Court of Appeal of Quebec

Lévesque c. Marlin Chevrolet Buick GMC inc.

Gagné, Hamilton, Beaupré

Appeal from a judgment of the Superior Court granting in part an application for judicial review and dismissing an application for judicial review of a decision by the Administrative Labour Tribunal (ALT) regarding the determination of an indemnity. Allowed in part.

The ALT (ALT1) granted the appellant’s complaint pursuant to s. 124 of the Act respecting labour standards (CQLR, c. N-1.1) and cancelled his dismissal. Finding that reinstatement was inappropriate, ALT1 ordered the payment of an indemnity for loss of wages (ILW) and an indemnity for loss of employment (ILE). The ALT sitting in review quashed these conclusions. Charged with ruling on the remedies, a new ALT bench (ALT3) found that the period covered by the ILW started on the date of the appellant’s dismissal and ended on the day he refused the respondent’s offer to be reinstated in his position, July 26, 2017. Examining the appellant’s obligation to reduce his damage, ALT3 considered that the respondent did not have to support the growth of his business and that it was appropriate to reduce the ILW by 40% in 2016, and 60% in 2017, in addition to deducting the business’s earnings before taxes. The two parties appealed from that decision. Allowing in part the respondent’s proceeding, the trial judge concluded that the decision by ALT3 regarding the period of evaluation for the ILW was not reasonable and that the period should have ended on the date of the decision by ALT1 cancelling the dismissal, June 17, 2016.

The ILW generally runs until reinstatement or the refusal to reinstate (Carrier c. Mittal Canada inc. (C.A., 2014-04-04), 2014 QCCA 679, SOQUIJ AZ-51061278, 2014EXP-1303, 2014EXPT-737, J.E. 2014-725, D.T.E. 2014T-284). In this case, the ILW could have run until the decision by ALT3 because that is the final decision refusing reinstatement. There was no reason for the trial judge to intervene on the question of the date for the end of the ILW. Furthermore, the parties and the judge err by focusing solely on the date on which the ILW ends without considering the fact that ALT3 also determined the ILE to complete the appellant’s compensation. The total indemnity granted by ALT3 does not appear unreasonable if we consider the circumstances of the case. The judge’s intervention is problematic because he shortened the period and reduced the amount of the ILW but did not reassess the ILE and did not consider whether the total indemnity remained reasonable.

The appellant contests the deduction of both his business’s income and the net percentage of the ILW in ALT’s assessment of the reduction of damages. Because the appellant controls the amounts received from his business, it was reasonable for ALT3 to use his earnings before taxes. The ALT could also decide to use an estimate rather than the reported net income or to enhance the reported net income. ALT3 combined these two methods. This addition of deductions is illogical and unreasonable and constitutes a compelling flaw justifying a review of the decision. What is more, ALT3 could have deducted the greater of 40% of the ILW or the net income in 2016, then the greater of 60% of the ILW or the net income in 2017. That would result in an ILW of $67,655 rather than $55,274 for the period between the dismissal and the decision by ALT3. The total indemnity, which would then be $112,655, would remain reasonable.

The judgment of the Superior Court is quashed and the decision by ALT3 is restored, except with respect to the amount of the ILW.

Text of the decision: http://citoyens.soquij.qc.ca

 

 

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