Frezza v. Lauzon, docket T-2291-97

Date: 19990127

Docket: T-2291-97

BETWEEN:

     JOHN FREZZA

     Applicant

AND:

     MTRE CLAUDE LAUZON

     AND

     CANADIAN PACIFIC RAILWAY

     AND

     ATTORNEY GENERAL OF CANADA

     Respondents

     REASONS FOR ORDER

ROULEAU, J.

[1]      This is an application pursuant to section 242 of the Canada Labour Code, R.S.C. 1985, c. L-2 and section 18.1 of the Federal Court Act, R.S.C. 1985, c. F-7, for an order setting aside the decision of Adjudicator Claude Lauzon dated July 24, 1997, who upheld the decision of the respondent CP Railway to dismiss the applicant.

Facts gleaned from the Adjudicator's decision as well as affidavits filed in support

[2]      John Frezza was employed by the Canadian Pacific Railway (CP Railway) from 1969 to January 19, 1995. On October 1, 1990, he was dismissed due to a failure to correct errors in performance. Mr. Frezza appealed. Adjudicator Daniel Lavery found on July 15, 1993 that the applicant had an attitude problem but that it did not warrant a dismissal. Instead, he imposed a three months suspension without pay. The applicant returned to work in September 1993.

[3]      In June 1994, the applicant was employed under Mr. Barry Fielding in Administrative Services as a Technical and Data Support Specialist. He was responsible for increasing the efficiency of Administrative Services personnel by investigating opportunities for computerization of administrative systems. He worked at the Montreal office but his job required that he occasionally travel to Toronto.

[4]      On the morning of December 9, 1994, the applicant claims that he asked Diane Renzo for a newspaper. Ms. Renzo allegedly gave him a copy of the Gazette, which belonged to Michel Bertrand, the Superintendent for the Quebec Region. After he read the paper, the applicant returned it to Mr. Bertrand's office. Raymond Sabourin, the Assistant Manager of Administrative Services, observed the applicant going into the office of Mr. Bertrand and entering a password in the computer. Later, Mr. Sabourin and Michel Bertrand confronted the applicant with this observation. The applicant denied having tampered with Mr. Bertrand's computer. CP Railway suspended the applicant for investigation purposes.

[5]      On December 15, the applicant met with Mr. Fielding and Mr. Delaney, then Director of Human Resources, for a Q & A session. They informed the applicant that a computer investigation revealed that a password was entered on Mr. Bertrand's computer at 12:31 on December 9, and that beginning at 12:34, someone accessed Mr. Bertrand's files, as well as confidential files of other managers, from the applicant's computer. The applicant denied any involvement. However, during a break, he allegedly apologized to Mr. Delaney for what he had done and stated that he was worried about possible criminal prosecution. He also indicated that he had done it because of curiosity. The applicant now denies that he made this admission.

[6]      On December 16, 1994, CP police executed a search warrant in the applicant's home. They took his computer hardware and software and made a copy of his hard disk.

[7]      On January 19, 1995, the applicant met with Mr. Fielding, who gave him a letter of dismissal for a security violation involving an unauthorized and illegal use of the CP Railway Merlin system. During the meeting, the applicant admitted that he had accessed the files. He explained that he wanted to find out whether someone was trying to build another dismissal case against him. Mr. Fielding reported the applicant's admission in a memo dated January 22, 1995. The applicant now denies making this admission.

[8]      The applicant filed a complaint of unjust dismissal on February 10. Mr. Claude Lauzon was appointed as Adjudicator to hear the complaint. The arbitration hearing started on November 12, 1996. The applicant represented himself. After two days of hearings, the applicant wished to hire counsel. The hearing resumed on April 24, 1997 and continued on April 25, June 9, June 16 and June 17. It lasted seven days in total.

[9]      At the hearing, Mr. Raymond Sabourin testified that he saw the applicant enter a shared access password onto the password maintenance screen of Michel Bertrand's computer.

[10]      Mr. Michel Bertrand testified that the applicant was not authorized to enter his office or carry out any functions on his computer.

[11]      Mr. Dominic Ricchio, a computer specialist testifying for the respondent, introduced as evidence before the Adjudicator, with appropriate explanations, a number of exhibits consisting of computer logs, showing the computer activity of the applicant and Mr. Bertrand's computers. These documents showed:

(a) that shared access password "HHELP" was programmed into Mr. Bertrand's computer at the time the applicant was seen in the former's office;

(b) that in the following minutes, the applicant's computer showed access to Mr. Bertrand's files as well as successful or attempted access to files of other employees or managers;

(c) that the logs were accurate and that they had not been tampered with.

[12]      In rebuttal, Mr. Ricchio introduced computer logs demonstrating the applicant's computer activity during the morning of December 9, 1994. It revealed that the applicant had gained access to management files through shared passwords, including the password "HHELP". This rebuttal evidence was necessary to contradict the applicant's own testimony as to his activities on that morning.

[13]      The affidavit of Michael Hallam gives further details as to the extent of the wrongdoing: During the same period, someone accessed or attempted to access, by use of the applicant's computer, the files of Barry Fielding, Raymond Sabourin, as well as the files of Mr. Warner and Mrs. Linda Smith, who are supervisory colleagues of the applicant. In addition to Mr. Bertrand, a shared access password had been programmed on the computers of Mr. Sabourin, Mr. Fielding, Mr. Warner and Mr. Zaparaniuk, as well as Ms. Raphael and Ms. Smith, without their authorization or knowledge. Mr. Fielding, Mr. Zaparaniuk and Ms. Raphael work in Toronto. At the time where the password was programmed in their computer, the applicant had been in Toronto.

[14]      Mr. Barry Fielding testified as to the applicant's employment duties and his relationship with his co-workers; further, as to his own involvement with the applicant's dismissal, including the Q & A session. In this context, Mr. Fielding introduced in evidence memos sent to him by Ms. Raphael, Ms. Smith, Mr. Zaparaniuk and Mr. Warner. He added that the applicant admitted on January 19, 1995 that he had wrongly accessed management files. Finally, Mr. Fielding explained the reason for the dismissal.

[15]      Mr. Paul Delaney testified about the applicant's recent work history, his relationship with other employees, the considerations which led to his dismissal and the applicant's admission made to him during the Q & A session.

[16]      The applicant testified on his own behalf and denied the events.

[17]      Mr. Tom Traynor, an employee with the computer security department, testified that security violations occurred on the applicant's computer in June, August and September 1994. However, such violations were inconclusive as to their meaning or cause, and they could have been attributed to the applicant's forgetting his own password. Therefore, no relationship could be established between these password violations and the actions for which the applicant was dismissed.

[18]      Mr. Lauzon dismissed the complaint in a decision written in French dated July 24, 1997. The applicant later received an English translation.

[19]      Mr. Lauzon first stated that the tribunal must only consider the reasons for dismissal contained in the letter of January 19, 1995. He found that Mr. Frezza had been observed entering a password on Mr. Bertrand's computer. Several managers reported that similar passwords were entered in their computers. The evidence revealed that someone used these passwords to access confidential files from the applicant's computer.

[20]      Mr. Lauzon found that Mr. Sabourin had no reason to lie: there was no animosity between the two men. The technical evidence corroborated Mr. Sabourin's statement. It was very improbable that someone else used Mr. Frezza's computer to access the confidential files, since all computers are protected by personal passwords. There was no evidence that the technical evidence was falsified in any way. As well, the Adjudicator found that Mr. Frezza admitted his fault to Mr. Delaney and Mr. Fielding. It was improbable that they had misinterpreted his words, and had no reason to lie about these events. Mr. Lauzon therefore concluded that the applicant committed the offence.

[21]      The Adjudicator then considered whether he should vary the penalty. He noted that the applicant had planned the offence and accessed the files on several occasions. He knew his actions were illegal. Despite the overwhelming evidence against him, the applicant always denied any involvement. The Adjudicator could not order the employer to keep within his ranks an employee that had violated its trust in such a way. Therefore, he concluded that the dismissal was justified.

[22]      The questions I am faced with are the following:

1. Can transcripts of a separate criminal trial be admitted into evidence before the reviewing Judge?

2. Did the Adjudicator show bias or grounds for reasonable apprehension thereof in his treatment of the evidence or did he fail to observe the requirements of natural justice?

3. Did the Adjudicator make a patently unreasonable decision based on the evidence presented to him?

[23]      The applicant faced criminal charges in relation to these events. The criminal trial took place before the conclusion of the arbitration hearing. The applicant seeks to introduce the transcripts of the criminal trial into this application. He submits that those testimonies were relevant to the arbitration, including the testimonies of Ms. St. James and Ms. Cortina, who were not heard by the Adjudicator. This submission was rejected at the opening of the hearing. In my view, it did not fall upon the Adjudicator to require that the criminal transcripts be introduced at the hearing. It was up to the applicant. He was represented by counsel. All he had to do is produce them, subject to the Adjudicator's finding on their admissibility. If he required Ms. Cortina and Ms. St. James to testify at the arbitration hearing, he could have called them as witnesses. In any case, the admissibility of the criminal transcripts was doubtful at best. Testimony in former proceedings is admissible when the issues and the parties in the two proceedings are substantially the same, and the adversary was given the opportunity to cross-examine¹. The issues before the Judge in the criminal proceeding are not similar to those before the Adjudicator. The former was concerned with one issue, that of illegal use of Mr. Bertrand's computer, while the latter was concerned with several security breaches. The burden of proof was different. CP Railway was not a party to the criminal proceedings, nor did it have the right to cross-examine witnesses.

[24]      The applicant claims that the Adjudicator showed bias or otherwise violated the principles of natural justice by writing his decision in French, despite knowing that the applicant only understood English. This submission was also rejected at the hearing. The applicable sections of the Official Languages Act, R.S.CC. 1985 (4th Supp.), c. 31 are the following:

Definition of "federal court"

3(2) In this section and in Parts II and III, "federal court" means any court, tribunal or other body that carries out adjudicative functions and is established by or pursuant to an Act of Parliament.

Part III - Administration of justice

14. English and French are the official languages of the federal courts, and either of those languages may be used by any person in, or in any pleading in or process issuing from, any federal court.

20(4) No decision, order or judgment issued by a federal court is invalid by reason only that it was not made or issued in both official languages.

[25]      In Lomer Pilote v. Corporation de l'hôpital Bellechasse de Montréal (1994) R.J.Q. 2431 at 2436 (C.A.), it was stated:

... la jurisprudence me paraît très clair à l'effet que c'est au juge que (l'article 133 de la Loi constitutionnelle de 1867) confère le droit constitutionnel d'utiliser à son choix la langue française ou anglaise dans la rédaction de son jugement, alors que cette même disposition n'impose aucune obligation à l'État de fournir une traduction authentifiée.

[26]      In my view, the fact that the Adjudicator wrote his judgment in French does not show he was biased, nor that he violated the principles of natural justice. It is allowed by statute and by the case law. In any event, the applicant received the English translation of the judgment.

[27]      The applicant complains that the Adjudicator allowed into evidence memoranda written by Ms. Raphael, Mr. Zaparaniuk, Mr. Warner and Ms. Smith without requiring that they be present for cross-examination. The applicant did not object to the production into evidence of these documents. Besides being untimely, the applicant's claim is frivolous. These people were never called by any party as witnesses, nor has the applicant requested to cross-examine them during the hearing.

[28]      The applicant further complains that the Adjudicator did not let him cross-examine Mr. Sabourin in relation to a letter marked Exhibit A-1, document 11. In his affidavit, Michael Hallam states that Mr. Sabourin was called twice as a witness, first on November 12, 1996 by the respondent, and then on April 25, 1997 by the applicant. On November 12, the applicant was allowed to cross-examine Mr. Sabourin at length. This submission is without merit.

[29]      According to the applicant, the Adjudicator erred by failing to explore his alibi and the possibility of a mistaken identity. He raised that Ms. Renzo had never been called to testify at the time of the investigation or before the Adjudicator. If the applicant wanted Ms. Renzo to testify, he should have called her as a witness.

[30]      The Adjudicator found that the applicant had accessed files without authorization from his computer on December 9, 1994 from 10:43 to 12:31, based on Mr. Ricchio's testimony and computer logs marked Exhibit 56. The applicant feels that the use of this evidence was inappropriate, since he was not advised of these reproaches in the Q & A session or in the letter of dismissal. He also submits that the Adjudicator did not give him an opportunity to take proper notice of this evidence and instruct counsel with regard to the cross-examination of Mr. Ricchio.

[31]      It appears from the record that the production of this evidence was necessary to rebut the applicant's testimony as to his activities on the morning of December 9, 1994. The applicant was provided full opportunity to cross-examine Mr. Ricchio and there is no indication that he objected to the production of this evidence at the hearing before the Adjudicator.

[32]      Adjudicator Lauzon found that the applicant had formally been warned against unauthorized access, referring to a letter from D.W. Chapman dated april 16, 1990. The applicant submits that, in doing so, Adjudicator Lauzon totally ignored the import of Adjudicator Lavery's decision. Mr. Lavery had found in 1990 that D.W. Chapman did not like the applicant and lacked objectivity in his assessment of his performance. As a result, he had determined that the allegations contained in the letter were unproven.

[33]      Adjudicator Lauzon did not exceed his jurisdiction. The letter was not looked upon as evidence of a prior offence, but rather as evidence that the applicant knew his activities were wrong. The letter was not central to the decision. On the subject of prior offences, Adjudicator Lauzon correctly stated that the applicant was given a three months' suspension for an attitude problem.

[34]      The Adjudicator also found that the applicant admitted his guilt to Mr. Delaney and Mr. Fielding. The applicant now alleges that those admissions concerned the events of 1990 and in accepting this evidence, the Adjudicator was attempting to relitigate the earlier arbitration. In support of this contention, the applicant refers to the Lavery decision, in which it was found that some of his colleagues did not like him.

[35]      In my view, this argument is totally unfounded. Particularly, Mr. Fielding's notes on the applicant's admission make it clear that the admission refers to the events of 1994.

[36]      The applicant submits that the Adjudicator improperly interpreted the Morgan case (January 27, 1989) (C.R.O.A.) In that case, a Canadian Railway employee was dismissed for willful breach of trust by accessing confidential company files without authority. The employer only proved one offence. The Adjudicator annulled the dismissal and imposed a two weeks' suspension. In doing so, he had considered Ms. Morgan's good record and the fact that she did not know at the time that she was doing something wrong. She had not breached an explicit company policy. Ms. Morgan had shown remorse.

[37]      The Adjudicator found, correctly in my view, that the present matter bears no resemblance to the Morgan case. Mr. Frezza committed several breaches willfully and knowledgeably.

[38]      It is well established that the Court should allow administrative tribunals to perform the task conferred upon them by their enabling legislation and should exercise self-restraint when asked to review their decisions. This is particularly true where the enabling legislation contains a strong privative clause, such as the one found in section 243 of the Canada Labour Code. That provision reads as follows:

243(1) Every order of an Adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court. (2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition or quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator made under section 242.

243(1) Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaire. (2) Il n'est admis aucun recours ou décision judiciaire - notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto - visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242.

[39]      As I have held in Kelowna Flightcraft Air Charter Ltd. v. Kmet (1998) F.C.J. No. 740:

A privative clause of this nature means that a decision of an Adjudicator is not subject to judicial review unless it is so patently unreasonable that it cannot be rationally supported by its enabling legislation and justice requires the intervention of the Court.

(...)

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.

[40]      After having carefully read the decision of the Adjudicator and hearing submissions from both parties, I am unable to conclude that such an error exists in the present case. Mr. Lauzon gave consideration to the evidence produced by both sides and then rendered his decision as he was required under the legislation. I can find no procedural flaw, nor fault with his treatment of the evidence and his conclusion. He made a finding that was entirely within his jurisdiction and which was supported by the evidence before him. Accordingly, there is no basis which would warrant the Court"s intervention.

[41]      The application is dismissed.

                                     JUDGE

OTTAWA, Ontario

January 27, 1999

__________________

¹ Walkerton (Town) v. Erdman (1894), 23 S.C.R. 352.