Docket: A-458-15
Citation: 2016 FCA 243
|
CORAM:
|
TRUDEL J.A.
BOIVIN J.A.
DE MONTIGNY J.A.
|
|
BETWEEN:
|
|
LAURENT DUVERGER
|
|
Appellant
|
|
and
|
|
2553-4330
QUÉBEC INC. (AÉROPRO)
|
|
Respondent
|
REASONS FOR JUDGMENT
TRUDEL J.A.
I.
Procedural background and appellant’s submissions
[1]
The appellant, Mr. Duverger, was employed by
2553-4330 Québec Inc. (the employer) from May 12, 2008, to
June 21, 2010. More than three years later, he filed a complaint
against his employer under the Canada Labour Code, R.S.C. 1985,
c. L-2 (the Code), claiming that he had not received the regular and
overtime pay he was owed and that unauthorized deductions had been made from
his wages.
[2]
After analyzing the complaint, Inspector Johanne Blanchette
issued a payment order requiring the employer to remit to the Receiver General
for Canada, for the account of Mr. Duverger, [translation] “a total amount of $6,730.64,
less deductions permitted pursuant to paragraphs 254.1(2)(a), (b)
and (e) of the Code” (Appeal Book, volume 1, at page 72).
The employer sent a cheque in the amount of $3,624.46 (ibidem, at
page 70) and then immediately appealed from the payment order (Motion to
Appeal, Appeal Book, volume 1, at page 37). The employer’s main
argument was that Mr. Duverger was precluded from filing a complaint for
the recovery of wages and other benefits because the right of action was time-barred.
Alternatively, the employer argued that the appellant’s monetary claims were
unfounded.
[3]
The referee appointed to hear the appeal
accepted the employer’s preliminary argument and declared that the appellant’s
right of action was time-barred.
[4]
As a result, Inspector Blanchette’s
decision was set aside, and the Receiver General for Canada was ordered to
return to the employer the amount paid to Mr. Duverger, plus interest
accrued on that sum since its deposit (arbitration award, 2014-224 YM2727-3508,
2015 LNSARTQ 40 (QL), Appeal Book, volume 1, at page 54).
[5]
Mr. Duverger sought judicial review of the
arbitration award. A Judge of the Federal Court (the Judge) dismissed his
application. The Federal Court’s decision is cited as 2015 FC 1131.
[6]
This is an appeal from that decision. I would
dismiss this appeal without costs given the particular circumstances of this
case.
[7]
Two determinative issues are controverted
between the parties and were raised by them before the referee as preliminary
objections. As mentioned hereinabove, the employer argued that the appellant’s
right of action was time-barred, whereas Mr. Duverger argued that the
employer had not been permitted to appeal from the decision of Inspector
Blanchette, because the sum of $3,624.46 paid by the employer in response to
the payment order did not fulfil the employer’s obligations under the Code.
[8]
In support of that argument, Mr. Duverger cites
section 251.11 and paragraphs 254.1(2)(a), (b) and (e)
of the Code. Read jointly, these provisions, which are attached as an appendix
to these reasons, show that an employer is not permitted to appeal from a
decision relating to a payment order unless it has paid the amount indicated in
the payment order. Under the Code, the permitted deductions include “those required by a federal or provincial Act or regulations
made thereunder.”
[9]
In this case, Mr. Duverger blames the
employer for having deducted 46% of the amount indicated in the decision, leaving
a net balance he describes as [translation]
“substantially inferior” to the gross amount
awarded. He argues that the Federal Court’s judgment was unreasonable in that
it did not acknowledge that fact.
[10]
The appellant adds that the Federal Court erred
in considering the employer’s preliminary objection before his.
[11]
With regard to the time limitations,
Mr. Duverger argues that it was impossible for him to act within the
meaning of article 2904 of the Civil Code of Québec, R.L.R.Q.,
c. C-1991 on account of his [translation]
“chronic post-traumatic stress disorder” and the
[translation] “major depressive episode” that resulted from that
disorder when he quit his job with the employer (appellant’s Memorandum of Fact
and Law, at paragraph 46).
[12]
According to him, the referee and Judge erred in
rejecting that argument. The referee also allegedly erred in refusing to admit
the recent medical certificate that the appellant sought to file on the day of
the hearing. Mr. Duverger submits that the referee denied him procedural
fairness.
[13]
At paragraph 35 of the arbitration award,
the referee wrote:
[translation]
No prior notice was given concerning this
medical certificate, addressed [translation]
“To whom it may concern.” As a result, the attending physician could not
be cross-examined. . . . It was more of a certificate of convenience and/or
compassion. [Bold in the original]
II.
Judgment of the Federal Court
[14]
In his reasons, the Judge identified the five issues
before him as follows:
(1)
Did the referee err in agreeing to hear the employer’s
appeal from the payment order?
(2)
Did the referee err in holding that the
three-year limitation period provided for in article 2925 of the Civil
Code of Québec applied?
(3)
Was the limitation period interrupted by the
fact that it was impossible for Mr. Duverger to act?
(4)
Did the referee breach procedural fairness by
refusing to admit the medical certificate?
(5)
Is the applicable limitation period subject to
the doctrine of reasonable accommodation?
[15]
The Judge did not clearly dispose of the first
issue, but answered the others in the negative.
III.
Analysis
A.
Standard of review
[16]
On appeal from the Federal Court’s decision,
this Court must focus on the arbitration award and ask whether the Judge chose
the correct standards of review and applied them properly (Agraira v. Canada
(Public Safety and Emergency Preparedness), 2013 SCC 36, [2013] 2 SCR 559).
[17]
As mentioned at paragraph 20 of his
judgment, the Judge applied the standard of correctness to issues 2
and 4—pertaining to prescription and procedural fairness—and the standard
of reasonableness to the remaining three issues. That was not an error.
B.
Employer’s appeal
[18]
I agree with the appellant that it would have
been preferable and logical for the referee and the Judge to specifically
address his preliminary objection pertaining to the referee’s jurisdiction to
hear a misconceived appeal before considering the employer’s preliminary
objection regarding prescription. Without an appeal duly filed by the employer
from the payment order, there was nothing to decide. Therefore, the Judge erred
in reversing the order of analysis of these objections. This error is all the
more surprising given that this was the first issue raised by the Judge. At
paragraph 34 of his reasons, the Judge simply stated that the referee had
not addressed the appellant’s objection, and then added, “Regardless, if the [appellant]’s claim had not been declared
time-barred, he could have made his submissions and recovered the allegedly
illegal amounts from the tax authorities.”
[19]
That being said, I disagree with the remainder
of the appellant’s arguments. Indeed, I am of the view that the initial
decision makers’ failure to specifically address his objection is not
determinative of the outcome of this appeal.
[20]
I have carefully reviewed the record, and the
appellant has not satisfied me that the deductions withheld by the employer—46%
of a gross lump sum of $6,730—were abusive, even taking into account his usual
hourly pay rate of $12 (see pay stub and breakdown of tax deductions, Appeal
Book, volume 1, at page 46). Mr. Duverger has not shown that
these deductions exceeded those specified in the decision (subsection 251.11(3)
of the Code). It must also be remembered that Inspector Blanchette had
indicated in her report concerning the employer’s motion to appeal that the
latter’s appeal was admissible because the payment had been included with the
motion, and the deductions had been withheld pursuant to the Code (report
concerning a motion to appeal under section 251.11 in Part III of the
Code, Appeal Book, volume 1, at page 150).
[21]
I would add that if the appellant had succeeded
on the merits, the amount awarded by the inspector and the deductions withheld
by the employer would have appeared on his tax return for the relevant year,
and the overpayment would have been adjusted.
[22]
But the appellant was unsuccessful, and his
claim was declared time-barred. Therefore, I find no substantial error by the
referee or the Judge on this issue.
C.
Limitation period and inability to act
[23]
The appellant does not dispute before us that
the three-year limitation period applies to his case. Had he done so, that
submission would have been rejected.
[24]
Indeed, the law was clearly settled by this
court in Canada (Attorney General) v. St Hilaire, 2001 FCA 63,
[2001] 4 FCR 289: the Québec civil law completes federal law
where the latter is silent. Moreover, section 39 of the Federal Courts
Act, R.S.C. 1985, c. F-7, embodies this principle.
|
39 (1) Except as expressly provided by any other Act, the laws relating
to prescription and the limitation of actions in force in a province between
subject and subject apply to any proceedings in the Federal Court of Appeal
or the Federal Court in respect of any cause of action arising in that
province.
|
39 (1)
Sauf disposition contraire d’une autre loi, les règles de droit en matière de
prescription qui, dans une province, régissent les rapports entre
particuliers s’appliquent à toute instance devant la Cour d’appel fédérale ou
la Cour fédérale dont le fait générateur est survenu dans cette province.
|
[25]
I will therefore turn immediately to the issue
of whether the referee erred in rejecting the appellant’s argument that it was
impossible for him to act between June 21, 2010, the date he
resigned, and July 16, 2013, the date he obtained Canadian
citizenship (Notice of Appeal, Appeal Book, volume 1, page 8 at
paragraph 12; appellant’s Memorandum of Fact and Law, at
paragraph 44).
[26]
The background to this argument is
straightforward. During his employment with the employer, Mr. Duverger had
a more than acrimonious relationship with his immediate supervisor. He was
frequently the subject of disrespectful comments and had a very hard time as a
result. He alleges that, after he resigned, he wanted to file a complaint
immediately, but he feared that the supervisor in question would make good on
his threats and jeopardize, for instance, his chances of obtaining his Canadian
citizenship. During this period and at the time of his appearance before the
referee, Mr. Duverger was being seen for his post-traumatic stress
disorder, which he attributed to the actions of his employer’s representatives.
Apparently, that is why he did not act sooner.
[27]
Mr. Duverger submitted all these facts to
the referee, who nonetheless concluded as follows at paragraphs 40
to 46 of the arbitration award:
[translation]
[40] Moreover, the
multiple personal life events that occurred after employee Duverger’s
resignation on June 21, 2010, make it abundantly clear that it was in
fact not impossible for him to act by himself or to be represented by others.
[41] After a 12-hour
return trip from Chibougamau to Gatineau, [the appellant] began to look for
another position. He also spent five or six weeks in Red Lake filling in for
another worker in a comparable position. He pursued various remedies through,
among others, the CSST, the Canadian Human Rights Commission, and the
Commission des lésions professionnelles. He also moved into an apartment and
continued to actively look for work.
[42] All these facts
and actions show that we are dealing with an individual who is lucid,
self-sufficient and in full control of his faculties.
[43] On
June 27, 2012, he filed an application with the Commission des
lésions professionnelles contesting a decision rendered by the CSST a few days
earlier, on June 21 (P-9, at paragraph 1).
[44] If it was impossible
for him to act, how then was he able to challenge the CSST’s decision of
June 21, 2012? His legal actions—the various administrative or
quasi-judicial proceedings, his return to work with a new employer, the move in
September 2010—show that he is not unable to act by himself, as he did for
all the other proceedings. He could also have employed the services of a third
party such as counsel or an authorized representative, but he did not see fit
to do so.
[45] Following the
CLP’s decision, he even received roughly $90,000 in retroactive compensation.
As for the complaint he filed with the Canadian Human Rights Commission, it was
ruled inadmissible.
[46] As argued by
counsel for the employer, the wages claimed in the complaint filed on August 6, 2013,
and received by Human Resources and Skills Development Canada (HRSDC) on
August 15, 2013, are in relation to the period of May 12, 2008,
to June 21, 2010. The three (3)-year time limit to file a claim
provided for in article 2925 of the Civil Code of Québec (CCQ) had
expired.
[Bold in the
original]
[28]
At best, those are findings of mixed fact and
law, which call for deference.
[29]
The appellant has not persuaded me that our
intervention is warranted. The referee’s findings on this issue fall within a
range of possible, acceptable outcomes which are defensible in respect of the
facts and the law (Dunsmuir v. New Brunswick, 2008 SCC 9,
[2008] 1 SCR 190), and the Judge correctly upheld them.
[30]
As for the appellant’s argument that the initial
decision makers wrongly failed to [translation] “decide
[his] complaint pursuant to the duty of reasonable accommodation”, it
cannot, in my view, succeed. The appellant claims discrimination based on
handicap and disability. The complaint he filed with the Canadian Human Rights
Commission was ruled to be inadmissible, and that decision is not before us.
[31]
It is therefore clear that the appellant cannot successfully
invoke the suspension provided for in article 2904 of the Civil Code of
Québec, that the doctrine of reasonable accommodation is of no use to him,
and that his right of action is time-barred under article 2925 of the said
Code.
[32]
The issue that remains is whether the medical
certificate deemed inadmissible on the morning of the hearing would have made
any difference. In my opinion, I must answer in the negative.
[33]
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”
(subsection 251.12(2) of the Code). A referee may also receive and accept
such evidence and information as he or she sees fit (ibidem).
[34]
Hereinabove, I quoted paragraph 35 of the
arbitration award (at paragraph [13] of these reasons). It shows that the
referee’s refusal was based on valid considerations which, again, call for
deference. The Judge correctly declined to intervene. There was no breach of
procedural fairness in this case.
IV.
Conclusion
[35]
I therefore propose to dismiss the appeal, but
without costs given the particular circumstances of this case, including the
initial decision makers’ failure to address the appellant’s preliminary
objection.
“Johanne Trudel”
“I agree.
Richard Boivin J.A.”
“I agree.
Yves de Montigny
J.A.”
Email this Content