NLHA'7KAPMX Child And Family Services v. Lockhart, 2002 FCT 348

Date: 20020327

Docket: T-788-01

Neutral citation: 2002 FCT 348

Ottawa, Ontario, Wednesday the 27^th day of March 2002

PRESENT:      The Honourable Madam Justice Dawson

BETWEEN:

                              NLHA'7KAPMX CHILD AND FAMILY SERVICES

                                                                                                                                             Applicant

                                                                         - and -

                                                  CRAIG ALLAN LOCKHART

                                                                                                                                          Respondent

                                          REASONS FOR ORDER AND ORDER

DAWSON J.

[1]                 Craig Allan Lockhart, the respondent in this proceeding, is a former employee of the applicant Nlha'7kapmx Child and Family Services ("NCFS" ). On July 5, 2000, Mr. Lockhart's employment was terminated. Mr. Lockhart then filed a complaint of unjust dismissal pursuant to the Canada Labour Code, R.S.C. 1985, c. L-2 ("Code"). This complaint went to a hearing before an adjudicator appointed pursuant to section 242 of the Code.

[2]                 The adjudicator, in a decision dated April 3, 2001, found Mr. Lockhart to have been unjustly dismissed. The adjudicator required the NCFS to pay to Mr. Lockhart the sum of $15,500, less statutory deductions. To permit Mr. Lockhart to "clear his name" the adjudicator also ordered that:

Pursuant to Section 242(4)(c) I can "do any other thing" that is equitable. I can order any other remedies to counteract any consequence of the dismissal. I note the Complainant does not want to be reinstated. His goal is to clear his name and get some lost income. It is by no means certain that had the Employer reinstated the Complainant and requested from MCF a reinstatement of the delegation that the Complainant would have been able to work with children in need. However, it is also clear that he has been wrongfully dismissed. To "clear his name" I order that this decision be posted on all bulletin boards of the Employer. If Mr. Lockhart requests the Employer will pay for a half page advertisement stating that an unjust dismissal finding was made pursuant to the Canada Labour Code in which Mr. Lockhart was awarded $15,500.00.

In summary I order Nlha'7kampx Child and Family Services Society to pay $15,500.00 by April 15^th, 2001. Also I order that within 30 days of Mr. Lockhart written request to Nita Walkem the Employer will pay for a one half page ad in all local community newspapers within 70 km of Lytton and Merritt.

[3]                 The NCFS brings this application for judicial review of the adjudicator's decision.

THE FACTS

[4]                 The NCFS is a non-profit organization which provides various services, including protective services, to Aboriginal children. The NCFS is funded by the Department of Indian Affairs to serve six Aboriginal Bands in the Lytton and Spences Bridge area of British Columbia.

[5]                 Pursuant to letters of delegation granted by the Ministry of Children and Families of British Columbia ("MCF"), which licenses individuals to work as child protection officers, two case managers are employed by the NCFS. Mr. Lockhart, who holds a Bachelor of Social Work degree, received such a letter of delegation and was employed as one of the two case managers for the NCFS from September 2, 1997 until he was suspended from his duties on April 21, 1999.

[6]                 On April 21, 1999, Mr. Lockhart was arrested and charged with two counts of sexual assault and two counts of sexual touching. The complainant was his daughter. The next day, the Director of Child Protection at MCF, wrote to NCFS' executive director, Nita Walkem, advising that because of the criminal charges Mr. Lockhart's delegation would be suspended indefinitely pending the outcome of the charges. On April 27, 1999, Ms. Walkem informed Mr. Lockhart that the Board of Directors of NCFS had decided to suspend him without pay until the criminal matters were resolved.

[7]                 Thereafter, the Crown stayed the two charges of sexual assault on May 11, 1999. Both charges of sexual touching were stayed by the Crown on April 10, 2000, at the early stages of the trial. However, thereafter Mr. Lockhart's daughter remained in protective custody and Mr. Lockhart continued to be prohibited by court order from contacting her.

[8]                 The same day that the charges were stayed, Mr. Lockhart requested reinstatement of his job. On July 5, 2000, Mr. Lockhart received a letter from Ms. Walkem, which stated in whole:

This is to advise you that your services are no longer required by our Agency due to the fact that your delegation was removed by the Director and without this delegation, you would be unable to perform any of the duties for which you were hired.

I have been informed that there was a stay of proceedings on the charges against you, there was no acquittal, which means there is a chance that these charges can be brought back into Court again.

[9]                 Shortly thereafter, Mr. Lockhart filed his complaint of unjust dismissal.

[10]            The adjudication hearing was held on March 28, 2001. The only witnesses to testify were Ms. Walkem of NCFS, Mr. Lockhart and his wife. The adjudicator rendered his decision on April 3, 2001.

[11]            By letter dated May 14, 2001, the NCFS' solicitors requested the hearing be re-opened to hear new evidence. The adjudicator responded by letter dated May 15, 2001 rejecting this request stating, in part:

My Decision is functus. I gave both parties ample opportunity to present their evidence and/or to have obtained legal counsel to instruct them on relevant issues. I do not believe I have jurisdiction to reopen my decision.

THE ADJUDICATOR'S DECISION

[12]            The adjudicator noted that with respect to the staying of the criminal charges at trial, the prosecutor advised the presiding judge as follows:

Your Honour, I've looked at my notes over the lunch and I've given this file some consideration. I think there is an ongoing obligation on the Crown that the charging standard be met throughout the process. In my opinion that includes right up to before trial and through trial.

At the beginning of this trial I had a sense of this file that it was close to the edge, and after hearing the evidence of the complainant in this matter, it's my opinion that the charging standard is no longer met on this file. I am going to be directing a stay of proceedings.

I am not going to get into the problems I see in the file. I had numerous interviews with Miss - that's an overstatement. I had interviews with Miss Lockhart about her evidence. I noticed some changes in the evidence through time. I note the memory problems today with regards to the incident.

I take into account in making this decision the fact that Miss Lockhart would be cross-examined potentially for a number of more hours, a process that she considers to be very stressful, and at the outcome at the end of the day, given the evidence, I've heard, and given my sense of the defence in this matter, is that there would be acquittal, and for those reasons I'm directing a stay of proceedings.

[13]            The adjudicator then wrote as follows:

The Employer's position is that Mr. Lockhart could not be reinstated because he did not have a delegation from the Ministry. It is pointed out that no effort was made by the Employer to reinstate the Complainant. I find that the Complainant was unjustly dismissed because the Employer should have written to Ross Dawson and MCF requesting a delegation be returned in that they intended to re-employ the Complainant if he received his delegation. If the Ministry refused to reinstate his delegation then the Employer may have had just cause to termination the services of Mr. Lockhart because he could not be licensed by MCF to do his job. The grounds to justify the termination could then have been frustrated in that the Complainant could not obtain a delegation which was a requirement of his job and no other duties may have been available with the Employer. The Ministry may well have independently investigated the allegations to see whether there was any truth to the allegations.

I disagree with the Employer's other reason not to reinstate. A removal of a charge in regards to sexual assault and a stay in regards to sexual touching does not always mean the events did not occur. At this hearing there was absolutely no evidence as to any inappropriate behavior, or action by the Complainant to this daughter. The Employer has an obligation to prove that the Complainant has done something wrong. Simply stating the reason for dismissal was that there was a stay and the criminal charges could be relayed is not enough to justify the termination. I find pursuant to Section 242(3)(a) the dismissal was unjust because there was no evidence of wrong doing. I also note that there was no evidence that the Employer independently investigated these serious allegations of sexual abuse. If I had heard, and believed, evidence that Mr. Lockhart did anything sexual to his daughter I would have upheld the discharge. I do agree with Ms. Walkem that children come first in her Society and that she must believe what she is told by children even if they speak against an employee. The problem is that there is no evidence that the daughter was a child, what was said by the daughter, to whom it was said and whether it was true. It would obviously be unfair to terminate social workers simply because their name is mentioned by a child without an investigation as to the truth of what is being told by the child.

Similarly it would be unfair to terminate a social worker because their daughter made false accusations of a sexual nature. It is only correct to terminate an employee when there is evidence of serious wrongdoing.

[14]            In addition to the above, the adjudicator noted the following:

·            At the time of the hearing it had been almost one year since the stay was entered in the criminal proceeding, and no criminal charges or civil actions had been commenced.

·            Ms. Walkem was clear in her termination letter, and in her evidence at the hearing, that the reason for terminating Mr. Lockhart's employment was his lack of delegation from MCF and the fact that a stay, not an acquittal, was entered by the criminal court.

·            Mr. Lockhart was given no opportunity to present his side of the story to the NCFS.

·            Mr. Lockhart's daughter was a member of a First Nation which had concluded that Mr. Lockhart "had done something wrong", and which had "concluded that the daughter was in need of protection from her father".

·            Mr. Lockhart was not seeking reinstatement.

[15]            As a result, the adjudicator found that Mr. Lockhart's suspension from the date of the charges until the stay was just, on the ground that MCF had removed Mr. Lockhart's delegation. However, the failure of the NCFS after the charges were stayed to request     re-instatement of Mr. Lockhart for the purpose of determining if he was able to obtain his delegation from the Ministry made his termination unjust.

THE ISSUES

[16]            The NCFS raises four issues with respect to the adjudicator's decision. They are:

1.          Was the adjudicator's finding of unjust dismissal patently unreasonable in all of the circumstances, and in particular, by reason of failing to find that the fact that Mr. Lockhart continued to be subject to the protective custody order, even after the staying of the charges, constituted just cause for the termination of his employment?

2.          Can this Court, in deciding the above issue, consider facts not specifically referenced in the letter refusing to reinstate Mr. Lockhart's employment, but which facts were before the adjudicator?

3.          In the alternative, should the decision be set aside and the matter be remitted to the adjudicator to hear new evidence regarding whether Mr. Lockhart's delegation would have been reinstated by MCF?

4.          Can Mr. Lockhart seek amendment of the decision and substitution of additional damages in lieu of the advertisements ordered?

ANALYSIS

(i) Standard of Review

[17]            It is well-established, and not in issue in this proceeding, that the standard of review for interfering with a finding of unjust dismissal or the award of compensation by an adjudicator appointed under section 242 of the Code is patent unreasonableness. The standard has been confirmed in several decisions of the Court, including: Fraser v. Bank of Nova Scotia (2000), 186 F.T.R. 225 (T.D.); Gauthier v. Bank of Canada (2000), 191 F.T.R. 219 (T.D.); Roe v. Rogers Cablesystems Ltd. (2000), 4 CCEL (3d) 170 (F.C.T.D.); Lac La Ronge Indian Band v. Laliberté (2000), 192 F.T.R. 100 (T.D.); and Wayzhushk Onigum Nation v. Kakeway, 2001 FCT 819; [2001] F.C.J. No. 1167 (F.C.T.D.).

[18]            To determine whether a decision is patently unreasonable, the Court must ask whether the evidence, viewed reasonably, is incapable of supporting the tribunal's conclusion.

(ii) Was the finding of unjust dismissal patently unreasonable?

[19]            In addition to raising generally the reasonableness of the adjudicator's decision, the second issue raised by the NCFS in substance attacks the reasonableness of the adjudicator's decision because of his failure to give proper consideration to the fact that Mr. Lockhart's daughter was the subject of the protective custody order. I find it more convenient to deal with this issue in the context of assessing generally whether the adjudicator's decision was patently unreasonable.

[20]            As set out above, the grounds justifying Mr. Lockhart's dismissal provided in the termination letter were that he held no delegation from the MCF and the criminal proceeding resulted in a stay, not an acquittal. Both grounds were considered by the adjudicator.

[21]            With respect to the removal of Mr. Lockhart's delegation, the NCFS admits that Mr. Lockhart could not obtain a delegation from MCF without reinstatement by the NCFS because Mr. Lockhart needed to have a position with NCFS for the delegation to be applied to. It is common ground that the NCFS did not request any delegation for Mr. Lockhart.

[22]            The adjudicator noted those facts and concluded that the NCFS could not rely on the absence of a delegation when it had not taken the steps necessary to obtain the delegation or to at least learn if a delegation would be granted. In the words of the adjudicator the NCFS "could have, and should have, requested to rehire the Complainant [Mr. Lockhart] to determine if he was able to obtain his delegation from the Ministry".

[23]            It was not patently unreasonable, in my view, for the adjudicator to conclude that the employer could not rely on the absence of delegation when its actions prevented any determination by the MCF as to whether to issue a delegation.

[24]            As to the second ground justifying termination, the fact that Mr. Lockhart was not acquitted and that only a stay of proceedings was entered, the evidence was that Crown counsel, in staying the charges, noted his belief that otherwise an acquittal would result. In light of that, and in circumstances where there had been no re-institution of the charges, no evidence as to any inappropriate behaviour on the part of Mr. Lockhart towards his daughter, and no evidence that the NCFS had conducted an independent investigation into the allegations, the adjudicator's decision was not patently unreasonable.

[25]            The strongest ground of unreasonableness asserted by the NCFS was that the adjudicator failed to consider and to conclude that the fact that Mr. Lockhart's own daughter was the subject of a protective order was incompatible with Mr. Lockhart holding a position which required him to take children into protective custody. Reliance was placed upon decisions such as C.I.B.C. v. Boisvert, [1986] 2 F.C. 431 (F.C.A.) to argue that dismissal is justified where an employee's conduct causes potential prejudice to the employer's operations and where an employee's conduct reveals a lack of character or judgment.

[26]            There are, with respect, on the facts of this case a number of difficulties with the NCFS' submission.

[27]            First, it is clear that the adjudicator did have regard to the existence of the protective order in that he specifically mentioned the evidence that the Lytton First Nation "had concluded that the daughter was in need of protection from her father" and that Mr. Lockhart complained about his daughter's foster parents.

[28]            Second, the adjudicator's reasons are express that both in the termination letter and at the hearing the NCFS relied upon the lack of delegation and the lack of an acquittal to justify termination. It is difficult to find the adjudicator's decision to be patently unreasonable for not considering a ground not argued before him. Related to this last concern is that the proceeding now before the Court is by way of judicial review, and not appeal. There is authority that new arguments are not to be raised on an application for judicial review. See: SOCAN v. Canadian Assn. of Internet Providers, 2001 F.C.A. 4 at para. 12; Toussaint v. Canada (Labour Relations Board), [1993] F.C.J. No. 616 (F.C.A.); A.G.T Ltd. v. Graham, [1997] F.C.J. No. 1679 (T.D.); Poirier v. Canada (Minister of Veterans Affairs), [1989] 3 F.C. 233 (F.C.A.).

[29]            Third, and finally, the circumstances surrounding the protective order should be considered. In that regard, there is no record before the Court as to what evidence was before the adjudicator. I have therefore proceeded on the basis that the evidence put before this Court by the parties, which was not objected to on the ground that it is new evidence, was before the adjudicator.

[30]            As of the date of discharge, July 5, 2000, the evidence as to the protective order is as follows. Mr. Lockhart was charged on April 21, 1999 and on May 3, 1999 he consented to an order granting the Director of Child, Family and Community Services interim custody of his daughter, and a Protective Hearing was scheduled for June 8, 1999. Mr. Lockhart says that it was his understanding that this was a temporary order until the criminal charges were dealt with. On June 8, 1999, the protective hearing was commenced and adjourned until July 27, 1999 for a case conference. There followed a series of case conferences, and on January 13, 2000 a further interim order was made, Mr. Lockhart taking no position with respect to the matter. As of September 12, 2000, a date after Mr. Lockhart's termination, the status was that each side was ordered to make disclosure of the evidence to be called. On September 18, 2000, a further case conference was scheduled for November 8, 2000 and the operation of the disclosure order was suspended.

[31]            It is common ground, as sworn to by Ms. Walkem, that Mr. Lockhart's daughter was removed from his custody at the time the charges were laid, as one would expect where the charges stemmed from the daughter's complaint. It is clear from the facts recited above, which are taken from the responses Mr. Lockhart made to his written re-examination by the NCFS and which the NCFS put before the Court, that by the date of discharge there had been no adjudication by the British Columbia Provincial Court upon the merits of the matters at issue in the protection proceedings. That remained the status of matters even at the time of the hearing before the adjudicator.

[32]            In the absence of any independent examination into those allegations by the NCFS the only forum to have considered the allegations was the criminal court, where a stay was entered because Crown counsel felt the daughter's evidence did not meet the charging standard so that an acquittal would be the likely result.

[33]            In that circumstance, I cannot conclude that it was patently unreasonable for the adjudicator not to have found the mere existence of the child protection order to justify termination.

[34]            The nub of the adjudicator's conclusion was that it would be unfair to terminate a social worker simply because of a child's allegation without any investigation as to the truth of what is being told by the child. The interim protection order, interim in the sense of not resulting after adjudication upon the merits of the allegations, was not of sufficient evidentiary effect to make the adjudicator's conclusion that Mr. Lockhart was unjustly dismissed unsupportable by the evidence.

[35]            To conclude otherwise would be to give weight to the unsubstantiated allegations simply because they led to a consent protective order, in circumstances where the only investigation into those allegations had resulted in a stay of the criminal proceedings.

(iii) Can the Court consider the effect of the protective order when it was not relied upon in the letter of termination?

[36]            Assuming, without deciding, that the NCFS would have been entitled to assert before the adjudicator grounds for dismissal not referred to at the time of dismissal, I have concluded that the evidence before the adjudicator as to the protective order was not such as to make his conclusion unreasonable. It is therefore not necessary to consider this issue in more detail.

(iv) Should the decision be set aside and remitted to the adjudicator to hear new evidence?

[37]            The evidence which the NCFS wishes to have the adjudicator consider is that on May 4, 2001, for the first time, in a conversation with a representative of MCF, Ms. Walkem was told that MCF has a discretion in re-instating delegations, and the fact that Mr. Lockhart's daughter remained in protective custody would have likely disqualified him from re-instatement of his delegation, subject to a full review of his file.

[38]            The NCFS admits that it made no effort before the hearing to obtain this information, because it was not aware of MCF's discretion and policies with respect to re-instituting delegation.

[39]            The NCFS says that the adjudicator had inherent authority to re-open the hearing to receive this new evidence, and that his failure to do so constitutes a denial of natural justice. Mr. Lockhart says that the adjudicator committed no error by failing to re-open the hearing to consider inconclusive evidence.

[40]            Assuming, again without deciding, that the adjudicator had jurisdiction to re-open the hearing so the adjudicator was not functus, I find no reviewable error because the proposed evidence did not meet the criteria for the admission of fresh evidence.

[41]            The leading case for the admission of fresh evidence on appeal is [1980] 1 S.C.R. 759">Palmer v. The Queen, [1980] 1 S.C.R. 759, where at page 775 the following criteria are set out:

1.          The evidence should generally not be admitted if, by due diligence, it could have been adduced at trial, provided that this general principle will not be applied as strictly in a criminal case as in a civil case.

2.          The evidence must be relevant in the sense that it bears upon a decisive, or potentially decisive, issue in the trial.

3.          The evidence must be credible in the sense that it is reasonably capable of belief.

4.          The evidence must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[42]            Considering a motion to adduce new evidence on appeal, Justice Sharlow of the Federal Court of Appeal wrote as follows in Chippewas of Nawash First Nation v. Canada (Minister of Fisheries and Oceans) 2002 F.C.A. 22 at paragraphs 20 and 21:

In considering this motion, I must consider whether the evidence could with reasonable diligence have been discovered before the end of the trial, whether the evidence is credible, and whether the evidence is practically conclusive on the appeal: Frank Brunckhorst Co. v. Gainers Inc. et al., [1993] F.C.J. No. 874 (C.A.) (QL). I understand the third test to mean simply that the new evidence, if believed, could reasonably be expected to affect the result of the trial: [1980] 1 S.C.R. 759=">Palmer v. R., [1980] 1 S.C.R. 759.

Even if the three tests are not met, I may permit the evidence to be adduced if the interests of justice require it: Glaxo Wellcome plc v. Minister of National Revenue, (1998) 225 N.R. 28(F.C.A.), Amchem Products Inc. et al. v. Workers' Compensation Board (B.C.) (1992), 192 N.R. 390 (S.C.C.).

[43]            In the present case, the NCFS relied upon the removal of Mr. Lockhart's delegation to justify his termination. In view of the stated importance of such delegation it seems to me that due diligence would have required the NCFS to have inquired into MCF's discretion and policies with respect to re-instatement of a delegation prior to the hearing before the adjudicator. Ms. Walkem's sworn evidence that "I had no way of knowing MCF's position prior to the hearing" is not persuasive. The evidence satisfies me that the first criterion for the admission of fresh evidence was not met.

[44]            As for the fourth criterion, that the new evidence might be expected to have affected the result or to be practically conclusive of the issue of unjust dismissal, the proposed evidence was not that Mr. Lockhart would have been disqualified from re-instatement of delegation, but that subject to a full review of the file that would be a likely result. The caveat that the result would not flow automatically, but that a full review of the circumstances would be required, is a significant one.

[45]            Further, given that the whole thrust of the adjudicator's decision was that the MCF was not permitted to base its decision on the lack of delegation because of the failure of the NCFS to request re-instatement, and that what would likely have resulted from a request for re-instatement would have been an independent investigation of the allegations, the proposed evidence would not, in my view, be expected to have affected the adjudicator's decision. The proposed evidence indicated that there should be a full review of the circumstances.

[46]            Given that the evidence could have been adduced at the hearing and would not in any event likely have affected the result, I can find no reviewable error in the adjudicator's failure to allow the new evidence. As the adjudicator said in response to the request to re-open the hearing, the adjudicator had given the parties ample opportunity to present their evidence and to obtain legal advice on relevant issues.

(v) Can the decision be varied as Mr. Lockhart requests?

[47]            Mr. Lockhart seeks in lieu of the publication award a letter of recommendation from the NCFS, an order prohibiting the NCFS from discussing his employment or personal circumstances with any potential employer, and additional compensation to rectify his hurt and humiliation. If this Court is not prepared to so order, Mr. Lockhart asks that the matter be remitted to the adjudicator on these points.

[48]            There are fundamental difficulties with this position.

[49]            First, Mr. Lockhart initiated no application for judicial review to challenge the adjudicator's decision as to remedy. While the NCFS put in issue the validity of the publication order, once Mr. Lockhart decided that he no longer wished to exercise his option to require publication this issue became moot. The NCFS no longer puts this aspect of the decision in issue.

[50]            The adjudicator refused Mr. Lockhart's request for a letter of reference and did not award damages for hurt and humiliation. If Mr. Lockhart sought to review the decision on different grounds than those raised by the NCFS he should have commenced his own application. See: Larsson v. Canada, [1997] F C.J. No. 1044 (F.C.A.).

[51]            Second, with respect to the jurisdiction of this Court and its ability to vary the remedy awarded, damages are not available on applications for judicial review and subsection 18.1(3) of the Federal Court Act, R.S.C. 1985, c. F-7 does not permit the Court to exercise the jurisdiction given to an adjudicator under the Code.

[52]            There is therefore no basis for varying the award as sought.

[53]            It follows that the application for judicial review will be dismissed.

(vi) Costs

[54]            Costs normally follow the event and I am satisfied that Mr. Lockhart should have his costs of this application.

[55]            As to the scale of those costs, Mr. Lockhart seeks an award on a solicitor-client basis because otherwise he will be "out-of-pocket" in the sense that the amount of his recovery against the NCFS will be reduced on account of the money he was required to pay for legal fees in respect of this proceeding.

[56]            An award of costs on a solicitor-client basis is exceptional, and generally requires misconduct in the proceedings. No such misconduct exists.

[57]            The discretion to increase tariff amounts is not one to be exercised lightly. Having regard to the factors enumerated in Rule 400 of the Federal Court Rules, 1998, particularly the amount at issue, and considering Rule 407, Mr. Lockhart shall have his costs, if not agreed, taxed in accordance with the top end of Column III of the table to Tariff B to the Federal Court Rules, 1998.

ORDER

[58]            IT IS HEREBY ORDERED THAT:

1.          The application for judicial review is dismissed.

2.          The applicant shall pay to the respondent his costs of this proceeding, if not agreed, to be taxed in accordance with the top end of Column III of the table to Tariff B to the Federal Court Rules, 1998.

"Eleanor R. Dawson"

                                                                                                                                                    Judge