2018 QCCQ 5226, 2018 QCCQ 5226

CNESST c. Azam 2018 QCCQ 5226 COURT DU QUÉBEC CANADA PROVINCE DE QUEBEC DISTRICT OF GATINEAU « Criminal and Penal Divison » N° : 550-63-000044-174 DATE : July 4th, 2018 ______________________________________________________________________ PRESIDED BY MADAM JUSTICE CHRISTINE AUGER, J.P.M. ______________________________________________________________________ CNESST Poursuivant c.

ALEX AZAM Défendeur ______________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The Defendant is accused as of April 1 st 2017 of having refused to furnish to the Commission des normes, de l’équité, de la santé et de la sécurité du travail, a document that the Commission was entitled to receive in virtue of

section 109 of the

Loi sur les normes du travail [1] . [ 2 ] The Defendant owns and operates Le Pub du Bon Vivant for a period beginning approximately in December 2014. The Prosecution evidence is comprised of testimony from the operations manager as well as documentary evidence.

The Defendant maintains that he was unable to furnish the requested documents by no fault of his own as he was a victim of a robbery in his vehicle and the said documents where in the briefcase stolen at that time. [ 3 ] He insists that he has shown the required cooperation with the Prosecution and that there is a bias and/or refusal to acknowledge this cooperation by the inspector of the Commission. Mr. Azam maintains that he has acted in good faith in having exhausted at possibilities of producing these documents and alleges bad faith on the part of the Prosecution in targeting his business. [ 4 ] Mr.

Azam is self-represented at the hearing for this particular matter but has legal representation for corollary litigation related to this issue before another jurisdiction. The Court was reassured that it was Mr. Azam’s wish to proceed without representation for the proceedings before this Court. [ 5 ] Jocelyn Routier testifies for the Prosecution as relates to his training, knowledge, and use of the computer program Visual Touch used during the course of the administration of the restaurant pub operated by 8300810 Canada Inc.

He was hired in January 2014 and became manager of the restaurant shortly thereafter. [ 6 ] Mr. Azam is the sole administrator of this company as appears from the evidence [2] . [ 7 ] Essentially, Mr. Routier testifies as to the use and operation of this program by the staff of the restaurant.

The task of the server is to enter each order manually, which therefore communicates with the kitchen to process the entry. [ 8 ] This program also produces information for billing to the client. [ 9 ] More importantly, it will produce information for each server per day or period as appears from the Employee Time Activity Report [3] . The document shows for a given period, for a server, the number of shifts, guests served, average check/guest and total sales (day and night).

Essentially, this report will reproduce all the information that the program has processed to compile the total sales to date. [ 10 ] In the course of his duties in the day to day operations of this business, as manager, he has access to this program for which he has received all required training by the employer. It is his testimony that the program stores all the transactions and is able to produce past information at will.

He was able to access information on May 17 2016 for a salaried employee under his responsibility, as appears from the Activity Report for the retroactive period of April 1, 2015 to May 15, 2016. [ 11 ] There are different access codes to the program with cards or manual transactions. The restricted access is for clerk/server, whereas there is oversight access for the manager and lastly, the owner code that permits access to all program information.

[ 12 ] Although the cross-examination of this witness did willingly reveal evidence of substance abuse during the course of the employment, the Court does not set aside the testimony of Mr. Routier that is deemed truthful and credible. [ 13 ] The inspector Portilla testifies as well for the Prosecution as to the mandate he was given on or about October 13 2016, to investigate certain irregularities as relates to possible work and labor violations, in particular the business practices in the treatment of the sharing of tips.

Essentially, 25% of total after tax sales were due to the employer. [ 14 ] It is important to stress and reiterate that the matter before the Court is not related to any violations as to the business practices, but rather to the refusal to remit documents to the CNESST. [ 15 ] Proceeding according to his mandate, Inspector Portilla contacts the complainant as well as the employer to obtain information, including and not limited to certain documents. He therefore forwards to Mr.

Azam as president and sole administrator of 8300810 Canada Inc. a letter dated January 10 th 2017 [4] . [ 16 ] At the heart of the present litigation is the communication of the registre des ventes de repas et de boissons.. This activity report is pertinent to the investigation in order to establish the 25% after-tax amount given to the employer for shared tips. [ 17 ] On February 10 th , the inspector Portilla does receive a USB key with most of the information requested except for the activity report for sales of food and drink. [ 18 ] To justify the missing documents, Mr.

Azam discloses to the inspector that he was victim of a burgerly in his vehicule on January 25 th 2017, while he attended at his accountant’s office and brings a Gatineau police report number 2017-4032 [5] . Among the items stolen were his briefcase, gym apparel and Canadian currency. [ 19 ] Based on the assurance he had received by Jocelyn Routier that Mr. Azam could easily access the information retroactively from the Visual Touch program, on April 4 th 2017, inspector Portilla forwards by registered mail an additional request in writing to Mr.

Azam asking for the Rapport de ventes indiquant les taxes applicables pour chaque salarié par période de paie du 2015-10-25 au 2017- 01- 15 [6] . The required date of transmission for said documents was April 20 th 2017. [ 20 ] Not having had received the requested documents at the prescribed date, the statement of offence was drafted and the litigation is before the Court. At the time of trial, the documents had not been remitted.

The infraction of strict liability having been proven by the Prosecution, on the evidence beyond a reasonable doubt, the Court turns to the defense of due diligence presented by the Defendant. [ 21 ] The cornerstone of the Defendant’s defense is his good faith and his inability to provide said documents because of the burglary on January 25 th 2017 in his vehicle while he was at his accountant’s office. [ 22 ] Essentially, in order to remedy the issue of the tip sharing agreement, he testified not being able to produce the activity report per employee per time period. He maintains that he tried to explain to Mr.

Portilla why he could not produce the document but that the inspector was unwilling to accept the explanation. [ 23 ] The past issues and conflicts between Mr. Azam and/or his attorney and Mr. Portilla, at the time of trail become irrelevant due to the fact that Mr.

Azam is able to testify before the Court, produce witnesses and any document he wishes in order to establish his defence of due diligence. [ 24 ] The established case law [7] requires that the Defendant establish on a balance of probabilities that he actively pursued all reasonable means at his disposal to produce the said documents in order to obtain the acquittal of the charges. [ 25 ] What evidence did the Defendant produce in order to establish this due diligence defense? [ 26 ] First and foremost, there are documents stolen from the vehicle in his briefcase.

He is therefore unable to produce the handwritten time-sheets as well as the activity report for after-tax sales for each employee per pay period that cannot be generated from the program. [ 27 ] The Defenant explains that he did not have an appointment with his accountant on that day which is why he left his briefcase containing information relating to the present matter in his car. [ 28 ] On or about April 4 th , the Defendant states that he met with Mr.

Portilla and his lawyer to discuss the requested documents, wherein the Defendant reiterated, as he had before the Court, that if he had the documents, he would gladly give them. [ 29 ] But the steps taken to explain why the documents cannot be produced is not the evidence to be analysed in virtue of the case law, but rather what steps were taken to obtain the documents. [ 30 ] On this issue, the Defendant states that he did in fact contact the technician from Visual Touch and as it turns out, the Defendant did not have the proper version of the software. [ 31 ] According to Defendant’s testimony, the result of the technician assessment was that the program was not saving the transactions making it impossible to generate with activity report.

Mr. Azam testifies that now the problem is resolved and the program is functioning as it should. [ 32 ] Can this version and the evidence be deemed credible so as to constitute due diligence? [ 33 ] Firstly, where is the vital evidence from Visual Touch as to a malfunction or ineffective software that only surfaces at the end of the testimony before the Court? Where is the evidence that this information was given to the inspector so as to verify with the technician

as to the root of the malfunction? [ 34 ] Where is the supporting evidence either establishing the name of the technician, details as to the visits of the technician to the restaurant, phone records, calls, correspondence, billing or any other proof of installation of new version of software? [ 35 ] Clearly, this is exactly the type of evidence that would reasonably be sought after by the Defendant and his attorneys to support the failed software issue during their meetings and written exchanges with the CNESST. [ 36 ] No such evidence is submitted to the Court, neither by documentary, testimonial evidence nor otherwise. [ 37 ] Secondly, from an objective standpoint, the Defendant should have been extremely unsatisfied that his software was not registering transactions as it should and that it could not generate adequate activity records required for accounting purposes for prior taxation years such as 2015 and 2016? [ 38 ] The Defendant, throughout the trial, is very passionate and vibrant to support his claim of bad faith and targeting on the part of the CNESST.

Where is this same indignation on the part of the Defendant as relates to the failed Visual Touch software program that was purchased? [ 39 ] Thirdly, the evidence is established that the Defendant operated this business since December 2014.

How could the Defendant not be aware until the early months of 2017 that his software was for all intents and purposes, from a business standpoint, not able to produce vital financial information for taxation and accounting purposes? [ 40 ] No such evidence is provided. [ 41 ] The evaluation of the due diligence [8] required from the Defendant is that of a reasonable person placed in the same circumstances, this is involved in a specialized area of business that is subject to various legal obligations. [ 42 ] This requires on the part of the Defendant to be vigilant, attentive and proactive in all the measures that are taken to ensure that his business practices are in keeping with all of the obligations prescribed by law. [ 43 ] The evidence submitted by the Defendant is no more credible than it is realistic or probable. [ 44 ] On the basis of the established case law and upon the analysis of all of the evidence submitted to the Court, the defense of due diligence has not been established on a balance of probabilities by the Defendant. [ 45 ] The Prosecution evidence is established beyond a reasonable doubt on all of the elements of the infraction.

FOR THESE REASONS , the Court: DECLARES the Defendant guilty of the infraction as charged. __________________________________ JUSTICE CHRISTINE AUGER, J.P.M M e Guillaume Lavoie Commission des normes, équité, santé et sécurité du travail Prosecution Mr. Alex Azam Self-represented Date of hearing: May 8th 2018