Date: 20110607
File:
T-2086-09
T-2087-09
Citation: 2011 FC 642
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, June 7, 2011
PRESENT: The Honourable Mr. Justice Beaudry
BETWEEN:
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ROBERT GRAVEL
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Applicant
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and
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TELUS COMMUNICATIONS INC.
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Respondent
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REASONS FOR
JUDGMENT AND JUDGMENT
[1]
These are two applications for judicial review
pursuant to sections 18 to 18.5 of the Federal Courts Act (RSC, 1985, c F-7) of two decisions
of the adjudicator/referee, Léonce-E Roy, (the panel). Docket T-2087-09 concerns
the decision dated November 6, 2009, regarding an unjust dismissal
complaint. In that decision, the panel concluded that the applicant had been
laid off, not dismissed. Docket T-2086-09 concerns the decision dated
November 12, 2009, regarding a
wage recovery complaint in which the panel rescinded a payment order of $34,079.55
in favour of the applicant and denied other amounts claimed by him.
[2]
The applicant represented himself at the hearing.
Facts
[3]
On January 23, 2006, the applicant was hired by
the respondent for a “Sales Specialist II” (SS) position.
[4]
On November 12, 2007, the respondent
terminated the applicant’s employment because of a restructuring that resulted
in the discontinuance of his function.
[5]
On December 21, 2007, the applicant filed an
unjust dismissal complaint under section 240 of the Canada Labour Code,
RSC, 1985, c L-2 (CLC).
[6]
He also filed a wage recovery complaint in
accordance with sections 188 and 247 of the CLC. On May 20, 2008, the inspector
assigned to the case issued a payment order in favour of the applicant for $32,768.80
plus 4% of his wages, for a total of $34,079.55.
[7]
This payment order was referred to a referee by
both parties. The respondent contested the payment order itself, while the
applicant challenged the amount awarded, claiming that it was not high enough.
[8]
The present applications for judicial review
therefore concern the decisions dated November 6 and 12, 2009.
Impugned Decisions
Unjust
dismissal complaint (T-2087-09)
[9]
The panel first conducted an analysis under
sections 242 to 247 of the CLC
and then referred to authors and the dictionary regarding the definitions of
the words “congédiement”, or dismissal, and “licenciement”, or layoff (Decision,
at paras 141 to 157).
[10]
The panel then considered the applicant’s
position, the structure of the respondent’s business and the context
surrounding the applicant’s dismissal/layoff (Decision, at paras 158 to 177).
[11]
In its analysis, the panel considered the fate
of two other employees, Alain Brousseau and Michel Miglierina, the former
having been laid off and transferred to another position while the latter was
dismissed.
[12]
The panel weighed and commented on the
documentary and testimonial evidence and concluded that it could not intervene
in this case because this was not a dismissal without just and reasonable
cause, but a layoff (Decision, at paras 178 to 182).
[13]
After 15 days of hearings and written and oral
arguments by the parties, the panel stated that it was satisfied that the
applicant was unable to unable to deny, contradict or refute this national
reorganization which entailed the discontinuance of his function. Likewise, he
did not show that this discontinuance was window dressing, staging or a plot
for the purpose of eliminating him (Decision, para 181).
[14]
The panel therefore declared that it did not
have jurisdiction to hear the applicant’s unjust dismissal complaint on the
merits (Decision, para 183).
Wage recovery complaint (T-2086-09)
[15]
The panel called its decision on the wage
recovery complaint a [translation] “Decision on a
Double Appeal”. The applicant asked the panel to quash the payment order for $34,079.55
issued by the inspector assigned to the case and order the respondent to pay $432,890.19.
An itemization of the applicant’s claim appears in a table at page 9 of the
decision.
[16]
The respondent, however, claimed to have paid
all of the amounts owed to the employee except for $9,099.98 in commission for
revenue objectives and scorecard that it acknowledged owing the applicant but
had not yet paid when the appeal was filed.
[17]
At the hearing, each party called witnesses and
filed documentary evidence. The panel considered and ruled on each amount
claimed, concluding as follows at paragraph 176: [translation] “There is no doubt that the complainant’s appeal of the payment
order seems to confuse a claim for wages and fringe benefits with compensation
which he claims he is owed because of the termination of his employment which
he describes as an unjust dismissal”. The panel therefore denied the
applicant’s claim and rescinded the payment order because the applicant had
already received $9,009.98, the amount the respondent acknowledged owing him,
directly from the respondent before the wage recovery decision was signed.
Issues
[18]
The issues are as follows:
a.
Did the panel err in concluding that the
termination of the applicant’s employment was a layoff, not a dismissal?
b.
Did the panel err in denying the amounts claimed
by the applicant and rescinding the payment order issued by the inspector?
c.
Was procedural fairness respected at the
hearings?
Standard of review
[19]
Both parties cite Dunsmuir v New Brunswick, 2008 SCC 9, [2008] 1 SCR 190. The respondent adds Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, [2009] 1 SCR 339. Given that the first two issues go to the heart of the
panel’s jurisdiction, I find that the applicable standard here is
reasonableness: Dunsmuir, above, para 47.
[20]
As for the third issue, the applicable standard
is correctness: Dunsmuir, above, para 50.
a. Did the panel err in
concluding that the termination of the applicant’s employment was a layoff, not
a dismissal?
Applicant’s Arguments
[21]
The applicant challenges the adjudication
decision because, he argues, the respondent did not demonstrate on a balance of
probabilities that there was a shortage of work or that SS positions were cut.
[22]
He also refers to an email written by Yves
Sarault, the respondent’s representative and Regional Manager of Telus,
announcing the termination of his employment and using the following words: [translation] “ . . . until we can replace Robert Gravel . . . ” (Applicant’s
Memorandum, pages 12 and 13, Tab 8, para 43). He further alleges that the
respondent changed its position on this subject several times (Applicant’s
Memorandum, page 13, Tab 8, at paras 46(a), (b), (c) and (d)).
[23]
He states that he proved to the panel that he
was replaced by another SS working in Montréal, namely, Michel St-Gelais. The
panel disregarded this evidence for no reason. Furthermore, the panel did not
rule on essential evidence he had filed; for this reason, the decision was
unreasonable.
[24]
At the hearing, the applicant cited the
following cases in support of his argument: Enoch Cree Nation Band v Thomas,
2004 FCA 2, National Bank of Canada v Monique Lajoie, 2007 FC
1130, Plante v Entreprises Réal Caron Ltée, 2007 FC 1104, West
Region Child and Family Services Inc. v North, 2008 FC 85. He also
cited the following authors: Michel Coutu, Julie Bourgault and Annick Desjardins,
with Guy Dufort and Annie Pelletier, Droit fédéral du travail, (Cowansville:
Éditions Yvon Blais, Collection Droit fondamental du travail, May 2011).
Respondent’s arguments
[25]
The respondent relies on Donohue Inc. v
Simard (1988) RJQ 2118, to argue that a panel lacks jurisdiction
where a termination of employment is based on objective considerations. Where
it can be demonstrated that a business’s reorganization or restructuring is
real, the panel is stripped of all jurisdiction to hear an unjust dismissal
complaint on the merits.
[26]
The respondent notes that in the case at bar,
the panel took the necessary care to make sure that this was not a constructive
dismissal. It analyzed the testimony and the documentary evidence in detail and
declared that it was satisfied that the respondent’s evidence on this aspect of
the dispute was consistent and corroborative.
[27]
The respondent adds that the panel compared the
applicant’s situation with that of two colleagues, one of whom had been
dismissed with only two weeks’ pay as severance after working there for three
years.
[28]
The respondent also argues that it satisfied the
panel that the applicant’s function had in fact been discontinued (Adjudication
Decision, at paras 168 and 169).
[29]
In light of the preceding, the respondent
submits that the Court cannot reassess the evidence that was collected or
substitute its own solution or decision as it sees fit. The Court must instead
consider whether the panel’s chosen solution is within the range of possible,
acceptable outcomes which are defensible in respect of the facts and law.
Analysis
[30]
Having considered and analyzed the documents and
the parties’ oral and written submissions, the Court cannot find that the panel’s
decision to decline jurisdiction is unreasonable.
[31]
The panel had the opportunity to see and hear
the parties, assess their credibility and scrutinize the documentary evidence.
It considered the relevant case law and doctrine in such matters and found that
this was a layoff, not an unjust dismissal.
[32]
The panel supported its findings with reasons
and gave specific details as to why it found certain witnesses and documents to
be more credible than others.
[33]
The panel’s analysis is found at pages 11 to 35 of
the decision. Objective considerations were used, and the Court notes in
particular paragraph 171, page 34:
[translation]
At no time during the conduct of this case did I have
the impression that the employer’s witnesses conspired to mislead the panel.
Their testimonies were consistent, matching and impartial. The
cross-examinations conducted by the complainant himself did not reveal anything
worrying about the real intentions of upper management.
[34]
Contrary to what the applicant argues, the Court
finds that the panel considered, analyzed and assessed the evidence tendered by
the applicant. Let us consider, for example, the allegation that the applicant
was replaced in his position by Michel St-Gelais. In the decision, the panel
addresses this allegation in detail at paragraphs 124 to 140. The panel
does the same with the evidence of a reorganization of the respondent’s
business leading to the discontinuance of the applicant’s function. According
to paragraphs 110 to 123, it is clear that the panel heard and analyzed the
applicant’s evidence but characterized the respondent’s evidence as follows: [translation] “It is obvious that the employer’s evidence on this question
exceeds the standard of proof on a balance of probabilities. The few doubts
raised by the complainant’s assertions simply do not hold up” (para 123).
[35]
It is not the Court’s role to reassess the
evidence and impose the solution it deems appropriate where, as is the case
here, a panel has rendered a decision supported by reasons and based on the
evidence heard. The chosen solution in the present case falls within the range
of possible, acceptable outcomes which are defensible in respect of the facts
and law (Dunsmuir, above, para 47).
[36]
The Court’s intervention is not warranted.
Wage
recovery complaint (T-2086-09)
b. Did the referee err in denying the amounts claimed by the applicant
and rescinding the payment order issued by the inspector?
Applicant’s
arguments
[37]
The applicant alleges that the panel’s decision
is unreasonable. He submits that the employer breached his employment contract
and that the panel did not give sufficient consideration to the documentary and
testimonial evidence.
[38]
He argues that the panel erred in interpreting
the rules for awarding, calculating and paying commissions, bonuses and other
forms of recognition as described in his employment contract with the
respondent.
[39]
He also notes that his contract is a contract of
adhesion and therefore should be interpreted in his favour.
[40]
The applicant has difficulty understanding why
the panel accepted the respondent’s evidence, which contained numerous
contradictions, discrepancies and, in his view, fabrications. The panel had no
grounds to disregard his documentary evidence and testimony, which were far
more credible.
Respondent’s
arguments
[41]
The respondent pleads that the applicant is
confusing unpaid wages within the meaning of sections 166 and 247 of the
CLC with the compensation and other like things to be determined by a panel in
the case of an unjust dismissal under subsection 242(4) of the Code (Decision,
para 176).
[42]
It argues that several of the applicant’s claims
required the panel to substitute its judgment for that of the respondent’s officers,
when they alone had the authority to develop, manage and administer the sales
incentive programs. Now that the panel has not agreed with him, he is asking
the Court to intervene and make its own assessment of the facts.
Analysis
[43]
According to Dunsmuir, above, para
47, the role of the Court in judicial review is to ask whether the
decision at issue has the qualities that make a decision reasonable, that is,
whether the decision is transparent, justifiable and intelligible, and whether
the chosen solution falls within the range of possible, acceptable outcomes
which are defensible in respect of the facts and law.
[44]
Having meticulously analyzed the wage recovery
decision, the Court is unable to conclude that the decision could be
characterized as being unreasonable.
[45]
The panel heard the witnesses, weighed the
documentary evidence filed by the parties and analyzed each of the applicant’s
claims and the amounts awarded by the inspector in his payment order.
[46]
The panel gives a detailed explanation for
accepting Mr. Hamill’s testimony regarding how the sales incentive program
was applied and why the applicant was not entitled to recognition in the form
of trips to Sonora, British
Columbia, and Dubai under the President’s Club program. The panel also justifies
dismissing the applicant’s claims regarding the non-competition clause in his
employment contract, his alleged entitlement to pension benefits and stock purchases
and his claim for extrajudicial fees paid to a labour lawyer.
[47]
The panel’s findings are logical and supported
by the evidence. The Court’s intervention is not warranted.
c. Was procedural fairness respected at the hearings?
Applicant’s arguments
[48]
The applicant submits that the panel did not
give him enough time to present his evidence. He states that the respondent was
given 11 days to present its evidence, while he only had two and a half days.
[49]
He challenges the manner in which the
proceedings were handled. He has grievances with the panel because the panel
was allegedly much more flexible with counsel for the respondent than with him
regarding the examinations and cross-examinations. For example, he refers to
how the testimonies of Mr. Sarault and Mr. Hamill were handled.
[50]
He also criticizes the panel for failing to
maintain discipline during the hearings and for tolerating the unacceptable
behaviour of counsel for the respondent. This made it impossible for him make
full answer and defence to the respondent’s arguments.
Respondent’s
arguments
[51]
For its part, the respondent submits that the
panel exercised its jurisdiction properly while respecting the parties’ right
to file their evidence. The onus was on the applicant to show that there was a
breach of procedural fairness at the hearings, and he failed to do so.
[52]
The respondent refers to the affidavit of Mr.
Sarault to refute the applicant’s grievances. It submits that the applicant had
all the time he needed to adduce his evidence and avail himself of the right to
cross-examine the opposing party’s witnesses (Respondent’s Record, Volume 1,
page 11, Affidavit of Mr. Sarault, para 83). To support its argument, the
respondent refers to a schedule of witnesses heard and the dates and periods
during which they were examined and/or cross-examined by the applicant and the
respondent (Respondent’s Record, Volume 1, Exhibit 18, page 155).
[53]
According to the respondent, the panel was very
flexible and respectful toward the applicant and made sure that certain
witnesses, such as Mr. Hamill and Mr. Cloutier, made themselves
available so that the applicant could continue cross-examining at a convenient
time.
[54]
As regards the applicant’s criticism of the
panel concerning certain documents that he demanded from the respondent, the
respondent points out that these documents were not relevant because they
referred to facts arising after the events in dispute, to establish evidence of
the quantum of damages should his termination be found to be an unjust
dismissal. The panel was therefore correct to not consider them, given that it
had determined that this was a layoff, not an unjust dismissal.
Analysis
[55]
The panel’s jurisdiction is set out at
paragraph 242(2)(b) of the CLC:
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(b) shall determine the procedure to be followed,
but shall give full opportunity to the parties to the complaint to present
evidence and make submissions to the adjudicator and shall consider the
information relating to the complaint; and
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b) fixe lui-même sa procédure, sous réserve
de la double obligation de donner à chaque partie toute possibilité de lui
présenter des éléments de preuve et des observations, d’une part, et de tenir
compte de l’information contenue dans le dossier, d’autre part;
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[56]
In the case at bar, the Court notes that,
unfortunately, there are no stenographic notes. We must therefore refer to the
affidavits and the submissions of the parties to try to determine whether there
was a breach of procedural fairness.
[57]
In Université du Québec à Trois-Rivières v
Larocque, [1993] 1 SCR 471,
the Supreme Court states that a panel has complete jurisdiction to define the
scope of the issue presented to it, and that in this regard only a patently
unreasonable error or a breach of natural justice could give rise to judicial
review.
[58]
Here, the Court is unable to conclude that the
panel mishandled the proceedings. The respondent categorically refuted the
applicant’s criticisms. The details reported in Mr. Sarault’s affidavit
and corroborated by a precise hearing schedule show that applicant’s grievances
are unfounded.
[59]
As regards the documents requested by the
applicant, Mr. Sarault’s affidavit states the following at paras 92 and 93
(Respondent’s Record, Volume 1, pages 11 and 12):
[translation]
92. Therefore, the only documents not obtained and
filed or produced by the applicant consist solely of layoff letters to sales
specialists in the NAS division of TBS working outside Quebec
and sales reports, all of which are dated after his layoff.
93. The chairperson of the adjudication panel told the
applicant several times that these exhibits could only be used to establish the
quantum of damages should the respondent’s preliminary objection regarding
whether there had been a layoff and that his requests were premature. (Emphasis
added.)
[60]
The burden of proof as to whether there has been
a breach of the principles of natural justice or procedural fairness is on the
person alleging the breach. The Court is not satisfied that the evidence
presented by the applicant, contradicted by the respondent, shows that such a
situation occurred at the hearings of this case before the panel.
[61]
The parties left the issue of costs up to the
Court.
JUDGMENT
THE COURT ORDERS that
1.
The applications for judicial review be
dismissed.
2.
The applicant should pay the respondent costs in
the amount of $3,000, including disbursements.
“Michel Beaudry”
Certified true
translation
Michael Palles
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