Date: 20061109

Docket: T-1099-05

Citation: 2006 FC 1347

Ottawa, Ontario, the 9th day of November 2006

Present: The Honourable Mr. Justice de Montigny

 

BETWEEN:

STACY BITTON

 

Applicant

and

 

HSBC BANK CANADA

 

Respondent

 

 

REASONS FOR JUDGMENT AND JUDGMENT

 

[1]               This application for judicial review concerns an adjudication decision rendered on May 4, 2005, [2005] D.A.T.C. no 241 (QL), by Guy Lafrance. The adjudicator, appointed pursuant to Part III, Division XIV of the Canada Labour Code, R.S.C. 1985, c. L-2, (the Code) dismissed the grievance filed by the applicant, Stacy Bitton, and held that his dismissal from HSBC Bank Canada was justified.

 

[2]               In his application for judicial review, Mr. Bitton asked this Court to overturn the decision of the adjudicator and remit the matter to a new adjudicator so that the complaint could be reconsidered taking these reasons into account. I note, however, that in his memorandum, Mr. Bitton is seeking compensation in the event that this Court sets aside the adjudicator’s decision. In any case, the remedy sought is not reinstatement, since the applicant has been working for a competing bank since September 2004 and does not wish to return to work for the respondent even if his claim is successful.

 

THE FACTS

[3]               Because the factual framework will be useful for gaining a solid grasp of the issues, I will recall the main points. Mr. Bitton began working for HSBC Bank Canada (the Bank) on December 11, 2000. A year and a half later, in August 2002, he was placed in charge of commercial banking services at the McGill College branch in Montreal.

 

[4]               The evidence contains contradictory accounts of the climate in which this promotion occurred. It is clear from reading the docket that there was tension between the parties right from the time the applicant was appointed to his new duties, and the disagreement regarding the reasons for his promotion only marked the beginning of conflictual relations between the parties. The applicant’s promotion did not receive unanimous support within the branch, to say the least.

 

[5]               Shortly after his promotion, Mr. Bitton was provided with about a week’s worth of training so that he could upgrade his skills. It seems that Mr. Bitton failed to take any notes during the training period, preferring to rely on his memory.

 

[6]               It was in the fall of 2002 that Mr. Bitton began to receive reprimands from his superiors. The then Vice-President, Financial Services, Mr. Trifonopoulos, first pointed out to him that three of the accounts under his supervision were in overdraft and that he lacked the necessary authority to expose the company to such risks.

 

[7]               The applicant received feedback again in February 2003, following an unsatisfactory work evaluation. In the course of that discussion, Mr. Bitton was informed that he needed to improve his performance, particularly deficiencies in his work organization and his management of accounts in overdraft. He was told that the credit in certain files was questionable; that reports were missing, misfiled or late; and that some companies’ credit information contained errors.

 

[8]               Despite these admonitions, Mr. Trifonopoulos noted that the client accounts under Mr. Bitton’s responsibility remained in overdraft. Again, Mr. Bitton  received a verbal warning from his employer to respect their policies. Which he did.

 

[9]               The respondent claims to have received complaints throughout 2003 regarding the applicant’s behaviour from companies that were clients of the Bank and from his colleagues. The clients complained about unreturned telephone calls and documents, delays in the issuing of credit cards, poor client relations, and an inappropriate remark about the physical attributes of one of the branch tellers. Mr. Bitton’s colleagues complained about his lack of professionalism, which caused them all sorts of problems, such as having to take on new clients and finding themselves placed in charge of disorganized files from which documents were missing.

 

[10]           In response to these complaints, Mr. Bitton denied all responsibility and alleged the following: the delay in the issuing of credit cards was the fault of the issuing employees in Vancouver, the absence of documents in the files was the fault of clients who were late in submitting them, the documents were disorganized because other bank employees had consulted them, clients were dissatisfied with their credit because management had issued orders that accounts were not allowed to go into overdraft, and finally, a document went undelivered because it was the responsibility of a colleague to ensure that the said document was delivered, since the client had been referred to him.

 

[11]           In September 2003, Mr. Bitton was again reprimanded by his employer. Ms. Josia Bélisle, who became Mr. Bitton’s supervisor in March 2003, met with the applicant individually to let him know that she was dissatisfied. Mr. Bitton, however, maintains that the purpose of the meeting in question was not to express his immediate supervisor’s dissatisfaction, but rather to announce a promotion, since it was at that point that he was promoted to a new level.

 

[12]           Around the end of 2003, the Bank lost an important client. A company whose account was managed by Mr. Bitton transferred more than a million dollars’ worth of funds to a financial institution offering more competitive rates. Apparently, the client had communicated its dissatisfaction to Mr. Bitton before transferring its assets, and Mr. Bitton had failed to inform his superiors to give them the opportunity to try to prevent this loss to the employer.

 

[13]           On December 18, 2003, Mr. Bitton, Ms. Bélisle and Mr. Trifonopoulos met to discuss the applicant’s work within the company. In their submissions to the adjudicator, the individuals present at the meeting did not agree on the points that had been discussed.

 

[14]           After that meeting, Mr. Bitton wrote two letters to Ms. Bélisle requesting explanations. Following the second of these letters, a new meeting was held with Mr. Bitton on January 9, 2004, to clarify the complaints against him. The management agreed verbally to give him one month to change his conduct. In a letter dated the same day and confirming the verbal notice he had been given, it was spelled out that the misconduct in question involved poor interpersonal relations with his colleagues, unsatisfactory client service and a lack of organization.

 

[15]           On January 13, 2004, Mr. Bitton sent his supervisors a letter accusing them of moral harassment in the workplace and demanding evidence of his alleged shortcomings.

 

[16]           About two weeks after the meeting of January 9, 2004, Mr. Bitton’s “Performance Planning and Review 2003” reported the applicant’s hostile reaction to the recommendations made by his superiors at the beginning of 2004 [translation]: “Stacy’s [Mr. Bitton’s] response to opinions and advice from management was to deny, contest and misinterpret the ‘alleged’ facts, behaviour that we consider non-conducive to the efforts he will have to make in order for his overall performance to come up to the required level” (Respondent’s Record, vol. 2, tab 21, p. 174).

 

[17]           On February 23, 2004, Mr. Bitton received a letter of dismissal, effective that day. After his termination, the applicant continued to demand explanations from his ex‑employer about the circumstances and reasons leading to his dismissal, and he issued a public letter accusing the Bank’s employees of racism and harassment toward him.

 

THE DECISION OF THE ADJUDICATOR

[18]           Claiming to be the victim of a wrongful dismissal, Mr. Bitton filed a grievance with the Canadian Department of Human Resources on March 8, 2004. The adjudicator, Guy Lafrance, appointed pursuant to the Code, heard witnesses on October 27 and 28 and December 7 and 8, 2004. Arguments were heard on January 12, 2005; the parties also provided written submissions and authorities to the adjudicator.

 

[19]           It is important to note that the applicant represented himself with the assistance of his father and brought no witnesses, despite the fact that the adjudicator had agreed to hold the hearing near Mr. Bitton’s home so that it would be easier for him to call witnesses. He preferred to rely on documentary evidence and various recorded conversations he had had with his superiors in the final months of his employment, the recordings having been made without their knowledge. On the other hand, the respondent called on several of Mr. Bitton’s former colleagues to testify.

 

[20]           In a decision rendered on May 4, 2005, the adjudicator held that the relationship of trust between Mr. Bitton and the Bank had been breached, justifying the latter’s decision to dismiss Mr. Bitton without written notice. In his thirty pages of reasons, Mr. Lafrance provided a detailed review of the evidence submitted and reproduced long excerpts of the documentary evidence. His findings can be found at paragraphs 67 to 81 of his decision, [2005] D.A.T.C. no 241 (QL) [translation]:

67        In this case, the evidence shows that Mr. Stacy Bitton was placed in a position of responsibility upon the recommendation of Mr. Demetrios Trifonopoulos, despite doubts expressed by certain individuals.

 

68        Once he was in this position, the employer realized that its employee was failing to meet the required standards, as is clear from his performance evaluations (P‑1).

 

69        At the beginning of his employment, Mr. Stacy Bitton decided not to take any notes during his training period, preferring to rely on his memory, despite having been told that it would be advisable for him to take notes on the required procedures so as to avoid errors in the future.

 

70        Throughout 2003, complaints from clients and staff members began to accumulate. The complaints addressed poor record keeping, accounts in overdraft, a lack of organization, unreturned calls, unprofessional interaction with clients, etc.

 

71        Mr. Stacy Bitton was verbally informed of these complaints, and each time, he attempted to deflect the blame onto others.

 

72        Near the end of 2003, a client unsatisfied with the rate offered by the Bank decided to transfer its assets to another bank.

 

73        Mr. Stacy Bitton met with his supervisors, who told him that he should have informed his immediate superiors so that they could decide whether a more competitive rate could be granted to the client in question before it transferred more than a million dollars to another financial institution.

 

74        It was during that meeting that he was told that he could not, on his own initiative, decide not to come to work for Yom Kippur, and that he had to tell his superiors ahead of time, as per the Bank’s policy. Moreover, it should have been leave without pay, but as a result of his actions he had been paid for that day.

 

75        That meeting, which allegedly took place on December 18, 2003, elicited a response from Mr. Stacy Bitton that degenerated and led to his being dismissed without all the steps listed in the Bank’s policy being followed:

            1.-  Discussions to give guidance;

            2.-  Verbal notice;

            3.-  Written notice;

            4.-  Dismissal of employee.

 

76        In this case, step 3 was not followed.

 

77        Following that meeting, Mr. Stacy Bitton wrote the above-noted letters dated December 18, 2003 (P-16), January 7, 2004 (P-11), January 13, 2004 (E-5) and January 16, 2004 (P-9).  The father of Mr. Stacy Bitton, Mr. Sam Bitton, wrote the above-noted letter dated January 13, 2004 (E-6).

 

78        The letters dated January 13, 2004, contained threats by Messrs. Bitton, father and son, that they would appeal to members of the Sephardic community who do business with HSBC Bank to assure Mr. Stacy Bitton that his superiors would cease reprimanding him and would grant him the bonuses to which he claimed to be entitled.

 

79        The threatening tone was again evident in the letter dated January 16, 2004 (P-9), in which Mr. Stacy Bitton wrote [translation]: “As for the threat, it is of the same nature”.

 

80        The letters dated January 13, 2004, also show that Messrs. Stacy and Sam Bitton had met with Mrs. …, a member of their community, to discuss with her the problems Mr. Stacy Bitton was having at work.

 

81        In early 2004, Mr. Stacy Bitton contacted at least ten on the Bank’s clients to ask them for letters of congratulation. (P-6)

 

[21]           On the basis of these findings, the adjudicator concluded that the relationship of trust between the two parties had been breached, which he felt justified the dismissal without written notice. I also note that the evidence failed to demonstrate, according to the adjudicator, that Mr. Bitton had been the target of racist behaviour or comments. Finally, the adjudicator saw fit to mention certain events that followed Mr. Bitton’s dismissal. He notes the following in paragraph 83 of his reasons in the challenged decision mentioned above [translation]:

83        Even though the events following Mr. Stacy Bitton’s dismissal cannot be taken into account in deciding whether or not the dismissal was justified, it is worth mentioning the fact that Mr. Stacy Bitton circulated a petition among the Bank’s clients, accusing Bank employees of racism and harassment. (E-10)

 

ISSUES

[22]           The issues before this Court are as follows:

- Did the adjudicator follow the rules of procedural fairness and natural justice in rendering his decision?

 

-   Did the adjudicator make any error of law or fact in concluding that the dismissal was justified?

 

 

THE RELEVANT STATUTORY PROVISIONS

[23]           The statutory provisions dealing with the powers and duties of the adjudicator are set out in Division XIV, Part III of the Code and are reproduced in Schedule “A” of these reasons.

 

ANALYSIS

Did the adjudicator follow the rules of procedural fairness and natural justice in rendering his decision?

 

[24]           It is well established that questions of procedural fairness should be assessed as questions of law, giving rise to judicial review only if the decision is incorrect. As Binnie J. observed, writing for the majority of judges of the Supreme Court of Canada in C.U.P.E. v. Ontario (Minister of Labour), [2003] 1 S.C.R. 539, at paragraph 102: “[t]he content of procedural fairness goes to the manner in which the Minister went about making his decision, whereas the standard of review is applied to the end product of his deliberations.”

 

[25]           Having carefully reviewed the record submitted by the parties, I find that the applicant suffered no denial of fairness by the adjudicator. On the contrary, the latter treated the case fairly, granting the applicant considerable latitude to make his arguments. He heard the parties’ evidence over four days, and his reasons cover in extensive detail the most important elements from the hearing.

 

[26]           The adjudicator cannot be faulted for refusing to hear evidence that he did not consider relevant. After all, the adjudicator is the authority with respect to evidence and procedure, and it is his role to weigh the probative value of the evidentiary items submitted and the credibility of witnesses. I see nothing in the way he presided over the hearings that can be said to constitute a violation of the principles of natural justice.

 

[27]           On the other hand, I am conscious of the fact that the only evidence I am entitled to consider is that which was before the adjudicator. It is an oft-cited principle, explained by the fact that judicial review is not about determining whether the initial decision-maker made the right decision, but rather whether he could make such a decision given the record before him. Accordingly, in my consideration of the arbitration decision, I took into account only those evidentiary items that had been submitted to Mr. Lafrance.

 

2. Did the adjudicator make any error of law or fact in concluding that the dismissal was justified?

 

The standard of judicial review

[28]           It is well established that an adjudication decision pursuant to Part III of the Code calls for great judicial restraint. Robert Décary J., writing on behalf of the Federal Court of Appeal, recently reiterated it in Fontaine v. Innu Nation of Uashat Mak Mani-Utenam, 2005 FCA 357, [2005] F.C.J. no 1802 (QL) at paragraphs 4 and 5:

As to the standard of review applicable to the findings of fact and inferences drawn from them by the adjudicator, the parties have agreed − and I agree with them − that the applicable standard is that of the patently unreasonable decision, as the Supreme Court of Canada held in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487, indeed, in issue was an arbitral award in relation to a dismissal without just cause. (See also Defence Construction Canada Ltd. v. Girard, 2005 FC 1177, per de Montigny J.).

 

In Toronto Board of Education, Cory J. said that this standard was a “very strict test”, which he described at paragraph 46 of his reasons as follows:

 

. . . it is apparent that if the decision the Board reached, acting within its jurisdiction, is not clearly irrational, that is to say evidently not in accordance with reason, then it cannot be said that there was a loss of jurisdiction.

 

At paragraphs 47 and 48, he added:

 

47        In order to decide whether a decision of an administrative tribunal is patently unreasonable, a court may examine a record to determine the basis for the challenged findings of fact or law made by the tribunal . . .

 

48        Therefore, in those circumstances where the arbitral findings in issue are based upon inferences made from the evidence, it is necessary for a reviewing court to examine the evidence that formed the basis for the inference. I would stress that this is not to say that a court should weigh the evidence as if the matter were before it for the first time. It must be remembered that even if a court disagrees with the way in which the tribunal has weighed the evidence and reached its conclusions, it can only substitute its opinion for that of the tribunal where the evidence viewed reasonably is incapable of supporting the tribunal's findings.

 

[29]           Because the issue is the justifiability of an adjudication decision related to the adequacy of reasons for a dismissal, the applicable standard of review is that of patent unreasonableness. This is so because we are essentially dealing with a finding of fact requiring the decision-maker to weigh evidence. My colleague Judith A. Snider J. recently came to the same conclusion in a case involving an issue similar to the one before me in this application for judicial review. She wrote the following in paragraph 16 of North v. West Region Child and Family Services Inc., 2005 FC 1366, [2005] A.C.F. no 1686 (QL):

Put simply, why did the Employer terminate Mr. North’s employment? This is a determination of fact that requires the adjudicator to analyze the evidence before him. In my view, the standard of patent unreasonableness is applicable to this question. On questions of fact, I can intervene only if I consider that the adjudicator "based its decision or order on an erroneous finding of fact that it made in a perverse or capricious manner or without regard for the material before it" (Federal Court Act, R.S.C. 1985, c. F-7, s. 18.1(4)(d)).

 

[30]           In other words, with respect to this aspect of the case, the question I must ask myself is not whether I would have arrived at the same conclusion as the adjudicator; in the words of the Supreme Court of Canada at paragraph 46 of Canada (Attorney general) v. Public Service Alliance of Canada, [1993] 1 S.C.R. 941, the adjudicator’s decision is only patently unreasonable if it is “clearly irrational”. I will return to the issue of the appropriate standard of judicial review below.

 

The reasons for dismissal offered by the employer to justify the fairness of the dismissal

 

[31]           Pursuant to subsection 242(3) of the Code, the adjudicator had to determine whether Mr. Bitton had been wrongfully dismissed. To answer that question, the adjudicator had to ask himself whether the employee had indeed committed the acts alleged by his superiors and whether the dismissal constituted a fair and appropriate disciplinary measure under the circumstances. This was the approach advocated by the Supreme Court of Canada in Toronto (City) Board of Education v. O.S.S.T.F., District 15, [1997] 1 S.C.R. 487. In that case, Peter deCarteret Cory J. wrote the following:

The first step in any inquiry as to whether an employee has been dismissed for “just cause” is to ask whether the employee is actually responsible for the misconduct alleged by the employer.  The second step is to assess whether the misconduct gives rise to just cause for discipline.  The final step is to determine whether the disciplinary measures selected by the employer are appropriate in light of the misconduct and the other relevant circumstances.  See Heustis, supra, at p. 772.

 

[32]           While the dispute in that decision originated in Ontario and was governed by the provisions of a collective agreement, this Court has already held that the same approach should also be followed in the context of section 242 of the Code, pursuant to Kelowna Flightcraft Air Charter Ltd. v. Kmet, [1998] F.C.J. no 740 (QL), (1998) 149 F.T.R. 246 (F.C.). The Federal Court of Appeal recently adopted the same approach in Fontaine, cited above.

 

[33]           In this case, did Mr. Lafrance follow this procedure? I do not think so. Although he reported the evidence submitted in minute detail and drew certain findings of fact from it, his analysis of the justifiability of the sanction strikes me as tenuous at the very least, for several reasons.

 

[34]           It was in the letter given to him by Mr. Miguel Barrieras, then Vice-President of the McGill College branch, dated January 9, 2004, that the Bank set forth for the first time, at least in writing, the reasons of Mr. Bitton’s alleged misconduct and performance deficiencies. Three factors were raised in that letter, an excerpt of which I am reproducing below in light of its importance [translation]:

Should the cases of misconduct or substandard performance reoccur, you will receive a formal written notice and could potentially be relieved of your current duties and dismissed from the Bank.

 

Details related to the misconduct:

 

1)   Unsatisfactory interpersonal relations, which have had a significant negative impact on morale in other departments, and lack of respect for other staff members resulting in poor communication between you.

 

One of the Bank’s departments informed the Vice-President and Director that it had received several complaints from its employees regarding business they had to conduct with you. They claim to have been exposed to verbal abuse on several occasions.

 

2)   Unsatisfactory client service

 

The branch has received several telephone calls from clients expressing their dissatisfaction with the service they received from you. For example: 1)  difficulty reaching you (busy signals); 2) unreturned phone calls; 3) incorrect information received by client regarding certain products and services.

 

3)   Lack of organization

 

The branch has taken note of your lack of organization. Several documents have gone missing for accounts for which you are responsible. This has been occurring ever since your appointment as a credit agent.

 

Your response to new challenges or opinions and advice from management on areas to be improved has been to deny, challenge and misinterpret the facts outlined above, conduct we consider unprofessional and difficult to manage.

 

[35]           In the submissions and authorities it provided to the adjudicator on January 28, 2005, Respondent’s Record at pages 41 and following, and in its memorandum to this Court, the employer reiterated the same three complaints to justify its decision to terminate its employment relationship with Mr. Bitton. According to the Bank, each of the three reasons independently constituted sufficient justification to dismiss the applicant, given that he had already received notice and had been given the opportunity to correct the problems.

 

[36]           As for weighing the evidence before him, the adjudicator made a certain number of findings that I have already reproduced above at paragraph 20. These findings of fact are naturally entitled to significant deference, as was established with respect to the first issue, given the adjudicator’s expertise and his opportunity to assess the credibility of the witnesses and parties.

 

[37]           His analysis of the adequacy of the reasons for dismissal put forth by the employer, however, strikes me as debatable. One can search in vain in the adjudicator’s reasons for an actual analysis of the reasons for dismissal invoked by the Bank, which should nevertheless underlie the justification of this measure that can be described at the very least as draconian. On the other hand, he was clearly aware of the applicable principles, given that he prefaced his observations with the following paragraph [translation]:

 

66  It is well established in the caselaw that an employer may terminate an employment unilaterally and without notice on reasonable grounds, which it was up to the employer to demonstrate in this case.

 

[38]           At no time did the adjudicator actually establish a connection between his findings of fact and the reasons invoked by the employer for dismissing Mr. Bitton. There is room for interpretation on both sides. While it is true that the correlation is sometimes obvious, that is not always the case. For example, the fact that he did not take any notes during his training in itself neither proves nor explains his incompetence. Was the accumulation of complaints against the applicant in itself enough to lead to a finding of incompetence or insubordination on Mr. Bitton’s part? Furthermore, the allegations of poor interpersonal relations with other staff members are barely mentioned in his conclusions.

 

[39]           But there is more. The adjudicator concluded, on the basis of the meeting held on December 18, 2003, and the letters that followed, that the relationship of trust between Mr. Bitton and the Bank no longer existed, which justified his dismissal without written notice. It seems therefore that it was for this reason more than for the complaints against him in the letter dated January 9, 2004, that the adjudicator found that the dismissal was justified.

 

[40]           Also, nowhere in the adjudicator’s reasons does there appear a discussion of the seriousness or irremediable nature of the applicant’s conduct. Given that the breach of the relationship of trust between Mr. Bitton and his employer seems to be, in the eyes of the adjudicator, the real justification for the dismissal, it seems reasonable to expect a at least a minimal explanation for this. I am not questioning the adjudicator’s finding that there were problems with Mr. Bitton’s performance during his final months of employment with the Bank. The fact that he recorded conversations with his employers without their knowledge, threatened the Bank that he would call upon the members of his community for support, and that after his dismissal, he circulated a petition among the respondent’s clients accusing its employees of racism and harassment, all certainly constitute reprehensible acts that could not help but rupture the relationship of trust between the two parties.

 

[41]           Nevertheless, it is reasonable to expect that the adjudicator not be content merely to state that given that breach of the relationship of trust between the parties, the respondent was justified in dismissing Mr. Bitton without any other form of notice. After all, we must never lose sight of the fact that dismissal is the ultimate weapon, which the employer should only be able to use as a last resort, thereby resisting arbitrary action in individual employment contracts. It should go without saying that Part III, Division XIV of the Code was amended primarily to provide further job protection to employees, as was stated by the Federal Court of Appeal in Beothuk Data Systems Ltd., Division Seawatch v. Dean, [1998] 1 F.C. 433 (C.A.), which cited, at paragraph 33,  the debate in the House of Commons related to the Labour Minister’s observations.

 

[42]           Was this breach of the relationship of trust irremediable? Could the employer have employed other sanctions to deal with this employee? Did dismissal constitute a disproportionate measure under the circumstances? None of these issues are dealt with in the impugned decision, which leaves too much room for interpretation with respect to the appropriateness of the disciplinary measure taken by the employer with regard to Mr. Bitton.

 

[43]           In conclusion, I am of the view that the adjudicator erred in giving too little consideration to the third stage of the test described by Cory J. in the above-cited Toronto Board of Education, which involves assessing the adequacy of the employees’ alleged breaches under the circumstances before finding that there were grounds for dismissal. In reading the adjudicator’s reasons, I am led to believe that he committed the same error as the adjudicator whose decision was under review in Fontaine, noted above. Without saying it explicitly, as in this case, he wrote as though the employer were entitled to exercise the sanction from the moment it could demonstrate sufficient grounds for invoking a breach of the relationship of trust. As Décary J. wrote at paragraph 29 of that case, “[h]e confused the fault committed, which warranted a penalty (the first and second stages), with the breach of the relationship of trust, which may justify the nature of the penalty applied (the third stage).”

 

[44]           As for the appropriate standard of review to be applied in this case, it should be noted that the error committed by the adjudicator involves a question of mixed law and fact. I am not calling into question his findings of fact drawn from the evidence submitted by the parties. As I pointed out above, these findings are entitled to considerable deference, which the Court must respect. At no time were the adjudicator’s findings of fact clearly irrational. For example, the companies’ complaints brought to the attention of the employer with respect to Mr. Bitton’s unsatisfactory work and the verbal reprimands he received from his supervisors are not called into question here. 

 

[45]           However, when the adjudicator bypasses the last stage of the test set out by the Supreme Court in Toronto Board of Education and jumps to the conclusion that the dismissal was justified purely on the basis of the fault committed, he committed an error in applying a legal rule to the facts. Because we are dealing with a question of mixed law and fact, the degree of deference owed to the resulting findings is necessarily lesser and entitles this Court to intervene to the extent that the adjudicator’s decision “is not supported by any reasons that can stand up to a somewhat probing examination” (Canada (Director of Investigation and Research) v. Southam Inc., [1997] 1 S.C.R. 748, at paragraph 56).

 

[46]           In this case, the Court has a responsibility to intervene because the adjudicator provided no support for his finding that the disciplinary measure taken by the employer, namely dismissal, was justifiable. It is worth noting that an employee who has been dismissed should never be left to wonder about the reasons for the termination of his employment. That is why an adjudicator is generally appointed when a conflict of this sort arises, so that any complaints against the employee can be fully clarified.

 

[47]           Accordingly, I will adopt the same solution as that adopted by the Federal Court of Appeal in Fontaine, cited above, and refer the case back to the adjudicator so that he can decide, on the basis of the evidence available to him in light of these reasons, whether the dismissal without compensation was an appropriate measure. The parties should be authorized to give their point of view on this issue, orally or in writing, on the basis of the record as it now exists.

JUDGMENT

THIS COURT ORDERS THAT the matter be referred back to the adjudicator so that he can decide, on the basis of the evidence available to him in light of these reasons, whether the dismissal without compensation was an appropriate measure. The parties should be authorized to give their point of view on this issue, orally or in writing, on the basis of the record as it now exists.

 

 

 

 

"Yves de Montigny"

 

 

 

 

Certified true translation

Francie Gow

SCHEDULE "A"

 

Relevant statutory provisions:

 

 

 

 

FEDERAL COURT

 

SOLICITORS OF RECORD

 

 

DOCKET:                                          T-1099-05

 

STYLE OF CAUSE:                          Stacy Bitton v. HSBC Bank Canada

 

PLACE OF HEARING:                    Montréal, Quebec

 

DATE OF HEARING:                      September 1, 2006

 

REASONS FOR ORDER BY:         The Honourable Mr. Justice de Montigny

 

DATED:                                             November 9, 2006

 

 

 

APPEARANCES:

 

Stacy Bitton	FOR THE APPLICANT
Avram Fishman	FOR THE RESPONDENT

 

SOLICITORS OF RECORD:

 

Stacy Bitton, for himself Montréal, Quebec	FOR THE APPLICANT
Goldstein, Flanz & Fishman Montréal, Quebec	FOR THE RESPONDENT