Executive Summary: Key Legal and Evidentiary Issues

• Reasonableness of the labour arbitrator’s decision under the Vavilov standard on judicial review.
• Characterization of video surveillance as direct versus indirect (circumstantial) evidence of alleged sabotage.
• Allocation and discharge of the employer’s burden of proof on a balance of probabilities in a disciplinary dismissal.
• Reliance on presumptions of fact and circumstantial evidence to infer employee misconduct.
• Assessment of credibility and consistency of the grievor’s version in light of contradictory employer evidence.
• Threshold for appellate intervention where alleged logical gaps or factual misapprehensions are invoked against an arbitral award.

Facts of the case

Boulangerie Canada Bread ltée (BCB) operates a bakery business producing bread and related baked goods. It employs Mr. Nabil Maghdaoui, who first worked for the company between 2012 and 2016, and then returned to employment in October 2019. Since 2021, he has held the position of shipper, responsible for preparing bread orders and transporting them to the loading dock using manual carts and forklifts.

During the night of 3 to 4 September 2023, an incident occurred on a production line involving the conveyor system and the “bypass” mechanism. According to BCB, the bypass was activated, causing bread to divert to the lower conveyor, where it would normally be manually recovered for cooling instead of proceeding on the upper conveyor to the automatic cooler. This deviation allegedly caused a production stoppage of about 30 minutes and financial losses estimated at 1,594.83 dollars due to damaged, non-compliant bread.

On 4 September 2023, BCB suspended Mr. Maghdaoui with pay for purposes of investigation. Three days later, on 7 September 2023, it dismissed him, alleging that he deliberately activated the bypass, thereby committing sabotage of the production line. The union, Syndicat international des travailleurs et travailleuses de la boulangerie, confiserie, tabac et meunerie, section locale 55, filed a grievance contesting the dismissal.

An arbitration hearing took place on 17 January 2024 before arbitrator Me Marc Mancini. On 8 February 2024, the arbitrator allowed the grievance, rejected the allegation of sabotage and ordered the reinstatement of Mr. Maghdaoui. The employer then brought a judicial review application (pourvoi en contrôle judiciaire) before the Quebec Superior Court, challenging the arbitral decision.

Positions of the parties before the arbitrator

BCB’s theory was that the only plausible explanation for the incident was deliberate manual activation of the bypass by the grievor. It relied on several elements: Mr. Maghdaoui’s presence working at shipping that night; his statement that he heard a noise near the lower conveyor; video surveillance showing him walking toward the conveyor area, passing very close to the control section where the bypass can be activated, and returning to his workstation; and the fact that bread stopped circulating on the upper conveyor shortly after his passage. BCB also presented evidence, through its production manager, that an internal investigation had revealed no mechanical or electrical irregularity capable of automatically triggering the bypass. The employer argued that the bypass could only be engaged manually by operating two controls: a pneumatic lever and a “shifter.” In its view, these elements taken together established that the grievor committed an act of sabotage justifying dismissal.

For his part, Mr. Maghdaoui consistently denied any wrongdoing. He testified that after hearing a noise, he went to check whether bread was being diverted to the lower conveyor, because if that had been the case, he would have needed to press the emergency button to mobilize staff to recover the loaves manually and allow manual cooling. On seeing no bread on the lower conveyor, he concluded there was no issue and promptly returned to his workstation. The video corroborated that his trip to and from the conveyor area lasted less than 30 seconds. He also testified that he had no reason to sabotage the line, no animosity toward the employer, and no disciplinary record indicating prior misconduct.

BCB’s termination letter asserted that he had changed his version during the investigation, but the arbitrator, after hearing the evidence, found that his account had in fact remained constant from the disciplinary meeting through the hearing. The absence of demonstrated motive, combined with a previously clean disciplinary record, formed part of the arbitrator’s overall appreciation of the evidence.

The arbitral decision and treatment of the evidence

In the arbitration award, the arbitrator began by confirming that the evidentiary burden rested on the employer. In a disciplinary context, BCB had to establish, on a balance of probabilities, that the grievor had committed the alleged act of sabotage. The arbitrator then turned to the nature of the evidence and, in particular, the classification of the video recording. Drawing on civil-evidence doctrine, he distinguished between direct evidence—evidence that bears immediately on the contested fact—and indirect evidence, which concerns other relevant facts from which the disputed fact may be inferred by presumption.

The contested fact, as he defined it, was the material act of sabotage: the concrete act of hindering production by damaging or improperly using machinery or equipment, here by manually activating the bypass to disrupt the normal flow of bread on the conveyor. The video showed that the grievor walked to the area of the conveyor, came very close to the machine where the bypass can be engaged, advanced toward the cooler and then returned toward his workstation. However, the footage did not show his hand operating the pneumatic lever and the shifter. Because he was filmed from behind, the camera did not capture the physical act of triggering the controls.

The arbitrator therefore concluded that the video did not directly show the act of sabotage itself. Instead, it established a relevant surrounding fact—his presence in close proximity to the control panel at the time the conveyor stopped. On that basis, he qualified the recording as indirect or circumstantial evidence that could, together with the other elements, potentially support a presumption that the grievor activated the bypass.

Assessing the full record, the arbitrator noted that there had been other unexplained stops of the same conveyor in the past, that the employer’s assertion of the absence of mechanical or electrical problems was based only on the oral account of its manager, and that the grievor’s testimony, including his stated purpose in checking the lower conveyor and his constant denial of wrongdoing, remained credible. He ultimately found that the presumptive case advanced by BCB was not sufficiently clear, precise and convincing to carry its burden of proof. As a result, he held that the employer had failed to demonstrate, on a preponderance of evidence, that Mr. Maghdaoui had intentionally sabotaged the production line, and he ordered his reinstatement.

The judicial review application and the issues raised

Unhappy with that outcome, BCB applied to the Quebec Superior Court for judicial review of the arbitrator’s decision. The parties accepted that the applicable standard of review under the Supreme Court of Canada’s Vavilov framework was reasonableness. Under that standard, the reviewing court’s task is not to reweigh evidence but to determine whether the decision, and the reasons supporting it, are internally coherent and defensible in light of the applicable legal and factual constraints.

In its application, the employer originally advanced several grounds to justify intervention. It alleged that the arbitrator made a “déraisonnable” (unreasonable) error by qualifying the video recording as indirect evidence; that he engaged in an incoherent reasoning process when characterizing the evidence as a whole; and, in the alternative, that even if his classification and justification of the evidence were correct, his conclusion that the employer had not proved the alleged sabotage was incoherent and contrary to the applicable factual and legal constraints.

At the hearing before the Superior Court, BCB narrowed its challenge to the single point of the classification of the video as indirect evidence. It argued that the recording constituted direct visual proof of the grievor’s actions: in its submission, the video clearly showed him on the other side of the yellow barrier, near the only control panel capable of activating the bypass, with arm movements coinciding with the exact moment the conveyor stopped. For BCB, anyone with basic knowledge of the line’s functioning would understand that the act of activating the bypass had been caught on camera, and treating this as merely circumstantial evidence was a legal error rendering the arbitral decision unreasonable.

The union opposed the application, emphasizing that judicial review is not an appeal on the merits and that the court must refrain from reassessing the arbitrator’s appreciation of the evidence. It contended that the employer had not shown any serious logical defect, misapplication of the law of evidence, or misapprehension of the record that could meet the demanding Vavilov threshold for intervention.

The Superior Court’s analysis of reasonableness

The Superior Court began by recalling the Vavilov principles governing reasonableness review. A decision will be reasonable if it rests on an internally coherent chain of reasoning and is justified in light of the relevant legal and factual constraints. The reviewing court must examine the reasons given with respectful attention, seeking to understand the decision-maker’s reasoning path, and may only intervene where the decision suffers from serious deficiencies such that it fails the requirements of justification, intelligibility and transparency.

The Court noted that Vavilov identifies two broad categories of fundamental flaws that can render a decision unreasonable: a lack of internal logic in the reasoning, and outcomes that are indefensible given the governing legal framework and the evidence before the decision-maker. It also emphasized that decision-makers are not required to be perfect or to address every argument, and that a result that is substantively acceptable cannot stand if supported by a flawed analysis—but the burden remains on the party challenging the decision to show serious, outcome-affecting defects.

Against this backdrop, the Court turned to the specific issue raised by BCB: whether the arbitrator’s characterization of the video as indirect evidence was unreasonable. Referring to the definition of sabotage adopted by the arbitrator, the Court agreed that the “fact in issue” was the material act of hindering production by misusing or damaging equipment—in concrete terms, the manual activation of the bypass by the grievor. It accepted the arbitrator’s finding that the video did not actually show the grievor engaging the controls, given that he was filmed from behind and the hand movements necessary to manipulate both the pneumatic lever and the shifter were not visible.

On that basis, the Court held that the arbitrator’s classification of the video as indirect evidence was justified. The recording showed the grievor’s presence near the control panel and the temporal correlation between his passage and the stoppage of the conveyor, but not the physical act of activation itself. It therefore constituted circumstantial evidence of a relevant surrounding fact (proximity to the controls at the critical moment), from which an inference could potentially be drawn, rather than direct proof of the act of sabotage.

The Court also observed that the arbitrator did not stop at labelling the video. He integrated it into a global assessment of all the evidence: the prior unexplained stoppages of the conveyor, the limits of the employer’s mechanical and electrical checks, the consistency and credibility of the grievor’s testimony, his lack of motive and clean disciplinary history, and the absence of proof of intent to sabotage. From this holistic analysis, the arbitrator reasonably concluded that the presumptive case advanced by BCB was not sufficiently strong to satisfy its burden of proof on a balance of probabilities.

Because the classification of the video as indirect evidence flowed logically from the definitions of direct and circumstantial evidence applied to the facts, and because the ultimate conclusion on burden of proof and intent was one of the acceptable possible outcomes on the record, the Court found no basis to characterize the arbitral reasoning as illogical or contrary to law.

Ruling and outcome

In its dispositive portion, the Superior Court dismissed the employer’s application for judicial review, expressly rejecting the challenge to the arbitrator’s treatment of the video evidence. The Court held that BCB had not shown that the arbitral decision suffered from serious logical or legal defects that would make it unreasonable. On the contrary, the arbitrator’s explanation of the difference between direct and indirect evidence, his characterization of the recording as circumstantial, and his overall weighing of the evidence in concluding that the employer had not discharged its burden all fell within the range of acceptable, defensible outcomes.

As a result, the arbitration award ordering the reinstatement of Mr. Maghdaoui remains in force. The successful party on judicial review is the union side—Syndicat international des travailleurs et travailleuses de la boulangerie, confiserie, tabac et meunerie, section locale 55, on behalf of the grievor—while BCB’s application is dismissed “with costs.” The judgment does not specify any fixed monetary amount for those costs, and apart from the employer’s alleged loss of 1,594.83 dollars (which is not awarded), no quantified damages or monetary award in favour of the successful party can be determined from the decision.