Court File and Parties
DIVISIONAL COURT FILE NO.: 16-2219
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Byeongheon Lee, Applicant
AND: Ontario Lottery and Gaming (OLG) and Rideau Carleton Raceway, Respondents
BEFORE: Aston, Swinton and Mitrow JJ.
COUNSEL: Byeongheon Lee, self-represented Kathryn L. Meehan, for the Respondent Ontario Lottery and Gaming Corporation Joshua Krusell, for the Respondent Rideau Carleton Raceway Voy T. Stelmaszynski, for the Ontario Labour Relations Board
HEARD at Ottawa: June 15, 2017
Endorsement
Swinton J.
1The applicant seeks judicial review of a decision of the Ontario Labour Relations Board (the “Board”) dated January 25, 2016 rejecting his complaint that his former employer, Ontario Lottery and Gaming Corporation (“OLG”), violated s. 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) by dismissing him because he had asserted rights under the Act. The applicant has alleged that he was dismissed after he raised allegations of harassment.
2Subsection 50(1) of the OHSA states:
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 …..
3At the time of the dismissal, the applicant was a probationary employee who had worked for approximately three weeks. The Board found that the applicant was dismissed because of insubordination and refusal to follow employer rules about the permitted time of attendance at the work premises. It did not find the applicant to be a credible witness, and rejected his argument that his dismissal arose because of an incident in which he was accused of failing to pay for a meal in the employee cafeteria. It also rejected the argument that his OLG manager, Mr. Casselman, had engaged in harassment.
4The standard of review of the Board’s decision is reasonableness in a case such as this, where the Board is interpreting and applying one of its home statutes.
5The Board cited the applicable legal principles for the application of s. 50, stating that there must be a basis to draw a reasonable inference of a nexus between the employee’s invocation of the OHSA and the alleged reprisal by the employer. It gave detailed and careful reasons to explain its findings of credibility and its findings of fact. Ultimately, the Board concluded that there was no evidence to support the applicant’s allegation that he was dismissed by OLG in reprisal because he asserted rights under the OHSA. At paras 51 and 54, the Board stated,
There was no credible evidence or submission that the “main event” or any complaint that Mr. Lee made about it was a factor in the decision to discipline the applicant or terminate his employment. The incident had significance for Mr. Lee that far exceeded any concern or issue that it raised for the responding party.
I accept and find that Mr. Lee had disqualified himself from continued employment as a seniority employee of OLG, solely by reason of his insubordination and his demonstrated willingness to disregard the responding party’s requirements and conventions. His complaint was not a factor in the decision.
6The Board also concluded that there was no merit to the complaint against Rideau Carleton Raceway (“RCR”), which was not the applicant’s employer. Neither RCR nor any of its employees had any role in the decision to dismiss the applicant, and RCR had no knowledge of his complaint of alleged harassment until well after the dismissal.
7The applicant disagrees with the Board’s findings of fact and, in effect, asks this Court to look again at the evidence, which he also seeks to supplement with affidavit evidence that was not before the Board. It is not our role, on judicial review, to reweigh the evidence or make our own findings of fact. Our task is to determine whether the Board has reached a reasonable decision, based on the facts and the applicable law. In our view, the Board has set out clear and logical reasons, and its decision is within the range of reasonable outcomes. Its decision was reached after a fair hearing process.
8Accordingly, the application for judicial review is dismissed. The Board does not seek costs. Costs are awarded to OLG fixed at $2,500 and to RCR fixed at $2,500 payable by the applicant.
Swinton J.
I agree _______________________________
Aston J.
I agree _______________________________
Mitrow J.
Date: June 16, 2017