Ottawa, Ontario, March 1, 2007
PRESENT: The Honourable Madam Justice Mactavish
BETWEEN:
and
CANADIAN NATIONAL RAILWAY COMPANY
REASONS FOR JUDGMENT AND JUDGMENT
[1] Gail Yacucha’s complaint of unjust dismissal was dismissed by an adjudicator appointed under the Canada Labour Code, who found that she had voluntarily left her employment with the Canadian National Railway Company.
[2] Ms. Yacucha now seeks judicial review of that decision, asserting that the adjudicator erred in failing to properly consider the implications of several events occurring immediately prior to her departure from the company, in particular a meeting that took place between Ms. Yacucha and her supervisor, Larry Stevenson.
[3] Ms. Yacucha also submits that the adjudicator erred in failing to give sufficient weight to the medical evidence indicating that she was in a psychologically vulnerable condition at the time that she left her employment with CN.
[4] For the reasons that follow, I have not been persuaded that the adjudicator erred as alleged by Ms. Yacucha. As a consequence, the application for judicial review will be dismissed.
Background
[5] Ms. Yacucha began working for CN in Winnipeg in 1969. She occupied a series of jobs, ultimately achieving a position as an account development officer in 1997. Ms. Yacucha worked in Winnipeg for the bulk of the time that she was with CN, with the exception of a period between 1992 and 1994, when she worked in Calgary.
[6] It appears that Ms. Yacucha enjoyed living in Calgary, and that when her position in that city became redundant in 1994, she was faced with the choice of leaving CN, or returning to Winnipeg. She reluctantly chose to return to Winnipeg, where she continued in her career with CN until her departure from the company in 1998.
[7] By the late 1990’s, CN had been downsizing for a number of years. To this end, the company had been making separation packages available to employees who voluntarily agreed to leave their employment.
[8] If an employee was willing to leave the company, and was employed in a department that had not been targeted for downsizing, the individual would notionally be reassigned to a position within an affected department that was occupied by someone who wanted to stay with the company. The individual who wanted to stay at CN would then be reassigned the departing employee’s job number, and would be kept on by the company. This practice was known as a “swap”.
[9] The pressure to downsize affected a number of departments within CN, and by 1998, it was common knowledge that if the account development group did not meet its revenue targets, it might cease to exist. This put considerable pressure on the members of the department, including Ms. Yacucha.
[10] While the situation at CN put a generalized pressure on the members of the account development group, the adjudicator found as a fact that there was no evidence to suggest that there was any desire on the part of anyone in management at CN to see Ms. Yacucha’s employment terminated.
[11] It also appears that conflict was developing in the relationship between Ms. Yacucha and Mr. Stevenson, and that Ms. Yacucha was of the view that Mr. Stevenson was mistreating her, although the adjudicator did not accept that this was in fact the case.
[12] In May of 1998, Ms. Yacucha went on stress leave, which lasted until July 28, 1998. She was clearly unhappy with her situation at work, as on June 4, 1998, Ms. Yacucha told her family physician, Dr. Giesbrecht, that she was thinking of leaving her job within the next six to 24 months. Three weeks later, Ms. Yacucha told Dr. Giesbrecht that she wanted to transfer to Alberta. In this regard, it appears that Ms. Yacucha was interested in pursuing a relationship with a man that she had recently met who lived in Calgary.
[13] Within a day or two of her return to work, Ms. Yacucha told Mr. Stevenson that she would be interested in looking at a separation package. The adjudicator found as a fact that it was Ms. Yacucha who approached Mr. Stevenson in this regard, and not the other way around.
[14] Mr. Stevenson then made some inquiries on Ms. Yacucha’s behalf, and determined that a separation package could indeed be made available to her. On July 30, 1998, Ms. Yacucha received a one page document from Mr. Stevenson which indicated that she would be entitled to an ex gratia payment of $73,705.01, or 77.83 weeks salary.
[15] There is a conflict in the evidence as to what happened next. Ms. Yacucha says that she only agreed to consider the separation package, whereas Mr. Stevenson said that Ms. Yacucha agreed to accept the package. Having regard to all of the circumstances, the adjudicator accepted Mr. Stevenson’s version, and found as a fact that Ms. Yacucha had confirmed her acceptance of the severance arrangements, and indicated her willingness to voluntarily leave her employment at CN.
[16] There is no dispute about the fact that during the month of August, Ms. Yacucha sought financial advice with respect to the separation package from representatives of Merrill Lynch and KPMG. Merrill Lynch was Ms. Yacucha’s personal financial adviser, and the services of KPMG were provided to her at CN’s expense as part of the severance arrangements.
[17] In the course of these discussions, a number of different pension scenarios were reviewed with Ms. Yacucha, based upon pension information that had previously been provided to her.
[18] On August 27, 1998, Ms. Yacucha received a letter from Mr. Stevenson dated August 26, 1998 which stated: “This letter will confirm that your employment with CN will terminate effective August 31, 1998.” Attached to the letter was information with respect to her severance entitlement and pension options. Ms. Yacucha raised no concerns with respect to the wording of the letter with Mr. Stevenson or anyone else at CN at this time.
[19] The following day, Ms. Yacucha was in attendance at a departmental staff meeting at which a new organizational chart was circulated, which showed an employee, who will be identified in these reasons as “AD”, occupying Ms. Yacucha’s position. Ms. Yacucha says that she was in a state of shock about this, and that, as a result, she did not voice any objection to the fact that her position appeared to have been assigned to someone else.
[20] On August 31, 1998, Ms. Yacucha met with Terrence Wasylak, an outplacement consultant with Main Stream Access Corporation. Main Stream had been retained by CN to provide outplacement counselling and related services to CN employees whose employment was being terminated, whether the termination was voluntary or involuntary.
[21] Ms. Yacucha evidently told Mr. Wasylak that she had had second thoughts, and that she did not wish to leave her employment with CN. Mr. Wasylak suggested she return to CN in order to discuss the issue with Mr. Stevenson.
[22] It is common ground that that same day, Ms. Yacucha met with Mr. Stevenson, and that she told him that she had changed her mind about leaving CN, and that she did not want to sign the separation papers.
[23] Mr. Stevenson’s and Ms. Yacucha’s accounts of what happened next differ somewhat. However, there is no dispute about the fact that Mr. Stevenson became upset, and told Ms. Yacucha that she could not change her mind, as steps had already been taken to implement her earlier decision to leave the company, including effecting the “swap” with AD.
[24] There is also no dispute that Mr. Stevenson told Ms. Yacucha to go home and think about what she wanted to do. Nor is there any question about the fact that Mr. Stevenson also told Ms. Yacucha that if, after thinking the matter over, she still wanted to stay with CN, Mr. Stevenson would see what he could do for her, although he could not make any promises in that regard.
[25] The following day, Ms. Yacucha met with Mr. Wasylak and signed all of the paperwork necessary to give effect to the separation package, including a release in favour of CN. Mr. Wasylak testified that he would not have witnessed the documents if he had any concern that Ms. Yacucha did not understand and accept what she was signing.
[26] That same day, Ms. Yacucha called Mr. Stevenson, and left him a voicemail message advising him that she had signed the release. Mr. Stevenson testified that Ms. Yacucha also said that she had had a case of “cold feet” about leaving CN, but that her decision to leave CN had been the right one, and that she was happy with that decision. Ms. Yacucha admitted in cross-examination that she may indeed have told Mr. Stevenson that she was comfortable with her decision to leave the company.
[27] Immediately after leaving CN, Ms. Yacucha put her home in Winnipeg up for sale, and took a number of other steps with a view to moving to Calgary. It appears that her efforts to obtain new employment in Calgary were not immediately successful, and that the hoped-for relationship with the man in Calgary did not materialize.
[28] According to Dr. Giesbrecht’s notes from Ms. Yacucha’s visits in October and November of 1998, Ms. Yacucha told her doctor that she had quit her job at CN, but had since come to regret her decision.
[29] On November 27, 1998, Ms. Yacucha filed a complaint with Human Resources Development Canada pursuant to section 240 of the Canada Labour Code in which she alleged that she was unjustly dismissed from her employment at CN.
[30] After a lengthy hearing, the adjudicator appointed to hear the case determined that Ms. Yacucha had left her employment with CN voluntarily, and had not been unjustly dismissed from her position. It is this decision that Ms. Yacucha now seeks to judicially review.
Issues
[31] Ms. Yacucha raises two issues on this application. Her primary argument is that the adjudicator erred in finding that she had voluntarily left her employment with CN, in light of the events occurring during the last few days of August, 1998, and, in particular, what transpired in the course of Ms. Yacucha’s last meeting with Mr. Stevenson.
[32] Although this issue was not pressed at the hearing, Ms. Yacucha also says that the adjudicator erred in failing to give due consideration to her vulnerable state of mind, in finding that she voluntarily chose to leave her employment.
Standard of Review
[33] Ms. Yacucha says that the question of whether or not an individual had been dismissed, or had voluntarily left his or her employment goes to the jurisdiction of an adjudicator appointed under the Canada Labour Code. As such, a finding that there has been a voluntary resignation should be reviewed against the standard of correctness.
[34] In support of this contention, Ms. Yacucha relies on the decision of the Federal Court of Appeal in Baldrey v. H. & R. Transport (2005), 334 N.R. 340, 2005 FCA 151.
[35] A review of the Baldrey decision discloses that what the Federal Court of Appeal actually decided was that the adjudicator’s identification of the legal principles applicable to the determination of the status of a person as an employee is to be reviewed on the standard of correctness. However, the application of those principles to the facts of a particular case is to be reviewed on the standard of reasonableness.
[36] In coming to this conclusion, the Federal Court of Appeal adopted the pragmatic and functional analysis conducted by Justice Sharlow in Dynamex Canada Inc. v. Mamona (2003), 242 F.T.R. 159, (2003), 305 N.R. 295, 2003 FCA 248. In Dynamex, Justice Sharlow concluded, albeit in the context of a different provision of the Canada Labour Code, that the question of whether an employee had been dismissed was also a question of mixed fact and law, which was to be reviewed against the reasonableness standard.
[37] In this case, the adjudicator provided a lengthy and detailed discussion of the legal principles governing a case such as this, observing that he had to ascertain firstly, whether Ms. Yacucha had the subjective intent to voluntarily leave her employment, and secondly, whether she took steps to fulfill that intention. The adjudicator further recognized that the fact that Ms. Yacucha had signed a release in favour of CN was not determinative, and that a release could be rendered unenforceable, if it was coerced or was signed under duress.
[38] Ms. Yacucha has not pointed to any error in the adjudicator’s identification of the principles governing voluntary resignation and involuntary dismissal, and it is clear from her submissions that what she takes issue with is the adjudicator’s application of those principles to the facts of this case. I am of the view that this is a question of mixed fact and law, which is reviewable against the reasonableness standard.
[39] In Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, the Supreme Court found that an unreasonable decision was one that “in the main” was not supported by reasons that could stand up to a “somewhat probing examination”. As a consequence, in reviewing a decision on the reasonableness standard, the Court must ascertain whether the reasons given by the decision-maker support the decision.
[40] A decision will only be found to be unreasonable if there is no line of analysis within the reasons that could reasonably lead the decision-maker from the evidence to the conclusion. A decision may be reasonable “if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling”. See: Law Society of New Brunswick v. Ryan, [2003] 1 S.C.R. 247, 2003 SCC 20 at ¶ 55.
[41] Insofar as Ms. Yacucha’s second issue is concerned, she does not say that her mental state was such that she was incompetent, or otherwise incapable of voluntarily choosing to leave her employment. Rather she says that having accepted that she was operating under significant stress, and that she sincerely believed that she was being mistreated by her employer, the adjudicator erred in failing to find that she was not ‘operating on all cylinders’ when she signed the release finalizing her departure from CN.
[42] I do not need to decide whether this issue, which obviously has a significant factual component to it, should be reviewed against the standard of reasonableness or patent unreasonableness, as I am satisfied that it can withstand scrutiny under the more exacting reasonableness standard.
Analysis
[43] Before commencing my analysis I should note that an issue was raised in CN’s memorandum of fact and law with respect to the admissibility of an affidavit sworn by Ms. Yacucha in support of her application for judicial review, given that the affidavit allegedly contained extrinsic evidence that was not before the adjudicator when he made his decision. This issue was not pursued at the hearing, and it is not necessary for me to deal with it, as, having read the affidavit, nothing in it affects my decision.
[44] I will start my analysis by considering Ms. Yacucha’s second issue, namely the alleged failure of the adjudicator to properly consider her psychologically vulnerable condition in assessing whether she had voluntarily resigned her position with CN or had been dismissed.
[45] In this regard, it should be noted that Ms. Yacucha’s position with respect to the import of the medical evidence has evolved somewhat since the hearing before the adjudicator. Before the adjudicator, Ms. Yacucha took the position that the condition of her mental health in August of 1998 was such that she did not have the requisite capacity to make decisions with respect to her employment situation at CN.
[46] Ms. Yacucha’s argument in this Court is a little different: that is, she argues that the adjudicator did not properly take into account her psychological vulnerability in assessing the significance of the events leading up to her departure from CN.
[47] I would start by observing that the adjudicator went through a careful and detailed analysis of the medical evidence before him regarding Ms. Yacucha’s psychological state in coming to his conclusion that the evidence did not support a finding that she lacked the requisite capacity to make a decision regarding her employment at CN in August of 1998. I can see no error in his analysis, and am satisfied that the adjudicator’s conclusion in this regard was eminently reasonable on the record before him.
[48] With respect to the alleged failure of the adjudicator to properly consider the impact that her psychological vulnerability had in assessing the events of August, 1998, I am not persuaded that the adjudicator erred as alleged by Ms. Yacucha.
[49] In arriving at his decision, the adjudicator was clearly aware of the stress that Ms. Yacucha was under during the summer of 1998. Indeed, a review of the adjudicator’s decision reveals that in coming to the conclusion that Ms. Yacucha had voluntarily resigned from CN, the adjudicator carefully considered the evidence before him with respect to the stressors in both Ms. Yacucha’s employment and in her personal life.
[50] That is, in assessing whether Ms. Yacucha had the necessary subjective intent to leave her employment, the adjudicator expressly took into account the fact that she was clearly finding her employment with CN to be very stressful, and that she longed to return to Calgary for personal reasons.
[51] The adjudicator also observed that Ms. Yacucha would have been well aware of the fact that there were no guarantees of continuing employment with CN in Winnipeg over the long term, and that the package offered by CN would constitute a significant financial inducement.
[52] Taking all of these factors into account, the adjudicator specifically found that he could not give effect to Ms. Yacucha’s submission that the decision to leave her employment was irrational.
[53] Moreover, the adjudicator was clearly alert, alive and sensitive to the stress that Ms. Yacucha was under at the time that she left CN. After carefully weighing the evidence on this point, the adjudicator found that these stressors were actually a large part of the reason why she wanted to leave CN and return to Calgary.
[54] I am thus satisfied that the adjudicator understood and considered the evidence regarding Ms. Yacucha’s psychological state in August of 1998, and that the conclusions reached by him in this regard were ones that were reasonably open to him. As a consequence, I am not persuaded that there is any basis for interfering with this aspect of the decision under review.
[55] Turning then to Ms. Yacucha’s primary argument, she says that the adjudicator erred by not properly considering the cumulative effect of the letter sent to Ms. Yacucha on August 27, 1998, indicating that her employment with CN would terminate effective August 31, 1998, the inclusion of AD’s name in place of that of Ms. Yacucha on the departmental organizational chart, and Mr. Stevenson’s statements to Ms. Yacucha at their meeting on August 31, 1998.
[56] According to Ms. Yacucha, these events turned what may have started as a voluntary separation into an involuntary termination, such that Ms. Yacucha should not be bound by the release that she signed.
[57] As I understand Ms. Yacucha’s argument, she says that while she may have been considering resigning from CN, she had not, as of August 27, 1998, made a final decision in this regard. Nevertheless, CN sent her a letter telling her that her employment would terminate at the end of the month. Moreover, CN acted unilaterally in circulating an organizational chart that indicated that there was no longer a position for her at the company.
[58] Finally, and most egregiously, she says, when she met with Mr. Stevenson on August 31, 1998, and tried to tell him that she had reconsidered, and did not want to leave CN, he told her that there was no longer a job for her.
[59] Ms. Yacucha submits that until such time as she actually signed the release, she was still a CN employee, and was entitled to her job. In telling her that she no longer had a job in his department, Mr. Stevenson stripped her of all choice in the matter, and effectively dismissed her. The fact that she subsequently accepted the separation package, and signed the release is irrelevant, she says, as she was coerced into doing so by Mr. Stevenson’s conduct.
[60] I cannot accept Ms. Yacucha’s arguments. The adjudicator found as a fact no one, including Mr. Stevenson, wanted to see Ms. Yacucha leave CN, and that it was only after Ms. Yacucha approached CN to see if a separation package could be made available for her if she were to leave CN that the discussions about her departure began.
[61] Moreover, the adjudicator expressly found that some time prior to August 27, 1998, Ms. Yacucha advised Mr. Stevenson that she wanted to accept the package and voluntarily leave her employment with CN.
[62] Efforts were then made to put the separation into effect. To this end, it was necessary to identify someone who could swap positions with Ms. Yacucha. Ms. Yacucha understood that this was the process, and knew that AD would be taking over her position. A new organizational chart was then drawn up, reflecting this change. The fact that the chart was circulated at a staff meeting on August 28, 1998 is not particularly troubling, given that it was evidently generally known in the department that Ms. Yacucha would be leaving CN to move back to Calgary. Indeed, Ms. Yacucha’s co-workers were in the process of organizing a farewell party for her.
[63] I also cannot accept Ms. Yacucha’s submission that the wording of CN’s August 26, 1998 letter was somehow coercive. The letter simply reflected what appears to have been both sides’ understanding to this point, which was that Ms. Yacucha would be leaving the company, and that her employment would terminate on August 31, 1998.
[64] In this regard, the adjudicator observed that Ms. Yacucha did not question the wording of the letter when Mr. Stevenson gave it to her, nor did she raise the wording of the letter as a concern with anyone else at CN. Rather, she sought financial advice with respect to the tax implications of the package, and made what the adjudicator found to be thoughtful and intelligent decisions in order to minimize her tax liabilities.
[65] This leaves Ms. Yacucha’s meeting with Mr. Stevenson on August 31, 1998. There is no dispute between the parties that at that meeting, Ms. Yacucha told Mr. Stevenson that she was having second thoughts about leaving CN, and that Mr. Stevenson told her that he no longer had a position for her.
[66] Given the fact that Ms. Yacucha had previously indicated that she accepted the severance package, and that the swap had already been arranged with AD, specifically so that Ms. Yacucha could get the severance package that she had asked for, Mr. Stevenson’s evident frustration with her last-minute change of heart is perhaps understandable, if regrettable.
[67] Nevertheless, there is also no dispute about the fact that Mr. Stevenson quickly regained his composure, and suggested that Ms. Yacucha go away and think things over, and that if she still wanted to stay with CN, he would see what he could do for her.
[68] Contrary to Ms. Yacucha’s submission, the adjudicator clearly understood and expressly accepted that Ms. Yacucha had the right to change her mind at this point, given that she was still a CN employee. However, the adjudicator went on to look to what happened next, in order to determine whether her departure from CN was indeed voluntary.
[69] That is, the adjudicator considered the fact that Ms. Yacucha did not take Mr. Stevenson up on his offer, and did not call him back to have him see what could be done for her, nor did she contact anyone else at CN in this regard. Rather, what she did was to think things over, and to go back to the relocation counsellors and sign the separation documents, including the release.
[70] Ms. Yacucha then left a voicemail message for Mr. Stevenson, telling him that she had just had a case of cold feet, and that having thought the matter over some more, she wanted to go ahead with her plan to leave CN. Moreover, she told Mr. Stevenson that she was comfortable with her decision.
[71] The adjudicator also looked at what it was that Ms. Yacucha herself said to her family doctor shortly after her departure about what had happened at CN. In this regard, it bears repeating that Ms. Yacucha told her family doctor that she had quit her job at CN, and that she had started to regret that decision. There is nothing in Dr. Giesbrecht’s notes to suggest that Ms. Yacucha said anything about having felt coerced into leaving CN, whether by Mr. Stevenson or by anyone else at CN. Nor is there anything in Dr. Giesbrecht’s notes from this period that would indicate that Ms. Yacucha believed that her departure was anything but voluntary.
[72] It was thus entirely reasonable for the adjudicator to have concluded that had Ms. Yacucha really believed that she had been coerced in some way into leaving her employment at CN, that she would never have made these statements to Dr. Giesbrecht. Moreover, it was entirely reasonable for the adjudicator to have concluded that Ms. Yacucha voluntarily left her employment with CN, and that she was not dismissed.
Conclusion
[73] For these reasons, I am satisfied that the adjudicator did not misapprehend the law relating to resignation and involuntary dismissal. Moreover, his finding that Ms. Yacucha voluntarily left her employment with CN is one that is amply supported by the record, and which can withstand a somewhat probing examination.
[74] As a consequence, Ms. Yacucha’s application for judicial review is dismissed, with costs.
JUDGMENT
THIS COURT ORDERS AND ADJUDGES that this application for judicial review is dismissed, with costs.
FEDERAL COURT
NAMES OF COUNSEL AND SOLICITORS OF RECORD
DOCKET: T-485-06
STYLE OF CAUSE: GAIL L. YACUCHA v.
CANADIAN NATIONAL RAILWAY COMPANY
PLACE OF HEARING: Winnipeg, Manitoba
DATE OF HEARING: February 15, 2007
AND JUDGMENT: The Honourable Madam Justice Mactavish
APPEARANCES:
Ms. Sidney G. Soronow FOR THE APPLICANT
Mr. Fausto Franceschi FOR THE RESPONDENT
SOLICITORS OF RECORD:
LIFFMANN SORONOW FOR THE APPLICANT
Winnipeg, Manitoba
FRASER MILNER CASGRAIN LLP FOR THE RESPONDENT
Edmonton, Alberta