Alberta Plywood Ltd. v. Smaili, 2010 ABQB 742

Court of Queen ’ s Bench of Alberta Citation: Alberta Plywood Ltd. v. Smaili, 2010 ABQB 742 Date: 20101130 Docket: 1003 05324 Registry: Edmonton Between: Alberta Plywood Ltd. Appellant (Applicant) - and - Mahmoud Smaili Claimant (Respondent) - and - Director of Employment Standards Respondent _______________________________________________________ Memorandum of Oral Reasons of the Honourable Madam Justice D.C. Read _______________________________________________________

[1] Alberta Plywood Ltd. (the “Employer”) seeks judicial review of a decision made by a Provincial Court judge acting as anumpire (“Umpire”) appointed pursuant to the Employment Standards Code, R.S.A. 2000, E-9. [2] The Employer alleges that the Umpire erred in failing to address the real issue before him: whether Mahmoud Smaili’s (the“Employee”) conduct in failing to arrange his vacation and travel plans to ensure he would not be absent from work after his leave ofabsence gave rise to cause to discipline him and whether he erred in failing to consider whether such conduct justifiably gave rise totermination.

The Employer says that the Umpire erred by, instead, by considering whether jet lag was an illness and in concluding thatthe appeal from the decision of the Employment Standards Officer must be upheld because the Employer failed to abide by therequirements of their own policy and procedure manual with respect to attendance.

Alternatively, the Employer argues that by acceptingthe hearsay evidence of the notes written by the physician as proof the Employee was ill, the Umpire breached natural justice. [3] The underlying facts in this case were well canvassed in the Umpire’s decision so I will not repeat all of them. Briefly, theEmployee was a long term employee of the Employer with a history of disciplinary actions taken against him by the Employer.

OnAugust 24, 2007 he was issued a “last chance letter” by the Employer which letter set out the series of previously documented infractionsby the Employee and ended by saying “[f]urther incidents will result in immediate termination of your employment”. In December of2007, the Employee requested and was granted a leave of absence so that he could return to Lebanon to visit his family. As a conditionof being granted leave, the Employee was required to and did enter into a leave agreement.

This agreement stated that the Employee hadrequested a leave of absence for a period of three weeks ending on March 2, 2008 with “return to work March 7, 2008”. By signing theagreement the Employee further acknowledged that “[f]ailure to return to work on the above date may result in the termination of myemployment”. The Employee signed this agreement. [4] The Employee did not return to work on March 7, 2008.

The evidence was that he returned from Lebanon late in the eveningof March 5, 2008 and called in to work late on the evening of March 6 saying that he could not return to work “this weekend” because he“just got back from Lebanon [and] isn’t adjusted yet”. The Employee returned to work on March 10, 2008 and at that time provided theEmployer with a form ‘return to work’ signed “Dr. Shumborski” indicating he had been under the physician’s care from “07-03-08 to 09-03-08” and was able to return to work “10-03-08”. The form provided no other reason for the absence.

Told this was not sufficient, theEmployee provided a further note dated March 14, 2008 from Dr. Shumborski written on a prescription pad which stated “this patientwas ill and not able to work March 7-8-9/08”. No other detail about the nature of the illness was provided. The Employer responded witha letter dated March 10, 2008 hand delivered to the Employee terminating the Employee.

The Employee agreed at the hearing before theUmpire that he was absent from work because he was suffering from what is commonly referred to as “jet lag”. [5] While generally agreeing as to the applicable standards of review, the parties differ in their characterization of the questionbefore the Umpire. As a consequence the Employer argues that the standard of review is correctness because the Umpire asked andanswered the wrong question.

On behalf of the Director of Employment Standards (“Director”) it is argued that the standard of review isone of reasonableness because the Umpire was called upon to consider and apply the Employment Standards Code to the facts he found.Both agree that if the real issue is whether the Umpire breached natural justice, then the standard of review is correctness. [6] The Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick, [2008] SCC 9 guides me in determining thecorrect standard of review here.

As discussed in Dunsmuir, where precedent does not govern, it is necessary to use the four factorspreviously set out by the Supreme Court of Canada in Pushpanathan v. Canada (Minister of Employment & Immigration), (SCC), [1998] 1 S.C. R. 982. Both sides agree that there is no precedent exactly on point. Thus I must consider the fourPushpanathan factors, namely, (

i) the presence or absence of a privative clause or statutory right of appeal; (ii) the expertise of thetribunal relative to that of the reviewing court on the issue in question; (iii) the purpose of the legislation and the provision in particular;and (iv) the nature of the question: law, fact or mixed fact and law. [7] The Employer points to the decision of Verville, J. in Roses’s Well Services Ltd. v. Troyer, 2006 ABQB 76 and says thiscase establishes, based on a review of the Pushpanathan factors, that the standard of review is one of correctness.

I have reviewed theanalysis of Verville, J. found at paragraphs 14 to 19 of the decision and find his reasoning persuasive in respect to the first threePushpanathan factors. I note that counsel for the Director takes a similar view and this is not contentious. [8] On the final factor, that is the characterization of the question before the Umpire, I must do my own analysis, however,because the question before the Umpire in this case is, of course, a different one than the one that was before the Umpire in the decisionreviewed by Verville, J.

[ 9 ] If, as the Employer asserts, the issue is whether or not the Umpire asked himself and answered the right question, then the question is one of law as it goes to jurisdiction or, is a flawed application of the legal test. If that is so, then the standard of review is one of correctness. As a consequence, little deference is owed the Umpire’s conclusions and I must undertake my own analysis. [ 10 ] The question before the Umpire was whether the facts justified dismissal of the Employee. This is a question of mixed fact and law: whether the facts satisfy the legal test.

Some deference is owed to the Umpire on a question of mixed fact and law. However, if, as asserted by the Employer, the Umpire erred by narrowing the question before him to one of whether or not the Employer complied with its absence policy then this is a question of law only as it goes to jurisdiction: Halifax Employers Association v. Workers’ Compensation Appeals Tribunal (Nova Scotia) 2000 NSCA 86 at para 29 . [ 11 ] I disagree with the Director who asserts that the standard is reasonableness because the question is one of application of ‘home’ legislation to a particular set of facts.

This position over-generalizes the issue before the Umpire. Instead, what the Umpire was called upon to do was outlined by the Employer in this opening remarks in the hearing before the Umpire. He said this at page 6, lines 3 to 19 of the transcript: Now, Mr. Chair, this is the dispute. The director says he’s complied with your call-in policy. He has a medical note. That’s the end of it, you can’t discipline him for that. Well, we disagree -- we disagree profoundly with that because we say that the issue first and foremost is one of did he engage in any act of misconduct?

He could have scheduled his vacation for any period of time he wanted. He knew or ought to have known that if he scheduled his return too close to the end of work, that if you’re moving through 8, or 9, or 10 times zones, you might be tired and we say he’s culpable for that. We say it’s analogous to an employee who, for instance, works a Monday to Friday job, they can plan their social life, their partying Friday, Saturday, or Sunday, and if they party Sat -- Friday and they’re sick Saturday, that’s fine with us.

That -- what you do on your own time is your own business, but if you decide to par -- to party Sunday night and you have a hangover Monday, we don’t care that you’re sick. We know a hangover is your sick, but you are accountable for the -- your behaviour and the way you scheduled your time and it’s worthy of some discipline.

And we say we can’t run an industry, we can’t run a business like this. [ 12 ] While the Director attempted at the hearing before the Umpire to narrow the issue to that of a simple determination of whether there was compliance with the attendance policy, it is clear that was not the issue as framed by the Employer. As is pointed out by the Employer, it is for the Employer to frame the issue. The Employer must put forward reasons to justify its actions in dismissing the Employee and it is that justification that the Employer must put before the adjudicator and which the adjudicator is required to consider.

Neither the Employee nor the adjudicator are free to substitute other reasons for the dismissal and make the decision about whether or not the actions of the Employer were justified based upon those other reasons. [ 13 ] I conclude, therefore, that the standard of review is one of correctness. As a consequence, little deference is owed to the Umpire and I am free to undertake my own analysis. [ 14 ] I move now to considering the arguments of the parties.

The first issue raised by the Employer is that the Umpire erred by asking if the Employee complied with the Employer’s absence policy by providing the physician’s notes in order to excuse his absence from work after his return from Lebanon. The Employer says that it was clear from the letter of termination sent to the Employee that his termination was, instead, because he breached both the terms of his leave of absence agreement and the last chance letter.

The Employer says that the Employee had agreed to return to work on March 7, 2008 and had a duty to govern his plans for his trip to Lebanon to ensure that he would be ready to return to work that day.

By arriving home on the evening of March 5, having flown for 17 hours and through as many as nine time zones when he well knew from his trip over to Lebanon that he was likely to suffer jet lag, he had voluntarily disabled himself from compliance with the terms of his leave of absence agreement. [ 15 ] On behalf of the Director, it is argued that the Employee had proven he was ill by providing the notes from the physician and in doing so, had complied with the Employer’s absence policy.

The Director says that if the Employer was not satisfied with what the physician said in his notes, the Employer could have asked to cross-examine the physician to obtain details about the illness the Employee was suffering from. Having not done so, the Director says, the Employer is disabled from now suggesting that the proof offered by the Employee of his illness is insufficient. [ 16 ] In my view the Umpire did err by asking himself and answering the wrong question. While his reasons do not specifically set

out the issues he considered, it is clear from his reasons generally what issue he considered. At page 3 of his decision, after first outlining the details of the Employee’s first and second medical notes, the Umpire says: Now here is where the problem arises.

There was no request by the employer at that time to elaborate on the nature of the illness, it was simply stated “the note is no good.” The requirement under the appellant’s policy and procedures manual, Exhibit 6 in these proceedings, under the heading for “Attendance” at the fourth paragraph states: Should the absence due to illness and/or injury become lengthy, full-time employees will provide within a reasonable period a medical certificate verifying the injury or illness upon request. [ 17 ] Clearly in saying this, the Umpire framed the question as an issue of compliance with the Employer’s absence policy.

Having thus framed the question, the Umpire answers it later in that same paragraph by saying this: While I did receive evidence from the employer that three days is considered lengthy I am not satisfied that the employer made any request for a medical certificate. [ 18 ] While the Umpire did make reference earlier in his reasons to the last chance letter and to the leave of absence agreement, his reasons do not link these agreements in any fashion to the question of whether the Employer has proven misconduct by the Employee by breach of the leave of absence agreement, by failing to provide an adequate reason for his failure to attend work on the day he had agreed to return.

With respect, the issue is not whether or not jet lag is an illness; whether or not either the Employer or Employee complied with the Employer’s absence policy; or whether or not the notes provided by the Employee proved in the absence of evidence to the contrary that the Employee was ill, as the Umpire concluded.

Indeed, the Employer admitted that by telephoning and providing the notes the Employee had, indeed, complied with the absence policy. [ 19 ] If the Employee had returned from Lebanon ill with a malady such as pneumonia or malaria that he had contracted while travelling and which was beyond his control, that would have been a different matter. However, the Employee returned to Canada only on the evening of March 5 after a 17 hour journey that crossed nine time zones. His travel plans were completely within his control.

He then decided he was too tired to work on March 7. [ 20 ] The question the Umpire should have asked was whether the Employee had conducted himself reasonably in making the plans he had made for travel to ensure that he could comply with the terms of the leave of absence agreement he had signed and whether, if he did not, such action was worthy of discipline and, taking into account the last chance letter and the leave of absence agreement, whether the conduct warranted dismissal.

The Umpire failed to ask himself this question and, as a consequence, failed to properly answer it. [ 21 ] If, as was asserted by the Employee he had made reasonable arrangements but had fallen ill, the onus was upon him to prove this. The notes he offered were far too ambiguous to prove any illness. They were tendered as evidence for the fact notes had been provided by the Employee not for the proof of their contents and it was an error for the Umpire to accept them, as he did, for proof of their contents.

They are, after all, hearsay and while it is true that pursuant to s. 100(1) of the Employment Standards Code, the Umpire is not bound by the rules of evidence, it is an error and a breach of natural justice not to weigh this evidence but simply to accept the notes for proof that the Employee was ill in other words as proof of their contents, when they were not tendered for that purpose and when there was no argument as to whether the notes should be admitted for their proof or what weight they should be given. In this regard, I have read the arbitration decision by Mr. Tettensor in Atlas Lumber v.

Industrial, Wood and Allied Workers of Canada found at tab 17 of the Employer’s brief and agree with the arbitrator’s analysis beginning at para 29 of his decision. [ 22 ] I question as well the Umpire’s findings in respect to one fact. The Umpire says at page 123 of the return (page 3 of his decision) that the Employee was told in respect to the first physician’s note only that ‘the note is no good’. From my review of the evidence, it seems clear that the evidence of Mr.

Lewis on behalf of the Employer was: Q -- so, just to make this as easy as possible, the one that looks like a prescription we’ll deal with secondary. I understand the document that shows North East Medical Centre is essentially a certificate for return to school or work is what it says, is that correct?

A Yes. Q Did you accept his document? A No. Q Why did you not accept this document? A It was not a substantial reason for being absent for a week. Q Okay. And did you explain this to Smaili? A I did. (Page 28, lines 16 to 26 of the Transcript) [ 23 ] While that of the Employee was: I--I--I take my --my doctor notes to Dan Lewis. I walked into my work and Gord Wolfman (phonetic) he call me -- no -- sorry, Gord Dietrich (phonetic) he call me, he says go see Dan. I went to give that -- I hand him my doctor note.

We went to the office with Dan Lewis and -- and Chris Fowler (phonetic) and he -- he says to me that doctor notes doesn’t mean anything to me. I went back to my doctor, I thought something wrong there. I got the second note, it doesn’t mean anything to him. Q When did you give them the second note, do you know the date? * * * I gave him the second note and I ask Dan Lewis to get the community -- we have community employer -- employees on the shift and he says to me, You not employee anymore.

Just right away he threw me out on the street. (Page 46, lines 14 to 21, and page 47, lines 4 to 7 of the Transcript) [ 24 ] The Umpire makes no credibility findings in respect to which evidence he accepts. While it was certainly within his jurisdiction to make such credibility findings, in my view the parties are entitled to some explanation as to why one witness’s version of events is preferred over the other’s.

Since this finding of fact was critical to the decision made by the Umpire and he may conclude is important to his reconsideration, I direct that he reconsider this finding of fact and provide reasons for his findings. [ 25 ] I therefore quash the Umpire’s decision and remit the case to the Umpire with the direction that he consider the question I have outlined in light of the facts he finds. There is no need, in my view for a rehearing. Heard on the 16 th day of November, 2010. Dated at the City of Edmonton, Alberta this 29 th day of November, 2010.

D.C. Read J.C.Q.B.A. Appearances: Dwayne W. Chomyn Neuman Thompson for the Appellant Mahmoud Smaili appeared on his own behalf Kerry A. Whittaker Alberta Justice and Attorney General for Director of Employment Standards