2010 QCCA 2137, 2010 QCCA 2137

Unofficial English Translation Deschênes c. Valeurs mobilières Banque Laurentienne 2010 QCCA 2137COURT OF APPEAL CANADAPROVINCE OF QUEBECREGISTRYOF MONTREAL No.: 500-09-019150-085(500-17-041072-086) DATE: NOVEMBER 22, 2010 CORAM:THE HONOURABLE J.J. MICHEL ROBERT, C.J.A. LISE CÔTÉ, J.A. NICHOLAS KASIRER, J.A. JACYNTHE DESCHÊNESAppellant – Applicantv.

VALEURS MOBILIÈRES BANQUE LAURENTIENNERESPONDENT – RespondentandCOMMISSION DES RELATIONS DU TRAVAILMISE EN CAUSE JUDGMENT [1] THE COURT; - On the appellant’s appeal from a decision of the Superior Court (the Honourable Madam Justice DianeMarcelin, dated October 16, 2008), District of Montreal, which dismissed her application for judicial review; [2] Having examined the file, heard the parties, and on the whole deliberated; [3] GRANTS the motion to file the decision of Commissioner Chaumont bearing number 2009 QCCRT 365 , 2009QCCRT 0365 rendered on August 17, 2009; [4] DISMISSES the appeal, the whole without costs, in view of the circumstances.

J.J. MICHEL ROBERT, C.J.A. LISE CÔTÉ, J.A. NICHOLAS KASIRER, J.A. Ms. Jacynthe DeschênesSelf-represented Mtre Jean-Marc BrodeurLoranger, MarcouxFor the respondent Hearing date: March 11, 2010

REASONS OF THE CHIEF JUSTICE [ 5 ] Following her failed bid for reinstatement at her workplace, the appellant filed a complaint for wrongful dismissal with the Commission des relations du travail (hereinafter “CRT”). Her complaint was dismissed. After 73 days, she filed an application for judicial review with the Superior Court (the Honourable Madam Justice Diane Marcelin, on October 16, 2008), District of Montreal, [1] which the judge denied on the ground that it had not been filed within a reasonable period of time. The appellant, who was not represented by counsel, obtained leave to appeal from this decision.

FACTS AND PROCEEDINGS [ 6 ] The appellant had been employed by the respondent as an investment advisor since December 1, 1998, specifically in the securities investment field.

Her compensation was based on the commissions from the sales she generated. [ 7 ] On June 16, 2003, the appellant was dismissed following a complaint filed by a client who lost a significant amount of money during the three years in which the appellant managed her funds. [ 8 ] On August 1, 2003, she began working for Industrial Alliance Securities Inc. (hereinafter “Industrial Alliance”), a competitor of the respondent, where she performed the same duties but was considered self-employed. [ 9 ] The appellant filed a first complaint for wrongful dismissal under

section 124 of the Act respecting labour standards (hereinafter “ ALS ”). [2] She was represented before the CRT by Mtre Guy Gamache, counsel for the Commission des normes du travail (hereinafter “CNT”). [ 10 ] On April 7, 2006, Commissioner Chaumont of the CRT allowed the appellant’s complaint for dismissal without good and sufficient cause and ordered her reinstatement [TRANSLATION] “with all her rights and privileges” within eight days following service of the decision.

In other respects, the CRT reserved jurisdiction to determine [TRANSLATION] “any other remedial and quantum measures”. [ 11 ] The appellant and the respondent, despite many exchanges and a meeting on April 18, 2006, to discuss the conditions of her return, could not agree on the terms of her reinstatement. [ 12 ] During this meeting, the respondent required that the appellant leave her job at Industrial Alliance so that [TRANSLATION] “her chartered administrator licence” could be transferred and proposed the following terms to her: [TRANSLATION] [T]he same commission

schedule and a guaranteed salary equal to the average income earned over the three years prior to her departure, pending an evaluation of her losses and a determination of the assets under management that the complainant is likely to bring into the company. [3] [ 13 ] The appellant set certain requirements of her own before returning to her job. Their dispute concerned primarily the assets under management that would be transferred to the appellant. The parties could not reach an agreement. [ 14 ] On July 18, Mr.

Ruest, CFO for the respondent, stated in a letter to the appellant that he deemed that she had waived her reinstatement and that her conduct [TRANSLATION] “amounts… to leaving [her] job voluntarily and/or resigning” [4] and that, in the alternative, he intended to terminate her employment for unjustified absenteeism. [ 15 ] Thus, the appellant never returned to work for the respondent. On July 31, 2006, she filed a second complaint with the CRT, in which she contested her dismissal of July 18, 2006. This complaint was dismissed on November 22, 2007 (hereinafter the “Zaïkoff Decision”).

On February 7, 2008, she filed an application for judicial review before the Superior Court, which denied it on the ground that it had not been filed within a reasonable period of time. Time elapsed prior to the application for judicial review [ 16 ] The parties agree that the appellant had knowledge of the Zaïkoff Decision on November 26, 2007, the date on which she wrote an email to counsel for the CNT requesting a new hearing before Commissioner Chaumont, an appeal from the Zaïkoff Decision, and a filing of Commissioner Chaumont’s decision in Superior Court for contempt of court.

She wrote: [TRANSLATION] This letter is an official request for a hearing before Commissioner Chaumont as soon as possible. I also ask that measures be taken to appeal from the decision of Commissioner Zaïkoff. I believe that a 50% reduction in income, which

she denied us the opportunity to prove, and the withdrawal of privileges constitute significant changes in working conditions which contradict her conclusions. It seems clear to me that the solution to my case was to transfer it to Superior Court for contempt of court, which the [Commission des] Normes du travail refused to do, causing me significant financial harm. [5] [ 17 ] On November 27, 2007, Mtre Gamache replied to her that he was analyzing the decision in light of the relevant case law, while taking her comments into account. He explained that the decision rendered by the CRT was final under

section 130 of the ALS , that the only available recourse was an application for judicial review, and that the application had to be filed [TRANSLATION] “within a time period established by case law at thirty days from the date of the decision”. [6] Then, on December 7, 2007, he informed her that the Commissioner had properly exercised her jurisdiction, that he did not intend to file an application for judicial review, and that she could file such an application with a representative of her choice or on her own.

The appellant subsequently asked to meet with representatives of the legal department, as she still wished to challenge the ruling. [ 18 ] On December 12, 2007, Mtre Tellier, deputy director of the CNT’s legal department, replied to her application by email with a copy sent by registered mail, in which she reiterated the CNT’s refusal to file for a judicial review.

She clearly reiterated the 30-day period established by case law to file the application in question: [TRANSLATION] … In this regard, we fully reiterate Mtre Guy Gamache’s comments to you on this matter which were sent to you in an email dated December 7, 2007. As was brought to your attention in said email, you can, if you wish, either on your own or with a representative of your choice, exercise the legal recourses you deem appropriate.

If you intend to do so, be aware that your proceedings must be filed with all due dispatch (see email dated 27-11-07: 30-day time limit). … [ 19 ] The appellant insisted on having a meeting and asked once again to know the reasons for the CNT’s refusal, in particular in an email dated January 15, 2008, where she stated that any replies from the legal department would be sent to the Office of the Quebec Ombudsman. [7] [ 20 ] The appellant filed her initial proceedings in the office of the clerk of the Superior Court on February 7, 2008, i.e. 73 days after learning of the decision.

She mistakenly filed against the CNT rather than the CRT, and her amended proceedings were filed on March 8, 2008, i.e. 102 days after learning of the decision. [8] [ 21 ] On October 16, 2008, Marcelin J. of the Superior Court granted the respondent’s motion to dismiss and dismissed the appellant’s amended application for judicial review. [ 22 ] Marcelin J. pointed out that the appellant knew as of November 27, 2007, that she had to act within 30 days and, as of December 12, 2007, that she would not be represented by the CNT’s counsel.

She also mentioned that the appellant had access to all the case exhibits as of December 18, 2007. [9] In her opinion, the 73 days that had elapsed between her learning of the CRT decision and the filing of proceedings was unreasonable and unjustifiable, even though the appellant was not represented by counsel. [ 23 ] On appeal, the appellant sought to file in evidence the decision of Commissioner Mario Chaumont, rendered on August 17, 2009, in which the CRT ruled on the losses incurred by the appellant between the wrongful dismissal of June 16, 2003, and the termination of the employment relationship on July 18, 2006, and ordered the respondent to pay to the appellant a sum of $162,088.10 for the loss of commissions, an indemnity for the professional assistance she had resorted to, and interest on these sums. [10] GROUNDS OF APPEAL [ 24 ] The appellant raises seven grounds in the form of arguments. [11] The respondent sums them up in three questions that should be answered as they thoroughly cover the issues in the case at bar: 1.

Did the Superior Court err in fact and in law in granting the respondent’s motion to dismiss? 2. Did the CRT err in fact and in law in dismissing the appellant’s complaint? 3. Did the CRT err in fact and in law in refusing to allow evidence of the compensation of a colleague of the appellant? [ 25 ] The appellant contends that during the 73 days that elapsed she tried to obtain information that she deemed essential to exercising her recourse.

She argues that she did not understand the refusal of the CNT’s legal department to apply for a judicial review of the CRT decision when, according to her, false wage information had been presented by the respondent. [ 26 ] She reiterates her main argument, i.e., that the CRT erred in not concluding that the guaranteed salary offered by the respondent upon reinstatement, which she evaluates at $54,198.48, constitutes the foundation of a constructive dismissal.

As the stock market declined by 40% between 2000 and 2003 and rose by 70% between 2003 and 2006, sales should have provided her with income in the order of $150,000 in 2006. [12] [ 27 ] She also argues that the Commissioner refused to admit into evidence the monthly production reports of another investment advisor, Ms. Mathieu, on the ground that the evidence was not relevant. ANALYSIS

1. Did the Superior Court err in fact and in law in granting the respondent’s motion to dismiss? [ 28 ]

Article 835.1 C.C.P. provides that an application for judicial review must be filed within a reasonable time period. In Loyer v.

Commission des affaires sociales , our Court held that the reasonable period for filing such an application is 30 days, save under exceptional circumstances. [13] [ 29 ] In Loyer , three criteria were established in the reasons of Dussault J.A.: (1) save under exceptional circumstances, a 30-day time period must be considered reasonable, (2) the onus is on the appellant to demonstrate that such circumstances exist, and (3) this justification must appear in the proceedings. [14] [ 30 ] Determining the reasonableness of a time period is a question of mixed fact and law, as it requires “applying a legal standard to a set of facts”. [15] Although Housen v.

Nikolaisen was not unanimous as to the standard for intervention that applies to courts of appeal when faced with a judgment on a question of mixed fact and law, [16] our Court adopted the position of the majority and held that a standard of palpable and overriding error should apply, unless an extricable error in principle was made. [17] [ 31 ] In Bose v. Commission des lésions professionnelles , [18] a factual situation similar to the present case was before this Court in the application of the criteria set out in Loyer .

The Court, per Lemelin J.A., stated that a set of facts, which when considered in isolation are not necessarily exceptional, may have a cumulative effect justifying a time period of more than 30 days. Given that the appellant had filed her application for judicial review [TRANSLATION] “promptly”, she deemed the application admissible though 98 days had elapsed. [19] [ 32 ] A number of cases follow Loyer more restrictively.

Periods of 63 [20] and 56 [21] days were deemed unreasonable in more recent cases where there was no compelling reason justifying the time elapsed. [ 33 ] In fact, time periods far longer than 30 days can be accepted as long as they are justified by exceptional circumstances, taking into account the applicant’s promptness and diligence. [ 34 ] It must therefore be determined whether the Superior Court committed a palpable and overriding error in concluding that the appellant was not faced with such circumstances. [ 35 ] The Superior Court reviewed all the steps taken by the appellant between November 26, 2007, and February 7, 2008.

It concluded that communications between the appellant and the CNT had but one purpose: [translation] “she wanted to know why false wage information did not justify a judicial review”. It held that this did not reasonably justify postponing the filing of her application for judicial review. [22] Marcelin J. wrote: [TRANSLATION] [35] … She knew since December 12, 2007, that the legal department would not represent her. She obtained records from the CRT on December 18, 2007, and could from then on prepare her proceedings. She did not do so.

She last communicated with the legal department on January 15, 2008, but did not file her application for judicial review until February 6. [36] In any event, even these communications do not justify the time elapsed. She knew clearly as of December 12, 2007, that she would not be represented by the CNT and she knew as of November 27, 2007, that an application for judicial review had to be filed within 30 days, as established by the Court of Appeal in Loyer v.

Commission des affaires sociales . [Reference omitted.] [ 36 ] The appellant may not benefit from the fact that she was not represented by counsel when she filed an application for judicial review, especially since she had been duly notified by the legal department that had acted on her behalf before the CRT that the time period for filing an application for judicial review was 30 days.

In this regard, the Alberta Court of Appeal stated that unrepresented parties must accept the consequences of not retaining counsel and that the courts must not provide them with disproportionate resources: Unrepresented litigants are entitled to justice, but they are not entitled to command disproportionate amount of Court resources to remedy their inability or unwillingness to retain counsel. … [23] [ 37 ] Unrepresented parties must not, however, be unfairly disadvantaged.

The Canadian Judicial Council’s Statement of Principles on Self-represented Litigants and Accused Persons states that judges must adopt specific measures to prevent an unfair disadvantage to self-represented persons. [24] However, in the case at bar, I am of the opinion that the appellant did not establish exceptional circumstances justifying the time she took to act.

That being said, she did not establish a palpable error that would warrant setting aside the Superior Court judgment. [ 38 ] As soon as the CRT decision was rendered, the appellant was informed by counsel for the CNT of its refusal to take further action in the case and of its professional opinion with respect to an application to review the decision. At that point, she needed to act promptly, which she failed to do. [ 39 ] At the hearing, the appellant argued that she relied on the CNT’s counsel to exercise her recourses before the CRT.

She contends that counsel did not give sufficient reasons for the refusal to bring an application for judicial review of the CRT decision. She demanded answers, as indicated by the title of her email dated January 15, 2008, in which she informed counsel that she would send any answers to the Office of the Quebec Ombudsman.

It is clear from reading the email that the appellant did not accept counsel’s decision not to file an application for judicial review and that, at the time, she did not intend to file an application herself. [ 40 ] Although the power of representation of counsel for the CNT following the filing of a complaint before the CRT must be exercised fairly, [25] the ALS does not create an obligation to represent an employee when a complaint is filed. [26] Moreover, the obligation to act fairly does not oblige counsel for the CNT to challenge the CRT’s decision if it deems the decision valid.

[ 41 ] In light of this analysis, I can see no palpable and overriding reason to overturn the judgment of the Superior Court, which deemed that the appellant did not face exceptional circumstances reasonably justifying a period of 73 days to file proceedings. Therefore, the appellant’s argument that the refusal of counsel for the CNT to file a new application for judicial review or his failure to provide explanations justified the time it took to act cannot succeed. 2.

Did the CRT err in fact and in law in dismissing the appellant’s complaint? [ 42 ] Even if the answer to the previous question ended the appellant’s recourse, I believe it is worthwhile to examine the decision of the CRT, which had to determine whether the appellant’s failed reinstatement was the result of a constructive dismissal or a resignation. [ 43 ] In Dunsmuir v. New-Brunswick , [27] the Supreme Court observed that it is not necessary to engage in a fresh analysis of the applicable standard when it has already been established by jurisprudence. In Kopczynski v.

RSW inc. , our Court held that handling complaints under

section 124 of the ALS is at the core of the specialized competence of the CRT and justifies application of the standard of patent unreasonableness, now the standard of reasonableness. [28] [ 44 ] In Farber v.

Royal Trust Co. , the Supreme Court set out the following criteria to define the notion of constructive dismissal: (1) a unilateral employer decision, (2) substantial changes to the essential terms of an employee’s contract, (3) the employee’s refusal to agree to the changes made, and (4) the employee’s departure. [29] [ 45 ] In its decision, the CRT dismissed the appellant’s second complaint on the ground that the respondent offered the appellant both a guaranteed salary and an evaluation of her losses. [30] It concluded that the appellant hindered her reinstatement by demanding a portfolio equivalent to the one she held at the time of her dismissal and by not resigning from Industrial Alliance. [31] It deemed that the appellant had not been dismissed but, rather, that she had resigned.

The CRT wrote: [TRANSLATION] [82] Lastly, the evidence shows that it is the complainant who set conditions for her reinstatement, such as having on the first day of her reinstatement a portfolio equivalent to the one she had at the time of her dismissal in 2003 plus compensation for lost wages. It was agreed before the Commission that both of these matters would be discussed further if necessary. The complainant herself said that she simply wanted to be “prioritized”, which implies a process over a certain period of time.

Perhaps LBS would not have kept its promises but, at this stage, that is pure speculation. [83] In refusing to return to work under these conditions, the complainant waived her reinstatement. ... [84] … She waived her reinstatement, which amounts to a resignation. [ 46 ] In analysing the conditions of reinstatement, when there is a change in circumstances between the dismissal and the reinstatement, is the employee entitled to the conditions that prevailed at the time of the employee’s departure or to the conditions to which the employee would have been entitled had the employee never been dismissed? [ 47 ] There are precedents for choosing the first avenue. [32] In these cases, the stated objective – to protect employees’ rights – seeks to prevent employees from being reinstated under conditions unfavourable to them.

In a recent decision, Doyon v. Entreprises Jacques Despars inc. , the CRT interpreted “reinstatement” differently: [TRANSLATION] Reinstatement of an employee means that the employee must be where he or she would now be had he or she not been dismissed. [33] [ 48 ] This decision is based on the Supreme Court’s ruling in Upper Lakes Shipping Ltd. v.

Shehan , in which Pigeon J. wrote that a reinstated employee “is restored to all of the rights and privileges which were his before he was discharged plus any new rights and privileges which would have accrued to him in the meantime ...” [34] [ 49 ] Similarly, in Rompré v. Costco Wholesale Canada Ltd. (Costco Trois-Rivières) , the CRT, ruling on the quantum, concluded that the arbitrator should have ordered the claimant’s reinstatement with a salary increase and the performance bonus she would have received had she never been dismissed. [35] [ 50 ] In 2009, this view of the remedies under

section 128 of the ALS was also endorsed by the CRT, which recognized that employment conditions can change over time. [36] [ 51 ] For example, in cases of arbitration arising from a collective agreement concerning an employer’s failure to accommodate a disabled employee, [37] or complaints under

section 81.15.1 of the ALS [38] concerning maternity leave, the dynamic reinstatement principle applies. [ 52 ] The legislature is presumed not to speak without purpose. [39] One may therefore question whether the absence of any mention of dynamic reinstatement in

section 128 of the ALS , when it is found in sections 79.4 and 81.15.1 of the ALS and in

section 242 of the Act respecting industrial accidents and occupational diseases , [40] indicates that it should not apply. [ 53 ] On the contrary, a broad and liberal

interpretation of

section 128 of the ALS , in the context of the other sections of the Act , suggests that reinstatement should have a dynamic connotation. Our Court has, moreover, already endorsed this approach: [T]he powers set out in

section 128 of the Labour Standards Act are broad, remedial, and reparative in nature. This is a flexible, comprehensive and integrated system: any one or combination of the alternatives may be granted by the Commissioner. The structure, wording, and character of the law require that these provisions be given a broad and liberal

interpretation in order to achieve their

purpose: to fashion fair and reasonable orders to remedy the losses and correct the injustices suffered by an employee who has been dismissed without good and sufficient cause. [41] [ 54 ] It is therefore not a matter of setting aside the principles whereby dismissal is deemed never to have taken place. As in civil liability law, where the Latin maxim restitutio in integrum is a guiding principle, reinstated employees are entitled to the same conditions that prevailed at the time of their dismissal.

However, the notion of full restitution must be adapted to the contemporary context of employees whose compensation varies, for example, according to their performance or to the economic activities of their employer. [ 55 ] Out of fairness to the employer, the same logic applies to situations that would reduce an employee’s compensation during their absence. Static reinstatement could prove to be unfair to an employer in situations where falling market prices would harm its competitiveness if it could not adjust its salaries accordingly. [ 56 ] Two final issues must be resolved.

a) How can dynamic reinstatement conditions be established within a short time period, usually eight days? [ 57 ] As counsel for the respondent stated at the hearing, it can be difficult for an employer to prepare a dynamic reinstatement proposal in time. The CRT could automatically and exhaustively establish these conditions. However, to ensure that mistakes do not occur and that employers have the flexibility they need, author Nadeau advises against this approach. [42] It is better to let the parties try between them to establish the reinstatement conditions.

If a compromise cannot be reached in time, the parties will have to give priority to the employee’s return to work, while reserving their right to make adjustments at a later date, as discussed in the next section.

b) What should be done in the case of a disagreement between an employer and an employee? [ 58 ] The issue of disagreement is at the heart of this dispute. Three avenues are open in such a situation: a motion for contempt of court in Superior Court under

section 129 of the ALS , a new complaint for wrongful dismissal under

section 124 of the ALS , or a challenge of the conditions under the CRT’s reservation of jurisdiction to assess the damages. I would note first that the last option is best suited to the circumstances. [ 59 ] In the case at bar, the CNT was reluctant to file a motion for contempt of court on behalf of the appellant. These concerns are echoed in Fuller v .

Molson Breweries , where the Superior Court pointed out the risks of contempt proceedings being incorrectly brought or failing for procedural reasons, bringing both the arbitration process and the Court into disrepute. [43] The author Nadeau shares this concern, although he believes that contempt proceedings are a recourse that can give meaning to a reinstatement order. [44] [ 60 ] Addressing the issue in the context of a new complaint for wrongful dismissal, as in the case at bar, also poses a challenge.

First, to consider the matter as a new dismissal cements the termination of the employment relationship instead of re-establishing it. The purpose of a reinstatement order is for the parties to resume their employment and work relationship. Filing a new complaint in the event of a disagreement may foster antagonism and delay reinstatement while the complaint is being handled. [ 61 ] In addition, such a complaint requires that the extent of the changes in conditions be assessed in order to grant the dynamic reinstatement to which the employee is entitled.

However, such an assessment must also be performed if the employee chooses the third approach, i.e. challenging a posteriori his or her reinstatement conditions with the CRT. A new dismissal complaint therefore results in an unnecessary submission of the entire file to another Commissioner. [ 62 ] Thus, in the event of a disagreement between the parties when a reasonable offer has been tabled, the employee should return to work, while reserving his or her right to bring before the same CRT Commissioner a question concerning the conditions of reinstatement or a challenge of the conditions proposed by the employer.

In fact, the urgent and complex nature of each case requires that a compromise be reached quickly to allow for reinstatement. This may entail that the employee return to work under less favourable conditions than those to which the employee is entitled, but without allowing the employee’s rights to be infringed, as he or she can always apply to the CRT for compensation for damages. [ 63 ] The challenge can be made at the hearing on the quantum of damages suffered by the employee during the period of dismissal, or at a later date if that hearing has already taken place.

The challenge concerns only losses subsequent to reinstatement. This approach must be favoured because it is faster, it is at the core of the specialized jurisdiction of the CRT, and is less risky than contempt proceedings. [ 64 ] In the case at bar, Commissioner Chaumont specifically invited the parties to bring before him any issue in the event of disagreement on the conditions of reinstatement. [45] [ 65 ] In light of the foregoing, I cannot find that the CRT made a palpable and overriding error in its analysis of the elements of wrongful dismissal established in Farber v. Royal Trust Co .

Although the appellant’s reinstatement would have resulted in a change in circumstances compared to what she would have earned had she never been dismissed, the respondent’s offer was reasonable in the circumstances and did not require her to waive any dynamic reinstatement conditions. On the contrary, the guaranteed salary offered to her was temporary in nature, with the objective of re-establishing the employment relationship while the losses she incurred, during and after her dismissal, were evaluated.

The respondent’s offers were clear in this regard. [ 66 ] Unfortunately for the appellant, her demand that she immediately obtain the dynamic reinstatement conditions that she had calculated became an obstacle to her reinstatement. [ 67 ] The appellant was also unable to return to work for the respondent because she never resigned from her job at Industrial Alliance and was therefore unable to transfer her chartered administrator licences to the respondent. She declined the respondent’s reinstatement offer even though it met the criteria for dynamic reinstatement.

Consequently, there are no grounds for concluding that the CRT erred on this point.

3. Did the CRT err in fact and in law in refusing to allow evidence of the compensation of a colleague of the appellant? [68] The adducing of evidence by the parties is a matter of procedural fairness at trial and flows from the right of each party to beheard. Dunsmuir v. New-Brunswick states that a high degree of judicial intervention is justified in this regard.[46] [69] Nevertheless, the Superior Court recently concluded in Ressourcerie de Lévis v.

Commission des relations du travail that thestandard of review that applies to the presentation of evidence by the CRT is that of reasonableness.[47] The Court followed the decisionrendered in Quebec (Attorney General) v. Roy,[48] which quoted the Supreme Court in Université du Québec à Trois-Rivières v.Larocque.[49] [70] In Comité de déontologie policière v.

Dechenault, our Court summarized the test established by the Supreme Court in Baker v.Canada (Minister of Citizenship and Immigration)[50] to determine the content of the duty of procedural fairness owed to litigants byadministrative decision-makers: [37] Several factors are relevant to determining the content of the duty of fairness: (1) the nature of the decision being made andprocess followed in making it; (2) the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; (3)the importance of the decision to the individual or individuals affected; (4) the legitimate expectations of the person challenging the decision; (5) the choices of procedure made by the agency itself.

This list is not exhaustive.[51] [71] Given the adversarial nature of the CRT process,

section 117 of the Labour Code, and the significance of the decision for aworker, the CRT’s duty of procedural fairness is broad. [72] The Superior Court stated, however, that in considering evidence irrelevant and inadmissible, the CRT is not necessarilyviolating the rules of natural justice.

Rather, it is exercising its jurisdiction over the presentation of evidence in a normal manner according to flexible and informal rules.[52] [73] To determine whether the CRT’s objection to having the monthly production reports of another investment advisor enteredinto evidence is a violation of procedural fairness, their relevance to the issue before the CRT must be ascertained. [74] As counsel for the appellant, Mtre Gamache, himself stated at the hearing before the CRT on September 19, 2007, heintended to show [translation] “that the compensation of an investment advisor is based on commissions”[53] and [translation] “that theassets under management continued to grow” during the appellant’s absence.[54] [75] The CRT did not consider this information relevant.

It stated that it already had evidence that the appellant believed her salarywould have increased had she not been dismissed.[55] The CRT deemed that the salary increase that the appellant would have receivedhad she not been dismissed was not relevant to determining the reasonableness of the average salary offered to her upon reinstatement. Ittreated this element as a matter of damages, which explains why it deferred to Commissioner Chaumont. [76] This decision does not seem unreasonable.

The salary the appellant would have earned had she never been dismissed isdefinitely relevant to assessing her losses for the period following her reinstatement, if she is reinstated under less favourableconditions than those she would have had if she had she never been dismissed. However, as previously discussed, the purpose ofanalyzing a complaint for wrongful dismissal in the case of a failed reinstatement is not to quantify the losses, but to establish reasonable,temporary conditions that allow for an evaluation of post-reinstatement losses.

The evaluation of these losses must take into account thatthe parties do not have sufficient time to establish the precise conditions of reinstatement to which the employee is entitled. It is theresponsibility of the Commissioner charged with determining the quantum to evaluate the losses incurred before and, possibly, after thereinstatement. [77] The appellant had already entered into evidence that she believed her salary would have increased had she never beendismissed and new evidence concerning lost wages was unnecessary.

The CRT reasonably exercised its discretion in limiting the issueand the presentation of evidence to the question of whether the proposed conditions were reasonable in the circumstances. There are nogrounds to have its decision invalidated with respect to the third question. CONCLUSION [78] For the foregoing reasons, I would grant the motion to file the decision of Commissioner Chaumont bearing number 2009QCCRT 365 , 2009 QCCRT 0365 rendered on August 17, 2009. [79] I would also dismiss the appeal, the whole without costs in view the circumstances. J.J. MICHEL ROBERT J.C.Q.