DIVISIONAL COURT FILE NO.: 254/02

DATE: 2003/11/06

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

ROBERT A. BLAIR, R.S.J., ELLEN MACDONALD AND BARRY MACDOUGALL JJ.

B E T W E E N:

WILLIAM MCNAUGHT

Barry J. Goldman, for the Applicant

Applicant

• and -

THE TORONTO TRANSIT COMMISSION AND ITS SUPERVISORS, CHIEF GENERAL MANAGER DUCHARME, GENERAL MANAGER G. WEBSTER, S. QUIGLEY, HUMAN RESOURCES DEPARTMENT, D. HAFFERY, HUMAN RESOURCES DEPARTMENT AND SUPERINTENDENT J. HAFFEY, DANFORTH BUS DIVISION and ONTARIO LABOUR RELATIONS BOARD

Douglas K. Gray, for the Respondent TTC and Individual Respondents

Leonard Marvy, for the Ontario Labour Relations Board

Respondents

HEARD: December 12, 2002

Introduction

[1] The Applicant, William McNaught (“Mr. McNaught”) is seeking a judicial review of his reprisal complaint and order of the Ontario Labour Relations Board (“the Board”) made on April 25, 2001 wherein the Board denied his reprisal complaint against the Respondents. This appeal arises from two separate proceedings brought before the Board.

[2] Mr. McNaught was an employee of the Toronto Transit Commission (“the TTC”). On February 1, 2000, the TTC notified Mr. McNaught that he was being relieved of his duties effective that day. Mr. McNaught took that to be a notification of termination of employment and proceeded on February 3, 2000 to file a “reprisal complaint” against the TTC for their alleged contravention of s.50(1) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) (hereinafter referred to as the “reprisal application”).

[3] The second proceeding was a motion brought by the TTC against Mr. McNaught, dated March 8, 2000 requesting that the Board, “state a case to the Divisional Court so that the court may take such steps as are required to punish Mr. McNaught for contempt”. This motion was brought pursuant to the provisions of s.13(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 (“SPPA”) (“the contempt motion”).

Factual Overview

[4] Mr. McNaught was employed by the TTC for 29 years. He was actively involved in health and safety concerns throughout the last eight years of his employment, most recently as a worker certified member of the Joint Health and Safety Committee (“JHSC”). In his role as a member of JHSC, Mr. McNaught had initiated Board applications with regard to the safety of the new line of buses purchased by the TTC. Two of these applications sought the enforcement of the OHSA. One of the applications pertained to a potential safety hazard concerning the design of the bus used by the TTC. The second pertained to the insufficiency of driver training at the TTC with respect to that vehicle. Mr. McNaught was designated as the contact person with regard to those applications and played a major role in their pursuance.

[5] On February 1, 2000, the TTC in its notice that Mr. McNaught was being relieved of his duties, advised him that it was as a result of his involvement in two matters:

(i) participating in and being party to the intimidation and coercion of operator/safety representatives; and,

(ii) the pre-planning of a work refusal.

[6] On February 18, 2000, Mr. McNaught distributed to several TTC employees copies of documents that the TTC had produced to Mr. McNaught as the contact person with respect to other applications brought against the TTC relating to bus safety issues that were pending before the Board.

[7] On February 25, 2000, the TTC sent Mr. McNaught a letter subtitled “Termination Letter”. The letter provided, in part:

On February 1, 2000 you were relieved of duties for the pre-planning of a work refusal and participating in and being a party to the intimidation and coercion of members of the Danforth Joint Health and Safety Committee (“JHSC”). We note that you declined to attend the Step 1 meeting and the Commission is not prepared to extend time limits as prescribed in the Collective Labour Agreement

We are satisfied that you pre-planned your December 14, 1999 work refusal and had been a party to and participated in, the intimidation and coercion of safety representatives on the JHSC. The Commission considers the pre-planning of work refusals as serious abuse of the Occupational Health and Safety Act (OHSA) and will not tolerate or condone the intimidation and/or coercion of employees. Consequently, you are dismissed from your employment with the Commission.

[8] On March 8, 2000 the TTC filed the contempt motion against Mr. McNaught with the Board. The TTC stated in its motion material that,

The essence of the Application (sic) relates to Mr. McNaught’s use of two documents that had been filed by the Commission in the course of certain proceedings before the Board in a manner that violates Mr. McNaught’s implied undertaking that those documents will be used only for the purpose of the litigation in which the documents were produced and for no other purpose. And furthermore, it is alleged that Mr. McNaught used the documents in a way that was intended to intimidate one Carol Jesseau, a potential witness in some outstanding Board proceedings.

[9] The TTC, in its material on the contempt motion, further stated:

In the Commission’s submission, it is important that the Board deal with this action quickly, because the credibility of the Board’s processes is at stake….for these reasons we urge the Board to schedule a hearing on this Application as quickly as possible.

Procedural Issues Raised

[10] Prior to the hearing of the two proceedings, the TTC brought a preliminary motion seeking the consolidation of the two proceedings. Mr. McNaught opposed this consolidation request.

[11] The Board Vice-chair, Nairn, in her decision dated April 3, 2000, directed that the two matters be listed together for hearing. She stated, “…I direct that this matter be scheduled for hearing with the hearing of the reprisal complaint. Whether or not this alleged conduct would amount to contempt, there is a prima facie allegation of improper conduct which may be relevant to any exercise of the Board’s direction (sic) in Board file no. 3297-99 OH” [the reprisal complaint].

[12] On April 14, 2000 Mr. McNaught requested Vice-chair Nairn reconsider the decision to combine the two matters. He submitted that the two proceedings (his reprisal complaint and the TTC’s contempt motion), should be “uncoupled”. One of the reasons submitted was that the date of the alleged “contempt action” was after he was dismissed by the TTC as an employee and therefore any “post-termination” conduct on his part should be irrelevant to whether or not the TTC had terminated his employment as a “reprisal action”.

[13] Vice-chair Nairn declined the request to reverse her decision. Her reasons provided in part:

From a review of Board file no. 3297-99-OH, [the reprisal complaint] it appears that there will be an issue between the parties as to the effective date of any termination from employment and the grounds on which the TTC is entitled to rely in support of its decision to terminate Mr. McNaught’s employment. It is, however, the case that prior to filing this application, the TTC had forwarded a letter to Mr. McNaught (dated February 25, 2000) in which it sets out its asserted grounds for termination. Those grounds included an allegation that Mr. McNaught distributed the materials filed by the TTC for the purpose of intimidating and coercing a witness. Thus the TTC will attempt, in Board file No. 3297-9908, [the contempt motion] to rely on the very allegation raised in this application.

[14] On May 21, 2000 Mr. McNaught filed his response to the contempt motion. He submitted that he had a lawful reason to distribute the documents. He asked the Board to deal with several “preliminary issues” and he repeated his request that the two proceedings, be “uncoupled”.

[15] On May 29, 2000, counsel for Mr. McNaught advised the Board in writing that he would raise the issue of the consolidation of the two applications as a preliminary matter at the start of the hearing.

[16] In that letter to the Board, counsel for Mr. McNaught requested that the Board first hear evidence regarding the effective date of the TTC’s dismissal of Mr. McNaught in order to determine whether the events following that date were relevant to the alleged “unlawful dismissal’. Counsel submitted that, should the Board determine that the date of dismissal was, in fact, February 1, 2000, “it would be a denial of ‘natural justice’ to the applicant to hear any evidence in Board file No. 3297-99-OH [the reprisal complaint] which arose after the date of the unlawful dismissal”. He further submitted that the contempt motion should then be heard at a different date.

[17] The Board dismissed Mr. McNaught’s preliminary issues. With respect to his request to determine the date of his termination first, the Board stated that: “This issue can most thoroughly, efficiently and fairly be dealt with in the context of the case as a whole through the presentation of evidence and argument.”

[18] The two proceedings were heard together. Although evidence was presented on Mr. McNaught’s behalf, he did not testify. Mr. McNaught’s reprisal complaint was dismissed by the Board.

Issues Raised for Consideration by this Court

[19] Mr. McNaught raises three issues for consideration by this court:

(a) Did the Board commit a reviewable error based on the Charter of Rights and Freedoms by drawing an adverse inference from Mr. McNaught’s failure to testify at the hearing?

(b) Did the Board commit a reviewable error by hearing both proceedings together?

(c) Did the Board commit a reviewable error by making a patently unreasonable decision?

Disposition

[20] For the reasons that follow, this application for Judicial Review is allowed. It is my view that, given the nature of the two proceedings, the Board failed to uphold Mr. McNaught’s right to a fair hearing in accordance with the principles of fundamental justice by consolidating the two proceedings into one hearing. Accordingly, the reprisal complaint proceeding will be sent back to be heard by a differently-constituted board. It is unnecessary to deal with the other two grounds raised in paragraphs (a) and (c) above.

Analysis

[21] Mr. McNaught filed his reprisal complaint pursuant to the provisions of s.50 of the OHSA. It reads as follows:

No employer or person acting on behalf of an employer shall,

(a) dismiss or threaten to dismiss a worker;

(b) discipline or suspend, or threaten to discipline or suspend a worker;

(c) impose any penalty upon a worker; or

(d) intimidate or coerce a worker, because the worker has acted in compliance with this Act or the Regulations or an order made thereunder, has sought the enforcement of this Act or the Regulations, or has given evidence in a proceeding in respect of the enforcement of this Act or the Regulations or in an inquest under the Coroner’s Act.

[22] Subsection 7 of s.50 grants the Board an important discretionary power. If the Board finds against the employee that there was not a reprisal discharge or reprisal disciplinary action by the employer, the Board may, where the contract of employment or the Collective Agreement does not contain a specific penalty for the infraction, substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.

[23] In Mr. McNaught’s reprisal complaint to the Board he set out details of his actions in his role as a worker/member of the JHSC seeking to enforce the OHSA, including reporting alleged contraventions of the Act by the TTC to the Ministry of Labour enforcement branch and in seeking orders from the Ontario Labour Relations Board, as he submitted, in order to “rectify hazardous situations”.

[24] One of these reports resulted in a conviction against the TTC on October 25, 1999 for a contravention of the OHSA.

[25] There were also two other applications pending before the Board, as previously mentioned, in relation to the safety of the brake pedals relating to the series of new busses purchased by the TTC and with respect to work refusal issues surrounding those same matters.

[26] These proceedings were set for hearing before the Board on April 12 to 14, 2000. On February 1, 2000 Mr. McNaught was before the Board representing himself and other TTC workers regarding an alleged safety hazard issue including “incomplete reporting procedures of hazards identified by the TTC bus operators and mechanics”.

The TTC’s Contempt Motion

[27] Section 13 of the SPPA provides:

Where any person without lawful excuse,

(c) does any other thing that would, if the tribunal had been a court of law having

power to commit for contempt, have been contempt of that court,

The tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defense, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.

[28] The motion brought under s.13 of the SPPA would have required the Board to:

(1) determine whether a prima facie case of contempt had been made out:

(2) determine whether or not the alleged act(s) was/were conducted without lawful excuse and, if so,

(3) then exercise its discretion and decide whether or not to state a case to the Divisional Court by setting out the facts for inquiry by that court into the matter.

[29] A s.13 motion before the Board is not a “citing of a person for contempt”. If such a motion is successful, it means that the Board is “stating a case” to the Divisional Court. In my view the wording of s.13 compels the Board to determine “whether a prima facie case of contempt has been made out”. Section 13 infuses in the Board’s mandate a power that is very similar to a citation for contempt. We could find no reported cases where s. 13 had been invoked to state a case for contempt to the Divisional Court. This is significant. When assessing the ramification of what he was facing, Mr. McNaught was faced with a proceeding which, if successful, could have very serious consequences for him. At the extreme end, a finding of contempt could result in his incarceration. He could not look to a precedent under s.13. This is one of the factors that mitigates in his favour in this application.

[30] Although it can be reasonably argued that the procedure that was commenced by the TTC under s.13 of the SPPA was not the “hearing of the contempt” allegation, the motion brought by the TTC did commence a “contempt procedure”.

[31] It puts too fine a point on s.13 to suggest, as the Respondents did, that the TTC’s s. 13 application was not the hearing of the contempt application. While this is technically correct, these nuances would mean little to someone in the position of Mr. McNaught. It follows then that he was in a position analogous to that of a person cited for contempt who is entitled, because he/she is charged with a criminal offence, to the protection of s.11 of the Charter and, more particularly, of s.11(c) which provides that a person charged with a criminal offence cannot be compelled to testify. See Vidéotron Ltée v. Industries Mirolac Produits Electroniques Inc., 1992 29 (SCC), [1992] 2 S.C.R. 1065.

[32] These are the considerations that are foremost in my mind when I assess the impact of the significance of the Board’s decision to consolidate the two hearings.

[33] It is axiomatic that the concept of fundamental justice includes the notion of procedural fairness. As stated by Wilson, J. in Singh v Canada (Ministry of Employment and Immigration), 1985 65 (SCC), [1985] 1 S.C.R. 177, fundamental justice, at minimum, dictates that a tribunal which adjudicates upon rights must: a) act fairly, in good faith, without bias and in a judicial temper, and b) provide parties an adequate opportunity to state their case.

[34] While the Board has the power to consolidate or hear cases together where it appears appropriate, it must do so in a judicious fashion. The obvious expediency that comes from consolidation or hearing of cases together must yield to principles of fundamental justice. In this case, the Board has to be attentive to the requirements for both a fair procedure and the appearance of a fair procedure when the question of consolidating Mr. McNaught’s reprisal complaint hearing with a motion brought by a party alleging that he had acted in a contemptuous fashion.

[35] In the context of what Mr. McNaught was facing, I repeat the chronology of the relevant events.

[36] Mr. McNaught made his reprisal complaint to the Board on February 3, 2000 as a result of receiving a notice from the TTC on February 1, 2000 that he was “relieved of his duties’. He was entitled to a determination of the issue by the Board.

[37] The TTC, in responding to the reprisal complaint, stated that one of the two reasons it had relieved Mr. McNaught from his duties was because of his “alleged harassment of a TTC co-worker”. That alleged harassment was particularized as an attempt by Mr. McNaught and others in December 1999 to try to get the co-worker to resign from her position as a worker representative of the JHSC. The other reason related to a “pre-planning of a work refusal”. [Emphasis added]

[38] The alleged “contemptuous conduct” was said to have occurred on February 18, 2000.

[39] The TTC, in its letter of termination dated February 25, 2000, expanded on the basis on which it was terminating Mr. McNaught’s employment to include one of the allegations that was alleged to have been contemptuous after he filed his reprisal complaint to the Board.

[40] On March 20, 2000, the TTC initiated its s.13 application alleging that Mr. McNaught, by distributing documents produced by the TTC in another proceeding before the Board, breached his implied undertaking to the Board. The TTC also alleged that Mr. McNaught was in contempt of the Board as the distribution of these documents was intended to intimidate a potential witness “in some outstanding Board proceedings”.

[41] As a result of the TTC bringing its s.13 motion relating to actions that occurred after the date of the reprisal complaint and convincing the Board to have the two matters heard together, Mr. McNaught was potentially faced with evidence that could be very prejudicial to his reprisal application. For example, if the Board determined that the action of the TTC on February 1, 2000 was found not to be an unlawful reprisal, the allegations of Mr. McNaught’s conduct “contemptuous of the Board” would be before the Board when the Board was exercising its discretion under subsection 7 of s.50 of the OHSA to consider substituting a penalty other than termination.

[42] In my disposition of this matter, I consider it significant that Mr. McNaught’s counsel did raise the issue of potential unfairness to Mr. McNaught in allowing the TTC to raise as part of its defense to the reprisal complaint the “post-reprisal conduct”.

[43] When faced with the alleged contemptuous conduct towards the Board, that of breaching his implied undertaking given to the Board in that other procedure, Mr. McNaught was being put in a position of being “pitted” against the tribunal. In one sense, that issue was not between the TTC and Mr. McNaught. It was between Mr. McNaught and the Board in a matter that related to a different application before the Board. Requiring Mr. McNaught to defend this “contemptuous conduct” of the breach of an implied undertaking in another procedure before the Board in his reprisal complaint hearing constituted serious prejudice to him. Furthermore, the appearance of fairness, is severely compromised when the Board is proceeding with his reprisal hearing at the same time.

[44] To put the matter in simple terms, Mr. McNaught was assuming that he was terminated from his job unlawfully by the TTC in reprisal for his attempts to have the TTC comply with the OHSA. The TTC’s response was, in effect, “No, we had cause to terminate you and furthermore, you have acted in contempt of the Board in another pending proceeding where you, Mr. McNaught, were asking the Board apply the provisions of the OHSA against us”.

[45] In these circumstances, the decision to force Mr. McNaught in his reprisal case to face the allegations of contempt of the Board in another pending proceeding would not create the impression that he was being given a fair hearing by an “independent and impartial tribunal”.

[46] Faced with these obstacles, it is not unreasonable that Mr. McNaught chose not to testify at the hearing. The Board’s decision to hear the two matters together created a serious quandary for Mr. McNaught. He was taking the position that he was wrongfully terminated from his employment as a reprisal action by his employer for his action in having the OHSA enforced. His employer, however, was permitted to refer to conduct that he was engaged in several days after the alleged “reprisal conduct”. Mr. McNaught felt any “post-reprisal” conduct by him was irrelevant to the reprisal issue. Because that “post-reprisal” conduct was being alleged by his employer as constituting “contemptuous conduct of the Board”, Mr. McNaught obviously had an interest in opposing the employer’s motion to have a case of contempt stated against him to the Divisional Court.

[47] Although Mr. McNaught had an onus to prove the reprisal conduct, it was the TTC’s onus to convince the Board that a prima facie case of contempt had been made out. In the Board’s decision dismissing Mr. McNaught’s reprisal complaint, the Board dealt with Mr. McNaught’s failure to testify as follows:

I deal first with Mr. McNaught’s failure to testify. An application to the Board to state a case for contempt is not a criminal proceeding. Although this is the stated reason why Mr. McNaught did not give evidence, I see no reason to refuse to apply the usual rules of evidence. The evidence I have heard, therefore, stands largely as either uncontradicted evidence of the TTC witnesses or evidence that I must assume Mr. McNaught adopts. In many instances Mr. McNaught was the only person who could contradict the reasonable inferences to be drawn from the evidence. Only his evidence could have allowed me to draw conclusions different from the ones advanced by the TTC. He failed to testify. He did not say that he did not plan and orchestrate the work refusal; he did not say that he did not distribute the material at the Terminal Grill; he did not say that he did not write the resignation letter requiring Ms. Jesseau and Mr. Camall to resign. Further, he did not deny that the reference in the Unity Caucus website was directed at Ms. Jesseau. In this case I have no evidence to support the version of facts put forward by Mr. McNaught’s counsel. I cannot, as he suggests, infer in the face of cogent and credible evidence put forward primarily by Ms. Jesseau and Mr. Haffey, that Mr. McNaught did not engage in the conduct he is accused of.

[48] It is clear from this passage that the Board did draw adverse inferences from Mr. McNaught’s failure to testify.

[49] Dealing with the Board’s discretion under s.50(7) to “substitute such other penalty for the discharge as the Board deems just and reasonable in all the circumstances”, the Board chose not to substitute any lesser penalty. From the reasons stated, it is obvious that to a large extent the Board felt that there was little in the way of mitigation. The Board stated, “[there was] no evidence that was advanced to show any comprehension or acknowledgement by Mr. McNaught that he had done anything wrong. Accordingly, he is unrepentant and unremorseful”.

[50] In declining to substitute a different penalty, the Board also took into account the fact that Mr. McNaught had, after his termination distributed materials, a fact that was before the Board as a result of the TTC’s s.13 motion having been consolidated with the reprisal hearing.

[51] In response to the TTC’s request to raise the allegation of Mr. McNaught’s contempt at the reprisal hearing, the Board had other options. One such option is that the Board, differently constituted could have heard the s.13 hearing after the reprisal hearing was completed, but not as a consolidated hearing.

[52] The Board’s decision of April 25, 2001 is set aside and the matter is remitted to the Board to be heard by a differently-constituted panel.

[53] For all the above reasons, this application is allowed. Costs are awarded to the Applicant. If the parties cannot agree on quantum and scale, they may make written submissions within 30 days of the release of these reasons.

Barry MacDougall J.

Robert A. Blair R.S.J. (I agree)

Ellen Macdonald J. (I agree)

Released: October ______, 2003.

DIVISIONAL COURT FILE NO.: 254/02

DATE: 2003/11/06

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

WILLIAM MCNAUGHT

Applicant

• and –

THE TORONTO TRANSIT COMMISSION AND ITS SUPERVISORS, CHIEF GENERAL MANAGER DUCHARME, GENERAL MANAGER G. WEBSTER, S. QUIGLEY, HUMAN RESOURCES DEPARTMENT, D. HAFFERY, HUMAN RESOURCES DEPARTMENT AND SUPERINTENDENT J. HAFFEY, DANFORTH BUS DIVISION and ONTARIO LABOUR RELATIONS BOARD

Respondents

REASONS FOR JUDGMENT

ROBERT A. BLAIR, R.S.J., ELLEN MACDONALD and BARRY MACDOUGALL, JJ.

Released: November 6, 2003