On July 23, 2012, in Syndicat des paramedics et du préhospitalier de la Montérégie – CSN c. Coopérative des techniciens ambulanciers de la Montérégie (CETAM),1 the Quebec Court of Appeal upheld the firing of an employee who had made a false claim to the Commission de la santé et de la sécurité du travail (CSST), ruling that filing a false claim with the CSST which caused financial and operational prejudice to the employer and resulted in a breach of the relationship of trust was a ground for dismissal.
The Facts
Mr. Johnny Garand worked as a paramedic for the Coopérative des techniciens ambulanciers de la Montérégie. In 2007, he filed a first claim for elbow tendonitis which the CSST recognized as an employment injury. Subsequently he filed a claim for a recurrence, relapse or aggravation of the injury to his right elbow, which was denied. The Commission des lésions professionnelles (CLP) upheld the CSST's decision, questioning the credibility, honesty and integrity of the employee, who claimed that he had experienced pain on August 4, 2007 while moving a patient, although he was not at work on that day. Following the CLP's decision, the employer fired Mr. Garand for making a false industrial injury claim, on the ground that he had breached his duty of loyalty and the relationship of trust.
The grievance arbitrator upheld the employer's decision, stating that, in view of the significant financial impact and the operational difficulties (shortage of personnel) resulting from the false claim, the employer was justified in not retaining an employee who was not sufficiently reliable for the job in question. The Superior Court refused to intervene, holding that in reaching his decision the arbitrator had exercised his jurisdiction in a reasonable manner based on the testimonial evidence and the CLP's factual observations. Before the Court of Appeal, the union claimed that the arbitration award had been handed down without the benefit of evidence and that the arbitrator had failed to assess the proportionality of the offence relative to the penalty.
The Decision
The appeal thus concerned two issues: evidence of an offence as a prerequisite for dismissal and the assessment of the proportionality of the offence relative to the penalty.
The Court of Appeal started by reviewing the arbitrator's finding that the claim was false and that it constituted an offence against the employer. In reaching this conclusion, the arbitrator had relied on the CLP's findings, testimonial evidence and evidence relating to the consequences of a false claim for the employer. According to the Court of Appeal, these findings had a rational basis and the judge in first instance correctly applied the level of deference required by the standard of reasonableness. The Court of Appeal therefore refused to intervene on this first point.
The Court of Appeal also upheld the arbitrator's finding that dismissal was an appropriate penalty. The Court recalled that determining the severity of the penalty falls squarely within the arbitrator's powers and that such a specialized tribunal should be given the highest degree of deference. Courts should refrain from interfering in an arbitrator's jurisdiction provided decisions are made on a factual basis. In this case, uncontradicted evidence of the effect of false claims on the employer's operations, not just financially but also in terms of the repercussions of absenteeism, prompted the arbitrator to find that the breach in the relationship of trust warranted the employee's dismissal. The Court of Appeal found that the decision was based in fact and that the arbitrator had exercised the powers granted him by law in a reasonable manner. The Court found that there was no error in the judgment in first instance and dismissed the union's appeal with costs.
Conclusion
This decision of the Court of Appeal follows the prevailing line of authority to the effect that a false declaration to the CSST may constitute a fault that deserves punishment. However, one should not conclude that dismissal will always be upheld by the courts, as the existence of an offence and the seriousness of the penalty must be assessed in light of the individual circumstances and the evidence adduced in each case. Nonetheless, the Court of Appeal has confirmed that a false claim to the CSST may in certain circumstances constitute an offence that breaches the relationship of trust and justifies the extreme measure of dismissal.
In conclusion, this decision is a good illustration of the high degree of deference shown by the courts for arbitral awards. It underscores how difficult it may be for a party to have overturned in judicial review a decision that is based on a factual assessment of the seriousness of the fault and the severity of the penalty.
Footnotes
1 2012 QCCA 1326, J.E. 2012-1544 (C.A.), Hilton, Gagnon and Fournier, JJA.
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