Executive Summary: Key Legal and Evidentiary Issues

• Lawfulness of the dismissal under article 122 LNT, where the core issue was whether the employer terminated the employee because he exercised a statutory right relating to his bank of compensatory leave.
• Scope and operation of the reverse onus under articles 123.4 LNT and 17 CT, requiring the employer to prove that the dismissal was not linked to the exercise of a protected right.
• Factual and temporal nexus between the dispute over compensatory leave and the dismissal, including the judge’s reliance on ongoing exchanges and contemporaneous emails to establish “concomitance”.
• Limits of judicial review under the Vavilov framework, with the Superior Court confining itself to assessing the reasonableness of the TAT’s findings on dismissal rather than re-weighing the evidence.
• Breach of procedural fairness (audi alteram partem) when the TAT ordered reinstatement and back pay without holding the separate remedies hearing that both parties had been led to expect.
• Proper remedial response to that breach, with the Court maintaining the annulment of the dismissal but remitting only the questions of reinstatement, compensation and other reparations to a different TAT decision-maker.

Background and employment relationship

Hristo Holyanov was hired directly by the Corporation de l’École des hautes études commerciales de Montréal (HEC Montréal) on 24 January 2022 as a full-time night-shift security agent. Before this, he had already been working in similar functions for a security subcontractor engaged by HEC Montréal, so he was familiar with the environment and duties. His employment with HEC Montréal was subject to a six-month probationary period scheduled to end on 6 August 2022. The employer’s supervisory structure changed during that time, with a new supervisor coming into the role and seeking to assess the quality of his performance.

Illness, compensatory leave dispute and dismissal

In July 2022, Mr. Holyanov contracted COVID-19 and was absent from work on 7, 8 and 9 July. This gave rise to a disagreement between him and HEC Montréal over how his absence should be treated, specifically whether he could use his bank of compensatory leave (congés compensatoires) to cover part of those sick days. The employee considered that the statutory framework allowed him to rely on his accumulated compensatory time; the employer disagreed and maintained its own interpretation of how that bank could be used. This disagreement did not end with the illness itself but continued through discussions and email exchanges over the ensuing weeks, forming a persistent point of contention. On 22 August 2022, HEC Montréal called Mr. Holyanov to a performance evaluation meeting with his supervisor. One objective was to inform him that his probation would be extended so the new supervisor could better assess his performance. However, the meeting turned into a firm and heated exchange about the same ongoing dispute over the compensatory leave bank and its use to offset his sick days. The employer considered that his behaviour during that discussion was improper and disrespectful. Three days later, on 25 August 2022, it decided to terminate his employment. From the employer’s perspective, the dismissal stemmed from his conduct at the meeting; from Mr. Holyanov’s perspective, the true trigger remained the dispute over his use of compensatory leave in connection with his illness.

Proceedings before the Administrative Labour Tribunal

On 7 October 2022, Mr. Holyanov filed a complaint with the Tribunal administratif du travail (TAT) under article 122 of the Loi sur les normes du travail (LNT), alleging an unlawful dismissal tied to the exercise of a protected statutory right. The case was heard over three hearing days (10 November 2023, 5 April 2024 and 28 June 2024). Four witnesses were examined and cross-examined, and there was substantial documentary evidence, including contemporaneous emails about the compensatory leave issue and the 22 August meeting. In its 20 September 2024 decision, the TAT sided with the employee. It annulled the dismissal, ordered that he be reinstated in his job, and directed HEC Montréal to pay him the salary lost since his termination. The TAT concluded that the exercise of a right protected by the LNT—insisting on the use of his compensatory leave bank in accordance with the statute—was among the reasons for the dismissal. It relied on article 123.4 LNT and article 17 of the Code du travail (CT), which together create a rebuttable presumption: once the worker shows a link between the exercise of a protected right and the adverse measure, the onus shifts to the employer to prove that the dismissal is unrelated to that right. The TAT held that, although other factors such as his behaviour at the meeting may have played a role, HEC Montréal did not discharge this reverse onus. The tribunal distinguished between the mere fact of illness and the continuing dispute over compensatory leave. The illness itself was not seen as the object of reprisal; rather, the ongoing disagreement over using his accumulated compensatory time—a right rooted in the LNT framework (notably article 55, which governs compensatory rest and time)—was found to have influenced the decision to terminate. The TAT also treated the sequence of events as sufficiently connected in time (concomitant). While several weeks elapsed between the July illness and the August dismissal, there were repeated communications and discussions about the compensatory leave issue throughout that period and again at the 22 August meeting. On that basis, the tribunal considered the temporal and causal link between the exercise of the right and the dismissal established. As to remedy, the TAT held that reinstatement is the primary and automatic remedy under article 122 LNT unless the employee clearly renounces it or the employer proves an absolute impossibility of reinstatement. It noted that counsel had mentioned difficulties of reinstatement due to organisational changes but found no clear waiver by the employee and no proof of absolute impossibility. It therefore ordered reinstatement and back pay in a brief remedial paragraph.

Judicial review before the Superior Court

On 18 October 2024, HEC Montréal filed an application for judicial review (pourvoi en contrôle judiciaire) before the Superior Court of Québec. The employer attacked the TAT’s decision on two main fronts: first, it claimed the annulment of the dismissal was unreasonable because the tribunal had misapplied articles 122 and 123.4 LNT and article 17 CT; second, it argued there was a breach of procedural fairness when the TAT ordered reinstatement and compensation without holding a separate hearing on remedies, despite statements during the evidence phase that such an additional hearing would be convened if the dismissal were annulled. The Superior Court, presided over by Justice Luc Morin, framed the issues accordingly: whether the TAT’s decision to annul the dismissal was unreasonable, and whether its decision to order reinstatement and compensation without a dedicated remedies hearing breached audi alteram partem and required the matter to be remitted, in whole or in part, to the TAT. The Court first identified the applicable standard of review. For the substantive dismissal decision, it applied the reasonableness standard under the Supreme Court’s decision in Vavilov, emphasizing that the TAT is a specialized tribunal and that courts must defer to its factual and mixed law-and-fact assessments, intervening only if there is a fundamental flaw in the reasoning or outcome. For the procedural fairness issue concerning the absence of a remedies hearing, the Court applied the correctness standard, following both Vavilov and the Québec Court of Appeal’s guidance in Société québécoise des infrastructures c. Ville de Montréal and the general principle that procedural fairness questions are always reviewed for correctness.

Standard of review and analysis on dismissal

The Superior Court rejected HEC Montréal’s argument that the TAT’s application of the LNT and CT presumptions was unreasonable. The employer had contended that once the TAT acknowledged there was a “real and serious cause” for termination in the employee’s conduct at the meeting, the analysis should have ended in its favour. The Court found this misconceived. It stressed that in a complaint under article 122 LNT, the central question is not merely whether a cause exists but whether the exercise of a protected right formed part of the reasons for dismissal; if it did, the employer must prove that the decision was nonetheless unrelated to that exercise. The Court endorsed the TAT’s distinction between the mere fact of being ill and the protected right concerning the use of the compensatory leave bank. It accepted the TAT’s finding that the dispute over that bank was still very much alive up to the 22 August meeting and that a contemporaneous email from the supervisor confirmed the compensatory leave issue was discussed at that meeting. This supported a causal and temporal connection between the exercise of the right and the termination. The Court also rejected the employer’s argument that the seven-week gap between the illness and the dismissal broke any meaningful temporal link. It noted that the TAT had carefully reviewed the documentary and testimonial evidence and found that the compensatory leave dispute continued during that period, so that the concept of “concomitance” remained satisfied. In applying Vavilov and the later Supreme Court decision in Auer, the Court looked for “lacunes fondamentales” (fundamental gaps) in the TAT’s reasoning, such as an absence of internal logic or a result that is indefensible in light of the factual and legal constraints. It found neither. To the contrary, the judge highlighted that the TAT had heard four witnesses over three hearing days spread across several months and had given a detailed, coherent explanation of why the presumption under articles 123.4 LNT and 17 CT was triggered and why the employer had not rebutted it. Noting that judicial review is not an invitation to re-weigh evidence or redo credibility assessments, the Court held that the TAT’s conclusion annulling the dismissal was well within the range of reasonable outcomes. HEC Montréal therefore failed to meet its “heavy burden” of showing that the dismissal decision was unreasonable.

Procedural fairness and the remedies issue

On the second issue, the Superior Court reached a different conclusion. Both parties acknowledged that, during the hearing—especially on 28 June 2024—the TAT judge had indicated that if the dismissal were annulled, a separate hearing would later be held to address remedies, including reinstatement and compensation. Counsel for HEC Montréal stated on the record that he wished to present evidence about the practical difficulties of reinstatement, such as abolished positions or changes in the organisation. The Court noted the candour of the employee and his counsel, who expressly admitted in their written submissions that it was indeed discussed that the question of reinstatement and related remedies would be decided later. The stenographic notes, quoted in the judgment, showed that the TAT judge told the parties they would be allowed to adduce evidence on the possibility of reinstatement if the case reached that stage. Notwithstanding these representations, the TAT ultimately decided, during deliberation, not to hold the promised remedies hearing. Instead, it dealt with remedies in a single, brief paragraph, simply ordering reinstatement and back pay on the basis that reinstatement is the automatic remedy under article 122 LNT absent a clear renunciation by the employee or proof of absolute impossibility, neither of which it found. The Superior Court held that this change of course, without giving the parties an opportunity to be heard on remedies, breached the audi alteram partem rule and thus procedural fairness. The parties were entitled to rely on the TAT judge’s indications that a separate remedies hearing would occur, and they had clearly signalled an intention to present evidence and submissions on reinstatement. The failure to convene that hearing deprived them of that opportunity. The more difficult question was the appropriate remedy for this procedural breach. The Court considered whether the entire TAT decision, including the findings on the lawfulness of the dismissal, had to be set aside, as some case law warns against “cherry picking” only parts of an administrative decision. While acknowledging those concerns, the Court concluded that in this case the procedural defect was confined to the remedies stage. The merits phase—dealing with fault and the lawfulness of the dismissal—had been fully and fairly litigated over three days, with no suggestion of unfairness in the handling of evidence or argument on those points. The fairness problem arose only at the end, after the merits had been heard, when the promised remedies hearing was not held. In light of this, the Court accepted the employer’s amended, more limited conclusions and decided that only the remedial portion of the TAT decision should be annulled.

Overall outcome and implications

In its formal orders, the Superior Court partially allowed HEC Montréal’s application for judicial review. It maintained the TAT’s decision of 20 September 2024 “for all other purposes” insofar as it annulled the dismissal and upheld the employee’s complaint under article 122 LNT. At the same time, it returned the file to the Tribunal administratif du travail solely for the purposes of holding a new hearing and ruling on reinstatement, compensation, and any other potential forms of reparation, before a different administrative decision-maker. The Court emphasised considerations of efficiency, fairness to the parties, delay, and proper use of public resources in choosing this targeted remand rather than ordering a full fresh hearing on all issues. It also declined to recognise standing for the TAT itself to argue the merits of its own decision in this judicial review, referring to Supreme Court guidance that such active participation by quasi-judicial tribunals can undermine perceptions of impartiality when the actual parties and their counsel are present and fully able to argue the case. As a result of the Superior Court judgment, the employee remains the successful party on the core employment issue, with the annulment of his dismissal confirmed, while the employer is partially successful on the procedural and remedial issue, securing a new TAT hearing on remedies. The Superior Court expressly ordered the matter “sans frais”, so no costs were awarded in this judicial review, and because the quantum of back pay and any other monetary relief is left to be determined in the remitted TAT hearing, the total monetary award in favour of the employee cannot yet be determined from this decision.