LF v. Canada (Canada Mortgage and Housing Corporation)

LF v. Canada Mortgage and Housing Corporation
Court (s) Database
Federal Court Decisions
Date
2024-03-22
Neutral citation
2024 FC 452
File numbers
T-2060-17
Decision Content
Date: 20240322
Docket: T-2060-17
Citation: 2024 FC 452
Ottawa, Ontario, March 22, 2024
PRESENT: The Honourable Mr. Justice Régimbald
BETWEEN:
LF
Applicant
and
CANADA MORTGAGE AND HOUSING CORPORATION
Respondent
Docket: T-2081-17
BETWEEN:
CANADA MORTGAGE AND HOUSING CORPORATION
Applicant
and
LF
Respondent
Docket: T-894-18
BETWEEN:
LF
Applicant
and
CANADA MORTGAGE AND HOUSING CORPORATION
Respondent
Table of Contents
I. Overview 3
II. Background facts 4
A. The employment relationship between LF and CMHC 4
B. The Decision of the Adjudicator 7
III. Issues and standard of review 10
IV. Analysis 12
A. The Adjudicator did not breach the rules of procedural fairness 12
B. Judicial Review in File T-2060-27 20
(1) The Adjudicator’s assessment of the evidence and credibility of witnesses is reasonable 21
(a) The Adjudicator’s assessment of the | evidence is reasonable 21
(b) The Adjudicator’s assessment of the credibility of CMHC’s witnesses is reasonable 24
(c) The Adjudicator’s assessment of the credibility of LF is reasonable 28
(d) Conclusion on the reasonableness of the Adjudicator’s findings of fact and credibility 32
(2) The Adjudicator’s decision not to reinstate LF in his previous or in another position within CMHC is reasonable 35
(a) Arguments of the parties 35
(b) Analysis 36
(3) The Adjudicator’s decision not to award back pay is reasonable 42
(a) The arguments of the parties 42
(b) Analysis 44
(4) Other issues raised by the Applicant 54
C. Judicial review in File T-2081-17 56
D. Judicial Review in File T-894-18 65
E. LF’s motion to convert his application into an action 71
F. Costs 72
CONFIDENTIAL JUDGMENT AND REASONS
I. Overview [1] The applications for judicial review in Files T-2060-17, T-2081-17 and T-894-18 all relate to a decision issued on November 23, 2017 [Decision], by a seasoned labour adjudicator appointed under Division XIV of the Canada Labour Code, RSC 1985, c L-2 [CLC]. In the Decision, the Adjudicator allowed the Applicant/Respondent’s [Applicant or LF] complaint for unjust dismissal against the Respondent/Applicant, Canada Mortgage Housing Corporation [Respondent or CMHC]. The Adjudicator dismissed LF’s request for reinstatement, but ordered twelve months as a reasonable notice period, and aggravated damages in an amount of $45,000 to be paid to LF. The Adjudicator also granted partial indemnity costs in favour of LF as part of a second set of reasons, dated April 12, 2018, in relation to the original Decision [Decision on costs].
[2] LF is now challenging the Adjudicator’s Decision. In File T-2060-17, he argues that the Adjudicator’s Decision not to reinstate him in his position and denying him any back pay is unreasonable. In File T-894-18, in relation to the Decision on costs, LF argues that the amount granted in costs is unreasonable. The CMHC, for its part in File T-2081-17, argues that the Adjudicator’s Decision granting aggravated damages in an amount of $45,000 is unreasonable.
[3] For the reasons that follow, the Adjudicator’s Decision not to reinstate the Applicant, not to grant him back pay, and to award him $45,000 in aggravated damages is reasonable. The Adjudicator’s Decision on costs is also reasonable. In my view, the Adjudicator did not breach procedural fairness by not recording the hearing and by not providing a transcript. The Adjudicator’s reasons, combined with the evidence and the arguments that were before her, amply support her conclusions on all points.
[4] The applications for judicial review are dismissed. The parties agreed that these three applications could be addressed in a single set of reasons, and a copy of these reasons shall be placed in each Court file.
II. Background facts A. The employment relationship between LF and CMHC [5] The Respondent, CMHC, is a Crown corporation established by the Canada Mortgage and Housing Corporation Act, RSC 1985, c C-7. Its mandate is to facilitate access to housing and contribute to financial stability in order to help Canadians meet their housing needs.
[6] The Applicant, LF, is a chartered accountant since 2003, and began to work for CMHC in 2007 as a Senior Auditor. His role for CMHC was essentially to provide assurance to its Board of Directors regarding the effectiveness of governance, risk management and controls.
[7] LF’s employment went smoothly, with positive performance evaluations, until 2011, when an alleged issue of conflict of interest arose with one of the organizations he was auditing. LF was later disciplined with a 5-day suspension by CMHC for having failed to adequately disclose a conflict of interest in his annual conflict of interest disclosures.
[8] In 2012, CMHC also began to have some concerns about the Applicant’s work performance and ability to work in collaboration with colleagues. Those concerns became more acute in 2013.
[9] On April 16, 2014, CMHC decided to offer a severance package to the Applicant or, if he refused, put him on a three-month probation and notice.
[10] However, before CMHC could make the offer or execute the probation and notice, the Applicant went on || leave.
[11] The Applicant’s departure on || leave was in part due to CMHC’s performance evaluation process. During the winter and spring of 2014, CMHC had provided a performance evaluation to all of the Applicant’s colleagues, but not to LF. A performance evaluation is important because it has an impact on an employee’s salary. The Applicant expressed numerous times to CMHC that the situation was causing him ||||||||||||||||||||||||||||||||||, and that he was |||||||||||||| by the situation given CMHC’s refusal to provide him with a performance evaluation when his peers had already received theirs.
[12] On August 22, 2014, while LF remained on leave, CMHC dismissed him from his position on a “without cause” basis. Prior to the termination, there had been some internal allegations made against LF. However, those allegations were never disclosed to LF and he was therefore never able to respond to them. One of the allegations related to LF playing sports while on || leave, which resulted in a colleague reporting him to CMHC (LF was on || leave due to |||||||||||||| while his colleagues believed that he was on || leave due to a |||| issue). The |||||||||| insurer inquired into this allegation and cleared LF. There was another allegation that LF had made inappropriate mild sexual comments toward a colleague. That allegation was never investigated. Nevertheless, in order to obtain permission from the higher management of CMHC to terminate LF, CMHC did note and rely on LF being “not credible or honest in his dealings with us and our absence management services provider” while on || leave to justify the request for termination (see CMHC Application Record in File T-2081-17, Vol 3 at p 725).
[13] The Applicant then challenged his dismissal under section 240 of the CLC. His complaint was heard by an adjudicator appointed under Division XIV of Part III of the CLC. During this unjust dismissal hearing, the Applicant was represented by counsel.
[14] Shortly after the hearing into the complaint commenced, the Supreme Court of Canada [SCC] overturned both the Federal Court and the Federal Court of Appeal’s [FCA] decision in Wilson v Atomic Energy of Canada, 2016 SCC 29 [Wilson] and found that the CLC did not permit a “without cause” dismissal.
[15] While LF, at the outset, had prepared his case and evidence to defend against an unlawful dismissal, CMHC conceded, following the SCC’s decision in Wilson, that the Applicant’s dismissal was “unjust” under the CLC. The Adjudication hearing proceeded solely on the issue of remedy.
B. The Decision of the Adjudicator [16] Before the Adjudicator, the LF sought, inter alia, reinstatement with CMHC along with back pay (minus the long-term |||||||||||||||||||||| benefits he had received), and $300,000 in aggravated damages.
[17] In the alternative to reinstatement, the Applicant sought, inter alia, back pay (minus |||| benefits) for as long as he remained on |||||||||| leave, three years’ remuneration at the conclusion of his |||||||||| leave, and aggravated damages.
[18] CMHC argued that the payment of notice equal to ten months’ salary was an appropriate remedy in the circumstances.
[19] The hearing lasted over nineteen days, during which the Adjudicator heard evidence from the Applicant over several days, along with two of his doctors. Six witnesses from CMHC also testified.
[20] In her decision, the Adjudicator held that the evidence presented at the hearing pointed strongly against reinstatement (Decision at paras 15–21).
[21] The Adjudicator found, based on the viva voce evidence of two |||||||| professionals and on the documentary evidence (notes and reports) before her, that the extensive |||||||| evidence indicated that LF could not return to his CMHC employment because he was unable to perform his duties as an auditor.
[22] Furthermore, the Adjudicator also considered both LF’s testimony as well as CMHC’s witnesses’, and concluded that the CMHC witnesses were overall more credible and that while the decision against reinstatement could be grounded in the |||||||| evidence alone, the deterioration of the relationship between LF and his employer, and lack of trust, did not support reinstatement (Decision at paras 38–40).
[23] The Adjudicator, relying on Royal Bank of Canada v Cliché, 1985 CarswellNat 1716, [1985] FCJ No 424 (FCA) [Cliché], also refused to reinstate LF in another position within CMHC because she was not able to determine whether LF had the necessary skills and qualities to work in a different role in CMHC (Decision at para 43).
[24] Instead of reinstatement, the Adjudicator decided to award LF twelve months’ salary in lieu of notice when he would be off |||| coverage and when his |||||| would allow him to begin looking for new employment. The Adjudicator also ordered CMHC to provide “robust outplacement/career counselling” support for the Applicant (Decision at para 46).
[25] The Adjudicator denied LF’s request for back pay. In her view, LF was on |||||||| leave when he was terminated. As such, he was receiving |||| benefit payments. Had he not been terminated, he would have continued to receive the same |||| payments. Therefore, in the circumstances, LF was already earning the revenue that he would have received, through |||| benefits, if he had not been dismissed. Therefore, he was, and remained “whole,” without the necessity to award back pay (Decision at paras 47–48).
[26] In addition, the Adjudicator ordered that CMHC pay the sum of $45,000 in aggravated damages because of CMHC’s conduct, which she concluded were bad faith and insensitive in the manner of dismissal (Decision at paras 49–55).
[27] In a second set of reasons, dated April 12, 2018, the Adjudicator awarded costs in an amount of $32,067 in favour of LF in partial indemnity on the basis that he was substantially successful in his application. The Adjudicator held that CMHC presented two offers, one on August 11, 2016, and one on August 20, 2016, respectively, and that both were more beneficial to LF than the order of the Adjudicator. Therefore, the right of LF to costs existed up to the date when he should have accepted the offer to settle. The cost payable was thus established in an amount of $32,067, which was the amount in costs payable as of the date of the second offer to settle.
[28] LF is now challenging the Adjudicator’s decision on the remedy before this Court, as well as her order on costs in an amount of $32,067. CMHC is challenging the Adjudicator’s decision regarding the award of aggravated damages in an amount of $45,000.
III. Issues and standard of review [29] In File T-2060-17, the issues are the following :
a)Did the Adjudicator breach LF’s right to procedural fairness by failing to record the hearing and provide a transcript?
b)Is the Adjudicator’s decision refusing to reinstate LF to his position at CMHC, and her failure to award back pay, unreasonable?
[30] In File T-2081-17, the issue is whether the Adjudicator’s award of $45,000 in aggravated damages is reasonable.
[31] In File T-894-18, the issue is whether the Adjudicator’s award of costs on partial indemnity, instead of full indemnity, is reasonable in the circumstances.
[32] On procedural fairness, the standard of review applicable on that issue is subject to a “reviewing exercise… ‘best reflected in the correctness standard’ even though, strictly speaking, no standard of review is being applied” (Canadian Pacific Railway Company v Canada (Attorney General), 2018 FCA 69 at paras 36, 54 [CPRC]; Canadian Hardwood Plywood and Veneer Association v Canada (Attorney General), 2023 FCA 74 at para 57; Amer v Shaw Communications Canada Inc, 2023 FCA 237 at para 51 [Amer]). As recently stated in Caron v Canada (Attorney General), 2022 FCA 196 at paragraph 5: “[w]hen engaging in a procedural fairness analysis, [the] Court must assess the procedures and safeguards required, and, if they have not been met, the Court must intervene” (see also Mission Institution v Khela, 2014 SCC 24 at para 79). The role of the reviewing court on procedural fairness issues is simply to determine whether the procedure that was followed was fair, having regard to the particular circumstances of the case: “The ultimate question remains whether the applicant knew the case to meet and had a full and fair chance to respond” (as reiterated in CPRC at para 56).
[33] The standard of review applicable to the merits of the Adjudicator’s decision is that of reasonableness (Canada (Minister of Citizenship and Immigration) v Vavilov, 2019 SCC 65 at paras 10, 25 [Vavilov]; Mason v Canada (Citizenship and Immigration), 2023 SCC 21 at paras 7, 39–44 [Mason]; Amer at para 50). 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; Mason at para 8); and that is justified, transparent and intelligible (Vavilov at paras 81, 99; Mason at para 59). A reasonableness review is not a “rubber-stamping” exercise; it is a robust form of review (Vavilov at para 13; Mason at para 63). A decision may be unreasonable if the decision maker misapprehended the evidence before it or relevant legal constraints such as statutory law or common law (Vavilov at paras 125–126; Mason at paras 72–73). The onus of demonstrating that a decision is unreasonable lies with the Applicant (Vavilov at para 100).
[34] When reviewing the decision, a reviewing court must approach the decision with “respectful attention” and consider the decision “as a whole” (Vavilov at paras 84–85). To be reasonable, the decision maker must have meaningfully taken into account the central issues and main arguments raised by the parties (Mason at paras 69, 73–74; Vavilov at paras 120, 126–128). The reviewing court must consider the history and context of the proceedings, including the evidence before the decision maker, the submissions of the parties, and the complete record before the decision maker (Mason at para 61; Vavilov at paras 94–96). The decision maker’s reasons must be analyzed holistically and contextually, but the reviewing court is not entitled to make “implicit” findings, or make supplemental reasons, to support the decision (Mason at paras 61, 96–97, 101). However, the reviewing court is allowed to “connect the dots on the page where the lines, and the direction they are headed, may be readily drawn” (Vavilov at para 97).
[35] A decision will be unreasonable when the reasons “fail to provide a transparent and intelligible justification” for the result (Mason at para 60; Vavilov at para 136). In that regard, the key question is whether the reviewing court has lost confidence in the decision-making process (Mason at para 69; Vavilov at para 122). In coming to such conclusion, however, the reviewing court must not reweigh and reassess the evidence (Vavilov at para 125).
IV. Analysis A. The Adjudicator did not breach the rules of procedural fairness [36] The Applicant argues that the Adjudicator breached his right to procedural fairness by failing to record and provide a transcript of the hearing. The impact of that failure, in his view, is that it precludes him from demonstrating that some of the arguments made at the hearing were ignored by the Adjudicator. He also argues that all of her conclusions of fact or credibility are wrong, rely on no evidence, or are contradicted by the documentary evidence. Therefore, LF argues that he is prejudiced by the lack of a recording or transcript because he cannot demonstrate the alleged errors. In his view, the only remedy available is to grant judicial review and send the matter back for re-determination.
[37] In the normal course of affairs, administrative tribunals are under no obligation to record or provide a transcript of their proceedings. However, a party’s right to procedural fairness may be infringed where the court has an inadequate record upon which to base its review. On such allegations, the court “must determine whether the record before it allows it to properly dispose of the application for appeal or review. If so, the absence of a transcript will not violate the rules of natural justice” (Canadian Union of Public Employees, Local 301 v Montreal (City), 1997 CanLII 386 at paras 74, 81–82 (SCC) [Canadian Union]).
[38] The issue is whether the record filed before the reviewing court is sufficient to allow the court to review the decision. The reviewing court may have other means to determine what went on at the hearing. Indeed, parties on judicial review are able to file affidavit evidence to “re-create” the record that existed before the administrative tribunal (Canadian Union at paras 82–84, 86).
[39] In Amer, a recent decision of the FCA in relation to a decision of an adjudicator appointed under Division XIV of Part III of the CLC, there was no transcript of the hearing, and an issue of procedural fairness was raised. The FCA, at paragraph 15, held that the absence of a transcript of the hearing before the adjudicator is “usual” in a labour case.
[40] The FCA analyzed the affidavit evidence that was filed before the Court. At paragraphs 35, 37–38, the FCA accepted the affidavit evidence of the respondent’s employee that attended the hearing before the adjudicator. In that affidavit, the respondent’s employee had attached some of the exhibits presented to the adjudicator, the parties’ written representations, as well as the employee’s notes from the hearing. The FCA accepted the evidence as constituting an appropriate record for review. However, the FCA held that the notes of the hearing taken by the respondent’s employee was not equivalent to a transcript and could not be taken to be as accurate as a transcript. The appellant in that case also filed an affidavit that appended certain exhibits that were before the adjudicator.
[41] On the other hand, in Amer, the FCA rejected the fresh evidence adduced by both parties that was not before the adjudicator, notably the respondent’s affiant’s views as to what was in issue before the adjudicator as well as paragraphs that were essentially legal arguments (at paras 35, 37–38), and the appellant’s affidavit evidence that also constituted legal arguments. The FCA held that evidence that was not before the adjudicator cannot be considered on judicial review (Amer at para 36, relying on Andrews v Public Service Alliance of Canada, 2022 FCA 159 at para 18, leave to appeal to SCC refused, Jill Andrews v Public Service Alliance of Canada, 2023 CanLII 10480 (SCC)).
[42] The use of affidavit evidence to re-create a record that was before an adjudicator is not unusual in labour or employment law cases. Recently, in Bell Canada v Hussey, 2020 FC 795 [Bell Canada] for example, Justice Norris accepted an affidavit sworn by counsel who had acted for Bell Canada in the proceedings before the adjudicator, as to what had occurred in the proceeding (Bell Canada at paras 41–52).
[43] In this case, LF and CMHC have filed affidavits to re-create the record that was before the Adjudicator. In File T-2060-17, LF filed an extensive affidavit and attached the documentary evidence that was presented to the Adjudicator. The CMHC presented the affidavit of Mr. Andrew Montague-Reinholdt, who was co-counsel for CMHC at the hearing before the Adjudicator [AMR affidavit]. The AMR affidavit includes numerous exhibits designed to essentially create a Certified Tribunal Record and provide insight to the Court on the evidence that was presented to the Adjudicator, including the legal submissions of counsel for LF (who was represented before the Adjudicator), the CMHC’s legal submissions before the Adjudicator, and the affiant’s notes taken during the hearing.
[44] In File T-2081-17, where CMHC is the applicant, CMHC presented the affidavit of Ms. Leigh Norton [Norton affidavit], who is a law clerk. That affidavit includes all the exhibit evidence that was presented to the Adjudicator at the hearing. Except for a few differences that have no relevance to these applications for judicial review, the documents included in the Norton affidavit are the same as those included in LF’s affidavit in File T-2060-17. LF’s affidavit in File T-2060-17 and the Norton affidavit in File T-2081-17 therefore together include all the exhibit evidence that was presented to the Adjudicator and introduced into evidence by the witnesses. However, for convenience, when referring to the exhibits introduced as evidence in the record in the following reasons, the Court will refer to the exhibits appended in the Norton affidavit because the Court has ordered, in Case Management, that parties may refer to their affidavits in both Files T-2060-17 and T-2081-17 at all times, and both applications for judicial reviews were heard at once. The Court will refer to the exhibits presented to the Adjudicator and found in the Norton affidavit (but also found in the Applicant’s affidavit) as the “CMHC Application Record in File T-2081-17.”
[45] In File T-894-18, LF filed an affidavit that includes all materials relevant to the matter in that application, but solely related to the Adjudicator’s Decision on costs. There is no allegation of a breach of procedural fairness in relation to File T-894-18.
[46] In my view, the record produced by the parties in Files T-2060-17 and T-2081-17 is sufficient to allow the Court to perform its function and properly dispose of the applications for judicial review (Canadian Union at para 81).
[47] The AMR affidavit contains all documents that were presented to the Adjudicator. Mr. Montague-Reinholdt was not cross-examined by LF on the content of his affidavit and therefore the content of the affidavit, or its accuracy, is not contested. The documents found in the AMR affidavit include legal submissions, authorities, correspondence setting out the positions of the parties and issues before the Adjudicator. More importantly, these documents also include both parties’ summaries of oral evidence, including reply and sur-reply of the parties. Counsel for LF (before the Adjudicator) and for CMHC were both able to review the submissions of the other side to the Adjudicator, comment on them during the hearing, and then follow-up if necessary with a sur-reply after the hearing. To the extent that the witnesses’ summaries of oral evidence may be inaccurate, the parties provided their submissions on those summaries to the Adjudicator by way of reply and sur-reply during or after the closing of the hearing (see AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1, at pp 175–181).
[48] The AMR affidavit and the Norton affidavit, both presented by CMHC and with two exceptions, only adduce documentary evidence and do not include fresh evidence or legal argument. The Court accepts that evidence and can rely on these affidavits to re-create the record that was before the Adjudicator. The only exceptions are that Mr. Montague-Reinholdt’s notes of the hearing do not constitute a transcript of the hearing and are not to be taken as exhaustive or completely accurate (Amer at para 37), and contain fresh evidence that is not admissible, as discussed below (Amer at paras 35, 37–38).
[49] LF’s affidavit is more problematic. The exhibits that he attached to his affidavit are admissible, as they are the same as those included in the Norton affidavit. However, instead of only including exhibits and documents presented during the hearing before the Adjudicator (or he could also have included his notes or his counsel’s notes of the hearing, as in the AMR affidavit), LF included several paragraphs that are new evidence or legal arguments. LF’s affidavit reads like his side of the story, or what could have been his testimony before the Adjudicator, while also including an indictment of the Adjudicator’s alleged mistakes. Such evidence or legal arguments are inadmissible before the Court (Amer at paras 35–38).
[50] Moreover, in his affidavit, LF states that he is struggling with memory problems, and that “it is challenging for [him] after the fact to try and remember testimony made during the hearing” (Affidavit of LF, at paras 27, 220, Application Record in File T-2060-17 at p 64, 136). The reliability of LF’s affidavit is therefore questionable.
[51] LF has also questioned the completeness of the record presented in the AMR affidavit. In File T-2060-17, LF alleges in part that the Adjudicator failed to consider his arguments that his termination violated the Canadian Human Rights Act, RSC 1985, c H-6, due to discrimination.
[52] In relation to the Applicant’s argument relating to the Canadian Human Rights Act and discrimination, in his affidavit, Mr. Montague-Reinholdt states:
11. Contrary to the Applicant’s affidavit, the Applicant’s counsel never argued or submitted that the Applicant’s termination of employment violated the Canadian Human Rights Act, nor did he argue that the Applicant was entitled to a remedy under that statute. Since the Applicant’s counsel did not address human rights issues, [counsel for CMHC] did not address those issues in her oral argument.
12. Neither party ever raised the issue of discrimination on the basis of race throughout the hearing of the complaint.
[AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1, at p 4]
[53] First, as stated above, this statement in the AMR affidavit consists in fresh evidence as to what was in issue before the adjudicator, and is not admissible (Amer at paras 35, 37–38). However, LF brought a motion to file reply evidence in order to rely on additional evidence and demonstrate that AMR’s affidavit did not provide a “complete record” of what was before the Adjudicator, including more specifically on his arguments relating to the Canadian Human Rights Act and discrimination. He sought to introduce a bundle of eight documents that, in his view, were relevant to his assertion that the Adjudicator erred in law and denied him procedural fairness in failing to consider that his termination was discriminatory and that he was entitled to remedies under the Canadian Human Rights Act.
[54] LF’s motion was dismissed by Justice Aylen, acting as the Case Management Judge (2022-08-11 docket T-2016-17, T-2084-17). Justice Aylen reviewed the bundle of eight documents and held that four of the documents were identical to those already included in the AMR affidavit. As for the other four documents, Justice Aylen noted that there were handwritten notes on the documents stating that the documents were not presented to the Adjudicator (at para 51). Moreover, Justice Aylen held that the four documents were not relevant to the judicial review because LF had not pointed to any page or paragraph that would demonstrate their relevance. None of the four documents referred to the Canadian Human Rights Act or discrimination in any material or probative way, such that the documents could affect the result of the applications.
[55] Consequently, I am inclined to prefer the evidence of the CMHC as to the testimonial evidence and legal submissions presented before the Adjudicator. The AMR affidavit includes the legal submissions and the witnesses’ summaries of evidence prepared by each party and on which each party was able to make further submissions. The AMR affidavit also includes the affiant’s notes of the hearing. Although the Court does not consider those notes to be completely accurate, they do provide useful context and are useful on a limited basis. However, and as stated above, paragraphs 11 and 12 of the AMR affidavit are inadmissible and will not be considered by the Court. As for the exhibits presented to the Adjudicator, both the affidavits of the CMHC and LF contain all relevant exhibits presented to the Adjudicator. Together, the evidence adduced by the parties re-create an appropriate record on which the Court can perform judicial review.
[56] The Adjudicator’s failure to produce a recording or a transcript of the hearing therefore does not breach LF’s right to procedural fairness.
B. Judicial Review in File T-2060-27 [57] LF argues in his application for judicial review (File T-2060-17) that the Adjudicator made errors in her findings of facts, notably regarding his own credibility as well as with CMHC’s evidence. In his view, those errors led the Adjudicator to unreasonably determine that LF could not be reinstated in his previous position with CMHC or in any another position. The Applicant argues that the assessment of the viva voce evidence of the witnesses was unreasonable, and that the Adjudicator could not accept CMHC’s evidence as credible while rejecting his evidence.
[58] LF submits that it was unreasonable for the Adjudicator to consider CMHC’s witnesses, MT, SG, SR, CN, KD and VD, as credible witnesses because they made false allegations against the Applicant during their testimonies and in that context, the Adjudicator could not demonstrate that their testimony was reliable and credible.
[59] CMHC argues that the Applicant’s challenges of factual errors or credibility findings are hard to follow. For example, in his factum, the Applicant sometimes states that the Adjudicator’s findings are contradicted by documents, but does not identify the allegedly contradictory documents. The Respondent also argues that the Applicant’s argument appears to be in large part that he was entirely truthful and did not contradict himself or the documentary evidence while testifying. Therefore, whenever his evidence differs from another witness, he is credible and the other witness is not, which is a circular argument that does not justify this Court setting aside the Adjudicator’s decision.
[60] Furthermore, the Respondent submits that due to the Applicant’s candid admission about his memory issues (CMHC’s factum in File T-2060-17 at para 48, referring to LF’s affidavit in File T-2060-17 at paras 27, 30 and 220, LF’ Application Record in File T-2060-17 at p 64, 136), the Adjudicator’s recollection and summary of the evidence at the hearing, made contemporaneously, should be preferred over the Applicant’s affidavit recollecting evidence made several years before.
(1) The Adjudicator’s assessment of the evidence and credibility of witnesses is reasonable (a) The Adjudicator’s assessment of the | evidence is reasonable [61] The Adjudicator found that the |||||||| evidence was sufficient on its own to dismiss the Applicant’s request for reinstatement (Decision at paras 16–21, 38).
[62] The Adjudicator heard two |||||||| professionals, and reviewed an extensive amount of |||||||| records. She held that on balance, the |||||||| records demonstrated that LF could not return to his role at CMHC. The professionals explained that LF responded negatively to |||||| at work and that he was |||||||| and worried about going back to work. At best, the Applicant explained to the professionals that he could go back to work, but his relationship with his senior manager was causing him significant |||||| and that he is hoping to be able to transition to a new department. Other professionals on record diagnosed LF with major/manic |||||||||||| and |||||| ||||||||||||||||||||||||||||||, and another report concluded that LF was unable to perform his duties as an auditor or even work at all (Decision at paras 18–19).
[63] The Applicant argues that the Adjudicator failed to consider, and note in her reasons, other |||||||| records disputing these conclusions, and that he is in fact able to return to work. However, the Applicant did not bring the Court to the documents that, according to him, would support a different conclusion.
[64] On the other hand, the AMR affidavit contains the arguments and the summaries of |||||||| evidence prepared by the parties (the summary of |||||||| evidence prepared by the Applicant’s counsel is in the AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1 at pp 118–128, 130–133. CMHC’s discussion on the |||||||| evidence is found in the AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1 at pp 90–91, which is part of CMHC’s summary of oral evidence of the Applicant). Notably, the Applicant’s own summary of |||||||| evidence, and citation of |||||||| reports in the record, does not specifically state that he is able to return to the same position with CMHC. The Applicant’s own summary of evidence and reference to the documentary evidence in the record rather demonstrates that LF could only return to CMHC with certain accommodations such as retraining, and perhaps a transfer to a different department, in a different environment and/or with other managers (AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1 at pp 126–128, 132–133).
[65] Moreover, at footnote 5 of her reasons, the Adjudicator makes note of the many professionals that provided evidence in the record, and which she reviewed. Also, an examination of the |||||||| records not specifically cited by the Adjudicator is consistent with the Adjudicator’s decision that LF was not able to return to work in his current role at CMHC, under the same management, without retraining or without accommodations such as a transfer to another position (see for example CMHC Application Record in File T-2081-17, Vol 6 at pp 1459, 1461, 1463, 1465, 1467, 1476).
[66] In my view, at best, there is little evidence suggesting that LF could return to CMHC. However, the overwhelming evidence is to the contrary. LF could potentially return to CMHC, but not in the same position in the same department, or under the same supervisors. The Adjudicator’s decision that LF could not return, relying on the |||||||| evidence adduced, is reasonable and consistent, overall, with the evidence and the arguments presented before her. The Adjudicator was entitled to prefer the overwhelming |||||||| evidence suggesting that LF could not return to CMHC in his previous role, in preference to the limited evidence that the Applicant could indeed return to CMHC without any issue or with accommodation.
[67] In doing so, the Adjudicator did not have to sift through each |||||||| record and explain why she relied on some records but dismissed others. It is trite law that a decision maker does not have to respond to each argument or piece of evidence (Mason at para 61; Vavilov at paras 91, 94). In this case, the Adjudicator properly considered the two witnesses that provided an oral testimony, as well as some of the most recent |||||||| evidence on record, in concluding that LF could not return to his role at CMHC on the basis of his |||||||| conditions. Her conclusion in this regard is reasonable.
(b) The Adjudicator’s assessment of the credibility of CMHC’s witnesses is reasonable [68] The Adjudicator found CMHC’s witnesses VD, CN, KD, MT, SR and SG to be credible in their testimony and found that the documentary evidence supported their viva voce evidence (Decision at paras 10–12, 32–35, 39).
[69] The Applicant disputes those findings and argues that, because there is no transcript of the hearing, the Court cannot determine whether the Adjudicator’s conclusions are reasonable and therefore, there is a breach of procedural fairness.
[70] I cannot accept this argument. As stated above, in the AMR affidavit, CMHC included the arguments and summaries of oral evidence of each witness, made by the Applicant’s counsel as well as CMHC’s counsel (see AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1 at pp 67–84, 86–91, 101–116, 130–155). Together, those arguments and summaries provided to the Adjudicator by the parties constituted a record on which she could rely in making her decision. The conclusions of the Adjudicator set out in her reasons are bolstered by the summaries and arguments presented by the parties, as well as the exhibit and documentary evidence that are found in the AMR affidavit, the Norton affidavit and LF’s affidavit.
[71] First, relying on VD’s testimony and the overall evidence, the Adjudicator found that there were ongoing concerns regarding LF’s performance at work due to his inability to work well collaboratively and to take direction. In her decision, the Adjudicator noted that VD was struggling to manage LF as he had a propensity to be rigid in his view and was at times disrespectful and mistrustful of her. According to the evidence, LF would at times try to “go around” VD as he did not want to accept her authority (Decision at paras 32, 39).
[72] That assessment of the Adjudicator is based on the record that was before her. Moreover, in VD’s summary of oral evidence provided by CMHC, VD explained having issues with LF’s performance, including that there were delays, behavioural and timeline issues, and that he was not proactive in adjusting project schedules. VD noted that she had to revise LF’s writing because it needed improvement. VD also noted that LF had poor listening skills, would not accept feedback, challenged her authority, lacked tact in dealing with her or other staff, and would also go to other managers about administrative issues (AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1 at pp 69–72; see also exhibits E4-205, E2-59, E4-207, E2-60, E2-61, E2-64, E4-206, C1-20, E1-57 at CMHC Application Record in File T-2081-17, Vol 1 at pp 206–217, 261–271; Vol 2 at p 461).
[73] Second, the Adjudicator found SR to be credible, even if he was put in the difficult situation of being a CMHC witness while at the same time being a friend of LF. The Adjudicator noted that SR reluctantly shared a number of the same kinds of performance-related concerns about LF as were raised by CN and VD (Decision at paras 33, 39). That credibility assessment is reasonable on the record that was before her. In the summary of his evidence, it is noted that SR testified that LF was not collaborative and not flexible to other team members’ views, that SR had to intervene to make sure that audits were completed on time, and that there were issues with LF’s behaviour, performance and communications with other team members (AMR affidavit, CMHC’s Respondent Record in File T-2060-17, Vol 1 at pp 80–83; and see, for example, exhibits E28-C &D, E1-56, and E1-57 at CMHC Application Record in File T-2081-17, Vol 2 at pp 461, 469–477 ; Vol 3 at pp 527–537, 579–584, 594–602, 608–610, 616–624, 655–663, 675–685, 715–718).
[74] Third, the Adjudicator acknowledged that CN struggled at times to recall the details of a conflict of interest issue. Nevertheless, the Adjudicator found CN mostly credible and understood that he was feeling frustrated with LF’s failure to develop/grow and work well under VD’s direction, and noted concerns regarding his behaviour and pe