Docket: T-1899-16
Citation:
2017 FC 1016
[ENGLISH TRANSLATION]
Ottawa, Ontario, November 8, 2017
PRESENT: The Honourable Mr. Justice Locke
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BETWEEN:
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CONSEIL DES
INNUS DE PESSAMIT
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Applicant
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and
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GITHANE
BELLEFLEUR
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Respondent
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JUDGMENT AND REASONS
Nature of the case
[1]
This is an application for judicial review of a
decision made by Bruno Leclerc (the adjudicator) on October 6, 2016, allowing
the respondent’s complaint for unjust dismissal against her employer, the
Conseil des Innus Pessamit (the applicant).
[2]
For the reasons that follow, I am of the opinion
that the adjudicator did not err, and that this application must be dismissed.
Facts
[3]
The respondent was employed by the applicant as
Director of Social Services until June 19, 2015, when she was dismissed.
The applicant’s primary mandate is to manage and promote the economic,
political, and social affairs of the First Nation on its ancestral territory.
As director of one of the sectoral branches, under the responsibility of Jean-Claude
Vollant (the Director General), the respondent was in charge of the social
aspect, focusing on protecting the community’s youth and elderly.
[4]
In September 2012, the First Nation’s fiscal
deficit reached alarming proportions, which forced it to implement an administrative
and financial reform (the reform) to stabilize and optimize its financial and
organizational resources. The reform arose from an administrative resolution by
the applicant that was adopted on February 3, 2015. The reform included merging
two sectoral branches—Health Services, for which Chantal Bacon was responsible,
and Social Services, which was under the responsibility of the respondent. Under
the merger, the new sectoral branch would be passed on to a third party.
[5]
On June 2, 2015, the respondent was verbally
informed by the Director General that she was being dismissed from her
employment. She received a letter on June 15, 2015, confirming that she would
be relieved of her duties as of June 19, 2015, and that she would be assigned
new duties and responsibilities on August 3, 2015. The letter dated June 15,
2015, also stated that this change was necessary given the [translation] “general
state of Social Services and findings of the organizational psychologist
following an evaluation of the sector” and “the
fact that the organization is undergoing a process of reform.”
[6]
Ms. Bacon was demoted to the position of Health
Advisor, but only in January 2016. During the period from June 19, 2015 to
January 2016, Anne St-Onge, the assistant at the branch, took over Social Services,
while Ms. Bacon continued managing Health Services.
[7]
On August 4, 2015, the respondent learned that
she was assigned to a position as social policy advisor. After reviewing the
duties outlined for this new position, the respondent realized that she did not
have the necessary skills. She also learned that the salary associated with her
new position was much lower than her former salary.
[8]
Some time after, the respondent went to see her
doctor because she was experiencing emotional symptoms. She subsequently
received a doctor’s note for work stoppage until August 23, 2015, which
was then extended to October 26, 2015.
[9]
She filed a complaint for unjust dismissal on
September 11, 2015. In a letter dated September 22, 2015, a Government of
Canada inspector confirmed to the parties that the letter from June 15, 2015,
met the requirements of the Canada Labour Code, RSC 1985, c. L-2 [the Code],
which require a written statement of the reasons for dismissal.
[10]
On October 19, 2015, the respondent submitted
a letter to the applicant’s Branch stating that she [translation] “was permanently leaving
her position with the Conseil des Innus de Pessamit.” The parties did
not agree on the meaning of said letter; this disagreement is discussed below.
[11]
In addition to the facts described above, the
applicant referred to a conflict between Social Services and Health Services,
as well as between their respective directors, that allegedly began in May 2015
and required the hiring of an organizational psychologist. This situation
resulted in a bundle of correspondence addressed by or to the Director General,
the respondent, and/or Ms. Bacon. However, the adjudicator excluded this
correspondence from the evidence; the relevance of this correspondence is
discussed below.
III. Decision
[12]
The hearing of the complaint took place on June
28 and 29, 2016, before the adjudicator, during which only the Director General
and the respondent testified. It should be noted that there is no recording or
transcript of this hearing, which has prevented the parties from supporting
various allegations with respect to these proceedings.
[13]
The adjudicator allowed the respondent’s
complaint for unjust dismissal and ordered that she be reinstated. He found
that it was a case of constructive dismissal and that the dismissal was unjust
within the meaning of sections 240 to 246 of the Code.
[14]
The adjudicator found that the reasons provided by
the applicant in its letter dated June 15, 2015, did not constitute
sufficient cause to warrant the dismissal. The employer failed to prove the
three alleged reasons for dismissal, namely (i) the general state of Social Services;
(ii) the organizational psychologist’s findings; and (iii) the organization’s
reform process. The adjudicator was of the opinion that there was no evidence
submitted in support of the first factor regarding the overall state of Social Services.
The adjudicator also noted that the applicant had refused to introduce the
findings of the organizational psychologist in evidence. Finally, the adjudicator
found that the changes related to the last reason remained undefined at the
time and were not implemented in 2015. The adjudicator therefore found that
there was an arbitrary aspect to the employer’s decision.
[15]
As noted above, the adjudicator excluded from
the evidence the correspondence regarding the conflict between the Social
Services and Health Services sectors, as well as their respective directors.
Although the applicant submits that this correspondence establishes the general
state of Social Services (one of the alleged reasons in the letter dated June
15, 2015), the adjudicator found that it was irrelevant because he was not
satisfied that this conflictual situation was covered by the expression [translation] “the
general state of Social Services.” For the same reason, the adjudicator
prohibited any question on the conflictual situation or the excluded
correspondence.
Issues
[16]
The following issues must be considered in this
application for judicial review:
- Did the
adjudicator demonstrate bias and procedural unfairness against the
applicant?
- Did the
adjudicator consider whether he had jurisdiction over the abolition of the
respondent’s position?
- Was the
adjudicator correct in excluding certain documents?
- Did the
adjudicator err by not considering the respondent’s resignation and the
facts subsequent to the letter dated June 15, 2015?
- Did the
adjudicator err by interfering with the reform process?
[17]
Before considering these issues, the applicable
standard of review for each must be examined.
[18]
The respondent submitted other issues, mainly
related to the evidence submitted by the applicant that could have been put
before the adjudicator. The respondent submits that this evidence is ineligible.
However, since I am dismissing this application, it is not necessary for me to
consider the additional issues raised by the respondent.
Analysis
A. Standard
of review
[19]
The arbitral decision subject to this judicial
review raises two competing aspects (different in nature), thus triggering the segmentation
of issues for analysis: Canadian Broadcasting Corp. v SODRAC 2003 Inc.,
2015 SCC 57 at para 42. The reasonableness standard of review generally applies
to findings of fact and law by a specialized tribunal: Dunsmuir v New
Brunswick, 2008 SCC 9 at paras 51–58.
[20]
However, the issues of procedural fairness and
bias are reviewable on the correctness standard: Canada (Citizenship and
Immigration) v Khosa, 2009 SCC 12 at para 43. Despite the respondent’s
argument to the contrary, the presence of a privative clause is inconsequential
in this respect: Donald J M Brown and John M Evans, Judicial Review of
Administrative Action in Canada (loose-leaf), Toronto, Ontario, Carswell,
2013, at para 14:4211.
[21]
In applying the reasonableness standard, I must
exercise restraint and deference with respect to the adjudicator’s decision and
recognize his expertise in the area. I should not simply substitute my opinion
for his. This instruction is even more important in a case as this where (i)
the adjudicator saw and heard the witnesses in person and (ii) there is no
recording or transcription of the hearing.
B. Bias
and procedural unfairness
[22]
The applicant submits that [translation] “the
adjudicator was biased against the applicant due to its status as an Aboriginal
council, resulting in partiality in his decision at the hearing but also in his
findings.” The applicant alleged several facts to support this argument:
- In three other
cases involving the applicant in which the adjudicator made a decision
(between 2006 and 2016), he never ruled in favour of the applicant;
- The adjudicator required
all the documents relating to the reform, without the respondent
requesting them;
- The adjudicator
intervened and interrupted the applicant’s counsel several times during
the hearing;
- The adjudicator
excluded several documents from the evidence, including various email
correspondence and medical documents submitted by the respondent, and
dismissed various issues raised by the applicant; and
- The adjudicator
improperly assessed and weighed the respondent’s letter of resignation
(the applicant submits that the respondent’s resignation is evidence of
her inability to manage).
[23]
The test for a reasonable apprehension of bias
is undisputed and was first articulated by this Court: “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.” (See Yukon Francophone
School Board, Education Area #23 v Yukon (Attorney General), 2015 SCC 25 at
para 20, citing Committee for Justice and Liberty v National Energy
Board, [1978] 1 S.C.R. 369 at p. 394.)
[24]
Allegations of bias are extremely serious and,
in the absence of any evidence to support them, should not be raised: Joshi v
Canadian Imperial Bank of Commerce, 2015 FCA 105 at para 19.
[25]
With respect to the three other cases involving
the applicant, this argument is clearly insufficient to establish a reasonable
apprehension of bias. I would first note that only one of the decisions in
question was challenged. Furthermore, any apprehension of bias that may have
existed in relation to these decisions existed prior to the hearing before the
adjudicator in this case. The applicant’s failure to raise the issue of bias
before the adjudicator indicates that it had no such apprehension at the time.
Nothing has changed since.
[26]
With respect to the adjudicator’s requirement
that certain documents be filed even though the respondent did not request
them, this argument is also insufficient to establish a reasonable apprehension
of bias. Adjudicators are entitled to determine their procedure (see paragraph
242(2)(b) of the Code), and his interest in the documents relating to
the reform is not surprising. There seems to be no doubt that the documents
regarding the reform were relevant.
[27]
With respect to the adjudicator’s interventions
and interruptions that were alleged by the applicant, I note that Ms. St-Onge’s
and the Director General’s affidavits refer to them. However, I note that that
the respondent’s affidavit challenges these allegations. I am not satisfied by
the applicant’s argument. This is an example of how difficult it is for the
parties to support their arguments when there is no recording or transcription
of the hearing before the adjudicator.
[28]
With respect to the exclusion of certain
documents and issues, it is not necessary for me to deal with this issue in the
context of allegations of bias. It is sufficient for me to address this issue
below in the context of analyzing the reasonableness of the adjudicator’s
decision. If the applicant fails to establish that excluding the documents and
issues was reasonable, I am satisfied that it would no longer be able to
establish apprehension of bias.
[29]
My finding with respect to the allegation that
the adjudicator suggested several facts and issues is the same as my finding
regarding the alleged interventions and interruptions: given that the parties
disagree on the conduct of the hearing before the adjudicator and that there is
no recording or transcript, I am not satisfied by the applicant’s argument in
this respect.
[30]
In short, I do not see any basis for a reasonable
apprehension of bias, and especially given the applicant’s status as an
Aboriginal council.
[31]
In this section, I have considered each of the
applicant’s arguments individually. However, I confirm that I arrive at the
same conclusion when I consider these arguments together.
C. Abolition
of the respondent’s position and the adjudicator’s jurisdiction.
[32]
The applicant submits that the adjudicator erred
by failing to recognize that the respondent was relieved of her duties as
Director of Social Services in the context of the reform intended to merge the
Social Services and Health Services sectors.
[33]
I do not agree that the adjudicator erred. He
weighed the applicant’s evidence in this respect, including the fact that the
purpose of the reform was to merge the two sectors gradually. However, the
adjudicator found that the delay between the respondent’s dismissal in
June 2015 and Ms. Bacon’s demotion in January 2016, in the context of
the reform, was sufficient to contradict the applicant’s allegation that the
respondent’s dismissal was part of the reform. I am not satisfied that this
finding is unreasonable or made without regard for all the relevant evidence.
[34]
The applicant submits that the adjudicator
lacked jurisdiction in this case, citing paragraph 242(3.1)(a) of the Code:
“No complaint shall be considered by an adjudicator
under subsection (3) in respect of a person where (a) that person has been laid
off because of lack of work or because of the discontinuance of a function.”
[35]
Since I am satisfied that the adjudicator’s
finding in this respect was reasonable, it follows that the adjudicator was not
satisfied that the reason for the respondent’s dismissal was the abolition of
her position. Thus, paragraph 242(3.1)(a) of the Code does not apply.
D. Exclusion
of certain documents
[36]
The applicant submits that certain documents
were excluded from the evidence without justification. The documents in
question fall into two categories:
- The
correspondence sent to or received by the Director General, the respondent,
and/or Ms. Bacon regarding the conflictual situation between Social
Services and Health Services, and their respective directors, between
May 2014 and May 2015.
- The respondent’s
documents and psychological assessments.
[37]
The applicant submits that the correspondence
regarding the conflictual situation was relevant to the general state of Social
Services referred to in the letter dated June 15, 2015, advising the
respondent that she was relieved of her duties.
[38]
As noted in paragraph [15] above, the
adjudicator found that this correspondence was irrelevant once the conflictual
situation was not included in the reasons that allegedly resulted in the
respondent’s dismissal.
[39]
In my opinion, the adjudicator was correct in
noting that the reasons given for demoting the respondent did not include the
conflictual situation. It is reasonable to conclude that the reference to the general
state of Social Services in the letter dated June 15, 2015, was not
sufficiently precise.
[40]
Furthermore, the applicant knew (according to
the letter dated September 22, 2015, drafted by a Government of Canada
inspector) that the letter dated June 15, 2015, could be construed as a
complete statement of the reasons for dismissal. If the applicant wished to
allege additional reasons for relieving the respondent from her duties as
Director of Social Services, it should have noted them in writing. The applicant
apologized for this omission at the hearing. The applicant noted that after
receiving the letter of resignation on October 19, 2015, it believed that
the case was closed and that there was no longer any need to clarify the
reasons for dismissal. I do not accept this argument. Even if the applicant
believed in October 2015 that the case was closed, it became clear, by
December 2015, that this was not the case when counsel for the respondent indicated
that it would not be possible to reach a settlement in the case and that an
adjudicator had to be appointed to hear the complaint.
[41]
Since the conflictual situation was not one of
the reasons for the respondent’s dismissal, it was reasonable to exclude the
correspondence establishing this conflictual situation. The reasoning is not
compromised by the fact that the documents in question were filed by the
respondent.
[42]
The same reasoning can justify the exclusion of
the respondent’s documents and psychological assessments. They are not relevant
to the reasons outlined in the letter dated June 15, 2015; however, it is
unclear whether these documents were excluded. As noted by the respondent, in
his decision, the adjudicator recognized the respondent’s psychological state
after becoming aware of the duties associated with her new position.
E. The
respondent’s resignation and the subsequent facts
[43]
The applicant submits that the adjudicator
should not preclude evidence of the respondent’s free and voluntary resignation
and the events after June 15, 2015 (the date of the respondent’s
dismissal).
[44]
First, the adjudicator did not systematically
ignore the facts subsequent to June 15, 2015. He considered the
respondent’s letter of resignation dated October 19, 2015, as well as the
circumstances surrounding it. He considered its lack of clarity and the respondent’s
explanation, during her testimony, that she did not consult her counsel before
sending the letter and that she simply wanted to indicate that she was not
accepting her new position. The applicant did not provide any arguments or
evidence to the contrary before the adjudicator.
[45]
Before me, the applicant submits that there are several
indications in the letter dated October 19, 2015, that this was the
respondent’s letter of resignation as an employee of the applicant: (i) the
respondent refers to the position that she held and not to the new position
created by the applicant; (ii) the respondent indicated that she was
permanently leaving her job and requested her severance pay; and (iii) there
was no other reason to submit this letter.
[46]
Despite the absence of an explicit finding in
this regard in his decision, it is clear that the adjudicator accepted the
respondent’s testimony regarding the meaning of the letter. In my opinion, this
finding was reasonable. The purpose of sending the letter dated
October 19, 2015, could well have been to simply notify the applicant that
she was not returning to work on October 26, 2015, as provided for in her
medical certificate.
[47]
The applicant submits that the evidence of the
subsequent facts was intended to establish, among other things, the phases of
the reform. I am not satisfied that the adjudicator ignored or excluded the
evidence regarding the reform. In fact, this allegation seems to contradict the
allegation that the adjudicator required all the documents relating to the
reform (see paragraph [22] above). As noted, the adjudicator
weighed all the evidence regarding the reform and found that it was not related
to the reform.
[48]
In my opinion, it was reasonable to find that no
fact subsequent to June 15, 2015, would have changed the adjudicator’s
finding that the respondent was reportedly subject to an unfair constructive
dismissal.
F. Interference
in the reform process
[49] Given the adjudicator’s reasonable
finding that the respondent’s dismissal was not part of the reform, it follows
that the adjudicator did not interfere with the reform process.
VI. Conclusion
[50]
I do not find that the adjudicator erred. He
accepted the letter dated June 15, 2015, as an indication of reasons for
dismissal. He analyzed each of the reasons outlined in this letter: (i) the
general state of Social Services; (ii) the findings of the organizational
psychologist; (iii) the organization’s reform process. He found that the evidence
did not support any of these reasons. There was no evidence to support the
first two reasons. With respect to the reform, he found that evidence showed
that the dismissal was unrelated to it. In addition, the adjudicator excluded
the evidence regarding the conflicts between the sectors and their respective
directors because these conflicts were not among the reasons for dismissal and,
therefore, were irrelevant. In my view, all these findings are reasonable.
[51]
At the end of his decision, the adjudicator
found that the new position offered to the respondent amounted to a demotion,
and that this constituted a constructive and unfair dismissal. This finding is
also reasonable.
[52]
I find that this application for judicial review
must be dismissed with costs.
[53]
The respondent asked that the costs be
calculated on a solicitor-client basis. To support this request, she submitted
that one of the applicant’s arguments was frivolous. Specifically, the
applicant explained the reason that, during the hearing before the adjudicator,
it did not ask the Director General to introduce the correspondence that showed
a conflictual situation between Social Services and Health Services, as well as
their respective directors. It claimed that the Director General had a visual
impairment and that his mother tongue was Innu. In my view, this argument by
the applicant was not important or central and should not result in an increase
in costs. This may be another example showing the difficulties for the parties
to support their arguments in the absence of a recording or transcription of
the hearing before the adjudicator.
[54]
The respondent could have also based her request
for higher costs on the applicant’s unfounded allegation that the adjudicator
was biased against it. Although there appears to be no indication that any bias
existed due to the applicant’s status as an Aboriginal council (as the
applicant claims), I am of the opinion that the issue of bias was not
frivolous. The standard of review on the issue of bias, as well as on the exclusion
of evidence and related issues, is correctness. Thus, the burden of proof for
the applicant on these issues was much less than for the others.
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