on December
4, 2013.
[57]
On January 15, 2014, Counsel for the Respondent
submitted a copy of the decision in Fazal Choudhry v. Bank of Nova Scotia,
[2014] C.L.A.D. No. 10 which he claimed was relevant to the question of the
Adjudicator’s jurisdiction.
[58]
On January 21, 2014, the Applicant requested an
extension of time to provide responding submissions on Choudhry, supra.
An extension to January 29, 2014 was granted.
[59]
The Applicant hired Mr. Osborne Barnwell to act
as counsel to supplement his submissions on the issue of re-opening the hearing.
[60]
In the submissions dated January 29, 2014, the
Applicant requested leave to make additional submissions on his request to
re-open the hearing. Those submissions were attached to the request.
[61]
The Applicant argued that the hearing should be
re-opened on the grounds that he was not properly represented. He argued that
Mr. Pinto consented to bifurcation contrary to his instructions. He also
submitted that the issue of constructive dismissal could not be determined in
the absence of assessing the allegation of discrimination.
[62]
On February 10, 2014, the Respondent objected to
the request for leave to file additional submissions, and made reply
submissions on the relevance of Choudhry, supra.
[63]
In reply submissions dated February 13, 2014,
the Applicant submitted that, contrary to the Respondent’s position, Mr. Pinto
was ineffective.
VI.
DECISION UNDER REVIEW
[64]
In his decision dated July 11, 2014, the
Adjudicator first outlined the procedural history of this proceeding. He said
that at the conference call on November 8, 2013, Counsel advised that agreement
had been reached as to the bifurcation of the proceeding. Phase 1 would deal
with the jurisdictional issue and Phase 2 with the merits of the complaint. He
noted that he had asked how the discrimination issue would be addressed and was
told it would be addressed in the second phase. He observed that this agreement
was confirmed at the hearing on November 13, 2013, in the presence of the
Applicant.
[65]
The Adjudicator went on to outline the
Applicant’s request to re-open the proceeding and the submissions made to
support that request.
[66]
The first question the Adjudicator considered
was whether to grant the Applicant’s request, made on January 29, 2014, to make
further submissions. The Adjudicator decided to exercise his decision to allow
the filing of the additional submissions since the granting of such leave would
not unduly prejudice the Respondent.
[67]
Next the Adjudicator outlined the position of
the Applicant on the issue of re-opening the proceeding. He said that the
Applicant argued his right to procedural fairness was breached because his
former counsel provided ineffective assistance and breached his duty to the
Applicant by failing to follow reasonable and sound instructions.
[68]
The Adjudicator summarized the Respondent’s
position, noting the Respondent argues the Applicant’s request does not meet
the criteria established by the Courts for the re-opening of a proceeding and amounts
to an abuse of process.
[69]
The Adjudicator determined that he should only
exercise his discretion to re-open a hearing where the applicant demonstrates a
miscarriage of justice would likely occur unless the hearing was re-opened; see
Vance v. Vance (1981), 34 B.C.L.R. 209 (B.C.S.C.). He said that the
Applicant needed to meet the criteria set out in R. v. B. (W.E.) (2012),
366 D.L.R. (4th) 690 (O.N.C.A.), to establish incompetency of counsel. He noted
that there was a strong presumption against finding counsel incompetent.
[70]
The Adjudicator was not satisfied that the
Applicant had established the necessary factual basis for his complaint, or
that his counsel was ineffective or that any miscarriage of justice would occur
if the hearing was not re-opened. He gave no weight to the unsworn and untested
allegations made by the Applicant against his former counsel. He said that the
Applicant could not complain now since he consented through Counsel to
bifurcation and actively participated in the hearing.
[71]
The Adjudicator found that there was no basis
for the allegation of ineffective representation as the agreement to bifurcate
the proceeding was well within the range of reasonable decisions concerning the
conduct of the hearing. He questioned whether, on an objective basis, if Mr.
Pinto’s actions “fall below the range of representation
expected of reasonable counsel?” The Adjudicator found that “the answer is clearly no.”
[72]
Finally, in the Adjudicator’s opinion, the
strong presumption of competency was not rebutted by the Applicant. He found
that the suggestion by the Applicant’s current counsel, Mr. Barnwell, that Mr.
Pinto “egregiously breached” his duty to be
completely without merit and highly improper. The Adjudicator stated that his
decision would not have been different had he heard evidence of the alleged
discriminatory conduct of the Respondent.
[73]
The Adjudicator refused the Applicant’s request
to re-open the hearing of the complaint.
[74]
The Adjudicator next outlined the evidence and
submissions of the parties relative to the issue of constructive dismissal.
[75]
The Adjudicator said that the issue to be
determined was whether the Applicant had voluntarily resigned or was
constructively dismissed, that is, whether the Applicant had cause to resign
because his suspension was in reality a suspension without pay and a
fundamental breach of the terms of his employment. He noted that pursuant to
section 240 of the Code, any person may make a complaint if that person was
dismissed and considers that dismissal to be unjust.
[76]
The Adjudicator adopted the definition of “dismissal” set out in the decision of the Federal
Court of Appeal in Eskasoni School Bd. v. MacIsaac (1986), 69 N.R. 315
(F.C.A.). He noted the onus lies on the Applicant to establish, on a balance of
probabilities, that he was dismissed.
[77]
Upon consideration of the evidence, the
Adjudicator was not satisfied that the Applicant was constructively dismissed. Relying
upon the decision in Cabiakman v. Industrial Alliance Life Insurance Co.,
[2004] 3 S.C.R. 195 (S.C.C.), he found that the Applicant was placed on
administrative suspension with pay.
[78]
The Adjudicator found that the Applicant was
aware from the letter given to him on April 25, 2012 that he was suspended with
pay, and that no decision about his employment had been made.
[79]
The Adjudicator did not accept the Applicant’s
evidence that he protested the suspension at the end of the April 25 meeting
because the transcript of that meeting did not reflect this.
[80]
The Adjudicator said that the Applicant’s belief
he had cause to resign was based upon his own perceptions, not on any actions
by the Respondent. There were no grounds for the Applicant to conclude he would
not be paid. The Respondent did not treat the Applicant’s position as vacant.
The transfer of his files to another employee was consistent with the right of
an employer to place an employee on administrative leave.
[81]
The Adjudicator also determined that the
Applicant’s failure to state that he was resigning for cause in his resignation
letter suggests he did not resign because he believed he would not be paid.
[82]
The Adjudicator found that there was no
ambiguity in the suspension letter and had the Applicant contacted Ms. Roberts,
she would have advised him of the policy concerning pay for suspended
employees. He concluded that the alternate pay scheme supported the conclusion
that the Respondent intended to pay the Applicant while on suspension.
[83]
The Adjudicator, while accepting that post
resignation evidence was relevant to the issue of whether the Applicant
voluntarily resigned, expressed doubt over whether that evidence could be used
to buttress the Applicant’s belief that he had to resign on April 30, 2012. He
went on to say that the fact that the Applicant did not object to Ms. Roberts’
findings, that he breached policy, suggested that the Applicant intended to
resign voluntarily.
[84]
Likewise, the Adjudicator found that because the
issue over the payment of commissions did not arise until after the Applicant
resigned it could not be a reason for his resignation. The Adjudicator
concluded from the Applicant’s complaint, that he had not been paid for
the period of his suspension, confirms that he knew he was suspended with pay
at the time he resigned.
[85]
Finally, the Adjudicator concluded that the Respondent
did not engage in any conduct that had the effect of terminating the contract
of employment and as such, the Applicant was not constructively
dismissed. Since he found that the Applicant had voluntarily resigned,
the Adjudicator concluded that he did not have jurisdiction to hear and
determine the complaint under section 240 of the Canada Labour Code because
there was no dismissal to adjudicate. The complaint was dismissed.
VII.
ISSUES
[86]
The following issues were addressed by the
parties in this Application:
1.
What is the applicable standard of review?
2.
Should the Applicant’s additional affidavits be
struck?
3.
Should the Court exercise its discretion to not
hear this application?
4.
Did the Adjudicator err in his decision to
bifurcate the hearing?
5.
Was the decision not to re-open the hearing
reasonable?
6.
Was the Adjudicator’s finding that the Applicant
voluntarily resigned reasonable?
7.
Was there reasonable apprehension of bias on the
part of the Adjudicator?
8. Did the Adjudicator breach procedural fairness by taking 8 months to
render his decision?
VIII. SUBMISSIONS
A.
Applicant’s Submissions
[87]
Although the Applicant did not make written submissions
on the standard of review, he addressed that issue in the course of the hearing
and argued that two standards of review apply, that is correctness and
reasonableness.
[88]
The Applicant has not made written submissions
on the Respondent’s motion to strike out his affidavits. He argued, at the
hearing, that his affidavits should remain on the record in order to permit him
to address the fairness of the proceeding before the Adjudicator.
[89]
The Applicant submits that the Adjudicator had a
legal obligation to hear the entire complaint because it was evident that the
bifurcation would severely prejudice his position. He also argued that the Adjudicator
could only bifurcate the hearing with the consent of both parties and it was
clear that he did not consent.
[90]
The Applicant further argues that the
Adjudicator prevented him from receiving a fair hearing because he was unable
to present his complaint regarding discrimination. He submits that the
Adjudicator had jurisdiction to hear the Human Rights Complaint and he had
instructed the Adjudicator to deal with that issue in his submissions of July
10, 2013, December 4, 2013 and January 29, 2014.
[91]
The Applicant submits that the Adjudicator had
the discretion to re-open the hearing if the failure to do so would prejudice a
party. He argues that he was prejudiced because he was prevented from
presenting the full merits of his case.
[92]
The Applicant submits that the Adjudicator did
not consider all the evidence about Mr. Pinto’s incompetence. He argues that
Mr. Pinto was incompetent because he did not follow the Applicant’s
instructions regarding bifurcation; he was not prepared to argue the motion on
November 8, 2013 or the merits of the case on November 13, 2013; he produced a
transcript of the audio tape against the Applicant’s instructions and provided
the transcript to the Respondent; and he did not comply with sections 31.1, 5.1
or 5.2 of the Canada Evidence Act, R.S.C. 1985, c. C-5.
[93]
The Applicant submits that the Adjudicator erred
in concluding that he was suspended with pay. He says that the Respondent did
not have any evidence of a written policy to pay suspended employees who were
compensated solely on commission.
[94]
The Applicant argues he had no way of knowing
what practice was followed to compensate suspended employees. Further, he submits
that the Adjudicator ignored the Respondent’s policies surrounding suspension,
as discussed in Choudhry, supra.
[95]
The Applicant also argues that the Adjudicator
erred in finding that he had resigned, rather than finding a constructive
dismissal. He considered denial of access to his computer system and suspension
of his short term benefits to constitute constructive dismissal. He relies upon
the decision of Cabiakman, supra at paragraph 51 to argue that these two
factors show that he had been constructively dismissed.
[96]
The Applicant submits that once he was suspended
without pay for an indefinite period he was constructively dismissed and
entitled to resign for cause; see Faber v. Royal Trust Co., [1997] 1
S.C.R. 846 (S.C.C.) at paragraph 34.
[97]
The Applicant also argues that the Adjudicator
improperly relied upon the investigation and its allegations in determining
whether he was constructively dismissed. He submits the Adjudicator did not
consider the Respondent’s failure to tell him he would be coded as non
re-hireable.
[98]
The Applicant submits that the Adjudicator
improperly relied upon an audiotape that was not authenticated or adopted into
evidence, and upon a transcript that was illegal.
[99]
The Applicant argues that the Adjudicator showed
bias by not hearing his evidence and ruling in favour of the Respondent. He
argues that the Adjudicator’s statement that the Respondent had a clear policy
of paying suspended employees is false and shows bias.
[100] The Applicant also submits that the Adjudicator improperly defended the
actions of Mr. Pinto and that this shows bias.
[101]
Finally, the Applicant argues that Adjudicator deliberately
delayed issuing his decision to after the expiry of the limitation period to
prevent the Applicant from abandoning this proceeding and bringing a claim in
civil court.
B.
Respondent’s Submissions
[102] The Respondent argues that two standard of review apply in this
proceeding.
[103] For questions of procedural fairness, the Respondent relies on the
decision in Maritime Broadcasting System Ltd. v. Canadian Media Guild
(2014), 373 D.L.R. (4th) 167 (F.C.A.) at paragraphs 47-48, to argue that the
reasonableness standard applies.
[104] The Respondent argues that the decision to re-open the hearing is
discretionary and should be reviewed on a standard of reasonableness; see Dunsmuir
v. New Brunswick, [2008] 1 S.C.R. 190 (S.C.C.) at paragraph 53.
[105] The Respondent submits that the question whether there was a
dismissal which would give rise to the Adjudicator’s jurisdiction under the
Code requires an interpretation of the Code and is based upon findings of fact.
This decision should also be reviewed on a standard of reasonableness; see Dunsmuir,
supra at paragraph 54.
[106] The Respondent argues that a court in a judicial review should only
consider the evidence before the administrative decision maker; see the
decision in Association of Universities and Colleges Canada et al. v. Canadian
Copyright Licensing Agency (2012), 428 N.R. 297 (F.C.A.) at paragraphs
17-19.
[107] The Respondent submits the limited exceptions to the general rule,
including the provision of necessary general background information, evidence
which establishes procedural defects, and evidence which shows an absence of
evidence before the decision maker, do not apply here, relying on the decision
in International Relief Fund for the Afflicted and Needy (Canada) v. Minister
of National Revenue (2013), 449 N.R. 95 (F.C.A.) at paragraph 10.
[108] The Respondent argues that the affidavits of the Applicant sworn on
July 27, 2015 and August 31, 2015 respectively, present new evidence concerning
Mr. Pinto’s alleged incompetence and that evidence was not before the
Adjudicator.
[109] The Respondent argues that the evidence in the two additional
affidavits is the very evidence which the Adjudicator noted was absent before
him when considering the request to re-open the hearing.
[110] The Respondent also submits that if this Court determines that it is
inappropriate to adduce evidence of Mr. Pinto’s conduct that was not before the
Adjudicator, that is the evidence sent out in the Applicant’s affidavits of
July 27, 2015 and August 31, 2015, the evidence set out in the affidavit of Mr.
Pinto should also be struck or disregarded.
[111] The Respondent submits that judicial review is discretionary and the
reviewing court has discretion to deny relief even where a case is made out;
see Strickland v. Canada (Attorney General), [2015] 2 S.C.R. 713
(S.C.C.) at paragraphs 37-38.
[112] The Respondent argues that the Applicant sought to re-open the
hearing because he did not appreciate the consequences of his decision to
resign. It submits that the Applicant failed to provide the Adjudicator with
material evidence relating to the issue as to whether he was misinformed as to
the potential consequences of resigning, specifically that he had received
legal advice prior to his resignation.
[113] The Respondent requests that, on the basis of the Applicant’s
failure to disclose all material facts to the Adjudicator including the fact
that he had sought legal advice before submitting his resignation letter, that
this Court should decline to review the decision of the Adjudicator.
[114] The Respondent submits the only two issues in the present proceeding
are whether the Adjudicator erred in deciding the Applicant voluntarily
resigned and as such he did not have jurisdiction, and whether the Adjudicator
erred in refusing to re-open the hearing.
[115] The Respondent submits that the Adjudicator did not err in
determining that there was insufficient evidence to establish that the
Applicant’s former counsel was incompetent and that a miscarriage of justice
would occur.
[116] The Respondent argues that the Adjudicator found that the Applicant
had failed to establish a factual basis of incompetency of counsel or that the
outcome would be different if the hearing were re-opened. It also argues that
the Adjudicator concluded that the Applicant must have agreed with the decision
to bifurcate the hearing because he acknowledged through counsel the agreement
to do so and participated in the hearing for two days, without objection.
[117] The Respondent submits that the Adjudicator’s decision not to
re-open the hearing was reasonable in light of the lack of evidence in the
record about incompetence of counsel.
[118] The Respondent also argues that the Adjudicator reasonably
determined that the Applicant was not constructively dismissed.
[119] The Respondent says that the Adjudicator found that there was no
basis for the Applicant’s alleged belief that he was being suspended without
pay. Furthermore, it also notes that the Adjudicator found that there was
nothing in the Applicant’s resignation letter to indicate he was resigning
because he believed he would not be paid.
[120] The Respondent submits the Adjudicator correctly identified the
legal principles applicable to this case. The Adjudicator said that the onus
was on the Applicant to establish that he was dismissed within the meaning of
the Code. The Adjudicator went on to set out the factors for determining
whether a constructive dismissal occurred in the context of an administrative
suspension.
[121] The Respondent argues that the Adjudicator applied the legal
principles to his findings of fact in a transparent, intelligible and
justifiable manner.
[122] The Respondent submits that the Applicant has not presented any
evidence to substantiate allegations of bias. It submits that the fact that the
Adjudicator did not accept the Applicant’s arguments is not evidence of bias or
a flaw in the process followed by the Adjudicator.
[123] Finally, the Respondent argues that the Applicant has not presented
any evidence to substantiate the allegation that the Adjudicator deliberately
delayed making a decision on his application to re-open the hearing.
IX.
DISCUSSION
[124]
I have set out above the issues that the parties
raised and addressed in this application. However, in my opinion, the real
matters in issue can be restated as follows :
A. Preliminary Issues
i.
Should the affidavits of the Applicant, or any
of them, be struck out as argued by the Respondent?
ii.
Depending on the disposition of that issue,
should the affidavit of Mr. Andrew Pinto be struck out or not considered?
iii.
Should the Court hear this application for
judicial review?
B. What
are the applicable standards of review?
C. Did
the Applicant suffer a breach of procedural fairness?
i.
Did the alleged incompetence of Mr. Pinto breach
procedural fairness?
ii.
Did the decision of the Adjudicator in
proceeding to bifurcate the jurisdictional issue from the merits of the
Applicant’s complaint breach procedural fairness?
iii.
Did the Adjudicator’s refusal to re-open the
hearing breach the procedural fairness owed to the Applicant?
iv.
Has the Applicant established bias on the part
of the Adjudicator?
D. Was the ultimate decision of the Adjudicator, to dismiss the
complaint, reasonable?
A.
Preliminary Issues
i.
Should the affidavits of the Applicant, or
any of them, be struck out as argued by the Respondent?
[125] The Respondent brought a Notice of Motion on January 20, 2015,
seeking an order to strike out the original affidavit of the Applicant, that is
the affidavit sworn on October 14, 2014, included in the first Application
Record filed by the Applicant on January 21, 2015.
[126] By Order made on March 6, 2015, Prothonotary Milczynski dismissed
the motion without prejudice to the right of the Respondent to raise the motion
again before the Applications Judge.
[127] At the hearing of this application, which began on March 30, 2016,
Counsel for the Respondent was given the opportunity to address the motion about
the Applicant’s affidavit, as a preliminary matter, soon after the Applicant
commenced his submissions.
[128] In its Amended Memorandum of Fact and Law, filed on March 4, the
Respondent made arguments seeking to strike all of the Applicant’s affidavits,
that is including the two affidavits sworn on July 27, 2015 and August 31, 2015,
included in the further application records filed by the Applicant.
[129] The Respondent, through Counsel, made submissions on March 30, 2016.
The Applicant responded on that date and again in October, 2016, when the
matter was continued.
[130] The Applicant argued that his affidavits were necessary in order for
him to have a full and fair hearing on his application for judicial review.
[131] In the course of the hearing, I outlined the options available to me
upon the Respondent’s Motion: the Motion could be granted and the affidavits
struck out; the Motion could be denied and the affidavits allowed to stand and
be considered as the evidence of the Applicant; or the Motion could be
dismissed, with no weight being assigned to the objectionable parts of the affidavits.
[132] In her Reasons for Order, Prothonotary Milczynski reviewed the
various grounds upon which the Respondent sought the Order to strike the
Applicant’s original affidavit.
[133]
In those Reasons, she said the following:
[8] Applications
for judicial review are summary proceedings. Absent exceptional circumstances
(where the impugned evidence is clearly inadmissible, argumentative, abusive
and/or prejudicial), and where the Court is satisfied that early resolution of
the evidentiary challenge is appropriate (for example so as to relieve the
prejudice arising to a party of the expense and time required to respond to the
impugned evidence or to ensure a more orderly and expeditious hearing) ,
challenges to the relevance or admissibility of evidence ought not to be made by
way of interlocutory motion (Association of Universities and Colleges of
Canada v. Canadian Copyright Licensing Agency, 2012 FCA 22; Canadian
Tire Corp. v. PS Partsource Inc., 2001 FCA 8). The issue on the within
motion is thus whether the Respondent has established sufficient grounds to
warrant early intervention. For the reasons below, I am not satisfied that the
Respondent has made out these grounds.
[9] First,
it appears that most if not all the material the Respondent challenges is the
basis upon which the Applicant made his submissions to the adjudicator in
respect of his request to re-open the hearing. Some of it may have been
received by the adjudicator (submissions to the adjudicator). Most was not “in
evidence” and as the Court was advised on this motion, this material does not
form part of the Tribunal Record. The adjudicator described the material he did
receive as follows:
“The
Complainant’s request to re-open the hearing is based upon unsworn, unproven
and unsubstantiated allegations….the assertion of unsworn and untested
allegations is not evidence or proof of anything and cannot be relied upon or
given any weight in the resolution of the re-opening question.” (para. 18 of
the decision)
[10] It
appears from the notice of the application that the Applicant regards this to
be a reviewable error and part of the grounds for judicial review of the
adjudicator’s decision. While the Respondent urges that the admissibility of
this material should be determined now because it essentially seeks to
supplement what was before the adjudicator, the effect of determining
admissibility may include some consideration of the merits of the application
as framed in the notice of application, namely whether the adjudicator’s ruling
that the Applicant’s Counsel was not ineffective or incompetent was
fundamentally flawed and constituted an error of law and whether in the
circumstances, the refusal to reopen the hearing constituted a reviewable
error.
[11] Second, given
that the Respondent does not now take issue with the Applicant’s affidavit in
its entirety, granting the relief sought in the notice of motion that it be
struck in its entirety is not appropriate. […]
[Emphasis added]
[134] At paragraph 13, Prothonotary Milczynski found that the Respondent
would not be “significantly prejudiced” by
raising the motion to strike at the hearing of the application.
[135]
At paragraph 15, the Prothonotary observed as
follows:
[15] Accordingly,
and having regard to the above, I am not satisfied that there is any good
reason to exercise my discretion to determine the merits of the Respondent’s
motion to strike the Applicant’s affidavit or grant leave to examine the
Applicant’s former counsel in advance of the hearing.
[136] In my opinion, the Respondent’s efforts to strike out the further affidavits
of the Applicant rely on the same foundation as the original challenge, that
the Applicant is improperly trying to introduce evidence about the alleged
incompetence of Mr. Pinto into the record that was not before the Adjudicator.
[137] The second affidavit of the Applicant was sworn on July 27, 2015.
The third affidavit, sworn on August 31, 2015, is in Reply to the affidavit of
Mr. Pinto, the affidavit filed on behalf of the Respondents.
[138]
Taken as a whole, the further affidavits seek to
expand upon the allegations of the Applicant that he made in his first
affidavit. As such, in my opinion the views of Prothonotary Milczynski,
expressed at paragraph 6 of her Reasons, remain applicable:
[6] At about the
same time, the within motion was filed to strike the Applicant’s affidavit in
its entirety, stating that the affidavit contains facts and documents to
support the Applicant’s allegations that his counsel at the hearing was
incompetent and did not follow instructions and that the adjudicator should
reopen the hearing. The Respondent states in its notice of motion that
“virtually all of the facts and documents in the affidavit were not in evidence
before the adjudicator” when he made his decision not to reopen the hearing. At
the hearing of the motion, counsel for the Respondent acknowledged that some
portions of the Applicant’s affidavit were proper and could be salvaged, but
the objection to most of the affidavit and documentary exhibits was maintained.
A proposal was thus made at the hearing of the motion to excise whatever
portions the Court found improper and permit the remainder to stand, or allow
the Applicant to serve a new affidavit.
[139] Mindful of the relevant jurisprudence, I agree with the submissions
of the Respondent that generally, only evidence that was before the
decision-maker should be presented to the Court in an application for judicial
review; see the decision in Association of Universities and Colleges Canada,
supra at paragraphs 17-19.
[140] I note that in disposing of the Respondent’s original motion against
the admissibility of the Applicant’s first affidavit, Prothonotary Milczynski
noted there was some interplay between the procedural issues and the merits of
the Applicant’s claim. She noted the lack of “significant
prejudice” to the Respondent if the affidavit were allowed to stay on
the record. She noted that the Respondent acknowledged that not all of the
affidavit was objectionable and that some “portions”
of it “could be salvaged”.
[141] In the exercise of my discretion, I adopt the reasoning of Prothonotary
Milczynski.
[142] I decline to strike out the second and third affidavits filed by the
Applicant. The submissions made by Mr. Barnwell to the Adjudicator, upon the
request to re-open the hearing, are not strictly speaking “evidence”. They are not included in the Certified
Tribunal Record but they were before the Adjudicator and there is no prejudice
to the Respondent to let that material stay on the record. They are attached to
the affidavit of July 27, 2015, as an exhibit.
[143]
In the result, I decline to strike any of the
Applicant’s affidavits and will consider only those paragraphs that are not
clearly inadmissible and objectionable.
ii.
Should the Affidavit of Mr. Pinto be struck
out or not considered?
[144] The “new evidence” relating to the
conduct of Mr. Pinto comes from his affidavit and cross-examination. The
Respondent filed the affidavit of Mr. Pinto in response to the Applicant’s affidavits
of October 14, 2014 and July 27, 2015. Since the affidavit of Mr. Pinto
was introduced by the Respondent, as its evidence, no objection can be taken to
that.
[145]
Since I have declined to strike any of the
Applicant’s affidavits, I see no basis to strike Mr. Pinto’s affidavit or the
transcript of his cross-examination.
iii.
Should the Court hear this application for
judicial review?
[146] The Respondent submits that the Court should exercise its discretion
not to hear this application for judicial review because the Applicant did not
disclose to the Adjudicator the fact that he received legal advice prior to
writing his letter of April 30, 2012.
[147] In my opinion, this argument is without merit.
[148] In the first place, this information only came to Counsel of the
Respondent during cross-examination of the Applicant. The Applicant was not
represented during that cross-examination. It is likely that any lawyer acting
for the Applicant would have objected to the questions. The Applicant did not
object, possibly because he did not realize he could do so.
[149]
I am not satisfied that the Applicant was
required to disclose his conversations with Ms. Hayes to the Adjudicator. I am
far from satisfied that this non-disclosure amounts to bad faith or improper
conduct. I decline to accept the Respondent’s submissions on this point and
decline to exercise my discretion not to hear this application for judicial review.
B.
Standard of Review
[150] I turn now to the applicable standards of review.
[151] Questions of procedural fairness are reviewable on the standard of
correctness; see the decision in Mission Institution v. Khela, [2014] 1
S.C.R. 502 (S.C.C.) at paragraph 79.
[152] The allegation of bias is an aspect of procedural fairness for which
no deference is owing; see the decision in Dang v. Canada (Minister of
Citizenship and Immigration) (2014), 470 F.T.R. 117 (F.C.) at paragraph 32.
[153] The Adjudicator’s choice of procedure, involving his discretion, is
reviewable on the standard of reasonableness; see Dunsmuir, supra
at paragraph 51.
[154] According to the decision in Dunsmuir, supra at
paragraph 47, the standard of reasonableness requires that a decision be
justifiable, transparent and intelligible, and fall within a range of
acceptable outcomes.
[155] The decision about incompetence of a solicitor is reviewable on the
standard of reasonableness since it involves the assessment of evidence, that
is the conduct of the solicitor in question. In this regard, I refer to R.
v. G.D.B., [2000] 1 S.C.R. 520 (S.C.C.) at paragraph 27.
[156]
The impact of incompetence upon the conduct of a
hearing is a question of procedural fairness that is reviewable on the standard
of correctness, as discussed above.
C.
Did the Applicant suffer a breach of procedural
fairness?
i.
Did the alleged incompetence of Mr. Pinto
breach procedural fairness?
[157]
The test to be met when a party alleges
incompetence of counsel amounting to a breach of procedural fairness is
discussed by the Supreme Court of Canada in G.D.B., supra which
held as follows at paragraph 26:
[...] For an appeal to succeed, it must be
established, first, that counsel's acts or omissions constituted incompetence
and second, that a miscarriage of justice resulted.
[158] The Applicant argues that Mr. Pinto did not follow his instructions
in opposing the Respondent’s request for bifurcation. He objects that neither
did Mr. Pinto follow his instructions to request the Adjudicator to re-open the
hearing. Consequently, he discharged Mr. Pinto and engaged Mr. Barnwell to act
for him on that request.
[159] In his affidavit, Mr. Pinto deposes that he explained the proposed
bifurcation to the Applicant. He advised the Applicant that the Adjudicator
could decide in favour of the Respondent and focus exclusively on the letter of
April 30, 2012. He outlined to the Applicant a strategy of proceeding with a
“mini hearing” that would consist of two phases. In the first phase, the
Applicant would proceed first with his evidence to address whether he had resigned
or had been constructively dismissed.
[160] In the second phase, the Respondent would present its evidence
first, and deal with the discrimination complaint and whether the Respondent
had cause to dismiss the Applicant.
[161] According to his affidavit and cross-examination, Mr. Pinto made a
strategic choice, on the basis of his professional opinion, that this manner of
proceeding would best serve the interests of the Applicant and avoid the risk
that the Adjudicator would limit his deliberation to the letter of April 30,
2012, rather than consider the broader context including the Applicant’s
discrimination complaint to the Commission.
[162]
I refer to paragraphs 22 and 23 of Mr. Pinto’s
affidavit as follow:
I advised the
applicant that there was a material risk that the adjudicator would rule in
favour of the Band and order bifurcation, focussing exclusively on the
resignation letter. The question of whether there had been a dismissal was a
threshold jurisdictional issue, and accordingly could properly be raised as a
preliminary objection to proceeding with the balance of the case. We had
extensive discussions with the applicant on this issue.
To mitigate the risks, with the applicant’s
written and verbal approval, I proposed to proceed on the basis of a
“mini-hearing process” (that was different from the Bank’s bifurcation
proposal) which would be structured as follows: (i) Phase I would involve
evidence and submissions regarding whether the applicant had established that
he had resigned “with cause” from his employment, including an expansion of the
proposed scope of evidence, taking into account events before and after the
applicant’s resignation letter for the purpose of establishing that the
applicant was constructively dismissed, rendering the resignation irrelevant,
and the applicant would proceed first, and (ii) Phase II would involve evidence
and submissions on the merits of the applicant’s discrimination complaint and
whether the Bank had just cause to dismiss the applicant, and the Bank would
proceed first.
[163] In my opinion, the evidence of the Applicant about the bifurcation
issue does not show a failure by Mr. Pinto to follow instructions. I conclude
that the Applicant has not shown professional incompetency of Mr. Pinto in this
regard.
[164] The overriding consideration is the Adjudicator’s authority to
control the process. While neither Mr. Pinto nor counsel for the Respondent
could definitively predict how the Adjudicator would rule on the Respondent’s
request to first address the jurisdiction issue, the fact remains that such a
decision was clearly in the mandate of the Adjudicator.
[165] On the basis of the evidence in the Certified Tribunal Record and in
Mr. Pinto’s affidavit, I am not persuaded that Mr. Pinto acted incompetently in
his response to the Applicant’s instructions to seek re-opening of the hearing.
[166]
In my opinion, the Applicant has failed to meet
the first part of the test set out in G.D.B., supra and it is not
necessary for me to consider the second part of that test.
ii.
Did the decision of the Adjudicator in proceeding
to bifurcate the jurisdictional issue from the merits of the Applicant’s
complaint breach procedural fairness?
[167]
The Applicant filed his complaint pursuant to
section 240 of the Code which provides, in part, as follows:
240 (1) Subject to
subsections (2) and 242(3.1), any person
(a) who has
completed twelve consecutive months of continuous employment by an employer,
and
(b) who is not a
member of a group of employees subject to a collective agreement,
may make a
complaint in writing to an inspector if the employee has been dismissed and
considers the dismissal to be unjust.
[…]
[168]
The Adjudicator’s choice of procedure involves
some discretion, a discretion that comes from the Code at paragraph 242(2)(b)
which provides, in part, as follows:
An
adjudicator to whom a complaint has been referred under subsection (1)
[…]
(b) shall determine the procedure to be followed, but shall give
full opportunity to the parties to the complaint to present evidence and make
submissions to the adjudicator and shall consider the information relating to
the complaint;
[…]
[169] There is a presumption that the Adjudicator acted properly in the
discharge of his duties. This presumption is captured in the latin maxim omnia praesumuntur rite et solemniter esse donec probetur
in contrarium. In the absence of proof to
the contrary, actions of a public officer are presumed to be performed
correctly; see the decision in J.R.
Moodie Co. v. Minister of National Revenue, [1950] 2 D.L.R. 145 at 158
(S.C.C.).
[170] The Respondent was at liberty to raise the question of jurisdiction.
There was nothing improper about doing so.
[171] It is apparent that the Applicant was unhappy with the prospect but
I have no evidence to contradict the conclusion of the Adjudicator, that the
Applicant had agreed to the process, though his lawyer, and that he was present
when that agreement was communicated to the Adjudicator.
[172] In any event, the Adjudicator was master of the process. He was
entitled to look first at the question of jurisdiction if he chose to do so.
[173] The critical feature of the chosen process is that a party has the
opportunity to make its case; see the decision in Ontario Provincial Police
Commissioner v. Mosher et al. (2015), 340 O.A.C. 311 (Ont. C.A.) paragraphs
61-63:
The principle is an amalgam of two components.
Each is a right accorded to a party in a proceeding.
First, a right of audience. Said in another
way, the right to be heard by the decision-maker. This right compels the
decision-maker to allow the party to be heard so that the party has the
opportunity to present his or her point of view: Supermarchés Jean Labrecque
Inc. v. Québec (Tribunal du travail), [1987] 2 S.C.R. 219 (S.C.C.), at pp.
234-35.
Second, and this arises out of the right to
be heard, notice of the hearing sufficient in time and substance to enable the
party to present his or her case on the issues to be decided: T.W.U. v.
Canadian Radio-Television & Telecommunications Commission, [1995] 2
S.C.R. 781 (S.C.C.), at para. 29; Supermarchés Jean Labrecque, at p.
235.
[174] Although this decision was in the context of criminal law, the
general principle applies here. The question is whether the Applicant received
a fair hearing.
[175] There was no breach of procedural fairness by the Adjudicator in
choosing to proceed first with the question of jurisdiction.
[176] Since there was no breach of procedural fairness, the procedural
choice of the Adjudicator is to be reviewed on the standard of reasonableness.
[177]
The Adjudicator addressed the issue of
bifurcation in his decision at paragraphs 5 and 6. His reasons meet the
standard of reasonableness; they are transparent, justifiable and intelligible.
iii.
Did the Adjudicator’s refusal to re-open the
hearing breach the procedural fairness owed to the Applicant?
[178] The Applicant pleads that the refusal of the Adjudicator to re-open
the hearing, to allow him to present the full merits of his case, was
prejudicial. He argues that the refusal to re-open shows that the Adjudicator
did not consider all of the evidence of Mr. Pinto’s incompetence.
[179] In my opinion, the Applicant has mischaracterized the issue. A
decision to re-open a hearing lies within the discretion of the decision maker.
As noted above, professional incompetence can give rise to a breach of
procedural fairness but the determination of professional incompetence is
subject to review on the standard of reasonableness.
[180] Mr. Pinto’s evidence and the Adjudicator’s decision show that the
Applicant participated in both the preparation for the hearing and the hearing
itself. In my opinion, the Applicant knew that the hearing had been bifurcated
and had instructed Mr. Pinto to proceed in that manner.
[181] The Adjudicator found that the Applicant was aware that the hearing
would proceed upon bifurcation of the issues. The Adjudicator noted that the
Applicant was in attendance at the hearing. In his decision he clearly said he
was satisfied that there was no basis for allegations of incompetency against
Mr. Pinto, in respect of this issue.
[182] The Adjudicator determined there was no basis for re-opening the
hearing and referred to the relevant jurisprudence upon an re-opening application,
including Vance, supra and Sykes v. Sykes (1995), 6 B.C.L.R. (3d)
296 (B.C.C.A.).
[183] Although the Applicant raises this issue as one of procedural
fairness subject to review on the standard of correctness, the real issue is
the manner in which the Adjudicator exercised his discretion, in disposing of
the request to re-open.
[184] Insofar as any procedural fairness argument arises, I am satisfied
that denial of the re-opening request did not breach the procedural fairness due
to the Applicant.
[185] It is apparent from his decision, that the Adjudicator considered
the request to be one involving discretion. A discretionary decision is
reviewable on the standard of reasonableness. I am satisfied that the Adjudicator’s
decision, on this issue, meets that standard.
[186]
I am also satisfied that the Adjudicator
reasonably assessed the allegations of incompetence and considered the relevant
jurisprudence, including B. (W.E.), supra.
iv.
Has the Applicant established bias on the
part of the Adjudicator?
[187] The Applicant alleges that the Adjudicator demonstrated bias by
refusing to hear his complaint on its merits, by defending the actions of Mr.
Pinto and by delaying his decision, which interfered with his right to commence
a civil proceeding.
[188] The test for bias is addressed in Baker v. Canada (Minister of
Citizenship and Immigration), [1999] 2 S.C.R. 817 (S.C.C.), where the
Supreme Court of Canada said the following at paragraph 46:
...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...
[T]hat 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 [the decision-maker],
whether consciously or unconsciously, would not decide fairly."
[189] The Respondent argues that there is no evidence to support the
Applicant’s allegations.
[190] I agree.
[191] The decision of the Adjudicator to dispose of the Applicant’s
complaint on the basis of jurisdiction, rather than after a full hearing on the
merits, does not, per se, establish bias.
[192] The fact that the Adjudicator did not find the actions of Mr. Pinto
to amount to incompetence does not inevitably lead to the conclusion that he
was biased. The Applicant does not agree with the Adjudicator’s conclusion but
that does not establish bias.
[193] It is true that there was a long time between the hearing and
delivery of the Adjudicator’s decision. However, there is no evidence that this
delay was motivated by any improper motives.
[194] Again, I agree with the position of the Respondent that there is no
evidence to support the allegation that the Adjudicator delayed making his
decision, with the aim of limiting the Applicant’s ability to pursue a remedy
in other forums.
[195]
I see no basis for a finding of bias against the
Adjudicator on any of the grounds advanced by the Applicant.
D.
Was the Adjudicator’s finding that the Applicant
voluntarily resigned reasonable?
[196] In his decision, the Adjudicator set out the background to the
Applicant’s complaint and then proceeded to deal with the application to reopen
and the respondent’s preliminary objection to jurisdiction. These issues are
intertwined since the Applicant’s request to re-open was based upon his view
that bifurcation of the issues, for the purpose of addressing jurisdiction,
compromised his right to a fair hearing.
[197] The Adjudicator denied the request to re-open and gave reasons for
his decision.
[198] He noted in particular the Applicant’s allegations about the
incompetence of Mr. Pinto and the alleged failure of Mr. Pinto to follow
instructions. The Adjudicator rejected these submissions, on the basis of lack
of evidence. It is apparent that he assessed the conduct of Mr. Pinto in the
hearing before him and found nothing lacking.
[199] The Adjudicator then proceeded to deal with the substance of the
issue before him about the “threshold issue”,
that is whether the Applicant had been constructively dismissed or had resigned
from his employment with the Respondent.
[200] The Adjudicator reviewed the evidence submitted by the respondent
concerning the Applicant’s employment and the files which gave rise to the
investigation, subsequently leading to the letter of April 25, 2012. The
Adjudicator characterized the actions of the Respondent as an “administrative suspension” and not a dismissal. He
rejected the Applicant’s characterization that he was suspended without pay and
found as well that there was nothing in the Applicant’s letter of April 30,
2012 to show that he was resigning because he believed that he would not be
paid.
[201] The Adjudicator reviewed the submissions of the Applicant in support
of his argument about constructive dismissal. The Adjudicator rejected those submissions
and determined that the Applicant had resigned his employment, following a
period of reflection, that is over the weekend between receipt of the letter of
April 25, 2012 and delivery of his letter dated April 30, 2012. The Adjudicator
reviewed relevant jurisprudence relating to the decision of the Federal Court
of Appeal in Eskasoni School Board, supra and the decision of the
British Columbia Supreme Court in Osachoff v. Interpac Packaging Systems
Inc. (1992) 44 C.C.E.L. 156 (B.C.S.C.).
[202]
In paragraph 48 of his decision, the Adjudicator
referred to the factors for consideration in finding constructive dismissal, as
follows:
The employer must make a unilateral
and fundamental change to one or more of terms or conditions of an employment
contract.
1. The employee must treat the unilateral change as a repudiation
of the contract of employment by the employer and resign.
2. The employee must respond promptly to the unilateral action of
the employer. If he or she continues in employment under the changed terms of
employment a risk is run that the employee will be deemed to have accepted the
altered terms.
3. The test as to whether the employer substantially changed the
essential terms of an employee’s employment contract is an objective one. Would
a reasonable person in the same situation as the employee have considered that
the employer was changing the essential terms of employment in a substantial
way? The determination is based on the facts that are known at the time that
the employer announces the proposed change.
[203]
At paragraph 50 of his decision, the Adjudicator
said the following:
Further, where an employee claims
constructive dismissal, Finlayson J.A. in Smith, above at paragraph 8,
opined that constructive dismissal “must be founded on conduct by the employer
and not simply on the perception of that conduct by the employee. The employer
must be responsible for some objective conduct which constitutes a fundamental
change in employment of a unilateral change of a significant term of that
employment.” With respect to whether a change in terms amounts to a fundamental
breach of contract, Jenkins J. in McKay, above at paragraph 26 stated
that it depends upon the following considerations.
(i) the
breach and its degree
(ii) the
intention of the parties, and
(iii) the
prevailing circumstances.
[204] In paragraph 53, the Adjudicator observed that the jurisprudence
requires evidence of both the subjective and objective intention in assessing
whether an employee voluntarily resigned his or her position.
[205] At paragraph 54, the Adjudicator said that the issue before him was
whether the evidence showed that the Applicant was constructively dismissed by
the Respondent on April 25, 2012, thereby “negating and
rendering his resignation on April 30, 2012 irrelevant”.
[206]
At paragraph 55, the Adjudicator set out his
conclusion as follows:
Upon review of the evidence, I am not
satisfied that the evidence supports the conclusion that the Complainant was
constructively dismissed by the Respondent. Rather, the evidence supports the
conclusion that the Complainant was placed on an administrative suspension with
pay consistent with the conditions respecting the Respondent’s right to do so
set out in Cabiakman, above, when he voluntarily resigned on April 30,
2012. […]
[207] In the succeeding paragraphs, the Adjudicator referred in detail to
the evidence before him and reached a further conclusion, that the Applicant
had resigned voluntarily and in order to protect his “future
career opportunities”.
[208]
Following review of the evidence and the applicable
legal principles, the Adjudicator set out his ultimate conclusion as follows:
Accordingly, on
the facts before me and for the above reasons, I must conclude that the
Complainant was not constructively dismissed but rather voluntarily resigned
his position. The preliminary objection of the Respondent is allowed and, as a
result, I have no jurisdiction to hear and determine the complaint because
there is no dismissal to adjudicate. The complaint is, therefore, dismissed.
[209] At issue before me is whether the Adjudicator’s conclusion is
reasonable, within the meaning of “reasonableness”
set out in Dunsmuir, supra, referred to above.
[210] It is not the role of a court upon judicial review to re-weigh the
evidence; see the decision in Canada (Minister of Citizenship and
Immigration) v. Khosa, [2009] 1 S.C.R. 339 (S.C.C.).
[211] However, in assessing the reasonableness of the Adjudicator’s
decision, I can look at the evidence that was before him. The evidence before the
Adjudicator related to events pre-dating and following the Applicant’s
resignation.
[212] Having considered that evidence, as well as the relevant parts of
the affidavits and cross-examinations filed in this application for judicial
review, and the submissions of the parties, I am satisfied that the
Adjudicator’s decision is reasonable.
[213] The Adjudicator set out the relevant legal principles. He identified
the legal burden upon the Applicant to show that he was dismissed, within the
meaning of the Code. He identified the factors to be considered in determining
whether a constructive dismissal took place in the context of an administrative
suspension.
[214] The Adjudicator applied the relevant legal principles to his factual
findings, in a transparent, intelligible and justifiable manner.
[215] The Adjudicator’s conclusion, that the Respondent had not
fundamentally changed the terms of the Applicant’s employment so as to give
rise to a constructive dismissal, was reasonable.
[216] The Adjudicator’s consideration of the resignation letter and his
review of the Applicant’s actions following submission of that letter was
reasonable. The Adjudicator noticed that the Applicant did not question the
notation on his Record of Employment, that he had quit. He noted that the
Applicant did not seek to withdraw his letter of resignation or assert that he
had resigned for cause. He rejected the Applicant’s plea that he had been
suspended without pay and noted that the Applicant did not immediately protest
non-payment of his commission but waited until June, when he filed his
complaint under the Code.
[217] In my opinion, considering the evidence that was before the Adjudicator,
the Adjudicator reasonably considered the actions of the Applicant following
delivery of his letter of April 30, 2012. The Adjudicator was required to
consider the evidence before him. He was required to assess that evidence in
light of the relevant legal principles. The standard of reasonableness means
that a decision maker can choose from a range of options in making a decision.
[218] Considering the evidence and submissions that were before the Adjudicator,
and considering the standard of review which I must apply, I am not persuaded
that the decision of the Adjudicator was unreasonable.
X.
CONCLUSION
[219] In the result, this application for judicial review is dismissed. In
its Memorandum of Fact and Law, the Respondent sought costs if successful. Pursuant
to Rule 400(1) of the Rules, the Court enjoys full discretion over costs. In
the exercise of that discretion, there will be no Order as to costs.
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