Date: 20000601
Docket: T-1975-98
BETWEEN:
THE BANK OF NOVA SCOTIA
Applicant
and
SHELLEY ANN FRASER
Respondent
REASONS FOR ORDER AND ORDER
CAMPBELL J.
[1] The decision under review in the present application is that of Adjudicator, Professor Ian Hunter (the "Adjudicator") dated 26 September 1998 in which he found that Ms. Fraser was wrongfully dismissed from her employment with the Bank of Nova Scotia (the "Bank"), and, as a result, was entitled to compensation and solicitor-client costs pursuant to s.242 of The Canada Labour Code , R.S.C. 1985, C.L-2, as amended (the "Code")1.
[2] An essential finding of the Adjudicator respecting the conduct of the Bank towards Ms. Fraser which resulted in the relief granted is as follows:
| I find the Bank"s conduct in dealing with this severely ill employee up until the end of August 1995 to be incredible. In more than twenty (20) years of labour arbitration I have not seen such callous conduct from an Employer, and I hope not to see it again.2 |
[3] Ms. Fraser filed a complaint of alleged unjust dismissal against the Bank on 6 December 1995. The adjudication with respect to the complaint commenced on 5 March 1997 and, following sixteen days of evidence and argument, concluded on 31 July 1998. With respect to the complaint, the cause for dismissal as stated by the Bank is as follows:
| 1. Ms. Fraser misused her employee benefits by claiming personal mileage and gas expenses as Bank business over at least a six month period, and by failing to reimburse the Bank for those expenses; and |
| 2. Ms. Fraser acted against the Bank"s best interest by wrongfully transferring monies into someone else"s account specifically to prevent having those funds available to pay off some of a portion of the money she owed to the Bank.3 |
[4] In his very detailed 78 page decision, the Adjudicator found that the Bank did not have just cause to terminate Ms. Fraser"s employment with the Bank on 29 September 1995. With respect to remedy, the Adjudicator ordered the Bank to pay Ms. Fraser full salary, benefits, and interest for the period 19 September 1995 to 19 February 1997. In addition, the Adjudicator ordered the Bank to pay solicitor-client costs.
[5] In the present application, the Bank challenges the Adjudicator"s finding that it did not have just cause to terminate Ms. Fraser"s employment, as well as objecting to the compensation and cost awards.
[6] In addition, the Bank argues that the Adjudicator lost jurisdiction from the very beginning because, in an attempt to have Ms. Fraser"s claim settled by conducting an unsuccessful mediation, an apprehension of bias on his part against the Bank arose. I will first deal with this argument in order to clear it away as totally unfounded.
[7] In support of the bias argument, in her affidavit dated 11 January 1999 and filed before me in the present hearing, Ms. Adrienne V. Campbell, who is a member of the Ontario Bar and employed by the Bank as counsel, swears as follows:
| 44. On March 5, 1997, the first scheduled day of adjudication, Adjudicator Hunter recommended to the parties that he attempt to mediate a settlement. He proceeded to assume a role as Mediator without the full and voluntary consent of the Bank. |
| 45. The Bank did not willingly consent to proceed with or continue the mediation before Adjudicator Hunter. When Bank counsel and I expressly stated to Adjudicator Hunter our concern with his suggestion the [sic] he assume the role of Mediator, Adjudicator Hunter again stated he felt it would be a good idea and strongly urged the Bank to agree. In the view of both Bank counsel and myself, the Bank had no choice but to agree, given the Adjudicator"s insistence that he should proceed in this way, and knowing that he could hold the Bank"s unwillingness to mediate against the Bank if the matter proceeded further.4 |
[8] In response to Ms. Campbell"s assertions, Ms. Ann Marie Frauts, who at all material times acted as counsel for Ms. Fraser, swears in her similarly filed affidavit dated 10 May 1999 as follows:
| 3. Paul Brooks of the firm, Lerner & Associates, was retained as counsel for the Applicant, The Bank of Nova Scotia (hereinafter referred to as "the Bank"). Ms. Campbell, counsel for the Bank of Nova Scotia, took no active role in the adjudication of the within matter. |
| ... |
| 10. Professor Hunter met with Paul Brooks and myself in the lounge area of the Station Park Inn. It is my recollection that Professor Hunter, Mr. Brooks and myself discussed the standard of proof with respect to the allegation of just cause in Ms. Fraser"s case. Professor Hunter advised us that he believed the standard of proof was on the balance of probabilities based on clear cogent and compelling evidence. Professor Hunter also advised us that in his view bank employees were held to a higher standard of integrity and honesty. He advised me that if he found that Ms. Fraser had falsified bank records he would find her dismissal just. Professor Hunter also stated that this was the type of case in which some one was not going to be happy with the results. He then asked if there had been any attempt at mediation, particularly in view of what was likely to be a lengthy proceeding with an uncertain result for both parties. |
| 11. I have no recollection as to whether Professor Hunter had offered to mediate during the conversation in the lounge area. He did, however, offer to mediate when we were seated in the hearing room with Ms. Fraser and Ms. Campbell. |
| 12. Contrary to the allegation made at paragraph 45 of Ms. Campbell"s affidavit, at no time did Mr. Brooks object to Professor Hunter attempting to mediate a settlement. Mr. Brooks at no time raised any objection with respect to bias created by the attempt at mediation or any unwillingness or objection to participating in it.5 |
[9] On this evidence, I find that the Bank has no proof that the mediation proceeded on anything but the consent of both parties. No evidence has been cited to substantiate Ms. Campbell"s belief that there was "no choice but to agree", and no evidence has been cited to lead to the conclusion that, in some way, the Bank would suffer if an objection was made.
[10] Given the existing wide acceptance of alternate dispute resolution in the litigation process, I find that the Adjudicator was well within his role as an experienced labour arbitrator, to try to see if a settlement could be reached prior to the commencement of what did prove to be a very expensive and time consuming hearing. Indeed, the Code provides in s.242(2)(b) that the Adjudicator has the power to determine the procedure to be followed in an adjudication, and in my opinion, this includes attempts at mediation on consent.
[11] Obviously, if any party to a proceeding objects to mediation, none can be conducted. I recognize that an unrepresented litigant can feel intimidated by an Adjudicator and might feel compelled to a mediation when he or she would rather not and, therefore, voice no objection. However, I would not expect this conduct of a practising lawyer, nor, in my opinion, should have the Adjudicator. Indeed, no objection respecting bias was made after the mediation, before, or during the adjudication.
[12] Accordingly, I dismiss the bias argument.
[13] With respect to the objection to the Arbitrator"s finding of unjust dismissal, award of compensation, and award of solicitor-client costs, given the existence of the strong privative clause in s.243 of the Code6, I find that the standard of review is that of patent unreasonableness.7
[14] With respect to the content of the standard, the Supreme Court of Canada in CAIMAW, Local 14 v. Paccar of Canada Ltd. (1989), 62 D.L.R. (4th) 437 (S.C.C.) at 453 says:
| Where, as here, an administrative tribunal is protected by a private clause, this court has indicated that it will only review the decision of the board if that board has either made an error in interpreting the provisions conferring jurisdiction on it, or has exceeded its jurisdiction by making a patently unreasonable error of law in the performance of its function: see C.U.P.E. Local 963 v. N.B. Liquor Corp... The tribunal has the right to make errors, even serious ones, provided it does not act in a manner "so patently unreasonable that its construction cannot be rationally supported by the relevant legislation and demands intervention by the court upon review" (p. 425). The test for review is a "severe test": see Blanchard v. Control Data Ltd... This restricted scope of review requires the courts to adopt a posture of deference to the decisions of the tribunal. Curial deference is more than just a fiction courts resort to when they are in agreement with the decisions of the tribunal. Mere disagreement with the result arrived at by the tribunal does not make the result "patently unreasonable". The courts must be careful to focus their inquiry on the existence of a rational basis for the decision of the tribunal, and not on their agreement with it. |
[15] In the present case, the Adjudicator"s finding of unjust dismissal resulted from believing the evidence of Ms. Fraser over that given by the Bank"s witnesses, and, therefore, he accepted her explanations in rejecting the grounds of dismissal cited by the Bank. In particular, the Adjudicator found that Ms. Fraser did nothing incompatible with her requirement of honesty and personal integrity to the Bank. Therefore, I find that there is no basis for the argument that the finding of unjust dismissal is patently unreasonable, and, accordingly, it is dismissed.
[16] With respect to the compensation award, after citing his powers under s.242(4)(a) to (c) of the Code, the Adjudicator then said as follows:
| The Bank of Nova Scotia discharged the employee, Shelley Fraser, on September 19, 1995. On that date, Ms. Fraser was ill and unable to work. |
| Pursuant to section 242(4(a) I order the Bank of Nova Scotia to compensate Ms. Fraser for her lost salary and benefits, plus interest to be calculated at the then prevailing rate, for the period from September 19, 1995 until Ms. Fraser was medically fit to return to work which I find as a fact was on August 19, 1996. |
| Mr. Brooks says that during that time, and but for the termination, Ms. Fraser would have received only sixty percent (60%) of her salary as disability allowance. But I hold that it was the Bank"s conduct which precipitated the Complainant"s medical problems. It was Dr. Smith"s explicit (and Dr. Lefcoe"s implicit) evidence that it was how she was treated by the Bank that "tipped her over" into her severe depression. Therefore, the Bank must pay her full salary, benefits and interest from September 19, 1995 until August 19, 1996. |
| Had the Complainant returned to work on August 19, 1996 the Employer would have been entitled to terminate her employment, without cause, but on giving appropriate notice. From the evidence of all the Bank witnesses I am satisfied that this would have been done, because the Employer harboured deep suspicions about Ms. Fraser, albeit I have found these suspicions to be groundless. I hold that nine (9) months notice would have been appropriate in this case. Ms. Fraser was a management employee with seven (7) years seniority. Accordingly, and pursuant to section 242(4)(a) I direct the Bank of Nova Scotia to pay Ms. Fraser an amount equal to her salary and benefits, plus interest calculated as above, for a nine (9) month period commencing August 19, 1996 (i.e. August 19, 1996 to February 19, 1997.8 |
[17] The Bank argues that the scope of s.242(4)(a) does not provide for the award made. I give no weight to this argument on the basis that s.242 gives a very wide authority to the Adjudicator to provide an adequate remedy on the facts, and, regardless of expressing it to be an award made under subsection (a), in my opinion, it is an award authorized by s.242, in particular, s.242(4)(c).
[18] Having regarded the Supreme Court of Canada"s statement in CAIMAW, Local 14 as quoted above, I find that the Adjudicator"s decision on compensation is not one which cannot be rationally supported by the relevant legislation, and, therefore, I find it is not patently unreasonable. Accordingly, I dismiss the Bank"s argument on the compensation issue.
[19] Respecting the award of solicitor-client costs, in my opinion, the Adjudicator correctly applied the test for the making of such an award which is that stated by Stone J.A. in Banca Nazionale Del Lavoro of Canada Ltd. v. Lee-Shanok (1988), 87 N.R. 178 where at 199 Stone J.A. says as follows:
| An extraordinary award of this kind ought only to be made in circumstances that are clearly exceptional, as would be the case where an adjudicator wished thereby to mark his disapproval of a party"s conduct in a proceeding. |
[20] With respect to the Adjudicator"s disapproval of the conduct of the Bank in the proceeding in the present case, in addition to his statement first quoted in these reasons, the Adjudicator found as follows:
| I am satisfied that there are exceptional circumstances which warrant an award of solicitor-client costs in this case. The Bank"s discharge of Shelley Fraser was without just cause. It was callous and cruel and, on the evidence, "tipped her over" into a nervous breakdown and severe depression. The Bank"s conduct was dishonest in that the decision was made to discharge her (for threatening to file for bankruptcy), and then the Bank tenaciously tried to find grounds for her discharge which would bear up to scrutiny. The Bank"s heavy-handed conduct toward Ms. Fraser extended to her physicians, to the Trustee in Bankruptcy, and throughout the adjudication hearing.9 |
| ... |
| Yet I find as a fact that during this August/September period officials of the Bank badgered her frequently for another or a different answer to the allegations about mileage misuse which they were making against her, and for more medical information. |
| ... |
| Even after Ms. Frauts, legal counsel to the Complainant, became involved on Ms. Fraser"s behalf, the Bank"s intransigent and bellicose conduct did not cease.10 |
| ... |
| Despite two days of searching and detailed cross-examination, Ms. Fraser"s evidence was unshaken. I found her to be the most credible of the witnesses involved in her employment at the Bank of Nova Scotia (i.e. excluding witnesses who were not, such as Drs. Smith and Lefcoe) [the physicians attending Ms. Fraser] and I accept and prefer her evidence on all points where it conflicts with the evidence given by the Bank"s witnesses.11 |
| ... |
| In this case, I hold that the Bank of Nova Scotia decided to terminate Shelley Fraser"s conduct when they learned she might file for bankruptcy. They scrambled to find grounds which might support their decision in her mileage records and in her conduct prior to filling her Consumer Proposal. Unfortunately for the Bank, this "evidence" does not stand up to scrutiny. While trumpeting the virtues of honesty, candour and integrity, I find that the Bank"s conduct exhibited none of these virtues. Nevertheless, and frankly I considered it a very close call. I have concluded that punitive damages are not appropriate.12 |
[21] There is obviously ample evidence to support the solicitor-client award made, and, in my opinion, in no way is it patently unreasonable. Thus, the Bank"s argument on this ground is dismissed.
ORDER
[22] Accordingly, this application is dismissed. Given the high standard of review required to be met for the Bank to succeed, and given what I consider to be, well presented, but very weak arguments advanced to meet this standard, in my opinion, Ms. Fraser should not have been put to the expense of defending the present application. Accordingly, I award her solicitor-client costs.
"Douglas R. Campbell"
J.F.C.C.
Toronto, Ontario
1 June 2000
FEDERAL COURT OF CANADA
Names of Counsel and Solicitors of Record
| COURT NO: T-1975-98 |
| STYLE OF CAUSE: THE BANK OF NOVA SCOTIA |
- and -
| SHELLEY ANN FRASER |
| DATE OF HEARING: TUESDAY, MAY 30, 2000 |
| PLACE OF HEARING: TORONTO, ONTARIO |
REASONS FOR ORDER
| AND ORDER BY: CAMPBELL J. |
DATED: THURSDAY, JUNE 1, 2000
| APPEARANCES: Mr. Christopher G. Riggs, Q.C., and |
Ms. Donna M. D"Andrea
| For the Applicant |
| Mr. Howard Goldblatt |
| For the Respondent |
| SOLICITORS OF RECORD: Hicks Morley Hamilton Stewart Storie |
Barristers & Solicitors
30 th Floor, T-D Bank Tower
Box 371, T-D Centre
Toronto, Ontario
M5K 1K8
| For the Applicant |
| Sack, Goldblatt, Mitchell |
Barristers & Solicitors
Suite 1130, P.O. Box 180
20 Dundas Street West
Toronto, Ontario
M5G 2G8
| For the Respondent |
FEDERAL COURT OF CANADA
Date: 20000601
Docket: T-1975-98
Between:
| THE BANK OF NOVA SCOTIA |
Applicant
- and -
SHELLEY ANN FRASER
Respondent
| REASONS FOR ORDER |
| AND ORDER |
Appendix
Section 242 of the Canada Labour Code:
| Reference to adjudicator 242. (1) The Minister may, on receipt of a report pursuant to subsection 241(3), appoint any person that the Minister considers appropriate as an adjudicator to hear and adjudicate on the complaint in respect of which the report was made, and refer the complaint to the adjudicator along with any statement provided pursuant to subsection 241(1). (2) Powers of adjudicator An adjudicator to whom a complaint has been referred under subsection (1) (a) shall consider the complaint within such time as the Governor in Council may by regulation prescribe; (b) shall determine the procedure to be followed, but shall give full opportunity to the parties to the complaint to present evidence and make submissions to the adjudicator and shall consider the information relating to the complaint; and (c) has, in relation to any complaint before the adjudicator, the powers conferred on the Canada Industrial Relations Board, in relation to any proceeding before the Board, under paragraphs 16(a), (b) and (c). (3) Decision of adjudicator Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall (a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and (b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister. (3.1) Limitation on complaints No complaint shall be considered by an adjudicator under subsection (3) in respect of a person where (a) that person has been laid off because of lack of work or because of the discontinuance of a function; or (b) a procedure for redress has been provided elsewhere in or under this or any other Act of Parliament. (4) Where unjust dismissal Where an adjudicator decides pursuant to subsection (3) that a person has been unjustly dismissed, the adjudicator may, by order, require the employer who dismissed the person to (a) pay the person compensation not exceeding the amount of money that is equivalent to the remuneration that would, but for the dismissal, have been paid by the employer to the person; (b) reinstate the person in his employ; and (c) do any other like thing that it is equitable to require the employer to do in order to remedy or counteract any consequence of the dismissal. |
| Renvoi à un arbitre 242. (1) Sur réception du rapport visé au paragraphe 241(3), le ministre peut désigner en qualité d'arbitre la personne qu'il juge qualifiée pour entendre et trancher l'affaire et lui transmettre la plainte ainsi que l'éventuelle déclaration de l'employeur sur les motifs du congédiement. (2) Pouvoirs de l'arbitre Pour l'examen du cas dont il est saisi, l'arbitre: a) dispose du délai fixé par règlement du gouverneur en conseil; b) fixe lui-même sa procédure, sous réserve de la double obligation de donner à chaque partie toute possibilité de lui présenter des éléments de preuve et des observations, d'une part, et de tenir compte de l'information contenue dans le dossier, d'autre part; c) est investi des pouvoirs conférés au Conseil canadien des relations industrielles par les alinéas 16a), b) et c). (3) Décision de l'arbitre Sous réserve du paragraphe (3.1), l'arbitre: a) décide si le congédiement était injuste; b) transmet une copie de sa décision, motifs à l'appui, à chaque partie ainsi qu'au ministre. (3.1) Restriction L'arbitre ne peut procéder à l'instruction de la plainte dans l'un ou l'autre des cas suivants: a) le plaignant a été licencié en raison du manque de travail ou de la suppression d'un poste; b) la présente loi ou une autre loi fédérale prévoit un autre recours. (4) Cas de congédiement injuste S'il décide que le congédiement était injuste, l'arbitre peut, par ordonnance, enjoindre à l'employeur_: a) de payer au plaignant une indemnité équivalant, au maximum, au salaire qu'il aurait normalement gagné s'il n'avait pas été congédié; b) de réintégrer le plaignant dans son emploi; c) de prendre toute autre mesure qu'il juge équitable de lui imposer et de nature à contrebalancer les effets du congédiement ou à y remédier. |
| Section 243 of the Canada Labour Code: |
| 243(1) Decisions not to be reviewed by court Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court. (2) No review by certiorari, etc. No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242. |
243 (1) Caractère définitif des décisions Les ordonnances de l'arbitre désigné en vertu du paragraphe 242(1) sont définitives et non susceptibles de recours judiciaires. (2) Interdiction de recours extraordinaires Il n'est admis aucun recours ou décision judiciaire " notamment par voie d'injonction, de certiorari, de prohibition ou de quo warranto " visant à contester, réviser, empêcher ou limiter l'action d'un arbitre exercée dans le cadre de l'article 242. |
1This provision is quoted in the attached Appendix.
2Applicant"s Application Record, p. 86.
5Respondent"s Application Record, p. 1, 3.
6This provision is quoted in the attached Appendix.
7See Toronto (City) Board of Education v. OSSTF, District 15 (1997), 144 D.L.R. (4th) 385 (S.C.C.), at pp. 397-398.