Agriculture, Food and Rural Affairs Appeal Tribunal 1 Stone Road West

Tribunal d’appel de l’agriculture, de l’alimentation et des affaires rurales 1 Stone Road West

Guelph, Ontario, N1G 4Y2 Tel: (519) 826-3433, Fax: (519) 826-4232 Email: AFRAAT@ontario.ca

Guelph (Ontario) N1G 4Y2 Tél.: (519) 826-3433, Téléc.: (519) 826-4232 Courriel: AFRAAT@ontario.ca

AGRICULTURE, FOOD AND RURAL AFFAIRS APPEAL TRIBUNAL

APPEAL: United Food and Commercial Workers International Union v MedReleaf Corp. (RE)

United Food and Commercial Workers International Union

STATUTE: Agricultural Employees Protection Act, 2002

HEARING: April 18, 2018

DATE OF DECISION: August 29, 2018

001UFCW16

NEUTRAL CITATION: 2018 ONAFRAAT 12

IN THE MATTER OF THE AGRICULTURAL EMPLOYEES PROTECTION ACT, 2002

AND IN THE MATTER OF: An amended complaint to the Agriculture, Food and Rural Affairs Appeal Tribunal (the Tribunal) by United Food and Commercial Workers International Union, Philip Manorath, Leon Sivak, Joseph Yu, and Don Shane-Taylor, pursuant to Section 11 of the Agricultural Employees Protection Act, 2002 alleging that MedReleaf Corp., is in contravention of Sections 1(2), 5(1), 8, 9 and 10 of that Act.

Before: John O’Kane, Vice-Chair; Harold McNeely, Vice-Chair and Jeffrey J. Hewitt, Vice-Chair

Appearances: Micheil M. Russell, Counsel for the Complainants Richard J. Charney and Rika Sawatsky, Counsel for the Respondent Rochelle Fox, Michael Dunn and Jennifer Luong, Counsel for the Attorney General

Witnesses for the Applicant: Kevin Shimmin, Union Representative, United Food and Commercial Workers International Union Philip Manorath, Complainant Nadeem Khakwani Zenne Maceda Leon Sivak, Complainant Joseph Yu, Complainant

Witnesses for the Respondent: Neil Closner, MedReleaf CEO Alvin Fefekos, MedReleaf Vice-President, Quality Assurance & Compliance Igor Gimelshtein, MedReleaf CFO Maria Maraj, former MedReleaf Human Resources Consultant Dr. Neil Sutton Eitan Popper, MedReleaf Co-founder & Executive Vice- President Adam Noyek, MedReleaf Director, Business Planning Bryan Eustace, Northern Force Security, Security Officer posted at MedReleaf Ori Sher, MedReleaf Senior Director, Security and Infrastructure

Table of Contents

Procedural History of the Complaint. 3 Background. 4 The Tribunal’s Jurisdiction and Powers under the AEPA. 6 A. Summary of AEPA. 6 B. Tribunal’s Powers under the AEPA. 8 The AEPA and the OLRA.. 10 Did MedReleaf provide UFCW a reasonable opportunity to make representations?. 11 Analysis. 15 Did MedReleaf Thwart Employee Attempts to Organize Using Threats, Intimidation or Coercion? 17 A. Relevant Time Frame: From Certification Applications to Certification Vote. 19 I. Did MedReleaf Management Intimidate/Threaten/Coerce Employees Generally?. 20 II. Did MedReleaf Use External Agents to Intimidate/Threaten/Coerce Employees?. 24 i. Tom Flow.. 25 ii. Edna Dismaya/George Sunga. 28 III. Did MedReleaf Intimidate/Threaten/Coerce Nadeem Khakwani?. 34 IV. Did MedReleaf Conduct Captive Audience Meetings?. 36 B. Relevant Time Frame: Post-Certification Vote …………………………………………………..….…… 38 I. Did MedReleaf Discipline and Dismiss Nadeem Khakwani?. 38 II. Background to Khakwani’s Discipline and Departure. 39 III. The Alleged Discipline/Constructive Dismissal 41 IV. The Full and Final Release. 41 C. Releases from terminated employees in January-February 2016. 46 I. The Termination Letter 46 II. Outsourcing. 47 III. Employees selected for termination without cause: 47 D. Evolution of the Withdrawal List /Josefina Revilla. 48 Order of the Tribunal 52

DECISION OF THE TRIBUNAL

The Complainants have collectively made a complaint under Section 11 of the Agriculture Employees Protection Act, 2002 (the “AEPA” or the “Act”) to the Agriculture Food and Rural Affairs Appeal Tribunal (the “Tribunal”) that the Respondent MedReleaf Corp. (“MedReleaf”) violated their rights under the APEA by failing to provide an employee’s association a reasonable opportunity to make representations about the terms of employment, and violated their rights by thwarting their attempts to organize an employees’ association by using threats, intimidation, reprisals and coercion, all contrary to the AEPA.

The Complainants ask the Tribunal to exercise its remedial authority under the AEPA to make declarations that MedReleaf has breached the AEPA, direct that MedReleaf cease breaching the AEPA, direct that MedReleaf bargain in good faith with the union and order the reinstatement of several former employees with compensation.

For the reasons that follow, the Tribunal dismisses this aspect of the complaint.

Procedural History of the Complaint

The Tribunal is seized of complaints made under the AEPA by the United Food and Commercial Workers International Union (the “Institutional Complainant” or “UFCW”) and Philip Manorath, Leon Sivak, Joseph Yu and Don Shane-Taylor (the “Individual Complainants” collectively or “Manorath”, “Sivak”, “Yu” or “Shane-Taylor”, individually).

The Complainants also assert that the AEPA is unconstitutional. Section 109 of the Courts of Justice Act requires the Attorneys General of Canada and Ontario be given notice of any appeal or review of this matter in which the constitutional issues are raised. The Attorney General of Canada advised the Tribunal of their intent not to intervene. The Attorney General of Ontario (the “AG”) is involved in this matter.

On July 15, 2016, with the consent of the parties, the Tribunal ordered the constitutional issue(s) raised in the Amended Complaint be bifurcated and deferred until after a decision on the complaints. As a result, the complaints regarding MedReleaf breaching the AEPA (the unfair labour practices or the “ULP”) are dealt with in Phase One of the proceeding and the constitutional challenge to the Act is dealt with in Phase Two of the proceeding after the Tribunal issues the Phase One decision.

The Tribunal heard evidence and argument in the Phase One hearing on: February 7, 8, 9, March 1, 2, 3, 7, 8, 9, 28, 29, 30, June 19, 20, October 12, 13, November 23, 24, 2017 and April 18, 2018.

During the evidentiary portion of Phase One, on March 28, 2017, counsel for the complainants confirmed in writing to the Tribunal that Mr. Shane-Taylor and MedReleaf had signed confidential minutes of settlement “fully and finally” resolving “all issues pertaining to” Mr. Shane-Taylor and as a result Mr. Shane-Taylor “shall be removed as a party to the Complaint”.

On March 23, 2018, after the conclusion of phase one, and while the Tribunal’s decision was under reserve, Counsel for UFCW and MedReleaf confirmed in writing to the Tribunal that Manorath, Sivak, Yu and MedReleaf had signed confidential minutes of settlement “fully and finally” resolving “all issues pertaining to” Manorath, Sivak and Yu and as a result Mr. Manorath, Mr. Sivak and Mr. Yu “shall be removed as parties to the Complaint”.

Both the March 28, 2017, and March 23, 2018 letters to the Tribunal advising of the settlement of the claims of the individual complainants, contained the following points:

1. UFCW maintains its position that the dismissal of the complainants (including Shane-Taylor, Manorath, Sivak and Yu) was contrary to the AEPA.

2. MedReleaf continues to deny any allegation of wrongdoing.

3. UFCW and MedReleaf agreed not to rely on any allegations or evidence pertaining to Shane-Taylor, Manorath, Sivak and Yu in the Complaint.

4. UFCW and MedReleaf jointly request that, insofar as it pertains to Shane-Taylor, Manorath, Sivak and Yu, the Tribunal make no findings of fact with respect to any of the allegations concerning Shane-Taylor, Manorath, Sivak and Yu, but simply note that the parties maintain their respective positions.

5. UFCW and MedReleaf jointly submit that as such, the Tribunal no longer needs to provide a decision on the lawfulness of the dismissal of Shane-Taylor, Manorath, Sivak and Yu.

At the request of the Tribunal, the hearing was reconvened on April 18, 2018, to clarify the impact of these settlements on the overall proceedings. There was agreement among counsel for the parties that, with regard to those employees who have settled, the Tribunal should consider the totality of their evidence only as it related to the overarching issues but that no comment should be made regarding their individual terminations. Further, any evidence about issues other than their specific employment circumstances may be considered as part of their testimony. The AG advised it was taking the position that during the Constitutional phase it could rely upon the fact that there were individual complaints filed and withdrawn.

Background

Around 2014, MedReleaf was a start-up in the medical marijuana business. MedReleaf grows, harvests, packages and sells medical marijuana. MedReleaf used a mixture of permanent full and part-time employees as well as, non-permanent casual employees to address its labour needs as the business grew and as the growing and harvesting cycle of the marijuana crop required.

Around the spring of 2015, labour relations between MedReleaf and certain of its employees were evolving. There had been some employee dismissals at all levels including senior management and those dismissals left some employees feeling uncertain about their security of tenure. That uncertainty among some employees lead them to reach out to UFCW about achieving better job security, among other benefits, through unionization of the workforce. Concurrently with the initial overtures between some MedReleaf employees and UFCW, MedReleaf was changing its approach with some of its casual employees by moving them into full-time positions and clarifying for the remaining casual employees the employer-employee structure and relationship.

On May 25, 2015, UFCW filed parallel certification applications under provincial and federal legislation seeking a determination that UFCW was the exclusive certified bargaining agent for MedReleaf employees. The application under provincial legislation was made to the Ontario Labour Relations Board (“OLRB”). The application under federal legislation was made to the Canada Industrial Relations Board (“CIRB”).

MedReleaf challenged the jurisdiction of the CIRB asserting instead that MedReleaf’s business fell under provincial jurisdiction. On July 13, 2015, a panel of the CIRB issued a ruling that the CIRB “lacked the requisite jurisdiction to determine” the matter and subsequently on June 1, 2016, issued written reasons explaining the ruling.

MedReleaf also challenged the jurisdiction of the OLRB asserting that its employees were subject to the jurisdiction of the AEPA and not the Labour Relations Act, 1995 (the “LRA”). The OLRB issued a procedural decision that, despite MedReleaf’s jurisdictional challenge, a representation vote would take place on June 1, 2015, in the normal course of process under the LRA. The OLRB also issued a procedural decision that, despite the jurisdictional challenge, the representation votes cast in the normal LRA process would be counted. UFCW was unsuccessful in the representation vote but then challenged the vote outcome based on alleged unfair labour practices by MedReleaf. On December 15, 2015, the OLRB issued written reasons for decision and dismissed UFCW’s certification application “as the employees are excluded from the LRA and covered by the AEPA”. UFCW subsequently asked the OLRB to reconsider that decision and on January 21, 2016, the OLRB denied UFCW’s reconsideration request.

Between the OLRB representation vote on June 1, 2015, and that Board’s final decision on January 21, 2016, there were several employee dismissals from MedReleaf including Mr. Manorath, Mr. Sivak, and Mr. Yu and several employee departures, including Mr. Nadeem Khakwani.

On February 19, 2016, UFCW filed its complaint with the Tribunal. The original complaint was subsequently amended June 16, 2016, to include the Individual Complainants as parties to this proceeding.

The Tribunal’s Jurisdiction and Powers under the AEPA

A. Summary of AEPA

The history of Ontario farm workers, their representation and collective bargaining rights before and after the enactment of the AEPA are reviewed by McLachlin C.J. and Lebel J. in Ontario [Attorney General], v. Fraser, 2011 SCC 20, [2011] 2 S.C.R. 3. They described the history before the AEPA as follows:

Prior to 1994, indeed since 1943, farm workers had been excluded from the general labour relations regime established by the LRA. In 1994, The Ontario Legislature enacted the Agricultural Labour Relations Act. 1994, S.O. 1994, c.6 (“ALRA”), which extended trade union and collective bargaining rights to agricultural workers. A year later, the legislature repealed the ALRA in its entirety and again excluded farm workers from the labour relations regime set out in the ALRA (Labour Relations and Employment Statute Law Amendment Act, 1995, S.O. 1995, c.1 (“LRESLAA”)). The LRESLAA was challenged on the basis that it infringed the guarantees of freedom of association under s.2(d) and equality under s.15 of the Charter. In Dunmore, a majority of the Court found a breach of s. 2(d). It held that the claimants were substantially unable to organize without protective legislation, and declared the law to be unconstitutional. This had the effect of nullifying the exclusion of farm workers from the LRA, but this Court suspended the declaration of invalidity for 18 months. The majority concluded it was not necessary to deal with the s. 15 challenge.

They then described the AEPA’s enactment and make the following observations:

In response, the Ontario legislature enacted the AEPA in 2002, which came into force on June 17, 2003. In brief, the AEPA excluded farm workers once again from the LRA, but crafted a labour relations regime for farm workers in Ontario. It granted them the rights to form and join an employees’ association, to participate in its activities, to assemble, to make representations to their employers through their association on their terms and conditions of employment, and the right to be protected against interference, coercion and discrimination in the exercise of their rights (s.1(2)). The employer must give an association the opportunity to make representations respecting terms and conditions of employment, and it must listen to those representations or read them (s.5). The AEPA tasks a tribunal, the Agriculture, Food and Rural Affairs Appeal Tribunal, with hearing and deciding disputes about the application of the Act (ss.2 and 11).

The legislation is drafted to take into consideration some of the unique elements of agriculture in all its forms including traditional agriculture, factory farms carried out often indoors and on several small land holdings. The purpose of the AEPA is stated in the opening paragraph of the legislation:

1. The purpose of this Act is to protect the rights of agricultural employees while having regard to the unique characteristics of agriculture, including, but not limited to, its seasonal nature, its sensitivity to time and climate, the perishability of agricultural products and the need to protect animal and plant life.

2. The following are the rights of agricultural employees referred to in subsection (1):

3. The right to form or join an employees’ association.

4. The right to participate in the lawful activities of an employees’ association.

5. The right to assemble.

6. The right to make representations to their employers, through an employees’ association, respecting the terms and conditions of their employment.

7. The right to protection against interference, coercion and discrimination in the exercise of their rights.

The Tribunal takes notice that agriculture has undergone, and continues to undergo, a transformation from traditional methods to a variety of modern methods drawing on technology and other scientific advances. The terms “agribusiness” and “factory farms” are frequently found in contemporary agriculture. In an effort to reduce the environmental footprint of agriculture, vegetables are now produced on a commercial scale in an urban environment and can be found growing on roofs of buildings in large cities. These have been referred to as rooftop farms. There are also vertical farms developed in buildings formerly affected by industrial uses. Mushrooms, other vegetables, poultry and eggs are also produced in warehouse type operations on small parcels of land.

“Agriculture” is defined in Sec. 2 (1) of the AEPA:

In this act, … “agriculture” includes farming in all its branches, including dairying, beekeeping, aquaculture, the raising of livestock including non-traditional livestock, furbearing animals and poultry, the production, cultivation, growing and harvesting of agricultural commodities, including eggs, maple products, mushrooms and tobacco, and any practices performed as an integral part of an agricultural operation, but does not include anything that was not or would not have been determined to be agriculture under section 2 of the predecessor to the Labour Relations Act, 1995 as it read on June 22, 1994; (“agriculture”)

It is noted that tobacco is one of the crops specifically included in the enumeration of agricultural commodities covered by the AEPA. The production of tobacco has greatly diminished in Ontario starting in the 1970s. The governments at both levels stopped supporting research in this commodity and farmers adapted by turning to different commodities, cereal or plants to replace tobacco. The omission of a reference to cannabis in the AEPA is not surprising since the cultivation of this plant was illegal when the legislation was adopted.

Vegetables, fruit, cereal crops and cannabis require nutrients. Care must be exercised in the application of substances to control microbial contaminants, pests and plant disease which could damage the plants or make the product unfit for human consumption. The legislation which governs the use of approved products for the production of cannabis is the same legislation which governs the production of vegetables and fruit. Timing is everything in all facets of agriculture. Failing to control a problem created by pest infestation or plant disease results in a loss of the crop. Failing to harvest at the appropriate time also leads to the same result.

Therefore, the Tribunal finds that the production of cannabis in Ontario is a form of modern agriculture to the same extent as the production of cannabis in countries where this plant has been produced, albeit in fields and plots of land cultivated by farmers over many centuries.

B. Tribunal’s Powers under the AEPA

Having found that the production of cannabis is a form of agriculture, the AEPA would then apply to employer-employee relations at marijuana production facilities in Ontario. Under the AEPA, this Tribunal then has the jurisdiction to deal with labour-related disputes narrowly defined. Specifically, by Sections 8, 9 and 10 of the Act, those disputes are limited to the following protections:

Employers, etc., not to interfere with employees’ associations

8. No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization shall interfere with the formation, selection or administration of an employees’ association, the representation of employees by an employees’ association or the lawful activities of an employees’ association, but nothing in this section shall be deemed to deprive an employer of the employer’s freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.

Employers, etc., not to interfere with employees’ rights

9. No employer, employers’ organization or person acting on behalf of an employer or an employers’ organization,

(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of an employees’ association or was or is exercising any other right under this Act;

(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of an employees’ association or exercising any other right under this Act; or

(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of an employees’ association or to cease to exercise any other right under this Act.

Intimidation and coercion

10. No person, employees’ association, employers’ organization or other entity shall seek by intimidation or coercion to compel any person to become or refrain from becoming or to continue to be or to cease to be a member of an employees’ association or of an employers’ organization or to refrain from exercising any right under this Act or from performing any obligations under this Act.

If an employee or employees’ association believes there has been a violation of these protections, the statutory process requires an appeal to this Tribunal. Upon hearing the evidence, the Tribunal may make orders and remedies under the AEPA as set out in Subsections 11(5) and 11(6):

(5) Where the Tribunal is satisfied that an employee, employee’s association, employer, employers’ organization, or other person or entity has acted contrary to the Act, it shall determine what, if anything, the employee, employee’s association, employer, employers’ organization, or other person or entity shall do to refrain from doing with respect to the contravention.

(6) Without limiting the generality of subsection (5), a determination under that subsection may include any one or more of,

(a) an order directing the employee, employee’s association, employer, employers’ organization, or other person or entity to cease doing the act or acts complained of;

(b) an order directing the employee, employee’s association, employer, employers’ organization, or other person or entity to rectify the act or acts complained of; or

(c) an order to reinstate in employment or hire the person or employee concerned, with or without compensation, or to compensate instead or hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Tribunal against the employee, employee’s association, employer, employers’ organization, or other person or entity, jointly or severally.

In commenting on Section 11, Chief Justice McLachlin and Lebel J. stated in Fraser (at Paragraph 112):

Section 11 of the AEPA specifically empowers the Tribunal to make a determination that there has been a contravention of the Act and to grant an order or remedy with respect to that contravention. The Tribunal may be expected to interpret its powers, in accordance with its mandate, purposively, in an effective and meaningful way. Labour tribunals enjoy substantial latitude when applying their constituent statutes to the facts of a given case. As stated by the Ontario Labour Relations Board in Adams Mine, Cliffs of Canada Ltd. v. United Steelworkers of America (1982), 1 C.L.R.B.R. (N.S.) 384:

The Act does not spell out each and every right and obligation of labour and management. This Board is left with the task of applying the Act's general language in the light of an infinite variety of circumstances which may arise. A rigid scheme of regulation is avoided and flexibility is provided although all within the limitations necessary to effectuate the dominant purpose of the Act.

The AEPA and the OLRA

Before embarking on a summary and analysis of the facts in this case, it is important to note what should be obvious: the AEPA is not the LRA¹. The Ontario Labour Relations Act is much more comprehensive in its governance of employer-employee relations. It sets out various regimes for employer-worker relations, including the right to organize, the right to bargain collectively, and the right for strikes and lockouts. As a result, there are established processes that employers and unions must follow, and there is considerable case precedent to show how the LRA is to be applied. In short, it is an Act with some gravitas, both in size and in history.

In contrast, the AEPA lacks those attributes as it specifically applies to a specialized working environment — agriculture (as was discussed above). It is silent on many of the processes contained in the OLRA. Other than Fraser and perhaps this case, there does not appear to be any judicial or quasi-judicial interpretation of its workings.

One need only look at the manner in which the AEPA defines the employer-worker-representative relationships. Under the AEPA, the agricultural employer must, in good faith, consider issues of workplace relevance to the employees. Specifically, Section 5(1) of the Act sets out that statutory duty:

The employer shall give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer.

It is clear from the wording of Section 5(1) of the AEPA that the bargaining regime under this Act is not based on the exclusive bargaining model integral to the LRA. This section specifically refers to “one or more” of the employee’s association’s members who are employed by the employer. Further, an “employee’s association” is defined under the AEPA as meaning “an association of employees formed for the purpose of acting in concert.” The usage of such language is distinctly different than that which is found in the LRA, which relies not upon employee’s associations but instead “trade unions”, and grants such trade unions the right to be the exclusive bargaining agent for all employees in any given bargaining unit. Had the Ontario Legislature wanted to follow the LRA model, it could have done so by either incorporating similar language or by allowing agricultural employees to organize under that Act.

Instead, the AEPA contemplates a model whereby more than one employee’s association having one or more members can make representations to the employer. Therefore, in theory, each employee could have a separate association making separate representations to the employer.

While not necessarily common in the traditional North American employer-union environment, the non-exclusive bargaining agent model is used by industrialized nations throughout the world, a point acknowledged by UFCW’s Kevin Shimmin during his cross-examination. As MedReleaf pointed out in its final submissions, the non-exclusive bargaining agent model is used, among other places, in Australia and New Zealand; in each case, different rules and procedures are in place that govern how the bargaining process is to unfold.

However, unlike the LRA labour relations model which has defined rules and procedures, the AEPA is silent in this regard in that it is designed with flexibility to apply in various agricultural sectors. Much time was spent during the hearing discussing the signing of union cards (for both a federal and provincial union), the payment of dues (at least federally), and the attempts by employees to revoke membership status from UFCW. This lead to confusion and speculation as to who is or is not a member of UFCW for the purposes of UFCW making representations to MedReleaf.

Given that the AEPA (1) is a departure from LRA (and the corresponding Canada Labour Relations Act), (2) allows for representation for “one or more” members but not necessarily all, and (3) is silent on process, the Tribunal finds that the rules and procedures for exclusive bargaining agency under the LRA and CLRA are neither applicable nor helpful in situations involving representation under the AEPA. A new model is required.

Did MedReleaf provide UFCW a reasonable opportunity to make representations?

The present situation demonstrates why the traditional labour model does not work under the AEPA.

In these proceedings, UFCW has taken the position that MedReleaf is in breach of its statutory duty, as required by Section 5(1), that there was never any bona fide effort on the employer’s part to meet, and that MedReleaf’s actions in this regard amounted to no more than “surface bargaining”.

MedReleaf, on the other hand, stated that it was, at all material times, ready and willing to meet provided that UFCW advised MedReleaf of exactly whom the Union represented. MedReleaf submits that the AEPA contemplates a non-exclusive bargaining agent model, as opposed to the traditional North American “union” model of exclusive bargaining agent in which one union or association represents all common workers of an employer. Accordingly, MedReleaf’s position was simply that, until it knew exactly whom UFCW represented, it was not appropriate to meet.

In January of 2016, Mr. Shimmin of UFCW wrote Mr. Closner of MedReleaf to make representations pursuant to Section 5(1) of the AEPA. Mr. Shimmin requested information regarding the wages of certain employees based on positions held. Mr. Shimmin also stated that he was “writing to provide representations with respect to terms and conditions of employment…on behalf of the employees that we [UFCW] represent, as well as a number of former employees whose reinstatement we will be seeking.” Mr. Shimmin set out the following “Written Representations Respecting Terms and Conditions of Employment”:

1. An agreed-upon framework governing the circumstances where employees may exercise their right to strike (and the employer may exercise its right to lockout).

2. An agreement that neither party will engage in a strike or lockout, except when the conditions referred to above have been satisfied.

3. An agreement that any dispute between the parties will be determined by way of arbitration, except when strike or lockout is permitted.

4. An agreement that the employer shall only discipline or discharge employees for just cause.

5. An agreement that we are the exclusive representative of agriculture employees employed by MedReleaf.

6. Representations will be made in relation to monetary terms and conditions of employment once I review the information requested from you.

MedReleaf’s Human Resources Consultant acknowledged Mr. Shimmin’s letter but indicated MedReleaf was not prepared to engage in discussions until UFCW provided “some evidence that you are actually representing one or more of our current employees and what positions those employees hold.” This began a protracted back-and-forth between UFCW and MedReleaf as to what information would be forthcoming from UFCW, which replied that any membership information collected by UFCW was confidential and that such information had been previously submitted to the Ontario Labour Relations Board.

MedReleaf then responded that specific information should be protected but that, given that a number of employees had withdrawn their support from UFCW, it required evidence of membership. To break the stalemate over membership information, MedReleaf proposed two options: (1) UFCW could provide a sworn affidavit attesting to the number of employees who have requested UFCW representation and their general positions, or (2) both UFCW and MedReleaf could agree to a third-party who would verify membership evidence. Neither of these solutions was agreeable to UFCW. This was in February of 2016; this particular matter lay in abeyance for almost one year, when this very hearing made it an issue once again.

Pursuant to an Order of this Tribunal dated October 26, 2016, UFCW provided an affidavit, sworn by Mr. Shimmin and dated November 7, 2016, that set out the number of MedReleaf employees (and their positions) represented by UFCW as at January 27, 2016. Further, the affidavit stated that none of these employees had requested that UFCW rescind their memberships. On its face, it would appear that this affidavit would finally provide MedReleaf with the information it required to allow UFCW to make representations as required by the AEPA; however, that would not be the case.

In February of 2017, following comments made at the commencement of the hearing, UFCW sought clarification as to whether MedReleaf had now considered UFCW’s written representations, set out above, made in its January 2016 letter; if MedReleaf had done so, UFCW wanted written confirmation of that fact. By way of an email, Jason Fleming, MedReleaf’s new director of human resources, provided clarification, but not that which UFCW sought; instead, Mr. Fleming advised that “MedReleaf’s position is that it had no obligation to previously receive representations from UFCW as the union did not, at the time, establish its representational status.” Mr. Fleming continued that MedReleaf wanted UFCW’s input into 2018 compensation for its employees but that, first, UFCW would have to provide updated evidence of the number of MedReleaf employees represented by UFCW, confirmation that such representation requests had occurred in the prior twelve months (that is, on or after March 1, 2016), and the nature of the work performed by those members UFCW represented. MedReleaf once again proposed that affidavit evidence providing this information would be sufficient.

In response, UFCW advised it was not prepared to have discussions regarding 2018 compensation when 2016 and 2017 compensation remained unresolved. It maintained its position that it had representational status during those specific years, and that the twelve-month membership window required by MedReleaf had no applicability under the AEPA. Of note, Mr. Shimmin wrote,

We do not agree that the UFCW lacked representational status at that time. There is no statutory framework in this regard. This is one of the statutory deficiencies of the AEPA. In any event, the UFCW possessed the necessary representational status.

Mr. Shimmin accused MedReleaf of “mov[ing] the goalposts” by “creating evolving preconditions that will be used as a justification to refuse to engage in bargaining.”

MedReleaf then advised UFCW that 2016 and 2017 compensation were part of the issues before the Tribunal and would not be debated. However, it remained prepared to move forward and meet to discuss 2018 compensation provided an affidavit, or something similar, establishing then current representational status was provided. With respect to the twelve-month window, Mr. Fleming wrote,

The twelve-month timeframe for which we requested representational status comes from OLRB jurisprudence, which seems to be the only guide available to us given the dearth of Tribunal jurisprudence.

In its follow-up correspondence, UFCW refused to move from its position on “so-called representational status” but indicated a willingness to meet. MedReleaf was also prepared to meet but still required evidence of UFCW’s representational status. Instead of an affidavit, it was willing to accept UFCW’s written confirmation of requests for representation, applications for membership or confirmation of membership received in the previous twelve months. However, UFCW was not prepared to provide such written confirmation.

Then, after a further exchange of emails between Mr. Fleming and Mr. Shimmin, MedReleaf advised on April 6, 2017, that, “While we continue to believe that UFCW has not demonstrated its representational status, we are open to a meeting if that is your request.” Mr. Shimmin confirmed the meeting but advised in writing that he was “hoping to receive a substantive response to the written representations sent in January 2016.”

The meeting was held in Downtown Toronto on April 11, 2017. Given the previous positions of the parties, it is not surprising that, as Mr. Fleming noted in subsequent correspondence, “we reached an impasse early on.” MedReleaf was not prepared to discuss 2016 and 2017 compensation but was seeking input on 2018 compensation. Further, the issue of representational status remained front and centre. In an email to Mr. Shimmin dated April 20, 2017, Mr. Fleming wrote,

As you know, the AEPA does not provide for an exclusive bargaining agent model. And, as you agreed at the hearing, the exclusive bargaining agent model does not apply in all democratic countries. Accordingly, it is not legally appropriate for us to accept the Union as the exclusive representative of all of our employees, but we are prepared to receive representations from the Union.

According to your testimony at the hearing on March 9, 2017, we learned that the Union’s membership cards were signed at some point in May of 2015. At this point, there is no standard for “fresh” membership evidence under the AEPA, but by analogy, under OLRB standards, those cards were valid until May 2016. Now that we are almost into May of 2017, we require renewed confirmation of representational status before proceeding with our discussions.

In the spirit of moving things forward, I am inviting you to propose a satisfactory anonymous way to establish current representational status (i.e. number of members and positions they occupy). We had previously made some suggestions, including the enlistment of a retired labour board mediator to ascertain current membership. However, we are prepared to discuss alternatives if that would bring us to a solution.

In a written response dated June 2, 2017, UFCW stated that 2016 and 2017 compensation had to be determined before 2018 compensation can be discussed. With respect to the bargaining model, Mr. Shimmin countered with,

I do not wish to debate your interpretation of the evidence at the hearing. The issue of the constitutionality of the AEPA and its bargaining model is one of the critical issues to be resolved by the panel. Even accepting your position concerning bargaining models, and your position concerning membership evidence, the results of the vote clearly established that the Union continued to have support and your correspondence simply confirms your unwillingness to have discussions. It appears to me that the reason MedReleaf agreed to have the meeting in the first place was to try to “shore up” its legal position in the proceedings.

It appeared clear to me that your intended focus on seeking to identify the remaining number of supports and positions occupied was for the purpose of identifying these individuals. The Union will not engage in either of the processes you have proposed. Representational status has long been established and the UFCW Canada remains prepared to move forward with respect to substantive issues.

MedReleaf denied that it was trying to “shore up” its legal position and reiterated its request to have UFCW’s input into 2018 compensation. And with that June 8, 2017 email, the discussion ended.

Analysis

By the very fact that the Ontario Legislature saw it proper to enact the AEPA, as opposed to applying the LRA to the agricultural sector, it is clear that labour relations are to be treated differently under the AEPA. Accordingly, it requires a new way of thinking.

Returning, then, to Section 5(1) of the AEPA, an employer must give an employees’ association a reasonable opportunity to make representations respecting the terms and conditions of employment of one or more of its members who are employed by that employer. Given that collective bargaining does not apply under the AEPA and a union does not represent all of the workers in any given bargaining unit, it is possible that, within a group of employees, there could be many associations wishing to make representations. In fact, given that an employee’s association could make representations for just one member, it is possible that there could be as many associations who wish to represent to the employer as there are members. In such circumstances, in order for there to be any productive discussions, it is necessary for the employer to know exactly whom the association represents and that the association has the proper authority from the employee to make representations on that employee’s behalf.

In the present case, the disclosure of information seemed to be the proverbial stumbling block between UFCW and MedReleaf. UFCW was reluctant to the point of refusal to provide MedReleaf with the names, job titles or even numbers of the employees it represented; MedReleaf refused to engage in discussions until it had even basic information. At the time, UFCW argued that the information for the employees it represented was confidential, arguably in fear of some form of retaliation by the employee. MedReleaf countered that it needed to know that the representation was authorized.

In order for Section 5 of the AEPA to be able to operate properly and effectively, there must be an implied element of good faith on the parts of both sides. According to Fraser, the duty to consider representations in good faith requires that the parties meet and engage in meaningful dialogue where positions are explained and each party reads, listens to, and considers representations made by the other; an employer must consider the association’s representations with an open mind. Similarly, the Tribunal finds that an employer must accept from an association any employee information in good faith; any use of that information in a punitive or retaliatory fashion would constitute bad faith and be a breach of the employee’s rights under the AEPA, and subject to the remedial provisions of that Act.

Therefore, in order for Section 5 of the AEPA to have any relevance, the following is required of both the employer and the employees’ association:

1. The employees’ association must provide information sufficient, but no more, to allow the employer to know whom the association represents and must provide authorization to speak on an employee’s behalf.

2. This employee information is to remain confidential and not to be used for reprisal of any form.

3. The employees’ association must make representations to the employer that are consistent with the Act’s purposes.

4. The employer must consider the representations with an open mind and beyond mere pro forma listening or reading.

5. The parties must meet and engage in meaningful dialogue where positions are explained.

6. The parties must conduct themselves at all times in good faith.

So, did MedReleaf violate the requirements of Section 5 of the AEPA? In the Tribunal’s opinion, it did not. UFCW steadfastly maintained a position that it was not going to provide information regarding employees, from their names to their positions to the nature of their affiliation with the union. In the traditional labour sense, this is understandable when the union represents all of the employees. But not in this case. MedReleaf was entitled to know whom UFCW was representing. However, MedReleaf was not asking for that information; it simply sought confirmation of representation and continually offered concessions to allow that to happen. In our opinion, MedReleaf acted reasonably and sought a compromise solution; each time it was rebuffed by UFCW, which refused to deviate from the traditional labour approach.

UFCW’s traditional approach is also reflected in the issues it raised for discussion with MedReleaf in January of 2016. It wanted to discuss the right-to-strike with the right-to-lockout, the concept of dispute resolution through arbitration, disciplinary matters, and exclusive representation — all concepts in the LRA but specifically excluded from the AEPA. Given the framework of the AEPA and its legislative purpose, these traditional labour issues are inconsistent with the Act.

Accordingly, the opportunity for meaningful, good faith dialogue never occurred as the first hurdles were never cleared. MedReleaf never denied UFCW a reasonable opportunity to make representations. Instead, by applying methods more appropriate to a traditional labour first contract negotiation, UFCW derailed the process required by Section 5 of the AEPA.

Did MedReleaf Thwart Employee Attempts to Organize Using Threats, Intimidation or Coercion?

The Complaint asserts that MedReleaf engaged in a campaign of intimidation, threats, coercion, and reprisal aimed at thwarting the Complainants rights to form, join, and participate in the lawful activities of an employee association contrary to Sections 8, 9 and 10 of the AEPA.

UFCW’s counsel argued that if this case was considered in the LRA context, the “misdeeds of MedReleaf”, as he characterized them (which included in part the Edna Dismaya (“Dismaya”) text threatening closure of the business, MedReleaf’s putting certain employees onto the LRA voters list as “managers”, Eitan Popper’s (“Popper”) “equivocal” evidence about meeting with Dismaya, and the text messages exchanged by Closner and Dismaya), would be considered the “top” misdeeds and deserving of automatic certification of a union which is the highest LRA sanction. However, there is no comparable provision in the AEPA for anything akin to automatic certification of an employee representative.

The Parties agreed that this case presented to the Tribunal the first substantive hearing under the Act and that part of the task in respect of the Section 11 complaints is to interpret and apply the reverse onus provision of Section 15.

Generally, the burden of proof or onus rests on the complaining party. As an example, in a wrongful dismissal claim, the responsibility is on the dismissed employee to prove the necessary elements of their claim. In contrast, this case involves a circumstance of mixed burdens of proof.

Section 15² of the Act is titled “Burden of Proof” and that section directs that when the Tribunal deals with a complaint under Section 11 involving assertions of employee threats, coercion, and intimidation as in this case, the burden of proof that the employer did not act contrary to the Act, “lies upon the employer”.

The remaining complaints by UFCW include the complaint that MedReleaf “discharged, discriminated against, threatened, coerced, intimidated, or otherwise” acted “contrary to this Act” in respect of the employment or conditions of employment of eleven employees. Those eleven employees are Manorath, Sivak, Yu, Shane-Taylor, Khakwani, Hazel, Ligaya, Juliet, Magdaleno, Ronald, and Alvin Mangal (“Mangal”).

In the context of the remaining claims and the burden of proof, the Parties agreed on the following points:

• Because of the mid-hearing settlements, the Tribunal should make no findings of fact arising from the evidence of Manorath, Sivak and Yu.

• The Tribunal could consider the totality of the evidence of Manorath, Sivak and Yu to assist in making general findings related to the overall credibility or reliability of any witness evidence.

• In respect of the complaint claims related to employee intimidation, coercion, and dismissals (the section 8, 9 and 10 claims), the burden of proof was reversed and is on MedReleaf.

• The parties agreed in calling the section 15 provision a “reverse onus” provision and the tribunal will adopt that characterization in these reasons.

• The wording of the reverse onus provision in section 15 of the Act, mirrors the wording of section 96(5) of the LRA.

• The Tribunal could consider and rely on jurisprudence from the OLRB to assist in guiding and informing us with interpreting and applying the reverse onus provision of section 15 of the Act.

The Tribunal concludes that use of reverse onus wording in Section 15 of the Act that essentially mirrors the wording of Section 96(5) of the LRA was deliberate and that same language supports the Parties’ submissions that cases from the OLRB about the reverse onus in Section 96(5) of the LRA, can be considered and relied on where appropriate in the context of Section 11 of the Act.

UFCW and MedReleaf each relied on several cases from the OLRB that explained how the OLRB has interpreted and applied the reverse onus provision in the LRA. The Tribunal finds the OLRB analyses about applying the reverse onus provision to be persuasive and helpful to inform an approach to interpreting and applying the reverse onus provision in the Act.

The pivotal OLRB decision³ about reverse onus suggests that the employer, in this case, MedReleaf is required “to establish two fundamental facts”: (1) that the employer’s reasons for the discharge are the “only reasons”; and (2) the reasons are not “tainted by anti-union motive”.

As discussed generally in the OLRB cases related to the reverse onus⁴, our mandate is not to determine if MedReleaf treated these employees fairly or unfairly or lawfully in an employment law context or whether MedReleaf met its legal obligations to accommodate family status issues or physical, psychological or emotional disability issues. Rather, the issue in this context, is whether MedReleaf’s motivation was in any way “tainted” by an anti-union animus. In this respect, the Tribunal accepted the cautionary direction of the OLRB jurisprudence not to become swayed by narrow views of what may or may not be fair and reasonable.

The Tribunal also accepts the cautionary direction of the OLRB cases that the presence of otherwise legitimate business/management considerations should not end the inquiry. If union support is found to be even only one of many considerations informing an employer’s decision to dismiss or discipline an employee that will “taint” the employer decision and render the associated action, be it dismissal or discipline, unlawful and a breach of Section 11 of the Act.

As it relates to this aspect of the Complaint, the Tribunal find that MedReleaf satisfied the reverse onus responsibility of Section 15 of the Act and proved on balance that it did not threaten, coerce, intimidate, or otherwise breach the Act. The Complainants’ evidence, as it relates to this aspect of the Complaint, does not satisfy us otherwise.

A. Relevant Time Frame: From Certification Applications to Certification Vote

The initial period of the Complaint related to the intimidation/thwarting aspect is between filing the parallel certification applications and the certification vote.

The uncontroverted documentary evidence is that UFCW’s lawyer sent the parallel certification applications to Neil Closner (“Closner”) at MedReleaf at 2:36 p.m. and 3:21 p.m. respectively on May 25, 2015. That date was a Monday. Under the LRA regime, the certification vote was scheduled for the fifth day (excluding weekends) after the application filing. That meant the OLRA union certification vote was Monday, June 1, 2015.

There was no evidence that MedReleaf had any knowledge of union organizing efforts before mid-afternoon on Monday, May 25, 2015.

Closner, MedReleaf’s Chief Executive Officer, denied any awareness of MedReleaf employees’ interest in unionizing the workplace before he saw both applications at the end of Tuesday, May 26, 2015. He testified that he did not know of the applications on May 25, 2015, and that he only became aware of the applications when he read them on May 26, 2015, before attending a MedReleaf Board of Directors meeting.

Ori Sher (“Sher”), MedReleaf’s Director of Security and Infrastructure, testified that he saw the certification applications on the fax machine late on May 25, 2015, when he went to pick up a document. He saw faxes related to union certification that were addressed to Closner, but that Closner was away that day. Sher spoke to Angelo Fefekos (“Fefekos”) and they discussed leaving the documents on Closner’s desk. Sher testified that he knew Closner had seen the certification applications on the evening of May 26, 2015, because Closner approached him asking when the applications had arrived.

Fefekos, MedReleaf’s Vice President of Quality Assurance and Compliance, testified that he learned of the parallel certification applications from Sher who had retrieved the fax transmissions from the fax machine. Fefekos testified that when he saw the certification applications, he suggested to Sher that he share them with Closner as soon as possible. Fefekos testified that he was unaware of any employee interest in unionization before he saw the certification applications.

Whether Closner was aware of the applications on May 25 or May 26 is immaterial to the fact that MedReleaf had received the parallel applications on May 25, 2015.

Therefore, the Tribunal finds+ that the primary period within which to examine this aspect of the Complaint, starts on May 25, 2015, at 2:36 p.m. and concludes with the certification vote on June 1, 2015.

I. Did MedReleaf Management Intimidate/Threaten/Coerce Employees Generally?

The Complainants assert that immediately after MedReleaf received the certification applications, MedReleaf’s Board of Directors met and soon thereafter its executives met with external agents Edna Dismaya (“Dismaya”), George Sunga (“Sunga), and Tom Flow (“Flow”). The Complainants theory is that MedReleaf’s Board and Senior Executives formed a plan to identify key union instigators and supporters, determine the level of union support, and dissuade employees from voting in favour of a union using threats and intimidation. The Complainants alleged that Closner was a principal player implementing that plan.

Closner testified that on becoming aware of the applications, MedReleaf obtained legal advice. He testified that based on that legal advice, he understood that it was improper to ask employees if they supported a union or if they had signed union membership cards and that he did not direct that such information should be sought from employees.

Closner denied that he asked employees about union support or that he made any comments to employees that, if they wanted to be secure in their jobs, they should not support a union and he denied directing that such comments or signals should be given to employees.

Certain documents in evidence were consistent with Closner’s oral testimony that MedReleaf’s management had obtained legal advice in response to the applications and had clear rules that defined the scope of management’s interaction with employees about the union certification drive, including:

• An e-mail chain between Popper, Closner and Igor Gimelshtein (“Gimelshtein”) that spanned 7:11 p.m. to 8:54 p.m. on Wednesday, May 27, 2015, reveals that senior management at MedReleaf were discussing how to deal with the pending certification applications. The e-mail also disclosed that senior management had received what was referred to as the “Rules of Engagement” document that outline “what not to say/do”) from legal counsel. While that document was not filed in evidence as it was privileged lawyer-client advice, the private e-mail communications among senior management provide corroboration of that aspect of Closner’s oral evidence.

• An e-mail of 10:44 p.m. on May 28, 2015, that Closner identified as one he sent to the shareholders and management of MedReleaf. The e-mail was partly redacted to obscure certain passages that contained privileged lawyer-client information. The e-mail confirmed that many of MedReleaf’s management spent the entire day speaking “very delicately” with employees and attached a draft letter that Closner created explaining MedReleaf’s position to all employees.

Closner also identified a letter that he authored that was personally distributed to all employees on May 28, 2015 and was translated into Tagalog for the benefit of the large number of employees of Filipino origin. He explained that he and Maria Maraj (“Maraj”), the then human resources consultant for MedReleaf, each stood at one of the two exit doors at the end of the workday to distribute the letter to each employee. He explained the letter as conveying that MedReleaf would function more effectively and efficiently without a third party intervening between management and employees and that the staff could remain happy without a union.

Shimmin, a National Representative of UFCW, testified that he considered Closner’s letter to be “nonsense”. However, when viewed objectively, there was nothing in Closner’s letter that was coercive, intimidating, threatening, promising or unduly influential. The letter was a proper exercise of MedReleaf’s right to freely express its views as enshrined in Section 8 of the AEPA. The letter was clear that MedReleaf was opposed to the unionization of its employees. There is nothing unlawful about an employer having and expressing such a view.

Gimelshtein, MedReleaf’s Chief Financial Officer, testified that, based on legal advice MedReleaf had obtained after receiving the certification applications, they wanted to make sure that they were following the “rules of speaking with staff” and that he personally spoke to a significant number of employees in the trimming room, the packaging room, and the shipping room. He denied that MedReleaf scheduled any mandatory meeting, inquired about union support, or encouraged employees to vote against a union because, as he testified, “it’s against the rules”.

Certain documents in evidence were consistent with Gimelshtein’s testimony that MedReleaf’s management had obtained legal advice about the nature and extent of communications permitted during a union organizing drive.

For example, Manorath identified an e-mail exchange between him and Shimmin at 10:35 a.m. on May 27, 2015. That would have been the Wednesday of the week that the parallel certification applications were delivered to MedReleaf. Part of that text message from Manorath advised that Gimelshtein had just spoken to him in the irrigation area of the production level, awkwardly asked “how are things”, explained that he “doesn’t have any experience with unions”, and that he “can’t say much, but once they get a green light from lawyers they’ll be speaking to everyone because he’s sure there are A LOT of reasons why a union is not in the best interest of production staff”. That part of the text message independently supports Gimelshtein’s evidence that MedReleaf management were being carefully guided in their communications with employees by the legal advice they had obtained in response to the certification applications. The substance of Gimelshtein’s comments as reported in Manorath’s e-mail to Shimmin reveals nothing unlawful in Gimelshtein telling Manorath that a union is not in the employees’ best interests.

Popper, MedReleaf’s Executive Vice-President, testified about being surprised by the certification applications because he was unaware that some employees had been planning for unionization. He acknowledged that he did not think a union would serve the best interests of MedReleaf employees. He also explained how the three senior executives (being he, Closner and Gimelshtein) had reached out to their legal advisors and had received clear instructions from legal counsel about both what should be said in response to the certification applications and how it should be said.

Popper’s cross-examination evidence only reinforced his evidence in chief that there was no management campaign to dissuade employees from supporting a union and that there was no plan to identify the key union supporters or to rid MedReleaf of the key union supporters. He reiterated that MedReleaf had clear legal advice about what they could and could not speak about with employees during the certification process.

The oral evidence of each of MedReleaf’s senior executive team of Closner, Gimelshtein and Popper was consistent that there was no campaign or plan to identify union supporters or to intimidate, threaten or coerce employees to vote against a union. While it was acknowledged that the MedReleaf Board of Directors had a regularly scheduled Board meeting on the evening of May 26, 2015, the evidence of the senior executives was consistent that the issue of the certification applications was not the subject matter of any substantive discussion that evening. That oral evidence remained unshaken through cross-examination.

There was no direct evidence from any of the Complainants’ witnesses about what transpired in the MedReleaf Board of Directors meeting of May 26, 2015. There was no direct evidence from any of the Complainants’ witnesses confirming that the MedReleaf Board of Directors and its senior executives created a plan or campaign to identify key union instigators and supporters, determine the level of union support, and dissuade employees from voting in favour of a union using threats and intimidation.

On cross-examination, Fefekos denied that there was any management goal to identify union supporters or to defeat the union vote. Fefekos acknowledged that he participated in a meeting with the employees in the staff lunch room because there was no alternate space that could accommodate that many people and he believed that almost all the casual general employees attended. He explained that the meeting was held on the advice of legal counsel. Fefekos provided the staff with his personal experiences from both unionized and non-unionized workplaces. He made clear to the employees his personal preference was against having a union at MedReleaf. He described how he explained to employees what he viewed as the benefits and drawbacks of unionization. He denied that he was aware of any management plan or campaign of persuasion. He testified that he was told it was improper to “push” employees in a direction about unionization.

Maraj was contracted with MedReleaf from September 2014 to June 2016 as a Human Resources consultant. She testified that she only became aware of the union drive the week before the June 1, 2015 certification vote after Closner had received the certification applications. She confirmed that MedReleaf’s management did not want a union but to her knowledge, they did not target union supporters. On cross-examination, Maraj confirmed that she did participate in meetings with management about the certification process and what communications could be made to employees. She denied that she saw a list of union supporters and testified that she did not know of such a list.

If there was a MedReleaf plan or campaign to identify union supporters and then intimidate, threaten, and coerce those supporters and other employees to dissuade them from voting in favour of a union, that plan or campaign would be known among MedReleaf’s senior executives and management. All the senior executive and management witnesses denied the existence of such a plan or campaign.

It is conceivable that all those senior executives and management were being untruthful in their evidence. However, their evidence was unequivocal and remained unshaken on cross-examination. In addition, there was no direct evidence from any employee that they were asked about their union support. There was no direct evidence from any employee that any MedReleaf senior executive or management threatened, intimidated, or coerced them to vote against a union.

Apart from the oral evidence of MedReleaf’s senior executives and management, there was some documentary evidence (e-mails) made contemporaneously with that period between May 15, 2015, and June 1, 2015. The thrust of the private e-mail communications among MedReleaf’s management tendered in evidence about the response to the certification applications reveals a carefully considered and legally advised position of communicating pros and cons associated with unionization. Those private e-mail communications provide independent documentary corroboration of the oral evidence of all senior members of MedReleaf’s management.

The oral evidence and the documentary evidence taken together support a finding that there was no MedReleaf campaign or plan to defeat the union through intimidating the employees.

II. Did MedReleaf Use External Agents to Intimidate/Threaten/Coerce Employees?

The Complaint asserts that MedReleaf used several external agents to identify union supporters and threaten, intimidate and coerce employees not to vote for a union. Those external agents included Dismaya and her husband Sunga as well as Flow, who was the former Chief Operating Officer of MedReleaf.

The Amended Complaint asserts that Dismaya, Sunga and Flow were all present at MedReleaf on the morning of May 26, 2015.

The Complainants’ evidence included testimony that the external agents were at MedReleaf during that week of May 1, 2015, to June 1, 2015. Some of the documentary evidence filed refers to the conduct and words of those external agents. Some of the Complainants’ evidence repeats words spoken by Flow from an overheard telephone conversation. Taken collectively, that evidence suggests that Dismaya and Flow were engaging some MedReleaf employees to influence the certification vote.

The Complainants’ theory is that during the week of May 25, 2015, to June 1, 2015, MedReleaf engaged those external agents to do indirectly what it was prohibited by the Act from doing directly.

Sher testified about MedReleaf security systems that must comply with Health Canada rules and included secure entrances/exits where ingress and egress for employees is controlled through electronic security pass cards or “fobs”. In addition, all visitor access is controlled by security officers who manually check photo identification for all visitors and log the date and time of entry and exit. Sher testified that for the month of May 2015, MedReleaf logged 122 visitors. On cross-examination, he confirmed that the security records reflect that on May 20, 2015, Dismaya and Sunga logged in as visitors at 10:46 a.m. and logged out of the building at 1:38 p.m. Sher confirmed that he knew Dismaya, Sunga and Flow and that none of those three people were logged as visitors to MedReleaf during the week of May 25, 2015 to June 1, 2015. Sher also testified that none of Dismaya, Sunga or Flow could gain access to MedReleaf outside of those security access protocols.

i. Tom Flow

Both Complainants’ and MedReleaf’s witnesses testified about Flow’s conduct and words during the week of May 25, 2015 to June 1, 2015. However, Flow did not testify. Although that factor leads to neither positive nor negative inferences, the Tribunal has no direct evidence from Flow about his conduct and words to aid in our analysis.

None of the Complainant’s witnesses testified that they saw Flow at MedReleaf during the week of May 25, 2015, to June 1, 2015.

Closner confirmed that Flow had been dismissed in mid-April 2015 because he was found to be untrustworthy and was exposing MedReleaf to liability that would include losing its license as a medical marijuana facility.

The uncontradicted evidence was that after Flow’s dismissal, MedReleaf held a meeting with all staff to announce that he had been dismissed from MedReleaf.

Closner denied asking Flow, directly or indirectly, to speak to MedReleaf employees about the union. Closner also testified that he was unaware of any MedReleaf management asking Flow, directly or indirectly, to do so.

Closner also testified that he did send Flow an e-mail on May 29, 2015, asking him to cease any communication with MedReleaf employees. He explained that he sent that communication in response to UFCW raising a complaint that Flow had been contacting employees to influence their decision in the unionization vote. Closner testified that he did not know if Flow had been doing what UFCW complained of, but he sent the e-mail to Flow instructing him to stop. Closner also testified that he had not had any communication with Flow since that May 29, 2015 e-mail.

Maraj testified that she never spoke with Flow about the union drive and that she had no knowledge of Flow speaking with employees about the union drive.

Popper’s evidence was that he had no communications with Flow from the time he was dismissed from MedReleaf in April 2015, until he bumped into Flow over a year later at a cannabis conference.

Gimelshtein testified that he was responsible for communicating with Flow about issues arising from his departure that included his termination compensation. He explained that he told Flow that the union certification process would create a delay in resolving Flow’s compensation because Gimelshtein’s full attention was on dealing with the certification process.

Sivak’s evidence was that he was with Flow one evening during the week of May 25, 2015, to June 1, 2015, for wings and drinks. Sivak testified that Khakwani, Manorath, Yu, Shane-Taylor as well as two other MedReleaf employees also met. Sivak drove with Flow to the meeting and overheard a phone call between Gimelshtein and Flow. He overheard the call because it was conducted on a car’s speaker phone. Sivak testified that he heard Gimelshtein tell Flow that if the union goes through it could affect his compensation. On cross-examination, Sivak conceded he did not know the context for that discussion and that it could very well have been about a pause in discussions about Flow’s compensation due to the priority of the union certification process. Sivak explained that in the meeting with Flow, they discussed the positives and negatives of a union and their concerns over job security. Sivak testified that Flow told them that Gimelshtein had said “something to the effect” that if it was a no vote, they would waive the non-compete clause and they would receive some sort of compensation.

Manorath’s evidence about that evening meeting with Flow was that Flow told them that Gimelshtein told him that if they vote no, he would waive their non-compete clause and they could leave MedReleaf and go work for Flow in his new medical marijuana company.

Khakwani’s testimony about that evening meeting was that Flow told them Gimelshtein had contacted him about some unspecified thing that was to be given to Flow and because of that Flow was pushing them to vote no in the certification. Flow told them that if they did vote no, Flow would give them jobs and that he would ask Gimelshtein to take out their non-compete clauses.

Each of Sivak, Manorath and Khakwani gave hearsay evidence about Flow’s version of what Gimelshtein had said during Flow’s and Gimelshtein’s discussions, presumably at some time before that evening meeting. That hearsay about what Gimelshtein said to Flow is admissible because under Section 15 of the Statutory Powers Procedure Act (“SPPA”)⁵, the Tribunal can admit hearsay evidence. However, that hearsay evidence does not prove that Gimelshtein said those things to Flow, it only proves that Sivak, Manorath, and Khakwani all heard Flow say those things.

There was no direct evidence that MedReleaf engaged Flow as an agent to intimidate, threaten, coerce, or influence the union certification process. All MedReleaf senior executives and middle management witnesses confirmed that none of them had enlisted Flow as an external agent to influence the outcome of the certification process.

There was direct evidence that when UFCW raised the issue that Flow was intermeddling in the certification process, MedReleaf immediately communicated with Flow in writing to cease any communications with its employees.

The Complainants’ argued that MedReleaf’s written communication to Flow to cease communicating with its employees was insufficient. The Complainants’ argued that in response to Flow’s intermeddling, MedReleaf ought to have communicated to all employees to clarify that Flow did not speak for the employer.

There was no evidence from any witness confirming a view that Flow spoke for MedReleaf during the week of May 25, 2015, to June 1, 2015. Manorath, Sivak and Khakwani’s evidence acknowledged that they knew Flow had been fired, and that was one of the prior dismissals at MedReleaf that influenced their concerns over job security that was the impetus behind contacting UFCW about unionization.

The evidence confirms that for a part of the week of May 25, 2015, to June 1, 2015, Flow was communicating with some of MedReleaf employees. Those communications included Flow proposing that he would assist employees to be relieved of their non-compete agreements with MedReleaf, so they could go to work for Flow. The evidence also confirms that when UFCW complained to MedReleaf about Flow’s communications to its employees, MedReleaf immediately ordered Flow to cease.

It defies common sense that MedReleaf would enlist the agency of Flow, a dismissed former employee viewed by MedReleaf as “untrustworthy”, to advance a hidden agenda of thwarting the union certification. There is no reliable evidence to support that aspect of the Complainants’ theory.

The evidence from MedReleaf senior executives and management on this point was unequivocal and unshaken despite rigorous cross-examination. That evidence was also consistent across testimony from several MedReleaf witnesses who testified independently of each other pursuant to a witness exclusion order made at the start of the hearing. The cogency and consistency of testimony reinforced the reliability of that evidence on this issue.

The evidence is consistent with Flow acting as an officious outsider seeking to advance his own personal agenda and interests. There was no evidence about what Flow’s personal agenda and interests might be however, the evidence heard is inconsistent with Flow acting as MedReleaf’s external agent.

The hearsay evidence from Sivak, Manorath, and Khakwani from the evening meeting with Flow deserves no weight in these circumstances. While the Tribunal accepts that Sivak, Manorath, and Khakwani heard those utterances from Flow, the Tribunal does not accept them for the truth of the contents in the face of the direct, and unequivocal disavowal of that evidence from Gimelshtein.

Considering this evidence regarding Flow, the Tribunal makes the following findings of fact on this issue:

• MedReleaf dismissed Flow months before there was contact between MedReleaf employees and UFCW.

• MedReleaf contemporaneously announced Flow’s dismissal to all MedReleaf employees in a meeting held for that purpose.

• The negotiations between MedReleaf and Flow over his dismissal and related issues including termination compensation continued for many months and beyond the week of May 25, 2015, to June 1, 2015.

• Flow was not at MedReleaf’s premises during the week of May 25, 2015, to June 1, 2015.

• During the week of May 25, 2015, to June 1, 2015, Gimelshtein communicated to Flow that in view of the union certification process becoming his priority, there would be a pause or hiatus in advancing Flow’s termination compensation issues.

• None of MedReleaf’s senior executives or management enlisted Flow to influence MedReleaf’s employees about the union certification.

• Flow did meet with some MedReleaf employees (Sivak, Khakwani, Manorath, Shane-Taylor, Yu) in an evening meeting during the week of May 25, 2015, to June 1, 2015.

• Flow’s motive for having that evening meeting with some MedReleaf employees is unclear.

• Flow’s communications to those MedReleaf employees in that evening meeting included prospects of jobs with his new business venture.

• MedReleaf immediately directed Flow to cease communicating with its employees when UFCW raised that issue.

• No MedReleaf employee believed that Flow’s conduct or communication during the week of May 25, 2015, to June 1, 2015 was authorized by MedReleaf’s senior executives of management.

ii. Edna Dismaya/George Sunga

Both Complainants’ and MedReleaf’s witnesses testified about Dismaya’s conduct and words during the week of May 25, 2015 to June 1, 2015. However, Dismaya and Sunga did not testify. Although that factor leads to neither positive nor negative inferences, the Tribunal has no direct evidence from Dismaya or Sunga about their conduct and words to aid in our analysis. UFCW’s counsel did argue that the Tribunal should draw an adverse inference that MedReleaf did not call Dismaya to testify, specifically in respect of a May 29, 2015 text message purportedly sent by Dismaya to some of MedReleaf employees. The Tribunal will comment more about that issue later in these reasons.

The Complaint asserted that Dismaya had been present at MedReleaf between May 25 and June 1, 2015. The Complainants’ theory was that her presence was instigated by MedReleaf for the purpose of thwarting the employees’ efforts to organize a union.

Khakwani testified that during the week leading up to the June 1, 2015 certification vote, he saw Dismaya at MedReleaf. That week would be Monday, May 25 to Sunday, May 31.

Closner testified that Dismaya was self-employed running a staffing agency that MedReleaf had used to bring in temporary employees. He denied that Dismaya attended the May 26, 2015 MedReleaf Board of Directors meeting. He also denied that he had any knowledge that Dismaya was calling employees and threatening them with dismissal. He testified that he had no knowledge of anyone at MedReleaf asking Dismaya to speak with employees about the union drive. He confirmed becoming aware of Dismaya contacting employees through counsel and that he spoke with her and told her to stop speaking with MedReleaf employees and that he then followed up with her in writing.

Maraj testified that she never spoke with Dismaya about the union drive and that she was not aware that Dismaya or Sunga had been speaking with employees about the union drive. On cross-examination, Maraj testified that she did not see Dismaya at MedReleaf during the week that the certification applications arrived, however, she also testified that she usually worked only two days a week. Maraj also denied knowledge of Dismaya scheduling a meeting with Popper that week.

Maraj’s evidence was that Dismaya and Sunga had been at MedReleaf a week prior to the certification applications. On that day, MedReleaf held a meeting of its casual staff for several purposes that included: clarifying to employees that the employer-employee relationship was between them and MedReleaf, announcing the promotion of several casual employees to full-time status, and confirming wage increases. Maraj testified that “one of the things we wanted to make sure the employees understood was that HR and MedReleaf were the contacts, not somebody outside the organization”. Maraj’s evidence about those staffing clarifications and changes was confirmed by several MedReleaf documents⁶. Those documents all pre-dated MedReleaf’s receipt of the certification applications on May 25, 2015.

MedReleaf security logs reflected that on May 20, 2015, Dismaya and Sunga logged in as visitors at 10:46 a.m. and logged out of the building at 1:38 p.m. That security log evidence also confirmed Maraj’s evidence that Dismaya and Sunga attended that May 20, 2015 meeting with the casual employees and those employees heard MedReleaf’s clarification about the employer-employee relationship.

Popper’s evidence was that he directed and participated in the May 20, 2015, meeting with all the casual employees. He confirmed that while Dismaya and Sunga were present, they did not participate in the meeting and were observers. He testified that part of what was communicated to the employees that day was that any communications should be between the employees and MedReleaf and not through Dismaya/Sunga. Popper’s evidence was they explained to the employees that they “didn’t believe it was proper or healthy to communicate through someone that is not an employee or does not have a formal role in the company”.

Popper testified that he had no recollection of meeting with Dismaya the week of May 25, 2015, to June 1, 2015 and that he found no record that such a meeting occurred. He testified that had such a meeting occurred, he would have reported it to his fellow senior executives. Popper confirmed that based on e-mail exchanges with his fellow senior executives, it looked like he had been planning to meet with Dismaya during the week leading up to the certification vote. On cross-examination, Popper denied that the purpose of the proposed meeting with Dismaya that week was to incorporate Dismaya into MedReleaf’s plan to defeat the union, but rather to learn from Dismaya what she knew about any of the concerns of the employees. He testified that he was surprised by the certification applications and thought they were a reaction by casual employees who had not been given full-time status and a wage increase.

Popper testified that he did not ask Dismaya or Sunga to speak with any employees about the union drive because doing so would be a “grave mistake” and contrary to the “proper way”. He also denied any knowledge of anyone at MedReleaf instructing Dismaya or Sunga to speak with employees about the union drive.

All the MedReleaf witnesses denied that Dismaya was at MedReleaf during that week leading up to the certification vote.

The other witnesses that the Tribunal heard from who can support any findings of fact are Shimmin and Zenne Maceda (“Maceda”), a National Representative of UFCW. However, neither Shimmin nor Maceda provided any testimony corroborating Khakwani’s evidence that Dismaya was present at MedReleaf during that week.

MedReleaf produced into evidence the records of its electronic security log for the month of May 2015. MedReleaf evidence regarding the high level of security at the premises was not seriously challenged and that evidence satisfied us that it was highly improbable that anyone could enter MedReleaf premises without an electronic record of the entry. That electronic security log provided documentary evidence corroborating the fact that during the period of May 25-June 1, 2015, none of Dismaya, Sunga or Flow entered MedReleaf’s building.

The Tribunal finds there is insufficient reliable evidence to make any finding that Dismaya or Sunga were in MedReleaf’s building between May 25 – June 1, 2015.

There was documentary evidence filed that confirmed that during the week of May 25, 2015 to June 1, 2015, Dismaya was communicating with some MedReleaf employees and with Closner.

Maceda testified that on May 29, 2015, one of the MedReleaf employees who was a union supporter and whom she identified as Vivian Gamboa sent her a “screen shot” from her cell phone. The screen shot was of a text message that Vivian had received. Maceda brought the text message to Shimmin’s attention.

Shimmin testified that Vivian told them that the text message had been sent by Dismaya “to all the casual employees”. Shimmin also testified that he personally would have spoken to “probably about 10 people” of the casual employee pool about receiving the same text from Dismaya.

None of MedReleaf casual employees testified about the assertion of Dismaya “systematically calling employees”. None of MedReleaf casual employees testified about receiving the text message from Dismaya. Although that factor leads to neither positive nor negative inferences, there is no direct evidence from any casual employee about any communications with Dismaya during that week between May 25 – June 1, 2015 that might aid in our analysis.

Our summary of the material contents of the text message as follows:

• “We” invite you to a meeting at 5 pm today at a restaurant.

• The meeting purpose is to give important information regarding the union.

• “Thomas” will be the speaker.

• He really cares about “what will happen to your jobs”.

• Once the union succeeds “the investors…will pull out and eventually may cause the company to shut down and then everybody loses”.

• The investors “are not in favour of a union”.

• “If you think the union will save your jobs you must attend this meeting.”

Shimmin’s evidence was that this Dismaya text was sent to all the casual employees on Friday, May 29, 2015 and that he obtained Dismaya’s phone number and personally called her. Shimmin’s advice to Dismaya was that he “was from the union”, they “had seen the text you sent to all the casuals”, and that if the texts continued or the meeting proposed in the text took place, “the union will file charges of unfair labour practices against MedReleaf, and her name will be included in those charges”. Shimmin testified that Dismaya did not deny sending the text message, did not deny organizing a meeting of the employees. Shimmin also testified that the meeting Dismaya was organizing for that evening did not take place and he personally knew that because he went to the meeting venue to confirm that.

On Friday, May 29, 2015, UFCW’s counsel wrote to MedReleaf’s counsel alleging that Dismaya was “systematically calling employees threatening them with termination… claiming that the Company will close if the Union is successful, demanding the names of card signers… and also stating that they are required to attend a captive audience meeting this evening”.

In response, MedReleaf’s counsel wrote that same day advising that, among other things, “MedReleaf has no knowledge of the activities referred to in your letter and accordingly, did not authorize them. Nonetheless, given your allegations, as of this morning, a representative of MedReleaf contacted Ms. Dismaya and requested that she cease contacting MedReleaf employees immediately.”

Closner’s evidence was that he was unaware that Dismaya was communicating with employees as alleged in the letter from UFCW’s counsel. He testified that he had no knowledge of MedReleaf “asking or authorizing” Dismaya to speak to employees about unions either directly or indirectly. Closner also testified that when he learned of the Dismaya text message on May 29, 2015, he telephoned Dismaya and asked her not to “initiate any conversations with MedReleaf staff”. Closner’s direction to Dismaya about that was confirmed to her in an e-mail that same afternoon and Dismaya responded to confirm to Closner that the proposed meeting was cancelled and that “we will not pursue any action toward the employees regarding the union issue as we have been notified by the union lawyers already.”

Beginning on May 30, 2015, and continuing May 31, 2015, and June 1, 2015, Dismaya and Closner exchanged text messages that began with Dismaya posing a question to Closner. The Complainants argued that the text exchange reinforced the theory that MedReleaf was using Dismaya as an agent to do indirectly what it could not lawfully do directly. However, viewed objectively, none of those texts messages contain any direction or suggestion from Closner that Dismaya attempt to threaten, intimidate, coerce or otherwise act unlawfully.

The Tribunal had no direct evidence about how many MedReleaf employees had been “systematically” called by Dismaya. The Tribunal had no direct evidence from any MedReleaf employee about the nature of the Dismaya phone calls. The Tribunal had no evidence about how many of MedReleaf employees received the text message from Dismaya. The Tribunal had no direct evidence from any MedReleaf employee who did receive the Dismaya text.

The hearsay evidence suggests that Dismaya called some employees and was seeking to meet with some employees and communicated a text message to some employees. What, how much, and why Dismaya did these things remains unknown.

In the context of the Dismaya/Sunga involvement, the Tribunal is confronted on the one hand with the clear and unequivocal and unshaken evidence of MedReleaf senior executives and management that they did not enlist or direct Dismaya or Sunga to threaten, intimidate or coerce employees and on the other hand with the Complainant’s theory and some hearsay evidence.

Counsel for the Complainants argues that MedReleaf needed to call Dismaya as a witness to dispel the notion that she was acting on MedReleaf’s behalf. Alternatively, he argued that if Dismaya was not acting on MedReleaf’s behalf and was simply a “rogue” meddling with the employees, then MedReleaf’s response to the Dismaya text was not adequate and MedReleaf ought to have taken more assertive and proactive measures to distance itself from Dismaya. The Complainants argued that in addition to directing Dismaya to cease (which MedReleaf did), it ought to have communicated with its employees “Dear Employees: We’ve been given a copy of a text message Dismaya sent most of you. She does not speak for us. We condemn this message. It’s an infringement of your rights. Your jobs are not in jeopardy.”

On the first point of argument, the Tribunal does not agree that MedReleaf “needed” to call Dismaya as a witness, just as it cannot draw an adverse inference against the UFCW because it did not summons Dismaya as a witness. Those are tactical or strategic decisions for counsel and client to make. It is not our role to dictate what witnesses MedReleaf or the Complainants “need” to call at the hearing.

On the second point of argument, it is not our role to dictate what response by MedReleaf, if any, is “adequate”. If MedReleaf is not complicit in the actions taken by a “rogue”, the Tribunal does not find that failing to deliver a subjectively “adequate” public denial somehow renders MedReleaf complicit.

In respect of the Complainants’ arguments on this point, they ignore several salient factors. First, there was no evidence that any MedReleaf executive or management saw the Dismaya text message between May 29, 2015, and June 1, 2015. Second, the May 29, 2015, complaint letter from UFCW’s counsel to MedReleaf’s counsel does not make any specific reference to the Dismaya text. Third, the complaint letter refers to the phone calls and “a captive audience meeting this evening”. Fourth, the complaint letter does not attach the Dismaya text message. Fifth, the complaint letter demands “your client to immediately take proactive steps to not only cease this conduct but to undo the damage that has been done”.

In consideration of those factors, it is impossible for us to determine that MedReleaf’s response to the May 29, 2015, complaint letter from UFCW’s counsel was not “adequate”. However, even if the Tribunal was able to make that determination, it is unable to find a logical path from a finding of inadequate response to MedReleaf being complicit in Dismaya’s acts.

The Tribunal therefore, finds there is insufficient reliable evidence to make any finding that Dismaya or Sunga were directly or indirectly acting at MedReleaf’s request to determine union support or influence or intimidate MedReleaf’s employees in respect of the union organization and certification vote.

The Tribunal accepts the evidence of MedReleaf’s senior executives and management on this aspect as credible and reliable and as discharging the reverse onus.

III. Did MedReleaf Intimidate/Threaten/Coerce Nadeem Khakwani?

Khakwani was one of MedReleaf’s first employees. He began in the position of part-time “casual general labour” under a July 2014 written employment letter and in August 2014 he accepted an offer to a full-time position as a “Flower 2 Lead”. He was an hourly paid employee throughout earning about $20 hourly. His job responsibilities including checking the plants to ensure they were fed, disease checks, pruning and adjusting the lighting levels. Eventually, he became a “lead hand” in those responsibilities, directing the plant care work of some of the casual general labour employees. As of March 10, 2015, he became qualified by Health Canada as an ARPIC, meaning he was authorized to work alone with cannabis.

Khakwani participated in discussions with several other employees including Shane-Taylor, Manorath and Mangal about unionizing. He explained that his workplace concerns included personal protection equipment (“PPE”) and long-term job security because of the pace at which five to six people had been dismissed from MedReleaf.

Khakwani testified that Manorath contacted UFCW and arranged an initial meeting with Shimmin included himself, Shane-Taylor, Manorath and Mangal. After that initial introductory meeting with Shimmin where Shimmin explained how unions worked, a second meeting took place where union cards were distributed and signed among those initial organizers. Shimmin explained how the employee organizers should obtain signatures on both provincial and federal cards and collect the requisite fee from other employees.

In addition to those initial organizing meetings, Khakwani participated with the other employee organizers to get union cards signed by 20-25 employees including casual employees at their homes, in coffee shops and at union rallies. He also attended two of the Saturday union organizing rallies. When cross-examined about the subject matter of the discussions at those several meetings and rallies, Khakwani testified that people seemed very happy and there was an explanation about why both a provincial and federal union card were being signed, but he was unable to recall what was said at the meetings; if job security was discussed; how long union cards would be valid; whether someone who signed a union card could still vote no at the certification vote; or whether someone who signed a union card could later revoke the card.

Khakwani testified about how, during the week leading up to the union certification vote, he had an evening meeting that included Shane-Taylor, Manorath, Sivak, Mangal as well as several former co-workers that included both Flow and individual identified as “Craig”. Khakwani testified that Flow told them that Gimelshtein had been in contact with Flow and there was an issue with something that was to be given to Flow however, he did not specify what that something was. Khakwani testified that in the meeting, Flow was pushing them to vote no in the union certification. Khakwani testified that Flow told them that if they voted no, he would give them jobs with his company and that he would ask, or that Gimelshtein said, that they would take out the non-compete clauses from their employment agreements with MedReleaf.

Khakwani also testified that the night before the certification vote, he received a text message from Craig and then Craig called him. Craig asked him about which way people were voting and Khakwani told him in favour of the union. Craig told him “that can’t happen” and that he wanted a “no” vote. Craig went on to tell Khakwani that there were “powerful people” on MedReleaf board and that they “can make you disappear”. Khakwani testified that he felt scared by Craig’s call.

Khakwani told both Shane-Taylor and Manorath about that call from Craig. He also told Gimelshtein the next day at work, without identifying Craig as the caller. Gimelshtein acknowledged hearing from Shane-Taylor that Khakwani had received a threatening call. Gimelshtein recommended that Khakwani call the police to report the threat.

On cross-examination, Maraj testified about meeting with Manorath and Khakwani in MedReleaf boardroom during the week prior to the certification vote where Manorath advised her that the previous evening, Khakwani had received a threatening phone call related to the union drive. Maraj advised Khakwani to report the threat to the police. Maraj testified that she deduced Khakwani felt threatened from that phone call, but that she was unable to say if he was upset because Khakwani did not speak during the meeting and in response to Maraj’s inquiry about who made the threat, Khakwani did not say.

MedReleaf evidence about Flow’s departure from MedReleaf was consistent, unequivocal and uncontradicted that Flow was dismissed months before the union organizing drive.

MedReleaf evidence was that no one at MedReleaf enlisted Flow to intimidate or coerce employees, directly or indirectly to vote no to unionization. While that evidence was challenged on cross-examination, it remained unshaken. The Complainants called no direct evidence to counter MedReleaf evidence on this issue. Khakwani provided the only tangential evidence on this issue.

There was an air of unreality to aspects of Khakwani’s testimony.

For example, when Khakwani recounted the discussions at the union rally meetings, he could not recall specifics or generalities about those discussions.

For example, the events reported about the meeting that included Flow and Craig as well as the threatening call from Craig.

• There was no evidence or explanation advanced about why Flow, as a former employee of MedReleaf, was involved to influence MedReleaf employees to vote no to unionization.

• There was no evidence or explanation about why Craig, as a former employee of MedReleaf was involved to influence MedReleaf employees to vote no to unionization.

• Khakwani did not produce the text message that he testified he received from Craig.

• Khakwani was a key employee organizer, but the events of the evening meeting with Flow, Craig and others did not form the ULP complaint to the OLRB dated July 20, 2015 or September 4, 2015.

• Khakwani was a key employee organizer, but the alleged threatening phone call did not form the ULP complaint to the OLRB dated July 20, 2015, or September 4, 2015.

• Neither the events of the evening meeting nor the threatening phone call were raised in any communications from UFCW or counsel to MedReleaf or its counsel during that week.

• Despite the very serious nature of the threat, Khakwani said he received; there was no evidence of any report made to the police.

The Tribunal has serious reservations that the evening meeting that Khakwani described which included Flow and Craig happened as Khakwani testified.

The Tribunal finds that there is no reliable or credible evidence to support any finding of fact in respect of Khakwani’s suggestion that Flow or Craig attempted to influence any of MedReleaf employees in respect of the June 1, 2015 certification vote.

The Tribunal finds that there is no reliable or credible evidence to support any finding of fact that, if Flow or Craig attempted to influence any of MedReleaf employees in respect of the June 1, 2015 certification vote, those attempts were organized by or requested by or directed by MedReleaf’s management.

The Tribunal finds that there is no reliable or credible evidence to support any finding that Khakwani was threatened in a call from Craig.

The Tribunal finds that there is no reliable or credible evidence to support any finding of fact that, if Khakwani was threatened in a call from Craig, that threat was organized by or requested by or directed by MedReleaf’s management.

IV. Did MedReleaf Conduct Captive Audience Meetings?

UFCW asserted that MedReleaf management held captive audience meetings with employees to ferret out union supporters and to improperly dissuade them from supporting a union.

The Tribunal is unable to make any findings of fact that any such captive audience meetings were convened at the instance of MedReleaf management.

The cannabis production rooms are located on the main floor and the management offices, including senior executives and human resource offices are on the second floor.

Khakwani testified that it was not normal for casual employees to go up to the second-floor office area; however, during the week after the union certification application, he saw casual employees going upstairs, but that he did not see with whom they were meeting.

Nothing substantive can be determined from Khakwani’s evidence that he saw casual employees from the lower level of the building going up to the second level of MedReleaf building during the week of May 25-31, 2015. Khakwani was unable to offer any evidence that any employee met with any of MedReleaf’s management on the second level of the building. Accordingly, on Khakwani’s evidence the Tribunal cannot find that there were any captive audience meetings, in breach of the Act.

Maraj confirmed on cross-examination that some casual employees were called into meetings with the management team during the week before the June 1, 2015 certification vote. She testified that she was not involved in selecting employees for those meetings. She knew meetings were happening, but she did not participate in the meetings. She specifically mentioned that she knew that Fefekos had been in a couple of meetings.

Fefekos testified that management had a few meetings to discuss how best to approach the union certification process and one of the approaches was for Fefekos to hold two information discussions with the staff over lunch in the lunch room. The meetings were to provide context, so everyone was aware what was happening and to share his personal experiences working in both unionized and non-unionized workplaces. He described one of the meetings was over lunch and the other over a break and that both meetings were voluntary, attendance was not taken, union support was not discussed, and that no references were made about how a union might impact their continued employment.

There was no conflicting or challenging evidence called by the Complainants that the meetings were anything other than as described by Fefekos.

Closner confirmed that MedReleaf did have meetings with employees on May 29, 30, and 31, 2015.

Closner said the meetings were on the lower level of the building and they were open, and that attendance was not mandatory and that the format of the meetings was that MedReleaf management was available to employees to answer any questions related to the certification process.

Closner testified that no one was asked about their support of a union or attendance at union meetings or how supporting a union might impact anyone’s employment.

On cross-examination, Closner denied that casual general employees were being summoned up to the executive floor for meetings with management.

Gimelshtein testified that he did speak with employees about the union, mostly downstairs in the processing area. He explained that he answered any employee questions about the union. Gimelshtein’s evidence was that there were no mandatory employee meetings and they did not ask about union support. Gimelshtein confirmed that he shared with employees his personal views against a union at MedReleaf.

None of MedReleaf casual employees testified. Although that factor leads to neither positive nor negative inferences, the Tribunal has no direct evidence from the casual employees to aid in our analysis on the issue of captive audience meetings.

Apart from the Complainants’ assertion of captive audience meetings, there is no reliable evidence of any such meetings. The only direct evidence is that of MedReleaf and it is consistent and credible that there were no captive audience meetings.

The Tribunal is satisfied on the direct evidence of MedReleaf that it has discharged its reverse onus obligations that there were no captive audience meetings.

Therefore, the Tribunal finds that MedReleaf did not conduct any captive audience meetings.

B. Relevant Time Frame: Post-Certification Vote …………………………………………………..….…… 38

I. Did MedReleaf Discipline and Dismiss Nadeem Khakwani?

Khakwani resigned from MedReleaf on July 17, 2015, and received lump sum compensation of $8,500.00 less statutory deductions. Khakwani signed a Full and Final Release dated July 17, 2015.

UFCW asserts that MedReleaf’s treatment of Khakwani during the summer of 2015 was part of an organized plan or campaign by MedReleaf to intimidate Khakwani, constructively dismiss Khakwani and eventually coerce him into resigning, all in breach of UFCW’s and Khakwani’s rights under the Act. UFCW asserts that Khakwani’s resignation and the Release were obtained by duress and therefore are invalid.

UFCW asked us to determine that MedReleaf breached Khakwani’s rights under the Act, declare the Release void, order Khakwani reinstated to employment and direct MedReleaf to pay compensation to Khakwani.

At the end of UFCW’s closing arguments, the Tribunal raised a concern that the Complainants gave no evidence about quantifying the compensation claimed. Counsel for UFCW and MedReleaf jointly submitted that it is common in labour relations practice not to lead evidence regarding compensation until after the labour tribunal makes a substantive decision on the entitlement. Considering that joint submission, and in the context of this case, the Tribunal agreed to adopt that same practice.

Khakwani was not a reliable witness. Khakwani’s evidence evolved from examination in chief to cross-examination. Whereas his evidence in chief was certain, when challenged on anything in cross-examination, he retreated into responses like “I don’t remember” or “it was two years ago”. He also attributed his evolving evidence to sleep deprivation. When asked why he had not told UFCW representative Shimmin about several material events during 2015, he answered that he “wasn’t smart enough to tell Shimmin everything.”

Where Khakwani’s evidence diverged from MedReleaf witnesses on any material point, the Tribunal prefers MedReleaf’s evidence. However, for many evidentiary points in Khakwani’s testimony where there was no corresponding MedReleaf evidence, the Tribunal found Khakwani’s testimony to be either unreliable or incredible.

Khakwani signed the Release voluntarily and the Release is effective. The preponderance of evidence supports a finding that there was no organized plan or campaign to intimidate, constructively dismiss or coerce Khakwani into resigning.

On this complaint aspect, the Tribunal finds that MedReleaf has discharged its reverse onus obligation.

II. Background to Khakwani’s Discipline and Departure

Gimelshtein testified that he knew that Khakwani was a union supporter prior to the certification vote. At some time before and after the unsuccessful certification vote, Khakwani was off work due to an injury to his eyes occasioned by exposure to the high intensity growing lamps.

On June 17, 2015, MedReleaf received a doctor’s note from Khakwani dated June 8, 2015 that confirmed Khakwani was seen on June 8th and had a condition that made him “very sensitive to lights and unable to function as he normally does”. The note suggested a recovery period of “1-2 weeks”.

On July 9, 2015, MedReleaf sent Khakwani a letter to “100 Leeward Glenway #2303”. The letter referred to Khakwani’s workplace injury and that MedReleaf “as required by law, filed information with the WSIB”. The letter also made several points about Khakwani not attending work, not cooperating with the WSIB, completing a functional abilities form, and requiring him to explain his non-attendance and uncooperativeness. The letter concluded by warning Khakwani that if he failed to cooperate as requested, MedReleaf will consider that he has abandoned his employment as of July 10, 2015. Khakwani testified that he did not remember receiving the letter, that he didn’t get the letter, and that the address was incorrect. He also did not remember receiving an e-mail from MedReleaf about the issues in the letter. He did not remember getting any requests from WSIB about their need for information from him. He denied that anyone from MedReleaf contacted him about returning to work with modified duties.

Khakwani produced a doctor’s note of July 10, 2015, from Dr. Mohan that explained his light sensitivity dated back to May 5, 2015, attributed his eye injury to “inadequate glasses or eye protection” and advised that he should have work in either the “trim room” or the “packaging room”.

Khakwani produced a doctor’s note of July 11, 2015, from Dr. Nowtash that reported on significant improvement in Khakwani’s corneal health and that he would be returning to work in “2 days”.

On July 14, 2015, MedReleaf sent Khakwani a letter to 100 Leeward Glenway #2303 about his return to work and failure to communicate with MedReleaf and the WSIB. The letter confirmed that Khakwani had met with Gimelshtein that day and had provided the two doctors’ notes of July 9 and 10. The letter pointed out that Khakwani had failed to provide any reasonable explanation for why he had failed to cooperate with the WSIB and MedReleaf in respect of his return to work. The letter confirmed that Khakwani admitted to his failing to cooperate and apologized. He also admitted that his failing to respond to communications from the WSIB and MedReleaf was unacceptable. The letter confirmed that MedReleaf would accommodate Khakwani’s return to work “outside the flower room for an indeterminate period”. The letter concluded by warning Khakwani that if he continued to ignore communications or miss work or be late for work without following proper procedure, he would be fired. Khakwani testified that he “may have” met with Gimelshtein on July 14, and that he recalled giving Gimelshtein the two doctors’ notes.

On cross-examination, Khakwani testified that the first time he had seen a letter from the WSIB was at the hearing in March 2017. He also confirmed that the address on the WSIB letter was his address where he had lived for ten years and that there was a phone at that residence. He testified that he did not know that the WSIB had ruled he was not entitled to injury benefits for the period June 22 to July 14. He could not remember what his WSIB status was during July 2015. He did confirm that he recalled receiving cheques from the WSIB at his residence. He testified that he only became aware that the WSIB denied him benefits at the hearing in March 2017.

On his return to work in July 2015, Khakwani asked Gimelshtein to work in the shipping room because the lights were the dimmest. Gimelshtein told Khakwani that he didn’t get to pick where he worked. Gimelshtein assigned Khakwani to the warehouse to label containers. Later, Gimelshtein re-assigned Khakwani to work cleaning up a room where the cannabis waste product had been stockpiled. Khakwani described that these modified tasks were performed over two to three days after his return to work immediately before his departure from MedReleaf.

UFCW asserted that MedReleaf’s letters and demands of Khakwani in respect of his workplace injury were part of a MedReleaf plan and campaign to use discipline, threats and coercion to force Khakwani to quit or to instigate a reason for firing Khakwani for cause.

III. The Alleged Discipline/Constructive Dismissal

Assigning Khakwani to return to work in the warehouse labelling containers, cleaning out the cannabis waste product and mopping the room constitute neither discipline nor constructive dismissal.

The evidence about the locations where Gimelshtein directed Khakwani’s modified duties was that each was a lower light environment. Khakwani did not testify that any of those three modified work locations affected his eye injury. While Khakwani no doubt wanted his modified duties to be in the shipping room, it remained management’s prerogative to assign the modified duties and work areas.

Khakwani’s evidence was that working in the cannabis waste product room was unpleasant. The smell was so bad that it made his eyes water and that he felt terrible due to his asthma. Khakwani confirmed that in the past he had, on one or two occasions, been assigned similar tasks but only for short periods and never to mop “gunk” off the floor. He testified that he was instructed to mop the cannabis waste room for two days. Khakwani and Gimelshtein both testified that Gimelshtein worked alongside Khakwani to clean up in the waste product room. That fact alone militates against UFCW assertion that the work was assigned to discipline Khakwani. The evidence about the modified work tasks spans at most the three days between July 14 to 17, 2015. Therefore, it was a span of two or at most three days. There was no evidence that Khakwani’s position was changed from his Flower Lead to mop-up crew. The assignments were part of a temporary modification of his duties due to his eye injury arising from his Flower Lead duties. Khakwani did not testify that his position as Flower Lead had been altered.

In the face of this evidence, the Tribunal makes the following findings of fact:

• MedReleaf’s selection of modified duties and altered work location for Khakwani was not a disguised form of discipline.

• MedReleaf’s selection of modified duties and altered work location for Khakwani did not amount to constructive dismissal.

• MedReleaf’s selection of modified duties and altered work location for Khakwani was not an attempt to engineer disciplinary action to warrant firing Khakwani.

• MedReleaf has discharged its reverse onus obligation in respect of this aspect of the Complaint.

IV. The Full and Final Release

Khakwani departed employment from MedReleaf on July 17, 2015. Khakwani and Gimelshtein each provided different versions of the events of July 17th related to Khakwani’s departure. The divergence in their testimony engages both reliability and credibility considerations. The Tribunal finds Gimelshtein’s version to be both more reliable and more credible.

Khakwani’s version of July 17th was that after his second day mopping in the waste cannabis room, Gimelshtein asked him to come up to his office. Gimelshtein said he knew who was involved in the union and that he had been given the green light by the Board to get rid of everyone. Gimelshtein put a contract in front of him and asked him to read it. Khakwani told Gimelshtein that he didn’t understand it and wanted to take it away to be reviewed. Gimelshtein told him he was uncomfortable allowing him to take it away to be reviewed and that the contract would not be available the next day because Closner was coming back. Khakwani testified that the contract was for $8,000-$10,000 for him to leave MedReleaf. Khakwani testified that Gimelshtein offered that amount and denied that he had asked for that amount. Khakwani testified that he did not try to negotiate a higher amount. Khakwani did identify and confirm his signature on the Full and Final Release dated July 17, 2015. On cross-examination, Khakwani’s evidence about his meeting with Gimelshtein evolved. He testified on cross that Gimelshtein told him “there is no chance of keeping his job”. When challenged that he hadn’t given the evidence of that quote during chief, Khakwani’s response was “I can’t remember everything from two years ago” and that it must have “slipped my mind” when answering his counsel’s questions in chief. Khakwani testified that he did not know if he reported the exchange with Gimelshtein to UFCW. Almost immediately thereafter, Khakwani testified that he had told Shimmin about the exchange with Gimelshtein the same day that he signed the Release.

On cross-examination, Khakwani was taken through a line by line review of paragraph 62 of the Amended Complaint that contains the Complainants’ pleaded version of the July 17 meeting between Gimelshtein and Khakwani. Khakwani confirmed that “I must have told UFCW that”. When confronted with differences between the pleaded version, the version in chief and the cross-examination version, and when asked why he hadn’t told UFCW all the other things that Gimelshtein had said to him in that meeting, Khakwani testified that “I did not tell them, I was scared and threatened”, “I didn’t tell Shimmin everything that was said that day”, “I was not smart enough to tell Shimmin everything”. Khakwani acknowledged that he left the meeting with Gimelshtein with a copy of the signed Release, but he didn’t think that he had given a copy to Shimmin. Khakwani confirmed that MedReleaf paid him the $8,500 less statutory deductions and that he had not returned the money to MedReleaf.

Gimelshtein’s evidence about Khakwani’s departure begins with Khakwani’s return to work on modified duties in the cannabis waste room. Khakwani asked to speak with Gimelshtein and he was upset. Gimelshtein took Khakwani to his office where Khakwani broke down, explaining that he liked MedReleaf but that he had been lied to and coerced by those behind the union drive. He realized that he was earning more at MedReleaf than his skill set and that he couldn’t bear to come to work but he was living at home with his parents and helping to support the family and couldn’t just leave because he had to help his parents pay the rent. Gimelshtein offered Khakwani a lump sum and support with a letter but that he would need a release in exchange. Gimelshtein told Khakwani to take his time to consider it and that while considering, he would continue to be employed. Khakwani said he couldn’t bear to come back to work. Gimelshtein had the Full and Final Release drafted and read the document to Khakwani. Gimelshtein testified that there were some words Khakwani didn’t understand and they took time to search the internet to “Google” those words for Khakwani. Gimelshtein testified that the amount paid to Khakwani was arrived at by negotiation. He testified that Khakwani asked him for $10,000 and that Gimelshtein counter-offered $8,500 less statutory deductions that Khakwani accepted. Gimelshtein denied the events as pleaded in paragraph 62 of the Amended Complaint. Gimelshtein was cross-examined and denied that he told Khakwani that he had a “green light to fire from the Board”. Gimelshtein testified that the Board of Directors was not involved in decisions to fire employees. On cross-examination, Khakwani’s alternate version of the July 17 events were put to Gimelshtein and he disagreed with Khakwani’s alternate version. Despite cross-examination, Gimelshtein’s evidence about the July 17 meeting with Khakwani and the signing of the Release did not waver and there were no inconsistencies.

When the Tribunal considered Khakwani’s evidence with Gimelshtein’s evidence about the July 17 meeting, Khakwani’s departure from MedReleaf and the signing of the Full and Final Release, where there is any material departure in the versions, the Tribunal prefers Gimelshtein’s version.

Parts of Khakwani’s evidence were inconsistent and incredible. Parts of Khakwani’s evidence were irreconcilable with the documentary evidence.

Another factor that militates against our assigning credence to Khakwani’s version of the July 17 events is that it is not raised as an issue by UFCW until the Original Complaint under the Act is filed seven months later on February 19, 2016. In other instances, associated with the union certification drive and thereafter in the summer of 2015, when UFCW considered MedReleaf’s acts to be unlawful reprisals or discipline or termination, it promptly wrote a letter to MedReleaf’s counsel or brought an unfair labour practice complaint. However, there is no evidence that UFCW took any such position about the events Khakwani reported on July 17, 2015. That factor weighs against assigning weight to Khakwani’s version.

Another factor against giving weight to Khakwani’s version is that it is internally inconsistent. Khakwani recounted that Gimelshtein told him he had the “green light” from the Board to fire him and then told him the offer of money to leave was not available after that day because Closner was returning. If the Board had given Gimelshtein such authority, then Closner’s presence would be immaterial. However, more importantly, it is incredible to believe that Gimelshtein would have made such an incriminating disclosure to a known union supporter and organizer.

UFCW argues that Gimelshtein’s evidence about the July 17 events is wholly implausible that MedReleaf would pay Khakwani anything on his departure, since it would owe him nothing if he voluntarily chose to quit. However, the Tribunal finds it fully plausible for two reasons. First, the Tribunal accepts as credible Gimelshtein’s evidence that he connected with Khakwani’s plight as an immigrant son living at home and helping to support his parents and that he felt used by the people involved in the union drive and that Gimelshtein did want to help Khakwani. Second, while the Tribunal accepts Gimelshtein’s evidence about his motive for offering Khakwani compensation, the Tribunal also recognized that in the context of a labour-management environment where there was uncertainty over which regime had jurisdiction, ongoing unfair labour complaints and an unsettled workplace following the unsuccessful certification vote any resolution of an employee departure that could achieve a Full and Final Release was a shrewd business decision. Therefore, the Tribunal accepts Gimelshtein’s version as plausible. The Tribunal finds as a fact that Gimelshtein’s motivation was not any anti-union animus, but rather his human connection with Khakwani’s personal circumstances and a reasonable and lawful business decision.

The wording of the Full and Final Release is clear; Khakwani surrendered all his rights in exchange for the $8,500.00 net of statutory deductions. Khakwani did not testify that the money he received from MedReleaf pursuant to the Release was insufficient or unfair. Khakwani earned about $20.00 hourly or approximately $40,000.00 annually. He had been employed by MedReleaf for approximately one year. $8,500.00 equates to about eleven weeks compensation. In these circumstances, the Tribunal finds that amount to be fair and reasonable and the product of negotiation between Khakwani and Gimelshtein.

UFCW argued that in respect of Khakwani exclusively, he signed the release under duress and that renders the release unenforceable.

UFCW argued that MedReleaf exerted economic duress on Khakwani and that duress rendered the Release void. In that regard, UFCW relied on the authority of the Court of Appeal for Ontario in Taber v. Paris Boutique & Bridal Inc. 2010 ONCA 157. The Court there concluded that two necessary elements that must be present to engage legal consequences are “pressure the law regards as illegitimate; and it must be applied to such a degree as to amount to ‘a coercion of will’ of the party relying on the concept.”

That analytical approach from the Taber case was applied by the Human Rights Tribunal of Ontario in Carole Bard v. Heenan Blaikie LLP et al 2011 HRTO 1706. That Tribunal observed that “parties making settlement agreements generally face a number of pressures and often make decisions in difficult circumstances. However, difficult financial circumstances alone are not enough to meet the exacting threshold set out by the Court of Appeal.”

The evidence does not satisfy us that there was duress associated with Khakwani signing the release. While Gimelshtein testified that Khakwani was upset during their meeting, the evidence does not convince us that Khakwani was operating under emotional, physical, or psychological pressure. There was a financial aspect in play. He wanted to quit but he also had to assist his parents with their rent. In the negotiation between Gimelshtein and Khakwani, that financial issue was addressed. The amount ultimately agreed on satisfies us that, in Khakwani’s circumstances, MedReleaf did not take unfair advantage of a superior economic position. Similar to the findings in the Carole Bard case, the Tribunal concludes that Khakwani’s difficult financial circumstances do not rise to the level of economic duress.

The Release wording, while not specifically referencing any rights under the Act, is nonetheless operative and effective. The Release wording is broad and expansive referring to Khakwani having “no further claim” against MedReleaf “for or arising out of my employment or cessation of employment which specifically includes but is not limited to …” claims which are then tied to the Employment Standards Act and the Human Rights Code. Despite no reference to the Act, the Tribunal finds and interpret the words “specifically includes but is not limited to” (emphasis added) in the Release to incorporate rights arising under the Act.

There are labour tribunal and human rights tribunal and court authorities that are helpful in informing our determination that the Release wording is clear and that the Release operates to bar Khakwani seeking any relief under the Act.

Those authorities have determined⁷ that a release will bar a complaint where the complainant hasn’t been misled into signing, was not unduly influenced by the employer, and was fully aware of the consequences of his or her actions, received fair consideration, and there is no duress. Our findings of fact of the July 17, 2015 events involving Khakwani and Gimelshtein are that Khakwani wasn’t misled, Gimelshtein didn’t exercise undue influence, Khakwani received fair compensation, there was no evidence of duress, and Khakwani fully understood the consequences of his actions.

UFCW is correct that it was not signatory to the release. It argued that flowing from that it can pursue full remedies on behalf of Khakwani. UFCW did not provide any authority supporting that proposition. Releases must have meaning. The authorities referred to provide a framework for setting aside a release, but as already discussed, there are no facts in the present circumstances that support setting the Release aside. The Tribunal is not prepared to create new criteria for setting aside an otherwise valid release. Just as Khakwani is barred from seeking to resile from the Release and asking us to reinstate him at MedReleaf with compensation, so too is UFCW barred from seeking that relief, whether on Khakwani’s behalf or on its own behalf. A Release brings about finality to the parties and the Tribunal is not prepared, on the fact findings in this case related to Khakwani, to upset that finality.

UFCW alternatively argued that it if it was unable to seek reinstatement and compensation for Khakwani, it could still pursue its own remedies under the Act, specifically it argued it could seek a declaration that Khakwani’s termination was contrary to the Act. The Tribunal agrees with UFCW’s alternative argument that in circumstances where an employer and employee have validly settled an employee’s claims and signed a release, that release would not necessarily preclude an employer’s association from seeking a determination that an employee departure was an unlawful termination in breach of the Act. However, that is an academic argument in this context as the facts of Khakwani’s departure was that it was not a termination and was not contrary to the Act.

C. Releases from terminated employees in January-February 2016

Six employees of MedReleaf received termination of employment letters in January 2016. They each accepted a settlement package and signed a release. For the reasons which follow, the Tribunal is satisfied that the terminated employees understood the document to be a release from all actions arising from his/her employment and the employee would have no further claim against his/her employer MedReleaf.

I. The Termination Letter

The termination letter given to each employee sets out in detail that the termination of employment is effective upon delivery of the letter, sets out the termination details including the offer of compensation. It also states the separation package covers all benefits to which the employee is entitled under the law of Ontario or otherwise. The employee is given seven (7) days to consider the offer and to return a copy of the letter with his/her signature with the acknowledgement I have read and hereby accept the company’s offer as set out above.

Maraj testified that at the meeting with the individual employees to deliver the letter and release, she reviewed the letter with each of them and answered their questions. Each of these employees was given time to sign the acknowledgement and return the release to MedReleaf. One of the releasors namely, Mangal, requested more time to consider the first termination package he received from Maraj. He delivered a letter to MedReleaf on January 20 requesting additional explanations and also asking the company to improve its package. The company presented a revised package on January 27 responding to his request for additional compensation. He accepted it on February 16 and signed the release.

None of the terminated employees testified at the hearing and no document was produced by UFCW wherein any of these terminated employees stated, or alleged that, their signature was procured by threats or coercion. None of the terminated employees repudiated by words or conduct the termination letter, their acceptance or the release which he/she signed. MedReleaf upheld its obligations under the terms of the agreement.⁸

Therefore, with no evidence to the contrary, the Tribunal is satisfied that Hazel Franco, Ligaya Manalastas, Juliet Lavarias, Magdalena Ojano, Ronald Paglicawan, Alvin Mangal understood the document to be a release from all actions arising from their employment, and they would have no future claim against their employer. There is also no evidence that the acceptance of the termination package and the signature of the releases were obtained by duress or coercion by the employer. In the absence of any protest by the terminated employees or evidence to put into question the validity of these documents, the Tribunal concludes that the releases and acknowledgements signed by these employees are enforceable contracts which concluded a settlement of all issues arising from their employment.

II. Outsourcing

As stated earlier in these reasons, MedReleaf was undergoing a rapid expansion of its business in the fall of 2015. The business also experienced fluctuations in its labour requirements during the harvest phase of production. While MedReleaf had relied up until that time upon a contingent of part-time employees to manage the fluctuating level of activity, it decided to approach a staffing agency Adecco to provide casual labourers, as need be to MedReleaf, at the all-inclusive labour rate of $18.50 per hour. Maraj had dealt with Adecco in her previous employment.

Maraj and Gimelshtein testified that the agreement to outsource its casual labour requirements to Adecco was not related to the efforts of UFCW to represent the employees of MedReleaf before the OLRB or the CIRB. Gimelshtein also testified that the decision to outsource its casual labour requirements to Adecco was motivated by the company’s desire to better manage its labour requirements and labour costs by calling upon a staffing agency to provide additional labourers on short notice during peak harvest times and was not motivated by anti-union considerations; UFCW proffered no evidence to the contrary, only theories. A desire to save money and thereby increase profits is not equivalent to anti-union animus.⁹ Therefore, the Tribunal accepts the evidence of these witnesses and finds that the outsourcing of labour to Adecco was made in the interest of better managing its fluctuating labour requirements.

III. Employees selected for termination without cause:

MedReleaf stated it selected the casual employees for termination based on their disciplinary records or performance issues. During the hearing, MedReleaf witnesses denied that the selection was based on the terminated employees’ support of UFCW’s efforts to represent the workforce. Gimelshtein, who was the key executive of MedReleaf responsible for the labour issues and who was involved in the choice of the employees terminated, testified that he did not know whether any of these employees favoured representation by UFCW. He also testified that he did not see a copy of a letter from Josefina Revilla to Warren Nelson of CIRB dated July 21, 2015, as well as a petition to be removed from the union, until late 2016 and well after January 2016.

The circumstances under which the letter and petition were found and produced are explained later in these reasons.

UFCW argues that some of the persons involved in the selection of casual employees to be terminated were not called as witnesses at the hearing to give oral evidence of the disciplinary record or performances issues to support the decision of management to terminate these employees when MedReleaf started to rely upon Adecco to supply temporary workers. Gimelshtein denies that the termination of these employees was based on their support of the union. Some of these performances issues are documented in the letters delivered to these employees while employed with MedReleaf. Some of these issues were reported to Gimelshtein by managers. In the case of Manalastas, the Trim Room Lead had reported to Gimelshtein that she was not a productive employee. Other employees were given letters setting out the conduct which was not acceptable with a warning of future disciplinary measures.

In the absence of evidence that would bring into question or contradict the hearsay evidence of the managers of MedReleaf who were not called as witnesses, the Tribunal accepts the direct evidence of Gimelshtein, Maraj and Fefekos, as well as the hearsay evidence in the form of the performance records and performance issues as reported to these witnesses by managers of these employees. The Tribunal finds that these terminations were not based on anti-union animus.

D. Evolution of the Withdrawal List /Josefina Revilla

There was significant discussion both before and during the hearing regarding various documents surrounding correspondence from Josefina Revilla (“Revilla”), a MedReleaf employee, who purportedly withdrew certain MedReleaf employees from UFCW’s federal union drive.

The first issue regarding these documents arose prior to the actual hearing during the documentary production phase of the hearing process. During the exchange of documents, it was determined, based on the original page numbers, that at least two pages were missing from a letter that was written by Revilla and produced by UCFW; however, neither Party had copies of the missing pages. MedReleaf wanted the full document and proposed a joint letter, with UFCW, to the CIRB to obtain the entire letter. UFCW opposed production on the basis the content of the letter was irrelevant. In an Order dated November 7th, 2016 the Tribunal denied MedReleaf’s request to compel Revilla to provide the entire letter but instead ordered MedReleaf and UFCW to jointly request the letter from the CIRB.

The second issue concerned UFCW’s request for a pre-hearing oral examination of Revilla. At UFCW’s request, the Tribunal issued a summons to discover Revilla; MedReleaf objected to that summons. In a decision dated January 5th, 2017, the Tribunal agreed with MedReleaf on the basis that it was inappropriate and unnecessary to examine Revilla in advance of the hearing, and further that, at their discretion, either Party could summons Revilla to give evidence during the actual hearing.

The documents of concern, listed here chronologically, are as follows:

1. A letter from Sylvie Guilbert of the CIRB to Mr. Russell (as UFCW’s counsel) and Mr. Granastein (as MedReleaf’s counsel), dated July 13, 2015;

2. A letter from Ms. Revilla to Warren Nelson of the CIRB, dated July 21, 2015;

3. A petition (for lack of a better word), signed by fourteen MedReleaf employees, with signatures dated July 22 & 23, 2015;

4. Fourteen “Cancellation of Union Membership or Application for Membership” forms signed by MedReleaf employees, with signatures dated July 22 & 23, 2015

5. A letter from Mr. Nelson to Ms. Revilla, dated August 5, 2015;

At the hearing, the documents were presented in MedReleaf’s Document Brief behind a single tab and not in chronological order, resulting in some confusion that was eventually sorted out.

The Guilbert Letter, dated July 13th, 2015, to the Parties’ respective counsel, states that, “A panel of the Canada Industrial Relations Board … has reviewed the parties’ submissions in the [certification] application and has found that it does not have the requisite jurisdiction to determine this matter. Consequently, the application is dismissed for lack of jurisdiction.”

Shortly after the CIRB’s decision to dismiss the application for lack of jurisdiction, on July 21st, 2015, on behalf of fourteen MedReleaf employees including herself, Revilla wrote to Warren Nelson, who is the Industrial Relations Officer for the CIRB. With a subject line stating “UFCW’s Bad Union Cards and MedReleaf Employees”, the thrust of Revilla’s letter was that the process of signing union cards and the paying of the requisite fee were flawed and that they wanted their cards cancelled. Of particular interest is the “Note” at the end of Revilla’s letter, which reads:

NOTE: a copy of this letter ONLY goes to those copied below — neither [sic] gets pages 3 and 4 with the names of who cancelled and did not pay $5 when they signed a union card.

Also, the individual cancellation forms going with this letter are not also going to those copied below.

We believe this information about our wishes is confidential under the Canada Labour Code.

The parties copied with the letter are Shimmin of UFCW, Closner of MedReleaf, and the Ontario Labour Board.

The first two pages that accompanied Revilla’s letter, and which were not to be sent to those copied with the letter, was a petition signed by fourteen MedReleaf employees, including Revilla, who, by their signatures, were agreeing to the following statement:

I signed a UFCW union card but I did not pay $5 of my own money. When I signed I did not know that the union was trying to unionize me under more than one law board and labour law. I no longer want to be an Applicant for Membership or a Member (if the union has made me a Member). I have signed an individual cancellation form as well as this letter.

Further to that last statement, the remaining pages attached to Revilla’s letter were fourteen “Cancellation of Union Membership or Application for Membership” forms, signed by the same individuals. This form appears to be reproduced from “www.labourwatch.com” and contains the following statement:

If the union has a Membership card or application for Membership with my name on it, I want that card or application destroyed. The union does not have my permission to use my name as support on any petition, any Membership card or application for Membership to file with the Labour Board to unionize my workplace, or to say that I am a member of or support the union in any way.

None of the fourteen individuals signing the petition or providing this form were a party to these proceedings, nor was any of them called or summonsed to give evidence at this hearing.

These documents strike at the very heart of the union drive and it is not surprising that UFCW questioned their veracity. Shimmin, testified that, in his opinion, Revilla would not have been able to put together the statement at the top of the petition without the assistance of somebody else as it was specifically about the situation at MedReleaf. He said the contents of the statement were “totally nonsense” as the signing of cards and paying of the $5 fee was fully and repeatedly explained to people. Under cross-examination, he added, “What would be total nonsense is to believe that all of these people of their own free will voluntarily signed this thing.”

With respect to the withdrawal forms, Shimmin again stated his belief that “definitely Josefina was being assisted by somebody else to create this document” as, due to handwriting similarities on all fourteen copies for generic sections, somebody prepared the form and photocopied it. Shimmin also stated, “I don’t have any knowledge either direct or hearsay whether these people actually filled it out and signed it themselves.”

Although he never stated so explicitly, it is clear from Shimmin’s evidence that he, and by association UFCW, believed that Revilla was incapable of preparing these documents and that MedReleaf must have assisted her with both the petition and the forms, which he stated would be contrary to the law surrounding union certification. Despite acknowledging in cross-examination that LabourWatch provides information and forms for people who want to decertify, Shimmin was of the opinion that these fourteen individuals signed this form as a result of MedReleaf’s “intimidation” and fear of losing their jobs. In support of that position, UFCW challenged the fact that MedReleaf had the petition and the forms in its possession and could not explain how that came to be, especially in light of Revilla’s note that these particular documents were to be confidential.

However, it was Gimelshtein’s evidence that the entire package of forms (as enumerated above) was found by MedReleaf’s new human resource director in his office; Gimelshtein was unsure as to how the documents came to be in MedReleaf’s possession but that somebody clearly gave them to the former human resource consultant, Maraj. If that was the case, it should be noted that Shimmin conceded during cross-examination that it would not be improper for MedReleaf to have such documents if they were provided by Revilla.

Regardless of how the documents came into MedReleaf’s possession, Gimelshtein was clear that he was not involved in their creation.

The last document in the grouping was the letter from Nelson to Revilla, dated August 5th, 2015, wherein he responded to Revilla’s July 21st, 2015 correspondence. Nelson stated,

Due to the fact that this Board has already decided that it does not have jurisdiction over your employer, it is not necessary to deal with the petition or statements you have submitted and, as such, they are being returned to you.

There is no indication that Nelson’s letter was copied to any other party. Again, UFCW relies upon the fact that MedReleaf should not have officially received this letter in support of its position that MedReleaf was somehow involved in the creation of the petition and the forms, which in turn is indicative of MedReleaf’s anti-union tactics.

This Tribunal finds, based on the evidence before it, that there is nothing involving this bundle of documents that is indicative of MedReleaf engaging in any anti-union activity. First, MedReleaf was aware on July 13th, 2015, when its lawyers received the fax from CIRB, that the CIRB did not have jurisdiction to determine the federal application for unionization. Even without legal advice (which was not the case), with this information in hand, a party would realize that federal unionization was, after July 13th, 2015, a non-starter. It makes no sense for MedReleaf to then engage in a process whereby it was preparing, or assisting to prepare, petitions and forms for a matter already declared moot — especially when such activity could be used against it at an unfair labour practices hearing.

Second, Gimelshtein’s evidence that he had nothing to do with the preparation of the petition and forms is uncontradicted. UFCW’s evidence, through Shimmin, that MedReleaf assisted in the preparation is purely speculation; there is no evidence to show otherwise. Accordingly, the Tribunal accepts Gimelshtein’s evidence that he was not involved.

Third, Shimmin stated that he had no knowledge, either direct or hearsay, whether the fourteen people actually filled out and signed the petition and forms. Given that statement, it is also therefore true that he had no knowledge that they did not do so.

Fourth, the whole issue of how these documents were created and how they came into the possession of MedReleaf was put before this Tribunal based on theories, speculation and unsubstantiated opinion. Any uncertainty would have been resolved if Ms. Revilla (or any of the other thirteen signatures for that matter) was called or summonsed as a witness. She may have been able to provide insight into how MedReleaf received these documents. She certainly could have advised if MedReleaf was involved in their creation. While either Party could have called or summonsed her, her evidence would be of the most import to UFCW as it was the Union that was advancing the theory that MedReleaf’s conduct was untoward.

Order of the Tribunal

The Tribunal Orders as follows:

1. The complaint in respect of paragraphs 101 (a), (c), (d), (e), (f), (g), (h), (i), (j), (k), and (l) is hereby dismissed.

2. The complaint in respect of paragraph 101 (b) is hereby directed to a further pre-hearing conference on Tuesday November 6, 2018.

Dated at Brampton, Ontario this 29th day of August, 2018

In proceedings before most administrative tribunals and labour arbitration boards, hearsay evidence is freely admissible and its weight is a matter for the tribunal or board to decide, unless its receipt would amount to a clear denial of natural justice. So long as such hearsay evidence is relevant, it can serve as the basis for the decision, whether or not it is supported by other evidence which would be admissible in a court of law.

The applicant has presented no compelling reasons why the Termination Agreement of the parties should be set aside. While the applicant indicates he entered into the settlement under “extreme duress,” he refers to no facts which would result in such a finding. The fact the applicant felt pressured to sign the Agreement in order to secure the benefits of the Agreement, does not cause the Board to consider that he signed the agreement under “extreme duress,” or that there are compelling labour relations reasons to set it aside.

Footnotes

1. 1It is not the Tribunal’s intention to compare each section of the AEPA to a comparable section of the OLRA to see how they are similar or different.
2. 215. On an inquiry by the Tribunal into a complaint under section 11 that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to the AEPA as to the person’s employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers’ organization did not act contrary to this Act lies upon the employer or employers’ organization.
3. 3Barrie Examiner, [1975] OLRB Rep. Oct. 745
4. 4Kautex of Canada Inc., [1992] OLRB Rep. 1197 at para.36-37; Soft Drink Workers Joint Local Executive Council v. Coca-Cola Bottling Ltd. 1997 CarswellOnt 3813 at para. 30-33; Teamsters, Local 1000 v. Pop Shoppe (Toronto) Ltd. 1976 CarswellOnt 642, [1976] O.L.R.B. Rep. 299 at para. 5; Teamsters, Local 1000 v. Pop Shoppe (Toronto) Ltd. 1976 CarswellOnt 642, [1976] O.L.R.B. Rep. 299 at para. 59
5. 5As stated in the Law of Evidence in Canada Second Edition paragraph 6.346,
6. 6Those documents included: E-mail exchanges between Popper and Dismaya in early May, 2015 that confirm MedReleaf was taking steps to clarify to Dismaya and its casual employees, the nature of their employer-employee relationship; E-mail exchanges between Popper and Maraj on May 14 and 15, 2015 confirming employees to be promoted to full-time employment and recipients of wage increases; E-mail exchanges between Popper and Maraj about a May 20, 2015 meeting with “All Casual Labour Employees” attaching a Power Point slide presentation meeting agenda items as “Clarification or Roles”, “Increase of Hourly Rate of Pay”, “Work Schedule”, and “Full Time Employment”; HR/Payroll Change Forms signed by Popper that confirmed wage increases “effective May 25, 2015”.
7. 7El Sherif v. C.E. Jamieson & Co. (Dominion) Ltd., 1985 CarswellOnt 1174, at para. 14; William Bousfield v. The Regional Municipality of Peel et al [2006] O.E.S.A.D. No. 878, at para. 8; Goudarzi v. Village Terraces 2006 CarswellOnt 11199, at para. 5; Retail, Wholesale & Department Store Union et al v. Empire Public House 1973 CarswellOnt 645, at para. 910; Daniel Morris v. Bermac Autobody Ltd. 2011 HRTO 762 at para. 31; Pritchard v. Ontario 1999 CanLII 15058 (ON SCDC) at p. 11
8. 8The termination agreement and release presented by MedReleaf to the terminated employees is substantially the same as the document signed by the Applicant in the case of Goudarzi v. Village Terraces, a decision of the OLRB reported at 2006 Carswell Ont. 11199. In commenting on a claim by the applicant under the Employment Standards Act for additional compensation allegedly earned before he signed the release, the Tribunal stated as follows:
9. 9See paragraph 2 of the OLRB decision of S.E.I.U., Local 204 v Kennedy Lodge Nursing Home [1980] OLRB, REP. 1454