also concluded that it was
convinced that Mr. Benoit’s alcohol problem did not play any role in the
decision to terminate his employment, since, at the time this decision was
taken (July 2000), those responsible (Mr. Boucher and Mr. Moody) had no
knowledge of his disability.
[3] Mr. Benoit, who represented himself,
submitted that the Tribunal had made the following errors:
i)
It had not
properly assessed the probative value of Exhibit P-12 (the log sheet).
ii)
It had failed to
consider certain elements of the evidence that may have led it to assign less
credibility to Mr. Boucher’s testimony to the effect that he did not know about
Mr. Benoit’s disability in July of 2000, and had targeted him for layoff on the
basis of his performance relative to that of the other managers in his division,
as well as to Bell Canada’s other explanations in general. These elements were
as follows:
1.
A decision taken in five minutes, during a telephone call between Mr.
Boucher and Mr. Moody;
2.
Contradictions between the testimonies of Mr. Bouchard and Mr. Moody as
to whether or not a voluntary departure package had been offered to the
managers in his division;
3.
Contradictions in the testimonies of Mr. Boucher and Mr. Lecompte as to
Mr. Benoit’s ability to replace Mr. Lecompte when, several months after the
decision of July 2002, Mr. Lecompte was transferred;
4.
A breach of Bell Canada’s Code of Ethics by Mr. Boucher, in the context
of a conversation with Mr. Benoit’s former spouse;
5.
Contradictions between the testimony of Mr. Boucher and the
investigator’s report, including certain notes made by the investigator;
6.
An unwarranted effort by Bell Canada to undermine Mr. Benoit’s
credibility by referring to an expense account problem without having informed
the applicant beforehand (disclosure of evidence).
[4] The parties agree that all of these
arguments raise questions regarding the assessment of the facts and of the
evidence.
[5] The applicable standard of review is
therefore patent unreasonableness (see the functional and pragmatic analysis
made by Mr. Justice Gibson in Quigley v. Ocean Construction Supplies Ltd.,
Marine Division, [2004] F.C.J. No. 786 (T.D.) (QL), at paragraphs 34 to 46;
International Longshore & Warehouse Union (Marine Section), Local 400 v.
Oster, [2002] 2 FC 430, at paragraph 22; Lincoln v. Bay Ferries Ltd.,
[2004] F.C.J. No. 941, at paragraph 16 (FCA) (QL).
[6] As indicated at the hearing, this
signifies that the Court cannot simply substitute its own assessment of the
evidence for that of the Tribunal. As shown by the Supreme Court of Canada in Law
Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, at paragraph 52, a patently
unreasonable decision has been described as clearly irrational or evidently not
in accordance with reason. It also includes that which is not supported by any
evidence in the record (Canadian Union of Public Employees v. Ontario Minister
of Labour, [2003] F.C.J. No. 28, at paragraph 162).
[7] At paragraph 39 of the decision, the
Tribunal indicated that Exhibit P-12 is a document that seems to have come from
Bell Canada, but whose origins could not be explained by anyone at the hearing.
From all of the evidence, it was persuaded that Mr. Boucher was not the author
of the document and that, in all likelihood, it was written by a third party
who compiled the information from a number of log sheets, and that this
document could not be relied upon to advance the notion that Mr. Boucher was
aware of the complainant’s alcoholism before the decision to dismiss him in the
month of July 2000.
[8] The Court has closely examined the transcript
of the four-day hearing before the Tribunal. Exhibit P-12 was used by Mr.
Benoit during his cross-examination of Mr. Boucher. Mr. Boucher explicitly
denied having written the comments that appeared next to the
dates "April '99" and "August '00", even though he
acknowledged that certain other passages in the document, such as the
"October '99" entry, originated, in all likelihood, from a memo that
he had written.
[9]
The Court, after having
examined both sides of Exhibit P-12, and all of Mr. Boucher’s testimony, is
satisfied that the Tribunal’s findings with regard to this document are not
unreasonable, and that they are certainly not patently unreasonable.
[10]
Regarding the second and third
elements, the Court notes that the circumstances under which the decision was
taken, namely, during a five-minute conversation, were correctly recorded by
the Tribunal at paragraph 19 of the decision, which clearly took them into
account. The Tribunal also specifically addressed the possibility of offering
Mr. Lecompte’s job to the applicant, and the contradiction in the testimonies
of Mr. Boucher and Mr. Lecompte, at paragraphs 25, 26 and 45 of the decision. Its
analysis of the evidence in this regard and its comments are supported by the
evidence. Taking the applicable standard of review into account, the Court
cannot intervene in the matter of these findings.
[11] As for the three final points made by Mr. Benoit,
the Court notes, in the first place, that Bell Canada’s efforts to undermine
his credibility did not influence the Tribunal, which, after having noted the
allegation regarding certain financial difficulties, referred specifically to
the fact that the applicant had categorically denied this allegation during his
own testimony. At paragraph 34 of the decision, the Tribunal indicates that,
even though it concluded that Mr. Boucher and Mr. Moody were credible
witnesses,
[t]hat
is not to say that the Complainant’s evidence was false or misleading. To the
contrary,
I
found him sincere and refreshingly candid.
[12] In the circumstances, this question of
non-disclosure of evidence cannot constitute a reviewable error that would warrant
setting the decision aside.
[13] Secondly, as was explained at the hearing, the investigation
report and the notes attached to Mr. Benoit’s affidavit were not in evidence
before the Tribunal, and the Court cannot take them into account. It is obvious
that the Court cannot blame the Tribunal for not having taken into account
evidence that was not before it.
[14] As regards the alleged breach of the Code of
Ethics, the Tribunal does not make mention of this question, raised during Mr.
Benoit’s cross-examination of Mr. Boucher. This breach, if there was one, was
not among the issues that were raised in Mr. Benoit’s complaint and that had to
be decided by the Tribunal. This too was only a collateral element, raised to
attack Mr. Boucher’s credibility. It was up to the Tribunal to decide whether
to give any weight to it. Under the circumstances, I am satisfied that it did
not have to specifically make reference to it in its decision.
[15] Taking the foregoing into account, and having
closely examined all of the evidence in the file, the Court cannot find that
the Tribunal committed a reviewable error in its weighing of the evidence, and
that its finding that Mr. Boucher and Mr. Moody, when they took the decision to
lay the applicant off in July of 2000, were unaware of his disability, which
he kept hidden until August 9, 2000, on which date he asked for Bell Canada’s
help in seeking alcohol dependency treatment, is patently unreasonable.
[16] The Tribunal’s decision to dismiss the complaint
because it was convinced that the disability did not play a role in the
decision to terminate his employment is also reasonable.
[17] The respondent did not ask the Court to award it costs.
ORDER
THE COURT ORDERS THAT:
The application is dismissed.
"Johanne
Gauthier"
Judge
Certified true translation
Susan Deichert, Reviser
Email this Content