Date: 19990205
Docket: T-740-98
BETWEEN:
KENN BOREK AIR LTD.
Applicant
- and -
DON W. REID
Respondent
REASONS FOR ORDER
CAMPBELL J.
[1] By a decision dated March 10, 1998, Ms. Anne M. Wallace, an Adjudicator acting under the Canada Labour Code 1 decided that Mr. Reid had been unjustly dismissed from his employment as a pilot with Kenn Borek Air Ltd. 2, and, accordingly, awarded him $41,615.27 as compensation. KBA brings this judicial review, and given that there is a true privative clause protecting the Adjudicator's decision 3, argues that the Adjudicator made two patently unreasonable findings of mixed fact and law which allow me to set aside the decision.
[2] In reaching her decision in favour of Mr. Reid, the Adjudicator heard conflicting evidence from three witnesses: Mr. Reid on his own behalf; and on behalf of KBA, Mr. Gwynn, Assistant Chief Pilot, and Mr. Reid"s supervisor, Mr. Byrne, Senior Base Captain. With respect to the evidence given by these three witnesses, the adjudicator rejected Mr. Gwynn's evidence and accepted that of Mr. Reid. 4
[3] Essentially, the fact scenario leading to the dismissal is as follows: Mr. Reid was unhappy in his work as a line pilot with KBA flying "medivac" and "charter flights"; he wanted to take an available pilot position with Canadian Regional Airlines; to qualify for the position he was required to take a flight simulator test on February 27, 1997; he asked Mr. Gwynn to allow him time off that day but was refused; on February 24, 1997, Mr. Reid's doctor found Mr. Reid unable to attend work between February 24 to 28, 1997 5; while unable to attend work, Mr. Reid flew to Toronto for the simulator test; and upon being confronted by Mr. Gwynn about going to Toronto, from Mr. Gwynn's perspective, Mr. Reid did not give an adequate explanation.
[4] Mr. Gwynn's perspective that Mr. Reid did not give an adequate account for his activities on February 27th formed the ground of the March 4, 1997 dismissal letter authored by Mr. Loutitt, KBA's Chief Pilot at the Edmonton Base, which reads as follows:
| I understand that last week, February 24-28, 1997, you were unable to perform your job due to fatigue, but were able to fly to Toronto for a Simulator Session with Canadian Regional Airlines Ltd. on February 27, 1997. |
| If you really had a problem with fatigue, you could have advised myself or Mr. Gwynn and we could have rescheduled you, instead of taking your course of action. The fact that you lied to Mr. Gwynn about why you went to Toronto during your fatigue period was also not very professional of you. |
After reviewing your file, it has been decided to terminate your employment with Kenn Borek Air Ltd. as of March 5, 1997. [Applicant"s Record, p.171]
[5] With respect to the allegation contained in the dismissal letter that Mr. Reid lied, the Adjudicator made the following finding:
I do not believe Reid intended to lie to Gwynn about the reason for the trip to Toronto. When Reid was asked if he had gone to Toronto for the flight simulator test, he responded that he had gone to Toronto and why he went was his personal business. This answer, while not a lie, was somewhat evasive. [Decision p.20]
[6] At the hearing before me, KBA made three arguments. The first ground upon which KBA brings this application concerns the circumstances surrounding the doctor's opinion that Mr. Reid was unable to attend work. At the time the dismissal letter was written, all that was known to KBA was that Mr. Reid received the opinion at 1630 on February 24th and on February 27th he went to Toronto. Thus, the dismissal was so grounded.
[7] However, Mr. Davis, counsel for KBA, argues that during the course of the hearing before the Adjudicator another ground for dismissal became readily apparent which he tried to argue and which was rejected out of hand, and, thus, was not properly considered by the Adjudicator. Mr. Davis argues that the rejection of this now called "safety" argument was a breach of due process going to jurisdiction, and further that the Adjudicator's failure to consider this new argument of her own motion results in the decision being patently unreasonable.
[8] The "safety" argument arises from the fact that, during the course of the hearing, for the first time, it became apparent that at 0930 on February 24th Mr. Reid attended his doctor and complained about insomnia related to stress. Later that morning, Mr. Reid piloted a flight, and at 1630 reattended his doctor whereupon he received the opinion that he was unable to attend work. 6
[9] KBA's argument is that, given Mr. Reid"s knowledge of his own medical condition before he flew on February 24th, and given the fact that he flew with this knowledge in apparent contravention of KBA policy and Department of Transport Canadian Aviation Regulations 7, good grounds for dismissal exist.
[10] During the course of the hearing questions were asked regarding Mr. Reid"s general competence, and in order to foreclose this line of questioning, Mr. Davis says that he conceded that Mr. Reid"s competence was not in issue. However, Mr. Davis argues that the "safety" argument is distinct from any issue respecting Mr. Reid"s general competence, and, accordingly, ought to have been accepted.
| [11] With respect to the "safety" argument, the Adjudicator made the following finding:As I have already noted above, the Employer does not seek to rely on Gwynn's evidence of past performance issues as part of its justification for terminating Reid's employment. |
[Decision p. 16]
[12] I can easily understand how the Adjudicator would find the "safety" argument is one of general competence. The Adjudicator found, and it is not contested, that Mr. Reid was good with customers and passengers, had a good work ethic, and was safety conscious and conscientious. Within this factual context, the Adjudicator did hear the "safety" argument proposed by Mr. Reid, but, in my opinion, quite reasonably rejected it as an element of general competence which had not been placed in issue. 8
[13] In my opinion, it was open to the Adjudicator to interpret the breach of policy and regulations argument as one of competence. Mr. Reid was a safety conscious employee. Up to the time of being placed on sick leave the responsibility was his to determine whether he was fit to fly. He did so and flew. I, therefore, understand how the Adjudicator could rule as she did. She heard the argument; she made the determination. I find it was reasonable. Accordingly, I reject KBA's argument on the "safety" issue.
[14] The second argument upon which KBA asks me to set aside the Adjudicator's decision stems from a perceived failure of the Adjudicator to properly deal with a duty which Mr. Reid was found to have breached.
[15] With respect to Mr. Reid's duty, the Adjudicator made the following finding:... it was incumbent on Reid to contact his Employer and let them know his doctor had recommended he take the FST [flight simulator test] even though he was on medical leave. It was important the Employer be kept informed so there would be no misunderstanding of what happened.[Decision, p.20]
[16] With respect to this duty, as I have stated above, when questioned about whether he had gone to Toronto to take the flight simulator test, Mr. Reid's answer was found to be evasive, and, therefore, he was effectively found to have breached the duty.
[17] As a result of this found breach of duty, the Adjudicator said this:The Employer would have been justified in disciplining Reid for not having informed them he was going to take the FST and for his manner of responding to Gwynn. Those reasons for discipline, however, would have warranted no more than a written warning. Reid had a completely clear record with the company for four years. His immediate supervisor, Byrne, had never had reason to criticize or discipline Reid. He acknowledged that Reid was good with customers and passengers, had a good work ethic, was safety conscious and conscientious. [Decision, p.20]
[18] Mr. Davis on behalf of KBA argues that the finding that a written warning would be a sufficient response to the perceived breach of duty is patently unreasonable. I can find no reason to agree with this argument. The Adjudicator heard the evidence, was fully in touch with the issues, and made a determination well within the scope of her mandate so to do. 9
[19] KBA"s third argument relates to the manner in which the Adjudicator approached the assessment of compensation. Mr. Davis" argument is that there must be temporal limits to the crafting of an award. I find that there were. The method of analysis of compensation to be awarded Mr. Reid I find to be most reasonable. 10
[20] Accordingly, I dismiss this application.
[21] Respecting the issue of costs, I am urged by Mr. Preston on behalf of Mr. Reid to make an award which fully compensates Mr. Reid for the solicitor-client costs which he has incurred in defending the challenge brought by KBA. I accept Mr. Palmer's statement that Mr. Reid's costs in this respect amount to $9,000.00.
[22] The originating notice of motion in this case alleges a multiplicity of errors. I accept Mr. Palmer's assertion that extensive needless preparation time was expended to answer some allegations which, in the end, were not pressed, and others which had little chance of success.
[23] Mr. Reid is not a man of means. He was successful before the Adjudicator in proving his wrongful dismissal. He received a modest award. For the past two years he has been required to defend an elaborate application to set aside the award, and has been fully successful in so doing. Therefore, I find that KBA is responsible to pay the full costs of Mr. Reid"s successful defence.
[24] Accordingly, I award Mr. Reid costs in the sum of $9,000.00.
Judge
OTTAWA, Ontario
__________________1 R.S.C. 1985, c. L-2, as amended.
2 Hereafter referred to as "KBA".
3 Section 243(1) reads:
Every order of an adjudicator appointed under subsection 242(1) is final and shall not be questioned or reviewed in any court.
(2) No order shall be made, process entered or proceeding taken in any court, whether by way of injunction, certiorari, prohibition, quo warranto or otherwise, to question, review, prohibit or restrain an adjudicator in any proceedings of the adjudicator under section 242.
4 In this respect, the Adjudicator said this:
Gwynn went out of his way to attempt to paint a picture of Don Reid as an incompetent, insubordinate employee with whom Borek had no end of trouble. The Employer's position is that while it does not rely on this evidence as part of its case for cause, the evidence is nevertheless important as "background". I do not accept Gwynn's evidence in this regard. There is no documentation whatsoever of past performance or attitude problems with Reid. Indeed, the immediate supervisor, Byrne, had never had any problem with Reid. I do not accept Gwynn's evidence of past problems, and indeed, where Gwynn's evidence generally differs from that of other witnesses in this case, I prefer the evidence of the other witnesses, including Reid.[Decision p.10]
5 The note signed stating this reads as follows:
This is to certify that Don Reid was seen at this clinic on 24/2/97 at 16:30 and is not able to attend work from 24/2/97 to 28/2/97.Signed J.M. Palmer, M.D.[Applicant"s Record, p.166]
6 Concerning these events, during the hearing before the Adjudicator, Dr. Palmer"s letter dated January 9, 1998 was tendered, the contents of which is as follows:
To Whom It May Concern:
RE: REID, Don W.
Mr. Don W. Reid has been a patient at our clinic, the Tudor Glen Medicentre, since May of 1988. He came to see me on February 24, 1997 on two occasions at 09:30 and 16:30. He returned to see me on February 28, 1997 for the same reason.
Mr. Reid"s initial complaint was of insomnia related to stress arising from his job situation. He stated he had been having some difficulties for a week prior to attending the office. The symptoms he described on both occasions certainly appeared to be secondary to stress. I gave him some advice regarding diet, exercise, sleep habits and gave him a mild prescription to be used temporarily.
When he returned at 16:30 on February 24 he expressed concerns regarding his safety to fly due to the overwhelming stress. I agreed with him and put him off work for the period of February 24 to 28.
Mr. Reid returned to the office on February 28 and looked a lot more relaxed. He had been able to sleep and his stress had reduced due to his ability to cope being increased by his sleep.
Should you require further information please contact me at the above address.
Sincerely,
Janet M. Palmer, B.Sc., M.D.
[Applicant"s Record, p.51]
7 KBA policy reads:
Since pilot fatigue constitutes a severe threat to safe flight, pilots shall use objective discretion to make sure their proficiency is not impaired by too many flight hours.[Applicant"s Record, p.303]
The Regulation of concern (Supplement to the Canada Gazette Part II, Vol. 130, No. 20, p.179.) is as follows:
602.02 No operator of an aircraft shall require any person to act as a flight crew member and no person shall act as a flight crew member, if either the person or the operator has any reason to believe, having regard to the circumstances of the particular flight to be undertaken, that the person
(a) is suffering or is likely to suffer from fatigue; or(b) is otherwise unfit to perform properly the person's duties as a flight crew member.
8 Indeed, it is interesting to note that in KBA"s Originating Notice commencing this judicial review that the now called "safety" argument is framed as: "The learned Adjudicator exceeded her jurisdiction...when she refused to consider evidence on the Respondent"s competency as a pilot as material to his dismissal." [Applicant"s Record, p.4]
9 The obligation on an Adjudicator in conducting a hearing is set out in s.242(3) of the Canada Labour Code as follows: Subject to subsection (3.1), an adjudicator to whom a complaint has been referred under subsection (1) shall (a) consider whether the dismissal of the person who made the complaint was unjust and render a decision thereon; and (b) send a copy of the decision with the reasons therefor to each party to the complaint and to the Minister.
10 Mr. Davis also argues that he was not given a chance to reply to the "rebuttal" argument produced by Mr. Reid on the compensation issue. I do not accept this argument. After finding the unjust dismissal, the Adjudicator asked for written argument on compensation. Mr. Reid first supplied his, Mr. Davis responded and Mr. Reid replied. I find that no rebuttal was required to Mr. Reid"s reply since no new evidence or arguments of merit on compensation had been raised therein.