Date: 20130328
Docket: A-399-11
Citation: 2013 FCA 90
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
JACQUES ANDERSON
Applicant
and
IMTT-QUÉBEC INC.
Respondent
Hearing held at Québec, Quebec, on February 21, 2013.
Judgment delivered at Ottawa, Ontario, on March 28, 2013.
REASONS FOR JUDGMENT BY: MAINVILLE J.A.
CONCURRED IN BY: NOËL J.A.
TRUDEL J.A.
Date: 20130328
Docket: A-399-11
Citation: 2013 FCA 90
CORAM: NOËL J.A.
TRUDEL J.A.
MAINVILLE J.A.
BETWEEN:
JACQUES ANDERSON
Applicant
and
IMTT-QUÉBEC INC.
Respondent
REASONS FOR JUDGMENT
MAINVILLE J.A.
[1] This is an application for judicial review of a decision of the Canada Industrial Relations Board (the Board) dated September 26, 2011, and bearing neutral citation number 2011 CIRB 606 (the Decision), dismissing the applicant’s complaint alleging a violation of sections 133 and 147 of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
[2] The applicant asked the Board to rescind his dismissal by the respondent IMTT-Québec Inc. (IMTT). He submitted that his dismissal resulted from actions he had taken to ensure the safety of IMTT workers, and that he, therefore, qualified for the protection of section 147 of the Code, which prohibits an employer from dismissing an employee for providing information regarding the conditions of work affecting health or safety, or for acting in accordance with or seeking the enforcement of any provisions of the Code relating to occupational health and safety.
[3] The Board found instead that the applicant’s dismissal resulted from the breakdown of the relationship of trust with his employer, his obvious lack of loyalty toward his employer and his attempts to discredit it.
[4] Before this Court, the applicant submits that the Board made a jurisdictional error (a) by imposing on him a burden of proof that the circumstances of the case did not require; (b) by refusing to consider that a dismissal partly based on an unlawful motive cannot be supported by evidence of other lawful motives for dismissal; and (c) by refusing to deal with section 425.1 of the Criminal Code, R.S.C. 1985, c. C-46.
[5] For the following reasons, I am of the view that the application for judicial review should be dismissed with costs.
FACTS AND PROCEEDINGS
[6] The Board’s decision contains a detailed description of the facts. Here it will be sufficient to note certain facts relevant to the application for judicial review.
[7] The applicant is an engineer; on October 1, 2007, he began working in a management position with IMTT in the latter’s terminal located on the Port of Québec site. In June 2008, he was put in charge of the environment and health and safety at the Port of Québec location. His relations with other company managers were tense, which the applicant says resulted from his discomfort with their shortcomings in the areas of health and safety on the company site. The applicant made several complaints about what he alleged were errors, omissions or negligent conduct committed by his fellow managers, which gave rise to a great deal of hostility and a very tense working environment within the company.
[8] In the light of the strained relations between the applicant and some of the other managers, as well as the directors’ dissatisfaction with the applicant’s performance, the manager of the IMTT terminal in the Port of Québec, Mr. Lord, informed his superior on January 15, 2009, that he intended to terminate the applicant’s employment. Mr. Lord, indeed, met with the applicant in February 2012 and gave him a poor performance appraisal that clearly indicated that his continuation in his position would not be recommended. The decision to dismiss him at the appropriate time was in fact made on March 27, 2009: Decision, at paras. 18 and 86.
[9] A safety incident occurred during the same period. On March 12, 2009, IMTT entered into a contract for the installation of an 80-foot-high light standard near a tank. On March 26, 2009, as part of the activities of the company’s health and safety committee, the applicant and some union representatives conducted a site inspection. Because the applicant was concerned about safety issues surrounding the installation of the light standard, he sent an e-mail that same day to a colleague, requesting the plans and engineers’ calculations. The following day, March 27, 2009, having received no response, the applicant contacted the manufacturer of the light standard, and he informed some of his colleagues that he planned to file a complaint with the Ordre des ingénieurs du Québec against his IMTT colleague responsible for the light standard project.
[10] On the morning of March 30, 2009, Mr. Lord informed the applicant by e‑mail that the contractor would be providing written confirmation that the light standard had been installed in accordance with the manufacturer’s standards, and that a decision had been made not to require the plans and engineers’ calculations in the matter. At the coordination meeting held about an hour later the same day, the applicant informed the participants of the problems that he had identified with respect to the light standard, despite Mr. Lord’s e‑mail. At the end of the meeting, a confrontation occurred between Mr. Lord and the applicant. The applicant then decided to inform the company’s senior management of his concerns about the light standard and report Mr. Lord’s attitude toward him. He also discussed the situation with the union president, who contacted a federal safety officer, who informed him that the employees could refuse to work under the terms of the Code.
[11] The applicant then contacted the harbourmaster at the Port of Québec to inform him of the light standard situation, which he qualified as dangerous. After that call, he telephoned the Ordre des ingénieurs du Québec, following up with formal complaints against his colleague in charge of the light standard contract and the contractor who had carried out the installation. He also provided the union president with copies of the complaint against his colleague and an e‑mail addressed to his superiors concerning the light standard issue.
[12] On March 31, 2009, Mr. Lord was informed that the applicant had filed a complaint against a colleague with the Ordre des ingénieurs du Québec. Mr. Lord then decided to suspend the complainant indefinitely for investigation purposes. He was faulted for his attitude, his unsatisfactory work performance and the recent events concerning the light standard. The applicant’s computer was searched, revealing that he had been sharing company information with the union president for some time.
[13] On April 2, 2009, the complainant was served with a notice of dismissal on the basis of his attitude and work performance, as well as his disloyal acts against the company and one colleague, particularly his communications with the port authorities and the Ordre des ingénieurs du Québec, and his relaying of information to the union president. The notice described a permanent breakdown of the relationship of trust.
[14] On June 18, 2009, the applicant filed a complaint with the Board, on the basis of sections 133 and 147 of the Code; he argued that his employer had violated section 147 by suspending and dismissing him for, as he saw it, [translation] “having provided information to the various appropriate authorities regarding a dangerous situation and a dangerous object”.
The Board’s decision
[15] After eight days of hearings, the Board dismissed the applicant’s complaint.
[16] In its decision, the Board began by noting that there had been no refusal to work on the applicant’s part that could trigger the operation of section 128 of the Code. On the basis of that finding, the Board concluded that the onus was on the applicant to show that IMTT had suspended or dismissed him contrary to section 147 of the Code because he had exercised the rights provided for therein: Decision at paragraphs 72-76.
[17] The Board also noted that the powers granted by that section were limited: the issue was not whether the suspension and dismissal were warranted, but rather whether the employer’s decision constituted retaliation for the exercise of a right protected under section 147 of the Code: Decision at paras. 77-78.
[18] Finally, the Board noted that it did not have the necessary jurisdiction to adjudicate alleged violations of subsection 425.1(1) of the Criminal Code, R.S.C. 1985, c. C-46, the Code of ethics of engineers of Quebec, R.R.Q. 1981, c. I-9, r. 6, or the Public Ports and Public Port Facilities Regulations, SOR/2001-154. In the light of its jurisdiction, it was limited to determining whether the applicant had been dismissed for exercising a right under section 147 of the Code: Decision at paras. 80-84.
[19] On the basis of the evidence before it, the Board determined that the applicant had been suspended and dismissed not because he had reported the potential danger posed by the light standard, but rather because of his behaviour prior to this event and his actions following it. In particular, the Board held that, as of February 2009, it had been recommended that the applicant no longer be kept in his position. According to the Board, the dismissal was motivated by the permanent breakdown of the relationship of trust resulting from the applicant’s clear lack of loyalty and the disrepute he had caused the company: Decision at paras. 85-92. The following comments by the Board are relevant:
[87] . . . The reason for the dismissal was not that the complainant had sought compliance with or enforcement of the health and safety provisions of the Code, but merely that there had been a breakdown of the relationship of trust as a result of the complainant’s clear lack of loyalty and the disrepute he had caused the company.
[88] The complainant acted disloyally toward the respondent when, on November 20, 2008, he forwarded an email regarding errors made by a colleague to Mr. Frédéric Perron, a health and safety technician and when, on March 16 and 30, 2009, he forwarded to the union president an email he had sent Mr. Fisette in which he questioned the competence of the terminal manager, as well as a copy of the complaint he had filed against Mr. Dion with the Ordre des ingénieurs du Québec.
[89] In his fierce determination to discredit the terminal manager and his colleagues, the complainant wound up discrediting the respondent. Further, he failed to provide the harbourmaster at the Port of Québec with complete information by leaving out the safety measures that had been introduced and the action that had been taken to correct the situation. The complaints he filed with the Ordre des ingénieurs du Québec against his colleague and against Latulippe and its representative, Mr. Louis Latulippe, demonstrate a blind determination that brought discredit to the respondent both internally and in its business relations.
The grounds for the application for judicial review
[20] The applicant submits before this Court that the Board acted without jurisdiction, acted beyond its jurisdiction or refused to exercise its jurisdiction (a) by imposing on him a burden of proof that the circumstances of the case did not require; (b) by refusing to consider that a dismissal partly based on an unlawful motive cannot be supported by evidence of other lawful motives for dismissal; and (c) by refusing to consider the defence referred to in section 425.1 of the Criminal Code, R.S.C. 1985, c. C-46.
First ground: the burden of proof
[21] The applicant submits that he merely had the burden of establishing that he had exercised a right protected under section 147 of the Code. After that, the burden of proof shifts, and the onus is on IMTT to establish good and sufficient cause for the dismissal. The Board, therefore, is said to have erred in law and acted beyond its jurisdiction by imposing on him the burden of “[showing] that the respondent [IMTT] suspended and dismissed him in violation of section 147 of the Code because he had exercised the rights provided for therein”: Decision at para. 76.
[22] The Board’s decision on this point is based on a reasonable interpretation of the relevant provisions of the Code, namely, subsections 133(1), (2) and (6) and section 147, which read as follows:
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133. (1) An employee, or a person designated by the employee for the purpose, who alleges that an employer has taken action against the employee in contravention of section 147 may, subject to subsection (3), make a complaint in writing to the Board of the alleged contravention.
(2) The complaint shall be made to the Board not later than ninety days after the date on which the complainant knew, or in the Board’s opinion ought to have known, of the action or circumstances giving rise to the complaint.
…
(6) A complaint made under this section in respect of the exercise of a right under section 128 or 129 is itself evidence that the contravention actually occurred and, if a party to the complaint proceedings alleges that the contravention did not occur, the burden of proof is on that party.
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133. (1) L’employé — ou la personne qu’il désigne à cette fin — peut, sous réserve du paragraphe (3), présenter une plainte écrite au Conseil au motif que son employeur a pris, à son endroit, des mesures contraires à l’article 147.
(2) La plainte est adressée au Conseil dans les quatre-vingt-dix jours suivant la date où le plaignant a eu connaissance — ou, selon le Conseil, aurait dû avoir connaissance — de l’acte ou des circonstances y ayant donné lieu.
[…]
(6) Dans les cas où la plainte découle de l’exercice par l’employé des droits prévus aux articles 128 ou 129, sa seule présentation constitue une preuve de la contravention; il incombe dès lors à la partie qui nie celle-ci de prouver le contraire. |
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147. No employer shall dismiss, suspend, lay off or demote an employee, impose a financial or other penalty on an employee, or refuse to pay an employee remuneration in respect of any period that the employee would, but for the exercise of the employee’s rights under this Part, have worked, or take any disciplinary action against or threaten to take any such action against an employee because the employee
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147. Il est interdit à l’employeur de congédier, suspendre, mettre à pied ou rétrograder un employé ou de lui imposer une sanction pécuniaire ou autre ou de refuser de lui verser la rémunération afférente à la période au cours de laquelle il aurait travaillé s’il ne s’était pas prévalu des droits prévus par la présente partie, ou de prendre — ou menacer de prendre — des mesures disciplinaires contre lui parce que :
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[23] The current versions of sections 133 and 147 were added to the Code in 2000 by the Act to amend the Canada Labour Code (Part II) in respect of occupational health and safety, to make technical amendments to the Canada Labour Code (Part I) and to make consequential amendments to other Acts, S.C. 2000, c. 20.
[24] Prior to this legislative amendment, section 133 of the Code provided for the possibility of complaints mainly concerning the right of refusal referred to in sections 128 and 129. In such cases, the Code created a presumption in favour of the complainant that the complaint itself was evidence that the contravention actually occurred. The amendments brought by S.C. 2000, c. 20, considerably expanded the grounds for complaint beyond the right of refusal. However, the presumption was not extended to all of the new grounds for complaint, but was maintained only with respect to complaints regarding a right of refusal under sections 128 and 129: see subsection 133(6) of the Code, reproduced above.
[25] The Board has since held that these legislative provisions only reverse the onus in the complainant’s favour in cases involving a right guaranteed by sections 128 and 129 of the Code. In other cases, the onus applies normally to the complainant, as it would for any plaintiff: Re Ouimet, [2002] CIRB 171.
[26] In this case, the Board held that the applicant’s complaint was not based on sections 128 or 129 of the Code, and that the shift of the onus provided for by subsection 133(6) therefore did not apply. This is a reasonable assessment by the Board of the evidence filed and a reasonable interpretation of the relevant provisions of the Code. The intervention of the Court is therefore not warranted.
Second ground based on the “tainting” principle
[27] The applicant submits that his dismissal is, at least partly, related to his efforts to report a dangerous situation, namely, his numerous interventions relating to the light standard installed near a tank. According to the applicant, once it has been demonstrated that one motive for dismissal was the exercise of a right protected by the Code, the dismissal must be set aside, even if there were other, valid motives for dismissal.
[28] On this point, the applicant relies on the Quebec case law addressing the presumption created by section 17 of Quebec’s Labour Code, R.S.Q. c. C-27. This section provides that when the employee has exercised a right under the Code, there is a presumption in his favour that any sanction imposed on him by the employer was imposed because he exercised such right. The applicant relies in particular on the Quebec Court of Appeal’s decision in Silva v. Centre hospitalier de l’Université de Montréal-Pavillon Notre-Dame, 2007 QCCA 458 [Silva], which states, at paragraph 4, that [translation] “if the sanction was based on an unlawful motive, or a combination of lawful and unlawful motives, then the presumption of section 17 of the Labour Code is not rebutted”.
[29] The applicant submits that the Supreme Court of Canada upheld the “tainting” principle in Plourde v. Wal-Mart Canada Corp., 2009 SCC 54, [2009] 3 S.C.R. 465 [Plourde] at paras. 48 and 49, in which Justice Binnie, writing on behalf of the majority of the Supreme Court of Canada, referred to Silva when analyzing the scope of the presumption provided for in section 17 of Quebec’s Labour Code. This principle was, indeed, recently applied by the Quebec Court of Appeal in Desfossés v. Société de transport de Sherbrooke, 2011 QCCA 119 at para. 26. The applicant argues that this principle applies here.
[30] However, the applicant faces three major obstacles in this respect.
[31] First, the Board made a factual finding that the applicant “was suspended and dismissed not because he reported the potential danger posed by the light standard, but because of his behaviour prior to this event and his actions following it”: Decision at para. 85. This finding of fact, regarding which this Court must be deferential, militates in favour of rejecting the applicant’s argument that his dismissal was “tainted” by an unlawful motive under the Code. The appellant is clearly challenging this factual finding and asking this Court to reweigh the evidence and make a new finding of fact that will be more favourable to him. However, that is not the role of this Court in the context of a judicial review of a decision by the Board.
[32] Second, there is no equivalent to the presumption set out in section 17 of Quebec’s Labour Code applicable here. As discussed above, the shift of onus provided for in subsection 133(6) of the Code does not apply to the applicant’s complaint. Because the “tainting” principle recognized by Quebec case law is closely tied to the presumption established by section 17 of Quebec’s Labour Code, the applicant cannot usefully invoke it here. In fact, it is highly doubtful that the principle would ever apply beyond the very specific context of the presumption created by section 17 of Quebec’s Labour Code and the distinct context of Quebec labour relations.
[33] Finally, the “tainting” principle does not, in any case, have the scope attributed to it by the applicant. As the Board noted in this case, following its investigation in February 2009, the applicant knew that his job was in jeopardy: Decision at para. 86. According to the Board, the applicant was [translation] “starting to feel the heat” to the point that he transferred all of his e-mails to his personal computer: Decision at para. 29. The decision to dismiss him was therefore made before the incidents involving the light standard: Decision at para. 86. Even if it were applicable, the “tainting” principle would not, in this case, prevent the employer from proceeding with the dismissal. An employee cannot use the Code to immunize himself from a dismissal already in progress by taking provocative action and then pointing to the “tainting” principle. As Justice Chouinard observed in Lafrance et al. v. Commercial Photo, [1980] 1 S.C.R. 536 at p. 544, what must be established is “that the other reason relied on by the employer is of a substantial nature and not a pretext, and that it constitutes the true reason for the dismissal”.
Third ground: the relevance of section 425.1 of the Criminal Code
[34] The applicant submits that his employer, IMTT, could not dismiss him for reporting a dangerous situation to the harbourmaster at the Port of Québec and the syndic of the Ordre des ingénieurs du Québec. He raises the fact that his letter of dismissal explicitly refers to these denunciations as disloyal acts. He argues that subsection 425.1(1) of the Criminal Code protects him and that the Board therefore made a jurisdictional error by refusing to consider the protection that he claims is conferred upon him by this provision.
[35] Section 425.1 of the Criminal Code provides the following:
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425.1 (1) No employer or person acting on behalf of an employer or in a position of authority in respect of an employee of the employer shall take a disciplinary measure against, demote, terminate or otherwise adversely affect the employment of such an employee, or threaten to do so,
(a) with the intent to compel the employee to abstain from providing information to a person whose duties include the enforcement of federal or provincial law, respecting an offence that the employee believes has been or is being committed contrary to this or any other federal or provincial Act or regulation by the employer or an officer or employee of the employer or, if the employer is a corporation, by one or more of its directors; or
(b) with the intent to retaliate against the employee because the employee has provided information referred to in paragraph (a) to a person whose duties include the enforcement of federal or provincial law.
(2) Any one who contravenes subsection (1) is guilty of
(a) an indictable offence and liable to imprisonment for a term not exceeding five years; or
(b) an offence punishable on summary conviction.
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425.1 (1) Commet une infraction quiconque, étant l’employeur ou une personne agissant au nom de l’employeur, ou une personne en situation d’autorité à l’égard d’un employé, prend des sanctions disciplinaires, rétrograde ou congédie un employé ou prend d’autres mesures portant atteinte à son emploi — ou menace de le faire :
a) soit avec l’intention de forcer l’employé à s’abstenir de fournir, à une personne dont les attributions comportent le contrôle d’application d’une loi fédérale ou provinciale, des renseignements portant sur une infraction à la présente loi, à toute autre loi fédérale ou à une loi provinciale — ou à leurs règlements — qu’il croit avoir été ou être en train d’être commise par l’employeur ou l’un de ses dirigeants ou employés ou, dans le cas d’une personne morale, l’un de ses administrateurs;
b) soit à titre de représailles parce que l’employé a fourni de tels renseignements à une telle personne.
(2) Quiconque commet l’infraction prévue au paragraphe (1) est coupable :
a) soit d’un acte criminel et passible d’un emprisonnement maximal de cinq ans;
b) soit d’une infraction punissable sur déclaration de culpabilité par procédure sommaire. |
[36] Section 425.1, above, was added to the Criminal Code in 2004 by the Act to amend the Criminal Code (capital markets fraud and evidence gathering), S.C. 2004, c. 3, s. 6, to deal with a new offence relating to threats and retaliation against an employee who is about to provide information or who have already provided information concerning illegal conduct by his or her employer.
[37] The applicant submits that the conditions of section 425.1 of the Criminal Code have been met in this case: (a) sections 14 and 25 of the Public Ports and Public Port Facilities Regulations, above, prohibit any act or omission in a public port that is likely to jeopardize the safety or health of persons, and they require anyone who causes a dangerous situation in a public port to take appropriate measures and notify a port official as to the nature of the dangerous situation; (b) section 2.03 of the Code of ethics of engineers of Quebec, above, requires engineers to notify the Ordre of any works that are a danger to public safety.
[38] The applicant, therefore, submits that the motive for dismissal based on disloyalty toward his employer cannot be accepted, given that the disloyalty in question arises from his reports to the harbourmaster at the Port of Québec and to the Ordre des ingénieurs, which are protected by section 425.1 of the Criminal Code. The Board therefore made a jurisdictional error in refusing to take this provision into account in its assessment of the motive for dismissal raised by the employer, IMTT.
[39] As Justice Binnie states in Merk v. International Association of Bridge, Structural, Ornamental and Reinforcing Iron Workers, Local 771, 2005 SCC 70, [2005] 3 S.C.R. 425 [Merk] at para. 14, whistleblower legislation, such as section 425.1 of the Criminal Code, creates an exception to the usual duty of loyalty owed by employees to their employer. The underlying idea is to incite employees to assist the state in the suppression of unlawful conduct. This is done by providing employees with a measure of immunity against employer retaliation.
[40] However, these legislative provisions do not necessarily render the duty of loyalty void of meaning. According to a long line of decisions in the labour relations field, the balance between an employee’s duty of loyalty to his or her employer and the public interest in the suppression of illegal conduct is best achieved if employees are encouraged to resolve problems internally rather than marching forthwith to external authorities: Merk at paras. 23-24. To state the applicable principle more explicitly, “the duty of fidelity does require the employee to exhaust internal ‘whistle-blowing’ mechanisms before ‘going public’. These internal mechanisms are designed to ensure that the employer’s reputation is not damaged by unwarranted attacks based on inaccurate information”: Re Ministry of Attorney-General, Corrections Branch and British Columbia Government Employees’ Union, 3 L.A.C. (3d) 140 at p. 163; this was cited with approval in Merk at para. 23.
[41] As Justice Binnie soundly writes, the case law—both judicial and arbitral—and the doctrine, not only in Canada, but also in Britain and Europe, qualify as disloyal and inappropriate conduct the failure of employees to try to resolve matters internally: Merk at paras. 25-26.
[42] The applicant’s complaint to the harbourmaster at the Port of Québec regarding the light standard was clearly hasty and vexatious. As the Board points out at paragraph 89 of its decision, the applicant “failed to provide the harbourmaster at the Port of Québec with complete information by leaving out the safety measures that had been introduced and the action that had been taken to correct the situation.” The applicant has attempted to justify this omission by stating that he was not aware of the nature of the security measures taken by his employer with respect to the light standard when he made his complaint. This merely demonstrates the hastiness and inappropriateness of the complaint. The applicant acted disloyally toward his employer by taking such steps without first verifying the measures taken or waiting for the results of the internal mechanisms put in place by the employer.
[43] As the Board also points out in paragraph 89 of its decision: “The complaints he filed with the Ordre des ingénieurs du Québec against his colleague and against Latulippe and its representative, Mr. Louis Latulippe, demonstrate a blind determination that brought discredit to the respondent both internally and in its business relations.”
[44] The purpose of section 425.1 of the Criminal Code is not to allow an employee to make with impunity, reckless complaints to public authorities and without regard for the employer’s internal mechanisms or respect for work colleagues. The provision does not allow an employee to avoid the consequences of a dismissal in progress by filing reckless complaints to public authorities against his or her employer and work colleagues.
[45] In the circumstances, the Board did not err in not taking into account section 425.1 of the Criminal Code when it decided the applicant’s complaint under sections 133 and 147 of the Code.
Conclusion
[46] For these reasons, I would dismiss the application for judicial review with costs.
“Robert M. Mainville”
J.A.
“I concur
Marc Noël J.A.”
“I concur
Johanne Trudel J.A.”
Certified true translation
FEDERAL COURT OF APPEAL
SOLICITORS OF RECORD
DOCKET: A-399-11
APPEAL FROM A JUDGMENT OF THE CANADA INDUSTRIAL RELATIONS BOARD DATED SEPTEMBER 26, 2011, DOCKET NO. 2011 CIRB 606.
STYLE OF CAUSE: Anderson v.
IMTT-QUÉBEC INC.
PLACE OF HEARING: Québec, Quebec
DATE OF HEARING: February 21, 2013
REASONS FOR JUDGMENT BY: Mainville J.A.
CONCURRED IN BY: Noël J.A.
Trudel J.A.
DATED: March 28, 2013
APPEARANCES:
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Marius Ménard |
FOR THE APPLICANT
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Christian Drolet |
FOR THE RESPONDENT
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SOLICITORS OF RECORD:
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Heenan Blaikie Aubut LLP Québec, Quebec
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FOR THE APPLICANT
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Ménard Milliard Caux, Partnership Québec, Quebec
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FOR THE RESPONDENT
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