Amer v. Shaw Communications Canada Inc.

Amer v. Shaw Communications Canada Inc.
Court (s) Database
Federal Court of Appeal Decisions
Date
2023-12-05
Neutral citation
2023 FCA 237
File numbers
A-303-20
Notes
A correction was made on December 18, 2023
Decision Content
Date: 20231205
Docket: A-303-20
Citation: 2023 FCA 237
CORAM:
GLEASON J.A.
WOODS J.A.
MACTAVISH J.A.
BETWEEN:
CHRISTINE AMER
Appellant
and
SHAW COMMUNICATIONS CANADA INC.
Respondent
Heard at Toronto, Ontario, on May 8, 2023.
Judgment delivered at Ottawa, Ontario, on December 5, 2023.
REASONS FOR JUDGMENT BY:
GLEASON J.A.
CONCURRED IN BY:
WOODS J.A. MACTAVISH J.A.
Date: 20231205
Docket: A-303-20
Citation: 2023 FCA 237
CORAM:
GLEASON J.A.
WOODS J.A.
MACTAVISH J.A.
BETWEEN:
CHRISTINE AMER
Appellant
and
SHAW COMMUNICATIONS CANADA INC.
Respondent
REASONS FOR JUDGMENT
GLEASON J.A.
[1] The appellant appeals from the judgment of the Federal Court in Shaw Communications Canada Inc. v. Amer, 2020 FC 1026 (per Manson, J.) in which the Federal Court set aside the award of a seasoned labour adjudicator appointed under Division XIV of Part III of the Canada Labour Code, R.S.C. 1985, c. L-2 (the Code).
[2] In that award, reported as Amer and Shaw Communications Inc., Re, 2018 CarswellNat 5495, [2018] C.L.A.D. No. 177, Adjudicator Susan Kaufman (the Adjudicator) found that the dismissal of the appellant from her employment with the respondent was unjust. By way of remedy, the Adjudicator ordered the respondent to pay the appellant damages, consisting of lost salary and benefits for the period until the appellant commenced work elsewhere and severance pay under the Code. The Adjudicator awarded interest on the foregoing amounts and also granted the appellant her costs on a full indemnity basis.
[3] In the decision under appeal, the Federal Court found that the Adjudicator breached the respondent’s rights to procedural fairness in (i) determining that sales-related duties were not part of the appellant’s core functions and (ii) concluding that the respondent’s statistical evidence regarding the number of calls during which the appellant underperformed was insufficient to establish cause. The Federal Court held that, in so ruling, the Adjudicator shifted the focus of the case without notice and therefore violated the respondent’s procedural fairness rights in making determinations on these issues that were adverse to the respondent.
[4] The Federal Court further held that the conclusion that the Adjudicator reached with respect to the nature of the appellant’s duties was unreasonable. On this point, it substituted its views for those of the Adjudicator and, contrary to what the Adjudicator found, held that certain tasks were core expectations of the appellant’s role.
[5] The Federal Court also held that the Adjudicator’s remedial award was unreasonable because it was not open to the Adjudicator to include, as part of the damages award, compensation for severance pay under the Code or to award the appellant her costs on a full indemnity basis.
[6] With respect, I disagree with each of these findings, and, for the reasons that follow, I would allow this appeal with costs and set aside the judgment of the Federal Court. This would result in the reinstatement of the Adjudicator’s award.
I. Background and Submissions to the Adjudicator [7] The facts pertaining to the appellant’s employment and her termination are set out at length in the Adjudicator’s fulsome reasons. I summarize below only those that are relevant to this appeal.
[8] The respondent employed the appellant for approximately seven and a half years. She first worked as a Customer Service Representative and in June 2012 transferred to the position of Technical Service Representative (TSR). The appellant stated that she never received a job description for the TSR position, and the Adjudicator found that there was no evidence that one had been given to the appellant.
[9] Although the appellant’s tasks as a TSR consisted primarily of addressing technical problems that customers encountered with the services provided by the respondent, the appellant was also expected to make sales to the customers with whom she spoke and to succeed in having some of them switch to e-billing. She was also supposed to keep notes of her discussions with customers.
[10] For many years, the appellant received satisfactory performance evaluations and salary increases. By the time her employment was terminated, the appellant was earning a little less than $40,000.00 per year. The appellant changed supervisors several times. Beginning in 2014, certain problems began to be noted by her new supervisor, principally regarding the appellant’s sales figures. However, the appellant continued to receive performance evaluations in which she received overall ratings of “Meeting Expectations” in 2014 and 2015.
[11] By February 2016, her overall performance evaluation fell to “Below Expectations”. Thereafter, with ever-increasing frequency over the following weeks, she was warned about her failure to meet the expected sales and e-billings targets. The respondent provided her a final warning in March 2016 and terminated her employment on April 17, 2016, asserting it had cause to do so. The respondent’s termination letter stated that the respondent had terminated the appellant’s employment for cause, “including but not limited to [the appellant’s] continued inability to meet the core expectations of [the appellant’s] role despite verbal and written warnings”.
[12] The appellant filed an unjust dismissal complaint under section 240 of the Code in June 2016. Pursuant to subsection 241(1) of the Code, an inspector from the Labour Program of Employment and Social Development Canada wrote to the respondent on July 14, 2016, requesting that it provide a written statement giving the reasons for dismissal. The respondent replied on July 22, 2016, stating as follows:
Ms. Amer consistently performed below expectations in regards to the quality of her work. She continually failed to meet the basic requirements of Technical Service Representative in the areas of sales, upgrades, and e-billings, in addition would repeat the unacceptable performance despite blatant warnings to improve. Furthermore, had been rated “Below Expectations” on several performance reviews. She was advised of our clear expectations and was provided coaching and reasonable timeframes to show improvement; however; failed to do so which resulted in Ms. Amer receiving a written warning in February 2016 for failing to meet the performance expectations.
In March 2016, Ms. Amer received a final written warning regarding her overall performance, more importantly, failing to offer relevant sales and upgrades; the requirement to appropriately promote and sell our products and services, not offering our customers the ability of electronic billing options, and inability to document what was required for all customer calls. She was clearly told that if she failed to show immediate improvement it would result in her termination with cause.
Then on April 14, 2016, Ms. Amer failed to offer e-billings during her calls with customers despite knowing this was a rudimentary expectation. Ms. Amer was fully aware she was not meeting the overall basic expectations of her role as Technical Service Representative as she signed all written warnings which obviously noted the consequences if she failed to meet the required expectations set out for her.
[13] Subsection 241(1) of the Code at the relevant time provided:
Reasons for dismissal
Motifs du congédiement
241(1) Where an employer dismisses a person described in subsection 240(1), the person who was dismissed or any inspector may make a request in writing to the employer to provide a written statement giving the reasons for the dismissal, and any employer who receives such a request shall provide the person who made the request with such a statement within fifteen days after the request is made.
241(1) La personne congédiée visée au paragraphe 240(1) ou tout inspecteur peut demander par écrit à l’employeur de lui faire connaître les motifs du congédiement; le cas échéant, l’employeur est tenu de lui fournir une déclaration écrite à cet effet dans les quinze jours qui suivent la demande.
[14] An employer’s response to an inquiry under subsection 241(1) of the Code sets out the matters the employer will need to prove to establish cause for the termination in an adjudication conducted under Division XIV of Part III of the Code. The response therefore functions like a statement of defence in a civil trial and frames the points in issue.
[15] Pursuant to 242(1) of the Code, the Minister of Labour appointed the Adjudicator to hear the appellant’s complaint of unjust dismissal. The Adjudicator held a four-day hearing, during which several witnesses testified and multiple exhibits were tendered. As is usual in a labour case, there was no transcript of the hearings before the Adjudicator.
[16] The appellant and the respondent filed detailed written closing arguments, with the respondent proceeding first, as is typical in an adjudication under Division XIV of Part III of the Code or in a labour arbitration, where cause is in issue.
[17] Importantly for our purposes, the respondent set out in its submissions what it believed were core expectations of the TSR position. It noted at paragraph 3 of its written submissions before the Adjudicator that such expectations included documenting the details of telephone calls with customers, asking customers if they would like to Refer-A-Friend (RAF) to the respondent, inquiring if customers wanted to adopt e‑billing, and seeking to verify customers’ addresses to facilitate sales to them of additional products. At paragraph 10 of its submissions, the respondent stated that sales were also a fundamental part of the appellant’s job. At several points in its written submissions before the Adjudicator, the respondent referred to the evidence that it believed supported its contention that the appellant failed to meet the sales target she was expected to achieve, to inquire of customers whether they would switch to e-billing, to promote the RAF program, to keep notes, and to verify customers’ addresses. Its evidence on many of these points was drawn from calls to which the appellant’s supervisors had listened.
[18] Through its termination letter, reply letter to the Labour Program inspector, and written representations, the respondent put in issue the nature of the appellant’s core duties and the evidence that it believed proved that she failed to perform them.
[19] In her responding closing submissions, the appellant contested both the nature of the expectations of her position and the sufficiency of the respondent’s evidence, alleging that the respondent had not established that she failed to perform her duties adequately. For example, at paragraph 7, the appellant noted that she received no job description for the TSR position and had no experience in sales. She further noted at paragraph 17 that the TSR position “… clearly involved technical services support by phone for customers who might be experiencing issues with their televisions, satellite equipment, channels, packages, and services generally”. At paragraph 41, the appellant alleged that her supervisor knew the respondent’s sales goals were unrealistic, and at paragraph 55, she stated that the objectives the respondent had for her were unclear.
[20] At paragraph 50, the appellant stated that there was no credible evidence that she was failing to do what she had been asked to do on calls. She went on to highlight, in subsequent paragraphs, the respondent’s failure to disclose or maintain the recordings of the calls that her supervisors had listened to that were put forward as evidence of her inadequate performance. In paragraphs 57 and 58, the appellant stated:
It is also highly troubling that Shaw did not produce the best evidence, i.e. recordings of the calls that Mr. Servcik says were reviewed by his team. (The unjust dismissal complaint form was submitted to on June 7, 2016 [Ex. 1, Tab 46] and Shaw wrote to the Federal Labour Program on June 22, 2016 [Ex. 1 Tab 47], which gave Shaw ample time to preserve and produce the best evidence it had, including recordings, and data on how Ms. Amer compared to her peers.)
Just as noteworthy is the evidence from Ms. Amer about the lack of opportunity she had in being part of the investigation and giving her side of the story, once presented with the evidence in a meaningful way. She was not permitted to listen to any calls herself or review the files and so she was left dumbfounded as to how to respond. What could she say? In her testimony, she denies she was failing to do what she was tasked with and there may have been an innocent explanation for the anomalies. However, without the ability to test the evidence now or then, it is only fair that Shaw not be permitted to self-servingly write the evidentiary record and, accordingly Shaw’s evidence should be given little weight.
[21] At paragraph 96 of her submissions, the appellant provided a summary of the reasons why she believed the respondent had failed to establish cause. After commenting on the vagueness of the standards set by the respondent and the fact that she had not been given adequate time to improve, the appellant stated:
Other factors, which that [sic] suggest Ms. Amer’s dismissal was unjust include but are not limited to (in no particular order):
a) Ms. Amer had a long, and positive history with Shaw;
b) She was good at many of the fundamental aspects of her job and Shaw recognized that on a number of occasions;
c) There was, objectively, more that Ms. Amer was doing well, than not; it is reasonable to assume based on the evidence that she was fairly competent TSR;
d) Ms. Amer indicated that she was doing what Shaw told her to do, perhaps not always perfectly, but she was not getting results. She indicated that when she was not getting results she would keep trying to implement what she had been trained to do;
e) There is little credible evidence to suggest Ms. Amer’s weaknesses in terms of sales were that serious, in comparison to her peers;
f) Ms. Amer hit her sales target prior to her dismissal, doing what she was warned she had to do, which was to improve, to avoid termination. Shaw failed to abide by its own criteria it [sic] terms of dismissal in this regard. And we still do not know if there were other procedures;
g) Shaw did not give Ms. Amer a chance to listen to the audited calls and review the files to potentially offer an explanation;
h) Shaw never used further progressive discipline before terminating Ms. Amer;
i) there is no evidence that Ms. Amer's documentation had [ever] been anything but an isolated concern.
[22] In its reply, the respondent noted that the appellant had put in issue both the nature of the expectations the respondent had for her and the adequacy of the respondent’s evidence. For example, it noted at paragraph 16 of those submissions that the appellant took the position that its performance targets were unclear and its expectations of a TSR were subject to constant change, particularly regarding sales. The respondent also replied at paragraphs 18-21 to the appellant’s arguments regarding the adequacy of its evidence and failure to preserve recordings of the calls to which the supervisors had listened.
[23] Thus, it is clear that both the nature of the core expectations the respondent alleged it had for the appellant and the adequacy of its evidence and statistics as demonstrating cause were very much in issue before the adjudicator.
[24] The written submissions also reveal that the appellant sought compensation beyond her lost wages and benefits and for her legal costs. She stated as follows at paragraphs 109-113 of her written submissions:
Ms. Amer is seeking to be made “whole” by way of full lost wages, interest, damages “in lieu of reinstatement”, aggravated and punitive damages as well as costs.
Section 242(4) of the Code provides an adjudicator with wide remedial jurisdiction where a claim of unjust dismissal is made out including the power to order compensation, reinstatement and “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”:
Section 242(4) 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.
Section 242(4) of the Code broadly allows an adjudicator to order a “make whole” remedy, so that employees may obtain meaningful remedies which are far more expansive than those available at common law.
An adjudicator’s remedial jurisdiction even includes the power in appropriate cases to substitute a reasonable disciplinary penalty other than dismissal, such as a disciplinary suspension.
In addition to support from to the Canada Labour Code adjudication cases and court cases already cited above, Ms. Amer seeks to rely on Hyderi v. Concorde Baggage Services Inc. in requesting $10,000 in damages in lieu of reinstatement over and above her approximate five months of wage losses.
[25] In its reply submissions, the respondent noted that the appellant, “…in addition to seeking lost wages, interest, and damages in lieu of reinstatement is seeking punitive and aggravated damages” (at paragraph 63, emphasis added). The respondent went on to provide submissions on punitive and aggravated damages but made no submissions on damages in lieu of reinstatement or costs.
II. The Award of the Adjudicator [26] I turn next to review the Adjudicator’s award. As already noted, she found that the dismissal of the appellant was unjust. In reaching this determination, she made several factual findings that are relevant to this appeal.
[27] She first held that the core functions of the appellant did not include sales. She stated at paragraphs 164 and 165 as follows:
The termination letter (Ex. 1, Tab 45) stated that she was being terminated
...for just cause, including but not limited to your continued inability to meet the core expectations of your role despite verbal and written warnings.
I find, on balance of probabilities, and as a matter of common sense, that Ms. Amer’s primary or core duties as a TSR were to respond to calls from customers having difficulties with the service and hopefully resolving those difficulties during their call and if not, to send someone out to deal with them as soon as possible. There was no specific evidence that her behaviour and effectiveness in responding to technical services issues when customers called had not been satisfactory. There was no specific evidence that any Shaw staff had ever complained that she had not left documentation and that … had given them difficulty dealing with a customer on a follow-up call.
A Position Description for a Technical Services Representative might have stipulated that the “core expectations” of that role were primarily behaviours with customers intended to produce Sales, promote Ebilling, upgrades, etc. I conclude that the evidence, in the absence of a Position Description, did not clearly and convincingly establish the weight Shaw placed upon the provision of technical services to customers as compared to the weight it placed upon behaviours of the TSR with customers intended to produce Sales, promote Ebilling, upgrades, etc. I conclude that the evidence did not establish, clearly and convincingly, the “core expectations” of the role of the Technical Services Representative.
[28] Second, the Adjudicator concluded that the respondent’s evidence of certain calls taken by the appellant did not prove that she was not performing adequately because the respondent did not succeed in establishing that the calls were a representative sample. The Adjudicator in addition commented negatively on the respondent’s failure to preserve the recordings of the calls in question or to have shared them with the appellant.
[29] Third, the Adjudicator found that the respondent had not established that the appellant failed to keep documentation of what happened during customer calls, as the respondent alleged. The Adjudicator held as follows at paragraph 170 of her award:
Further, with respect to the alleged absence of documentation on March 2, 2016, Ms. Amer’s undisputed evidence was that sometimes she put the documentation on the account, and at other times she created a memo within the system. The evidence did not establish whether Ms. Amer violated a rule or procedure as to how to document what had transpired on a file by creating a memo rather than making a notation on the customer’s account. The evidence did not establish that the person who determined that there was no documentation on 4 of her accounts on March 2, 2016 had checked only the notes on the account, or whether that person had looked for a memo on the account within the system.
[30] Fourth, the Adjudicator found that the appellant performed adequately the core expectations of her position with respect to resolving client’s technical problems and that, indeed, the respondent had no issue with her technical competencies.
[31] The foregoing determinations were reached by the Adjudicator after her review of the evidence, which is recounted at length in her award.
[32] The Adjudicator summarized her conclusions at paragraph 200 of her award as follows:
I conclude, on the evidence before me, and on balance of probabilities, that Ms. Amer satisfactorily fulfilled the “core expectations” of her position as a Technical Service Representative in servicing customers’ technical issues. She may not have met Shaw’s “5 non-negotiable expectations” with respect to Sales, Upgrades and Ebillings but I have concluded that the evidence, particularly the very limited sample of audited calls, did not clearly and convincingly support the conclusions Shaw reached. Further, in the absence of a Job Description I am unable to conclude that the “5 non-negotiable expectations” were the same as Shaw’ s “core expectations” of a Technical Services Representative. In the absence of a Job Description, and the weight it presumably would have placed on the skills, abilities and behaviours required in servicing customers’ technical problems, as compared to those required for Sales, promotion of Upgrades, and Ebilling, I am unable to conclude that Shaw’s evidence has established “the requisite standard” and “an inability” on Ms. Amer’s part which rendered her “incapable of performing the job.”
[33] In terms of remedy, the appellant did not seek reinstatement because she had succeeded in finding alternate employment a few months following her termination. The Adjudicator therefore awarded the appellant damages, comprised of compensation for lost salary and benefits for the five-month period during which the appellant was unemployed and severance pay under the Code. Pursuant to section 235 of the Code, the amount of severance payable to the appellant was equal to two days’ wages for each completed year of employment, which amounted to $2,150.50. The Adjudicator declined to award punitive or aggravated damages, finding that the appellant had not established an entitlement to them. As noted, the Adjudicator also awarded the appellant substantial indemnity costs.
[34] The Adjudicator provided no reasons for her costs award. Her comments on the remedies ordered were set out in paragraph 218 of her award, which provided:
In view of the foregoing, I order the employer, Shaw Communications Inc., to forthwith compensate Ms. Amer for all loss of salary, including bonuses, benefits, and interest from April 17, 2016 to the date she commenced her new employment, as well as severance pay pursuant to s. 235 of the Canada Labour Code, supra, and interest on that amount, less statutory deductions, and for costs on a full indemnity basis.
III. Evidence before the Federal Court [35] I turn now to review the affidavit and cross-examination evidence that was before the Federal Court. In this regard, the respondent filed an affidavit from one of its employees, who attended the hearing before the Adjudicator. In addition to attaching some of the exhibits that were before the Adjudicator, the parties’ written representations to the Adjudicator, and her notes of the hearing, the respondent’s affiant also provided fresh evidence in her affidavit as to her understanding of the appellant’s duties as a TSR and her shortcomings. Such evidence was not before the adjudicator. Therefore, it was inadmissible and could not have been relied on by the Federal Court, which was tasked with deciding whether the Adjudicator’s decision was reasonable and not with deciding the case afresh, based on new evidence in the affiant’s affidavit.
[36] This principle is well established as was noted, for example, in Andrews v. Public Service Alliance of Canada, 2022 FCA 159, 2022 A.C.W.S. 5768, leave to appeal to SCC refused, 40451 (16 February 2023) at paragraph 18, where this Court stated that, subject to certain narrow exceptions that do not pertain in the case at bar:
….the only evidence that can be considered in a judicial review application is the evidence that was before the decision maker: see, for example, Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22, 428 N.R. 297 at paras. 18-20 …; Connolly v. Canada (Attorney General), 2014 FCA 294, 466 N.R. 44 at paras. 7-8; Bernard v. Canada Revenue Agency, 2015 FCA 263, 261 A.C.W.S. (3d) 441 at paras. 13-22, 29-36 …. This principle derives from the role of a reviewing court, which is not to make findings of fact or to determine matters on the merits, but rather to examine the reasonableness of the administrative decision maker’s decision. For a reviewing court to accept fresh evidence on judicial review would be tantamount to performing a de novo analysis of the evidence itself.
[37] The respondent’s affiant also set out her views as to what was in issue before the Adjudicator, but the paragraphs in her affidavit on these matters are essentially legal argument. As for the notes of the hearing taken by the respondent’s affiant, I underscore that they are not a transcript and cannot be taken to be as accurate as a transcript.
[38] The appellant also filed an affidavit that appended certain exhibits that were before the Adjudicator. Like the affidavit from the respondent’s affiant, the appellant’s affidavit also contained several paragraphs that were essentially legal argument. The appellant was cross-examined on her affidavit and at several points was asked questions that elicited fresh evidence regarding what transpired during her employment with the respondent. For the reasons already noted, such evidence was inadmissible before the Federal Court.
[39] She was also asked a question that elicited an answer that the respondent referred to during the hearing before this Court as follows:
Q. … At the hearing no one took the position at any time, during either your evidence or in cross-examination of the employer’s witnesses, that Sales, Upgrades, and e-Billings were not core expectations of your role, did they?
A. No
IV. The Judgment and Reasons of the Federal Court [40] Moving on to the judgment and reasons of the Federal Court, as noted, it allowed the application for judicial review. In terms of remedy, it remitted the appellant’s complaint to another adjudicator for redetermination and awarded the respondent costs, which it fixed in the all-inclusive amount of $25,000.00.
[41] The Federal Court found that the reasonableness standard applied to all issues, except the claimed procedural fairness violations, which were reviewable for correctness.
[42] The Federal Court first discussed the reasonableness of the Adjudicator’s conclusion that the dismissal was unjust. The Federal Court set this conclusion aside because it found that it was unreasonable for the Adjudicator to have determined that sales were not a core part of the appellant’s duties. In reaching this determination, the Federal Court re-weighed some of the evidence before the Adjudicator. The Federal Court’s reasoning on this issue was set out in paragraph 30 of its reasons, where it stated:
The record shows that the Adjudicator’s conclusion that Documentation, sales, upgrades and e-Billing were not core expectations of the TSR role is unreasonable. These were clearly consistent metrics involved in the Respondent’s performance reviews. The Respondent received coaching, training and periodic communications in relation to these metrics. The concerns were raised month after month since the Respondent’s engagement with the Applicant and were the subject of several warnings. The Respondent acknowledged herself that she recognized her employment was in jeopardy if she failed to meet the targets set by the Respondent. The totality of the evidence demonstrates these targets are key aspects of the Respondent’s TSR role. The Decision is unreasonable to the extent it relies on this finding. Further, the Adjudicator’s reliance on the lack of a “Job Description” in establishing these core duties is unreasonable in light of the entirety of the record.
[43] The Federal Court next moved on to address the respondent’s submissions on the remedies and found that the Adjudicator’s remedial award was unreasonable because it was not open to the adjudicator to award severance pay in conjunction with loss of salary or to award substantial indemnity costs.
[44] As concerns the costs award, the Federal Court relied on an earlier decision of that Court in Bank of Nova Scotia v. Randhawa, 2018 FC 487, [2018] F.C.J. No. 494 (B.N.S. v. Randhawa) for two principles. First, that substantial indemnity costs should be awarded, by an adjudicator under Division XIV of Part IIII of the Code, only where there has been reprehensible, scandalous or outrageous conduct by the employer. Second, where such costs are awarded, the adjudicator must provide reasons for the award. In the absence of any reasons highlighting any such conduct by the respondent, the Federal Court held that it was not open to the Adjudicator to have made an award of substantial indemnity costs in favour of the appellant.
[45] As concerns severance pay, the Federal Court agreed with the respondent that the awarding of severance pay, coupled with damages for lost wages and benefits, represented double recovery. The Federal Court reasoned that the decision of the Supreme Court of Canada in Wilson v. Atomic Energy of Canada Ltd., 2016 SCC 29, [2016] 1 S.C.R. 770 [Wilson] stands for the proposition that an employee can receive either notice and severance pay under the minimum standards provisions in the Code or can access the unjust dismissal remedies under Division XIV of the Part III of the Code.
[46] However, that is not the holding in Wilson. Rather, in that case the Supreme Court held that an offer by an employer of a generous severance package in a non-cause termination does not preclude the employee from seeking a remedy under the unjust dismissal provisions set out in Division XIV of Part III of the Code. The Federal Court took this holding to mean that the compensatory damages that the Adjudicator could have awarded were limited to lost wages and benefits, especially as the Adjudicator did not provide reasons for her award of severance pay.
[47] The Federal Court ended its Reasons by addressing the respondent’s procedural fairness arguments. It did not agree that the Adjudicator was biased, as the respondent alleged, but, as noted, did find that the Adjudicator denied the respondent procedural fairness in making determinations about the scope of the appellant’s core duties and in finding the respondent’s statistical evidence of the appellant’s shortcomings to be inadequate to establish cause. Despite the nature of the submissions made to the Adjudicator by the parties, the Federal Court found that neither point was in issue and that the Adjudicator therefore denied the respondent procedural fairness in ruling on them. The Court stated on this point at paragraph 44 of its Reasons:
The parties must have a reasonable opportunity to respond to any new ground on which they have not made representations. In this respect, I agree the parties should have been made aware that the scope of the core duties of the TSR role and the statistical evidentiary basis relied upon by the Applicant to demonstrate the Respondent had consistently failed to meet her targets was in issue. These concerns were not put in issue by the parties, but nevertheless formed the basis upon which the Adjudicator found there was no culminating incident, owing to the lack of a complete and accurate representation of the Respondent’s performance, thereby allowing her to conclude the dismissal of the Respondent was unjust.
V. Analysis [48] With the foregoing background in mind, I move next to review the various issues that arise in this appeal.
[49] It is convenient to first make a few comments about the applicable standard of review. For most issues, this Court essentially steps into the shoes of the Federal Court and is charged with determining if that Court selected the correct standard of review and, if so, whether it applied that standard correctly: Agraira v. Canada (Public Safety and Emergency Preparedness), 2013 SCC 36 (CanLII), [2013] 2 S.C.R. 559 at paras. 46-47; Northern Regional Health Authority v. Horrocks, 2021 SCC 42 (CanLII), 336 A.C.W.S. (3d) 357 at para. 10.
[50] In the case at bar, the deferential reasonableness standard applies to all issues except procedural fairness: Wilson at para. 15; Northern Inter-Tribal Health Authority Inc. v. Yang, 2023 FCA 47 (CanLII), 2023 A.C.W.S. 895 at para. 49; Canada (Attorney General) v. Allard, 2018 FCA 85 (CanLII), 293 A.C.W.S. (3d) 398 at para. 24; Riverin v. Conseil des Innus de Pessamit, 2019 FCA 68 (CanLII), 305 A.C.W.S. (3d) 551 at para. 18.
[51] On issues of procedural fairness, no deference is owed, and it is for the reviewing court to determine whether there has been a procedural fairness violation: Canadian Pacific Railway Company v. Canada (Attorney General), 2018 FCA 69 (CanLII), [2019] 1 F.C.R. 121 at para. 36; Watson v. Canadian Union of Public Employees, 2023 FCA 48, [2023] F.C.J. No 280 (QL) at para. 17; Maritime Employers Association v. Syndicat des débardeurs (Canadian Union of Public Employees, Local 375), 2023 FCA 93 (CanLII), 2023 CarswellNat 1299 at para. 81.
[52] That said, where the Federal Court makes its own factual determinations in reaching a procedural fairness conclusion, such determinations are reviewable by this Court under the normal appellate standard of review and are thus subject to being set aside only for palpable and overriding error: Sturgeon Lake Cree Nation v. Hamelin, 2018 FCA 131 (CanLII), [2018] F.C.J. No. 700 (QL) at paras. 37, 40.
[53] As will soon become apparent, it is my view that the Federal Court, while selecting the appropriate standards of review, erred in their application.
A. Did the Federal Court Err on Procedural Fairness? [54] I turn first to assess the Federal Court’s findings on procedural fairness and conclude that it made a reviewable error in holding that a breach of procedural fairness occurred.
[55] As the foregoing review of the parties’ submissions demonstrates, the respondent put in issue the nature of the appellant’s core duties and called evidence about the statistics it had compiled in an attempt to prove that the appellant failed to discharge her core duties. The nature of those duties and the sufficiency of the respondent’s evidence was therefore very much in issue before the Adjudicator, it being incumbent on the employer to establish the cause it alleged in its statutory reply given under subsection 241(1) of the Code. In short, by the nature of its case, the respondent put these matters in issue.
[56] Moreover, there was no admission by the appellant as to the nature of her core duties nor as to the adequacy of the employer’s evidence, including its evidence of the calls the supervisors listened to, their representative nature, or the adequacy of the employer’s statistics to establish cause. To the contrary, the appellant very much disputed the nature of the respondent’s expectations and took the position that it had not proved that she failed to meet the reasonable expectations the respondent might have had. Her written closing submissions are replete with arguments to that effect.
[57] I therefore conclude that the Federal Court made a palpable and overriding error in holding that the Adjudicator shifted the focus of the case and that the nature of the appellant’s core duties or the adequacy of the employer’s statistical evidence as evidence of cause was not in issue before the Adjudicator. With respect, the one answer given by the appellant to a question of a legal nature, cited above, that the respondent relies on, cannot contradict the nature of what was argued by the parties, as evidenced in their written submissions to the Adjudicator.
[58] Thus, contrary to what the Federal Court concluded, the Adjudicator did not shift the focus of the case or breach the respondent’s rights to procedural fairness.
B. Did the Federal Court Err in Overturning the Adjudicator’s Factual Findings? [59] I turn next to the Federal Court’s interference with the Adjudicator’s findings in respect of the appellant’s duties. While stating that it was applying the reasonableness standard, the Federal Court did not do so and instead conducted its own analysis of the evidence to reach an opposite conclusion from that reached by the Adjudicator. This is correctness as opposed to reasonableness review.
[60] When applying the reasonableness standard, a reviewing court “does not ask what decision it would have made in place of that of the administrative decision maker, attempt to ascertain the “range” of possible conclusions that would have been open to the decision maker, conduct a de novo analysis or seek to determine the “correct” solution to the problem”: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (CanLII), [2019] 4 S.C.R. 653 at para. 83; Canada (Attorney General) v. Ennis, 2021 FCA 95 (CanLII), [2021] 4 F.C.R. 154, leave to appeal to SCC refused, 39800 (20 January 2022) at para. 48.
[61] As this Court has repeatedly held, reviewing judges should not make their own yardstick and then use that yardstick to measure what the adjudicator did: Delios v. Canada (Attorney General), 2015 FCA 117, 472 N.R. 171 at para. 28; Canada (Attorney General) v. Kattenburg, 2020 FCA 164, [2020] F.C.J. No. 965, leave to appeal to SCC refused 39474 (1 April 2021) at paras. 9, 15. This is disguised correctness review.
[62] To avoid creating its own yardstick, a reviewing court must not reweigh or reassess the evidence considered by the decision maker. It must refrain from interfering with the administrative decision maker’s factual findings unless “the decision maker has fundamentally misapprehended or failed to account for the evidence before it”: see Vavilov at para. 125; Shreedhar v. Canada (Attorney General), 2023 FCA 14, 2023 A.C.W.S. 223 at para. 7; Public Service Alliance of Canada v. Canada (Senate), 2023 FCA 111, 2023 A.C.W.S. 2155 at para. 12; Gulia v. Canada (Attorney General), 2021 FCA 106, 332 A.C.W.S. (3d) 84 at para. 13.
[63] In this case, the Adjudicator did not make factual findings that indicated that s