The Federal Court has dismissed two separate applications for judicial review brought by a former CIBC employee — and the bank itself — after an arbitrator awarded him $43,200 in compensation for unjust dismissal.
The court found no basis to disturb the arbitrator’s redetermination of damages, which included deductions for failure to mitigate losses and contributory fault.
In its reasons, the court stressed that “neither parties have raised an argument that convinces me that the Redetermination Decision is unreasonable,” effectively bringing to a close a protracted dispute over the amount of money G.K. should receive following his termination in June 2016.
Background of the dismissal
G.K. had been employed by the CIBC for roughly 16 years, holding multiple positions and receiving various pay increases and bonuses. The working relationship, however, was marked by both positive performance notes and a series of warning letters.
During what G.K. characterized as a stressful period at work, he took a sick leave. While still on leave, G.K. received a letter stating he was “terminated for cause and without payment, effective immediately for the reasons discussed with you.”
Believing this to be an unjust termination, G.K. filed a complaint under section 240 of the Canada Labour Code. An arbitrator subsequently ruled that there was insufficient cause for G.K.’s dismissal, but determined that reinstatement was not a viable remedy, citing tension between G.K. and his managers.
Instead, the arbitrator awarded compensation in lieu of reinstatement. That initial damages assessment led G.K. to bring one of several challenges, leading to multiple hearings and judicial reviews.
Re-determination of compensation
On re-determination, the arbitrator ultimately set his total compensation at $43,200. The figure was based on an 18-month salary calculation valued at $60,000, minus deductions for inadequate mitigation efforts (30 per cent) and contributory fault (10 per cent). The arbitrator then added an extra 20 per cent of the indemnity as partial legal fees, bringing the final figure to $43,200. Moral damages were denied.
Both G.K. and the CIBC applied for judicial review. G.K. argued he should have received full back pay for the entire period he was off work, plus additional amounts for moral damages and full legal fees. The CIBC claimed the arbitrator had not properly explained the much higher award — compared with an earlier determination of approximately $10,000 — and suggested the correct compensation should have remained closer to that lower figure.
Affidavits and evidence struck from the record
In the course of reviewing both parties’ applications, the court struck multiple paragraphs of G.K.’s affidavits for containing opinion, argument, or legal conclusions rather than purely factual statements.
The court emphasized that “affidavits must be confined to facts within the personal knowledge of the affiant and must speak only to those factual matters, without further gloss or argumentation.” It further noted that under well-established principles, “documents simply stuffed into an application record are not admissible” if they are not attached to a valid affidavit.
Consequently, exhibits introduced by G.K. outside his sworn evidence were also declared inadmissible. The court denied G.K.’s request for leave to amend his affidavits, pointing out that he had been aware of evidentiary objections for months but chose not to correct his filings in a timely manner.
Key issues in this case
Unjust dismissal and compensation: The court noted that the adjudicator has “broad authority to grant an appropriate remedy” under the unjust dismissal provisions of the Canada Labour Code. Even though G.K. argued for a “make whole” approach that included full lost wages, the court upheld the adjudicator’s discretionary power to choose specific remedies within the Code. The adjudicator calculated an indemnity based on factors such as length of service, G.K.’s position, and the nature of the dismissal.
Failure to mitigate: A major consideration was G.K.’s duty to mitigate his losses by making reasonable efforts to secure alternative employment. G.K. testified that over multiple years, he applied for only three positions and did limited tutoring work. The adjudicator took judicial notice of a healthy labour market and concluded G.K. had not demonstrated sufficient job-seeking efforts. The court confirmed that “it was reasonable for the Adjudicator to consider G.K.’s admissions in his assessment” and that an employer is not obligated to produce a list of jobs an employee could have obtained.
Contributory fault: The adjudicator found G.K. bore partial responsibility for events leading to the breakdown in his working relationship, deducting 10 per cent from his overall award for contributory fault. The court deferred to the arbitrator’s factual conclusions on that point, noting no “central or significant flaw” in the chain of reasoning.
Moral damages and legal fees: G.K. sought moral damages for what he claimed was humiliating treatment, plus substantial reimbursement of his legal costs. The adjudicator denied moral damages, citing a lack of persuasive medical or factual evidence linking G.K.’s distress directly to the bank’s actions. As to legal fees, the adjudicator awarded an amount representing 20 per cent of G.K.’s indemnity—roughly $7,200—based on a fee mandate that came to light during the hearings. The court saw no basis to interfere, noting there were “no evident errors” in the adjudicator’s approach to that part of the calculation.
Dismissal of judicial reviews
In the end, the court maintained the $43,200 award, dismissing both judicial review applications. It saw “no reason to interfere with the Adjudicator’s analysis,” and concluded that awarding compensation in lieu of reinstatement, making deductions for inadequate job-search efforts, and adding limited legal fees all fit within the bounds of reasonableness.
The court also declined to use its discretion to modify the award further or order a new hearing, citing the drawn-out nature of the litigation. Both parties were instructed to bear their own costs.
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