Blanchard v. Control Data Canada Ltd.

when there is want or excess of jurisdiction;

when the enactment upon which the proceedings have been based or the judgment rendered is null or of no effect;

when the proceedings are affected by some gross irregularity, and there is reason to believe that justice has not been, or will not be done;

when there has been a violation of the law or an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice.

However, in the cases provided in paragraphs 2, 3 and 4 above, the remedy lies only if, in the particular case, the judgments of the court seized with the proceeding are not susceptible of appeal.

Whatever the arbitrator's jurisdiction, strictly speaking, an abuse of authority amounting to fraud and of such a nature as to cause a flagrant injustice would divest him of his jurisdiction and be a basis for judicial review by evocation, regardless of any privative clause.

I cannot say that the arbitrator's award constituted such an abuse.

The majority on the Court of Appeal appears in fact to have decided that the only reasonable sanction for the unquestionably reprehensible behaviour of appellant necessarily had to be the ultimate sanction of dismissal, and that by imposing a less severe penalty the arbitrator acted contrary to public order. It seems to me, be it said

[page 481] with the greatest respect, that this is coming close to confusing the appellant's actions and those of the arbitrator. I am far from certain that I would have decided as the arbitrator did, but I also cannot say that the less severe penalty which is imposed instead of the ultimate penalty is, in view of all the circumstances, clearly abusive, flagrantly unjust, absurd, contrary to common sense, and lacking any basis in the evidence as a whole.

I would dispose of the appeal as my brother Lamer J. suggests.

English version of the reasons of McIntyre and Lamer JJ. delivered by

LAMER J.-This case raises the problem of the extent of judicial review of the decisions of administrative tribunals. Appellant Blanchard is asking this Court to restore the decision of a judge of the Superior Court of Quebec who refused to issue a writ of evocation against the mis en cause arbitrator. A majority of the Court of Appeal of Quebec reversed this judgment and directed that the writ be issued.

Appellant Blanchard had been employed by the respondent since July 1973 and was dismissed on April 30, 1980. The circumstances resulting in this dismissal are essentially not in dispute. It was admitted that in November 1979, while working in advertising and promotion for the respondent, Mr. Blanchard accepted two tickets for a two-week stay in the Bahamas offered by station CJFM in connection with a contract for the purchase of advertising air time. These tickets were given by Mr. Blanchard to his subordinate Mr. Ducharme. It appeared that on the latter's return, Messrs. Blanchard and Ducharme were told by an officer of the company that such actions were contrary to professional ethics and the company's policies.

In April 1980, in similar circumstances, Mr. Blanchard accepted two tickets for a two-week stay in Jamaica, which he decided to use himself. Shortly after, on April 30, 1980, Mr. Blanchard was dismissed. It may be noted from the evidence admitted by the arbitrator that relations between Control Data Canada Limited and Mr. Blanchard

[page 482] had deteriorated before the latter trip, as the result of a complaint by Mr. Blanchard to the Commission de surveillance de la langue française.

On May 25, 1980, appellant submitted a complaint to the Commission des normes du travail for dismissal without good and sufficient cause, under ss. 124 et seq. of the Act respecting labour standards, R.S.Q., c. N-1.1.

DIVISION III

RECOURSE AGAINST DlSMISSALS NOT MADE FOR GOOD AND SUFFIClENT CAUSE

124. An employee credited with five years of uninterrupted service with one employer who believes that he has not been dismissed for a good and sufficient cause may present his complaint in writing to the Commission within 30 days of his dismissal, except where a remedial procedure, other than a recourse in damages, is provided elsewhere in this act, in another act or in an agreement.

125. Upon receiving the complaint, the Commission may appoint a person who shall endeavour to settle the complaint to the satisfaction of the interested parties.

The Commission may require from the employer a writing containing the reasons for dismissing the employee. lt must provide a copy of this writing to the employee, on demand.

126. Where no settlement is reached within 30 days of the filing of the complaint with the Commission, the employee may apply to the Commission to have his complaint referred to arbitration.

The Commission shall appoint an arbitrator whose name appears on the list provided for in the second paragraph of section 78 of the Labour Code (chapter C-27).

127. Sections 100.l to 100.9, 100.11 and 100.12, 100.14 to 100.16, 101, 101.3, 101.4, 139 and 140 of the Labour Code (chapter C-27) apply, mutatis mutandis, to the arbitrator so appointed.

128. Where the arbitrator considers that the employee has not been dismissed for good and sufficient cause, he may

(1) order the employer to reinstate the employee;

(2) order the employer to pay to the employee an indemnity up to a maximum equivalent to the wage he would normally have earned had he not been dismissed;

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(3) render any other decision he believes fair and reasonable, taking into account all the circumstances of the matter.

However, in the case of a domestic, the arbitrator may only order the payment to the employee of an indemnity corresponding to the wage and other benefits of which he was deprived due to dismissal up to a maximum period of three months.

129. The arbitration award must state the grounds on which it is based and be rendered in writing.

(Emphasis added.)

In an arbitral award on February 4, 1982 the mis en cause Jean-Paul Lalancette, relying on s. 128 of the Act, substituted for the dismissal a suspension without pay for four months and directed that Mr. Blanchard be reinstated retroactively to August 30, 1980, that is, the date of the suspension's expiry. In his reasons, the arbitrator reviewed the facts and the evidence presented by the parties, and concluded:

[TRANSLATION] Accordingly, there was insubordination by the complainant in view of the warning given by Mr. Jetté a year earlier; but once again, I am not persuaded that he was dismissed because of that, but rather because of all the events occurring in February, March and April 1980.

If we consider the three (3) events in turn, namely the reduction in performance, the complaint to the Commission and the acceptance of a trip to Jamaica, none of these events is a ground for dismissal in itself. Even if they were to be taken as a whole, I do not think that they constitute a ground for dismissal, as the demotion was to some extent negotiated by the two (2) parties; so far as the complaint is concerned, it was the complainant's right to make it even if it was an unfortunate move: he could perhaps have acted differently; and that leaves the trip to Jamaica.

Accordingly, I cannot conclude there should have been a dismissal, even though some penalty was required, and in the circumstances the arbitrator makes use of s. 128(3) of the Labour Standards Act, namely:

"(3) render any other decision he believes fair and reasonable, taking into account all the circumstances of the matter."

WHEREAS complainant has no previous disciplinary record;

WHEREAS the employee's performance was excellent until early 1980;

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IN VIEW OF the events of February, March and April 1980;

WHEREAS disciplinary action was necessary, but dismissal was not appropriate;

WHEREAS in light of the offence committed;

WHEREAS it seems fair and reasonable to substitute for the dismissal a suspension of complainant without pay;

FOR ALL THESE REASONS, THE ARBITRATOR:

1. DIRECTS that complainant be rehired from the date on which this decision is received;

2. SUBSTITUTES for the dismissal of April 30, 1980 a suspension without pay for four (4) months, that is from April 30 to August 30, 1980;

3. DIRECTS the employer to pay complainant a wage of $410.00 bi-weekly, beginning August 30, 1980 until the date he is rehired, plus the average salary increases paid to other employees, if any, and deducting for the four (4) weeks of salary paid, referred to in the letter of April 30, 1980, P-2, namely the salary paid up to May 2, 1980;

4. DECIDES that the whole shall bear interest at the legal rate, as specified in s. 100.15 (s. 88o of the Labour Code) referred to in s. 127 of the Labour Standards Act;

CONTINUES the rights and privileges of complainant as if he had not been dismissed, except for the suspension period;

DOES NOT AWARD any commission to complainant, pursuant to the employer's commissions plan, as complainant did not work;

RESERVES JURISDICTION to determine the amount owed under the provisions of s. 127 of the Labour Standards Act and 101.4 (89d of the Labour Code).