Ma v. Bank of Canada

Ma v. Bank of Canada
Court (s) Database
Federal Court Decisions
Date
2020-12-04
Neutral citation
2020 FC 1125
File numbers
T-233-20
Decision Content
Date: 20201204
Docket: T-233-20
Citation: 2020 FC 1125
Ottawa, Ontario, December 4, 2020
PRESENT: The Honourable Mr. Justice Brown
BETWEEN:
DENISE MA
Applicant
and
BANK OF CANADA
Respondent
JUDGMENT AND REASONS
I. Nature of the matter
[1] This is an application for judicial review of a decision [Decision] by an adjudicator [Adjudicator] acting under Part III of the Canada Labour Code, RSC 1985, c. L-2 [Code]. The Adjudicator denied the Applicant’s claim for unjust dismissal brought against the Bank of Canada [Bank], under subsection 240(1) of the Code. The Adjudicator held he had no jurisdiction because the Applicant had not completed twelve consecutive months of employment with the Bank, a condition under paragraph 240(1)(a) of the Code.
II. Summary
[2] Excel Human Resources Inc. [Excel, the Agency or Agency Excel] is a human resources recruitment and staffing company, commonly referred to as a placement agency. It recruits workers who may subsequently perform services for companies other than Excel. There are three parties in this sort of arrangement, which is why it is called a tripartite arrangement. The first party is an employee like the Applicant, the second party is a placement agency such as Excel, and the third party is a client for whom the employee performs services, in this case, the Bank.
[3] It is important to understand that an employee in this sort of tripartite agreement may stand in an employee/employer relationship with the client for whom he or she actually performs services, or stand in an employee/employer relationship with the agency. Depending on the facts of the case, the employee may be an employee of both the agency and the client.
[4] In addition, various statutory regimes require decision-makers to determine whether an employee is an employee of the placement agency or an employee of the client. This is such a case.
[5] In this case the Adjudicator found the Applicant was an employee of the Agency Excel for the purposes of subsection 240(1) of the Code. The Applicant submits the Decision is unreasonable as she should have been found to be an employee of the Bank. The Applicant also raises an issue of procedural fairness. The Bank takes the position their was no procedural unfairness, the Adjudicator’s Decision is reasonable and should not be disturbed.
[6] I am not asked to decide whether the Adjudicator’s Decision is correct or incorrect. Except for the procedural fairness argument, I am only determining whether the Decision of the Adjudicator is reasonable.
[7] The application for judicial review is dismissed because in my respectful view, the Decision of the Adjudicator is reasonable and there was no procedural unfairness.
III. Facts
[8] I will set out the facts briefly; some may be amplified later in these reasons.
[9] The Applicant entered into a “Candidate Pre-Screening Agreement” with Excel on August 9, 2016. In this agreement, Excel indicated that it would complete certain activities, among others, prior to looking for an assignment for the Applicant: resume review, interview, internal review of qualifications and experience, two reference checks, testing (as needed), and security clearance or background checks (as needed).
[10] Excel was satisfied with the Applicant and introduced her to several prospective employers including the Bank. The Bank was satisfied with her such that it agreed to have the Applicant work with it, which she did through the Agency for ten months. To do so the Applicant and the Agency entered into a “Work Assignment/Employment Agreement” dated December 15, 2016 by which the Applicant agreed she was an employee of the Agency, although she would be performing services for, and on the premises of the Bank. The Agency took care of all payroll matters including deductions and taxes. The Agency also did the recruiting, made the introductions, provided the bridge to the Bank, and monitored the Bank’s satisfaction with the Applicant. Under the “Work Assignment/Employment Agreement”, Excel had the authority to discipline the Applicant, and had the right to dismiss her for cause or otherwise with notice provisions.
[11] The Applicant was therefore, nominally at least, an employee of Excel. She provided her services to the Bank beginning on December 5, 2016. Her salary was set by Excel, not the Bank. Excel charged the Bank $33.81 per hour, while Excel paid the Applicant only $21.00. The difference, less Agency expenses, was presumably profit for the Agency. The Applicant submitted time sheets approved by the Bank through Excel’s online platform in order to receive remuneration. Excel then sent the Bank an invoice.
[12] The Applicant had no contract with the Bank at the outset of her going there to work. Her only contract at that time was with the Agency Excel.
[13] The Bank had two signed agreements with the Agency. The first was signed some years earlier in 2013 and was called a “Professional Services Sourcing Agreement” between the Bank and the Agency Excel. This agreement commenced on July 15, 2013 and was amended on May 25, 2018. It governed various aspects of the relationship between the Bank and the Agency Excel, indicating that upon request by the Bank, Excel would put forward individuals for the Bank’s consideration, and that the Bank would provide suitable office space and resources for an individual with which it was satisfied. This agreement also governed payment terms, property rights, confidentiality, indemnity and insurance matters.
[14] The second agreement, a “Letter of Engagement” dated December 12, 2016 and related to the Applicant, was signed between the Bank and the Agency Excel. The Letter of Engagement outlined the scope of the work the Applicant would perform for the Bank, and various work requirements, time periods and remuneration in respect of the Applicant’s services to the Bank. As noted, the Bank had no contract with the Applicant.
[15] The Applicant worked at the Bank’s premises. Her computer, desk and other office equipment and supplies were provided by the Bank. She was instructed what to do and her work was assessed by Bank staff who liaised periodically with the Agency. The Applicant’s contract with the Agency gave the Agency the right to terminate her, and provided relevant notice periods for termination. Also, as already noted, discipline was a matter for the Agency not the Bank, however the Bank was satisfied with her work and had no occasion to discipline her.
[16] Her initial four month contract was extended three times for one, four and four month(s) respectively. I note the Applicant resigned from her employment with Excel before the completion of the final contract extension.
[17] After some ten months working at the Bank under her agreement with the Agency, the Applicant successfully replied to an advertised position at the Bank.
[18] After receiving a formal offer of employment with the Bank, the Applicant informed Excel she had obtained alternative employment, and resigned from Excel effective October 25, 2017.
[19] The Applicant entered into a contract October 18, 2017 with the Bank by which she nominally became a Bank employee.
[20] Her contract with the Bank started on October 26, 2017 and was terminated approximately eight months later, on June 18, 2018.
[21] Throughout the time she worked for the Bank directly, the Applicant performed the same services to the Bank she previously provided to the Bank under her agreement with the Agency. The Applicant maintained substantially the same hours of work, substantially the same work, and initially at least, the same manager. I accept nothing material changed in the workplace, however she was paid by the Bank and directly reported to Bank staff without any involvement of the Agency. Under the Applicant’s contract with the Bank, matters of discipline and training, as well as termination were determined by the Bank.
[22] The Applicant stated, and I find, that the essential nature of her services were the same throughout the entire eighteen-month period.
[23] The Applicant’s supervisor at the Bank, when under contract with the Agency, was very happy with the Applicant. After the Applicant began working for the Bank directly, this supervisor went on maternity leave. A replacement took over and the relationship between the Applicant and the Bank deteriorated.
[24] As noted, the Bank terminated her employment after roughly eight months, on June 18, 2018.
[25] After being terminated by the Bank, the Applicant filed an unjust dismissal complaint under the Code. The Applicant was referred to the Adjudicator on January 8, 2019. The Bank filed an objection on the basis that the Adjudicator had no jurisdiction to hear the claim. The Bank contended that the Applicant had not completed the “twelve consecutive months of continuous employment by an employer” required under paragraph 240(1)(a) of the Code:
Complaint to inspector for unjust dismissal
Plainte
240 (1) Subject to subsections (2) and 242(3.1), any person
240 (1) Sous réserve des paragraphes (2) et 242(3.1), toute personne qui se croit injustement congédiée peut déposer une plainte écrite auprès d’un inspecteur si:
(a) who has completed twelve consecutive months of continuous employment by an employer, and
a) d’une part, elle travaille sans interruption depuis au moins douze mois pour le même employeur;
(b) who is not a member of a group of employees subject to a collective agreement,
b) d’autre part, elle ne fait pas partie d’un groupe d’employés régis par une convention collective.
may make a complaint in writing to an inspector if the employee has been dismissed and considers the dismissal to be unjust.
BLANK
[Emphasis added.]
[Nos soulignés.]
IV. Decision under review
[26] There are two aspects under review in this proceeding. The first is whether the Applicant was denied procedural fairness because the Adjudicator allowed counsel for the Bank to file a written summary or roadmap of his submissions just before making them. The second is whether the Decision is reasonable.
[27] On the procedural fairness issue, I note that at a case management conference call on June 5, 2019 held by the Adjudicator, counsel for the Applicant and Bank agreed on the number of witnesses and length of examinations. They agreed the Adjudicator would hear testimony from various witnesses, after which the Adjudicator would hear the Bank’s motion to dismiss the complaint on jurisdictional grounds. They agreed the parties would make “oral submissions” on the Bank’s jurisdictional motion.
[28] The term “oral submissions” was never defined. The parties agreed that if there was insufficient time for submissions after witness examinations, the parties would submit written submissions at a later date. The term “written submissions” was never defined.
[29] The first day of hearings took place on June 14, 2019, and was adjourned because an additional day was required to complete witness examinations.
[30] During the first day of hearings, the Adjudicator asked if counsel would prefer written or oral submissions. The Applicant’s counsel’s student deposed that “[c]ounsel both suggested reserving a full-day to not only conclude the evidence of Denise Ma, but also complete oral submissions”.
[31] The hearing was adjourned to continue August 23, 2019.
[32] On July 25, 2019, counsel for the Applicant emailed counsel for the Bank to confirm among other things, that the parties would present oral submissions. Counsel for the Bank confirmed on August 2, 2019:
Email from counsel for the Applicant to counsel for the Bank dated July 25, 2019:
Good afternoon Mr. Harnden,
In preparation for the cross-examination of Denise Ma scheduled for Friday, August 23, 2019 at Gillespie’s Reporting Services, we hoped you could confirm the following details:
1. Parties will exchange case law before the cross-examination. Is there a particular lime frame that was agreed upon for exchanging case law? We would like 7 days before the hearing.
2. The cross-examination of Denise Ma will take place first, beginning at 10:00 am. Upon completion, the parties will then make oral submissions, beginning with Mr. Hamden, followed by Mr. Lalonde,
Please advise on the above. Should you prefer, Mr. Lalonde is willing to schedule a telephone conference in order to verify the details for August 23.
Yours very truly,
Email from counsel for the Bank to counsel for the Applicant dated August 2, 2019:
Andrew:
I apologize for the delay in responding. I was in an out of town hearing this week.
Exchange of the case law 7 days before the hearing (August 16) makes sense with the mutual understanding that supplementary case law might be filed by either party to respond to any unanticipated issues raised by the opposite party.
I also confirm that cross-examination of Ms. Ma will commence at 10:00 with arguments submitted thereafter.
[Emphasis added to both letters.]
[33] I note that while the Applicant referred to “oral submissions”, the Bank’s counsel referred only to “arguments”, without reference to those being oral or written.
[34] That said, I did not hear the Bank deny an agreement to make oral submissions; rather, the Bank says filing a written summary or road map of its arguments is an accepted part of making oral submissions. This is the issue in dispute in the procedural fairness aspect of this case.
[35] The Applicant’s evidence was that “Mr. Harnden confirmed that the cross-examination of Ms. Ma could commence at 10:00am, and then oral arguments submitted thereafter”. I note that neither the Respondent’s affidavit nor its submissions refer to the email exchange between the parties. However, the Respondent, in its submissions stated that “[p]rior to the hearing, the parties agreed, on teleconference with the Adjudicator, to present oral submissions at the conclusions of the presentation of their evidence on preliminary motion. This agreement was reconfirmed by the Adjudicator and the parties after the first day of the hearing had been completed”.
[36] At the August 23, 2019 hearing, after evidence was completed, the Bank was to make submissions on its motion to dismiss the complaint on the ground the Adjudicator lacked jurisdiction because the Applicant did not have the twelve months consecutive employment at the Bank required to obtain relief under section 240 of the Code.
[37] Prior to beginning his submissions, counsel for the Bank gave the Adjudicator and counsel for the Applicant a 16 page document entitled “Submissions of Employer.” This was objected to by counsel for the Applicant who asked the Adjudicator not to accept the document.
[38] Counsel for the Bank contended the document was a summary of what he would say in his oral submissions, that its filing would save the Adjudicator from transcribing the submissions, that the document would not be prejudicial to the Applicant, and that counsel for the Applicant had an equal opportunity to write submissions but failed to do so. In essence, the Bank takes the position its written summary is a road map or outline of its oral submissions and should be accepted as such.
[39] At the hearing before me, the Bank submitted that an outline is not the same as written submissions; written submissions, the Bank submitted, might have entailed written memoranda filed by both parties on an agreed timeline. The Bank argues it is common practice for counsel to file written road maps or summaries as part of making oral submissions.
[40] While the Bank had a written outline of its oral submissions ready to submit, the Applicant did not.
[41] Counsel for the Applicant objected to the introduction of written submissions because the parties agreed to oral submissions and therefore, no written submissions were allowed. He said it would be unfair to allow the Respondent to file a written submission when the Applicant had no such right. This aspect of the hearing was not audio recorded. However the affidavit evidence filed by the Applicant stated the deponent’s belief that:
24. Had we been provided with the same opportunity, we could have tailored a concise written summary of the facts and the law, and how the facts applied to the law. [The Adjudicator] would then have had an opportunity to refer to our written submissions like he obviously did for the respondent. The written submissions of the complainant could have also been used in an application for judicial review had the complainant decided to apply for judicial review, which as it turns out, she has.
[42] I note the affidavit does not say the Applicant “would have” tailored a written summary, only that it “could have” done so.
[43] Counsel for the Applicant reports that he advised the tribunal he would agree to the Bank “providing written submissions if he was allowed one (1) week to respond with his own written submissions”. Counsel for the Bank objected to written post-hearing filings by the Applicant, citing undue delay.
[44] The Adjudicator ruled that he would accept the Bank’s written summary of submissions. The Adjudicator also decided to reject the Applicant’s request to provide written submissions a week later citing delay.
[45] It is important to note the Adjudicator made an audio recording of the substantive oral submissions on the jurisdictional point. Therefore the Adjudicator had access to and could have transcribed portions of oral submissions as needed.
[46] The Adjudicator rendered his Decision on January 21, 2020. The Adjudicator concluded he did not have jurisdiction under section 240 of the Code because the Applicant had not completed twelve consecutive months of continuous employment with the Bank.
[47] The Adjudicator found that the Applicant was an employee of the Agency Excel from December 5, 2016, and ceased being an Agency employee on October 25, 2017. None of this time counted towards the twelve consecutive months required by section 240 of the Code because the Adjudicator found the Applicant was not an employee of the Bank during that time.
[48] This Decision was fatal to her claim because she was subsequently employed by the Bank for only eight months – October 26, 2017 to June 18, 2018 – not enough to meet the twelve month threshold.
[49] In other words, the Adjudicator did not accept the Applicant’s argument that her initial ten months of work at the Bank via Excel constituted employment with the Bank for the purposes of paragraph 240(1)(a) of the Code.
[50] To reach his conclusion, the Adjudicator started with a review of the employment law tests applicable to an analysis of a bipartite employment situation (control, exclusivity, who supplies the tools of the trade, direction and control among other things) as, for example, articulated in Doyle v London Life Insurance Co (1985), 23 DLR (4th) 443 (BCCA).
[51] At page 35 of the Decision, the Adjudicator found the tests for bipartite agreements were confusing and ambiguous in the sort of tripartite agreement before him:
I think it confusing to try to apply [criteria for a bipartite dynamic] to the determination of which of two entities is the true employer in a tripartite temporary help arrangement. Not only were those criteria established to sort out matters in bipartite rather than tripartite relationships, they do not anticipate the particularities of a triangular temporary help arrangement. These particularities include the fact that the entity that will in the end be held to be the employer will not have exclusivity over all of the attributes of an employment relationship. Also, there are things that are normal in tripartite temporary help arrangements that are alien to other types of employment relationships. For example, it is typically normal for the client to provide physical resources, such as a work station, a telephone, a computer etc. to an assigned clerical worker from a temporary help agency. It is also normal for such a resource to receive direction from the client on which tasks to perform. Trying to apply criteria designed to sort things out in a bipartite dynamic that does not anticipate the particularities of a tripartite temporary help arrangement would I think insert a level of unnecessary ambiguity in the search for the true employer.
[52] In determining how to assess the employment relationship in the tripartite situation in case at bar, the Adjudicator followed Pointe-Claire (City) v Quebec (Labour Court), [1997] 1 SCR 1015, per Lamer CJC [Pointe-Claire] (L’Heureux-Dubé J dissenting). The Chief Justice for the majority stated:
47. I agree with the more comprehensive approach proposed by Grenier J. in Vassart for identifying the real employer in tripartite relationships. This was also the approach taken by the majority and dissenting judges of the Court of Appeal in the present case. Rousseau‑Houle J.A. stated the following for the majority of the Court of Appeal (at p. 1674):
[TRANSLATION] Day‑to‑day control over the work done is therefore only one factor in determining the employer. The selection process, hiring, discipline, training, evaluation, assignment of duties and the length of time the services are provided are all elements to be considered when it must be determined who the real employer is in a tripartite relationship.
Deschamps J.A., dissenting in the result, proposed the same type of more liberal approach involving the consideration of a number of factors to determine the real employer in a tripartite relationship (at pp. 1678-79):
[TRANSLATION] It seems improbable to me that a client using the services of a temporary personnel agency would end up being the employer of the agency’s employees simply because it controls the work that is to be done every day. This reduces the concept of “employer” to insignificance and ignores reality, which calls for a much more comprehensive view. The factors that must be considered include not only recruitment, selection, training, remuneration and discipline, but also integration into the business, continuity of employment and the employees’ sense of belonging. I cannot conceive of an employer‑employee relationship that involves none of these aspects.
The concept of “legal subordination”, a term that was used by the Labour Court, actually involves, in its view, merely the day‑to‑day supervision of the performance of work. The concept of legal subordination thus simplified is therefore totally inadequate to characterize the tripartite relationship that exists among the agency, its client and the employee.
48. According to this more comprehensive approach, the legal subordination and integration into the business criteria should not be used as exclusive criteria for identifying the real employer. In my view, in a context of collective relations governed by the Labour Code, it is essential that temporary employees be able to bargain with the party that exercises the greatest control over all aspects of their work—and not only over the supervision of their day‑to‑day work. Moreover, when there is a certain splitting of the employer’s identity in the context of a tripartite relationship, the more comprehensive and more flexible approach has the advantage of allowing for a consideration of which party has the most control over all aspects of the work on the specific facts of each case. Without drawing up an exhaustive list of factors pertaining to the employer-employee relationship, I shall mention the following examples: the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.
…
62. I am aware that the arrangement is not perfect. However, it must not be forgotten that the relationship in question here is not a traditional bipartite relationship but a tripartite one in which one party is the employee and the other two share the usual attributes of an employer. In such a situation, it is natural that labour legislation designed to govern bipartite situations must be adjusted in some ways…
63. Unfortunately, tribunals and courts must often make decisions by interpreting statutes in which there are gaps. The case at bar shows that situations involving tripartite relationships can cause problems when it comes to identifying the real employer if the labour legislation is incomplete in this regard. The tripartite relationship does not fit very easily into the classic pattern of bilateral relationships. The Labour Code was essentially designed for bipartite relationships involving an employee and an employer. It is not very helpful when a tripartite relationship like the one at issue here must be analysed. The traditional characteristics of an employer are shared by two separate entities—the personnel agency and its client—that both have a certain relationship with the temporary employee. When faced with such legislative gaps, tribunals have used their expertise to interpret the often terse provisions of the statute…
[Emphasis added.]
[53] The Adjudicator followed Pointe-Claire and stated at pages 28-29 of the Decision:
In my view, the approach to finding the true employer set out in Pointe-Claire has two aspects:
1. It requires a comprehensive assessment of how the attributes of an employment relationship have been distributed in the tripartite temporary help arrangement created by the parties; and,
2. The weight attached to the attributes and how they are measured ought to reflect the objectives of the legal framework for which the determination is made
…
In finding the true employer in the context of the Code’s section 240 remedy, the attributes of employment ought to be weighed and measured in a way that fairly and appropriately reflects the objectives of the remedy for unjust dismissal that Parliament granted to non-unionized workers.
[54] The Adjudicator reviewed each of the attributes of employment set out in para 48 of the Pointe-Claire decision, namely the selection process, hiring, training, discipline, evaluation, supervision, assignment of duties, remuneration and integration into the business.
[55] In this connection, the Adjudicator also considered the Bank’s “Consultant Policy” which provided guidelines for its relationship with external consultants, including individuals it engaged through job placement agencies, such as the Applicant. The Adjudicator also considered the contractual and actual day-to-day relationships between the Applicant, Excel and the Bank, other attributes of those relationships, together with the relevant legislation. These will be more fully reviewed below.
[56] Ultimately, the Adjudicator determined the Applicant was an employee of Excel for the purposes of paragraph 240(1)(a) of the Code during the ten-month period she worked at the Bank under her contract with the Agency. Thus, the Adjudicator held the Applicant had only eight and not the required twelve consecutive months. Therefore, the Adjudicator held he had no jurisdiction because of paragraph 240(1)(a) of the Code.
V. Issues
[57] The issues are as follows:
Did the Adjudicator breach principles of natural justice and/or procedural fairness?
Is the Decision reasonable?
VI. Standard of Review
A. Principles of natural justice and/or procedural fairness
[58] With regard to the first issue, questions of procedural fairness are reviewed on the correctness standard: Canada (Minister of Citizenship and Immigration) v Khosa, 2009 SCC 12, per Binnie J at para 43. That said, I wish to note that in Bergeron v Canada (Attorney General), 2015 FCA 160, [Bergeron] per Stratas JA at para 69, the Federal Court of Appeal says a correctness review may need to take place in “a manner ‘respectful of the [decision-maker’s] choices’ with ‘a degree of deference’: Re: Sound v Fitness Industry Council of Canada, 2014 FCA 48, 455 N.R. 87 at paragraph 42.” But, see Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 [Rennie JA]. In this connection I note the Federal Court of Appeal’s recent decision which held judicial review of procedural fairness issues is conducted on the correctness standard: see Canadian Association of Refugee Lawyers v. Canada (Immigration, Refugees and Citizenship), 2020 FCA 196 per de Montigny JA [Near and LeBlanc JJA concurring]:
[35] Neither Vavilov nor, for that matter, Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, have addressed the standard for determining whether the decision-maker complied with the duty of procedural fairness. In those circumstances, I prefer to rely on the long line of jurisprudence, both from the Supreme Court and from this Court, according to which the standard of review with respect to procedural fairness remains correctness.
[59] I also note from the Supreme Court of Canada’s teaching in Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 [Vavilov] at para 23 that the standard of review for procedural fairness is correctness:
[23] Where a court reviews the merits of an administrative decision (i.e., judicial review of an administrative decisions other than a review related to a breach of natural justice and/or the duty of procedural fairness), the standard of review it applies must reflect the legislature’s intent with respect to the role of the reviewing court, except where giving effect to that intent is precluded by the rule of law. The starting point for the analysis is a presumption that the legislature intended the standard of review to be reasonableness.
[Emphasis added.]
[60] In Dunsmuir v New Brunswick, 2008 SCC 9 at para 50, the Supreme Court of Canada explains what is required of a court reviewing on the correctness standard of review:
[50] When applying the correctness standard, a reviewing court will not show deference to the decision maker’s reasoning process; it will rather undertake its own analysis of the question. The analysis will bring the court to decide whether it agrees with the determination of the decision maker; if not, the court will substitute its own view and provide the correct answer. From the outset, the court must ask whether the tribunal’s decision was correct.
B. Reasonableness
[61] With regard to reasonableness, in Canada Post Corp v Canadian Union of Postal Workers, 2019 SCC 67, majority reasons by Justice Rowe [Canada Post], which was issued at the same time as the Supreme Court of Canada’s decision in Vavilov, the majority explains what is required for a reasonable decision, and importantly for present purposes, what is required of a court reviewing on the reasonableness standard:
[31] A reasonable decision is “one that is based on an internally coherent and rational chain of analysis and that is justified in relation to the facts and law that constrain the decision maker” (Vavilov, at para. 85). Accordingly, when conducting reasonableness review “[a] reviewing court must begin its inquiry into the reasonableness of a decision by examining the reasons provided with ‘respectful attention’ and seeking to understand the reasoning process followed by the decision maker to arrive at [the] conclusion” (Vavilov, at para. 84, quoting Dunsmuir, at para. 48). The reasons should be read holistically and contextually in order to understand “the basis on which a decision was made” (Vavilov, at para. 97, citing Newfoundland Nurses).
[32] A reviewing court should consider whether the decision as a whole is reasonable: “what is reasonable in a given situation will always depend on the constraints imposed by the legal and factual context of the particular decision under review” (Vavilov, at para. 90). The reviewing court must ask “whether the decision bears the hallmarks of reasonableness – justification, transparency and intelligibility – and whether it is justified in relation to the relevant factual and legal constraints that bear on the decision” (Vavilov, at para. 99, citing Dunsmuir, at paras. 47 and 74, and Catalyst Paper Corp. v. North Cowichan (District), 2012 SCC 2, [2012] 1 S.C.R. 5, at para. 13).
[33] Under reasonableness review, “[t]he burden is on the party challenging the decision to show that it is unreasonable” (Vavilov, at para. 100). The challenging party must satisfy the court “that any shortcomings or flaws relied on ... are sufficiently central or significant to render the decision unreasonable” (Vavilov, at para. 100).
[Emphasis added.]
[62] In the words of the Supreme Court of Canada in Vavilov, a reviewing court must be satisfied the decision-maker’s reasoning “adds up”:
[104] Similarly, the internal rationality of a decision may be called into question if the reasons exhibit clear logical fallacies, such as circular reasoning, false dilemmas, unfounded generalizations or an absurd premise. This is not an invitation to hold administrative decision makers to the formalistic constraints and standards of academic logicians. However, a reviewing court must ultimately be satisfied that the decision maker’s reasoning “adds up”.
[105] In addition to the need for internally coherent reasoning, a decision, to be reasonable, must be justified in relation to the constellation of law and facts that are relevant to the decision: Dunsmuir, at para. 47; Catalyst, at para. 13; Nor-Man Regional Health Authority, at para. 6. Elements of the legal and factual contexts of a decision operate as constraints on the decision maker in the exercise of its delegated powers.
[Emphasis added.]
[63] The Supreme Court of Canada in Vavilov at para 86 states, “it is not enough for the outcome of a decision to be justifiable. Where reasons for a decision are required, the decision must also be justified, by way of those reasons, by the decision-maker to those to whom the decision applies,” and provides guidance that the reviewing court review decide based on the record before them:
[126] That being said, a reasonable decision is one that is justified in light of the facts: Dunsmuir, para. 47. The decision maker must take the evidentiary record and the general factual matrix that bears on its decision into account, and its decision must be reasonable in light of them: see Southam, at para. 56. The reasonableness of a decision may be jeopardized where the decision maker has fundamentally misapprehended or failed to account for the evidence before it. In Baker, for example, the decision maker had relied on irrelevant stereotypes and failed to consider relevant evidence, which led to a conclusion that there was a reasonable apprehension of bias: para. 48. Moreover, the decision maker’s approach would also have supported a finding that the decision was unreasonable on the basis that the decision maker showed that his conclusions were not based on the evidence that was actually before him: para. 48.
VII. Parties’ positions and analyses
(1) Did the Adjudicator breach principles of natural justice and/or procedural fairness?
[64] The Applicant submits the Adjudicator denied procedural fairness because he departed from expected procedure by allowing the Bank to submit written submissions at the start of his oral submissions. The Applicant also says the Adjudicator denied procedural fairness in refusing to allow the Applicant the opportunity to file written submissions after the hearing. One or both of these alleged breaches of procedural fairness, the Applicant contends, vitiated the entire proceeding such that judicial review must be granted and the Decision set aside.
[65] The Supreme Court of Canada in Baker v Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817 [Baker], sets out factors for a procedural fairness analysis. These factors are endorsed at para 77 of Vavilov, in which the Supreme Court of Canada states that:
[77] In Baker, this Court set out a non-exhaustive list of factors that inform the content of the duty of procedural fairness in a particular case... [t]hose factors include: (1) the nature of the decision being made and the process followed in making it; (2) the nature of the statutory scheme; (3) the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; and (5) the choices of procedure made by the administrative decision maker itself: Baker, at paras. 23-27.
[66] The Applicant submits that termination of someone’s employment is at the utmost importance, extrapolated from Reference Re Public Service Employee Relations Act (Alta.), (1987) 1 SCR 313 [Dickson CJC in dissent] at para 91, which states that “work is one of the most fundamental aspects in a person’s life”. In addition, the Applicant argues that if a public authority makes representations about the procedure it will follow, the scope of the duty of procedural fairness owed within the factor of legitimate expectation will broaden, see Agraira v. Canada (Minister of Public Safety and Emergency Preparedness), 2013 SCC 36 [LeBel J] at paras 94-95. I do not disagree with either of these propositions.
[67] The parties in this case agreed to conduct oral submissions. However, they did not define their terms. Neither oral submissions nor written submissions were defined by either party or the Adjudicator. I also note there is nothing in the communications between the parties that prohibited written submissions by either party.
[68] The Applicant emphasized that the Supreme Court of Canada in Vavilov at para 127 found that “[t]he principle that the individual or individuals affected by a decision should have the opportunity to present their case fully and fairly underlies the duty of procedural fairness and is rooted in the right to be heard.” With respect, I fully agree with this statement of the law.
[69] The Applicant relies heavily on C.E.P., Local 76 v. British Columbia (Power Engineers & Boiler & Pressure Vessel Safety Appeal Board), 2001 BCCA 743 [CEP] [Saunders J] at paras 14-15, for the proposition that either all parties or none of the parties should have the privilege of written submission and denial of this equivalency, in that case, resulted in a denial of a fair hearing.
[70] In response, the Respondent in my view correctly notes that the Federal Court of Appeal in Taseko Mines Limited v. Canada (Environment), 2019 FCA 320 [Taseko] [de Montigny JA, Stratas and Near JJA concurring] at para 82, concluded that CEP had not been widely followed in the Federal Court, and more importantly found that CEP “is at odds” with multiple Federal Court of Appeal decisions: see Re Cardinal Insurance, 1982 CarswellNat 452, per Urie JA; Canadian Cable Television Assn. — Assn canadienne de télévision par câble v American College Sports Collective of Canada Inc., 1991 CarswellNat 360, per MacGuigan JA at para 38; and Jada Fishing Co. v Canada (Minister of Fisheries & Oceans), 2002 FCA 103 per Malone JA, at para 17. It is worth emphasizing the authorities relied on by Justice de Montigny in Taseko are not recent; some date back almost 40 years.
[71] On this basis and with respect, because I am required to follow the Federal Court of Appeal I will follow Taseko, not the obiter dictum set out in CEP.
[72] The Respondent also submits CEP is distinguishable. In this I also agree, which is why I refer to the extract relied on to be obiter; it speaks well beyond the facts of the case. In CEP at para 11, it is noted the relevant board requested one of the parties to provide written submissions following its oral submissions but did not provide the other party with the same opportunity. In my view, Taseko at para 81 supports the Respondent’s submission that the decision in CEP was about the discrete issue of whether it was procedurally unfair for a decision-maker to accept a written submission after oral submissions had been made and which the opposing party had not had an opportunity to review and respond to. CEP deals with a very different factual context.
[73] In Taseko, the Federal Court of Appeal at para 71 al