T-434-99
Between:
JEAN-MAURICE BELLAVANCE
Plaintiff
and
HUMAN RESOURCES DEVELOPMENT CANADA
Defendant
I HEREBY CERTIFY that the Court (per Blais J.) on August 15, 2000 ordered the following at the end of its Reasons for Order:
"The application for judicial review is accordingly dismissed with costs."
CERTIFIED AT Ottawa, Ontario, August 17, 2000.
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(signed)
Robert Lemoine
Registry Officer
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Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
Date: 20000815
Docket: T-434-99
BETWEEN:
JEAN-MAURICE BELLAVANCE
Plaintiff
- and -
HUMAN RESOURCES DEVELOPMENT CANADA
Defendant
REASONS FOR ORDER AND ORDER
BLAIS J.
[1] This is an application for judicial review of the decision of Board Member Guy Giguère on February 5, 1999 allowing the plaintiff's grievance but refusing to allow his reinstatement in his former position.
FACTS
[2] The plaintiff was employed by the Canada Employment and Immigration Commission ("CEIC") on February 1974.
[3] In 1980 he began operating a grocery and convenience store, and in 1984 he started a second convenience store which belonged to the same company, Les Entreprises J.M. Bellavance Ltée.
[4] In 1984 he submitted a declaration of a conflict of interest to his employer. He was told in September 1984 that his activities as the owner of Entreprises J.M. Bellavance Ltée did not place him in a conflict of interest.
[5] In 1986 the plaintiff signed a statement that he had knowledge of the Public Service Code of Conduct and indicated that he had property, but that they did not entail any real or potential risk of a conflict of interest with his official duties.
[6] In 1989 the plaintiff decided to make a change in the way he operated his convenience stores, altering the employees' work schedule and adopting the 7/7 method. By that method, once the employees qualified for unemployment insurance they had a work stoppage for seven consecutive days so they could be entitled to unemployment insurance benefits, that is, one week worked and paid for followed by a seven-day layoff covered by unemployment insurance.
[7] On January 6, 1996, as he was going into the CEIC the plaintiff glimpsed Line Charette, a former employee. Although Ms. Blouin, an officer 1, was responsible for Ms. Charette's case, the plaintiff decided to handle it himself. He took the information contained in Ms. Charette's card and entered it in the system. A few days later, the computer rejected these entries as a processing error. At that time Ms. Blouin saw this and informed their supervisor, Christian Fournier. The
latter then asked for explanations and the reply was: [TRANSLATION] "Do whatever you have to do". It should be noted that Ms. Charette's file had been inactive for a period of three months and it was contrary to the directives to reactivate it.
[8] Mr. Fournier went to see the CEIC director, Mr. Fortin, who asked him to look into the matter further.
[9] The plaintiff was not penalized for this incident, but the appendix to the performance evaluation report mentioned Ms. Charette's case.
[10] An investigation into the plaintiff as an employer was held in July 1996. When it was discovered that the 7/7 method was used although there was no lack of work, contrary to what appeared on the records of employment, the plaintiff was summoned to a meeting which was also attended by Mr. Fortin and Mr. Sirois, the investigator. After hearing the charges against him, the plaintiff refused to discuss the matter. Mr. Sirois suggested that the plaintiff resign, which he refused to do.
[11] Mr. Sirois then consulted a labour relations specialist in the Montréal office, Ms. Legault, and discussed his recommendation that the plaintiff be suspended with Mr. Gladu, Associate Deputy Minister, HRDC, Quebec region.
[12] The plaintiff was informed of his suspension by a letter dated July 24, 1996 for the period July 16 to August 26, 1996. The letter indicated that the plaintiff had been the subject of an inquiry as an employer and that there was sufficient evidence to conclude that his conduct was contrary to the HRDC Code of Conduct and the Conflict of Interest and Post-Employment Code for the Public Service.
[13] An administrative investigation was conducted by Mr. Gagné, concerning the plaintiff as an employee. That investigation sought to determine whether the allegations of fraud, conflict of interest and all other offences could be disclosed during the investigation. The Rimouski files revealed several anomalies in the files of former employees of Entreprises J.M. Bellavance Ltée. It was found that the plaintiff had intervened in the files of former employees, thereby placing himself in a conflict of interest situation.
[14] In August 1996 CEIC officers went to the plaintiff's home, asking to see the accounting records of Entreprises J.M. Bellavance Ltée. After consulting his lawyer on the telephone, the plaintiff refused to accede to the request since the Unemployment Insurance Act provides that the plaintiff should hand over such documents at his place of business, not at his home. The CEIC officers accepted this argument, but as the plaintiff was no longer operating his convenience stores they could no longer have access to the records at the place of business. The officers returned with a search warrant in November 1996, but did not find the pay records. The plaintiff testified that the records were on the table, but the officers did not see them. The plaintiff destroyed his records in 1997 when he moved.
[15] The suspension was extended several times and finally, on November 27, 1996 the Associate Deputy Minister, Mr. Gladu, informed the plaintiff that he was approving his dismissal.
[16] The plaintiff filed two grievances against that decision. He challenged, first, his suspension without pay during the initial investigation, and demanded his immediate reinstatement and the repayment of his lost salary during the initial suspension period. Secondly, he challenged his dismissal, also requesting that he be reinstated with reimbursement of lost salary and all fringe benefits.
MEMBER'S DECISION
[17] The Member was persuaded that s. 6 of the Code of Conduct included the situation in which a CEIC employee had a business and had employees himself. Further, although cases of ex-spouses, ex-friends, ex-associates, ex-tenants and ex-employees were not mentioned specifically, they were nevertheless covered by these examples. The Member noted that the plaintiff admitted that he did not process his ex-employees' files to produce a benefit application. He also admitted that he saw the 7/7 system as a gratuity from the system, a loophole which he had exploited.
[18] The Member concluded that the plaintiff, in processing his former employees' files, had placed himself in a situation where he could give priority to their interests or even his own rather than to the public interest.
[19] The Member noted that the plaintiff had also placed himself in a conflict of interest by using for his own benefit information obtained in the course of his duties, which in general was not available to the public.
[20] The Member pointed out that in view of the seriousness of the alleged acts, the relationship of confidence with the employer had been seriously weakened. The fact that the plaintiff had not explained his conduct at any time prior to the final grievance level and at the hearing of his grievance certainly did not restore this confidential relationship. Further, the Member did not find the plaintiff's explanation credible, indicating that he was waiting to be called in order to give an explanation and that prior to the hearing he had destroyed the pay records which could have supported what he said and demonstrated his good faith to his employer.
[21] The Member concluded that dismissal was not appropriate. However, he was persuaded that in view of the seriousness of the misconduct and the fact that the employer had lost all confidence in the grievor, it would be counter-productive to order the plaintiff's reinstatement in his former position after a lengthy suspension exceeding fifteen months. The work climate that would result would be injurious to both sides.
[22] The Member ordered the employer to pay the plaintiff compensation equivalent to ten months' salary.
[23] The Member allowed the grievance but refused to allow reinstatement.
PLAINTIFF'S ARGUMENTS
[24] The plaintiff argued that the conclusions were based on incorrect facts, since the initial evidence did not support a conclusion that the plaintiff's conduct was wrong.
[25] The plaintiff submitted that the Member acted contrary to law since there was no evidence to indicate that the plaintiff had in one way or another contravened the various rules or directives of his employer or had acted unlawfully.
[26] The plaintiff essentially based his argument on the Federal Court's judgment in Chalifoux v. First Nation of Driftpile (1999), 169 F.T.R. 143.
[27] In that judgment, Campbell J. quashed an adjudicator's decision concerning reinstatement on the ground that the adjudicator had not conducted the required analysis.
[28] The plaintiff suggested that the adjudicator made an error of law in failing to conduct the required weighing of the considerations for and against reinstatement and that the decision should be set aside.
DEFENDANT'S ARGUMENTS
[29] The defendant maintained that the key questions in this matter (namely the seriousness of the plaintiff's misconduct, the state of the confidential relationship between the employer and the employee and the impact of reinstatement on the work climate at the employer's premises) fell squarely within the Commission's specialized expertise. In such a situation, judicial restraint is necessary.
[30] The defendant submitted that the Member's decision could not be described as irrational or, obviously, as contrary to reason.
[31] The defendant alleged that the Member reached his conclusion based on the essential points in the evidence before him. Those points included the plaintiff's long service record, his good record of discipline, a certain [TRANSLATION] "laxity" on the defendant's part, and on the other hand, the seriousness of the acts committed by the plaintiff, the breach of the confidential relationship and the harmful impact of reinstatement on the work climate, both for the plaintiff and for the defendant.
[32] The defendant submitted that in the circumstances this decision was a balanced analysis of the often contradictory evidence and had arrived at a conclusion that was not only reasonable but correct.
[33] The defendant argued that although he accepted the plaintiff's suggestion that the Member had concluded that dismissal was not appropriate in the circumstances, the Member was entirely within his rights in finding that the reinstatement of the plaintiff was not appropriate in the circumstances.
[34] The defendant submitted that the Member had sufficient evidence before him of the seriousness of the plaintiff's conduct and the breach of the confidential relationship to arrive at his decision.
[35] The defendant submitted that the plaintiff's refusal to provide an explanation as soon as an impropriety was found to exist, the fact that the plaintiff never produced his pay records and the plaintiff's lack of credibility in his explanations to the Member seriously undermined the confidential relationship between the plaintiff and the defendant.
[36] The defendant submitted that the compensation awarded to the plaintiff was reasonable, and even generous, and should not be regarded as patently unreasonable.
POINT AT ISSUE
[37] Did the Member err in law and in fact in allowing the plaintiff's grievances but refusing to allow his reinstatement: did he thereby render a decision based on an erroneous finding of fact that he made in a perverse or capricious manner or without regard for the material before him?
ANALYSIS
[38] The standard of judicial review of a decision of the Staff Relations Board was raised in Fraser v. Canada (Public Service Staff Relations Board), [1985] 2 S.C.R. 455, where the Chief Justice said at 464:
A restrained approach to disturbing the decision of specialized administrative tribunals, particularly in the context of labour relations, is essential if the courts are to respect the intentions and policies of Parliament and the provincial legislatures in establishing such tribunals . . .
[39] In Canada (A.G.) v. Public Service Alliance of Canada, [1991] 1 S.C.R. 614, at 661 and 662, the Supreme Court also maintained:
It is apparent that the Board's raison d'être is the resolution of labour management disputes that may erupt between the Federal Government and its employees. The area of expertise of the Board is in the field of labour relations involving the Federal Government and its employees
. . . . .
The Board has been given wide powers and the protection of a privative clause. Its members are experienced and skilled in the field of labour relations. The legislator made it clear that labour disputes, such as those presented in this case, were to be resolved by the Board. The Court should not be quick to interfere.
[40] The Supreme Court, explaining the reason for such a standard, indicated in Canada (A.G.) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, at 962 and 964:
There are a number of reasons why the decisions of the Board made within its jurisdiction should be treated with deference by the court. First, Parliament in the Act creating the Board has by the privative clause indicated that the decision of the Board is to be final. Secondly, recognition must be given to the fact that the Board is composed of experts who are representatives of both labour and management. They are aware of the intricacy of labour relations and the delicate balance that must be preserved between the parties for the benefit of society. These experts will often have earned by their merit the confidence of the parties. Each time the court interferes with a decision of such a tribunal confidence is lost not only by parties which must appear before the Board but by the community at large. Further, one of the greatest advantages of the Board is the speed in [sic] which it can hold a hearing and render a decision. If courts were to interfere with decisions of the Board on a routine basis, victory would always go to the party better able to afford the delay and to fund the endless litigation. The court system itself would suffer unacceptable delays resulting from the increased case load if it were to attempt to undertake a routine review.
. . . . .
It is not enough that the decision of the Board is wrong in the eyes of the court; it must, in order to be patently unreasonable, be found by the court to be clearly irrational.
[41] This Court must consider in this context whether the Member made a patently unreasonable decision.
[42] In Green v. Canada (Treasury Board) (March 27, 2000), A-542-97 (F.C.A.), the Federal Court of Appeal recently explained:
A decision may be patently unreasonable if, for example, it is unsupported by evidence or if it is based on unsound reasoning. However, a decision is not patently unreasonable merely because it is based on evidence that is weighed one way when it might have been weighed another way, or because the reasons given for the decision do not discuss every point that might be argued.
[43] I cannot accept the argument that the decision is patently unreasonable since the Member did not have sufficient evidence to conclude that there was wrongful conduct. The Member is the person in the best position in the circumstances to draw conclusions of fact after hearing the evidence. In his detailed analysis, each point was painstakingly considered.
[44] After examining clause 6 of the Code of Conduct, listening to the testimony and consulting the case law, the Member considered that the plaintiff had placed himself in a conflict of interest situation by processing the files of his former employees. The plaintiff was in a situation in which he could have given priority to their interests or his own over the public interest. This is especially true as the plaintiff even admitted that he did not process benefit applications.
[45] The 7/7 system is not a program established for or available to the public. The plaintiff took advantage of his position contrary to s. 6 of the Public Service Code of Conduct, which states:
6. Every employee shall conform to the following principles:
. . . . .
(g) employees shall not knowingly take advantage of, or benefit from, information that is obtained in the course of their official duties and responsibilities and that is not generally available to the public . . .
[46] After concluding that the plaintiff was at fault, the Member examined the mitigating circumstances. He noted the plaintiff's clean disciplinary record, his twenty-four years of service, the fact that the plaintiff had not carried out his obligations by failing to establish a Public Service Code of Conduct training program and the fact that the employer had not done any follow-up on the plaintiff when the latter made a declaration in 1984.
[47] The Member concluded, at page 34 of his decision:
[TRANSLATION]
I have come to the conclusion that Mr. Bellavance would have merited dismissal for his actions but for the employer's laxity and the employee's long service record without any disciplinary problems. Although dismissal is not appropriate in view of the share of blame that the employer must bear, the fact remains that Mr. Bellavance did commit serious misconduct.
[48] It is clear that the Member concluded that the plaintiff committed serious misconduct, but that it did not justify dismissal. However, in view of the tense relationship between the parties the Member felt certain that reinstatement of the plaintiff was not appropriate. Was this conclusion patently unreasonable?
[49] In Atomic Energy of Canada v. Sheikholeslami, [1998] 3 F.C. 349, the Federal Court of Appeal concluded:
It is clear to me that the conviction expressed by the Adjudicator to the effect that there had been a breakdown of the employment relationship was rooted in his expertise and I do not see how, in the absence of any possibility that it be improperly formed, such conviction could be seen as being irrational.
. . . . .
It is undisputable, however, on a mere reading of subsection 242(4) of the Code, that an adjudicator is given full discretion to order compensation in lieu of reinstatement, if, in his opinion, the relationship of trust between the parties could not be restored.
[50] Létourneau J.A. added:
It is true that reinstatement is not a right even after a finding of unjust dismissal, but, as I. Christie et al. properly point out, the exception to reinstatement should be applied very cautiously otherwise the risk exists that an unjustly dismissed employee will be penalized by losing his job. . . . Indeed, a finding of unjust dismissal is a finding that the work relationship should not have been severed in the first place. In such cases, the presumption is, in my view, clearly in favour of reinstatement unless there is clear evidence to the contrary.
. . . . .
Where an adjudicator's decision not to reinstate an employee wrongfully dismissed from his work is based solely on the attitude and conduct of the parties at the hearing, proper specifications ought to be given of these elements of the attitude and conduct of the parties which are the basis for such a far reaching decision. Otherwise, it is not only unfair, but it is an invitation to potential abuses as extraneous and irrelevant considerations can be taken into account and be the determinative factor in the decision, proper justification for the employee's attitude can be ignored, important considerations and circumstances can be ignored with impunity, not to mention the possibility for an employer so minded to put up an act in order to reap the benefits of an unjust or unlawful dismissal. An adjudicator has discretion not to order reinstatement of an employee, but he must exercise and be seen to exercise such discretion judicially.
[51] Reading the decision it is clear that the Member considered the alleged misconduct, the employer's shortcomings, the impact on the working relationship, but most importantly, the plaintiff's conduct during the investigations. The fact that the plaintiff gave no explanation until the final level seriously affected the relationship of confidence between the parties, especially as the plaintiff's credibility regarding the pay records was at issue.
[52] In Chalifoux, to which the plaintiff referred, it appeared that the adjudicator had not undertaken the necessary analysis of the consequences of possible reinstatement, and it was on that basis that the decision was reversed by Campbell J., who considered that this was a patently unreasonable error of law.
[53] It is clear in the case at bar that the adjudicator did undertake the necessary analysis of the consequences of a possible reinstatement and that the Member was persuaded that reinstatement was not appropriate in the circumstances. He used his discretion at this time by refusing to allow reinstatement although awarding compensation. This conclusion was within his expertise and the plaintiff did not show that the Member's conclusion was patently unreasonable.
[54] The application for judicial review is accordingly dismissed with costs.
MONTRÉAL, QUEBEC
August 15, 2000
Certified true translation
Suzanne M. Gauthier, LL.L. Trad. a.
FEDERAL COURT OF CANADA
TRIAL DIVISION
NAMES OF COUNSEL AND SOLICITORS OF RECORD
COURT No.: T-434-99
STYLE OF CAUSE: Jean-Maurice Bellavance v. Human Resources Development Canada
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: June 30, 2000
REASONS FOR ORDER AND ORDER BY: BLAIS J.
DATED: August 15, 2000
APPEARANCES:
Denis Tremblay FOR THE PLAINTIFF
David Merner FOR THE DEFENDANT
SOLICITORS OF RECORD:
Tremblay & Tremblay FOR THE PLAINTIFF
Matane, Quebec
Morris Rosenberg FOR THE DEFENDANT
Deputy Attorney General of Canada
Ottawa, Ontario
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