Supreme Court of Canada

Hilton Québec Ltée v. Labour Court et al., [1980] 1 S.C.R. 548

Date: 1980-03-18

Hilton Québec Limitée Appellant;

and

Labour Court, Marc Brière and André Roy Respondents;

and

Benoît Fortin Mis en cause.

1980: January 29, 30; 1980: March 18.

Present: Pigeon, Dickson, Beetz, Estey and Chouinard JJ.

ON APPEAL FROM THE COURT OF APPEAL FOR QUEBEC

Labour law—Dismissal for distributing a document—Another good and sufficient reason—Jurisdiction of the investigation commissioner—Labour Code, R.S.Q. 1964, c. 141, as am., ss. 13, 14, 15, 16.

The mis en cause Fortin was dismissed by appellant for composing and distributing a document ridiculing the latter. At the time, Fortin was actively participating in a campaign to organize a new union. He filed a complaint under s. 15 of the Labour Code, and the investigation commissioner ordered appellant to reinstate him in his position; this decision was affirmed by the Labour Court. The Superior Court and the Court of Appeal both dismissed appellant’s application for a writ of evocation against the Labour Court judgment: hence the appeal to this Court.

Held: The appeal should be dismissed.

The principles applicable to this case are the same as in Lafrance v. Commercial Photo Service, in which this Court, in a judgment rendered concurrently with the case at bar, affirmed that the phrase “another good and sufficient reason” in s. 16 of the Labour Code means that the investigation commissioner must be satisfied that the reason cited by the employer is of a substantial nature and not merely a pretext, and that it constitutes the true reason for the dismissal. In the case at bar the investigation commissioner and the Labour Court judge found that the reason cited by appellant was not the true reason for the dismissal, and that accordingly appellant, having failed to prove another good and sufficient reason, had not rebutted the presumption of s. 16. In doing so, they were only exercising the jurisdiction conferred on them by the Labour Code, and the writ of evocation was properly denied.

[Page 549]

Lafrance et al. v. Commercial Photo Service Inc., [1980 167 (SCC)], [1980] 1 S.C.R. 536, followed.

APPEAL from a decision of the Court of Appeal of Quebec, affirming a judgment of the Superior Court which refused to issue a writ of evocation from a judgment of the Labour Court, upholding a decision by an investigation commissioner. Appeal dismissed.

Guy Letarte, Q.C., and Gilles Plante, for the appellant.

Rénald Labbé, for the mis en cause.

English version of the judgment of the Court delivered by

CHOUINARD J.—As in Lafrance et al. v. Commercial Photo Service Inc.[^1] which was decided concurrently with the case at bar, this appeal deals with the interpretation of ss. 14 and 16 of the Quebec Labour Code, R.S.Q. 1964, c. 141, more specifically with the meaning of the phrase “another good and sufficient reason” in s. 16, and with the jurisdiction of the investigation commissioner and the Labour Court in this regard.

The facts are of course different but the applicable principles are the same.

Turgeon J. of the Court of Appeal summarized the matter for consideration as follows:

[TRANSLATION] The mis en cause Benoît Fortin was dismissed by his employer Hilton Québec Ltd. for composing and distributing a certain document as part of a campaign to establish a union affiliated with the CNTU.

At the time the facts of this case occurred, a collective agreement existed between appellant and the Union des Employés d’Hôtels, Motels, Clubs, Local 382 (Q.F.L.). The mis en cause, Benoît Fortin, wished to organize a union affiliated with the CNTU. Instead of filing a grievance under the existing collective agreement, Benoît Fortin decided to have recourse to s. 15 of the Labour Code.

The investigation commissioner, André Roy, ordered the employer Hilton to reinstate the mis en cause Fortin in his position. On appeal to the Labour Court, the decision of the investigation commissioner was upheld.

[Page 550]

Appellant contended that it had established good and sufficient reason for dismissal and alleged that the investigation commissioner and the Labour Court wrongly allowed the complaint of the mis en cause Fortin for dismissal resulting from union activities, when they acknowledged the existence of another reason.

The Superior Court dismissed appellant’s application for a writ of evocation pursuant to art. 846 of the Code of Civil Procedure, and the Court of Appeal upheld this judgment.

Once it is established that an employee is exercising a right conferred on him by the Labour Code, s. 16 creates a presumption in his favour that he was dismissed because he exercised this right.

There is no problem in this regard in the case at bar, and appellant admitted that the presumption applied to the mis en cause.

In order to rebut this presumption, the employer has the burden of showing that the employee was dismissed for “another good and sufficient reason”.

In Lafrance et al. v. Commercial Photo Service Inc., the Court upheld the consistent line of decisions by the Labour Court and the Court of Appeal that this expression means that the investigation commissioner must be satisfied that the other reason cited by the employer is of a substantial nature and not merely a pretext, and that it constitutes the true reason for the dismissal.

Under this interpretation, the investigation commissioner is not required to rule on the severity of the penalty as compared with the seriousness of the wrongful act in question, in other words, to substitute his judgment for that of the employer, in doing which he would exceed his jurisdiction.

Moreover, this is the interpretation relied on by appellant, at least at the hearing. I would say that the same is true of its factum, except that the latter contains a passage that may be ambiguous. Counsel for the appellant stated:

[TRANSLATION] The role of the investigation commissioner, as defined by the courts, consists in determining whether the reason for the dismissal cited by the employer is the true reason and not a pretext. The courts

[Page 551]

have held that if the causa causans of the dismissal is not lawful union activity, but is some other independent reason, unrelated to the exercise by an employee of a right conferred by the Labour Code, the investigation commissioner has jurisdiction neither to vacate the penalty imposed by the employer nor to amend it.

Thus, the expression “good and sufficient reason”, which is not contained in s. 14, has been interpreted as referring to the truth of the other reason and the sufficiency of the evidence to rebut the presumption, and not to the sufficiency of the reason which, in the opinion of the investigation commissioner or the Labour Court, justifies the imposition of disciplinary penalties.

The second paragraph is ambiguous, in that it appears to rely solely on the standard of the truthfulness of the reason, without examining its seriousness so as to distinguish it from a mere pretext. It would appear to be such an ambiguity which led Turgeon J. to observe:

[TRANSLATION] …In the submission of appellant, this line of authority means that the investigation commissioner has no basis for examining the reason for the dismissal except to determine its truthfulness.

With respect, I cannot accept this interpretation of s. 16 of the Labour Code. The latter requires the employer to prove good and sufficient reason in order to rebut the legal presumption; this demonstrates an intent that the evidence shall be of this kind and a refusal to accept evidence of any reason whatever which can be but a pretext.

In fact, however, these principles and this consistent line of authority are not at issue here. Rather, the issue turns on their application to the facts of this case.

Citing a number of extracts from the decision of the investigation commissioner on the one hand and of the Labour Court on the other, appellant sought to show that they both exceeded their jurisdiction by substituting their own judgment for that of appellant, and that in short they based their decision on the fact that in their opinion the dismissal was too severe a penalty compared with the reason cited.

Like the Court of Appeal and the Superior Court, I am of the opinion that this is not what the investigation commissioner and the Labour Court did.

[Page 552]

It is true that the investigation commissioner made observations tending to suggest that he disagreed with the consistent interpretation referred to above. However, his decision must be taken as a whole and looked at in terms of its conclusion. He concludes his analysis as follows:

[TRANSLATION] …Although it was established that other employees also carried on union activity and had not been dismissed, the investigation commissioner considers that the publication of this document was actually a pretext to eliminate an employee who was taking an active part in union recruitment, but had given no other cause for complaint. In the circumstances, accordingly, the investigation commissioner concludes that respondent has not effectively discharged the burden of proof.

The Labour Court judge too indicated his inclination to depart from the established decisions, but once again regard must be had to his conclusion, which appears to me to be decisive:

[TRANSLATION] In any event, it was also the investigation commissioner’s opinion “that publication of this document was actually a pretext to eliminate an employee who was taking an active part in union recruitment, but had given no other cause for complaint”, and I concur in that view. Whatever the interpretation that must be given to s. 16 L.C., it appears that appellant has not rebutted the legal presumption in favour of respondent.

Both the investigation commissioner and the Labour Court judge found that the reason cited by appellant was not of a substantial nature and the true reason for the dismissal, but was actually a pretext, and that accordingly appellant having failed to prove another good and sufficient reason, had not rebutted the presumption of s. 16.

In doing so, they were only exercising the jurisdiction conferred on them by the Labour Code, and the writ of evocation was properly denied.

For these reasons and those stated by the judges of the Court of Appeal, I would dismiss the appeal with costs.

Appeal dismissed with costs.

Solicitors for the appellant: Gagné, Letarte, Royer, Gauthier, Lacasse & Boily, Quebec.

Solicitors for the mis en cause: Yergeau, Labbé & Associés, Quebec.

[^1]: [1980 167 (SCC)], [1980] 1 S.C.R. 536.