Date:
20080423
Docket:
A-285-07
Citation: 2008
FCA 154
CORAM: RICHARD
C.J.
SEXTON
J.A.
EVANS
J.A.
BETWEEN:
JOHN COLISTRO
Appellant
and
BMO BANK OF
MONTREAL
Respondent
REASONS FOR JUDGMENT OF THE
COURT
(Delivered
from the Bench at Edmonton, Alberta, on
April 23, 2008)
EVANS J.A.:
[1]
This is an
appeal by John Colistro from a decision of the Federal Court (2007 FC 540), in
which Justice Martineau dismissed his application for judicial review to set
aside a decision of an Adjudicator appointed under section 242 of the Canada
Labour Code, R.S.C. 1985, c. L-2. In his decision, dated August 16, 2006,
the Adjudicator rejected the complaint of unjust dismissal that Mr Colistro had
made under section 240 of the Code. Mr Colistro had argued that his resignation
from his employment with the Bank of Montreal, after 30 years of service, was
not voluntary, because the humiliating and hostile environment at the Bank
constituted constructive dismissal.
[2]
Mr
Colistro bases his appeal on three grounds. First, the Adjudicator’s decision
should be set aside because his conduct at the hearing gave rise to a
reasonable apprehension of bias, in that the Adjudicator shook hands with a
witness for the Bank and interrupted the cross-examination by Mr Colistro’s
counsel of one of the Bank’s witnesses.
[3]
We do not
agree. A party must make an allegation of bias as soon as reasonably possible
in the circumstances, and is not entitled to wait until informed of the
decision. Mr Colistro was represented by counsel at the hearing, who did not at
that time allege bias. Mr Colistro first raised the issue of bias in his notice
of application for judicial review. This was too late. In any event, we agree
with the Applications Judge that, on the evidence before him, the allegation of
bias is without merit.
[4]
Second, Mr
Colistro says that the absence of a transcript of the hearing before the
Adjudicator constituted a breach of the duty of fairness. Neither Mr Colistro
nor his counsel requested that the hearing be recorded. The absence of a
transcript was not a ground relied on before the Applications Judge, and should
not be raised, for the first time, on appeal. Further, there is no general duty
to record administrative proceedings, and we are not persuaded that the absence
of a transcript prevents us from fairly determining the substantive grounds on
which Mr Colistro challenges the Adjudicator’s decision. Both parties were
permitted to file affidavit evidence with regard to particular oral evidence
given at the hearing, and otherwise to supplement the record for review. There
was also a substantial amount of documentary evidence in the record.
[5]
Third, Mr
Colistro argues that the Adjudicator erred in making some of the findings of
fact on which he based his conclusion that the working environment at the Bank
was not so hostile that Mr Colistro was effectively forced to resign.
[6]
The
standard of review of the Adjudicator’s findings of fact is set out in
paragraph 18.1(4)(d) of the Federal Courts Act, R.S.C.1970,
c.F-7, namely that the decision was based on an erroneous finding of fact made
in a perverse or capricious manner or without regard to the material before
him. This standard connotes a high degree of deference. The Adjudicator’s
application of the legal test for constructive dismissal is a question of mixed
fact and law and, as such, is presumptively reviewable for unreasonableness.
The presence of a strong preclusive clause in section 243 of the Code also
clearly indicates the applicability of the unreasonableness standard. See Dunsmuir
v. New
Brunswick,
2008 SCC 9 at paras. 52 and 53.
[7]
The
Adjudicator dealt with each of the incidents relied on by Mr Colistro to
support his allegation that he was constructively dismissed. The Adjudicator
reviewed in his reasons the principal items of evidence, explaining why he
accepted the testimony of some witnesses over that of others, and set out his
conclusions, finding that neither individually nor collectively did they
constitute constructive dismissal.
[8]
The
Adjudicator may not have mentioned in his reasons all the evidence presented to
him, and was under no obligation to do so, and may possibly have made some
mistakes. However, like the Applications Judge, who carefully reviewed the
evidence and the Adjudicator’s findings, we are not persuaded on the basis of
Mr Colistro’s submissions that, if there were defects in the Adjudicator’s
factual findings, they were sufficiently important or serious as to warrant our
intervention under paragraph 18.1(4)(d), or that the Adjudicator’s
conclusion that Mr Colistro had not established constructive dismissal was
unreasonable. We would only emphasize that it is not the role of the Court on
an application for judicial review to re-determine the facts, but merely to
ensure that they have some rational support in the evidence.
[9]
Finally,
there is no basis on which this Court may interfere with the exercise of
discretion by the Applications Judge to award costs to the Bank.
[10]
For these
reasons, the appeal will be dismissed.
“John
M. Evans”
FEDERAL COURT OF APPEAL
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: A-285-07
(APPEAL FROM
AN ORDER OF THE HONOURABLE MR. JUSTICE MARTINEAU DATED MAY 23, 2007, DOCKET
NO. T-1596-06)
STYLE OF CAUSE: John
Colistro v.
BMO Bank of Montreal
PLACE OF HEARING: Edmonton, AB
DATE OF HEARING: April 23, 2008
REASONS FOR JUDGMENT OF THE COURT BY: RICHARD C.J., SEXTON, EVANS, JJ.A.
DELIVERED FROM THE BENCH BY: EVANS, J.A.
APPEARANCES:
|
Mr. John Colistro
|
ON HIS OWN BEHALF
|
|
Mr. Daniel
Hagg
|
FOR THE RESPONDENT
|
SOLICITORS OF RECORD:
|
|
|
|
Bryan &
Company LLP
Edmonton, AB
|
FOR THE
RESPONDENT
|
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