••••••••
Date: 20030709
Docket: T-39-02
Citation: 2003 FC 853
Between:
SOLANGE FONTAINE
Plaintiff
And:
ANDRÉ TRUCHON
- and -
MONTAGNAIS BAND COUNCIL OF UASHAT MAK MANI-UTENAM
- and -
THE ATTORNEY GENERAL OF CANADA
Defendants
REASONS FOR ORDER
ROULEAU J.
(a) This is an application for judicial review of a decision dated November 30, 2001, by André Truchon, an adjudicator appointed pursuant to Part III, Division XIV of the Canada Labour Code, R.S.C. 1985, c. L-2, as amended ("the Code"). The latter dismissed the complaint of unjust dismissal filed by the plaintiff.
(b) The application at bar asks the Court to quash the decision by the adjudicator, set aside the plaintiff's dismissal, order her reinstatement in her employment and refer the matter back to the adjudicator for the latter to decide the quantum of the financial compensation that should be paid to her.
(c) The plaintiff began working with the defendant Band Council on June 4, 1974, as a rental collection clerk. From 1979 to 1986 she worked as finance director in the education sector and from 1986 onwards she became the defendant's director of finance.
(d) On August 24, 1998, general elections were held in Uashat mak Mani-Utenam and the voters acquired a new Band Council, electing Chief Rosario Pinette and his team of nine councillors. At that time several of the defendant's employees, including the plaintiff, strongly feared that Chief Elie-Jacques Jourdain, Rosario Pinette's political opponent, would be defeated in the elections.
(e) In the days after the elections the new elected Council took over and not only had to review all the voluminous files but also manage a crisis situation in the community, which continued to assume significant and disturbing proportions. In view of the increasing discontent and following the closure of the administrative offices for one week, which paralyzed all administrative activity, the Council chose to hold a general meeting of the Band on December 4, 1998.
(f) At that meeting, the Band unequivocally demanded that there be a public inquiry into the financial administration of the old Council, to clear up rumours that were going about concerning a number of fraudulent financial transactions involving the Council. Acting on this mandate, the Council reassured the Band members, telling them it would inquire as to the procedure to be used for holding such an inquiry.
(g) A public inquiry was in fact conducted by firms of investigators and accounting experts. Throughout this inquiry, Mr. Pinette was regularly kept informed of its progress.
(h) On July 10, 1999, about a year after the election, the Council unanimously decided to suspend the plaintiff temporarily with pay until the administrative inquiry was concluded. It said it had reasonable grounds for believing there had been irregularities in the administration of Band funds. At the conclusion of the inquiry the Council was allegedly informed of disturbing facts about the plaintiff, and as well as laying a complaint against her with the Sûreté du Québec it decided to dismiss her on September 29, 1999.
(i) The main basis for this dismissal was the complete breakdown of the relationship of trust between the Council and the plaintiff, and it concerned a series of actions, with the possibility there would be more. In particular, the Council alleged that the plaintiff had employment contracts signed (including her own) without its knowledge and without its authorization just after the election of August 24, 1998. It further maintained that on August 25, 1998, she went to its premises to take from the computer employment contracts which she quickly submitted for signature. The plaintiff was also informed that the inquiry into her actions would continue.
(j) The plaintiff accordingly decided to file a complaint for unjust dismissal, and her grievance was heard by the defendant André Truchon. At the hearing of this case, which lasted for some 24 days and during which more than 20 persons were heard, the Council raised several other points which in its view justified her dismissal:
(a) lack of control in requisitioning certain cheques;
(b) payment of bills allegedly made twice to the carrier Innu l'Autobus, owned by the plaintiff's spouse;
(c) numerous adjusting "entries";
(d) cheques made out to the plaintiff for $10,136;
(e) a lack of supporting documents for certain cheques, including one to Innu l'Autobus for $4,100;
(f) payments on submission;
(g) an advance of $50,000 paid to Innu l'Autobus;
(h) overpayments in the Innu l'Autobus contract;
(i) payment of tax-free salary to administrative personnel;
(j) defiance of authority at the general meeting held in 1999;
(k) several allegations of privileges and exchanges of favours;
(l) signature of employment contracts on August 26, 1998, without authorization;
(m) a payment of $9,880 to Jenny Rock.
(k) In his decision of November 30, 2001, which was 450 pages long, the adjudicator dismissed the plaintiff's complaint of unjust dismissal. Although he rejected most of the grounds alleged by the Council, including those dealing with allegations of fraud, dishonesty and embezzlement, he accepted two of them.
(l) The adjudicator found that the defendant was justified in blaming the plaintiff for her actions in the signature of employment contracts and in the renewal of her own contract after the election of August 24, 1998. In his view, the plaintiff did not act in accordance with established practice in handling this matter, did not exercise sufficient discipline and did not demonstrate all the loyalty which the defendant could expect from her.
(m) The adjudicator further concluded that the plaintiff acted in an unacceptable manner by paying herself the sum of $9,880 belonging to the defendant without authorization and subsequently passing this on to Jenny Rock, without right or authority to do so. In his view, this was the most serious kind of wrongful act and necessarily affected the relationship of trust between the defendant and the plaintiff.
(n) The plaintiff raised the following questions:
(1) Did the adjudicator err in concluding that the defendant was right to blame the plaintiff for her actions in administering the file relating to the renewal of employment contracts?
(2) Did the adjudicator err in concluding that the plaintiff acted in an unacceptable manner by paying Jenny Rock money belonging to the defendant without authorization?
(3) Did the adjudicator err by dismissing the plaintiff's argument concerning the excessive delay that elapsed between learning of the alleged wrongful acts and the penalty imposed?
(4) Did the adjudicator err in dismissing the plaintiff's argument concerning a denial of justice to her by the defendant, which did not give her an opportunity to explain herself in response to the many charges made against her?
(5) Did the adjudicator err in concluding that the plaintiff's complaint should be dismissed and in upholding her dismissal just on the two grounds accepted by him?
(o) First, the plaintiff submitted that the adjudicator's decision to the effect that the defendant was justified in blaming her for her actions in administering the file concerning renewal of employment contracts was based on erroneous findings of fact made in a perverse or capricious manner and without regard for the material before him.
(p) In the plaintiff's submission, the evidence clearly showed that the responsibility for renewing employment contracts belonged to the general manager at the time, Jean-René Blouin, not the plaintiff. The latter's function was limited to drawing up contracts in accordance with instructions received by Mr. Blouin, who would have previously negotiated the contracts.
(q) Moreover, in the plaintiff's submission the evidence also showed that all the contracts were negotiated and signed before the election of August 24, 1998, not on August 26 as stated by the adjudicator, with the possible exception of the contract of Louis-Georges Fontaine. The plaintiff's contract was negotiated and signed by June 23, 1998 at the latest, she said. Contrary to what the adjudicator suggested in his decision, there was no fundamental change in the contract on August 20, 1998.
(r) Secondly, the plaintiff submitted that the adjudicator's decision to the effect that the plaintiff had acted in an unacceptable manner by paying Jenny Rock the sum of $9,880 belonging to the defendant without authorization was also based on erroneous findings of fact made in a perverse or capricious manner and without regard for the material before him.
(s) The plaintiff further alleged that the adjudicator had applied a double standard to her. In her submission, the latter found that the management methods in effect for many years, and used in the case at bar, contained anomalies, but that this could be explained among other things by the disorganized way in which the Council had developed. The plaintiff maintained that the adjudicator correctly analyzed this factual background for the other charges made against her by the defendant, and this led him to dismiss them. However, she submitted that he erred in refusing to take the same undisciplined approach, for which the plaintiff was not responsible, into account where the payment of $9,880 to Jenny Rock was concerned.
(t) The plaintiff submitted that from the election of August 1998 until May 27, 1999, the date on which the inquiry team first met, the Council and its chief took no action to check the legality of these contracts. She maintained that in the circumstances, and in view of the importance which the question of the signing of the contracts subsequently acquired, this delay was clearly excessive. She added that the delay caused her injury especially regarding the ability of certain witnesses, including Mr. Fontaine, to remember various events such as the dates on which their contracts were signed.
(u) Finally, the plaintiff submitted that the conclusion by the adjudicator Truchon that her dismissal should be upheld on the two aforementioned grounds, while dismissing all the allegations relating to her honesty, is patently unreasonable in view of the facts in evidence and the circumstances of the case at bar. She argued that the patently unreasonable nature of the decision was apparent from the explanations given by the adjudicator adverting to the management methods prevailing in the Band Council at the time, but without questioning the plaintiff's good faith and honesty.
(v) The defendant submitted that according to precedent this Court should not intervene in the case at bar unless the adjudicator's decision to uphold the dismissal was patently unreasonable or clearly wrong. It submitted that the decision was based on the oral and documentary evidence as a whole, which the adjudicator analyzed in a proper, thorough and complete manner.
(w) On the part of the adjudicator's decision dealing with the renewal of the employment contracts, the defendant submitted that the plaintiff had not shown that the decision was patently unreasonable. Instead, she simply pointed to certain facts which the adjudicator did not necessarily accept, while ignoring a number of points that were in evidence and which certainly were likely to influence the adjudicator's decision.
(x) The defendant submitted that the plaintiff failed to take into account that the adjudicator had accepted inter alia the following points taken from the evidence:
[TRANSLATION]
The general manager of the time, Jean-René Blouin, although he had in fact received instructions to negotiate and sign contracts within the budget, had to go back to the Council because of "enormous" demands. The evidence clearly showed that the new contract cancellation clause contained in several of the new employment contracts was enormously different from preceding contracts.
The plaintiff not only took part in the signature of the employment contracts, she was involved.
The evidence was clear that the employment contracts of Louis-Georges Fontaine and Rémy Bastien were signed respectively on August 26, 1998, for Mr. Fontaine and in August, perhaps September 1998, for Mr. Bastien.
There are many contradictions between the testimony of the general manager Jean-René Blouin, of the plaintiff and of the other contract signatories who testified before the adjudicator, in particular Louis-Georges Fontaine and Rémy Bastien.[1]
(y) The defendant submitted that the adjudicator did not err in concluding that the plaintiff had acted in an unacceptable manner by paying herself the sum of $9,880 which she then gave to Jenny Rock, without authorization.
(z) The defendant admitted that it was true the adjudicator had recognized that to an outside observer the way in which the Band Council's financial administration was conducted was completely inadequate and bore no relation to existing accounting standards in public bodies of the defendant's type. However, he explained that this method of operation did not in any way excuse the plaintiff's actions:
[TRANSLATION]
The complainant acted in an unacceptable way: she spent money which belonged to the employer without authorization under cover of programs she was administering at the time but which did not apply to Jenny Rock's case.
The project submitted by Jenny Rock was not sound and any manager trying to do his or her work properly would never have agreed to spend that money without documentation on a project which was so vague and unlikely to succeed, in view of Jenny Rock's background and experience.
Without right or authority to do so, the complainant disposed of $9,880 belonging to her employer which was never recovered by the latter, and in so doing the complainant committed the most serious kind of wrongful act, necessarily affecting the relationship of trust between herself and her employer.[2]
(aa) The defendant further submitted that the adjudicator did not err in law in dismissing the plaintiff's argument regarding the denial of justice allegedly suffered by her.
(bb) In support of its argument, the defendant cited Syndicat des professeurs du Collège de Lévis-Lauzon v. Collège d'enseignement général et professionnel de Lévis-Lauzon, [1985] 1 S.C.R. 596, at 602.
(cc) Finally, the defendant submitted that the adjudicator did not err in law in upholding the penalty imposed by it on the plaintiff, since he took into account the fact that the two allegations he accepted were serious acts likely to destroy the relationship of trust between the employer and the plaintiff.
(dd) In the case at bar, the relationship of trust between the defendant and the plaintiff formed the basis of the contract of employment concluded between the two parties, and the latter expressly stated that the contract could be terminated [TRANSLATION] "in the event of serious wrongdoing" without any compensation. The defendant argued that the combined effect of the defendant's loss of the sum of $9,880 as the result of the plaintiff's unlawful actions and the episode involving renewal of the employment contracts constituted serious wrongdoing which amply justified the adjudicator in upholding the defendant's ultimate decision. Accordingly, the adjudicator's decision was not patently unreasonable and did not warrant this Court's intervention.
(ee) It should be noted at the outset that essentially the plaintiff challenged the view taken of the evidence by the adjudicator André Truchon, in the parts of his decision relating to the renewal of employment contracts and the payment of $9,880 to Jenny Rock. On assessment of the evidence, it is well established that this Court should only intervene to review the findings of fact made by an administrative tribunal should only take place when it is clear that the adjudicator made an error in interpreting the facts as disclosed by the evidence: Gauthier v. Bank of Canada, [2000] F.C.J. No. 1453 (QL), at paras. 27 and 35 (F.C.T.D.).
(ff) The 450-page-long decision should be analyzed in terms of management which had been in place for several years and which was lax and perpetuated by financial irregularities always tolerated by the Band Council. Additionally, there was a growing crisis in the community and reform in the administration was required.
(gg) At the election in August 1998 there was a clean sweep of the old Band Council, except for the former councillor Rosario Pinette, who was elected the new chief. As the adjudicator noted, on the day following the election several people who had suffered defeat were bitter and went to the administrative buildings. The new Council had to face opposition. The newly-elected officials had to dispel the rumours of maladministration which had preceded them. There were rumours that money had been embezzled using loans. Rather than diminishing, the crisis in the community continued to grow. The community was demanding an inquiry. In November and December 1998 the Council was repeatedly besieged by employees or members of the community. Band employees were in revolt and wanted to throw out the Council. They walked about in the corridors saying they did not want to work with the new Council. Public services were interrupted and there was even difficulty providing essential services.
(hh) A general meeting was called on December 4, 1998. The Band Chief reviewed meetings with employees and said he wanted the parties to resume dialogue. Despite negotiations, no agreement was reached and the situation became so bad that the offices had to be closed.
(ii) At the meeting, the Chief noted that the general manager would be absent until January 31, 1999, for health reasons. The Council passed a unanimous vote of no confidence in his administration. Band members demanded that the Council punish employees and called for a public inquiry. That inquiry began in May 1999.
(jj) I feel it is important to clarify the plaintiff's position in the hierarchy. It goes without saying that the ultimate responsibility for the administration and government of the lives of community members rested with the Band Council. The latter gave the general manager at the time, Jean-René Blouin, the function of supervising the plaintiff. He also acted as liaison officer between the plaintiff and the Band Council. The plaintiff's title was director of administrative services. It seems clear from reading the adjudicator's decision that the plaintiff was influential in all areas and that, with the Band Council's support, most of the administrative decisions and control of the annual budget of $34,000,000 rested on her shoulders. A list of her many duties is attached as Schedule A to these reasons, but it should be noted that the detailed description of her duties took up some 50 pages in the adjudicator's decision.
(kk) Accordingly, let us consider in detail each of the many arguments made by the Band Council to justify dismissing the plaintiff.
Lack of control in requisitioning certain cheques
(ll) At p. 414 of the adjudicator's decision he concluded [TRANSLATION] "The inquiry correctly disclosed a system with almost no adequate control of the issuing of cheques . . . She could not exercise absolute control of this area; she did not have the cooperation requested from managers and even certain members of the Council . . . In the circumstances, the complainant cannot be blamed for working with the tools placed at her disposal and with what cooperation she could obtain".
Double payment of bills
(mm) At p. 415 of the adjudicator's decision he concluded [TRANSLATION] "These bills allegedly paid twice were for services rendered by the carrier Innu l'Autobus . . . there was no irregularity in this . . . there is nothing in the evidence to connect the complainant to these double payments . . . as François Hamelin testified, the control system was certainly deficient . . . The complainant cannot be linked to these errors . . . The complainant had nothing to do with these bills, which she did not know about . . . These acts (double payments) were not the acts of the complainant and she can at no time be blamed for them".
Adjusting entries
(nn) A p. 416 of the adjudicator's decision, having reviewed the evidence of the accountant Michel Hamelin, the adjudicator stated that he found no irregularity in these entries. He concluded [TRANSLATION] "No blame can attach on account of these adjusting entries, which were due to the large number of programs and numerous changes in priorities".
Plaintiff's expense account and petty cash control
(oo) At p. 417 of the adjudicator's decision he indicated [TRANSLATION] "The employer filed cheques made out to the complainant in the amount of $10,136. The complainant explained that the cheques made out to her were either cashed and the money placed in petty cash or deposited to her account because they were to reimburse money spent by her on the community's behalf. She explained that the petty cash actually served as a bank for community members". The adjudicator concluded [TRANSLATION] "All cheques were explained by the complainant and there was nothing noteworthy in this regard, except that, as Michel Hamelin mentioned, there was an inadequate system which allowed all kinds of abuse to occur. However, there was no evidence that the money was not legitimate: it was just that the system of control was clearly inadequate and ineffective . . . there was no evidence that money was spent improperly: it was just that there was no adequate and effective control . . . The complainant cannot be blamed in this regard".
Absence of documentation: cheque to Innu l'Autobus for $4,100
(pp) At p. 418 of the adjudicator's decision he stated he was satisfied with the explanation given by Ghislaine Tremblay. She testified that she [TRANSLATION] "sent them at the time to whoever was responsible for the employer. We have to conclude they were lost".
Payments on submission
(qq) At p. 419 of the adjudicator's decision he concluded as follows: [TRANSLATION] "It was also alleged that payments were made on submission. In this regard we learned that there were actually bills, and the document was to be considered as such. This error of description did not lead to any unjustified expenditure".
$50,000 advance paid to Innu l'Autobus
(rr) At p. 419 of the adjudicator's decision he observed that these were advances paid to a contractor who purchased materials at the start of the project. He concluded [TRANSLATION] "This perhaps is not the ideal system from the investigators' standpoint, but it was the system in use at that time in the I.T.U.M. The sum of $50,000 was applied to payment of the Innu l'Autobus contract". The adjudicator reviewed other cheques paid for transport in detail and concluded [TRANSLATION] "There was no evidence that Innu l'Autobus received money beyond the amount specified in the contract signed".
Payment of tax-free salaries to certain managerial personnel
(ss) At p. 420 of the adjudicator's decision, this is what the adjudicator said: [TRANSLATION] "The managers were paid annual salaries without taxes being deducted: this was illegal in the case of non-aboriginal persons. This system was set up in 1990 by the then general manager, Denis Vollant. The complainant cannot be considered to have taken the initiative in making these payments . . . In the circumstances, responsibility for payment of these amounts cannot be attributed to the complainant, who was not the person in authority in this matter".
Defiance of authority by complainant
(tt) At p. 421 the adjudicator stated [TRANSLATION] "The Chief referred to the part played by the complainant at the general meetings in December 1999. The evidence did not show that the complainant played a leading part in that episode. She participated like other employees did and her actions cannot be described as defying the Council's authority".
Allegations of privileges and exchanges of favours
(uu) At p. 421 of the adjudicator's decision he concluded [TRANSLATION] "There was no evidence in the record to support a conclusion that the complainant benefited from privileges for herself or her family, that she gave any to anyone. There is also no evidence of transfers or exchanges of favours by the complainant with anyone".
(vv) Accordingly, let us now consider the complaints on which the adjudicator based his decision that the dismissal was justified.
Payment of $9,980 to Jenny Rock
(ww) This payment was regarded by the adjudicator as one of the justifications for the dismissal. Let us look at the evidence and the circumstances surrounding this payment. It should be noted that initially the plaintiff was accused of having embezzled this money for herself, and that this charge was completely rejected by the adjudicator as follows: [TRANSLATION] "After hearing the evidence, we must conclude that the complainant gave Jenny Rock the money". Accordingly, once again no charge of dishonesty can be made against the plaintiff.
(xx) Jenny Rock was a citizen in the community who in spring 1998 began taking steps to open a travel agency. At p. 397 of the adjudicator's decision, he referred to the testimony of the former councillor Paul-Émile Fontaine:
[TRANSLATION]
The former councillor Paul-Émile Fontaine testified that he met Jenny Rock about this in Québec in spring 1997 or in 1998. At that time Jenny Rock told him that she had taken or would be taking courses on travel marketing. The witness said that about six months before this meeting he had a telephone call from Jenny Rock and referred her to the Council, which was to give her money.
To say that Jenny Rock's project did not exist the testimony of the complainant and of Paul-Émile Fontaine must be disregarded. It was never established that the project did not exist.
(yy) At pp. 398 and 423 of the adjudicator's decision, he noted:
[TRANSLATION]
She paid the money to Jenny Rock because she had the budget to do this. The complainant's behaviour with Jenny Rock is consistent with what happened in other cases.
. . . . .
There is no need to go back over the situation the community was experiencing at that time, trying to improve its life, and one of these means involved assistance to members of the community, loans, gifts and assistance in creating businesses which would create jobs.
(zz) Additionally, it should be noted that this incident of the $9,980 cheque occurred in December 1996, a period in which Rosario Pinette was acting as councillor before he was eventually elected the new Band Chief. He was undoubtedly aware of the plaintiff's functions and duties. One cannot help wondering why he did not react if he felt that the plaintiff was lacking in judgment when she paid out the sum in question for Jenny Rock's project. He could easily have confronted the plaintiff at that time, or at least raised the question with the Council. Why did he delay making an allegation of fraud until after he was elected as the new Band Chief?
Signature of employment contracts on August 26, 1998, without authorization
(aaa) A careful reading of the adjudicator's decision indicates that Ms. Fontaine had for several years been hired for a period of three years at a time, and her contract would be renewed a few months before it ended. Her last term of employment was to end on June 30, 1998, a few weeks before the new Chief and Band Council were elected. The contract at issue was for a fixed term, from July 1, 1998 to July 16, 2003. The renewal clause provided that the agreement could be cancelled at any time by the written consent of both parties and that the employee could leave at any time during the contract after giving 30 days' notice.
(bbb) The following clause indicates that the employer can terminate the contract, and no specific condition is mentioned for justifying a layoff:
[TRANSLATION]
(C) The employer may terminate this agreement and dismiss the employee without delay, notice or compensation in the event of serious wrongdoing.
(D) If the employer terminates this agreement before its conclusion, it will be required to pay the following amounts as compensation:
(i) payment of vacation balance for the accrued time;
(ii) payment of balance of sick leave not taken for the accrued time;
(iii) the greater of the following amounts.
(A) the balance owed on this contract at the time of its termination, or
(B) one month's salary per year of service.
[55] The adjudicator indicated that the dismissal was made pursuant to clause (C).
[56] In particular, the new Band Council blamed the plaintiff for having her employment contract signed without authorization just before the election of August 24, 1998.
[57] Ms. Fontaine was alleged to have gone to the Band premises on August 25, 1998, to get employment contracts out of the computer and then hastily have them signed. This allegation appears to have convinced the adjudicator that the contracts had not been signed before the election of August 28, 1998.
[58] It is important to look closely at the summary of the testimony of Jean-René Blouin, Band Manager from 1991 until a few weeks after the new Band Council was elected in August 1998. He then went on sick leave and at the time of the inquiry had become administrator of the Sept-Îles Hospital. It should be noted that this witness sought the Court's protection for the testimony he was to give. The summary of his testimony is to be found at pp. 301 to 321 inclusive of the adjudicator's decision. He was shown the plaintiff's contract and said he did negotiate the said contract. He testified that he went to get the Council's authorization for its length and disparities and said he signed the contract in question. He stated that the negotiations took place in April, May and June, prior to July 1, 1998. The transcript of the Band Council's meeting on May 20, 1998, reads in part as follows:
[TRANSLATION]
Contracts of certain managers: there are four contracts ending on June 30 and they must be renewed. After discussion, a majority decided to instruct the manager Jean-René Blouin to negotiate these contracts and bring them to a later meeting for decision. The councillor Rosario Pinette objected, saying they should wait for the forthcoming elections before negotiating these contracts.
[59] Despite the objections by the ex-councillor and new Chief, Rosario Pinette, at the time of the vote ten members of the Council were present and nine voted for, with one voting against, namely councillor Rosario Pinette.
[60] At p. 308 of his summary of the witness Jean-René Blouin's evidence, the adjudicator commented as follows:
[TRANSLATION]
The date of signature indicated in the contract is June 22. It is possible that the signature was made on another day, but it certainly was before July 1.
[61] According to what the adjudicator said at p. 311 of his decision, the witness Blouin further stated:
[TRANSLATION]
There was no Council resolution authorizing him to negotiate these contracts: it was always done in this way. The transcript of May 20, 1998 (E-38) was sufficient for him. There did not have to be a formal resolution: "these were contract renewals".
[62] At p. 315 of his summary of Mr. Blouin's evidence, the adjudicator noted the following:
[TRANSLATION]
The contracts of Rémy Bastien, Yvette Vachon and the complainant were signed before July 1, 1998. The contract of Louis-Georges Fontaine was signed with errors in clause 2: the duration. Doris Vollant was remunerated between July and November 1998.
[63] The witness apparently further indicated that the plaintiff had mentioned to the manager before May 20 that she wanted a five-year contract. She had spoken to certain members of the Council about it, and they were advised and informed on May 20, 1998, that she wished to [TRANSLATION] "leave, hand over".
[64] A bit later in his summary of the evidence, the adjudicator said the following:
[TRANSLATION]
. . . that Mr. Blouin asked the complainant to take the old contract and make the necessary changes to it. The contract was concluded between May 20 and June 1998. It was his signature which appeared on the complainant's contract: it was not he who entered the date. He did not remember where the contract was signed, in his office or in that of the complainant.
[65] At p. 320 of the adjudicator's decision he stated:
[TRANSLATION]
The witness stated that if the contract was dated June 22, this meant he signed it on that day. He signed on the day indicated. The date entered was not in his writing.
[66] It appears to the Court that Jean-René Blouin's testimony confirms that the contract was signed before the August 1998 election. The adjudicator attached undue importance to the fact that the plaintiff may have gone to the administrative offices and taken a copy of the contract from the computer after the election, which appears to have made him conclude that the renewal of the plaintiff's contract had not received the Band Council's approval.
[67] It is interesting that there is no evidence to counter Mr. Blouin's testimony about the date the said contract was signed. It is also significant that the former general manager has never been asked whether he thought it was necessary to obtain the Council's approval for renewal of the plaintiff's contract, in light of the changes made to it, namely an extension of two additional years and clauses dealing with remuneration in the event of cancellation before the expiry date.
[68] It was clear throughout this case that although the inquiry covered all members of the former Band Council and its administration, the fact that the plaintiff was the only one still in her position meant that all complaints and accusations were made against her. I feel she served as a scapegoat to appease discontent among Band members.
[69] The plaintiff had to undergo more than 26 days of hearing during the period between December 1999 and May 2000. The adjudicator, who accepted the testimony of the investigator Mr. Hamelin, dismissed 11 of the 13 complaints made against Ms. Fontaine.
[70] I should like to emphasize that the investigator Hamelin and the adjudicator agreed that there was laxity in the handling of the Band's affairs, that control was almost non-existent, and that the management in effect for several years continued through financial irregularities always tolerated by the Band Council. At p. 433 of the adjudicator's decision he said:
[TRANSLATION]
Although the complainant's explanation may seem to lack credibility in another context, matters must be seen in their context in this case, in a situation in which administration at the time was evolving, a period when there was very little control and in some cases none at all.
[71] At p. 435 the adjudicator went on:
[TRANSLATION]
All the charges made against the complainant at the time of the dismissal proved groundless with regard to use of money, and the method of operation corresponded at that time to the standards in effect at I.T.U.M.: we will not go back over that.
[72] Accordingly, the plaintiff cannot be blamed for any irregularity in the administration of Band funds except for the incident involving Jenny Rock. I consider that the fact that the plaintiff accepted the feasibility of a project to create employment for Jenny Rock resulted from a lack of judgment, and did not in any way constitute serious wrongdoing justifying her dismissal.
[73] Over the three or four final years of her service the plaintiff administered a budget in excess of $100,000,000, and the only complaint that could be made against her concerned the matter involving Jenny Rock and the sum of $9,980.
[74] As regards the plaintiff's contract, the adjudicator concluded that as there was serious wrongdoing the employer could dismiss her without compensation. I was not persuaded that the plaintiff committed serious wrongdoing that would justify her dismissal without compensation.
[75] I agree with the reasoning put forward by counsel for the defendants that it is well settled that this Court should not intervene to review an administrative tribunal's findings of fact unless it is apparent that the adjudicator made an error in interpreting the facts presented by the evidence.
[76] In this connection, I considered the Supreme Court of Canada's judgment in Director of Investigation and Research v. Southam Inc. et al., [1997] 1 S.C.R. 748, in which the Court said the following at 776:
I conclude that the third standard should be whether the decision of the Tribunal is unreasonable. This test is to be distinguished from the most deferential standard of review, which requires courts to consider whether a tribunal's decision is patently unreasonable. An unreasonable decision is one that, in the main, is not supported by any reasons that can stand up to a somewhat probing examination. Accordingly, a court reviewing a conclusion on the reasonableness standard must look to see whether any reasons support it. The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence, or that was contrary to the overwhelming weight of the evidence. An example of the latter kind of defect would be a contradiction in the premises or an invalid inference.
[Emphasis added.]
[77] I have to conclude that the adjudicator's decision was unreasonable based on the evidence as a whole and the arguments raised by it. These arguments cannot stand up to careful examination. As the Supreme Court said, "The defect, if there is one, could presumably be in the evidentiary foundation itself or in the logical process by which conclusions are sought to be drawn from it. An example of the former kind of defect would be an assumption that had no basis in the evidence . . .".
[78] Relying also on the tests given by the Supreme Court regarding the "patently unreasonable" standard of review, I feel that this decision by the adjudicator should be set aside.
[79] I accordingly set aside the adjudicator's decision and the dismissal, direct that the plaintiff be reinstated in her employment and refer the matter back to the adjudicator for him to decide the quantum of the financial compensation that should be paid to the plaintiff.
[80] Under this Court's discretionary authority conferred by Rule 400 of the Federal Court Rules, 1998, I award costs to the plaintiff, including disbursements, and set them at $5,000.
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"P. Rouleau"
Judge |
OTTAWA, Ontario
July 9, 2003
Certified true translation
Suzanne M. Gauthier, C. Tr., LL.L.
SCHEDULE A
DUTIES:
Organizes, plans and directs the Band's inventory, finance and general administration services:
• Directs the establishment and evaluation of inventory, finance and general administration services to adequately provide for the Band's administrative requirements;
• Makes regular reports to maintain or improve the Band's administrative services;
• Suggests new and more efficient methods to accelerate, modernize and adapt services in accordance with workload, human resources and available finances and the requirements of programs;
• Analyzes special requirements and administrative demands of programs to provide personalized, efficient and productive service;
• Assists manager and file supervisors in operating the Band's administrative services to obtain the benefits of efficiency and economy;
• Monitors the operation of administrative services, making the necessary adjustments;
• Organizes information meetings with program managers and file supervisors, to standardize and coordinate the use of administrative services and inform them of any changes;
• Suggests and issues directives, rules and by-laws to define the nature of the services offered, procedures to be followed and methods of implementation relating to administration of the Band;
• Monitors the application of directives, rules and by-laws;
• Establishes an inventory system for administration of the Band to ensure that inventory, furniture, equipment and other items owned by the Band are recorded;
• Ensures that the financial service is adequate and meets the Band's requirements;
• Assesses the current operating requirements of the Band's administrative office and makes necessary adjustments for purchasing office equipment, furniture, renovation, distribution of offices and maintenance of the building.
Supervises accounting for financial information in general for part of the budgetary activities of the Band administration and the collection, compilation and updating of statistical data on the Band's administration:
• Improves the accounting and financial control system;
• Informs employees of various regulations affecting the Band's finances;
• Informs the employees in question of any procedural changes;
• Controls the application of administrative and financial procedures (expense accounts, deduction of rental and loan services and so on);
• Makes amendments to various volumes of directives and regulations;
• Coordinates accounts payable and submits them for verification of accuracy;
• Has all purchase authorizations checked;
• Receives suppliers, repairmen and other persons to ensure they carry out their duties and makes the necessary arrangements;
• Records expenditure in budget items created for that purpose and in accordance with authorized budgetary activities;
• Ensures that financial data are collected on all Band programs and provides periodic financial reports;
• Ensures that statistical data on Band administration is compiled and updated;
• Regularly provides information on financial statements on request to program managers and file supervisors;
• Has the accuracy of data on expenses under all budgetary activities reviewed;
• Checks bills payable with external suppliers and reviews the accuracy of accounts;
• Proposes forms for expenses, purchase authorizations, requisitions, service contracts, and bids to standardize the operation of the expense system;
• Submits service contracts and makes the necessary recommendations in accordance with established directives and regulations;
• Continually monitors employees' pay system to avoid errors and make the necessary deductions accurately;
• Provides relevant information to Band employees on everything concerning fringe benefits;
• Obtains information from companies and the federal and provincial governments on compulsory deductions, procedures to be followed and fringe benefits in order to obtain the benefits thereof for employees.
Participates in the preparation of annual budgets and budgetary forecasts:
• Submits reports to inform management on the financial analysis of operations, summary statements on the financial position of programs, preparation of budgets and budgetary forecasts;
• On certain occasions assists file supervisors and program managers in preparing their budgets;
• Using statistical data, assesses increases in materials, salaries, staff and new requirements of the Band administration;
• Obtains information from the bodies concerned about their financial participation in new projects started by the Band and determines what opportunities there are for creating new programs and projects, in collaboration with file supervisors and program managers;
• Assists the manager, file supervisors and program managers in the annual negotiation of budgets;
• Provides financial information on authorization to bodies and government departments concerned with financing programs;
• If necessary assists the manager with presenting budgets to the Band Council and their approval;
• Suggests standard forms for presenting budgets;
• Indicates to program managers and file supervisors all items they should enter in preparing their budgets;
• Informs file supervisors and program managers of procedures to be used in preparing budgets;
• Suggests methods for assessing and estimating costs in long-term budget forecasting.
Manages support staff in her section: clerk-switchboard operator, secretary, accounting clerk and caretaker:
• Monitors and supervises the work of support staff;
• Assigns work to be done by her staff in accordance with priorities, procedures to be followed and each individual's performance;
• Defines and implements new working methods after reviewing the quality and quantity of work to be done;
• Sits on selection boards when new employees are hired in her section;
• Assesses the performance, future possibilities and objectives of each employee supervised;
• Describes and reviews the analysis of employees' duties in her section for approval;
• Recommends training or development in accordance with the needs of each employee in her section;
• Approves leave and absences by her employees;
• Recommends disciplinary action, depending on the situation and case;
• Implements regulations and directives affecting staff in her section.
May replace the manager in his absence:
• Attends Council meetings;
• Handles urgent problems;
• Responds to requests for financial authorization;
• And so on.
FEDERAL COURT OF CANADA
SOLICITORS OF RECORD
FILE: T-39-02
STYLE OF CAUSE: Solange Fontaine v. André Truchon and the Montagnais Band Council of Uashat Mak Mani-Utenam
PLACE OF HEARING: Québec
DATE OF HEARING: April 9, 2003
REASONS: Rouleau J.
DATE OF REASONS: July 9, 2003
APPEARANCES:
Gilles Grenier FOR THE PLAINTIFF
Jean-François Bertrand FOR THE DEFENDANT
SOLICITORS OF RECORD:
Bertrand, Poulin FOR THE PLAINTIFF
Québec, Quebec
Joli-Coeur, Lacasse, Geoffrion, Jetté, St-Pierre FOR THE DEFENDANT
Québec, Quebec