COURT FILE NO.: 404/04

DATE: 20060629

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

e. macdonald, epstein and cameron jj.

B E T W E E N:

JOSEPH S. ROOKE

Applicant

• and -

ONTARIO LABOUR RELATIONS BOARD, STELCO HAMILTON and THE MINISTRY OF THE ATTORNEY GENERAL FOR ONTARIO

Respondents

Joseph S. Rooke, In Person

Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board

Glenn P. Christie and Jason Green, for the Respondents Stelco Inc. (Hilton Works)

HEARD at Toronto: June 29, 2006

CAMERON J.: (Orally)

1Mr. Rooke seeks judicial review of a decision of the Ontario Labour Relations Board (“OLRB”), dated March 31, 2004 and the Board’s subsequent reconsideration of that decision on May 17, 2004.

2In the first decision, the Board dismissed two unlawful reprisal applications that Mr. Rooke filed pursuant to the Occupational Health and Safety Act (“OHSA”). In the second decision, the Board refused a request to reconsider the matter. Mr. Rooke asked the Court to quash the Board’s decisions and for the matter to be remitted to the Board with directions from the Court.

3The background of this matter can be summarized briefly as follows. Mr. Rooke was an employee of Stelco Inc. (Hilton Works). On July 22, 2002, Mr. Rooke’s supervisor, Mr. Morris suspended Mr. Rooke without pay for the balance of his shift due to Mr. Rooke’s failure to lock out a machine in accordance with Stelco’s health and safety policies. The next day, Mr. Rooke invoked the work refusal provisions of the Act. The matter was resolved later in the day. It was against this background that the two incidents in question arose.

4On August 2, 2002, Mr. Rooke shut down two Mills after concluding that the quality of the steel bars was unacceptable, although he eventually removed his lock and resumed operating the Mill.

5A dispute arose between Mr. Morris and Mr. Rooke about this shut-down. Mr. Morris again suspended Mr. Rooke without pay for the balance of the shift. Mr. Rooke filed a grievance regarding this incident, which was denied. He also filed an application with the Board under s.50(1) of the OHSA claiming that Stelco had breached the Act by disciplining him as reprisal for Rooke’s having instituted a work refusal.

6The second incident took place on November 18, 2002, when Mr. Rooke again instituted a work refusal asserting a health and safety issue in the workplace. Mr. Rooke eventually agreed to lift the work refusal and return to his duties. Later during that shift, Mr. Rooke engaged in a second work refusal based on safety concerns. Mr. Rooke called the Ministry of Labour to report his concerns. When he refused to unlock the two lines unaffected by the safety concerns, he was suspended for five days for “engaging in an illegal work stoppage”. Mr. Rooke filed a grievance and a complaint pursuant to s.50(1) of the OHSA, alleging that the five days’ suspension was imposed as an unlawful reprisal for his having instituted a work refusal. The Board conducted a six day hearing under s.50 of the OHSA and dismissed Mr. Rooke’s complaints, finding that Stelco had not disciplined him in violation of s.50 of the Act.

7With respect to the first incident, the Board found Mr. Rooke’s version of events was not credible. The Board specifically found that Mr. Rooke was disciplined not because of any anti-safety animus but because of his threats to Mr. Morris.

8With respect to the second incident, the Board found that Stelco disciplined Mr. Rooke for engaging in a work refusal. The Board found that there was no safety concern in operating the two unaffected lines.

9In view of :

(i) the strong privative clause in the OLRB Act;

(ii) the expertise of the Ontario Labour Relations Board in reviewing s.50 of OHSA;

(iii) the purpose of the OLRB Act to provide quick, specialized and inexpensive solutions to problems; and

(iv) the fact that the nature of the question is one of fact and law,

the appropriate standard of review on the pragmatic and functional test is “patently unreasonable”.

10The Vice-Chair was aware of all the facts and made findings of fact based on conflicting evidence adverse to Mr. Rooke. The findings were not irrational and no reviewable error was shown.

11In the reconsideration, the Vice-Chairman was correct. He reviewed and considered all the evidence surrounding the suspensions and made a finding that was not patently unreasonable. We see no reason to interfere with the Ontario Labour Relations Board’s findings.

12A suspension for five days for an unlawful, non-safety oriented shut-down of a Mill is not unreasonable.

13The application for judicial review is dismissed.

E. MACDONALD J.

14Costs are awarded to Stelco and are fixed at $1,500.00, inclusive of disbursements and GST.

E. MACDONALD J.

EPSTEIN J.

CAMERON J.

Date of Reasons for Judgment: June 29, 2006

Date of Release: July 14, 2006

COURT FILE NO.: 404/04

DATE: 20060629

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

E. macdonald, epstein and

cameron jj.