Date: 20071114
Docket: T-122-07
Citation: 2007 FC 1180
Ottawa, Ontario, November 14,
2007
PRESENT: The Honourable Mr. Justice Phelan
BETWEEN:
H
& R TRANSPORT LTD.
Applicant
and
JAMES
ST. CYR
Respondent
REASONS FOR JUDGMENT AND JUDGMENT
I. INTRODUCTION
[1]
The
Applicant, a trucking company headquartered in Lethbridge, Alberta, challenges
a decision of an adjudicator (Adjudicator) who found the company unjustly
dismissed the Respondent, one of the company’s truck drivers. The Adjudicator
was appointed under Part III of the Canada Labour Code (Code) to deal
with the Respondent’s complaint about the termination of his employment.
The
Adjudicator rendered his decision pursuant to s. 242 (3) of the Code:
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242. (3) Subject to subsection (3.1), an
adjudicator to whom a complaint has been referred under subsection (1) shall
(a) consider whether the dismissal of the person who made
the complaint was unjust and render a decision thereon; and
(b) send a copy of the decision with the reasons therefor
to each party to the complaint and to the Minister.
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242. (3) Sous réserve du paragraphe (3.1), l’arbitre :
a) décide
si le congédiement était injuste;
b)
transmet une copie de sa décision, motifs à l’appui, à chaque partie ainsi
qu’au ministre.
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[2]
The
Respondent appeared at the hearing of the judicial review but failed to file
any Record and made only brief oral submissions.
II. FACTUAL
BACKGROUND
[3]
The
Respondent was an “over the road” truck driver employed by H & R from May
28, 1999 to November 4, 2005. On October 21, 2005, while driving his truck for
H & R, he received a message from the company’s Director of Fleet Personnel
via a computer text message system in his truck advising him that he had been
terminated with two weeks’ notice. The grounds for termination were:
In reviewing your driving record, it
appears that our efforts to help you correct our concerns wiht [sic] you
have “not” been reacted to by yourself.
[4]
The
company outlined a series of alleged violations which the Adjudicator accepted as
forming the basis for the decision to terminate employment. The company took
the position that the Respondent had been warned about known violations, had
been advised that absent improvement he would be terminated and had committed
other violations about which he did not inform the company as required,
including having his truck “taken out of service” (the trucking equivalent of
being “grounded”).
[5]
The
Respondent, aside from claiming that he was a generally good employee, claimed
that he had never been given a written appraisal or warning nor had he been
suspended. He admitted that he had failed to stop for a mandatory brake check
in Golden, British
Columbia,
and had paid the fine imposed. He contended that this was the only time he had
been admonished by his employer. He testified that he had kept his employer
fully informed of any tickets and violations received, had never been told he
could be terminated and he specifically denied that he had ever had his truck
taken “out of service”.
[6]
In
a one paragraph analysis contained in the decision, the Adjudicator accepted
the Respondent’s evidence regarding his driving record and the absence of any
performance and written warnings. The Adjudicator held that the company had
breached its progressive discipline policy and that the termination was
excessive and unwarranted.
[7]
The
Adjudicator finally concluded that reinstatement was not an appropriate remedy
and awarded compensation based on six months’ notice of termination.
III. ANALYSIS
[8]
This
case bears a striking resemblance to that of North v. West Region Child and
Family Services Ltd., 2005 FC 1366, a decision of Justice Snider. Justice
Snider reviewed the jurisprudence on the standard of review in respect of an
adjudicator decision. I adopt her analysis and most particularly her conclusion
that the standard of review is patent unreasonableness on issues of fact. It is
the Adjudicator’s findings of fact which are in issue in this judicial review.
[9]
In
North, supra, Justice Snider made a comment about the
adjudicator’s failure to analyse the evidence, a comment which is apt in this
judicial review.
35. Further, the Adjudicator makes
no attempt to analyze the evidence before him beyond the sweeping statement
that “Where there is conflict as between the employer and the employee on the
evidence, I prefer the evidence of the employer.” This provides no explanation
to Mr. North or to me of why the evidence of the Employer was preferred. It
also does not explain the apparent internal conflict between the testimony of
Mr. Crocker, the Assistant Executive Director of WRCFS, and the s. 241 letter.
36. In conclusion, I am of the view
that the Adjudicator failed to address the fundamental issue before him of what
grounds were relied on by the Employer to dismiss Mr. North. On this question,
the decision is “so flawed that no amount of curial deference can justify
letting it stand” (Ryan, supra, at para. 52). The decision is
patently unreasonable.
[10]
In
this present case, the Adjudicator clearly chose to believe the Respondent – a
matter which was open to him. However, it is impossible to understand the basis
for this choice. More troubling is the complete absence of acknowledgement that
there were irreconcilable conflicts in the evidence.
[11]
The
Respondent said that he had never received a written appraisal or warning. The
employer had put in not only vica voce evidence that the Respondent had
been warned but also contemporaneous internal memorandums to that effect. It
would be sophistry to suggest that there was no conflict in the evidence
because the Respondent claimed an absence of written warnings when there
was evidence of oral warnings. There is no explanation why the
Adjudicator preferred the Respondent’s evidence over that of the employer.
[12]
The
Respondent claimed that he had never had his truck taken “out of service”.
However, submitted in evidence was the report of the Golden, British Columbia
incident which led to “out of service” penalty, plus evidence from the United
States authorities indicating two other “out of service” punishments not reported
to the company.
[13]
As
to the Respondent’s contention that he kept the company fully informed of his
activities, there was written evidence, including in-truck text messages, from
the employer criticizing the Respondent for not keeping the company informed of
his hours of operation and demanding proper reporting.
[14]
Therefore,
there were significant evidentiary conflicts, both oral and written, which were
never discussed, much less analyzed by the Adjudicator.
[15]
The
Applicant has objected to the overall tone of the Adjudicator’s decision – its
somewhat gratuitous endorsements of the Respondent. I see no error in this if
one could understand why the Adjudicator seemed to lean so much in favour of
the Respondent without any apparent justification. However, I note that the
Applicant did not assist itself in this termination. It is evident that it
dismissed the Respondent for cause yet it then gave him two weeks’ “working”
notice – an inconsistency which is hard to explain.
[16]
It
is a prerequisite to according a high level of deference to an adjudicator’s
factual conclusion that the Court knows how the conclusions were reached. In
this case, while it may be open to the Adjudicator to prefer the Respondent’s
version of events and to disregard the documentary evidence, it is not possible
to understand why or how the Adjudicator did so.
[17]
Therefore,
this decision cannot be sustained.
IV. CONCLUSION
[18]
This
application for judicial review will be granted. The decision of the
Adjudicator dated December 20, 2006 is quashed. It would be unfair to require
the Respondent to pay costs in these circumstances and no award of costs will
be made.
[19]
Nothing
in this Judgment should be taken as preventing the Respondent from seeking to
obtain another adjudication of his complaint concerning the alleged wrongful
dismissal.
JUDGMENT
THIS COURT
ORDERS AND ADJUDGES that this
application for judicial review will be granted, and the decision of the
Adjudicator dated December 20, 2006 quashed. No award of costs will be made.
“Michael
L. Phelan”
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