Case Name:
Royal Bank of Canada v. Wu
Between
The Royal Bank of Canada, Appellant, and
Li Min (“Amanda”) Wu, Respondent
[2010] F.C.J. No. 725
[2010] A.C.F. no 725
2010 FCA 144
Docket A-437-09
Federal Court of Appeal
Vancouver, British Columbia
LÈtourneau, Pelletier and Stratas JJ.A.
Heard: June 1, 2010.
Oral judgment: June 1, 2010.
(8 paras.)
Labour law — Labour relations — Employees — Discipline — Penalties — Dismissal or discharge — Theft — Appeal by employer from decision setting aside adjudicator’s decision allowed — Adjudicator considered relevant factors and came to reasonable decision in upholding employer’s decision to terminate employment of employee who had misappropriated funds repeatedly and failed to take responsibility her actions — Judge erred in substituting his assessment of evidence where adjudicator’s decision was owed deference.
Labour law — Labour relations boards — Appeals and judicial review — Deference to expertise of board or tribunal — Appeal by employer from decision setting aside adjudicator’s decision allowed — Adjudicator considered relevant factors and came to reasonable decision in upholding employer’s decision to terminate employment of employee who had misappropriated funds repeatedly and failed to take responsibility for her actions — Judge erred in substituting his assessment of evidence where adjudicator’s decision was owed deference.
Appeal by the Royal Bank from a decision allowing Wu’s judicial review application relating to an adjudicator’s decision upholding the Bank’s termination of her employment. The adjudicator had found the Bank justified in firing Wu after discovering she had repeatedly misappropriated money from the Bank. The adjudicator considered Wu’s unblemished service record as well as the premeditation and seriousness of the offence and her refusal to take responsibility for her actions. On judicial review, the judge set aside the adjudicator’s decision and referred the matter to a different adjudicator for re-determination.
HELD: Appeal allowed. The judge failed to afford sufficient deference to the adjudicator’s decision. The adjudicator’s decision was well-documented and reasonable. The adjudicator took into account all the relevant factors and properly applied the principle of proportionality. It was open to him to conclude that the termination of Wu’s employment was an appropriate sanction given the severity of her conduct. The judge erred in substituting his assessment of the evidence for that of the adjudicator.
Statutes, Regulations and Rules Cited:
Canada Labour Code, R.S.C. 1985, c. L-2,
Counsel:
Lorene Novakowski and Mark Colavecchia, for the Appellant.
Thomas F. Beasley, for the Respondent.
The judgment of the Court was delivered by
1 L…TOURNEAU J.A. (orally):– This is an appeal against a judgment of Justice O’Keefe of the Federal Court (the judge) allowing an application for judicial review of the decision of an adjudicator appointed under the Canada Labour Code, R.S.C. 1985, c. L-2.
2 The adjudicator upheld the appellant’s decision to terminate the employment of the respondent. On judicial review, the judge, without explicitly saying so, set aside the adjudicator’s decision and referred the matter to a different adjudicator for re-determination.
3 The issue before us is whether the judge erred in setting aside the decision of the adjudicator.
II. Analysis of the Decision
4 The appellant has raised numerous grounds of complaints against the judge’s decision. It is not necessary to review them in detail. We are of the view that the judge did not accord sufficient deference to the adjudicator’s conclusion. In fact, he clearly substituted his own assessment of the evidence while the evidence on the record reasonably supported the adjudicator’s conclusion that termination of the respondent’s employment on account of misappropriation was not excessive in all of the circumstances. It was not open to the judge, as he did in paragraph 131 of his reasons for judgment, to reweigh factors which had been assessed by the adjudicator in order to come to a different conclusion.
5 The adjudicator’s decision was well documented and reasonable. It should not have been interfered with. The adjudicator applied a contextual approach to decide whether the employment relationship could continue to exist in view of the respondent’s misconduct. He took into account the seriousness of the offence consisting in misappropriation of money, the premeditated and repetitive nature of the misconduct, the respondent’s length of service, her discipline record, any instances of earlier discipline and the consistency of the discipline with the employer’s discharge policy. He also took into consideration the authorities submitted to him by the parties.
6 His analysis and assessment of the evidence led him to make the following findings of fact accepted by the judge. The respondent’s misconduct was serious, premeditated, deliberate and occurred over a long period of time. As he said, it was not a “momentary and emotional aberration”. He noted that the respondent had a discipline free record and was a “good and dedicated employee”, but a short-term employee. He added that the respondent was not singled out for any special or harsh treatment. He also found that the respondent refused to take responsibility for her actions, instead blaming the appellant for allowing her to commit the violations of the Bank Code of Conduct. Accordingly, he ruled that the penalty imposed by the employer was not excessive.
7 In our view the adjudicator took into account the factors relevant to the application of the principle of proportionality. On the basis of the evidence before him, it was open to him to conclude that termination of the respondent’s employment in the circumstances struck “an effective balance between the severity of an employee’s misconduct and the sanction imposed”: see McKinley v. BCTel, [2001] 2 S.C.R. 161.
III. Conclusion
8 For these reasons, the appeal will be allowed with costs, the decision of the judge will be set aside and, rendering the judgment that should have been rendered, the respondent’s application for judicial review in the Federal Court will be dismissed with costs.
L…TOURNEAU J.A.
cp/e/qlaim/qljxr