2012 QCCA 1516, 2012 QCCA 1516

Compagnie Wal-Mart du Canada c. Verdone 2012 QCCA 1516 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No: 500-09-022866-123 ( 500-17-065837-117 ) MINUTES OF THE HEARING DATE: August 28, 2012 THE HONOURABLE ALLAN R. HILTON, J.A. PETITIONER ATTORNEY LA COMPAGNIE WAL-MART DU CANADA Mtre Theodore Goloff (ABSENT) ROBINSON SHEPPARD SHAPIRO RESPONDENT ATTORNEY LOUISE VERDONE COMMISSION DES RELATIONS DU TRAVAIL Mtre Pierre-Yves Gagné (ABSENT) RIVEST TELLIER BRETON MIS EN CAUSE ATTORNEY MICHAEL EDWARD

MOTION FOR LEAVE TO APPEAL FROM A JUDGMENT RENDERED ON JUNE 22, 2012, BY THE HON. MADAM JUSTICE MARIE-CHRISTINE LABERGE OF THE SUPERIOR COURT, DISTRICT OF MONTREAL Clerk: Annick Nguyen Court Room: ——- HEARING Continuation of August 27, 2012, hearing. Counsel are advised that judgment will be rendered on the minutes of the hearing and their presence in Court is not required. Judgment – See page 3.

Annick Nguyen Clerk JUDGMENT [ 1 ] The applicant seeks leave to appeal a judgment of the Superior Court that dismissed its motion to judicially review a decision of the respondent board that was rendered by the co-respondent Louise Verdone.

That decision granted a complaint filed by Michael Edwards, an employee of the applicant, against his dismissal arising out of incidents of alleged workplace violence, and substituted a lesser sanction contemplated by the applicant's disciplinary policy. [ 2 ] The decision under review in the Superior Court describes the facts giving rise to the dismissal and the resulting complaint in considerable detail after eight days of hearing. As the Superior Court judge noted at paragraph [6] of her judgment, none of the parties before her questioned the accuracy of that description of the facts.

Rather, what was mainly in issue before the motion's judge was the assertion that the decision of the respondent board merited revision by way of dismissal of Mr. Edward's complaint because of the imposition of a criminal law burden of proof on the applicant rather than that of a balance of probabilities. That error, it was argued, resulted in a flawed assessment of the evidence. [ 3 ] The applicant had invoked two grounds of dismissal that would have occurred on May 6 and May 11, 2009 prior to its dismissal of Mr. Edwards on May 12 that year.

The conclusion at which the decision-maker arrived was that the incident of May 6 had been proved, but not that of May 11.

[ 4 ] This event was that when Mr. Edwards came across another employee who was involved in the other incident on May 6, Mr. Jean-Bernard, he would have said that both the latter and another employee also involved, Mr.

Dieu-Seul would have to "coucher sur ses genoux" if the applicant fired him. [ 5 ] The reviewable error was said to emerge from the decision-maker having written the following with respect to the May 11 incident: • there was contradictory evidence as to its occurrence and if the words in question were used, what they meant, which, for the decision maker "…soulève un doute quant à sa véracité…"; • other elements of proof led the decision-maker "…à donner le benefice du doute à la version de M.

Edwards"; • by way of conclusion, the applicant had not shown "…de façon prépondérante et convaincante" the occurrence of the May 11 incident. [ 6 ] It is essentially from the foregoing that the applicant argues judicial review is warranted, for if the decision-maker had properly concluded, from its perspective, that the May 11 incident had happened, then on an application of the proper standard of proof, Mr.

Edwards' complaint would have been dismissed. [ 7 ] With great respect, I do not subscribe to the applicant's extensive argument. [ 8 ] As the motion's judge noted, the decision-maker also wrote in her decision, prior to the comments referred to in paragraph [5] above, that it belonged to the applicant to "…démontrer, de façon prépondérante, une cause juste et suffisante de congédiement". [ 9 ] No one who testified before the decision-maker knew what the expression "coucher sur ses genoux" meant in the context in which Mr. Jean-Bernard testified that Mr. Edwards uttered it, including Mr. Jean-Bernard.

The decision-maker also acknowledged not knowing what it meant, and the motion's judge remarked that it was improbable Mr. Edwards would have used this expression as he is an Anglophone. The decision-maker therefore had every reason to believe Mr. Edwards when he testified he had no idea to what it would refer. [ 10 ] It is apparent that the applicant had not proved the existence of the May 11 incident to the satisfaction of the decision-maker.

Moreover, I do not see the addition of the word "convaincante" as importing a criminal law standard of proof, especially since she correctly described the applicable standard of proof in the introductory portion of her analysis. It is hard to imagine that a member of a specialized tribunal such as the respondent board would make so egregious an error as that suggested by the applicant. [ 11 ] There is therefore no issue presented for consideration that justifies a hearing by the Court of Appeal. The motion for leave to appeal is therefore dismissed with costs. ALLAN R. HILTON, J.A.