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Background and employment relationship
Jose De Oliva worked for Nemko Canada Inc., a company specializing in testing and certification of products, from October 2017. He held the position of Sales Executive responsible for sales in Canada and the eastern United States. His role involved meeting sales targets and travelling, including to the U.S., which became complicated during the COVID-19 pandemic. In August 2020, Nemko’s sales department was under pressure due to deteriorating financial results, and the sales director, Gilles Philion, asked all sales staff to provide action plans to reach or exceed their individual budgets. This context of financial strain and performance pressure frames the subsequent termination of De Oliva’s employment.
Termination meeting and severance transaction
On 27 August 2020, De Oliva attended a meeting with Philion, initially also in the presence of another salesperson, Constantin (Costa) Pintilei. After a general discussion about Nemko’s financial difficulties and the impact of COVID-19, Philion asked Pintilei to leave so he could speak privately with De Oliva. Philion then informed De Oliva that his position as Sales Executive had been abolished for financial reasons, referencing restructuring and the company’s need to cut costs. He gave De Oliva a termination letter stating that the Sales Executive position had been made redundant and set out a severance package conditional on De Oliva signing a Release Agreement, which was a transaction and quittance. De Oliva was told he could take a few days and consult a lawyer, but he signed the transaction the same day, indicating he viewed the offered severance as fair. The General Manager signed the agreement on 31 August 2020, and De Oliva received the fully executed version in October.
Emerging doubts about the true reason for termination
In the weeks after his departure, De Oliva began to question the explanation he had accepted at the termination meeting. Toward late September, Pintilei allegedly showed him a 28 August 2020 email from Nemko’s General Manager, circulated internally, which appeared, in De Oliva’s view, to link the need to improve sales performance with his termination. This gave him a first “warning bell” about whether the reason truly was financial redundancy. A second concern arose when an old client reported that calling De Oliva’s former number at Nemko led to a certain Giovanna (identified in the judgment as G.D.), who said she had replaced him. Former colleagues also told him a Ms. Johnson had been hired in New Hampshire, apparently to handle the U.S. territory that had been part of his portfolio. These elements led De Oliva to suspect that Nemko had not actually abolished his position, but instead replaced him while characterizing his departure as a redundancy.
Employee’s challenge and complaints under the LNT
On 13 October 2020, De Oliva wrote to Nemko asking for the true reason for his layoff, noting that the termination letter did not specify the underlying cause. Nemko’s response reiterated that his employment ended in the context of restructuring and job abolition. De Oliva then received further information from a former TÜV colleague that G.D. had chosen not to transfer to TÜV’s Ottawa office after its Montreal office closed and instead accepted a job with Nemko. He also said he had confirmation that Ms. Johnson was working at Nemko in New Hampshire on the U.S. side he had previously handled. On 27 October 2020, through his lawyers, De Oliva sent Nemko a demand letter referencing the 28 August internal email and the alleged subsequent hires. He claimed Nemko had misled him into believing his position was abolished for economic reasons when he had in fact been unlawfully discharged. He demanded reinstatement. Nemko refused by letter dated 16 November 2020, explaining why it would not reinstate him. That same day, 16 November 2020, De Oliva filed two complaints under the Loi sur les normes du travail: one under article 122 (prohibited practice, alleging termination to avoid LNT protections) and another under article 124 (dismissal without just and sufficient cause).
Proceedings before the Tribunal administratif du travail
The complaints went through the CNESST process and were eventually referred to the Tribunal administratif du travail (TAT). A hearing date was set for 30 January 2023. In December 2022, Nemko’s counsel advised De Oliva’s counsel that Nemko would raise two preliminary issues at the TAT hearing and asked that the hearing be limited to those questions: first, that the complaints were filed outside the 45-day delay in articles 123 and 124 LNT; and second, that the transaction (release) barred the complaints because De Oliva had waived his recourses. At the 30 January 2023 hearing, the TAT administrative judge, Me François Demers, heard submissions on whether to decide these preliminary questions immediately or only after a full hearing on the merits. He decided to hear evidence on the preliminary objections first, then determine whether he could decide them on that basis or would defer to the merits.
Evidence and arguments at the TAT on preliminary objections
Nemko called Philion, who testified about Nemko’s financial difficulties, pressure to meet budgets, the decision to abolish the Sales Executive position, and the circumstances of the termination meeting and the severance offer. De Oliva testified about his understanding at the time of signing the transaction, his acceptance of the stated financial reason, and the later information he obtained about G.D. and Ms. Johnson which led him to think he had been replaced. He then called Philion again to question him about the hiring of G.D. The arguments at the TAT focused on two questions: (1) whether Nemko misled De Oliva so as to vitiate his consent to the transaction; and (2) when the 45-day LNT delay began to run. On the transaction, De Oliva’s position was that his consent was tainted by error and dol: he claimed Nemko falsely represented that his job was abolished for economic reasons when it actually intended to replace him, as allegedly shown by the later hiring of G.D. and an American representative. Nemko argued that the transaction was valid, that there was no misrepresentation, and that the later hires did not retroactively change the nature of the August 2020 decision. On the delay, De Oliva argued the 45 days should run not from his termination date, but from the later point when he realized, or reasonably should have realized, that he had been dismissed rather than legitimately laid off, which he linked to learning of the replacements. He also invoked, at least in substance, the idea of “impossibility to act” while he was unaware of the alleged wrongdoing. Nemko contended that the delay started on 27 August 2020, when he clearly knew his employment had ended, and that his complaints on 16 November 2020 were therefore out of time.
The TAT’s decision dismissing the complaints
On 10 March 2023, the TAT rendered its decision. It framed the issues as: (1) whether Nemko had misled De Oliva into signing the transaction; and (2) whether the delay to file the complaints ran from knowledge of the reasons for termination. On the first issue, the TAT reviewed the civil law rules on transactions and vices of consent (error and dol). It concluded that the evidence relating to the hiring of G.D. and the American representative did not amount to fraudulent misrepresentation by Nemko at the time of the August 2020 termination. The judge found no proof that Nemko had lied to induce De Oliva to sign or that the later hires, on the record presented, proved a disguised dismissal. He therefore gave full effect to the transaction, finding that by signing it, De Oliva had waived the recourses he was attempting to exercise before the TAT. On the delay issue, the TAT held that the 45-day period in articles 123 and 124 LNT begins when the employee loses his job or understands, or ought reasonably to understand, that his services are no longer required, not when he later forms the conviction that he has been unjustly dismissed rather than laid off. The judge rejected the argument that the delay should begin only when De Oliva realized this might be a “congédiement”, and he treated a contrary Commission decision (L’Heureux et Maxinet enr.) as an isolated authority without strong persuasive value. The TAT noted that the legislature has provided, in article 15 of the Loi instituant le Tribunal administratif du travail (LITAT), a specific mechanism allowing the Tribunal to extend deadlines or relieve a party of default where there is a “motif raisonnable” and no serious prejudice to others, but it pointed out that De Oliva had not actually asked to be relieved from his default under this provision. Even so, the TAT added that it saw no reasonable basis on the facts to grant such relief. In the result, the TAT dismissed both of De Oliva’s complaints, relying both on the binding effect of the transaction and on the failure to file within 45 days of the 27 August 2020 termination.
Judicial review application before the Superior Court
De Oliva then brought a judicial review (pourvoi en contrôle judiciaire) before the Superior Court of Québec, seeking to annul the TAT decision. The Tribunal administratif du travail was named as defendant, and Nemko was impleaded as mise-en-cause. Unusually, the TAT participated actively, filing a brief and presenting submissions in support of the reasonableness and legality of its own decision. De Oliva attacked the TAT decision on four main grounds: first, he alleged a breach of procedural fairness because the TAT, in his view, effectively decided the merits at a preliminary stage on limited evidence, and refused to hold a full hearing where he could call additional witnesses such as G.D. and Pintilei; second, he argued that the TAT’s findings that there was a genuine redundancy and that there was no dol vitiating the transaction were unreasonable; third, he claimed the TAT erred in law by not treating his lack of knowledge of the true reason for termination as suspending or postponing the 45-day delay under the LNT, particularly via the notion of impossibility in fact to act under article 2904 of the Code civil du Québec; and fourth, in the alternative, he argued that the TAT should have exercised its power under article 15 LITAT to relieve him from the delay. The Superior Court identified the issues as: (1) whether there was any breach of procedural fairness; (2) whether the TAT’s reliance on the transaction to dismiss the complaints was unreasonable; (3) what standard of review applied to the delay determination and whether the TAT erred or was unreasonable in dismissing the complaints for lateness; and (4) whether the Court could and should intervene in relation to the TAT’s refusal (or failure) to relieve De Oliva from his delay under article 15 LITAT.
Analysis of procedural fairness on judicial review
On procedural fairness, the Court applied the contextual approach drawn from the Supreme Court’s decision in Baker, considering the nature of the decision, the legislative framework, the importance of the decision to the parties, their legitimate expectations, and the tribunal’s own procedural choices. The Court emphasized that the TAT is a specialized administrative tribunal, master of its own procedure within legal limits, and that administrative justice does not necessarily mirror judicial procedure. Reviewing the January 2023 hearing, the Court noted that De Oliva had ample notice, weeks in advance, that Nemko would raise preliminary objections on the transaction and on delay. The TAT judge discussed with counsel whether to treat the objections separately or as part of a full hearing; De Oliva’s counsel argued it would be preferable to hear the whole case, but she also acknowledged that the same central factual narrative would be used even at the preliminary stage. The TAT judge chose a hybrid approach: he first heard evidence on the preliminary issues from both sides (including De Oliva and Philion), then invited full legal submissions, reserving the possibility of deferring decision if the record proved insufficient. At no point did De Oliva formally request an adjournment to secure the presence of G.D. or Pintilei, nor did he demonstrate that additional evidence could not have been organized for that date. In this context, the Superior Court held that there was no denial of the right to be heard. The TAT’s decision to proceed and decide on the basis of the evidence actually adduced on the preliminary objections fell within its procedural discretion and did not violate procedural fairness.
Reasonableness of the TAT’s ruling on the transaction
Turning to the substance of the TAT’s treatment of the transaction, the Court applied the standard of reasonableness under the Supreme Court’s Vavilov framework. It noted that the TAT correctly identified and applied the civil law principles governing transactions and vices of consent (including articles 1399–1401 and 2634 C.c.Q.), and that it framed the key question as whether Nemko misled De Oliva to induce him to sign the release. The TAT analyzed the context of the termination, the explanation given at the time (economic and organizational reasons, including the impact of COVID-19 and travel restrictions), and the subsequent hires of G.D. and a U.S. representative. It concluded that those subsequent hires, on the evidence presented, did not establish that Nemko had lied in August 2020 or that it never intended a genuine restructuring. The Superior Court stressed that, at the preliminary-objection stage, the burden rested on De Oliva to prove the alleged misrepresentations and resulting vice of consent; the burden did not automatically shift to Nemko to prove an authentic redundancy simply because misrepresentation was alleged. The Court found the TAT’s reasoning coherent and logically connected to the evidence. It rejected the contention that the TAT had, in substance, determined the full merits of whether the termination was a legitimate layoff or a disguised dismissal; rather, it had simply decided that, on the record before it, the employee had not made out the dol necessary to set aside a freely signed transaction. The conclusion that the transaction remained valid and barred the complaints was therefore held to be reasonable.
Reasonableness of the TAT’s ruling on the 45-day delay
On the timing issue, the Court again applied the reasonableness standard, rejecting De Oliva’s argument that the question warranted correctness review as a general question of law of central importance to the legal system. The Court emphasized that interpreting and applying the LNT’s delay provisions, particularly articles 123 and 124, is at the core of the TAT’s specialized mandate, and case law generally treats delay-computation issues as reviewable only for reasonableness. The Superior Court reviewed the TAT’s reasoning: it relied on consistent jurisprudence holding that the 45-day delay starts at the moment of termination or when the employee understands or should reasonably understand that his services are no longer required, not when he later believes the termination was unlawful. The TAT acknowledged the wording of article 124 LNT (“who believes he has been dismissed without just and sufficient cause”) but declined to interpret it as shifting the delay to a purely subjective moment of conviction. The TAT found that accepting De Oliva’s reading, or that of the isolated L’Heureux and Maxinet enr. decision, would undermine the stability and predictability of labour relations by allowing delays to float indefinitely depending on when an employee later changed their mind about the legality of the dismissal. The Superior Court held that this reasoning was rational, consistent with the statutory text and policy, and in line with the bulk of prior decisions. It also agreed that the existence of article 15 LITAT, which explicitly empowers the TAT to extend delays for “motifs raisonnables” and in the absence of serious prejudice, created a self-contained regime that made resort to the civil-law concept of impossibility in fact to act under article 2904 C.c.Q. unnecessary and non-mandatory.
Interaction with civil law prescription and the LITAT power to extend
De Oliva argued that the TAT had committed an error of law by failing to apply article 2904 C.c.Q. and the broader jurisprudence on impossibility to act, notably the Supreme Court’s decision in Oznaga. The Superior Court rejected this argument. It reasoned that the LNT, read together with the LITAT, constitutes a complete and autonomous statutory regime governing delays and the possibility of relief from default in the context of labour standards complaints. While civil-law principles can be relevant in the absence of a specific legislative scheme, the existence of article 15 LITAT shows that the legislature contemplated and regulated the circumstances in which late complaints might nevertheless be heard. In that framework, the TAT was not required to import article 2904 C.c.Q. as a supplementary rule, and its choice not to do so did not render its decision unreasonable. The Court further noted that De Oliva had not pleaded a specific application under article 15 LITAT before the TAT; the TAT’s brief observation that there was, in any event, no “motif raisonnable” to relieve him from the delay was treated as obiter. Even if that obiter were examined, the Superior Court found no basis to label it unreasonable, given that De Oliva knew of his job loss on 27 August 2020 and waited until 16 November 2020 to file, despite having relatively early indications (including the August 28 internal email and his evolving doubts) that might have prompted quicker action.
Outcome and practical implications
In the end, the Superior Court held that there was no breach of procedural fairness and that both of the TAT’s core determinations—the validity of the transaction and the strict application of the 45-day delay from the date of termination—were reasonable. The Court therefore dismissed De Oliva’s application for judicial review and upheld the TAT’s dismissal of his labour standards complaints. As a result, Nemko Canada Inc. and the Tribunal administratif du travail emerged as the successful parties, while De Oliva remained bound by the release he had signed and permanently lost his recourses under articles 122 and 124 LNT. The judgment expressly dismisses the pourvoi “avec les frais de justice” against De Oliva, which means court costs are awarded in favour of the successful side, but the total monetary amount of those costs is not quantified in the judgment and cannot be determined from the decision itself.
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Quebec Superior CourtCase Number
500-17-124713-234Practice Area
Labour & Employment LawAmount
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