Date: 20100129
Docket: T-622-09
Citation: 2010 FC 105
Ottawa, Ontario, January 29, 2010
PRESENT: The Honourable Mr. Justice Martineau
BETWEEN:
CANADIAN IMPERIAL
BANK OF COMMERCE
Applicant
and
NELLIE TORRE
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
The
applicant seeks judicial review of an interlocutory decision dated
March 18, 2009, by Gilles Brunet, adjudicator (the tribunal), to the
effect that he had jurisdiction to hear a complaint for unjust dismissal filed
by the respondent under section 240 of the Canada Labour Code, R.S.C.
1985, c. L-2 (the Code).
[2]
The
applicant, the Canadian Imperial Bank of Commerce (the Bank) is a federal
enterprise. On April 30, 2007, the respondent’s immediate supervisor,
Daniel Poudrier, Associate Vice-resident, dismissed the respondent, Nellie
Torre, for having breached the Bank’s confidentiality rules.
[3]
Under
Part III, Division XIV of the Code (sections 240 to 246), an
employee who is not a member of a group of employees subject to a collective
agreement, who works in a federal work, undertaking or business and who
considers herself to have been subject to an unjust dismissal may file a
complaint against the employer if that employee has twelve consecutive months
of service (section 240). However, under subsection 167(3) an
employee who is a “manager” is excluded from this recourse.
[4]
Submitting
that the respondent was a “manager”, the applicant requested that the
adjudicator dismiss the complaint for lack of jurisdiction. For now it is sufficient
to recall that when she was dismissed the respondent held a position as manager
of the Langelier Banking Centre (province of Quebec).
In fact, five employees, including three customer service representatives and
two sales representatives were supervised by the respondent.
[5]
For the
following reasons, the applicant did not satisfy this Court that the
adjudicator had committed a reviewable error.
I – STANDARD OF REVIEW
[6]
In
practice, the judgment of the Supreme Court of Canada in Dunsmuir v. New
Brunswick, 2008 SCC 9 at paragraph 49 (Dunsmuir) did not
substantially change the applicable standard of review for decisions made by an
adjudicator appointed under the Code (Deschênes v. Canadian Imperial Bank of
Commerce, 2009 FC 799 at paragraphs 12 and 13).
[7]
In fact,
the privative clauses at sections 243(2) and 251.12(7) of the Code for
unjust dismissals and monetary claims, and the purpose and expertise of the
adjudicator or referee continue to command a very high degree of deference (Alberta
Union of Provincial Employees v. Lethbridge Community College, 2004 SCC 28
at paragraph 48; Bitton v. HSBC Bank of Canada, 2006 FC 1347 at
paragraph 29).
[8]
Overall,
for questions of fact, this Court will intervene only if the tribunal based its
decision on an erroneous finding of fact that was made in a perverse or
capricious manner, or if the decision was made without regard for the material
before it: paragraph 18.1(4)(d) of the Federal Courts Act,
R.S.C. 1985, c. F-7; Canada (Citizenship and Immigration) v. Khosa,
2009 SCC 12 at paragraph 46.
[9]
When
considered separately, an adjudicator’s legal interpretation of the term
“manager” used in subsection 167(3) of the Code, may give rise to a
question of law reviewable according to the standard of correctness. However,
in practice, the determination made by the same adjudicator following an
exhaustive analysis of the evidence in the record that a person does or does
not hold a position of manager must be dealt with as a question of mixed law
and fact.
[10]
In
general, an issue of mixed law and fact is reviewed according to the same
standard that applies to questions of fact, which are usually reviewed on the
basis of reasonableness (Democracy Watch v. Campbell, 2009 FCA 79 at
paragraphs 21 and 22).
[11]
In Dunsmuir,
above, at paragraph 49, Justices Bastarache and LeBel emphasize the need
to review the impugned decision on the basis of the conclusions of fact and the
overall reasoning of the tribunal:
…
Deference in the context of the
reasonableness standard therefore implies that courts will give due
consideration to the determinations of decision makers. As Mullan
explains, a policy of deference “recognizes the reality that, in many
instances, those working day to day in the implementation of frequently complex
administrative schemes have or will develop a considerable degree of expertise
or field sensitivity to the imperatives and nuances of the legislative regime”:
D. J. Mullan, “Establishing the Standard of Review: The Struggle for
Complexity?” (2004), 17 C.J.A.L.P. 59, at p. 93. In short,
deference requires respect for the legislative choices to leave some matters in
the hands of administrative decision makers, for the processes and
determinations that draw on particular expertise and experiences, and for the
different roles of the courts and administrative bodies within the Canadian
constitutional system.
…
[12]
A review
by the tribunal of the tasks performed by an employee is strictly an exercise
of fact. Every case in which the issue of an employee’s management responsibilities
is raised is a particular case. In the case of a dispute, particularly when
issues of credibility are raised by the parties, the tribunal’s findings are
entitled to considerable deference. In the present case, despite the attempt by
counsel for the applicant to recast this as a “jurisdictional” issue,
considering the specialized expertise of the adjudicator’s functions, there is
no particular reason to undertake a de novo examination of the evidence
and to review the reasoning and general conclusions of the tribunal according
to the standard of correctness rather than the standard of reasonableness.
II – LEGAL CONCEPT OF MANAGER
[13]
Considering
that the word “manager” used in subsection 167(3) of the Code is not
defined by Parliament, case law has remedied this shortcoming by enumerating a
certain number of relevant criteria or factors to be considered to determine in
which cases an employee holds or does not hold a position of manager.
[14]
In the
impugned decision, the adjudicator stated that there were two [translation] “lines of thought” in
case law, one to the effect that the word “manager” must be broadly interpreted
and the other narrowly interpreted. This finding is not determinative, however,
and entails no consequences because the adjudicator ruled that [translation] “the second school of
thought must be followed, that is to say a narrow interpretation of the concept
of manager . . .”
[15]
The
applicant conceded that the exclusion in subsection 167(3) of the Code
must be [translation] “restrictively
interpreted.” The Federal Court of Appeal has noted on several occasions that
the word “manager” in subsection 167(3) had to have a narrow meaning
because this provision “subtracts employees who are ‘managers’ from the body of
persons enjoying that right” (Lee-Shanok v. Banque Nazionale del
Lavoro of Canada, [1987] 3 F.C. 578 at paragraph 11 (F.C.A.); Attorney
General of Canada v. Gauthier, [1980] 2 F.C. 393
(F.C.A.) and Avalon Aviation Ltd. v. Canada (Canada Labour Code),
[1981] F.C.J. No. 111 (QL)).
[16]
As for the
relevant criteria to determine if a person is or is not a “manager”, in Msuya
v. Sundance Balloons International Ltd., 2006 FC 321 at paragraph 23 (Msuya),
the Federal Court ruled that the approach used by adjudicator Bertrand in Isaac
v. Listuguj Mi'gmaq First Nation, [2004] C.L.A.D. No. 287 (Isaac),
was the “correct approach.” On this point, my colleague Justice Barnes stated
that: “The fundamental test is whether that person had significant autonomy,
discretion, and authority in the conduct of the business of the employer” (Msuya,
paragraph 23). I agree with him.
[17]
In Isaac,
as well as in arbitration case law referred to by the adjudicator in the
impugned decision, there are a number of criteria, the usefulness of which the
applicant has not seriously challenged:
·
the nature
of the work performed by the said “manager” is more important than the title of
the position;
·
the
“manager” must perform administrative rather than operational duties;
·
a
“manager” within the meaning of subsection 167(3) of the Act can include
persons at the upper or lower end of the management chain, depending on the
degree of independence the manager may have and the importance of the
management functions in question;
·
the
manager must be in a position of control. A clear distinction is to be made
between a “supervisor” and a “manager”;
·
a person
is not a “manager” if he is merely a conduit between the employees and a higher
body who is the actual decision-maker or makes recommendations to a higher body
that approves or disapproves his recommendations.
[18]
In this
case, the adjudicator was warranted in examining the tasks performed by the
respondent to determine whether
·
she had
the authority to work and make administrative decisions affecting the company
independently from her superiors;
·
the
respondent’s main responsibility was to direct others, which included the power
to hire and supervise employees;
·
the
respondent had the power to discipline and dismiss employees (in practice,
whether the respondent had or had not exercised such powers of discipline and
dismissal was also a relevant factor);
·
the
decisions made by the respondent concerning significant issues in staffing and
general company policies had to be approved before being enforceable.
[19]
Of course,
the special nature of the employer’s banking activities, the size of the
organization and the scope of the respondent’s authority where she performed
her duties (in this case a banking centre), are also important contextual
factors. In fact, as has been underlined in abundant case law of this Court or
adjudicators, namely Canadian Imperial Bank of
Commerce v. Bateman, [1991] 3 F.C.
586 at paragraph 32 (Trial Division) (Bateman), which
is cited in support by the applicant, it is not necessary that the independence
of the person filing a complaint for dismissal be “. . . absolute in order to
be considered a ‘manager’, even in the ‘narrow’ sense of
subsection 167(3).”
III – REASONABLENESS OF
THE IMPUGNED DECISION
[20]
According
to Dunsmuir, above, the reasonableness of the adjudicator’s decision to
the effect that the respondent is not a “manager” within the meaning of
subsection 167(3) of the Code basically concerns the existence of
justification, transparency and intelligibility within the decision-making
process, as well as whether the decision falls within a range of possible,
acceptable outcomes which are defensible in respect of the facts and law (Dunsmuir,
above at paragraph 47; Khosa, above at paragraph 59).
[21]
The
evidence submitted by the parties was explained in detail by the adjudicator in
the impugned decision. The applicant did not challenge the first part of the
impugned decision in any material way. In fact, the adjudicator is in a better
position than this Court is to assess the credibility of the witnesses and to
weigh the evidence submitted by the parties. In this case, the conclusions
reached by the adjudicator appear to me to be reasonable and are defensible in
the circumstances according to the evidence in the record.
[22]
More
specifically, according to the evidence in the record, the respondent’s main
tasks were the following:
·
consistently
offering a superior quality of service within the Banking Centre to meet or
exceed customers’ expectations;
·
attaining
the Banking Centre’s corporate objectives;
·
directing,
supervising and ensuring the professional development of the Banking Centre’s
employees to create a positive experience for customers and develop the team’s
capacities;
·
maximizing
the Banking Centre’s operational capacity;
·
managing
risks and ensuring that policies, procedures and controls are established to
reduce the risk of fraud, counterfeiting and unrecoverable losses;
·
ensuring
compliance with training on regulations and if necessary, ensuring that
programs and policies are uniformly applied throughout the company.
[23]
In
addition, the respondent’s tasks included
·
conducting
a semi-annual assessment of the employees under her supervision;
·
interviewing
and hiring candidates following a first interview completed by the Bank’s human
resources department;
·
training customer
service representatives;
·
disciplining
employees pursuant to the Bank’s directives and procedures;
·
establishing
shifts for employees in compliance with the ratio of the number of hours of
work per employee for the branch, which is already determined by the Bank;
·
managing
employees’ holidays.
[24]
According
to the evidence in the record, it is also clear that the respondent had to meet
the goals determined by the Bank for the Langelier Banking Centre. She had to
ensure that the employees under her supervision met their personal targets. As
far as the assessment of her performance and the accomplishment of the Banking
Centre’s objectives are concerned, including financial objectives, the
respondent was assessed by her immediate superior, Mr. Poudrier. In addition to her salary, the
respondent received a bonus in connection with her position as branch manager.
[25]
On the
other hand, two decisions made by the respondent, respectively concerning a
promotion and a dismissal, were cancelled by her superiors. The first example
concerned an employee who had been promoted from a position of customer service
representative to that of sales representative. Mr. Poudrier considered
that this employee’s performance was inadequate. Therefore, in spite of the
respondent’s opposition, Mr. Poudrier asked that the employee in question
be returned to his former position. The respondent subsequently wanted to hire
a person she knew but the human resources division refused.
[26]
The
adjudicator’s core reasoning for dismissing the Bank’s preliminary objection
and concluding that the respondent did not hold a position of “manager” is
found in paragraphs 241 to 256 of the impugned decision:
[translation]
…
[241] I consider that an interpretation
which allows the recourse under sections 240 et seq. of the Canada
Labour Code for employees holding a supervisory position rather than those
holding a management position must be made.
[242] In this case, Ms. Torre
certainly has administrative responsibilities, but these do not exceed supervisory
tasks, as explained in several decisions previously cited: Gil v. National
Bank of Canada, Ciminelli v. Bell
Canada, Monsieur T.L. v. The Bank,
Clarke v. Royal Bank of Canada and Shek v. Bank of Nova Scotia.
[243] Her work as manager of the Banking
Centre is also structured and restricted by the policies and directives issued
by the Bank’s higher authorities.
[244] For example, as far as hiring is
concerned, Ms. Torre hires persons who are referred to her by the Bank’s
personnel department. A first selection has already been made. She does not
decide on the number of employees she needs for her Banking Centre. This
decision is made at a higher level.
[245] As far as training is concerned,
she supervises the tellers’ training (customer service), while sales
representatives are trained outside the branch. Ms. Torre conducts
assessments of her employees, as any manager in a company would do, but it is
impossible to conclude from this sole fact that she holds a managerial position
within the meaning of subsection 167(3) of the Canada Labour Code.
[246] An employee’s assessment determines
the salary increase to which she is entitled, but Ms. Torre does not
determine the salary scale. This is done at a level higher than hers.
[247] The evidence as to whether
Ms. Torre has the authority to discipline and dismiss employees is not
conclusive. She never had to do so during her four (4) years as a manager.
[248] She underlined the fact, however,
that she had to comply with the policies and directives in the Bank’s
Guidelines in such cases.
[249] Mr. Poudrier affirmed that
Ms. Torre had the power to dismiss, but I am convinced that in an
organization such as the CIBC, a manager cannot dismiss without previously
consulting the Bank’s labour relations and human resources department.
[250] In fact, it must be noted that all
of the letters signed by Ms. Torre were written by other persons at the
Bank, even the least significant letters such as to notify employees under her
supervision of their work schedule.
[251] As far as holidays are concerned,
she is just a go-between forwarding to her superior the choices of holidays
established by the employees among themselves. She never had to intervene on
this point.
[252] Concerning the unjustified absences
of an employee, Ms. Torre affirmed that she never had to intervene in the
past but according to her, the directives specify that she has to fill out a
register of absence and advise her Associate Vice-President. Mr. Poudrier
affirmed the contrary.
[253] As the Bank’s Handbook on Policy
and Directives has not been filed, the evidence is not conclusive on this
point.
[254] The complainant did not establish
the branch’s budget, as this was also done at a higher level.
[255] She has no decision-making power
regarding the budget of her Banking Centre. The budget is given to her and her
objective is obviously to exceed expectations and make the maximum profit at
her Banking Centre.
[256] Finally, she does not have the
powers of action, independence and discretion that distinguish an employee
governed under the Canada Labour Code (Part III, Division XIV)
from a manager not covered by the application of the Canada Labour Code.
[27]
The
reasoning and the conclusions of fact reached by the adjudicator were based on
his assessment of all the evidence, which led him to conclude that the
respondent was not a “manager”. In my opinion, the adjudicator’s conclusion is
based on the evidence in the record and is reasonable in the circumstances. The
adjudicator initially took pains to cite various excerpts from adjudication
decisions containing many principles previously enumerated by the Court. In
this case, nothing shows that the adjudicator’s general approach is
inconsistent with these principles.
[28]
Finally,
in this case, after reviewing the evidence, the adjudicator could reasonably
conclude that the respondent held a “supervisory” position rather than a
“managerial” position at the Bank so that the criticisms made today by the
applicant seem to me to be unwarranted. The adjudicator’s decision must be read
as a whole. Considering the applicable standard of review in this case, it is
not appropriate to conduct a micro-analysis of each of the adjudicator’s
conclusions.
[29]
In this
case, it is obvious that under the pretence of invoking alleged errors of law
or the infringement of principles of procedural fairness, the applicant is in
reality challenging the overall finding of fact reached by the adjudicator. For
example, the applicant criticizes the adjudicator for having given too much importance
to the fact that in one case the respondent’s recommendation for hiring had not
been followed. As far as the respondent’s disciplinary power was concerned, the
applicant submitted that it existed even if the respondent did not have to
exercise it in practice. On the other hand, the fact that the respondent was
required to respect the Bank’s directives and procedures or that she was
obliged to consult the labour relations and human resources department
beforehand is understandable in a large organization like a bank. In addition,
according to the applicant, the fact that the respondent did not establish the
salary scales of the branch employees under her supervision was not material.
According to the applicant, the adjudicator should have given more importance
to the fact that the performance assessment of the employees of the Banking
Centre by the respondent could affect the bonuses paid by the employer. As may
be seen, the applicant simply disagrees with the adjudicator’s assessment of
the evidence in the record.
[30]
On the
other hand, an analysis of the impugned decision clearly shows that the
adjudicator considered the arguments submitted by the applicant. He merely did
not accept them. Contrary to the applicant’s allegation to the effect that the
adjudicator’s reasons are questionable, they are not perverse or made in a
capricious manner. The applicant submitted that there are many resemblances
between this case and this Court’s decision in Bateman, above. On the
other hand, even if that is the case, I do not consider that the adjudicator
required, like in Bateman, above, the existence of “quasi-absolute”
independence.
[31]
Without
expressing any opinion on this point, the conclusion to the effect that the
respondent was a “manager” was undoubtedly a possible outcome (Fox v. Bank
of Nova Scotia, [2002] C.L.A.D. No. 552; Normandeau and National Bank of
Canada, [1996] C.L.A.D. No. 712; Rollingson v. Royal Bank of Canada,
[2003] C.L.A.D. No. 223). However, this conclusion was certainly not the only
one within the “range of possible acceptable outcomes
which are defensible in respect of the facts and law”, as other
adjudicators in the past may have dismissed objections similar to the ones made
by the applicant (Shek and Bank of Nova Scotia, [1996] C.L.A.D. No. 126).
[32]
In any
event, the issue is not to determine whether there are more adjudicators who
consider that a manager of a Banking Centre is a “manager” within the meaning
of subsection 167(3) of the Code. At the risk of repeating myself, each
case must be decided on its own facts. Even if I must repeat myself, in fact,
each case is particular. In this case, the adjudicator could reasonably
conclude on the basis of the evidence in the record that the respondent had
little independence in practice; she would comply with the Bank’s directives
concerning discipline, hiring, dismissal, preparing schedules and establishing
salaries so that the branch’s objectives were met by the staff in office.
Accordingly, the respondent’s role was much more similar to that of a supervisor
than that of a “manager.” The adjudicator therefore has jurisdiction to hear
the respondent’s complaint.
IV – CONCLUSION
[33]
For the
above reasons, the application for judicial review must be dismissed, with
costs, considering the result.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that the application for judicial
review be dismissed with costs.
“Luc Martineau”
Certified
true translation
Francie
Gow, BCL, LLB
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