Date: 20090612
Docket: T-1752-08
Citation: 2009 FC 630
Ottawa, Ontario, June 12,
2009
PRESENT: The Honourable Mr. Justice Barnes
BETWEEN:
B.R.E.S.T
TRANSPORTATION LTD.
Applicant
and
ALAN
NOON
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
[1]
This
is an application for judicial review brought by B.R.E.S.T. Transportation Ltd.
challenging a Canada Labour Code Adjudicator’s decision in which an award of
damages of $8,800.00 and interest was made to the Respondent, Alan Noon, for
unjust dismissal.
I.
Procedural
Background
[2]
The
Applicant contends that it was denied procedural fairness by the refusal of a
request for either an adjournment or a short postponement of the hearing. In
addition, the Applicant complains that when its General Manager, Steve Redpath,
arrived belatedly at the hearing, the Adjudicator refused to permit
cross-examination of Mr. Noon on any points of evidence that had been given in
Mr. Redpath’s absence. These matters are outlined in an affidavit sworn by
Mr. Redpath, and were unchallenged by Mr. Noon. Mr. Redpath’s affidavit
contains the following recital of events:
6. On or about July
11, 2008, the Respondent applied to the Minister of Labour for an appointment
of an Adjudicator to hear his complaint of unjust dismissal pursuant to section
240 of the Canada Labour Code (“Code”).
7. On or about March
17, 2008, Ms. Kelly Waddingham was appointed as an Adjudicator under the Code
to adjudicate the Respondent’s complaint of unjust dismissal.
8. The owner of the
Applicant, Ms. Edie Smith, assigned me to represent the Applicant at this
unjust dismissal hearing process.
9.
At no time
did legal counsel represent the Applicant or me.
10. I do not have any
experience at conducting labour relations hearings. This was my first hearing.
11. On or about July 7,
2008, the Respondent, Adjudicator and myself convened to discuss preliminary
issues. The hearing was then adjourned for the remainder of the day.
12. The Adjudicator
advised me that the next date for the hearing would be September 30, 2008. I
was sent a letter quite a few weeks prior to September 30, 2007, and there were
so many changes by both parties it was hard to keep track of what was
happening. I put a reminder on my computer but my computer Crashed and
unfortunately I lost all my information.
13. On September 30,
2008, I received a telephone call from the Adjudicator advising me that the
hearing had commenced. I asked the Adjudicator if she could adjourn the hearing
and she said no. I then asked the Adjudicator if she could hold off on
proceeding until I could get to the hearing. The Adjudicator told me she would
only hold off on the hearing for one hour and then she would start. I told her
it would be difficult for me to make it from 2525 Haines Rd. Mississauga to 1 Front Street in Downtown Toronto in one hour.
Nevertheless I was told the hearing would commence.
14. The Adjudicator
commenced the hearing without me there. By the time I arrived at the hearing,
it was already underway. The Respondent had almost finished giving his
evidence. I did not hear any of the evidence, which was led by the Respondent.
Further, there was no transcription of the evidence.
15. Once I entered the
room the Adjudicator advised me that I was not able to ask the Respondent any
questions with respect to his evidence that had been completed in my absence.
Rather, the Adjudicator advised me that I could only ask questions in
cross-examination about evidence that I had actually heard.
16. I noticed that the
Respondent had submitted a binder of documents to the Adjudicator and he had a
binder of the same documents. However, there was no binder of documents for me
to use so that I could follow along with the Adjudicator and the Respondent. I
also don’t know if the Adjudicator relied on any of these documents in making
her decision.
17. I tried to make some
submissions the best I could under the circumstances. However, I did not have
the benefit of hearing any significant portion of the Respondent’s evidence.
18. I do not think that
the Adjudicator treated me fairly during the hearing. I do not think there was
any reasons why she could not have granted me an adjournment for September 30,
2007 or at least waited until I arrived at the hearing. My right to a fair
hearing was compromised by the Adjudicator.
[3]
The
Adjudicator’s decision confirms the adjournment request and its refusal but it
makes no mention of the imposition of limitations on the cross-examination of
Mr. Noon beyond the statement that Mr. Noon’s evidence about mitigation was “uncontested
by the employer”.
[4]
In
the absence of any evidence in the record other than that tendered by the
Applicant, I accept the procedural history outlined in Mr. Redpath’s affidavit.
II. Procedural
Fairness
[5]
The
standard of review for issues of procedural fairness is correctness: see Sketchley
v. Canada (Attorney
General),
2005 FCA 404, [2005] F.C.J. No. 2056.
[6]
While
the Adjudicator’s decision fails to expressly state why the Applicant’s
adjournment and postponement requests were refused (and it certainly would have
been prudent to wait for Mr. Redpath’s arrival) I am nevertheless not
convinced that this gave rise to a breach of the duty of fairness. Mr. Redpath
was clearly negligent in failing to attend the scheduled hearing and an
adjudicator enjoys wide discretion in dealing with such procedural matters.
[7]
I
am satisfied, though, that the Adjudicator’s limitation on the Applicant’s
right to cross-examine Mr. Noon represents a breach of fairness. The right of
cross-examination is fundamental to a party’s ability to make its case and to
confront the adversary. This point is made in John Sopinka, Sidney N. Lederman
& Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto:
Butterworths, 1999) at p. 938:
§16.107 Although a trial judge
has the discretion to exclude an irrelevant series of questions in
cross-examination, that discretion must be exercised with due regard for the
importance of the right to cross-examine. For example, it has been suggested
that it may be a breach of fundamental justice for a judge to preclude the
right to cross-examine on the grounds that the party asserting the right has
failed to establish the relevance of the proposed cross-examination in
advance. As Cory J. stated in United Nurses of Alberta v. Alberta (Attorney General):
The right to cross-examine is so
fundamentally important to an accused faced with a serious charge that it
should not be lightly discarded. Often the importance and significance of a
cross-examination will only be revealed as it unfolds. When it is prohibited
without any exploration as to its relevance there has been a denial of
fundamental justice.
As a result, a judge must exercise
extreme care and caution before interfering with the right to cross-examine
before the cross-examiner has had a reasonable opportunity to show the
relevance of the cross-examination through answers obtained from the witness.
[Footnotes omitted]
[8]
There
is no principled legal basis which I can think of which would justify the
Adjudicator’s profound interference with the Applicant’s right to cross-examine
Mr. Noon. The fact that Mr. Redpath did not hear much of Mr. Noon’s
evidence is no basis for refusing to allow questioning about that part of the
testimony nor would the refusal be justified as some form of penalty for
Mr. Redpath’s late arrival at the hearing.
[9]
Ordinarily
a breach of fairness leads to a decision like this one being set aside. There
are some limited exceptions to this rule including situations where,
notwithstanding the breach, the outcome on the merits would not have been any
different. That may well be the case here, at least with respect to the
Adjudicator’s decision that Mr. Noon did not resign his employment. While
Mr. Noon’s letter was intemperate and ill-advised, it was clearly
qualified by his request for altered conditions of employment and appears, as
the Adjudicator found, to be more in the nature of a threatened resignation:
see Action Express Ltd. v. Shelly Lesy, 2003 FC 1455, (2003), 243 F.T.R.
235. Nevertheless, that letter may be open to interpretation and, in the
absence of cross-examination, it is not possible to conclude with certainty
that the Adjudicator’s characterization of its legal significance represents
the only finding that is open to be made. I am also not able to conclude that
the Adjudicator’s calculation of damages for lost wages could not have been
affected by a cross-examination of Mr. Noon, particularly with respect to his
efforts to find alternate employment – an aspect of the evidence that the Adjudicator
specifically noted as “untested”.
[10]
In
the result the Adjudicator’s decision is set aside. This matter shall be
re-determined by a different decision-maker.
JUDGMENT
THIS COURT ADJUDGES that this application is allowed with the matter to be
re-determined on the merits by a different decision-maker.
“ R. L. Barnes ”
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