COURT FILE NO.: 343/04
DATE: 20050428
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LANE, HOWDEN and MOLLOY JJ.
B E T W E E N:
Dr. Nicholas Hawrylyshyn et al O/A Square One Dental Centre
Applicant
- and -
The Director of Employment Standards, Ontario Labour Relations Board and Delores Jabalee
Respondents
Dr. Hawrylyshyn in person;
Eric del Junco, for the Director
Leonard Marvy, for the Board
HEARD: March 11, 2005
LANE J.:
[1] The applicant seeks judicial review of the decision of the Ontario Labour Relations Board (“Board”) dated June 23, 2003, affirming in part, the Order to Pay issued by an Employment Standards Officer (“ESO”) requiring the applicant to compensate Ms. Jabalee, (“complainant”) in the amount of $14,805 for her termination by the applicant, her employer. The ESO found that the applicant, contrary to sections 53 and 74 of the Employment Standards Act (“ESA”), had terminated the complainant shortly after her return to work from maternity leave. The applicant’s contention throughout has been that the complainant quit her job.
[2] The complainant returned from her maternity leave on February 11, 2002. The ESO found that the applicant preferred the work performance of the complainant’s temporary replacement and so suggested to the complainant on February 12th that she resume her maternity leave and seek other employment while on leave, contrary to the ESA. The ESO declined to reinstate the complainant and ordered compensation instead. The Board presumed that this order was made because the ESO accepted the complainant’s assertion that the applicant’s actions had poisoned the workplace, thereby ruling out reinstatement as an effective remedy.
[3] The applicant applied to the Board for a review of the order of the ESO and the Board held a hearing. The Board reviewed the evidence in its reasons at considerable length. It was critical of the evidence of both of the principal parties and concluded that neither version of the events was more reliable or probable than the other. At paragraph 32, the Board stated:
Unfortunately the evidence of both work parties is unreliable on the key facts. I am unable to conclude whether the claimant was terminated by the employer, or simply voluntarily resumed her pregnancy leave and never returned to work, effectively quitting. Therefore, the employer has not discharged the statutory burden of proof that it did not violate subsection 74(1) of the Act.
[4] However, the Board disagreed with the decision of the ESO to order compensation rather than reinstatement, finding that the ESO “did not sufficiently entertain the remedy of reinstatement”. It rejected the complainant’s evidence that the workplace was poisoned and found that there was nothing particularly egregious about the circumstances of the separation of the complainant from the applicant. It held that the ESO ought to have limited the damages of the complainant to lost wages from February 13, 2002 until the anticipated return from work on May 6, 2002.
[5] Although invited to do so, the applicant did not adduce evidence to support his contention that the wage calculations of the ESO were faulty and the Board accepted the ESO’s findings. The damages award was reduced to $6489.60.
[6] Before the Board, the applicant sought to review the conduct of the ESO in investigating and determining the complainant’s complaint. The Board determined that there was no merit in the allegations of bias in the investigation and that, in any event, the hearing was de novo. As the applicant persisted in advancing this allegation, even though it had been ruled against at the opening of the hearing, the Board returned to it in its reasons at paragraphs 5,6 and 7. It carefully analyzed the ESO’s investigation and concluded that the applicant was not denied natural justice, but that the ESO went to extraordinary lengths in the investigation. That the applicant felt that the ESO had made many errors did not mean that the applicant had no opportunity to present his case.
[7] In his factum and before us, the applicant resumed his attack upon the fairness of the investigation by the ESO, stating that it was the central issue in the case. He complained that the statutory burden under section 74(2) was contrary to the presumption of innocence; that section 89(2), which requires the ESO to follow policies laid down by the Director, had been breached, rendering the investigation unfair; and that the use of the ESO’s report as a basis for the cross-examination of the applicant was unfair. He also complained of the refusal of the Board to hear his bias motion at the outset of the hearing and of the Board’s comments on the thoroughness of the ESO’s narrative report.
[8] In my view, there is no substance to any of these complaints about the fairness of the proceedings. The Board was bound by the ESA to enforce the statutory burden. It is not at all clear that any breaches of the Director’s policies by the ESO had any effect upon either the investigation or the hearing before the Board. That the ESO did not recommend reinstatement may or may not have been a breach of policy, but it is not evidence of bias. The applicant’s attempt, in paragraph 47 of his factum, to link the ESO’s alleged failure to follow the policy on reinstatement with the Board’s rejection of the applicant’s evidence is far-fetched. It is evident that the main thrust of the alleged bias is that the ESO did not accept the applicant’s version of events, which, in the presence of conflicting stories, is not evidence of bias. Although the applicant disagreed with the content of the ESO’s report, its use to cross-examine him was not unfair.
[9] The main attack upon the ESO’s report was that it was largely a ‘cut and paste’ job. An analysis was put into evidence which traced large portions of the report to the Act, the ES Policy Manual or to correspondence from the parties. But examination of this document indicates that the portions inserted by cut and paste were the very sort of thing that one would expect. Large sections of the Act and the Manual were relevant to the report and were copied and inserted in appropriate places. The claims of the complainant and an explanatory letter from the applicant were set out in full. On the other hand, the analytical portions were marked as “actual report” by the applicant’s helpers and appear to be original work. There is no substance to this complaint. While the applicant obviously disagrees with the report, I can see no evidence that it was not as the Board painted it, or that the Board’s discussion of the report is biased or patently unreasonable.
[10] The applicant submitted that he had a reasonable expectation that his request for a preliminary hearing on the conduct of the ESO would be honoured and the refusal of the Board to hold this hearing was procedurally unfair. But the Board is the master of its own procedure, subject to natural justice. The Board was entitled to weigh the request and decide if it had any merit. It did so and I am not persuaded by the applicant that it erred in declining to entertain it. The relevance of the alleged conduct of the ESO was doubtful. The de novo nature of the hearing before the Board was persistently downplayed by the applicant, yet it is a central feature of the system. The Board has all the powers of the ESO and can substitute its opinion without any deference to the ESO. It hears the evidence itself and is not dependent upon the views of the ESO as to credibility or in its findings. Indeed, the Board gave the applicant a reduction in the compensation on the very basis that he complained the ESO had not: the reinstatement issue.
[11] In my view, there was no denial of natural justice or due process in these proceedings.
[12] Turning to the substance of the decision under review, it is necessary to consider the standard of review. The ESA provides:
119(13) A decision of the Board is final and binding upon the parties to the review ….
119(14) Nothing in subsection (13) prevents a court from reviewing a decision of the Board under this section, but a decision of the Board concerning the interpretation of this Act shall not be overturned unless the decision is unreasonable.
[13] The applicant made no representations as to the standard of review, but frequently referred to the Board’s decision as patently unreasonable and sometimes as unreasonable. The respondents submitted that the standard was reasonableness. That would appear to be the appropriate standard, not only in the light of the ESA, but also having regard to the Board’s expertise in dealing with the ESA, one of its home statutes, and the issue of the statutory remedies, an aspect of the ESA where such expertise is beyond that possessed by the court.
[14] A decision will be unreasonable only if there is no line of analysis in the reasons that could reasonably lead the tribunal from the evidence before it to the conclusion that it reached: Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, paragraphs 50, 51.
[15] In the case at bar, the Board reviewed the evidence of the witnesses and made findings as to their credibility and as to the facts that are based on that evidence. Where there is conflicting evidence as to the essential facts, the Board is in the best position to assess the evidence and find the facts and a reviewing court should not disturb such findings where there is some evidence to support them.
[16] The largest part of the applicant’s factum is devoted to providing his version of the facts and criticism of the findings of the Board. But a reading of these paragraphs themselves makes it plain that there was indeed conflicting evidence. For example, in paragraph 42 of his factum, the applicant asserted that there was no evidence to support the complainant’s assertion that she was told by some girls in the office that he preferred her replacement. Yet in paragraphs 42 and 43, the applicant writes that the complainant testified at the hearing as to occasions in November or January, and again in February when she was told exactly that by two persons, one of whom was Valerie Winger who gave a statement to the ESO [^1] that the applicant did want to keep the replacement. In paragraph 44, the applicant sets out the differing versions of a meeting on February 12th given by himself and the complainant, including the complainant’s statement that she believed herself to have been terminated at the end of that meeting. The applicant never put his professed willingness to have the complainant back at work in May into a letter to her, and had no explanation at the hearing for this omission. The applicant asserted as late as the fact-finding meeting in June 2002 that he still considered the complainant to be an employee and had expected her to return on May 6, 2002. The Board picked this up and used the May 6 date as the end of the complainant’s right to compensation, a reasonable decision in the circumstances. The Board rejected the complainant’s claim for compensation beyond May 6 because it rejected her position that the workplace had been poisoned against her. As the applicant had made no earlier offer of reinstatement, the choice of May 6 was reasonable. All of this is evidence upon which the Board could come to its conclusions.
[17] In my view, there is ample evidence on which the Board could come to its findings. There is also conflicting evidence that could support other findings. It is the function of the Board to make these choices and it did so, finding that the applicant had not discharged the statutory onus. It found that the applicant had not shown that the complainant quit her job. It did not find that the workplace atmosphere was so poisoned that reinstatement was not an option and it cut the complainant’s compensation accordingly. These are decisions lying at the heart of its expertise. It is not part of our function to weigh the evidence and come to a conclusion of our own on the facts. In my view the decisions of the Board were reasonable and supported by a careful analysis, which stands up well to scrutiny.
[18] For these reasons, I would dismiss the application for judicial review with costs if demanded, the amount of which may, if necessary, be the subject of brief written submissions.
Lane J.
Howden J.
Molloy J.
Released: April 28, 2005
[^1]: Record of Proceedings, OLRB, page 170