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Federal Court of
Appeal
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Cour d’appel fédérale
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Date: 20120208
Dockets:
A‑265‑11
A‑266‑11
Citation:
2012 FCA 43
CORAM: LÉTOURNEAU J.A.
NOËL J.A.
MAINVILLE J.A.
BETWEEN:
ROBERT GRAVEL
Appellant
and
TELUS COMMUNICATIONS INC.
Respondent
REASONS FOR JUDGMENT
THE COURT
Facts giving
rise to these appeals
[1]
These are two appeals consolidated for hearing
by an order made on August 16, 2011, by our colleague, Madam Justice
Trudel. The appeals were filed against a decision by Justice Beaudry (judge) of
the Federal Court in files T‑2086‑09 and T‑2087‑09.
[2]
By his decision dated June 7, 2011, the
judge dismissed both applications for judicial review filed by the appellant in
respect of two decisions made by a grievance arbitrator (adjudicator/referee).
The first of these decisions was made following an unjust dismissal complaint
filed by the appellant against his employer Telus Communications Inc., the
respondent in these appeal proceedings. The second decision concerned claims
for wages and other benefits which the appellant believed he was entitled to
receive in the circumstances.
[3]
On November 6, 2009, at the end of a 15‑day
hearing, the adjudicator/referee concluded, in a highly developed and detailed 184‑paragraph
decision, that the appellant’s termination of employment resulted not from a
dismissal, but from a layoff following the respondent’s nation‑wide
restructuring of some of its offered services. According to the
adjudicator/referee, this restructuring involved the discontinuance of the positions
of [translation] “Sales
Specialist (SS) attached to the National Applicative Solution (NAS) division of
the Telus Solution d’Affaires/Telus Business Solution (TBS) business unit”: see
paragraph 20 of the adjudication decision dated November 6, 2009. The
appellant held one such position. Consequently, the adjudicator/referee
determined that he had no jurisdiction to deal with the appellant’s unjust
dismissal complaint.
[4]
The second decision, regarding wage recovery, is
dated November 12, 2008, and just as unequivocal as the first. It contains
196 paragraphs of facts and analysis. That decision allowed the employer’s
appeal, dismissed the employee’s appeal (the appellant in these appeals), and
ordered that the employer be reimbursed an amount of $34 079.55 that had been
placed in trust for the appellant.
Decision of
the Federal Court judge
[5]
The judge hearing the applications for judicial
review reviewed the adjudication and wage recovery decisions on the
reasonableness standard. He ruled that the adjudicator/referee’s conclusions
were logical and supported by the evidence, such that his intervention was
neither desirable nor warranted in accordance with the legal standards
applicable in the matter: see his reasons for decision at paragraphs 19,
30, 32, 36 and 43 to 47.
[6]
The appellant also complained that there had
been a breach of procedural fairness in the course of the hearings before the
adjudicator/referee. To analyze this issue, the judge applied the correctness
standard. In his view, the appellant had been unable to meet his burden of
proving that there had been a breach of procedural fairness: ibid., at
paragraphs 55 to 60. As a result, the applications for judicial review
were dismissed.
Analysis of
the judge’s decision
[7]
It can only be deplored that at no time did the
appellant have the benefit of representation by attorney, particularly at the
crucial stage of the hearing before the adjudicator/referee. The Court
therefore informed the appellant of the limits of its powers on appeal from a
Federal Court decision made in judicial review of adjudication and wage
recovery decisions. We indicated to the appellant that he had to satisfy us
that the judge had either made errors of law or made palpable and overriding
errors of fact or of mixed fact and law which would, in fact or in law, warrant
our intervention. Last, the Court also told the appellant that, if necessary
and subject to the limits imposed by its adjudicative function, it would assist
and guide him through the conduct of the hearing.
[8]
On appeal, as on judicial review, the appellant
faced a colossal challenge. First, the Court must treat adjudication and wage
recovery decisions with great deference, and, as the judge quite rightly
decided, they are subject to the reasonableness standard for the purposes of
intervention: Dunsmuir v. New Brunswick, [1008] 1 S.C.R. 190; Canada (Citizenship and Immigration) v. Khosa,
[2009] 1 S.C.R. 339.
[9]
Second, complaints of the nature of those raised
by the appellant rely, as a general rule, largely on questions of fact and
necessarily raise issues of credibility which fall within the jurisdiction of
the adjudicator/referee. As evidenced by the adjudication and wage recovery
decisions, the appellant’s case is not an exception to that rule. Indeed,
referring to the adjudicator/referee, the judge wrote the following at
paragraphs 31, 32, 45 and 46 of his reasons for decision:
[31] The panel had the opportunity to see and hear the parties,
assess their credibility and scrutinize the documentary evidence.
[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.
. . .
[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.
In these
circumstances, the reviewing judge cannot substitute his or her own assessment
of witness credibility for that of the adjudicator/referee.
[10]
Third, in the case at bar, there are no
stenographic notes of the hearings before the adjudicator/referee. This lack of
stenographic notes not only renders difficult and perilous a determination,
made on the basis of contradictory affidavits, of a breach of procedural
fairness (see paragraph 56 of the judge’s reasons for decision), it also
makes it impossible to verify the merits of any allegation purporting that a
conclusion by the adjudicator is contrary to the testimonial or even
documentary evidence, or is not supported by them. The following example
illustrates the difficulty faced by both the judge and the Court.
[11]
Partly in support of the argument that he was
dismissed with cause, the appellant refers to a letter sent by counsel for the
respondent to Johanna Blanchette, an inspector working for the Government of
Canada:
[translation]
First of all, Telus terminated the employment of Robert
Gravel (the “Employee”) for performance and competency reasons following a
corporate restructuring. Following this decision by Telus, the Employee was
offered a sum as pay in lieu of notice. This sum may be described as generous,
considering that he had acquired 1 year and 10 months’
seniority. It must be noted that, following the corporate restructuring, the
position held by the Employee no longer exists.
[Emphasis added.]
[12]
There is no doubt that the underlined passage
gives rise to differing interpretations. Counsel for the respondent
acknowledged as much at the hearing before us, but asserted and explained that
the quoted excerpt had been the subject of a number of testimonies and numerous
extensive discussions before the adjudicator/referee. He stated that the term [translation] “performance” used in the
letter did not refer to the appellant’s performance, but to the respondent’s
performance as a business. However, he admitted that the term [translation] “competency” did refer to
the appellant’s competency, but as it stood on the day following the
restructuring, after his position had been discontinued: he did not have the
required experience and competency for reassignment within the new structure.
[13]
This statement by counsel for the respondent can
undoubtedly be verified at paragraphs 43 to 92 of the adjudication
decision dated November 6, 2009, in which the adjudicator/referee gave an
account of the witnesses’ statements on these two questions and analyzed them.
However, without stenographic notes, it is impossible for us to verify the
accuracy of the adjudicator/referee’s account or analysis or to make
comparisons with the testimonial evidence before us. It is even less open to us
to substitute our opinion for that of the adjudicator/referee on the basis of
affidavits which attempt to reconstruct or interpret the testimonies received
by the adjudicator/referee.
[14]
The judge who ruled on both applications for
judicial review did not see, in either the adjudication decision or the wage
recovery decision, any error of law, of fact or of mixed fact and law in the
absence of which the adjudicator/referee could have concluded differently than
he did. Our analysis of the adjudication decision and the wage recovery decision,
the contentions of the parties and the judge’s decision has satisfied us that
we have no legitimate legal ground to intervene and set aside his decision.
Conclusion
[15]
For these reasons, we are of the opinion that
the appeals in files A‑265‑11 and A‑266‑11 should
be dismissed with costs, limited, however, to one set for the hearing and
preparation for
the hearing. A
copy of these reasons will be included in file A‑266‑11 in
support of the judgment of the Court.
“Gilles Létourneau”
“Marc Noël”
“Robert M. Mainville”
Certified true
translation
Sarah Burns
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