In the matter of an Adjudication under Division XIV of Part III of the Canada labour Code (Complaint of Alleged Unjust Dismissal) BETWEEN: JUSTIN SNYDER, Complainant AND: HMY AIRWAYS INC, (”HMY” or the “Employer”)
- Petersen
Judgment: February 1, 2007
Docket: YM2707-7175
Ib S. Petersen, Adjudicator
AMENDED PRELIMINARY DECISION
1 This is a preliminary decision arising out a complaint of unjust dismissal before me. A hearing was been scheduled in this matter for March 6, 7 and 8 2007.
2 The background for this preliminary decision is set out in my earlier preliminary decision in this matter, dated January 9, 2007:
Mr. Snyder alleges that he was unjustly dismissed from his employment as a fight dispatcher with the Respondent on or about February 2, 2006. In the Complaint Registration Form, Mr. Snyder states briefly that his dismissal was “done unjustly.” He also states that he was terminated while on sick leave. The Respondent has taken the position that Mr. Snyder was terminated for cause, including incompetence and breach of trust in the performance of his duties.
By letter dated November 2, 2006, counsel for HMY sought disclosure and production of “reliance documents and particulars.” The Complainant did not respond to this request. On November 29, 2006, counsel again wrote to the Complainant, this time seeking production of relevant documents and particulars. In particular, the November 29 demand noted that HMY had reason to believe that Mr. Snyder would rely on alleged drug-use in relation the termination and, further, that HMY had knowledge of the alleged drug-use. The demand was sent via courier and delivery was confirmed. Mr. Snyder did not respond to the request and the Respondent, as it had advised Mr. Snyder in the demand letter, made an application for production of documents and particulars.
By consent, I convened a pre-hearing conference by telephone to deal with the application for 10:00 AM, January 9, 2007. The date was set in agreement with the parties. Notices of the pre-hearing telephone conference, together with instructions, were delivered by email to the parties and receipt confirmed by return email, in case of counsel for the Employer, and by telephone, in case of Mr. Snyder.
Despite being duly notified of the pre-hearing conference, Mr. Snyder failed to participate. I made one attempt to contact him, without success, and commenced the telephone conference approximately 10:15 AM.
3 Based on the arguments and submissions at the pre-hearing conference, I ordered that Mr. Snyder provide particulars to counsel for the Respondent. These particulars are set out in detail in my earlier order. The particulars had to be provided within seven (7) days of receipt of the order. The parties were notified of the order by email.
4 On January 22, 2007, counsel for the Employer made an application to me for a summary dismissal of Mr. Snyder’s complaint based on his failure to attend the pre-hearing conference, and his failure to comply with the January 9, 2007 order. The Employer sought to arrange for a telephone conference where this matter could be heard and disposed of. The Employer’s application was delivered to Mr. Snyder by email and regular mail.
5 In the days following my receipt of the application, I solicited a response to the Employer’s application and I contacted the parties to obtain some times and dates for a telephone conference. Mr. Snyder left a longer telephone message with me that explained that he intended to comply with the order but that he had had some health issues. After that, Mr. Snyder’s message started to address issues that related to the substance of the dismissal. I did not hear that part of the message and deleted it. As I subsequently explained in a letter to the parties, I limit pre-hearing communications with parties to practical matters such as setting dates and the like as I do not wish to compromise my neutrality or appearance of neutrality. Anyway, I left telephone messages with Mr. Snyder, as well as communicating via email, regarding dates for the telephone conference. I then had a telephone message from Mr. Snyder’s mother who indicated that she was representing or assisting her son with his case. She explained that her son had been hospitalized and had not been able to address the particulars. She also started to address issues that related to the substance of the dismissal. For the reasons I indicated above, I did wish to hear these representations outside the presence of the other party and deleted the message. Following further emails between myself and the parties, a telephone conference was scheduled for 11:00 AM (PST)/12:00 PM (MST) on February 1, 2007.
6 The telephone conference addressed a number of issues, including the particulars requested by the Employer and required produced in the January 9, 2007 order and the Employer’s dismissal application. In attendance were counsel or the Employer, Ms. Barbara Korenkiewiezc, and Mrs. Sandra Snyder, Mr. Snyder’s mother. She confirmed that she was authorized to speak for him. In any event, Mr. Snyder joined the telephone conference a few minutes after it had commenced. He also confirmed that his mother had the authority to speak for him but that he was otherwise capable of dealing with the case. During the telephone conference, Mr. Snyder confirmed this a few times. Both Mrs. Snyder and Mr. Snyder were present throughout the telephone conference.
7 The Employer was rightly concerned about the delay in Mr. Snyder’s disclosure of the particulars. The employer noted that the particulars are not unduly onerous and that Mr. Snyder should be able to complete them within a relatively short period of time. The Employer emphasized that it had first requested the particulars back in November of 2006 and that Mr. Snyder had not cooperated with the process that he had initiated through the complaint under the Canada Labour Code. The Employer argued that fairness required the disclosure of the particulars to allow it to prepare properly for the hearing. The Employer anticipated that in response to the particulars, it would likely require production of medical files and other documentation arising out the particulars. The Employer also anticipated the potential need for expert evidence. In short, in the circumstances, the Employer was concerned about the ability to prepare properly for the hearing, a little more than a month away.
8 While the Employer (obviously) disputes liability, taking the position that it had cause for the termination of Mr. Snyder, in case liability is found against the Employer, counsel noted for the record that the Employer intended to argue that Mr. Snyder’s conduct, the delay, in dealing with the complaint contributed and should be taken into account, in other words liability should be cut off or reduced. As well, the Employer noted that it was seeking costs.
9 Mr. Snyder initially questioned the need for the particulars as this was a case of “unjust dismissal.” However, he appeared to accept that the January 9, 2007 order required the particulars to be produced. Mr. Snyder, for his part, confirmed his willingness to work with the process. He explained the delay. He referred to health problems he had suffered from. He admitted that he had procrastinated. He said that was part of the medical situation he was dealing with. He also explained that a former girl friend had some of the documentation and had been unwilling or unable to provide this. Mr. Snyder accepted some responsibility for the delay and did not object to an adjournment. He was agreeable to providing the particulars without further delay. He was also agreeable to providing relevant documents arising out of the order for particulars.
10 In light of Mr. Snyder’s health problem(s), I wanted to ensure that Mr. Snyder was capable of dealing with the case. He seemed to understand the issues discussed in the telephone conference. He also confirmed, and his mother did not contradict this, that he was “totally able to deal with it.” All the same, I recommended that he seek and obtain legal advice without delay.
11 The parties discussed hearing dates in late June, early July, subject to the availability of the Employer’s counsel and witnesses.
12 Based on the submissions and representations before me, I make the following orders:
- Mr. Snyder shall disclose the particulars set out in the order dated January 9, 2007.
- The particulars shall be disclosed by the close of business, Tuesday, February 6, 2007.
- Mr. Snyder shall disclose and produce relevant documents requested by the Employer arising out of the particulars ordered disclosed;
- Mr. Snyder shall be entitled to payment of reasonable costs for the copying of those documents referred to in item 3;
- The hearing set for March 6, 7 and 8 is adjourned generally; and
- The application for summary dismissal of the complaint shall be held in abeyance.
13 In order to facilitate an orderly and efficient use of hearing time, and to avoid costly and unnecessary adjournments, I encourage both parties to disclose and produce relevant documents, including, but limited to such documents as the parties intend to rely on at the hearing, and the names of witnesses, to the extent possible.