3297-99-OH William McNaught, Applicant v. The Toronto Transit Commission and its Supervisors, Chief General Manager Ducharme, General Manager G. Webster, S. Quigley, Human Resources Department, D. Haffey, Human Resources Department and Superintendent J. Haffey, Danforth Bus Division, Responding Parties.
3216-99-99-U Toronto Transit Commission, Applicant v. William H. McNaught, Responding Party.
BEFORE: Marilyn Silverman, Vice-Chair.
DECISION OF THE BOARD; September 10, 2001
1This is a request for reconsideration of the Board’s earlier decision dated April 25, 2001 (the “Decision”). In the Decision, the Board dismissed the complaint contained in the application made pursuant to section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c.O-1 as amended (the “Act”). The Board also dismissed a request from the Toronto Transit Commission (the “employer”) to state a case for contempt to the Superior Court. That portion of the decision is not part of the reconsideration request.
2Pursuant to section 114(1) of the Labour Relations Act, 1995, the Board has discretion to reconsider the Decision as provided in section 50(4) of the Act:
- (1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
3The principles which the Board applies in an application for reconsideration are set out in K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb.185, as follows:
4To avoid abuse of the reconsideration provision and bring some finality to its adjudicated decisions the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evidence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the outcome of the case. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsideration in light of a party’s conduct, and the resulting prejudice to another party if the case is reopened. (See, generally, International Nickel Company of Canada, 63 CLLC ¶16,284; The Detroit River Construction Limited, 63 CLLC ¶16,260; National Steel Car Corporation Limited [1966] OLRB Rep. Apr. 55; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; York University, [1976] OLRB Rep. Apr. 187 affirmed, sub. Nom Jordan v. Ontario Labour Relations Board, York University Faculty Association, York University, 78 CLLC ¶14,132. (Ont. Div. Ct.).
- Mr. William McNaught (the “applicant”) contends that the Board erred in the Decision in two respects. First, the applicant contends that the Board contravened Mr. McNaught’s Charter rights, specifically a right not to be compelled to be a witness in proceedings against him as guaranteed by section 11(c) of the Charter of Rights and Freedoms. By doing so, Mr. McNaught contends that he was denied a fair hearing.
5Second, the applicant argues that the Board substituted its own argument for that of the employer and by so doing did not rule on the merits of the application and/or argument.
The Charter rights Argument
6Prior to May 15, 2000, the Board (differently constituted) decided that the reprisal complaint should be listed with the contempt application. Mr. McNaught requested that the two matters be heard separately. That request was considered by the Board (differently constituted), but rejected in a decision dated May 15, 2000 (see paragraphs 5 and 6 thereof).
7The two matters were listed together when they came before me. Mr. McNaught again sought to have the two matters heard separately. This request is referred to in paragraphs 7 and 8 of the Decision. When raised, as a preliminary matter, the reasons advanced for the request to sever related to an issue as to the effective date of Mr. McNaught’s termination and the factual connection between the two applications.
8The applicant contends in his reconsideration request that the Board’s decision at the outset of the hearing to consolidate these two matters, being the application under section 50 of the Act and the request to state a case for contempt to the Superior Court, effectively denied Mr. McNaught his right not to be compelled to be a witness in proceedings against him. Since it is Mr McNaught’s contention that he possessed this right, no adverse inference should have been drawn against him for his failure to testify. That is the Charter rights issue he raises.
9The argument that no adverse inference should be drawn from Mr. McNaught’s failure to testify and his submissions on the nature of the contempt application were submitted in final argument. That argument was dealt with and rejected in paragraphs 53, 54 and 57 of the Decision:
Mr. McNaught did not give evidence. The TTC asks me to draw an adverse inference from his failure to testify. It relies on established principles applied by the Board that the failure to call a material witness amounts to an implied admission that the witness’s evidence would not be favourable to his case.
In response, counsel for Mr. McNaught responds that the contempt application is more of a criminal than a civil matter and as such his testimony could be used against him in the contempt case. In these circumstances counsel for Mr. McNaught submits no adverse inference can be drawn from his failure to testify.
I deal first with Mr. McNaught’s failure to testify. An application to the Board to state a case for contempt is not a criminal proceeding. Although that is the stated reason why Mr. McNaught did not give evidence, I see no reason to refuse to apply the usual rules of evidence. The evidence I have heard therefore stands largely as either uncontradicted evidence of the TTC witnesses or evidence that I must assume Mr. McNaught adopts. …
10The Charter rights argument is no different from the argument presented by counsel at the end of the hearing. The issue of whether or not I should draw an adverse inference from Mr. McNaught’s failure to testify was squarely addressed by both parties in argument and it was then that Mr. McNaught’s counsel first raised the Charter rights issue. Consequently the reconsideration request does not raise a matter which was not thoroughly canvassed previously.
11As noted in the decision, the only credible evidence was the uncontradicted evidence of the employer witnesses. There was nothing upon which to find a reprisal based on that evidence.
Substitution of Argument
12Mr. McNaught claims that by finding that the work refusal was not bona fide or was an abuse of the work refusal provisions of the Act rather than finding that it was “preplanned” I substituted my argument for that of the employer. Mr. McNaught asserts in the reconsideration request that the difference in semantics is really a reformulation of the cause for discharge from that originally advanced by the TTC.
13There is no merit to this submission. The difference between the employer’s justification for the dismissal and the Board’s characterization is a difference in terminology and not a matter of substance. As stated in the first sentence of paragraph 50 of the Decision Mr. McNaught was terminated for “orchestrating a work refusal which is a serious abuse of the OHSA”. The employer’s letter of termination reproduced in the Decision refers to the fact that the preplanning of the work refusal was a “serious abuse” of the Act. The facts and evidence upon which the employer relied for the termination were the facts and evidence which I considered in my decision. The fact that I preferred to use my description over that of the employer does not amount to a substituted argument.
14Section 50 required that I determine whether or not there was a health and safety motivation to the employer’s actions. I found that there was no evidence to support the contention that the employer was motivated by anything other than Mr McNaught’s wrongdoing in relation to his work refusal.
15The Board is satisfied that in all the circumstances and in consideration of the evidence adduced in the context of a lengthy hearing, the employer did not discharge Mr. McNaught contrary to section 50 of the Act.
16For these reasons, the request for reconsideration is denied.
“Marilyn Silverman”
for the Board