Docket: T-2001-12
Citation:
2015 FC 569
Toronto, Ontario, April 30, 2015
PRESENT: The Honourable Mr. Justice Campbell
|
BETWEEN:
|
|
Canamex Trucking Systems Inc.,
also known as Canamex-Carbra Transportation Services Inc. and Carrier &
Cargo International Systems Inc.
|
|
Applicant
|
|
and
|
|
Henryk Debski
|
|
Respondent
|
ORDER AND REASONS
[1]
By the present Application, the Applicants (Canamex)
seek to set aside the decision of a Referee of the Canada Labour Board dated October
2, 2012 made pursuant to s. 251.12(4) of Part III of the Canada Labour Code,
RSC, 1985, c L-2 (Code), as a wage recovery adjudication. Canamex is a
transportation firm based in Brampton Ontario; the Respondent (Mr. Debski) was
a truck driver who operated transport vehicles for Canamex at four different
times between 2000 and 2007.
[2]
The central substantive issue before the Referee
was whether Mr. Debski was an employee of Canamex or whether he was an
independent contractor. Mr. Debski claimed the former, while Canamex claimed
the latter. The primary issue in the present Application is whether the Referee
conducted a fair hearing on the substantive issue. The immediate history
leading to the decision presently under review is important to this issue.
[3]
In the most recent history of the dispute, a
concern has been expressed about Mr. Debski’s credibility. The Referee’s
participation and adjudication arose as an appeal from a decision dated October
2, 2012 made by an Inspector acting under the Code who dismissed Mr. Debski’s
complaint of unjust termination. The Inspector’s decision contains the
following statement:
A meeting was scheduled with the complainant on
January 12, 2010 to discuss the complaint in detail and allow the complainant
an opportunity to provide additional documentation as per his request.
On January 12, 2010, the complainant submitted
several documents and written statements. The complainant submitted letters he
received from the WSIB denying him coverage and an appeals decision of the WSIB
regarding his application for benefits. The complainant also submitted several
typed documents describing his employment and life events over the course of
the last seven years and detailing his various employment ventures within the
trucking industry. Included was his response and feelings regarding his appeals
process with the WSIB and written reasons of why he feels he is an employee of
Canamex Trucking System Inc. These documents have been attached and labeled
[sic] as "Appendix G".
At this meeting the complainant alleged that
the employer falsified documents and submitted them to WSIB to claim
independent contractor status with WSIB. The complaint also alleged that he
never had his own operating/licencing authority and did not pay his won
expenses such as fuel and insurance.
(Applicant’s Record, pp. 219-220)
[4]
Initially the appeal was referred to a referee
who chose to recuse himself. As a result, as explained in the decision under
review, once engaged in the appeal the Referee took action to set the process
whereby the appeal would be decided:
A hearing was held at Toronto on June 22, 2012.
The parties were heard separately because there was a strong indication from
both sides that there were hard feelings between the main parties to this
appeal. I determined that it would be disruptive and counterproductive to put
them both in the same room. Both parties to this appeal were given "full
opportunity to present evidence and make submissions to the referee" as
provided for in Section 251.11(2)(d) of the Canada Labour Code. I advised them
of this approach and the reasons for it in a May 29, 2012, e-mail to both
parties which is reproduced below:
"This is to confirm that the hearing in
this wage recovery appeal will be held June 22, 2012 at Suite 900, 110 Yonge Stre et, Toronto, Ontario.
As explained to you earlier, the Canada Labour
Code provides that a wage recovery referee determines the procedure to be
followed during a hearing, but shall give full opportunity to the parties to
present evidence and make submissions. Because of the hard feelings between the
parties, I have decided to hear the evidence and submissions of the parties
separately. I will hear Mr. Debski's evidence and submissions from 10 am to 1
pm; followed by Mr. Hundal [President of Canamex] from 2 pm to 4 pm.
The issue to be decided in this wage recovery
appeal is whether or not the labour inspector was correct when he decided that
Mr. Debski was an independent contractor. You will have the opportunity at the
hearing to present your evidence and challenge or support the findings of the
inspector.
Thank you for your continued co-operation in
this matter. "
(Decision, para. 6)
[5]
The Referee’s authority to determine the process
for conducting an appeal is established by s. 251.12(2)(d) which provides that
a referee “may determine the procedure to be followed,
but shall give full opportunity to the parties to the appeal to present
evidence and make submissions to the Referee, and shall consider the
information relating to the appeal” (Emphasis added).
[6]
During the course of the hearing of the present
Application, Counsel for Canamex confirmed that despite making diligent efforts
to obtain a record of the proceedings before the Referee and being unable to do
so, the only evidence on the record of the present Application concerning the
process undertaken, which is not in dispute, is that which is stated by the President
of Canamex, who participated in the hearing conducted by the Referee, in paragraphs
57 to 59 his affidavit filed in the present Application:
Referee Clarke determined that he had the
authority to hear the parties separately under the provisions of the Canada
Labour Code and in paragraph 6 of his reasons he explains that he believed that
putting both parties in the same room would be disruptive. At the time, neither
party objected to a hearing in the absence of the other and neither party was
represented by counsel.
CanAmex representatives arrived late for the
June 22, 2012 hearing as a result of a mix up in identifying and finding the
location for the appointment. Mr Clarke did not convene a formal hearing but
instead he held a conversation about the matter with the parties who were
present on behalf of CanAmex [sic]. This discussion lasted less than one hour
and had no structure to it.
At the June 22, 2012 appointment Referee Clarke
did not discuss the evidence of Mr. Debski with CanAmex representatives nor
indicate the nature of the hearing held with Mr. Debski. There was no
indication whether Henryk Debski was under oath when he presented his case,
whether a record of the proceedings had been kept, whether Mr. Debski had filed
additional documents and what the evidentiary record consisted of.
[7]
In the decision under review, in the course of
concluding that Mr. Debski was an employee of the Company, the Referee made the
following findings on the credibility issue at paragraphs 24 to 27:
Both Mr. Debski and the company
representatives were credible and co-operative witnesses and presenters. Both sides capably argued their position in this appeal from their
perspective. To determine whether or not Mr. Debski was an employee of Canamex
or an independent contractor it is necessary to look at the total relationship
of the parties. Some aspects of the work relationship between the parties
suggest that Mr. Debski was an independent contractor and some suggest that he
was an employee. To state that the work relationship between the parties is a
complex one would be an understatement.
Those facts that support a finding of
independent contractor are as follows:
[…]
f. the appellant signed a WSIB waiver form
indicating that he was an independent contractor (a signature that is
disputed by the appellant);
[…]
Those facts that support a finding that Mr.
Debski was an employee of Canamex are as follows:
[…]
p. Mr. Debski denies that he signed the WSIB
waiver form which indicated that he was an independent contractor. He contends
that the form was filled out and signed on his behalf by the company.
[…]
[Emphasis added]
[8]
In parapraph 20 of his affidavit, the President
of Canamex expresses why the decision under review should be set aside:
The Referee, Donald Clarke, ("the
Referee") breached rules of natural justice by
(i) Selecting a procedure by which the
Applicant was excluded from the portion of the proceeding during which the
complainant provided oral evidence, in clear contravention of well settled law
that a tribunal should not hear evidence in the absence of a party whose
conduct is impugned;
(ii) In his decision in this matter, the
Referee expressly referred to allegations made by the Respondent that he did
not personally sign several documents which purport to bear his signature, and
that the Applicant fabricated his signature on the documents. The decision of
the Referee also refers to allegations made by the respondent that certain
invoices were fabricated by an employee of the Applicant. The accusation of the
Respondent that one document, in particular, referred to as the "WSIB
waiver", was forged by the Applicant is relied upon by the Referee as one
[sic] the facts that support the Respondent's case. By excluding the Applicant
from the portion of the proceedings during which the Respondent was examined
and made submissions before the Referee, the Applicant was denied the
opportunity to know and rebut these and other material allegations relating to
important evidentiary documents which underpin the Referee's final decision;
(iii) Failing to provide the Applicant with an
opportunity to provide a full answer and defence to allegations made by the
Respondent by excluding the Applicant from the portion of the proceedings
during which the Respondent was examined and made submissions before the
Referee;
(iv) Denying the Applicant the opportunity to
challenge the evidence and credibility of the complainant in relation to
material issues to be determined. Numerous statements and allegations regarding
vital factual issues in dispute between the parties, were made by the
Respondent and referred to by the Referee in his decision. As a consequence of
the choice of procedure made the Referee, the Applicant was unable to hear the
Respondent's evidence and submissions, and to be in a position to directly test
the factual content thereof and challenge the credibility of the Respondent;
(v) The procedure adopted by the Referee denied
the Applicant the ability to address inconsistencies or possible errors in the
evidence of the Respondent. In written submissions, the Respondent asserted
inconsistent positions that the Applicant was not provided with an opportunity
to challenge at the time that the Respondent presented oral evidence and
submissions before the Referee; and
(vi) Failing to permit the Applicant with the
opportunity to hear the evidence and submissions of the Respondent first hand
at the time of the hearing, or to provide the Applicant a transcript or other
alternative means to be able to know the Respondent's oral evidence and
submissions, and upon the basis of which to be able to rebut the evidence and
submissions presented by the Respondent in relation to material issues before
the Referee.
[9]
During the course of the hearing of the present
Application, Counsel for Canamex argued that the Referee’s failure to properly
conduct a hearing that would resolve the credibility issue leaves a cloud of suspicion
over his client’s integrity and interests. I can certainly understand that
concern.
[10]
I accept the concerns expressed by the President
of Canamex. I find that the Referee knew, or should have known, the credibility
issue was at the heart of the dispute. In my opinion, the process selected by
the Referee could not possibly have reached a fair determination on the issue. I
find that the Referee’s failure to accommodate a process that would result in a
proper finding on the issue was a breach of a duty of fairness owed to Canamex.
As a result, I find that the decision under review is made in reviewable error.
Email this Content