Docket: T-1606-14
Citation:
2015 FC 439
[UNREVISED ENGLISH CERTIFIED TRANSLATION]
Ottawa, Ontario, April 9, 2015
Present: The Honourable Madam Justice Gagné
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BETWEEN:
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RNC MÉDIA INC.
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Applicant
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and
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DENIS CÔTÉ
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Respondent
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JUDGMENT AND REASONS
[1]
This is an application for judicial review of a
decision of an adjudicator appointed pursuant to Division XIV of Part III
of the Canada Labour Code, RSC 1985, c L-2 [Code], dated June 13, 2014,
by which the adjudicator allowed the respondent’s unjust dismissal complaint
and confirmed his right to be reinstated in his employment as a sales
representative with the applicant.
[2]
The applicant essentially argues that the
adjudicator was biased, breached the principles of natural justice and
procedural fairness by not allowing him to cross-examine the respondent, and
erred in concluding that the respondent had been unjustly dismissed. The
applicant also argues that, since the adjudicator severed the hearing, he
should not have ruled on the respondent’s right to be reinstated in his employ
at this stage of the proceedings, which he did.
[3]
For the reasons that follow, the employer’s
application for judicial review will be dismissed.
I.
Facts
[4]
The applicant is a broadcasting company that
owns several radio and television stations.
[5]
In April 2008, the applicant hired the
respondent as its senior local sales representative. His first contract of
employment was for a four-month term and was followed by four consecutive
one-year contracts. On September 7, 2012, the respondent received a letter
from the applicant, along with his contract of employment for the 2012-2013
fiscal year. The letter stated that he had 48 hours to sign the contract; if
he failed to do so, this would be interpreted as a sign of his intention to
resign. The contract enclosed with this letter contained the following clause:
[translation]
The contract between the parties is for a term
of three (3) months and may be renewed if the employee achieves the objective
of 15% for new client development, subject however to the cancellation
provisions in this contract.
[6]
The respondent signed the contract on
September 12, 2012, and filed a complaint of constructive dismissal on
October 25, 2012. In the complaint, he claims that after he was absent for
seven weeks on sick leave in the summer of 2011, the applicant hired some
junior sales representatives, transferred nearly 50% of his clients to them for
no good reason, changed the title of his position to Advertising Adviser and
changed his employment contract to make it a three-month term contract.
[7]
On November 13, 2012, the applicant terminated
the respondent’s employment. His letter of dismissal reads as follows:
[translation]
On October 31, 2012, you filed a
complaint with Human Resources and Skills Development Canada (HRSDC), a
complaint which should have remained confidential. Today, we note that, despite
the verbal agreement that you had with [the applicant], you have not honoured
this commitment, unfortunately. You yourself have said that you spoke to some
of your colleagues about this. Disclosing your complaint to them created a
serious climate of insecurity and had a widespread negative influence on many
of them.
[8]
On November 21, 2012, the respondent filed
a second complaint, this time for unjust dismissal under sections 240 et
seq. of the Code.
[9]
The adjudicator allowed the respondent’s unjust
dismissal complaint and found that he had been dismissed without good and
sufficient cause. The adjudicator was of the opinion that the applicant’s evidence
did not show that the respondent performed poorly, had a negative attitude or
created a [translation] “serious climate of insecurity” among his co-workers
by talking about his first complaint. The fact that the respondent exercised
his right to file a complaint and talked about it with his colleagues did not
constitute a valid ground for dismissal. The adjudicator concluded that the
respondent was entitled to be reinstated, and he reserved jurisdiction with
regard to the terms of the reinstatement or other possible remedies.
II.
Issues and standard of review
[10]
In this Court, the applicant is not challenging
the adjudicator’s decision on the merits, but rather the process followed. The
applicant raises the following issues:
1. Did the adjudicator breach the principles
of procedural fairness?
2. Did the adjudicator exceed his
jurisdiction in deciding that the respondent was entitled to be reinstated in
his employment?
[11]
Since these are questions of procedural fairness
and jurisdiction, the applicable standard is correctness (Dunsmuir v New Brunswick,
2008 SCC 9; Canada (Citizenship and Immigration) v Khosa, 2009 SCC 12).
III.
Analysis
A.
Procedural fairness
[12]
The applicant raises several breaches of the
principles of procedural fairness on the part of the adjudicator. First, it
submits that the adjudicator’s conduct throughout the hearing of the
respondent’s complaint, which lasted four days, gave rise to a reasonable
apprehension of bias. Second, it criticizes the adjudicator for substantially
limiting its right to cross-examine the respondent, which is in itself a breach
of procedural fairness (BREST Transportation Ltd v Noon, 2009 FC 630 at
paras 7-8). Third, it criticizes him for not considering the subpoena duces
tucem served on the respondent and for not forcing him to comply with it
and produce the requested documents.
[13]
The applicant submitted affidavits from his
general manager, Philippe Lefebvre, and from his sales manager, Steve Hayes. These
affidavits are almost identical and contain the following allegations (excerpts
from the affidavit of Mr. Lefebvre):
[translation]
16. I soon realized that Bruno Leclerc [the
adjudicator] had a preconceived idea in this case and that he appeared to be
biased in favour of the respondent Côté’s argument right from the first moments
of the hearing (my testimony);
17. I noted that he did not take any notes
when I gave evidence that was important to the applicant’s position and that,
in contrast, he took many notes when evidence that could be harmful to RNC
Média Inc.’s case was given;
18. When witnesses were examined or
cross-examined, he systematically interrupted them to ask questions as if he
were counsel for the respondent Côté;
19. I soon lost confidence in the process
and in the decision maker’s impartiality;
. . .
21. In the last two (2) days, Bruno Leclerc completely
lost his self-control, in my opinion, leaving no doubt as to his bias;
22. He constantly interrupted our counsel’s
examinations and cross-examinations;
23. He systematically objected to nearly all
the questions that our counsel put to the respondent Côté;
24. He refused to allow our counsel to
cross-examine the respondent Côté;
25. He stated that it was not possible for
the Employer to cross-examine the complainant;
26. He stated that the Employer could only
ask open-ended, non-leading questions;
. . .
28. Adjudicator Leclerc refused to render a
formal decision, even after counsel for RNC Média Inc. requested it, to the
effect that counsel was not entitled to cross-examine the respondent Côté;
. . .
30. The adjudicator never ordered the
respondent to answer the questions of counsel for RNC Média Inc., even though counsel
for the respondent did not object and counsel for the applicant had asked that
this be done (i.e., that the witness be required to answer);
. . .
37. Adjudicator Leclerc repeated that
whatever points he might raise and whatever the proceeding, he would continue ex
parte, as he was entitled to do;
[14]
The respondent, on the other hand, submitted an affidavit
in which he alleges that counsel for the applicant was allowed to conduct a
cross-examination with regard to the questions asked by his counsel, that the
adjudicator took just as many notes when the applicant’s representatives
testified, and that counsel for the applicant constantly argued with the adjudicator
and threatened to walk out of the hearing if he was not permitted to ask
leading questions. It was at that point that the adjudicator allegedly said
that if the applicant and his counsel left the hearing room, they would
continue ex parte. Finally, the respondent alleges that the adjudicator
did not refuse to suspend the hearing; he actually proposed doing so.
[15]
I will begin by addressing the adjudicator’s
refusal to render an interlocutory decision on the scope of the
cross-examination of the respondent by counsel for the applicant. As we shall
see further on, the adjudicator instead chose to decide that issue in his
adjudication decision. He had full discretion to do so, and even if he had
rendered an interlocutory decision instanter, it could not be the
subject of an application for judicial review before this Court. It could only
be challenged upon judicial review of the adjudicator’s final decision (Canada
(Border Services Agency) v C.B. Powell Limited, 2010 FCA 61, at para 31).
The adjudicator therefore did not err in informing the applicant that if it and
its counsel chose to walk out before the hearing was over, they did so at their
own risk, since the hearing could continue without them.
[16]
As is commonly the practice in such proceedings,
the applicant chose to call the respondent as a witness when making its case. This
is the context in which the adjudicator first restricted what the applicant
refers to as the cross-examination of the respondent but was, in fact, an
examination-in-chief. The adjudicator returned to this issue in his decision
and, relying on paragraphs 242(2)(b) and (c) of the Code,
submitted that he was in control of the proceeding and of the evidence
presented to him and that he was not subject to the rules of the Code of
Civil Procedure of Québec. He was therefore not required to allow counsel
for the applicant to put leading questions to his own witness, the respondent.
Here is how he disposed of the issue:
[translation]
[102] Therefore, when the Employer or its
counsel calls the complainant as a witness to establish the facts underlying
its claims, it cannot, in my view, rely on article 306 of the Code of
Civil Procedure to ask questions that suggest the desired answer, i.e.
leading questions, nor may it criticize the complainant or cross-examine him as
it would an opposing party within the meaning of the Code of Civil Procedure,
that is, a party having interests opposed to the party who is questioning him,
which is what counsel for the Employer did in this case.
[17]
With respect, I am of the opinion that putting
leading questions to a witness must be distinguished from criticizing him or
her or conducting a proper cross-examination. I have difficulty seeing how
counsel for the employer could examine the complainant effectively and
encourage the discovery of facts relevant to the complaint if counsel did not
have some latitude and could not ask questions in such a way as to suggest the
desired answer. Although the adjudication of an unjust dismissal complaint is
more akin to an inquiry than to a civil trial, the fact remains that the
complainant has interests opposed to those of the employer. The applicant
argues that it was entitled to cross-examine the applicant when making its
case, while the respondent argues that it was not entitled to ask leading
questions. Like Adjudicator Weatherill in Re Royal Canadian Mint and
Public Service Alliance of Canada, [1978] OLAA No 100, 20 LAC (2d) 127
(cited with approval by Adjudicator Bastien in National Bank of Canada
v Paitich, 2011 CanLII 89184 (CA LA) at para 57), I find that the
balance lies between these two positions :
There is no doubt, and the board has already
ruled, that the employer is entitled to call the grievor as its witness. In
doing so, the employer puts that person forward as a credible witness, and
while he is obviously adverse in interest to the employer, he is not
necessarily a hostile witness. Unless it is established, either by the witness’s
behaviour and demeanour (and we would add that it would take an extreme case to
lead us to the conclusion required), or by proof of his having made a prior
inconsistent statement which he has denied, that he is a hostile witness, then
he is not subject, on examination by the party calling him, to the sort of
rigorous cross-examination to which one might subject a witness called by the
other side. Leading questions which attack his credibility or his powers of
observation, for example, may not be put. Counsel may, however, since the
witness is adverse (although not hostile), put questions which are leading to a
certain degree. We think the criteria for judgment in these circumstances must
be realism and fairness. It is not fair, especially in a labour arbitration, to
make one’s own case by cross-examining the other party whom one calls as one’s
own witness. On the other hand, it is not realistic to expect enthusiastic and
voluminous response from a witness called in such circumstances. Leading
questions may be put, then, but with restraint.
[18]
Professor Léo Ducharme explains this nuance and
the origin of the rule:
[translation]
. . . In Quebec law, a witness does not have
to be declared “hostile” before leading questions can be put to him or her; all
that is necessary is that the witness attempt to elude a question or to favour
another party. It is up to the court, however, to assess the witness’s conduct,
and the court’s leave is required to ask the witness leading
questions. . . . This exception was inspired by common law rules
regarding what are called “hostile” witnesses. (Léo Ducharme and Charles-Maxime
Panaccio, L’administration de la prevue, 4th ed (Montréal: Wilson &
Lafleur ltée, 2010), at para 682).
[19]
In any event, this argument has little impact on
the case at hand.
[20]
First, the adjudicator did in fact give counsel
for the applicant some latitude in allowing him to put leading questions to the
respondent, provided that the questions were relevant. This is apparent from paragraph 58
of his decision.
[21]
Second, counsel for the respondent decided in
the end to have the respondent testify as part of their case, such that counsel
for the applicant had the opportunity to cross-examine him. Although the
applicant does not plead in its memorandum of fact and law that its counsel’s
cross-examination of the respondent was restricted, it did make this argument
at the hearing, in response to questions from the Court. Counsel for the
applicant responded that he was limited to questions put to the respondent by
his counsel, and that he was prevented from bringing up subjects that had
already been raised in his own evidence. Counsel for the applicant acknowledged
that, given how his examination of the respondent had been limited when he made
his case, he did not press the issue and made his cross-examination a rather
short one. In his affidavit, the respondent states that he was cross-examined
by counsel for the applicant, and this cross-examination is addressed in
paragraphs 74 and 75 of the adjudicator’s decision.
[22]
It is wrong to suggest that a cross-examination
must be limited to the subjects covered by the witness upon examination-in-chief.
When requests to ask certain relevant questions or to cross-examine on an
important aspect of the case are denied, this will generally constitute a
breach of natural justice (Imperial Oil Ltd. v Alberta (Minister of Environment),
2003 ABQB 388, at para 70). However, in light of the evidence in the record, I
have no reason to believe that such limitations were imposed in this case or
that counsel for the applicant did not have the chance and the latitude to
cross-examine the respondent when the respondent made his case.
[23]
Third, the purpose of the cross-examination of
the respondent was to show that his employment had been terminated because of
an attitude problem and his refusal to grow his client base and mentor the
junior salespeople. However, these facts were in no way raised in the
respondent’s letter of dismissal, nor were they the subject of any prior
disciplinary action against the respondent. Moreover, the applicant’s two
representatives admit in their affidavits that at no time before the respondent
spoke to his co-workers about his first complaint did the applicant consider
dismissing him. Even if the respondent had an attitude problem, the adjudicator
was correct to conclude that this problem did not warrant dismissal in the
circumstances and that this was not, in fact, what motivated the applicant to
terminate his employment.
[24]
As for the subpoena duces tecum served on
the respondent, the evidence is silent as to its contents, the relevance of the
documents requested and the evidence that the applicant was allegedly prevented
from introducing. The sole reference to that document is found in the
applicant’s memorandum, and no mention is made of it in the affidavits or in
the impugned decision. The Court therefore cannot rule on this issue.
[25]
Finally, the applicable test for determining
whether a decision maker’s behaviour raises a reasonable apprehension of bias
is the one set out by the Supreme Court in Committee for Justice and Liberty
v National Energy Board, [1976] 6 SCJ 118 at para 40:
[T]he apprehension of bias must be a
reasonable one, held by reasonable and right minded persons, applying
themselves to the question and obtaining thereon the required information. In
the words of the Court of Appeal, that test is “what would an informed person,
viewing the matter realistically and practically—and having thought the matter
through—conclude. Would he think that it is more likely than not that [the
adjudicator], whether consciously or unconsciously, would not decide fairly.”
[26]
Given that no recording or transcript was made
of the hearing of the complaint before the adjudicator, the Court finds it
rather difficult to assess the decision maker’s attitude and impartiality. The
evidence on this subject is contradictory. On the one hand, the applicant’s two
representatives state in their nearly identical affidavits that the adjudicator
was biased, constantly interrupted when their counsel examined the witnesses,
and did not take any notes. On the other hand, the respondent states the
contrary and claims that it was that attitude of counsel for the applicant that
was causing problems. The analysis of this evidence is especially limited
because there was no examination on affidavit or testimony before the Court.
[27]
As the Federal Court of Appeal wrote in Gravel
v Telus Communications Inc, 2012 FCA 43 at para 10, it is perilous to
find a breach of procedural fairness on the basis of contradictory affidavits.
[28]
In the circumstances of this case, I am of the
opinion that the applicant has not shown that the adjudicator’s behaviour gave
rise to a reasonable apprehension of bias. Moreover, if the Court had to choose
one version of the facts over another, I am of the view that the respondent’s
version is more consistent with the adjudicator’s observations, particularly
with regard to the attitude of counsel for the applicant towards the
respondent:
[translation]
[62] Counsel for the complainant objected to
continuing the examination, arguing that counsel for the Employer was badgering
the witness. A debate ensued regarding counsel for the Employer’s
cross-examination of a witness that he himself had called. He implied that he
and his client would walk out of the hearing if the adjudicator did not allow
his questions. The adjudicator told counsel for the Employer that the hearing
could continue ex parte and reminded him of the wording of
subsection 242(2) and paragraph (c) of section 16 of the Canada
Labour Code. Counsel for the complainant was ready to continue the hearing ex
parte if necessary.
[63] The hearing was suspended to allow
counsel for the Employer to consult with his client and decide whether to walk
out of the hearing or stay.
[29]
For all these reasons, I find that the
applicant’s first argument must be rejected.
B.
Did the adjudicator exceed his jurisdiction?
[30]
The applicant submits that the adjudicator
exceeded his jurisdiction in deciding that the respondent was entitled to be
reinstated in his employ because the adjudicator had severed the proceeding and
had stated that he would confine himself to determining whether the dismissal
was unjust.
[31]
Here is the relevant excerpt from his reasons:
[translation]
[15] The parties’ evidence dealt primarily
with the facts that led to the Employer to terminate the complainant’s
employment and with facts that, according to the complainant, show that the
dismissal was unjust. This means that no evidence was presented regarding facts
that would allow the adjudicator, if he decides that the dismissal was unjust,
to make orders pursuant to subsection 242(4) of the Code. As is the usual
practice, I will therefore reserve jurisdiction to hear this evidence after the
fact, if necessary, and make orders pursuant to that provision of the Code if
need be.
[32]
And here are the conclusions in his decision
which are relevant to the consideration of this issue:
. . .
DECLARES that Denis Côté is entitled to be
reinstated in his employ;
RESERVES jurisdiction to order this
reinstatement at the request of a party, set the terms of the complainant’s
reinstatement and resolve any difficulty arising from the reinstatement order;
. . .
[33]
With respect, I see no contradiction between
what the adjudicator wrote in his reasons and what he rendered as an order.
Since he did not rule on the respondent’s constructive dismissal complaint, he
will necessarily have to hear the evidence needed to complete his adjudication
award and make the orders that the Code allows him to make. I find that the
adjudicator could rule on the respondent’s right to be reinstated in his employ
while reserving his jurisdiction with regard to the terms of the reinstatement
and with regard to any other order that subsection 242(4) of the Code
allows him to make.
IV.
Conclusion
[34]
I am therefore of the opinion that the
applicant’s application for judicial review should be dismissed with costs.
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