UNITED WINGS ENTERPRISE INC. Applicant v. RUI QIU and ATTORNEY GENERAL OF, 2012 FCA 144

Federal Court of Appeal Cour d'appel fédérale Federal Court of Appeal Cour d'appel fédérale Date: 20120514 Docket: A-469-11 Citation: 2012 FCA 144 CORAM: NADON J.A. DAWSON J.A. MAINVILLE J.A. BETWEEN: UNITED WINGS ENTERPRISE INC. Applicant and RUI QIU and ATTORNEY GENERAL OF CANADA Respondents Heard at Toronto, Ontario , on May 8, 2012. Judgment delivered at Ottawa, Ontario , on May 14, 2012. REASONS FOR JUDGMENT BY: MAINVILLE J.A. CONCURRED IN BY: NADON J.A. DAWSON J.A. Date: 20120514 Docket: A-469-11 Citation: 2012 FCA 144 CORAM: NADON J.A. DAWSON J.A. MAINVILLE J.A. BETWEEN: UNITED WINGS ENTERPRISE INC. Applicant and RUI QIU and ATTORNEY GENERAL OF CANADA

Respondents REASONS FOR JUDGMENT MAINVILLE J.A. [1] This is a judicial review of the decision of an Umpire (CUB 77989) rejecting an appeal of a decision of a Board of Refereesdated October 14, 2010. [2] The Canada Employment Insurance Commission approved the claim of the respondent Ms. Rui Qiu (“claimant”) forunemployment benefits under the Employment Insurance Act, S.C. 1996, c. 23. The Commission found, pursuant to paragraph 29(

c) ofthe Act, that the claimant had voluntarily left her employment with United Wings Enterprises Inc. (“employer”) in December of 2009 forjust cause, as she had no reasonable alternative having regard to the circumstances. The employer challenged this finding before a Boardof Referees. [3] The claimant’s testimony before the Board of Referees was that she had left her employment in order to avoid harassmentfrom her employer’s manager.

The employer denied any harassment, and rather submitted that its manager was close to the claimant’sfamily, had assumed a form of parental guardianship over the claimant, and in this capacity scolded the claimant for various allegedmisdeeds, leading to the claimant’s unjustified refusal to return to work. [4] After hearing testimony evidence over two days, the Board of Referees concluded as follows: The Board finds as fact that the appellant’s own testimony that he had conversations with the claimant about her sexual activities, andconstantly texting her at night, can only be defined as harassment.

The claimant testified that she just wanted things to stop. So sheinitially brushed off the appellant’s actions. Unfortunately, instead of stopping the behaviour, the appellant chose to escalate hisharassment of the claimant. The claimant was in a very difficult situation – if she quit her job not only did she have to deal with the financial issues of not working,but her immigration status was put in limbo.

So she put up with the appellant’s behaviour until the incident in early December [2009]. … The Board unanimously dismisses the Employer’s appeal. [Board of Referees’ decision at pp.17-18, reproduced in Respondent’s Record at pp. 131-32] [5] The employer raises a single ground of review in this Court: by refusing to receive into evidence certain emails tendered onbehalf of the employer, the Board of Referees denied the employer a fair hearing. [6] The Umpire found that the Board of Referees had not breached any principle of procedural fairness by refusing theproduction of the emails since “[t]hese documents were superfluous to the evidence already before the Board and they added nothing ofimportance to the facts the Board already knew; in this sense the evidence excluded was irrelevant to the issue and the reasons why theclaimant left her job”: Umpire’s decision at p. 6, reproduced at p. 18 of the Applicant’s Record. [7] Whether an administrative tribunal has breached procedural fairness by rejecting evidence depends on the circumstances ofeach case.

As noted by Lamer C.J. in Université du Québec à Trois-Rivières v. Laroque, (SCC), [1993] 1 S.C.R. 471 atp. 491: For my part, I am not prepared to say that the rejection of relevant evidence is automatically a breach of natural justice. A grievancearbitrator is in a privileged position to assess the relevance of evidence presented to him and I do not think it is desirable for the courts, inthe guise of protecting the right of parties to be heard, to substitute their own assessment of the evidence for that of the grievance

arbitrator. It may happen, however, that the rejection of relevant evidence has such an impact on the fairness of the proceeding, leading unavoidably to the conclusion that there has been a breach of natural justice. [ 8 ] In this case, the findings of fact of the Board of Referees concerning harassment were based on the manager’s own viva voce testimony, and these findings were consistent with a large part of the claimant’s testimony. As found by the Umpire, the emails which the employer sought to submit into evidence were largely irrelevant to the issues at stake in the proceedings.

In these circumstances, I cannot conclude that the decision of the Board of Referees to exclude such emails denied the employer a fair hearing or otherwise constituted a breach of procedural fairness. [ 9 ] I would consequently dismiss this judicial review application. "Robert M. Mainville" J.A. “I agree. M. Nadon J.A.” “I agree. Eleanor R. Dawson J.A.” FEDERAL COURT OF APPEAL NAMES OF COUNSEL AND SOLICITORS OF RECORD DOCKET: A-469-11 JUDICIAL REVIEW FROM THE DECISION OF AN UMPIRE (CUB 77989) DATED OCTOBER 14, 2010. STYLE OF CAUSE: United Wings Enterprise Inc. v.

Rui Qiu and Attorney General of Canada PLACE OF HEARING: Toronto , Ontario DATE OF HEARING: May 8, 2012 REASONS FOR JUDGMENT BY: MAINVILLE J.A. CONCURRED IN BY: NADON J.A.

DAWSON J.A. DATED: May 14, 2012 APPEARANCES : Jeffrey Radnoff FOR THE APPLICANT Avvy Yao-Yao Go Jacqueline Wilson FOR THE RESPONDENT RUI QIU FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA SOLICITORS OF RECORD : Radnoff Law Offices Toronto, Ontario FOR THE APPLICANT Metro Toronto Chinese & Southeast Asian Legal Clinic Toronto , Ontario Myles J. Kirvan Deputy Attorney General of Canada FOR THE RESPONDENT RUI QIU FOR THE RESPONDENT ATTORNEY GENERAL OF CANADA