Ontario Labour Relations Board
[1985] OLRB Rep. October 1461
1020-85-EP Karel Kraan, Complainant, v. Custom Muffler Ltd., Respondent, v. Minister of the Environment, Intervener
BEFORE: Owen V. Gray, Vice-Chairman, and Board Members F. C. Burnet and 5. 0 'Flynn.
APPEARANCES: Karel Kraan appearing on his own behalf; Kevin Nearing for the respondent; John Swaigen for the intervener.
DECISION OF THE BOARD; October 30, 1985
This is a complaint filed with the Board under section 134b of the Environmental Protection Act, R.S.O. 1980, c. 141, as amended. Subsection (2) of that section prohibits employers from dismissing, disciplining, penalizing, coercing, intimidating or attempting to coerce or intimidate an employee because the employee "has complied or may comply with ." any one of several acts, including the Environmental Protection Act, or the regulations thereunder. Section 134b gives this Board jurisdiction to inquire into a complaint that an employer has contravened subsection (2). As with similar provisions in section 89 of the Labour Relations Act and section 24 of the Occupational Health and Safety Act, the burden of proof that an employer has not contravened subsection 1 34b(2) of the Environmental Protection Act lies on the employer, and the Board has a broad jurisdiction to fashion a remedy if the employer fails to discharge that burden.
This complaint was filed with the Board July 23, 1985. In it, the complainant states that on June 22, 1985, the respondent's manager gave him an ultimatum to perform a certain job or find work elsewhere. The complainant says he considered that job illegal. In that connection he refers to subsection 2 1(3) of the Environmental Protection Act. He says he refused to do the job and lost his employment as a result. The Board scheduled a hearing of the complaint for October 9, 1985, so advised the complainant and gave notice of the complaint and hearing date to the respondent. The respondent filed a reply in which it acknowledged a discussion on June 22, 1985, between the complainant and the respondent's manager about the provisions of the Environmental Protection Act, but denied terminating the complainant's employment, saying he had quit of his own volition.
Counsel for the Ministry of Environment attended at the Board's hearing on October 9, 1985, and sought the opportunity to participate in the Board's proceedings. He noted this was the first complaint heard by this Board under section 1 34b of the Environmental Protection Act, and submitted that the Ministry had an interest in ensuring that the protection afforded by that section was given a broad interpretation. In particular, he proposed to argue that the section protects an employee who refuses to do work in the honest belief that performance of that work would contravene one of the statutory or regulatory provisions mentioned in the section, even if it is later determined that that belief is legally incorrect. He proposed to lead or make available to the parties the testimony of certain witnesses who, he said, would establish that the complainant had been given an opinion by an official of the Ministry of the Environment that it would be illegal to do the work he was being asked to do.
Counsel for the employer opposed participation by the Ministry. He said that his client and the Ministry disagreed on the interpretation of section 21(3) of the Environmental Protection Act, and he expected that disagreement would be the subject of future court proceedings involving his client and the Ministry. When asked his position on the Ministry's request to participate, the complainant stated that counsel to the Minister was not representing him as his legal counsel. He said he thought the question before the Board would be the interpretation of subsection 21(3) of the Environmental Protection Act. He felt this Board should not "pre-judge" the situation, but should postpone its hearing until a ruling by a court of law had clarified the meaning of that subsection of the Environmental Protection Act. Treating this as a request for an adjournment, we asked counsel for the respondent whether he would consent. He said he would not. He observed that the matter before us was an employment relations matter which involved more than a mere interpretation of a provision of the Environmental Protection Act, and that the respondent was ready to meet the complaint as framed. We observed that this Board does not ordinarily adjourn scheduled proceedings except on the consent of all parties or for compelling reasons.
The complainant pressed his request for an adjournment. In the ensuing discussion, it emerged the complainant was concerned about any unnamed member of the Kingston police for who, he said, had been harassing his wife ever since that policeman had become involved in the investigation of the alleged violation of the Environmental Protection Act. The complainant said he feared further harassment if news of his testifying before the Board reached that policeman. He explained he would not have the same concern about participating in the contemplated court proceedings, since he understood the court would have some power to restrain the police officer in some way. Counsel for the respondent was unable to shed any light on this new matter. Counsel for the Minister advised the Board that he understood there were certain charges pending against a police officer with respect to activities the complainant had described to us. We observed that the power of courts to restrain unlawful harassment would surely be no different when the harassment resulted from testimony before the Board as when it resulted from testimony before a court. We also observed that harassment of the complainant or his wife as a result of the complainant's testifying before this Board might well constitute a contempt which this Board would have the power to refer to the Divisional Court for punishment under section 13 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484. The complainant persisted in his request for an adjournment to which the respondent remained opposed.
After retiring to consider the submissions of the parties, we declined to grant the requested adjournment. In doing so, we observed that the issues placed before us by the complaint were not identical to those which would arise in a prosecution of the respondent employer for its alleged violation of the provisions of the Environmental Protection Act. In this complaint, the Board would be required to determine whether the complainant had been discharged, disciplined, penalized, coerced or intimidated by his employer or the subject of an attempt by his employer to coerce or intimidate and, if so, whether that employer action was motivated in any way "because the employee has complied or may comply with ..." one of the statutes or regulations referred to in section 1 34b. A determination that the Ministry's interpretation of subsection 21(3) of the Environmental Protection Act was correct would not conclusively establish the employer's liability under section 1 34b, as it would still be necessary to determine whether there had been some employer action against the complainant and, if so, whether that action had been motivated by the employer's belief that the complainant would comply with that interpretation of the Act. On the other hand, if the words "has complied or may comply with . . ." require only proof that the employee acted or proposed to act in accordance with an honest belief that to do otherwise would result in his violating a provision of one of the enumerated acts or regulations, then a successful challenge by the respondent of the Ministry's interpretation of subsection 21(3) of the Act would not necessarily result in the dismissal of this complaint. The Legislature's assignment to this Board of the jurisdiction to entertain complaints under section 1 34b of the Environmental Protection Act must reflect a desire that the issues raised thereunder be examined and dealt with from a labour relations perspective by a tribunal with experience in assessing dealings between employers and employees, and particularly in distinguishing premise from pretext in the explanations offered by employers and employees for their behaviour toward one another. It was surely the Legislature's expectation that the Board would entertain complaints under section 1 34b in accordance with its existing practice and procedure in like matters arising under section 89 of the Labour Relations Act and section 24 of the Occupational Health and Safety Act. So far as it is able to do so, this Board deals expeditiously with matters brought before it, because expedition is particularly important in labour relations matters. For that reason, the Board does not grant adjournment of matters which come before it except on consent or for compelling reasons. We were and are of the opinion that we should take the same approach to proceedings under section 1 34b of the Environmental Protection Act. We concluded that we should not await the outcome of the parallel court proceedings, and that the fear of illegal and retaliatory conduct by a third party to the Board's proceedings was not, at least in these circumstances, a sufficient reason to warrant adjournment. Accordingly, we denied the requested adjournment.
As this was the first matter to come before this Board under section 134b of the Environmental Protection Act, and in view of the obvious interest of the Ministry of the Environment in the scope of protection afforded by section 1 34b of the Environmental Protection Act to workers who rely on its officials' interpretations of other provisions of that Act, we granted the Minister of the Environment status as an intervener in these proceedings.
In the face of the Board's rulings, the complainant renewed his request for an adjournment. He articulated for the first time a concern that he was not represented by a lawyer. The Board inquired whether he had made efforts to retain a lawyer. He said he had spoken to a lawyer and concluded that he was unable to afford a lawyer's services. He said he did not qualify for legal aid. He stated he might be able to afford legal representation if the Board's hearings were conducted in Kingston. However, he had not asked the Registrar to have the hearing of this complaint conducted in Kingston, although he had known for at least a week prior to the hearing that such a request must be addressed to the Registrar. He was not sure whether he would have legal representation at a hearing if it were held in Kingston. In any event, he made it clear that he would not participate in a hearing in Toronto or in Kingston if that hearing took place before the court proceedings discussed earlier. The Board confirmed its ruling that no adjournment would be granted. The complainant then asked whether he could withdraw his complaint.
Before dealing with the complainant's request to withdraw his complaint, the Board cautioned him that if he did withdraw the complaint he might not be able to have its subject matter dealt with at a later time. The Board attempted to reassure the complainant with respect to the matters about which he had expressed concern. The complainant said he still wished to withdraw his complaint. Accordingly, the Board's inquiry into this complaint was and is terminated.