Date: 20040525
Docket: T-1178-02
Citation: 2004 FC 760
Ottawa, Ontario, the 25th day of May 2004
Present: THE HONOURABLE MR. JUSTICE SIMON NOËL
BETWEEN:
MICHEL VILLENEUVE
Applicant
and
CONNEXIM, SOCIÉTÉ EN COMMANDITE
Respondent
REASONS FOR ORDER AND ORDER
[1] This case concerns judicial review of the decision of a referee, Maureen Flynn, of the arbitration tribunal issued on June 21, 2002, in which she quashed the payment order for the sum of $5,730.20 made by the inspector, Labour Directorate, Human Resources Development Canada (the inspector) on October 4, 2001, in the applicant's favour.
SUMMARY
[2] This is an appeal involving the recovery of salary filed pursuant to Division XVI of Part III of the Code. By a payment order made by the inspector on October 4, 2001, the sum of $5,509.81 was claimed as salary, to which should be added an annual leave indemnity (4%), or $220.39, making a total of $5,730.20. In accordance with the provisions of the Code, the respondent issued a certified cheque in the amount of $5,730.20 to the Receiver General for Canada and appealed the inspector's decision.
[3] Additionally, the application was varied on the second day of the hearing to claim the sum of $10,863.47, broken down as follows:
a. overtime pay allegedly owed for all the working hours done over the daily eight-hour limit or the weekly forty-hour limit set in section 169(1) of the Canada Labour Code, R.S.C. 1985, c. L-2 (hereinafter the Code) ($5,956.17);
b. 6% annual leave indemnity for salary and overtime worked for 1999-2000 ($3,631.34);
c. reimbursement for one week of annual leave ($959.55); and
d. 2% interest for the period from September 18, 2000 to May 1, 2002 ($316.41).
ACT
[4] The provisions of Part III of the Code which are most relevant to this application are the following:
Division I - Hours of Work
Standard hours of work:
169(1) Except as otherwise provided by or under this Division
(a) the standard hours of work of an employee shall not exceed eight hours in a day and forty hours in a week; and
(b) no employer shall cause or permit an employee to work longer hours than eight hours in any day and forty hours in any week.
(2) Where the nature of the work in an industrial establishment necessitates irregular distribution of the hours of work of an employee, the hours of work in a day and the hours of work in a week may be calculated, in such manner and in such circumstances as may be prescribed by the regulations, as an average for a period of two or more weeks.
Duration of averaging:
(2.1) The averaged hours of work calculated pursuant to subsection (2) remain in effect
(a) where the averaging of hours of work is agreed to in writing by an employer and a trade union, for the duration of that agreement or for such shorter period as is agreed to by the parties; or
(b) where the averaging of hours of work is not agreed to in writing by an employer and a trade union, for no longer than three years.
Modified work schedule:
170 . . .
(2) Subject to subsection (3), an employer may, in respect of employees not subject to a collective agreement, establish, modify or cancel a work schedule under which the hours exceed the standard hours of work set out in paragraph 169(1)(a) if
(a) the average hours of work for a period of two or more weeks does not exceed forty hours a week; and
(b) the schedule, or its modification or cancellation, has been approved by at least seventy per cent of the affected employees.
(3) Where a work schedule is to be established, modified or cancelled pursuant to subsection (2), the employer shall post a notice of the new schedule, or of its modification or cancellation, in readily accessible places where it is likely to be seen by the affected employees, for at least thirty days before the new schedule or its modification or cancellation takes effect.
Vote:
172.1(1) Where a work schedule is established, modified or cancelled pursuant to subsection 170(2) or 172(2), an affected employee may, within ninety days after the new schedule or its modification or cancellation takes effect, request an inspector to conduct a vote to determine whether seventy per cent of the affected employees approve the new schedule or its modification or cancellation.
Effect of non-approval:
172.1(6) Where the result of the vote indicates that less than seventy per cent of the affected employees approve the new schedule or its modification or cancellation, the employer shall comply with the result of the vote within thirty days after being informed of that result by the regional director.
Appeal:
251.11(1) A person who is affected by a payment order or a notice of unfounded complaint may appeal the inspector's decision to the Minister, in writing, within fifteen days after service of the order, the copy of the order, or the notice.
251.12(1) On receipt of an appeal, the Minister shall appoint any person that the Minister considers appropriate as a referee to hear and adjudicate on the appeal, and shall provide that person with
(a) the payment order or the notice of unfounded complaint; and
(b) the document that the appellant has submitted to the Minister under subsection 251.11(1).
(4) The referee may make any order that is necessary to give effect to the referee's decision and, without limiting the generality of the foregoing, the referee may, by order,
(a) confirm, rescind or vary, in whole or in part, the payment order or the notice of unfounded complaint . . .
(6) The referee's order is final and shall not be questioned or reviewed in any court.
(7) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain a referee in any proceedings of the referee under this section.
FACTS
[5] On February 1, 1999, the business Connexim (the respondent) was created to offer network management services to Bell Canada, Hydro-Québec and the business world. As such, Connexim carries out long-distance tele-surveillance to deal with network breakdowns for its various clients. Before Connexim was created, the same services were offered by Bell Advance.
[6] The applicant worked for Bell Advance before it closed down and was hired by Connexim in the same position. Before the transfer of network management activities from Bell Advance to Connexim, the team to which the applicant belonged had to ensure 24-hour follow-up seven days a week. To do this, the employees divided the hours into shifts of 12.5 consecutive hours over 3 continuous days a week, for an average total of 37.5 hours a week. However, for purposes of calculating overtime the hours were spread over two weeks.
[7] At the time it was created, Connexim maintained the same working hours as the applicant's team had had at Bell Advance. Employees who were required to work for a day more than provided in the schedule were paid at time and a half and double time for a second overtime day. Additionally, the employees were paid at a higher rate for days worked beyond the 75-hour average spread over two weeks. The modified schedule was not approved by the employees for the period of the applicant's employment with Connexim.
[8] The team leader, Réjean Savage, and the senior analyst responsible for preparing the schedules, Pierre Trudeau, said they received no complaints from any employee regarding the preparation of the schedules or from the applicant. On July 17, 2000, the applicant submitted his resignation effective July 31, 2000. The referee noted the letter of resignation in the decision and set out the following remarks by the applicant: [TRANSLATION] "I have enjoyed the time spent here, both as regards my work colleagues and the duties I performed".
[9] However, after he left Connexim claimed a week of overpaid vacation from the applicant. The applicant challenged this claim and asked for 6% vacation after one year's service, as provided in his contract of employment. Additionally, the applicant claimed severance pay.
[10] When Connexim refused to pay him severance pay and the 6% vacation pay, the applicant filed a complaint with Human Resources Development Canada. The referee noted that [TRANSLATION] "that was when he learned that the legality of the schedules drawn up by the respondent was questionable and so he decided to file a complaint to that effect".
[11] After the applicant left, on August 1, 2001, a notice of renewal of modification of the schedule was posted pursuant to section 170 of the Code, and by a poll taken at that time over 90% of the employees affected approved the schedule. The great majority of the employees affected had been employed since Connexim's activities began.
PARTIES' ARGUMENTS
[12] The applicant, who represented himself, essentially adopted the findings of the inspector, who held that the lack of formal consultation of the employees together with the failure to formally post a notice invalidated the modified schedules. The applicant further argued that consequently no other evidence of approval was admissible, as the purpose of the Act was to enable employees to reject the making of a modified schedule. The failure to carry out these two obligations thus invalidated the schedules and so the general rule stated in section 169 of the Code applied: hence the claim for payment of unpaid overtime for all working hours beyond the daily eight-hour limit or the weekly forty-hour limit, contrary to the position of the employer, who according to the modified schedule paid overtime for time worked on a two-week average of over 37.5 hours a week. After his departure, the applicant claimed a week of unpaid vacation pursuant to a document from the employer titled [TRANSLATION] "general remuneration". Finally, the applicant argued that the referee treated him with hostility, which caused him to have an apprehension of bias on her part.
[13] The respondent argued essentially that the posting of a notice pursuant to subsection 170(2) of the Code is a formality and the failure to do so does not invalidate the schedules. Under the award of April 18, 2001, and referring to Baxter Aviation Ltd. v. WesForth and Brian Whitehead, the necessary approval can be obtained by some means other than a formal vote. According to the referee, approval of the modified schedule by employees may be tacit. Further, over 90% of the employees approved the modified schedule after the applicant left. As to vacation, the employer argued that the applicant had taken it. The respondent rejected the allegation of bias regarding the referee.
ARBITRAL AWARD
[14] The referee identified three points at issue, namely:
a. Is tacit approval of a schedule sufficient within the meaning of paragraph 170(2)(b)?
b. Does failure to post the notice under subsection 170(3) invalidate the agreement made pursuant to paragraph 170(2)(b)? - and
c. Is Mr. Villeneuve entitled to two weeks' notice, as well as severance pay and vacation pay?
[15] In deciding the first question, the referee concluded:
[TRANSLATION]
In the instant case, before being hired by Connexim, Mr. Villeneuve was subject to a modified schedule together with all the members of his team. The weight of the evidence was that over 70% of employees hired in February 1999 were still in favour of a modified schedule, after two and a half years of its application at Connexim (August 2001).
[16] Further, referring to the decision of April 18, 2001, in Baxter Aviation Ltd. v. WesForth and Brian Whitehead, the referee concluded that:
[TRANSLATION]
At the time of the period of hiring Mr. Villeneuve, the modified schedule was approved by at least 70% of the affected employees at Connexim, as required under paragraph 170(2)(b).
[17] In deciding the second question, the referee concluded:
[TRANSLATION]
The posting of the notice under subsections (2) and (3) of section 170 of the Code is clearly a formality. In the present case, the employer Connexim should have posted the said notice for a thirty-day period prior to the implementation of the modified schedule. However, does the failure to observe that provision entail the nullity of application of the modified schedule, which was introduced in accordance with the other conditions imposed?
. . . . .
The purpose of the notice was to enable the parties to be ready for the establishment of the new schedule and provide a period for assessment of understanding of the newly proposed working conditions. Holding the agreement void because of the failure to publish notice of a schedule which the employees had been implementing for several years would appear to compromise the purpose sought by Parliament. That purpose was to make a modified schedule possible in establishments where the nature of the work requires it, which is the case in Connexim's type of business, while ensuring that a proportion of at least 70% of employees accepted it.
. . . . .
Mr. Villeneuve . . . suffered no harm. Additionally, the preparation of the schedules was consistent with the provisions of the Act and even offered conditions superior to the Code.
. . . . .
In short, in applying the rules of interpretation applicable to a formality imposed by legislation, the tribunal concludes that in the present case the failure to post the required notice under subsections (2) and (3) of section 170 does not invalidate the modified schedule.
[18] In deciding the third question, the referee concluded that notice is only required in the event of individual dismissal, not a voluntary departure of the employee, and the same would be true of severance pay. The referee also decided that, since the applicant had already taken vacation, he had no right to an additional amount for that.
STANDARD OF REVIEW
[19] In the case at bar the referee's decision was based on a finding of fact regarding the hours worked by the applicant, the vacation days taken during his employment with the respondent and conclusions regarding the working schedule: its posting, modification and approval by employees (of the schedule as such and of the modifications). That decision was also based on an analysis of Division III of the Code and the interpretation by the referee of Parliament's intent regarding sections 166, 169, 170, 172.1 and 174 of the Code. The question in the case at bar is thus one of fact and law.
[20] As indicated by this Court in Trépanier v. Cogéco Radio-Télévision Inc., [2002] F.C.J. No. 1431, and Lamontagne v. Climan Transportations Services (2747-7173 Québec Inc.), [2000] F.C.J. No. 2063, it has been clearly settled that in the case of decisions made by a referee appointed pursuant to subsection 242(1) of the Code, when the question is one of fact and law that is within the tribunal's jurisdiction, the standard of review is that of the patently unreasonable decision. Further, according to Canadian Freightways Limited v. Canada (Attorney General), [2003] F.C.J. No. 552, the same is true of decisions from an appeal officer appointed pursuant to subsection 145.1(1) of the Code. I adopt the explanation of this standard given by the Supreme Court of Canada in CAIMAW v. Paccar of Canada Ltd., [1989] 2 S.C.R. 983, at 1003, that:
. . . an administrative tribunal . . . protected by a privative clause . . . has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" . . .
[21] Teitelbaum J. adopted this explanation in Jabre v. Middle East Airlines (Air Liban), [1998] F.C.A. No. 1227, which I include here to fully clarify the part that this Court must play in judicial review of the case at bar:
It is immaterial therefore, whether the Court agrees with the tribunal's conclusion on the issue before it. Provided the decision does not contain such a grievous error of law as to be a misinterpretation of the statutory provisions under which it was made, it is not based on a material finding of fact for which there is no evidence, or the tribunal has not exceeded its jurisdiction in some other way, the decision will not be interfered with. In order for the Adjudicator's decision to be considered patently unreasonable, it must be found by the court to be clearly irrational insofar as there is no evidence to support it.
TEST OF IMPARTIALITY
[22] For a clear understanding of the concept of bias, or the appearance of bias, in a decision it is important to identify the test applicable in assessing the facts of the case. As stated in R. v. S. (R.D.), [1997] 3 S.C.R. 484 (hereinafter R. v. S.), the test is the same for any tribunal and it is that of a reasonable and informed person knowing the facts of the situation and seeking to determine whether a judge, or in the case at bar a referee, in such circumstances, demonstrated bias or an appearance of bias:
The appropriate test for reasonable apprehension of bias is well established. The test, as cited by Abella J.A., is whether a reasonable and informed person, with knowledge of all the relevant circumstances, viewing the matter realistically and practically, would conclude that the judge's conduct gives rise to a reasonable apprehension of bias: R. v. S. (R.D.), [1997] 3 S.C.R. 484, at para. 111, per Cory J.; [1978] 1 S.C.R. 369">Committee for Justice and Liberty v. National Energy Board, [1978] 1 S.C.R. 369, at pp. 394-95, per de Grandpré J. A finding of real or perceived bias requires more than the allegation. The onus rests with the person who is alleging its existence (S. (R.D.), at para. 114). Miglin v. Miglin, [2003] 1 S.C.R. 303, at para. 26, p. 324.
[23] For such a motion to be successful, the evidence in support of it must contain more than mere allegations of bias or apparent bias. Further, as stated in R. v. S., supra, at paragraphs 113 and 114, the evidence must be such that it establishes the existence of bias, or apparent bias, and the burden of doing this rests entirely on the shoulders of the party alleging its existence:
Regardless of the precise words used to describe the test, the object of the different formulations is to emphasize that the threshold for a finding of real or perceived bias is high. It is a finding that must be carefully considered since it calls into question an element of judicial integrity. Indeed an allegation of reasonable apprehension of bias calls into question not simply the personal integrity of the judge, but the integrity of the entire administration of justice. See Stark, supra, at paras. 19-20. Where reasonable grounds to make such an allegation arise, counsel must be free to fearlessly raise such allegations. Yet, this is a serious step that should not be undertaken lightly.
The onus of demonstrating bias lies with the person who is alleging its existence: Bertram, supra, at p. 28; Lin, supra, at para. 30. Further, whether a reasonable apprehension of bias arises will depend entirely on the facts of the case.
ANALYSIS
[24] The applicant, representing himself, raised a multitude of grievances which are largely unsupported by any affidavit. Having said that, I propose to comment on the arguments taking into account the documents filed by the parties, the decision, the memorandums submitted and the pleadings.
[25] The applicant argued that he had not been heard and that the referee demonstrated a degree of hostility towards him, as well as bias by refusing to issue subpoenas to certain individuals so he could make his claim. The applicant's affidavit mentioned that a subpoena was denied which requested the employer to file an organizational chart. The documentary evidence was that the employer filed the organizational chart at the hearing and there was no basis for issuing a subpoena. As regards the other subpoenas mentioned in his memorandum, I note that the applicant's affidavit does not mention them. However, I am satisfied that the presence of Mr. Bleau and Mr. Joanisse was not necessary, as according to the evidence presented at the hearing the record contained documents which these persons filed. As to the presence of the inspector Lucette St-Jacques, a subpoena was not necessary as her file was entered in full and submitted to the referee. The record was therefore available to the applicant for consultation and reference if necessary.
[26] The applicant complained of the content of a letter sent to him by the referee on April 26, 2002 (regarding the work of his spouse as his representative before the referee), which read in part as follows:
[TRANSLATION]
Clearly, Ms. Deschamps, you are not familiar with the fundamental rules of natural justice and the administration of evidence. I would remind you that following your telephone call, and despite my decision giving you an opportunity to add to your claim a percentage of 6% instead of 4% for vacation pay . . . However, to allow Connexim to prepare accordingly, I asked you to file an amended claim in writing, in compliance with the most fundamental rules of natural justice.
As regards your applications for the filing of written pleadings and issuing of subpoenas, as the person in control of the evidence and procedure, I find them to be a stalling tactic, unreasonable and irrelevant. Your spouse can say whether he received 6% or 4% as vacation pay. I further remind you that the tribunal has the inspector's report before it ex officio.
Finally, please be advised that unless the said written claim is produced by Thursday, May 2, the tribunal will refuse to hear you on the amendment.
[27] There is no doubt that this letter indicates a certain degree of frustration on the part of the referee, undoubtedly resulting from her interaction with the applicant's representative, but I am not persuaded that it demonstrates bias. To arrive at that conclusion, I have taken into account not only the letter as such, but the material mentioned in it. In particular, the applicant could have amended his claim with the referee's approval, and the refusal to issue the subpoenas was understandable in view of the documents entered in the record, which in law were sufficient to present his evidence. From the standpoint of a neutral observer, familiar with the standards of procedure in administrative tribunals, it appears that the applicant did not have a complete understanding of the situation when he required subpoenas to establish evidence that had already been presented.
[28] The applicant considered that the referee's legal reasoning, when she concluded that the employees' approval of a modified schedule could be given tacitly (under paragraph 170(2)(b) of the Code) and that posting of the modification is not a requirement (under subsection 170(3) of the Code), is incorrect and illegal. In so doing, the applicant listed a number of objections which in his submission established the misunderstanding and misinterpretation which vitiated the referee's conclusion. By way of example, I repeat some of his objections here:
- the respondent had the burden of proof regarding approval of its employees and did not discharge that burden, thus being in disagreement with the referee's conclusion;
- the referee did not fully understand what the hearing was about;
- the referee twisted my words;
- the referee misinterpreted the Code because the arbitral award in the section [TRANSLATION] "other claims" makes no reference and the interpretation of section 170 does not reflect the wording of the said section;
- references to the writer Paul-André Côté were vague, thus leading to a misinterpretation of the words.
[29] The applicant thus indicated disagreement with the decision, but the objections essentially showed that he felt the referee had simply made a mistake and in his view his position and his interpretation of the Code should be accepted, contrary to those of the referee. As stated in the preceding paragraphs, an application for judicial review in a case like the one at bar is not an appeal from a decision, but an application for review to ensure that the administrative tribunal did not exceed its authority or make any patently unreasonable error.
[30] However, so the applicant would be fully aware that his viewpoint was taken into account, I examined the decision, and while hearing the parties' arguments, I raised certain concerns which I had with the decision. Based on the results of this procedure I feel that, although the decision regarding the claim of payment for unpaid overtime could have been written more clearly so as to make it easier to understand, it is correct and I understand it.
[31] Having concluded that the employees could give tacit approval to a schedule modification, and that posting was not required, the referee decided to uphold the modified schedule, which provided for payment for overtime when the hours worked spread over two weeks totalled an average of over 37.5 hours, whereas the calculation of $5,956.17 made by the inspector was based on the total hours worked over eight hours per day and over forty hours per week. The referee's legal reasoning for reaching her conclusion on these two points seems adequate to the Court and does not raise an error of law of the "patently unreasonable" type that would justify the Court's intervention. As mentioned above, the decision could have been written more clearly, making the appropriate connections, but it is nevertheless understandable by an informed reader.
[32] Should the referee have been concerned with unpaid overtime under the modified schedule? According to paragraph 11 of his memorandum, the applicant argued that he was owed an amount, but his affidavit only mentions: [TRANSLATION] "the weekly average worked (calculated over two weeks) sometimes exceeded forty hours a week". The respondent, on the other hand, argued that the overtime had been paid.
[33] As mentioned earlier, the applicant argued in paragraph 11 of his memorandum that the overtime was not paid to him for the work period from 10/02 to 23/02 of 2000, and suggested that the Court consult his record of payments (#00066), where no payment is shown. However, after reviewing the following record (#00064) dated March 8, 2000, we see that a payment was included for 3.5 hours overtime in that work period. Additionally, a review of the documents submitted by the applicant indicated that nine records of payment showed that overtime was paid to the applicant over a period of about a year. Consequently, I find that the documents indicated payments for the overtime in question and the referee accordingly had no need to be concerned with that aspect of the matter.
[34] The applicant was not satisfied with the reasons and the dismissal of his claim for a week's vacation pay.
[TRANSLATION]
On vacation pay, Mr. Villeneuve was entitled under the policy of the business to the pay acquired at the time of his departure, and as he had already taken vacation he was not entitled to any further amount for that.
Referee's decision, page 9
[35] The applicant would have liked the referee to indicate whether 6% or 4% was in question and make a reference to the [TRANSLATION] "general remuneration" document. However, at page 3 of the award the referee noted that the respondent had claimed one week's vacation overpaid, and that in response the applicant claimed the vacation pay was 6%. The applicant acknowledged he had taken a week's vacation. According to the referee's reasons, it appeared that the latter referred to the policy of the business regarding vacation pay, and so to the 6% as specified in the [TRANSLATION] "general remuneration" document. In my opinion, the decision could have been more exact on this point, but the vagueness does not justify a conclusion that the decision was patently unreasonable.
[36] After reviewing the record as a whole, the arguments of the parties, the referee's decision and the applicable precedents, I conclude that the decision was not patently unreasonable and the referee did not demonstrate an appearance of bias or actual bias against the applicant.
[37] As regards the claim made by the respondent for costs, I invite the parties to submit their positions to me in writing within 15 days of receipt of this decision. I note that the applicant did not apply for any in his memorandum and I daresay the parties can reach an agreement in this regard.
JUDGMENT
THE COURT MAKES THE FOLLOWING ORDER:
- the application for judicial review of the referee's award by Ms. Flynn of the Arbitration Tribunal, dated June 21, 2002, is dismissed;
- I reserve my jurisdiction regarding costs.
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"Simon Noël"
Judge
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Certified true translation
Suzanne M. Gauthier, C Tr, LLL
FEDERAL COURT
SOLICITORS OF RECORD
DOCKET: T-1178-02
STYLE OF CAUSE: MICHEL VILLENEUVE v. CONNEXIM, SOCIÉTÉ EN COMMANDITE
PLACE OF HEARING: MONTRÉAL
DATE OF HEARING: April 21, 2004
REASONS: THE HONOURABLE MR. JUSTICE NOËL
DATED: May 25, 2004
APPEARANCES:
Michel Villeneuve APPLICANT FOR HIMSELF
Pascal Rochefort FOR THE RESPONDENT
SOLICITORS OF RECORD:
Michel Villeneuve APPLICANT FOR HIMSELF
Montréal, Quebec
Pascal Rochefort FOR THE RESPONDENT
Montréal, Quebec
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