Yao v. Kia of Newmarket, 2020 ONSC 1164

CITATION: Yao v. Kia of Newmarket, 2020 ONSC 1164

DIVISIONAL COURT FILE NO.: 063/19 DATE: 20200220

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

D.L. CORBETT, KRISTJANSON, PETERSEN JJ.

BETWEEN:

HECTOR YAO

Hector Yao, acting in person

Applicant

– and –

KIA OF NEWMARKET, ONTARIO LABOUR RELATIONS BOARD and DIRECTOR OF EMPLOYMENT STANDARDS

No one appearing for the respondent Kia of Newmarket,

Aaron Hart, for the Respondent Ontario Labour Relations Board

Respondents

Gráinne McGrath and Terry Wong for the Director of Employment Standards,

HEARD at Toronto: February 20, 2020

Oral Reasons for Judgment

D.L. CORBETT J. (Orally)

1The decision below turns on a factual finding that Mr. Yao worked about 34.5 hours in October 2017. Mr. Yao says that he worked more than this; perhaps, as much as 93 hours.

2The finding of fact below was reasonable on the record below and there is no basis for this Court to interfere. Indeed, such evidence that was accepted below, the paystub and the OMVIC registration documents support the conclusion that Mr. Yao probably worked one week but no more in October. As a result, the conclusions below based on this factual finding are reasonable and must be upheld.

3We understand that Mr. Yao says that his concession about payment for October 2017 was misunderstood as a concession that his October income was paid by the first cheque he received. We understand that he takes that position. We do not accept, however, that there was any misunderstanding on this point below.

4The vice-chair concluded as did the Employment Standard's officer that the first cheque was payment for 34.5 hours and given the factual finding that 34.5 hours were the hours worked by Mr. Yao in October, the payment for 34.5 hours has satisfied Kia's obligation to Mr. Yao for October.

5We appreciate that Mr. Yao does not agree with these factual findings but the issue before us is not to consider anew what findings should be made but whether the decision below was a reasonable one based on the evidence that was before the tribunals below. It was reasonable.

6Kia did not appear today and is therefore not entitled to costs. The Board and the Director do not seek costs.

7In the result, the application is dismissed without costs.

8I have endorsed the Record of Proceeding of the Respondent as follows: "The application for judicial review is dismissed for reasons given orally by D.L. Corbett J. Kia did not appear today and is not entitled to costs. The Director and the Board do not seek costs. Application dismissed without costs.

D.L. CORBETT J.

I agree

KRISTJANSON J.

I agree

PETERSEN J.

Date of Oral Reasons for Judgment: February 20, 2020

Date of Release: March 6, 2020

CITATION: Yao v. Kia of Newmarket, 2020 ONSC 1164

DIVISIONAL COURT FILE NO.: 063/19