2011 QCCA 377, 2011 QCCA 377

Perez c. Commerce d'automobile GHA Corp. (Mazda Gabriel) 2011 QCCA 377 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-09-019877-091 (500-17-041935-084) DATE: February 28, 2011 CORAM: THE HONOURABLE FRANCE THIBAULT , J.A. NICHOLAS KASIRER, J.A. RICHARD WAGNER, J.A. FERNANDO PEREZ APPELLANT – Impleaded party v. COMMERCE D'AUTOMOBILE G.H.A.

CORP. , (doing business as Mazda Gabriel) RESPONDENT – Applicant and MARIO CHAUMONT , ex officio and LABOUR RELATIONS BOARD IMPLEADED PARTY – Respondents JUDGMENT [ 1 ] The appellant appeals from a judgment of the Superior Court, District of Montreal (the Honourable Madam Justice Eva Petras), rendered on July 6, 2009, that granted the respondent's application for judicial review of a decision by the Labour Relations Board ( Commission des relations du travail , or "the Board") that had allowed the appellant's complaint presented under

section 124 of the Act respecting labour standards [1] ("the Act ") to contest his dismissal. [ 2 ] The facts are set out in detail in the trial judgment and in the Board's decision. The appellant was dismissed on December 14, 2006, following events that took place on November 24 and 25, 2006. [ 3 ] On November 24, 2006, a Friday evening after working hours, the appellant, who was a mechanic working for the respondent, had an accident with a car belonging to one of the respondent's clients. The accident took place while the appellant was speeding (140 km/h) after he had consumed alcohol.

He was with another employee of the respondent. After the accident, the appellant was taken to the hospital, where he spent the night. [ 4 ] The next morning the appellant called a friend – the vice-president of the respondent – and made plans to meet him at a restaurant. The appellant and vice-president’s versions differ regarding what was said during the meeting. [ 5 ] The Commissioner summarized the appellant's version as follows: [ translation ] [19] During the meeting, the complainant told the vice-president about the accident and said that he hoped he wouldn't lose his job.

He was asked about how fast he had been going and whether he had been under the influence of alcohol. He answered that he had gone up to 140 km and that there was no trace of alcohol; otherwise, the police probably would have arrested him. The vice-president assured him that he would not lose his job. The complainant then said he was having family problems. His friend offered to help. [ 6 ] He reported the vice-president's version as follows: [ translation ] [20] When he arrived at Tim Horton's, the complainant told the vice-president about the accident and said that he had gone for a "joy ride".

The vice-president reacted by saying that he had no right to act that way. The complainant said that if he lost his job, his wife

would leave him. He stated that he had problems with drinking and in his marriage. The vice-president, who describes the complainant as a friend, decided to give him his support.

He told him that he shouldn’t worry about his job. [21] At the hearing, the vice-president stated that if it had been any mechanic other than the complainant, he would have fired him on the spot. [ 7 ] The Commissioner accepted the vice-president's version whereby the appellant told him that he had gone on a joy ride with a client's automobile and that he had a drinking problem as well as marriage troubles. [ translation ] [39] The vice-president's efforts to find the complainant a spot in an alcohol rehabilitation centre leads the Commission to favour his version of the meeting that Saturday morning at Tim Horton's.

The complainant, worried about his job, pleaded that he would lose his wife and explained that he had both a drinking problem and family problems. It should be added that the complainant is a friend of the vice-president. The vice-president assured him of his help and that he would not lose his job. [ 8 ] Monday morning, the appellant returned to work. The employee who had been on the joy ride with him was fired that same day. [ 9 ] On December 4, 2006, the respondent’s vice-president and its CEO met with the appellant.

The vice-president offered the appellant the chance to undergo alcohol rehabilitation treatment to deal with his drinking problem. He told him that he was prepared to lend him the money required, which could be paid back later. [ 10 ] The appellant answered that he needed to discuss the offer with his wife. [ 11 ] Over the next few days, the vice-president of the respondent called the appellant a few times to find out whether he accepted the offer made on December 4. Unable to reach the appellant, he left messages for him.

The appellant never called him back and claims that he was not informed of the vice-president’s messages. [ 12 ] During that same period, the CEO asked the appellant if he had taken any steps to sign up at an alcohol rehabilitation centre, again telling him that he had to do so if he wanted to keep his job. The appellant answered that he would contact the rehab centre as soon as he returned from holidays. [ 13 ] On December 14, 2006, having received no word from the appellant since December 4, the vice-president of the respondent decided to dismiss him.

A reading of his testimony, the credibility of which has not been challenged, reveals, among other things, the following: • The goal of offering the appellant the chance at rehabilitation was to help him; • He felt that the appellant, who failed to call him back, had betrayed him; • He could not keep on an employee who was not willing to help himself; • If the appellant had agreed to the rehabilitation treatment, he would not have fired him; conversely, the treatment was a condition to keeping his job. [ 14 ] In paragraph 26 of his decision, the Commissioner noted that the appellant stated before the Board that he did not have a drinking problem.

This of course is a fact of primary importance because it is directly related to the condition for keeping the job. [ 15 ] All these elements lead to the inevitable conclusion that the appellant's actions on November 24, 2006, when he went for a joy ride in a car belonging to a client of the respondent after having consumed alcohol, constituted serious misconduct. It must also be found that the respondent was willing to turn the other cheek to this misconduct on the condition that the appellant undergo treatment to address his drinking problem.

Finally, it must be found that the appellant misled the respondent and gained leniency by making false representations, since the claim of a drinking problem was a lie. [ 16 ] Thus, the serious misconduct committed by the appellant combines with a second instance of equally serious misconduct: an act of deception to obtain leniency from the respondent. [ 17 ] The Board completely ignored these two elements – the serious misconduct relating to the appellant's actions and the deception regarding his so-called drinking problem – deciding instead that the appellant was dismissed before the expiry of the period he had been granted to sign up for rehabilitation treatment.

According to the Board, this untimely firing was because the pride of the respondent's representative had been injured by the appellant's silence and his failure to contact him: [ translation ] [40] It should be noted that the vice-president already had in his possession all of the information alleged in the letter of dismissal. The Board observes, however, that the employer did not fire the complainant in the following days but rather in the following weeks. Thus it would appear that the employer did not intend to fire the complainant because of the accident or because he borrowed the car without permission.

Indeed we may add that, if the employer had so intended, it would have fired him on the Monday following the accident along with the technician who was with the complainant during the road test. [41] Instead, the reason for the complainant's dismissal was his silence in response to the two or three messages from the vice-president. This silence was interpreted as evidence that the complainant had manipulated him and that he had no intention to register at the Jean Lapointe centre. The vice-president's pride was injured, and his response was dictated by his personality. But let us consider the facts.

[42] Although the vice-president is certain that the complainant received his messages, no such evidence has been adduced. Admittedly, during that same period, the CEO did ask the plaintiff about his efforts to register. The complainant told him that he would begin taking steps after he returned from his trip, which was scheduled to begin on December 17, 2006. The CEO, who told him that he would be fired if he did not do so when he returned, does not seem to have informed the vice-president of this conversation.

This conclusion is based on the vice-president’s testimony that he would not have fired the complainant if he had begun his treatment after his vacation. [43] In the absence of any indication to the contrary from the employer, the complainant had the impression that there was still time to begin the registration process after he returned from his trip. The dismissal, which took place long before the expiry of the time period set by the CEO, does not constitute a dismissal for just and sufficient cause. [ 18 ] The respondent sought judicial review of the Board's decision. The trial judge ruled in its favour.

Essentially, she found that the Board had ignored relevant evidence establishing the appellant's serious misconduct and his manipulation of the respondent's vice- president regarding his drinking problem: [ translation ] [48] According to the Commissioner, the cause for dismissal was his failure to respond to two or three messages left by vice-president Mamarbachi. He found that the vice-president interpreted this silence as evidence that the complainant had manipulated him and that he did not intend to register at the Jean Lapointe centre.

According to the Commissioner, the vice-president's pride had been injured and his response was dictated by his personality. [49] But the Commissioner did not take into account the evidence establishing that the vice-president was correct: He had been manipulated by the complainant. [50] The Commissioner did not deny the seriousness of the incident, but his analysis totally ignored the complainant's irresponsible and reprehensible behaviour, which would have justified his dismissal on the spot. [51] The Commissioner focused on the rehabilitation and the time period given to begin this treatment, even though, according to the evidence, the complainant admits that he is not an alcoholic and that he used this tactic to avoid losing his job. [52] The rehabilitation treatment is not relevant. [ 19 ] In such a case, the applicable standard of judicial review is that of reasonableness.

Therefore, the highest deference is due to the Board's decision. According to the Supreme Court, the judgment of an administrative decision-maker is unreasonable if it does not represent one of the possible outcomes: [2] [47] Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions.

Tribunals have a margin of appreciation within the range of acceptable and rational solutions. A court conducting a review for reasonableness inquires into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process.

But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. [ 20 ] In Toronto (City) Board of Education v. O.S.S.T.F. (District 15) , [3] the Supreme Court states that, when determining whether an administrative decision-maker has rendered a reasonable decision, a court of justice may be required to examine the evidence to verify the basis of the contested conclusions.

To determine whether there was just and sufficient cause for dismissal, the administrative decision-maker must apply three tests, which consist of verifying whether the employee is actually responsible for the misconduct alleged by the employer, whether the misconduct gives rise to just cause for discipline, and whether the disciplinary measures selected by the employer are appropriate in light of the misconduct and the other relevant circumstances. [ 21 ] The trial judge was right to find that the Board's decision was unreasonable.

By using an automobile that did not belong to him, driving it at an excessive speed, and taking the wheel after having consumed alcohol, the appellant was guilty of very serious misconduct. This fact alone would constitute more than sufficient cause for dismissal. He aggravated his wrongdoing by deceiving the respondent with regard to his personal condition. [ 22 ] At the time of the dismissal, the respondent did not know that the appellant had lied to him about having a drinking problem. Indeed, the appellant admitted this fact in his testimony before the Board.

The appellant's deception is a fact that existed before the dismissal and one that the Board should have taken into consideration when assessing the circumstances of the dismissal. [ translation ] Thus, as provided by

section 127 of the Act respecting labour standards , which refers to, inter alia ,

section 100.12 of the Quebec Labour Code , the administrative judge [formerly the Commissioner] may consider all of the circumstances of the dismissal, including facts that occurred before the dismissal, even if the employer learned of them subsequently. With regard to facts subsequent to the dismissal, we believe that the following rules should apply: ...

(1) Regardless of the content of the letter of dismissal, the facts that occurred before and were discovered after this decision are admissible in evidence, so long as they are relevant to the decision, that is to say, intimately related to the employer's decision-making process and the employee's misconduct;

...[4] [Emphasis added.] [23] In Board of Education v. O.S.S.T.F., supra, the employer dismissed a teacher because his conduct demonstrated that he wasno longer able to perform his duties. The employee had sent his employer two scathing letters because he had not obtained the positionhe wanted. A grievance was filed to contest the dismissal and, before the hearing of the grievance, the teacher committed anotheroffence, sending a third letter that, while less abusive and threatening than the earlier ones, continued to exhibit an all-consumingbitterness.

The Supreme Court found that the arbitrators had committed a serious error by failing to take the third letter intoconsideration: 74. It is true that the third letter is, to some extent, “subsequent-event evidence” since it was written after the dismissal of Mr.Bhadauria. However it has been decided that such evidence can properly be considered “if it helps to shed light on the reasonablenessand appropriateness of the dismissal”: Cie minière Québec Cartier v. Quebec (Grievances Arbitrator), (SCC), [1995] 2S.C.R. 1095 at p. 1101.

In this case, it would not only have been reasonable for the arbitrators to consider the third letter, it was a seriouserror for them not to do so. [24] In Pro-quai inc. v Tanguay,[5] this Court reaffirmed the same principle: [translation] [48] The respondents, however, argue that this event should not be considered because it did not motivate the dismissal, the employerbeing unaware of it when he resiliated the contract on December 14, 2001. I do not share this point of view. [49] Recently, in Cabiakman v.

Industrial Alliance Life Insurance Co., the Supreme Court of Canada noted the following, at paragraph67: [67] The employer has the burden of showing that a decision that has a fundamental impact on the performance of the obligations set outin the contract of employment is fair and reasonable. As well, to determine whether a suspension was reasonable in a particular case, itmust be considered from the perspective of the point in time when the decision was made, even if the employee was subsequentlyacquitted. (See C.U.M. v.

Fraternité des policiers de la C.U.M., D.T.E. 86T-312 (T.A.).) Facts subsequent to the employer’s decisionmay be admissible in evidence, however, if they are relevant and if they can be used to determine whether the employer’s decision wasjustified at the time it was made. (See Cie minière Québec Cartier v.

Quebec (Grievances Arbitrator), (SCC), [1995] 2S.C.R. 1095.) (Emphasis added.) 6. 2004 SCC 55 , [2004] 3 S.C.R 195. [50] The present case, however, does not involve a fact subsequent to the dismissal but a fact prior to it, which was unknown by theemployer at the time but discovered later and which is highly relevant in that it illustrates just how casually Tanguay treated hisemployer's money when it suited his purposes. In the circumstances, such a fact is all the more admissible to assess both Tanguay's dismissal and his credibility.7 7. As contrasted with the situation in Audet v.

Cimatec Environmental Engineering Inc., (QC CA), JE 2003-32 (CA),where the employer, in its defence to the employee's action, raised for the first time a series of facts prior to the dismissal as grounds fordismissal. These facts, however, were well-known by the employer at the time of the dismissal. As the Court stated: [translation] "We donot affirm that an employer is limited to only those grievances invoked at the time of the dismissal.

But if, later on, the employer invokesgrievances based on prior known facts that were not raised at the time of the dismissal, the probative value of the evidence and theserious nature of these grounds could be affected" (para 6).

See also Georges Audet, Robert Bonhomme & Clément Gascon, Lecongédiement en droit québecois, 3d ed (loose-leaf) (Cowansville, Qc.: Yvon Blais, 1991) at paras 4.1.10 - 4.1.13. [25] In this case, it is clear that the [translation] "last chance" the respondent gave the appellant to undergo alcohol rehabilitation todeal with his drinking problem instead of firing him was intimately linked to the existence of such a problem.

Insofar as the condition didnot exist, there was no [translation] "last chance". [26] Based on the evidence of the serious misconduct relating to the automobile accident and the deceptive manipulation of theappellant to gain leniency, the Commission had no choice but to find that there was misconduct the nature and seriousness of which hadirremediably tarnished the employment relationship between the appellant and the respondent and to find that there was just andsufficient cause for dismissal. FOR THESE REASONS, THE COURT: [27] DISMISSES the appeal, with costs. FRANCE THIBAULT, J.A. NICHOLAS KASIRER, J.A.

RICHARD WAGNER, J.A. Mtre Robin Dejardin Robin Dejardin cabinet d'avocats Inc. For the appellant Mtre Louis Béland Mtre Jean-François Martin Dufresne, Hébert, Comeau Inc. For the respondent Date of hearing: February 23, 2011