Allan Duxbury v. Vaillancourt Construction Limited, 1995 CanLII 10017

Ontario Labour Relations Board

[1995] OLRB Rep. July 1036

3113-94-EP Allan Duxbury, Applicant v. Vaillancourt Construction Limited, Emile A. Vaillancourt (Senior), Rejean Carriere, Responding Parties

BEFORE: Kevin Whitaker, Vice-Chair.

APPEARANCES: Ramani Nadarajah and Nancy Johnson for the applicant; Hervé Sauvé, Q.C. for the responding parties.

DECISION OF THE BOARD; July 4, 1995

1. This is an application under section 174 of the Environmental Protection Act (referred to in this decision as the "EPA"). The applicant claims to have suffered from a reprisal, committed by the respondents. The respondents deny the reprisal. In the alternative they argue that even if there was a reprisal, it was not one which gave rise to a breach of the EPA.

2. The respondents Vaillancourt Construction Limited ("Vaillancourt") and Rejean Carri­ere ("Carriere") were charged and convicted of a number of offences under the EPA. All offences related to disposing of waste in a manner prohibited by the EPA. The substance of the applicant's case is that the respondents failed to recall him from layoff because of the fact that he assisted in

investigations which lead to the convictions. The respondents say that the applicant was perman­ently laid off well before they had any knowledge of his involvement in the investigations. For rea­sons that follow, I agree with the employer and the application is dismissed.

3. The respondents also argued that the Board should not proceed to inquire into the application because of the delay between the occurrences which gave rise to the complaint in March of 1994 and the date of application in November of 1994. As the application has been dis­missed on the merits, it is not necessary to decide the issue of delay. The applicant did not object to the respondent proceeding with the delay argument despite the fact that it had not been pleaded. Accordingly, the Board directed that evidence on the issue of delay be called with evi­dence on the merits. Despite their objection, the respondents were directed to proceed first with their evidence.

4. Section 174 of the EPA permits an employee to file a complaint with the Board alleging an employer reprisal against the employee for having acted in accordance with that Act. Similar to section 91.5 of the Labour Relations Act (the "Act"), section 174(10) creates an evidentiary bur­den that the employer must displace to prove that the impugned conduct does not contravene the legislation. The relevant provisions of section 174 of the EPA for purposes of this case are as fol­lows:

174.-(1) In this section, "Board" means the Ontario Labour Relations Board.

(2) No employer shall,

(a) dismiss an employee;

(b) discipline an employee;

(c) penalize an employee; or

(d) coerce or intimidate or attempt to coerce or intimidate an employee,

because the employee has complied or may comply with,

(e) the Environmental Assessment Act;

(f) the Environmental Protection Act;

(g) the Fisheries Act (Canada);

(h) the Ontario Water Resources Act; or

(i) the Pesticides Act,

or a regulation under one of those Acts or an order, term or condition, certificate of approval, licence, permit or direction under one of those Acts or because the employee has sought or may seek the enforcement of one of those Acts or a regulation under one of those Acts or has given or may give information to the Ministry or a provincial officer or has been or may be called upon to testify in a proceeding related to one of those Acts or a regulation under one of those Acts.

(3) A person complaining of a contravention of subsection (2) may file the complaint in writing with the Board.

(4) Where a complaint is filed in writing with the Board,

(a) the Board may authorize a labour relations officer to inquire into the com­plaint; or

(b) the Board may inquire into the complaint.

(5) A labour relations officer who is authorized to inquire into the complaint shall make an inquiry forthwith and shall endeavour to effect a settlement of the matter complained of and shall report the results of the inquiry and endeavours to the Board.

(6) Where the labour relations officer is unable to effect a settlement of the matter complained of, the Board may inquire into the complaint.

(7) Where the Board inquires into the complaint and is satisfied that an employer has contra­vened subsection (2), the Board shall determine what, if anything, the employer shall do or refrain from doing with respect thereto.

(8) A determination under subsection (7) may include, but is not limited to, one or more of,

(a) an order directing the employer to cease doing the act or acts complained of;

(b) an order directing the employer to rectify the act or acts complained of; or

(c) an order directing the employer to reinstate in employment the complain­ant, with or without compensation, or to compensate in lieu of hiring or reinstatement for loss of earnings or other employment benefits in an amount that may be assessed by the Board against the employer.

(9) A determination by the Board under subsection (7) applies despite a provision of an agree­ment. (10) On an inquiry under this section, the burden of proof that an employer did not con­travene subsection (2) lies upon the employer.

(14) The Labour Relations Act and the regulations under that Act apply with necessary modifi­cations in respect of a proceeding under subsections (2) to (13).

(15) For the purposes of subsections (2) to (14), an act mentioned in subsection (2) that is per­formed on behalf of an employer shall be deemed to be the act of the employer.

5. The protection from employer reprisals in the EPA applies to persons who are "em­ployees". This is in contrast to the type of protection extended to a broader category of complain­ant described as "persons" in section 67 of the Labour Relations Act. The term "employee" in the EPA is also different from the category of complainant to which similar protection is extended under section 50(1) of the Occupational Health and Safety Act (the "OHSA"). Under the OHSA, the category of complainant is described as "worker" which is a defined term under that legisla­tion. The relevance of the language in the EPA is that the respondents in this case took the posi­tion that the applicant was permanently laid off at the time that the alleged reprisals took place. Even if there were acts of reprisals which are not admitted, the respondents argued that the protec­tion of section 174 cannot be read to extend to persons who are seeking to be rehired. Put plainly, the respondents argued that the applicant was not an employee at the time of the alleged reprisals. The applicant argued that although he was laid off, an employment relationship continued despite the lack of active employment.

The Facts of the Case

6. There are three respondents. The respondent Vaillancourt Construction Limited ("Vaillancourt") operates amongst other undertakings, a gravel pit outside of Sudbury. The company is owned by the respondent Emile A. Vaillancourt. The respondent Carriere is the foreman of the gravel pit. In this position, he acts as the most senior manager on site.

7. The applicant was hired by Vaillancourt as a loader operator in April of 1991. Vaillainc­ourt was aware at the time of hiring that the applicant was experienced as a loader operator. Prior to his hiring by the respondent, the applicant was employed by a company that operated "across the road" from Vaillancourt. He worked there as a loader operator and truck driver. From the outset, the applicant worked for the respondent company as a loader operator. This continued until his last day of work in November of 1993.

8. While employed by Vaillancourt, the applicant was laid off on three occasions. The applicant filed as an exhibit a complete package of all pay stubs received by him during his employ­ment with Vaillancourt. A review of those documents reveals the following periods of active employment:

April 14, 1991 to December 6, 1991

January 9, 1992 to December 9, 1992

January 6, 1993 to November 9, 1993.

9. The pay stubs for the periods ending December 23,1991 and January 6, 1993 both indi­cate that the applicant was paid for 3 statutory holidays, those being Christmas Day, Boxing Day and New Years Day. All three statutory holidays fall within the two periods where there was no active employment.

10. There is some dispute between the parties as to the applicant's last day of work. It is undisputed that the last day of work was in November 1993, and that the applicant left the work site early on his last day.

11. The applicant stated that he was laid off due to a shortage of work. Mr. Carriere testified that the applicant was laid off because the employer had formed the view that he was difficult to get along with and "hard on the equipment". It is undisputed that at the point of lay off, the applicant was not told that he was being dismissed for cause. Prior to his layoff the applicant had never been counselled or disciplined.

12. The applicant's record of employment reflects that the layoff occurred due to shortage of work. The applicant claimed to have received similar records of employment when laid off on the two earlier occasions. He was unable to produce these documents when cross examined on this point. Under the heading "expected date of return" in box "20" of the record of employment, the employer did not indicate anything. The form provides three categories which may be checked off. Those categories are "expected date of recall", "not returning" and "date unknown". Carriere tes­tified that the form was filled out in this manner so as to permit the applicant to qualify for unem­ployment insurance benefits. Carriere was clear that, at the point of layoff, he had no intention of recalling the applicant.

13. Upon layoff in November 1993 the applicant was replaced on the equipment that he had been operating by Chris Bangs. Mr. Bangs testified at the hearing as a witness called by the respondent. Mr. Bangs had more seniority than the applicant, but less experience operating the particular types of equipment that were operated by the applicant.

14. On December 13, 1993, the applicant provided a statement to Nancy Johnson, an enforcement officer with the Ministry of the Environment (the "MOE"). In his statement, the applicant indicated that, acting on instructions from Carrie re, he had buried waste on the premises of Vaillancourt in contravention of the EPA.

15. On February 18, 1994, Vaillancourt and Carriere were served with a notice by the MOE indicating that the Ministry would be proceeding with charges against them under the EPA. The notice did not disclose the fact that the applicant had provided a statement to the MOE which would form the basis of the prosecution.

16. On March 8, 1994 or thereabouts, the applicant went to his old workplace to find out if there was any work for him. To that date he had not been recalled by Vaillancourt. The applicant spoke to Carriere. The applicant was told by Carriere that he didn't know if there would be work. It was undisputed that Carriere appeared to evade the applicant so as to avoid any conversation. Eventually, the applicant left not knowing if he would be recalled to work.

17. By letter dated March 17, 1995, from Dennis Quong, Counsel with MOE, to Mr. Sauv6, solicitor for the respondents, the Ministry provided the respondents with a disclosure brief of the case for the Crown with respect to the charges under the EPA. Included in the disclosure brief was the witness statement made by the applicant and referred to in paragraph 14 above.

18. On March 28, 1994, the applicant again went to the respondents' work site to find out if there was any work for him. He was unsuccessful in speaking directly to Carriere about whether he would be recalled to work. He did however, have a conversation with the respondent Emile Vail­lancourt. After exchanging greetings, Mr. Vaillancourt asked the applicant why he had told the Ministry that he had buried full oil tanks. The applicant asked Mr. Vaillancourt if there would be work for him. It is undisputed that Mr. Vaillancourt told him that it would depend on what hap­pened when the Court case came up.

19. On March 29, 1994, the applicant went to see Nancy Johnson, the MOE enforcement officer who had taken his statement in December of 1993. His purpose in seeing her was to obtain assistance in dealing with what he thought to be a reprisal by the respondents for having provided a statement to the MOE. The applicant provided a written statement to Nancy Johnson describing the events and conversations that occurred during his two visits to the respondents' work site in March of 1995.

20. On November 22, 1994, Vaillancourt and Carriere pleaded guilty to charges under the EPA. Both respondents were fined and Vaillancourt was obliged to carry out certain tasks as part of the Court's Order.

21. The applicant was subpoenaed to Court on November 22, 1995. As a result of the guilty pleas, he was not obliged to testify.

22. On November 23, 1994, the applicant went to see Nancy Johnson. She assisted him in drafting his application. The application was dated on November 25, 1995 and received by the Board on November 30, 1995.

The Decision

23. The issue to be determined is whether the respondents dealt with the applicant in a manner which contravenes section 174(2) of the EPA. The specific allegation is that in failing to recall him to work in March of 1994, the respondents either dismissed, disciplined, penalized, coerced or intimidated the applicant contrary to section 174(2) of the EPA.

24. Section 174 of the EPA prohibits an employer from committing reprisals against an employee, for having assisted in a prosecution under that legislation. It is agreed between the par­ties that the protection of the section extends only to those persons who have the status of "em­ployee" at the time of the alleged act of reprisal. The threshold factual question then is whether the applicant's employment relationship with the respondent Vaillancourt Construction Limited ended in November of 1993. The applicant argued that he was an employee in March of 1994 when he had his discussion with Mr. Vaillancourt. The respondents took the position that the the employment relationship was terminated in November 1993 when the applicant was laid off. The respondents argued that it would not matter what was said or done to the applicant by the respon­dents in March of 1994. Regardless of the respondents' conduct, the applicant could not claim the protection of section 174(2) if his employment relationship had ended months before.

25. The applicant argued that in each year of his employment, he would be laid off around the end of the calendar year and recalled in the new year. In his submission, each year, the sea­sonal layoff would occur because of a shortage of work. When the work picked up in the new year, he would be recalled. He asserted that the layoff in November of 1993 was no different from what happened in preceding years. According to the applicant, there was a subsisting employment rela­tionship that extended from November 1993 through to March of 1994 despite the fact that he was not recalled to active employment.

26. The respondents took the position that the layoff in November of 1993 was different from the two earlier periods during which the applicant had been laid off. The respondents argued that he was permanently laid off in November of 1993 because they harboured significant concerns about his performance on the job.

27. Section 174(10) of the EPA places an evidentiary onus on the respondent employer to show that it did not contravene section 174(2) of the legislation. This is similar to the provisions of section 91(5) of the Labour Relations Act and section 50(5) of the OHSA. Both pieces of legisla­tion are administered by the Board. The applicant referred to Bakelite Thermosets Limited [1990] OLRB Rep. Jan. 3. This case dealt with what was then section 134b of the EPA. The provisions of section 174 of the EPA are identical to the then provisions of section 134b. In Bakelite, supra, the applicant alleged that he had been discharged because he was seeking enforcement of the EPA. At paragraphs 30 and 31 of the decision, the Board noted:

28. Our inquiry under section 134b of the Environmental Protection Act focuses on the reasons for Mohindra's discharge. In this sense it is not dissimilar from the Board's inquiry pursuant to section 24(1) of the Occupational Health and Safety Act. The issue that the Board must decide is why Mohindra was discharged by the respondent. If we are satisfied that any part of the reason for his discharge was for an impermissible reason as set out in section 134b(2) of the Environmental Protection Act, then the employer will have breached the Act. As the Board wrote in Commonwealth Construction Company [1987] OLRB Rep. July 961 in discussing its inquiry under the Occupational Health and Safety Act:

29. The issue we must decide is why the complainants were discharged. This turns on our finding of the facts, based on our assessment of the evidence and whether we believe the company's claim that it discharged them because they wouldn't perform their work, or the complainants' claim that they were performing their work and never took company time for their pursuits, and were discharged because they raised safety matters. Put in terms of the statutory language, were the complainants dis­charged because they acted in compliance with the Act or because they sought its enforcement? It is important to understand that what is protected by the Act is the right of employees not to be threatened or disciplined because of their acting in com­pliance with the Act (or regulations etc.) or seeking its enforcement. An employee might engage in conduct warranting discipline, and in those circumstances an employer can impose discipline, provided the discipline is not motivated even in part

by a concern that the employee was acting in compliance with or seeking to enforce the Act. Discipline levied for that reason is proscribed by section 24(1). Whether a breach is found will depend on whether the Board concludes that the disciplinary response was even partially prompted because the employee was seeking to exercise his or her rights under the Act. In this respect, the Board's inquiry under section 24 of the Act parallels the nature of the inquiry under section 89 of the Labour Relations Act. As the Board noted in Westinghouse Canada Limited, [1980] OLRB Rep. April 577:

44. We now turn to the unfair labour practice provisions underlying this complaint and to a consideration of the law as it relates to the degree of anti union motive necessary to establish such violations of the Act. For the purpose of our analysis it is useful to distinguish between decisions affecting individual employees and major business decisions having potentially broader impact. In dealing with the treatment of individual employees this Board has consistently held that if only one of the reasons for an employ­er's actions against an employee (discharge, layoff, transfer, demotion, etc.) is related to union activity the action is in contravention of the Act. Given the reverse legal onus mandated by section 79 (4a) the Board has held that to find there has been no violation of the Act in these kinds of cases it must be satisfied that the employer's actions were not in any way motivated by anti-union sentiment. The Board summarized this approach and the effect of the statutory reversal of the legal burden of proof in The Barrie Examiner case, [1975] OLRB Rep. Oct. 745 as follows:

…..the appearance of a legitimate reason for discharge does not exonerate the employer, if it can be established that there also existed an illegitimate reason for the employer's conduct.

This approach effectively prevents an anti-union motive from masquerading as just cause. Given the requirement that there be absolutely no anti-union motive, the effect of the reversal of the onus of proof is to require the employer to establish two funda­mental facts - first, that the reasons given for the discharge are the only reasons and, second, that these reasons are not tainted by any anti-union motive. Both elements must be established on the balance of probabilities in order for the employer to establish that no violation of the Act has occurred.

(See also Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 294 and Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 299.) Judicial sup­port for this application of the law is found in Regina v. Bushnell Communi­cations et al (1973), 1 O.R. (2d) 422 wherein the Ontario High court over­turned a lower court decision which had dismissed a complaint under section 110(3) of the Canada Labour Code, which is identical in all material respects to section 58 of The Labour Relations Act, on the grounds that membership in a union was not established as the 'principal reason' for the termination of employment. The High Court held:

In considering an enactment devoid of the words 'sole reason' or 'for the reason only' applied to the act of dismissal and resting only on the word 'because', the Court must take an expanded view of its application. If the evidence satisfies it beyond a rea­sonable doubt that membership in a trade union was present to the mind of the employer in his decision to dismiss, either as a main reason or one incidental to it, or as one of many reasons regardless of priority, s. 110(3) of the Canada Labour Code has been transgressed.

The decision of the High Court was upheld on appeal by the Court of Appeal (1974 CanLII 559 (ON CA), 4 O.R. (2d) 288) and was cited with approval by the Federal Court in Sheehan and Upper Lakes Shipping Limited et al (1977), 1977 CanLII 3060 (FCA), 81 D.L.R. (3d) 208. In this jurisdiction, therefore, the Board, with judicial support, applies a 'taint theory' in dealing with alleged unlawful treatment of individual employees. If an employer's actions impact against employees and the motives underlying the employer's action are in any way tainted by an anti-union animus the employer is in violation of the Act.

The same sorts of considerations and analysis apply in our view to alleged violations of Section 24 of the Occupational Health and Safety Act. If the respondent has con­vinced us that no part of the reason for the discharges was concern over the complain­ants' seeking enforcement of the Act or acting in compliance with it, then the respon­dent will not have violated section 24 of the Act.

31. There are of course differences between these pieces of legislation but under each of them the approach the Board takes is to assess whether any part of the motivation for the discharge was for an impermissible reason as set out in the statute. Under this Act, as under the Occupational Health and Safety Act or the Labour Relations Act, the burden of proof is upon the employer (see section 134b(10)).

32. I agree with the description of the question to be posed and where the burden of proof lies, as set out in Bakelite. The applicant also referred in argument to Bo Ramlit [1990] OLRB Rep. Aug. 874, Saco Fisheries [1988] OLRB Rep. Oct. 1087, and The Barrie Examiner [1975] OLRB Rep. Oct. 745. These cases deal with the manner in which the Board should apply the stat­utory provisions requiring the employer to bear the type of evidentiary onus contemplated by sec­tion 174(10) of the EPA. I accept the characterization of onus as it is described in these cases.

33. It is necessary however to be precise in applying the evidentiary onus described in sec­tion 174(10) of the EPA. The onus quite clearly applies to the proof of conduct alleged to be in contravention of the EPA. In the circumstances of the instant case, this means that the respon­dents would bear the onus of demonstrating that their conduct in March of 1994 did not contravene the provisions of section 174(2) of the EPA. The application of the onus however does not mean that the respondents bear the onus of demonstrating that the applicant was not an employee in November of 1993. In my view, the usual evidentiary burden applies to the proof of this fact. This means that the applicant must prove on a balance of probability that he was in fact an employee at the time of the alleged reprisals. This is no different from the way in which the burden of proof borne by an employer in a wrongful dismissal action or a grievance alleging dismissal for just cause does not extend to the proof of an employment relationship or the existence of a collective agree­ment. This point is discussed by the Board in Simcoe Leaf Tobacco Company Limited [1975] OLRB Rep. Mar. 186. At paragraph 14, the Board in that decision refers to a passage from National Automatic Vending Co. Ltd. (1963) 63 CLLC 16,278 as follows:

In order to shift the burden of justification to the employer in an action by a former employee against an employer at common law for damages for wrongful dismissal, the plaintiff employee need prove only (1) the contract of hiring, (2) the fact of his discharge and (3) his damages. When he does this, an onus then shifts to the defendant employer to establish that proper cause existed for the dismissal. (See George Ditchfield v. Gibson Manufacturing Company Ltd. [(1961) 61 CLLC para. iS,362 (Ont. HC)], Mclnnes v. Ferguson (1899) 32 NSR 516; Butler v. C.M.R. 1939 CanLII 124 (SK CA), [1940] 1 D.L.R. 256.)

30. As a result, the evidentiary onus described in section 174(10) does not apply to the determination of whether the applicant was an employee in March of 1994. It is for the applicant to prove this fact on a balance of probability.

31. Turning to the question then of whether the applicant was terminated in November of

1993, the Board's task is not to determine whether the respondents had at that point cause for dis­missal. It may be that whatever justification is now advanced in support of their contention that the applicant was dismissed, may not amount to cause in the manner in which that term applies in civil matters, before boards of arbitration, or before this Board in an application under section 81(2) of the Act. The reasons put forward by the employer for the purported dismissal are relevant to the extent that they go the the credibility of the employer's position. This is quite different however from putting the employer to the proof of cause to support the proposition that the employee was dismissed.

32. The respondents have argued that the applicant was terminated in November of 1993 without any prospect of recall. The respondents did not clearly indicate this on the applicant's record of employment. Their explanation for this was that they did not wish to deprive the appli­cant of the ability to apply for and receive unemployment insurance benefits. There is circumstan­tial evidence which rather strongly supports the respondents' characterization of this issue. Firstly, the applicant continued to remain laid off for months following the cessation of employment in 1993. This is in contrast to the two earlier periods of inactivity where he remained off for a matter of weeks. Secondly, in the two earlier periods, he was paid the three statutory holidays by the employer prior to his date of recall. He was not paid for these holidays after November 1993. Thirdly, the applicant left the respondent's premises prior to the completion of his shift, suggesting that the termination was for something other than simply a lay off due to work reduction. Fourthly, the applicant was replaced on the loader with an employee who although he had more seniority than the applicant, clearly had less experience on the loader. This implies that the work remained to be done and the lay off was for some purpose other than a reduction in work. Finally, it is undisputed that when the applicant first went to the respondents' work site in March to see if there would be work for him, Mr. Carriere avoided talking to him about being recalled. At this time, there is no evidence to suggest that the respondents knew about the fact that the applicant had in some way assisted in the investigations by the MOE. The only other explanation for Mr. Carriere' s evasiveness is that he did not want the applicant returning to work and wished him to remain off.

33. In the face of the circumstantial evidence described in the paragraph above, the appli­cant suggested that the period of lay off beginning in 1993 was the same in all respects as the two earlier periods of layoff. He stated that he had the same expectations of being recalled in the spring of 1994 as he had held in the two earlier layoff periods. With respect, I cannot agree. It may be that the applicant honestly believed that he would be recalled when he went to see Mr. Carriere in March of 1994. His honest belief in this regard however does not determine the issue. On the bal­ance of probability, I find that the respondent Vaillancourt terminated its employment relationship with the applicant in November of 1993 when he was laid off. As a result, the applicant was not an employee of the respondent Vaillancourt in March of 1994.

34. I now turn to the remarks made to the applicant by Emile Vaillancourt on March 28, 1994. The applicant's undisputed evidence was that Mr. Vaillancourt made it clear to the applicant that he might be recalled to work depending on how he conducted himself when the matter of the charges under the EPA went to Court. In the absence of any explanation or comment from Mr. Vaillancourt, I conclude that these remarks were either meant as a reprisal against the applicant for having assisted the MOE in its investigations, or at the least, his remarks were designed to influence the applicant in his role as witness for the Crown in the pending court proceedings. In either case, the remarks are an inappropriate exercise of an employer's power to withhold work for purposes of either punishing the applicant or to improperly influence his behaviour. I have no diffi­culty in finding that Mr. Vaillancourt's remarks were inappropriate and amounted to the type of conduct that is supposed to be precluded by the operation of section 174 of the EPA. What is also just as clear is that the applicant was not an employee of the respondent Vaillancourt, at the time that the reprisal was made. But for the severance of his employment relationship with Vaillancourt in November of 1993, I would have found that the application should be allowed.

35. At the outset of the hearing, the respondents made a number of preliminary motions dealing with the procedure followed by the Board in this case. Those motions were dismissed and the matter proceeded accordingly. In light of the Board's disposition, I have not dealt with the issues and rulings in these reasons. If either party wishes the Board to issue further reasons dealing with the motions made by the respondent, it may request those reasons within thirty days of the date of this decision. The Board orders this application dismissed.