Docket: T-441-14
Citation:
2014 FC 1023
[UNREVISED
ENGLISH CERTIFIED TRANSLATION]
Montréal, Quebec, October 28, 2014
PRESENT: The Honourable Madam Justice St-Louis
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BETWEEN:
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ROBERT GRAVEL
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Applicant
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and
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LABOUR STANDARDS BRANCH
LABOUR PROGRAM
EMPLOYMENT AND SOCIAL DEVELOPMENT CANADA (ESDC)
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Respondent
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JUDGMENT AND REASONS
[1]
Robert Gravel, the applicant, held the position
of “Sales Specialist NAS (S.S.)” for the company Telus Communications Inc. (employer),
from January 23, 2006, to November 12, 2007, the date on which the employer
terminated his employment.
[2]
Mr. Gravel is convinced that the employer unjustly
dismissed him, whereas the employer maintains that it laid him off because of position
abolishment. Mr. Gravel has argued his rights in several proceedings, without
success on this aspect.
[3]
On December 5, 2013, alleging that he had new
evidence, Mr. Gravel filed an application to have his two initial complaints
reopened, but the application was dismissed.
[4]
Mr. Gravel is therefore asking the Court to
review that decision to refuse to reopen his file.
[5]
It would be useful to do a succinct review of the
steps in the dispute between Mr. Gravel and the employer after his employment
was terminated on November 12, 2007.
[6]
As such, on December 21, 2007, Mr. Gravel filed
two complaints with the Department of Human Resources and Skills Development
Canada (HRSDC), which is now called the Department of Employment and Social
Development. He filed a complaint of unjust dismissal under sections 240 et
seq. of the Canada Labour Code, RSC 1985 c L-2 (CLC) and a wage
recovery complaint under sections 188 and 247 of the CLC.
[7]
On May 20, 2008, Inspector Johanne Blanchette
ordered that the employer pay Mr. Gravel an amount of $34,079.55. On May
23, 2008, the two parties appealed that payment order, and the file was
referred to adjudication.
[8]
On November 6, 2009, Adjudicator Léonce-E. Roy rendered a decision on the unjust dismissal complaint. After an exhaustive review of
the employer’s situation, he found that he could not intervene because Mr.
Gravel had been laid off, not dismissed, in accordance with paragraph 242(3.1)(a)
of the CLC. On November 12, 2009, Adjudicator Roy rendered a decision on the
wage recovery complaint and allowed the employer’s appeal.
[9]
On June 7, 2011, this Court dismissed the
applications for judicial review of the two adjudication decisions filed by Mr.
Gravel.
[10]
On February 8, 2012, the Federal Court of Appeal
dismissed Mr. Gravel’s appeals from the decisions of this Court, and on
September 27, 2012, the Supreme Court of Canada dismissed the application for
leave filed by Mr. Gravel.
[11]
On October 15, 2010, Mr. Gravel commenced a
proceeding in the Quebec Superior Court for payment of [translation] “notice”. Justice Moulin reviewed, inter
alia, the decisions of the adjudicator, the Federal Court and the Federal
Court of Appeal regarding Mr. Gravel’s lay-off, and found, at paragraph 27 of
his decision, that the matter is res judicata in that regard.
[12]
On December 5, 2013, Mr. Gravel requested that his
two complaints to HRSDC-Labour Program be reopened, alleging that he had
obtained new evidence in the litigation before the Superior Court and that
those elements show that he was dismissed and not laid off.
[13]
On January 14, 2014, Nathalie Johnson, Director,
Labour Standards, Labour Program, Department of Employment and Social
Development (Director), refused to reopen Mr. Gravel’s complaints on the
ground that his case is res judicata.
[14]
Mr. Gravel argues that the Director erred by not
considering the elements in his application letter, by not asking him for a
copy of the documents that were referred to, by not requesting other newly
available documents and by not providing him with the opportunity to be heard.
Mr. Gravel admits that his case is res judicata, but submits that
the new elements establish facts that were unknown until now and that
demonstrate that the employer hid the true nature of the termination of employment.
[15]
Mr. Gravel is asking the Court to allow his
application, to set aside the Director’s decision, to allow the adjudication
file to be reopened and to order the appointment of an adjudicator to hear the
reopening of the investigation and the complaints.
[16]
The respondent contends that the Director’s
decision is reasonable, that the lay-off issue is res judicata, that Mr.
Gravel had the burden of proving his allegations to the Director and presenting
a full record, that the Director was not required to complete the record and
that the application to reopen should have been sent to the adjudicator instead.
[17]
The Court agrees with the respondent that this
is a question of mixed fact and law, and that the Director’s decision must be
reviewed on the standard of reasonableness (Dunsmuir v New Brunswick,
2008 SCC 9 at paragraph 53, [2008] 1 S.C.R. 190 (Dunsmuir)).
[18]
The Court must therefore assess whether the Director’s
decision falls within a range of possible outcomes in respect of the facts and
law.
[19]
The Court agrees with the respondent that Mr. Gravel
had the burden of proving his allegations to the Director, who was not required
to complete the record. Furthermore, the parties agree that no statutory
provision governs Mr. Gravel’s application to reopen and that it is an
exceptional measure. Thus, the elements raised by Mr. Gravel in his application
dated December 5, 2013, must be briefly examined to determine whether they
are new and of a nature to justify reopening the files.
[20]
However, it appears that those elements refer either
to facts that arose after the termination of employment or to information that
was available when the complaints were reviewed. The documents or elements
stated by Mr. Gravel in support of his application to reopen do not in fact introduce
any new elements that justify reopening the files.
[21]
In short, the Director’s decision falls within a
range of “possible, acceptable outcomes which are defensible in respect of the
facts and law” (Dunsmuir at paragraph 47).
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