CITATION: Warren v. Ontario Labour Relations Board, 2013 ONSC 847

DIVISIONAL COURT FILE NO.: 587/10

DATE: 20130305

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Hackland R.S.J., Aston and Lederer, JJ.

BETWEEN:

Dean Warren

Applicant

– and –

The Ontario Labour Relations Board and National Hockey League

Respondents

Thomas Curry and Jon Laxner, for the Applicant

Christopher Riggs and Hilary Jarvis, for the Respondents

Leonard Marvey, for the Intervenor, Ontario Labour Relations Board

HEARD: at Toronto, December 7, 2012

Aston J.

Background

1Mr. Warren brings this application for judicial review of the October 6, 2010 decision of the Ontario Labour Relations Board (the “Board”) which held that his termination by the National Hockey League (“NHL”) was not tainted by anti-union animus, as prohibited by s. 70, 72 or 76 of the Labour Relations Act, S.O. 1995, c. 1 (the “Act”).

2Mr. Warren became a full time NHL referee in 1999. In September, 2006, he was elected as Second Vice President of the NHL Official’s Association (“NHLOA”). Historically, Mr. Warren was involved in various union activities and representative functions on behalf of other officials. He was generally known for his willingness to assist terminated officials with complaints against the NHL and had made his own human rights complaint against the NHL in 1997 before becoming a full time NHL referee. Mr. Warren was also known to be an advocate for the creation of a different system for the evaluation of officials, one that would be more formal and transparent by emphasizing objective criteria over subjective ones.

3The NHL terminated Mr. Warren’s employment by a letter dated April 23, 2008, citing sub-standard job performance as the reason. After the Deputy Commissioner of the NHL dismissed his appeal of that decision under the Collective Agreement, Mr. Warren filed his complaint with the Board. He claimed that the “real reason” he was dismissed was because of his union activity.

4In its October 6, 2010 decision, the Board found specifically that the NHL’s decision to terminate Mr. Warren was work-related and “not tainted by anti-union animus”. In coming to that conclusion the Board held:

(a) there was no temporal connection between Mr. Warren’s union activities and his termination;

(b) Mr. Warren was perceived by the NHL as a middle-of-the-pack referee;

(c) the evidence established that the individual who decided on Mr. Warren’s termination (Stephen Walkhom) subjectively believed that Mr. Warren was not a good referee; and

(d) Mr. Warren’s termination may not have been fair but his release made sense in the context of Mr. Walkhom’s subjective opinion and the broader plans of the NHL, recognized in its Collective Agreement with the NHLOA, to phase out more senior officials to make room for new officials.

Grounds for Appeal

5The applicant raises a number of grounds for appeal. He submits the Board erred in law:

(a) by applying the wrong legal standard of proof (not requiring the NHL to prove Warren’s termination was for the sole stated reason of sub-standard performance but instead requiring the applicant to prove anti-union animus);

(b) by requiring Mr. Warren to show anti-union animus in a specific way rather than by drawing reasonable inferences from the record as a whole;

(c) by finding that Mr. Warren’s job performance “met the NHL standard” but not the subjective “it” standard of the then Director of Officiating, Stephen Walkhom¹;

(d) by ignoring the evidence of Brian Murphy, a former NHL linesman and the president of the NHLOA, notwithstanding its finding that Murphy was a credible, honest and forthright witness;

(e) by misapprehending the evidence in emails to and from Colin Campbell, the NHL’s Senior Executive Vice President, Hockey Operations, in February, 2007;

(f) by refusing to draw an adverse inference from the NHL’s failure to call Mr. Campbell as a witness; and

(g) by relying upon evidence the Board had previously struck from the record (Terry Gregson’s evidence correlating career success as an official with being actively involved with the NHLOA).

Standard of Review

6The Notice of Application and Factum of the applicant characterized the grounds for appeal as errors of law. In his oral submissions, counsel for the applicant went further and said that these errors, on their own or in combination, result in a denial of procedural fairness constituting a breach of natural justice.

7As will be evident from the reasons that follow, we reject this elevated re-characterization of the grounds for appeal.

8The applicable standard of review in this case is reasonableness. Adjudication of complaints in unfair labour practices lies at the heart of the Board’s specialized expertise. More particularly, allegations of anti-union animus are almost invariably based upon circumstantial evidence. The adjudication of this particular genre of dispute draws upon the expertise and past experience of the Board. Sensitivity to employer motivations, an ability to “read between the lines” so to speak, enables the Board to draw inferences that might not be readily apparent to others.

9It is also important for us to distinguish findings which are mainly factual from those that can be characterized as errors of law, or which lie closer to the question of law end of the spectrum, when determining the appropriate degree of curial deference to apply. To a large extent the submissions on behalf of the applicant amount to an attempt to engage this court in weighing evidence and drawing different factual conclusions from those of the Board

Did the Board Apply the Wrong Legal Test or Standard of Proof?

10Sections 70, 72 and 76 of the Labour Relations Act protect employees from anti-union activity by employers. The applicant acknowledges that the Board articulated the correct legal test at paragraph 173 of its Reasons, including a specific reference to the fact that the employer bears the onus of proof in demonstrating that its actions were not motivated by anti-union animus. However, the applicant submits that the Board did not apply the test it articulated. At paragraph 174, the Board framed the question for its determination as whether Mr. Warren was “released because he was elected to the OA Executive and/or advanced positions in that role or for exercising other rights under the Act” [emphasis added]. The applicant submits that the Board should have asked itself instead whether anti-union animus had anything at all to do with his termination.

11The applicant correctly asserts that the employer must prove on the balance of probabilities that anti-union animus had no place in the decision to terminate Mr. Warren’s employment. However, the Board found that the employer had met that burden of proof. At paragraph 209 of its decision, it concluded that “the league has proven on the balance of probabilities that its release of Mr. Warren was not tainted by anti-union animus or otherwise a violation of the Act” [emphasis added]. This factual determination, at the heart of the Board’s experience and expertise, must be respected on this judicial review unless it is plainly wrong.

12Taking into account the entirety of the Reasons, the Board did not apply an incorrect test or ask itself the wrong question. The Board’s iteration of the question at paragraph 174 was simply a reflection of the theory being advanced by Mr. Warren himself - that “the real reason behind the NHL’s termination of Warren was his activity as Vice President of the NHLOA”. Earlier, at paragraph 129, the Board had recited “Mr. Warren’s theory is that his union activity and his election to second v.p. of the executive board caused the League to terminate his employment” [emphasis added]. As the Board explains in paragraphs 173 and 190 of its decision, the employer’s onus must be met in relation to the theory advanced by the applicant in his application. Moreover, the Board did not limit its consideration to the absence of direct evidence. It carefully examined all the evidence to determine if any inference could be drawn that anti-union animus was part of the NHL’s decision to terminate Mr. Warren.

13It is also worth noting here that the Board gave specific, lengthy and detailed consideration to ten separate points Mr. Warren cited as circumstantial evidence which he submitted cast doubt on the employer’s explanation and what Mr. Warren submitted was the “true motivation” behind his dismissal. See paragraphs 176 -208 of the Board’s Reasons.

14The Board carefully scrutinized the evidence which Mr. Warren relied upon to support his submission that his union activity, or anticipated activity, played some part in the NHL’s decision to terminate his employment and it did not, in the end, limit itself to whether he was terminated “because of” anti-union animus. The Board’s decision, at paragraph 209, is quite clear in answering the proper legal question: Was the NHL’s decision “tainted by” anti-union animus?

15Nor do we accept the submission that the Board misunderstood or misapplied the test in relation to the burden of proof. Though the Board did make several references to the fact that there was “no evidence” to support Mr. Warren’s interpretation of events (for example at paragraphs 182 and 197 of the decision), these references to “no evidence” must be read in context. In those instances, the Board was simply referring to the fact that there was no evidence to contradict the inference that would reasonably flow from other evidence. The NHL adduced evidence to support its position that (1) Warren’s union activity was inconsequential in the eyes of the NHL and (2) there were demonstrated concerns about his on-ice performance during the last two years he worked as a referee. The Board simply noted that there was no direct evidence to the contrary that would undermine the inferences flowing from other evidence supporting the NHL’s position.

Did the Board Err in Misapprehending Certain Emails or Failing to Draw an Adverse Inference?

16The applicant submits that the Board erred in law in not drawing an adverse inference from the NHL’s failure to have Colin Campbell testify when several of his emails raised questions as to the true circumstances of Mr. Warren’s employment termination. The applicant describes those emails as “crucial”. However, in our view, the Board reasonably concluded that there is nothing in any of the emails referred to that would connect them unequivaocally to anti-union animus. As the Board observed at paragraph 195 of its decision, “there is no mention [in the emails] of the Officials Association, Mr. Warren’s status as an executive board member, his election or his work on behalf of other referees”. The Board’s reference to a video clip as the subject of something Mr. Campell was referring to in one of the emails may have been in error, but it was inconsequential. The Board did not err in law, or make a palpable and overriding error in fact finding, in refusing to draw any adverse inference from the emails or the NHL’s failure to call Mr. Campbell as a witness.

Did the Board Err in Disregarding Mr. Murphy’s Evidence?

17Mr. Murphy, the President of the NHLOA, testified on behalf of Mr. Warren. The Board did find him to be a credible and reliable witness. It did acknowledge his evidence in passing at paragragh 21 of its Reasons, but otherwise there is no reference to his evidence in the decision.

18The Board was not obliged to recite or evaluate evidence that was not germane to its decision. Though counsel for the applicant has referred us to the evidence Mr. Murphy gave, we fail to see anything in that evidence which is necessarily significant. Any interpretation of Mr. Murphy’s evidence as being generally supportive of Mr. Warren’s theory would have to be tempered by the recognition of the fact that the union did not file a grievance or otherwise intervene on behalf of Mr. Warren when his employment was terminated.

Did the Board Err in Considering Evidence it had Struck from the Record?

19In his evidence-in-chief, the NHL’s witness Mr. Gregson testified that he believed it was good for an official to participate in the union’s activities and that his personal view was that Mr. Warren’s union activities played no role in any decision made to terminate his employment. The Board referenced this evidence in paragraphs 33 and 157 of its decision, but it had curtailed the cross-examination of Mr. Gregson on at least one aspect of this issue. It was suggested to Mr. Gregson on cross-examination that he himself was not selected for play-off duty when he was President of the union. The Board refused to permit a line of questioning in the form of similar fact evidence. The applicant does not quarrel with that ruling per se, but says that it is then an error of law to “rely on” his other evidence regarding his opinion or belief in its analysis.

20We do not accept the applicant’s submission that the Board “relied on” this evidence in reaching its conclusion. We agree with counsel for the respondent that the Board’s references to what Mr. Gregson testified to, in-chief, were inconsequential in the analysis and conclusion. The evidence referred to is not only uncontroversial, it is tangential to the reasoning process of the decision. See paragraphs 152 – 161 of the Board’s Reasons.

Did the Board Err by Finding that Mr. Warren’s Job Performance “met the NHL standard”, But Was Nevertheless Sub-standard?

21The Board’s task in this case was complicated by the fact that an assessment of job performance as an NHL referee is by its nature extremely subjective. The Board addresses this specifically at paragraphs 59 and 60 of its Reasons. The NHLOA itself accepts that the assessment of job performance is, at least to some degree, at the league’s discretion. It is well recognized that there is an “it” factor in the performance assessment process. It is also recognized by the NHLOA in the Collective Agreement that senior officials may be removed legitimately in order to make way for referees on the up side of their careers.

22The Board did not err in finding that Mr. Warren’s historical scores on job performance reviews, which fell within an acceptable range, did not provide any assurance of continued employment.

Conclusion

23The Board’s findings of fact in this case are based on direct evidence and reasonable inferences. The Reasons also take pains to explain why the Board did not draw inferences urged upon it by Mr. Warren. There is no basis upon which we would interfere with the facts as found.

24The Board articulated and applied the correct legal test. It did not err in principle, nor did it misapprehend the evidence or fail to consider material evidence. The reasons are thorough, transparent and intelligible. The reasons justify an outcome that is within the acceptable range, defensible in respect of the facts and the law.

25The appeal is dismissed. By agreement of counsel, costs are fixed at $10,000 all inclusive in favour of the successful party, the respondent National Hockey League.

Aston J.

Hackland R.S.J.

Lederer J.

Footnotes

1. 1The “it” factor is described as the ability to establish and maintain a presence on the ice and control the game by appropriate exercise of discretion and communication skill under the incredible pressure of the working conditions faced by NHL officials.