Date:
20121031
Docket:
T-1516-11
Citation:
2012 FC 1276
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario,
October 31, 2012
PRESENT: The
Honourable Mr. Justice de Montigny
BETWEEN:
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DÉMÉNAGEMENT
RIMOUSKI INC.
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Applicant
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and
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PIERRE LAVOIE
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
[1]
This
application for judicial review filed by Déménagement Rimouski Inc. (the
applicant) seeks to set aside the decision dated August 17, 2011, of
adjudicator Jean-Paul Boily following a complaint of unjust dismissal submitted
by Pierre Lavoie (the respondent) under Division XIV of Part III of the Canada
Labour Code, RSC 1985, c L-2 (Code). In his decision, the
adjudicator allowed the respondent’s complaint and awarded him $29,741.89 for lost
wages. For the reasons that follow, I am of the view that the application for
judicial review must be dismissed.
I. Facts
[2]
The
parties disagree about the facts giving rise to this proceeding.
[3]
The
applicant stated that on June 14, 2010, the respondent was employed as a
dispatcher. That day, Raymonde Grenier, Vice-President and General Manager of
Déménagement Rimouski Inc., apparently found out that the respondent had to
miss work to attend a medical appointment. She called the respondent into her
office to clarify the situation regarding this medical appointment. During this
meeting, the respondent told her that he could no longer work as a dispatcher
because of health issues. Ms. Grenier claimed that she offered him the
possibility of returning to his former position of driver-mover, which he had
held from 1993 to 2007. Upon returning from his medical appointment, the
respondent handed her a medical note on which the following was written: [Translation] “medical leave required
for an indefinite period”. The respondent went on leave that same day.
[4]
The
applicant alleged giving the respondent a record of employment for sick leave
on June 30, 2010, and having contacted him a few weeks later to obtain
clarifications with respect to his medical situation. However, on July 21,
2010, the applicant allegedly received confirmation by e‑mail that the
respondent had been working at another company since June 28, 2010. The
parties agreed to meet the following day, but the respondent never showed up.
Consequently, on August 3, 2010, the applicant sent the respondent a
letter asking him to return to work on August 6, 2010. On that day, the
respondent did not show up for work, but instead sent a medical note dated June 30,
2010, stating that he could gradually return to the workforce, but in a
different work environment than Déménagement Rimouski. Concluding that the
respondent had voluntarily left his employment, the applicant sent him a final
record of termination of employment on August 18, 2010.
[5]
The
respondent provided a completely different version of the facts. He claims that
on June 2, 2010, Ms. Grenier told him that he could resign if he was incapable
of doing his work and that she did not care. He further alleged that he had
noticed that Ms. Grenier’s behaviour towards him had recently become increasingly
authoritarian and disrespectful and that she seemed determined to fire him.
This work environment was a source of stress and anxiety, which led him to make
an appointment with a doctor.
[6]
On
June 11, 2010, the respondent purportedly advised the applicant, through
Julie Lachance, that he would have to miss work on June 14, 2010, to
undergo a medical examination. On June 14, 2010, just before his medical
appointment, Ms. Grenier told the respondent that the dispatcher position
he used to hold was going to be eliminated. Following his doctor’s appointment,
the respondent confirmed that he gave the doctor’s note to Ms. Grenier and
took leave that same day.
[7]
On
June 15, 2010, Ms. Grenier apparently asked the respondent to return
the service vehicle and the keys to the office and informed him that the
company would no longer pay for his cell phone. At the same time, Ms. Grenier
also told him that he was no longer welcome at Déménagement Rimouski. The
respondent inferred from all of this that he had been dismissed and that was
why he started working at Béton Provincial as a cement truck operator.
[8]
Ms. Grenier
later reportedly asked him to meet with her at his convenience in July 2010.
The respondent stated that he contacted her a number of times, without success.
On August 4, 2010, he received a letter from a bailiff ordering him to
return to his employment with the applicant on August 6, 2010. However,
after having noticed that the applicant had posted an offer of employment for
his former position, the respondent felt that the applicant had no intention of
rehiring him as dispatcher.
[9]
Thus,
on September 10, 2010, the respondent filed a complaint with Human
Resources and Skills Development Canada (HRSDC) alleging wrongful dismissal. On
December 13, 2010, investigator Maryline Fortier of HRSDC informed the
respondent that his complaint had not been resolved within a reasonable period
of time and that he could submit it to arbitration. On July 19, 2011, the
Minister of Labour appointed adjudicator Jean-Paul Boily to hear the respondent’s
complaint.
II. Impugned decision
[10]
The
adjudicator first examined the employer’s preliminary objection that he lacked
jurisdiction because the respondent had not been dismissed but had instead
resigned from his employment. Referring to Agavni Ter-Martirosian c Les
contrôles d’avant-garde SCC, 2011 QCCRT 0274 (available on Quicklaw), the
adjudicator noted that there must be a clear intention to resign. If there is
any ambiguity, the evidence must show specific facts that attest to an intention
to resign. However, in cases where there is ambiguity, the doctrine and case
law generally refuse to infer that an employee intended to resign.
[11]
In
this regard, the adjudicator distinguished the present matter from Stritzel
v Anglo Canadian Shipping Co, 11 CCEL (2d) 175, [1995] CLAD No 457, in
which the employer had dismissed the employee after a number of concrete acts
of resignation on the employee’s part. In this case, the evidence shows that it
was the employer who sought to terminate the employment contract:
•
On
June 14, 2010, the applicant offered to terminate the employment contract with
the respondent and even provided him with his vacation pay;
•
The
applicant ceased paying for the respondent’s cell phone;
•
The
applicant offered the respondent a job as a truck driver, thereby indicating
that the services for which he had been hired were no longer required.
[12]
In
short, the respondent could reasonably infer that he had been dismissed.
[13]
Next,
the adjudicator sought to determine whether the respondent’s dismissal was
warranted. The parties had signed an employment contract effective until
January 1, 2012. Under the terms of this contract, the respondent could
not be dismissed without just and sufficient cause. According to the
adjudicator, the applicant never provided any evidence of wrongdoing by the
respondent while he was working. In addition, the applicant chose to interpret
the respondent’s conduct as a resignation. On August 3, 2010, the employer
even advertised the respondent’s position to further confirm his dismissal.
[14]
In
the absence of rebuttal expert evidence, the adjudicator also set aside the
interpretation provided by counsel for the applicant of the medical reports
submitted by the respondent that the applicant could have worked in another
work environment within the employer’s company. Instead, the adjudicator
accepted the evidence of Mr. Dionne, the respondent’s former supervisor,
to whom Ms. Grenier allegedly said that the respondent was no longer
welcome at Déménagement Rimouski.
[15]
Finally,
the adjudicator refused to reserve jurisdiction on the quantum of damages. The
adjudicator acknowledged that the respondent mitigated his damages by taking
another job on June 28, 2010, and subtracted the remuneration received
from the respondent’s compensation accordingly. Therefore, the adjudicator
awarded him compensation for wages of $8,941.80 for 2010 and
$20,800.00 for 2011, totalling $29,741.80. However, the adjudicator
refused to award the respondent the other benefits provided under the
employment contract, i.e. kilometrage and the employer’s contribution to his
RRSP.
III. Issues
[16]
This
application for judicial review raises the following issues:
A)
Did the adjudicator err in rejecting the applicant’s preliminary objection as
to its jurisdiction?
B) Did
the adjudicator render an unreasonable decision in finding that the respondent
had been unjustly dismissed?
C)
Did the adjudicator breach the rules of natural justice by awarding damages to
the respondent despite the request for reservation of jurisdiction made by the
applicant in order to submit rebuttal evidence?
IV. Analysis
[17]
Before
assessing the substantive issues mentioned in the above paragraph, the
applicable standard of review must be considered. The first issue is the
adjudicator’s jurisdiction to hear the respondent’s complaint. It goes without
saying that the adjudicator has jurisdiction only insofar as the respondent has
in fact been “dismissed”. Division XIV of Part III of the Code provides
that the complaint may be filed by any person who believes that he or she has
been “unjustly dismissed” by his or her employer and that the adjudicator must
decide on this complaint. The issue of whether a person has been dismissed or,
rather, resigned is a question of mixed fact and law, which relies essentially
on the analysis of the evidence in light of the legal principles in this
matter. This is an issue that goes to the heart of the duties assigned to the
adjudicator and, therefore, to his expertise. The result is that the applicable
standard of review is reasonableness, as both parties agree.
[18]
The
same applies to the second issue. The issue of whether the dismissal was
justified involves factual and legal issues. The adjudicator had to assess the conduct
of both parties to determine whether the employer was right to remove its
employee. Again, the applicable standard of review in an issue of this kind is
reasonableness.
[19]
Finally,
the case law is consistent that issues of natural justice are reviewable on a
standard of correctness. In this regard, no deference is due from the Court and
it is from this perspective that the third issue will be assessed.
A) Did the adjudicator err in
rejecting the applicant’s preliminary objection as to its jurisdiction?
[20]
The
applicant submitted that the adjudicator did not have jurisdiction to rule on
the respondent’s complaint, insofar as he was not dismissed, but had
voluntarily terminated his employment. In this regard, the applicant submitted,
among other things, that the adjudicator erred in finding that a record of employment
issued because of the respondent’s [Translation]
“illness” favours the theory of dismissal. The applicant alleged that it simply
wanted to comply with the requirements section 19 of the Employment
Insurance Regulations, SOR/96-332 (Regulations). In fact, this section
requires the employer to provide its employee with a record of employment
showing an interruption of earnings so that he or she may receive benefits
while off work.
[21]
A
careful reading of the decision shows that the adjudicator did draw a negative inference
from the record of employment, as shown in the following paragraph:
(93) In this case, the evidence submitted shows
that, as early as June 14, the Employer offered to provide the Complainant
with a notice of termination of employment and, although this approach seems to
have been taken to allow the Complainant to obtain employment insurance, it is
not without reason that the Complainant believed he had been laid off by his
Employer, since he was even given his vacation pay.
[22]
I
agree with the applicant that the adjudicator erred in drawing a negative
inference from the record of employment. However, the adjudicator did not rely solely
on this factor in support of his decision, but relied on other factors in
finding that it was indeed a dismissal and not a resignation.
[23]
Both
parties agree on the factors to consider in determining whether an employee
resigned or was dismissed. These factors were identified in Savard c M.B.
Data Processing, DTE 82T-857 (TA), and were repeated by the adjudicator in
his decision (at para 70):
[Translation]
-
All
resignations have an objective and subjective element;
-
Resignation
is an employee’s right, not an employer’s right. It must therefore be voluntary;
-
If
an intention to resign has been expressed, the question of whether a person has
resigned will be dealt with differently from cases where no such intention has
been expressed;
-
An
intention to resign will only be presumed if the employee’s conduct is inconsistent
with another interpretation;
-
The
expression of an intent to resign is not necessarily conclusive of the employee’s
true intent;
-
In
the event of ambiguity, case law generally refuses to find that the employee
resigned;
-
The
prior and subsequent conduct of the parties is relevant in determining whether
an employee has resigned.
[24]
In
this case, the adjudicator relied on other actions of the employer in finding
that it was not without reason that the respondent believed that he had been
dismissed. The adjudicator wrote the following in this regard:
(94) The fact that the Employer then tried to
find out more regarding its employee’s position regarding a return to work does
nothing to change the state of affairs that had already been established: the termination
of employment provided (S 1.3) corroborates the Complainant’s statements that
his employment contract had indeed been terminated by the Employer.
(95) To that is added the fact that the
Employer took other action which, although trivial, contributed to the fact
that the Complainant did not resign from his employment but was indeed laid
off.
(96) The fact that his cell phone was no longer
paid for and the fact that an offer was made to him to return to work as a
driver, among other things, gave him to understand that the services for which
he was under contract to provide were no longer wanted.
[25]
In
short, any error on the part of the adjudicator in not considering the fact
that the employer was obliged by the Regulations to provide a record of employment
is not determinative in itself. The adjudicator could reasonably conclude that
it was a dismissal in light of the other evidence on the record, especially
since resignation cannot be presumed.
[26]
In
the end, the applicant’s argument as to the adjudicator’s lack of jurisdiction
is essentially summarized as a claim that the adjudicator should have preferred
its version of events to the respondent’s and, thus, found that the respondent
resigned rather than being dismissed. It is not for the Court to substitute its
own assessment of the evidence for that of the adjudicator. Having heard the
oral evidence and examined all of the evidence on the record, it was open to
the adjudicator to accept the respondent’s version. There is no basis for the
Court’s intervention since this finding is within the range of possible,
acceptable outcomes justifiable in respect of the facts and law.
B) Did
the adjudicator render an unreasonable decision in finding that the respondent
had been unjustly dismissed?
[27]
The
applicant also submitted that it is impossible to make a finding of a
constructive dismissal and even less of an unjust dismissal, when the
respondent took himself off work because of a physical and/or psychological
disability. It also submitted that the adjudicator had made an unreasonable
error by not considering the fact that the respondent had found a job with
another employer while he was off work, without notifying the applicant.
[28]
The
adjudicator considered these arguments but rejected them for several reasons. First,
he emphasized that the applicant ought to have known that the respondent had a
valid employment contract until January 1, 2012, and could only be let go
for just cause. There was no evidence provided of any wrongdoing whatsoever and
no advance notice was given to the respondent. In this context, the employer
showed a cavalier attitude by interpreting the respondent’s actions as a simple
resignation.
[29]
Second,
the adjudicator found that the respondent could not be criticized for finding
another job, insofar as he thought he had been dismissed by his employer,
especially since the medical note of June 30 stated that he could return to
work in another environment.
[30]
More
importantly, the applicant had posted the respondent’s position on the Emploi
Québec Web site on August 3, 2010. The applicant could not subsequently
claim that it wanted the respondent to return to his position, while the
documentary evidence irrefutably shows that it was trying to fill this position
otherwise.
[31]
Given
all of these facts, the adjudicator could reasonably conclude that the
applicant had not discharged its burden of proving that it had terminated its
relationship with the respondent for just and sufficient cause. What is more,
the adjudicator could reasonably accept the testimony of Mr. Dionne that
Ms. Grenier had been trying to dismiss the respondent for some time. The
previous conduct of the parties was relevant in determining not only whether
the respondent had been dismissed, but also whether the dismissal was unjust.
C) Did
the adjudicator breach the rules of natural justice by awarding damages to the
respondent despite the request for reservation of jurisdiction made by the
applicant in order to submit rebuttal evidence?
[32]
The
applicant argued that the adjudicator violated the audi alteram partem
rule by refusing to reserve jurisdiction on the quantum of damages in order to
allow rebuttal evidence to be submitted. This argument is unfounded, not only
because the adjudicator was not required to rule on the applicant’s preliminary
objection to then reopen the hearing on the issue of damages, but also because,
in any case, the applicant had every opportunity to make its representations as
to the appropriate remedy.
[33]
Paragraph 242(2)(b)
of the Code authorizes the adjudicator to determine the procedure to be
followed, “but shall give full opportunity to the parties to the complaint to
present evidence and make submissions…”. This paragraph does not provide that
the adjudicator must necessarily provide the parties with the opportunity to
present evidence through oral submissions and even less that he must split the
hearing so that the parties may first submit their arguments on whether there
was an unjust dismissal, then be heard with respect to damages, if any. Therefore,
this Court must guard against imposing requirements on the adjudicator that
Parliament had not intended; the adjudicator must remain in control of his own
procedure. As the Supreme Court of Canada noted in Komo Construction Inc et
al c Commission des Relations de Travail du Québec et al, [1968] RCS 172,
at pp 175-176 (available on CanLII) :
[Translation]
As for the application of the audi alteram partem
rule, it is important to note that it does not imply that a hearing must
always be granted. The obligation is to provide a party with an opportunity to
present its arguments. In the case at bar, where an objection was submitted
which raised only a point of law, the Commission did not misuse its discretion
in deciding that it did not need to hear anything more before rendering its
decision. As this Court held in Forest Industrial Relations Ltd v
International Union of Operating Engineers, [1962] S.C.R. 80, 37 WWR. 43,
31 DLR (2d) 319), a tribunal is not required to grant a hearing on all
arguments raised in a matter before it. When it has available to it an analysis
it considers sufficient, it has the power to reach its decision without further
delay. It should be borne in mind that the Commission exercises its
jurisdiction in a matter in which generally any delay is likely to cause
serious and irreparable damage. While maintaining the principle that the
fundamental rules of justice should be observed, it is important not to impose
a code of procedure on a body to which the law intended to give complete
control of its procedure.
[34]
That
said, the parties were entitled to a fair hearing and had every opportunity to
be heard on all aspects of the case. The applicant had every opportunity to
have its witnesses heard and chose to have Ms. Grenier testify, while the respondent
had Hilaire Dionne testify. It is clear from paragraph 82 of the
adjudicator’s decision that the applicant did made submissions with respect to
the quantum of damages, insofar as it submitted that the respondent was not
entitled to any compensation because he was not dismissed or that, in the
alternative, he was dismissed with just and sufficient cause.
[35]
The
applicant had only itself to blame if it did not see fit to submit rebuttal
evidence on the quantum of damages claimed by the respondent. It cannot now rectify
the situation it placed itself in by attempting to blame the adjudicator and by
criticizing him for not giving it a second opportunity to submit evidence. The
applicant was represented by a lawyer, which was not the case for the
respondent, and it must now live with the result of the choices it made before
the adjudicator. In the absence of any evidence to the contrary that the
applicant might have submitted, the adjudicator could rely on the respondent’s employment
contract to establish the damages caused as a result of his unjust dismissal.
[36]
For
the foregoing reasons, the present application for judicial review is dismissed,
with costs.
JUDGMENT
THE
COURT ORDERS AND ADJUDGES that this application
for judicial review be dismissed, with costs.
“Yves de Montigny”
Certified true
translation
Catherine Jones,
Translator
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