McNaught 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 et al. [Indexed as: McNaught v. Toronto Transit Commission]
74 O.R. (3d) 278
[2005] O.J. No. 224
Docket: C41584
Court of Appeal for Ontario,
Simmons, Gillese JJ.A. and Hennessy J. (ad hoc)
January 27, 2005
- Application for leave to appeal to the Supreme Court of Canada was dismissed with costs to the respondents June 30, 2005 (Major, Fish and Abella JJ.)
Administrative law -- Duty to act fairly -- Worker filing reprisal complaint against employer under Occupational Health and Safety Act -- Employer bringing motion before Ontario Labour Relations Board pursuant to s. 13 of Statutory Powers Procedure Act asking Board to state case to Divisional Court that worker was guilty of contempt of court -- Board not contravening duty to act fairly by consolidating two proceedings into one hearing -- Occupational Health and Safety Act, R.S.O. 1990, c. O.1 -- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 13.
Charter of Rights and Freedoms -- Self-incrimination -- Section 11 of Charter not applying to motion under s. 13 of Statutory Powers Procedure Act to have tribunal state case to Divisional Court that person has been guilty of contempt -- Person who is subject of s. 13 motion before tribunal not being "charged with offence" -- Canadian Charter of Rights and Freedoms, s. 11 -- Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, s. 13. [page279]
While employed by the TTC, M was actively involved in health and safety concerns and was a member of the Joint Health and Safety Committee. On February 1, 2000, the TTC notified M that he was being relieved of his duties. According to a letter dated the following day, the action was being taken as a result of M's participation in intimidation and coercion of operators/safety representatives and his pre-planning of a work refusal. On February 18, M distributed to several TTC employees copies of documents that the TTC had produced to M as the contact person with respect to safety applications that were pending before the Ontario Labour Relations Board (the "Board"). On February 25, the TTC sent M a "Termination Letter" referring to his intimidation and coercion of members of the Joint Health and Safety Committee, his pre-planning of work refusals and his distribution of the copies of documents produced by the TTC in other proceedings and informing M that he was dismissed. M took the position that he was dismissed on February 1, 2000. He filed a reprisal complaint with the Board alleging that the TTC had contravened s. 50(1) of the Occupational Health and Safety Act by dismissing him. The TTC brought a motion before the Board pursuant to s. 13(1) of the Statutory Powers Procedure Act asking the Board to state a case to the Divisional Court so that the Divisional Court might take steps to punish M for contempt in relation to his distribution of copies of documents produced to him by the TTC in other proceedings. The TTC sought the consolidation of the two proceedings. Over the protests of M, the Board directed that the two matters be listed together for hearing. M did not testify. The Board ultimately dismissed both the reprisal complaint and the contempt motion. The Divisional Court allowed M's application for judicial review of the Board's order and held that the Board failed to uphold M's right to a fair hearing in accordance with the principles of fundamental justice by consolidating the two proceedings into one hearing. The TTC appealed.
Held, the appeal should be allowed.
The Divisional Court erred when it stated that M had the onus to prove the reprisal conduct. Under s. 50(5) of the Occupational Health and Safety Act, the burden of proof in reprisal complaints is clearly on the employer. The Divisional Court also erred in finding that the Board's decision to have the two matters heard together caused M to be potentially faced with evidence that could be prejudicial to his reprisal application, that is, evidence of his conduct on February 18. Evidence of M's conduct on February 18 would have been before the Board had the Board heard only the reprisal complaint. Given the TTC's position that M was dismissed on February 25, M's conduct on February 18 was direct evidence in support of his dismissal and would have been adduced by the TTC on the reprisal complaint.
Proceedings pursuant to s. 13 of the Statutory Powers Procedure Act have two stages. The goal of the first stage is for the Board to determine whether a case ought to be stated to the Divisional Court. In making this determination, the Board must decide whether a prima facie case has been made out that conduct described in s. 13 occurred. Section 13 does not confer on the Board the power to adjudicate the issue of contempt. In the s. 13 proceedings before the Board, M was not in the position of a person who has been cited for, or charged with, contempt. The Divisional Court determines whether the contempt occurred and, if so, the appropriate punishment. The Divisional Court erred when it found that in the hearing before the Board, M was in a position analogous to that of a person cited for contempt. The Divisional Court also erred when it found that the s. 13 proceedings before the Board put M in a position of being pitted against the Board. The Board had no stake in the outcome of the first stage of the s. 13 motion. Its role was that of a disinterested arbiter without a stake in the outcome. Even if the Board drew an adverse inference from M's failure to testify, the Divisional Court erred in concluding that that contributed to an unfair hearing in relation to the reprisal complaint. The TTC was entitled to call [page280] evidence of events that occurred after February 1, 2000 in relation to the reprisal complaint even if the s. 13 motion had not been consolidated with the reprisal complaint. Finally, the Divisional Court failed to note that before the Board, prior to his closing submissions, M did not raise any issue concerning the possible impact of consolidating the proceedings on his decision to testify. Accordingly, when making the decision to consolidate, the Board did not have the opportunity to consider (i) whether procedural differences between the reprisal complaint hearing and the s. 13 motion could affect M in a manner that was unfair; (ii) if it did, whether procedural accommodations could be made to offset the unfairness; and (iii) whether the level of unfairness outweighed the factors favouring consolidation. In these circumstances, consolidation did not result in any unfairness.
Section 11 of the Canadian Charter of Rights and Freedoms was inapplicable in the circumstances of this case. At the first stage of proceedings in a s. 13 motion, a person in M's position is not "charged with an offence". Stage 1 proceedings are not criminal proceedings and facing a possible stated case does not amount to facing a true penal consequence. The consolidation did not result in a contravention of M's right under s. 11(c) of the Charter not to be compelled to be a witness in proceedings against him.
M argued for the first time on appeal that the Board lacked the power to consolidate the proceedings absent the consent of both parties. New issues should not be raised on appeal unless the party seeking to raise them demonstrates that the interests of justice require it. There was no apparent reason why M could not have made the argument in the earlier proceedings. This was not a case where such an important procedural question could be properly resolved without a full exploration of the issue before the Board and the Divisional Court.
APPEAL from a judgment of the Divisional Court (Blair R.S.J., E. Macdonald and MacDougall JJ.), 2003 44699 (ON SCDC), [2003] O.J. No. 4483, 233 D.L.R. (4th) 80, allowing an application for judicial review of a decision of the Ontario Labour Relations Board.
Cases referred to Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39, 174 D.L.R. (4th) 193, 243 N.R. 22; Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183 (Re), 1971 341 (ON CA), [1971] 3 O.R. 832, 22 D.L.R. (3d) 40 (C.A.); Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25, 57 D.L.R. (4th) 663, 93 N.R. 81, [1989] 3 W.W.R. 289 (sub nom. Prassad v. Minister of Employment and Immigration); Pritchard v. Ontario (Human Rights Commission), [2004] 1 S.C.R. 809, [2004] S.C.J. No. 16, 187 O.A.C. 1, 238 D.L.R. (4th) 1, 319 N.R. 322, 2004 SCC 31, 19 C.R. (6th) 203, supp. reasons (2004), 47 C.P.C. (4th) 203, 2004 SCC 31, 33 C.C.E.L. (3d) 1, 12 Admin. L.R. (4th) 171; R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71, 24 O.A.C. 321, 61 Sask. R. 105, 45 D.L.R. (4th) 235, 81 N.R. 161, [1988] 1 W.W.R. 193, 32 C.R.R. 219, 37 C.C.C. (3d) 385, 60 C.R. (3d) 193 (sub nom. Wigglesworth v. R.); R. v. Yanover (1974), 1974 812 (ON CA), 6 O.R. (2d) 478, 53 D.L.R. (3d) 241 (C.A.); Wasauksing First Nation v. Wasausink Lands Inc., 2004 15484 (ON CA), [2004] O.J. No. 810, 184 O.A.C. 84, 43 B.L.R. (3d) 244.
Statutes referred to Canadian Charter of Rights and Freedoms, s. 11(c) Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A, s. 110(16), (17) Occupational Health and Safety Act, R.S.O. 1990, c. O.1, s. 50 [as am.] Statutory Powers Procedure Act, R.S.O. 1990, c. S.22, ss. 9.1 [as am.], 13 [as am.], 14 [as am.]
Rules and regulations referred to Ontario Labour Relations Board Rules of Procedure, Rule 58 [page281]
Douglas K. Gray, for appellants. Barry J. Goldman, for respondent William McNaught. Leonard Marvy, for Ontario Labour Relations Board.
The judgment of the court was delivered by
[1] GILLESE J.A.: -- This appeal grapples with the power of the Ontario Labour Relations Board to determine its own procedure, specifically, the Board's right to consolidate two proceedings and hear them together.
Overview
[2] William McNaught worked for the Toronto Transit Commission ("TTC") for 29 years. On February 1, 2000, the TTC notified Mr. McNaught that he was being relieved of his duties effective that day. Mr. McNaught was of the view that the notification terminated his employment and, on February 3, 2000, he filed a reprisal complaint against the TTC with the Ontario Labour Relations Board ("Board"). In the complaint, he alleged that the TTC had contravened s. 50(1) of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 ("OHSA").
[3] On March 8, 2000, the TTC brought a motion before the Board in which it asked the Board to state a case to the Divisional Court so that the Divisional Court might take steps to punish Mr. McNaught for contempt (the "contempt motion"). The contempt motion was brought pursuant to s. 13(1) of the Statutory Powers Procedure Act, R.S.O. 1990, c. S.22 ("SPPA").
[4] The TTC sought the consolidation of the two proceedings. Mr. McNaught opposed the request. The Board directed that the two matters be listed together for hearing.
[5] The matters were heard together and the Board ultimately dismissed both Mr. McNaught's reprisal complaint and the TTC's contempt motion.
[6] Mr. McNaught sought judicial review of the Board's order. The Divisional Court allowed his application and quashed the Board decision holding that, by consolidating the two proceedings into one hearing, the Board "failed to uphold Mr. McNaught's right to a fair hearing in accordance with the principles of fundamental justice".
[7] The TTC appeals from the order of the Divisional Court.
[8] For the reasons that follow, I would allow the appeal. [page282]
Factual Background
[9] Mr. McNaught was employed by the TTC for 29 years. He was actively involved in health and safety concerns for at least the last six years of his employment, most recently as a worker certified member of the Joint Health and Safety Committee ("JHSC"). In his role as a member of the JHSC, Mr. McNaught initiated Board applications with regard to the safety of a new line of buses purchased by the TTC. Two of these applications sought the enforcement of the OHSA. One of the applications pertained to a potential safety hazard concerning the design of the buses. The second pertained to insufficiency of driver training at the TTC with respect to the buses. (Hereafter, these two applications are referred to as the "safety applications".) Mr. McNaught was designated as the contact person with regard to the safety applications and played a major role in their pursuance.
[10] On February 1, 2000, the TTC notified Mr. McNaught that he was being relieved of his duties (the "February 1 meeting"). A letter dated February 2, 2000, confirmed the events of the February 1 meeting. Mr. McNaught was told that the action was being taken as a result of his:
(i) participating in and being party to the intimidation and coercion of operators/safety representatives; and
(ii) pre-planning of a work refusal.
[11] Mr. McNaught was of the view that the notification terminated his employment and, on February 3, 2000, he filed a reprisal complaint against the TTC with the Board.
[12] On February 18, 2000, Mr. McNaught distributed, to several TTC employees, copies of documents that the TTC had produced to Mr. McNaught as the contact person with respect to the safety applications that were pending before the Board.
[13] On February 25, 2000, the TTC sent Mr. McNaught a letter subtitled "Termination Letter". The letter referred to the events leading up to the February 1 meeting, saying:
On February 1, 2000 you were relieved of duties for the pre-planning of a work refusal and participating in, and being party to, the intimidation and coercion of members of the Danforth Joint Health and Safety Committee (JHSC). We note that you declined to attend the Step 1 meeting and the Commission is not prepared to extend time limits as prescribed in the Collective Labour Agreement.
Since that date, it has also come to our attention that on or about February 18, 2000 you were engaged in distributing copies of material that had been filed by the Commission with the Ontario Labour Relations Board in connection [page283] with an ongoing proceeding. This was intended to intimidate and coerce Carol Jesseau, and is particularly serious because she is a potential witness. You were invited to attend a meeting to discuss this matter, but you declined to do so.
We are satisfied that you pre-planned your December 14, 1999 work refusal and had been a party to and participated in, the intimidation and coercion of safety representatives on the JHSC. The Commission considers the pre-planning of work refusals as serious abuse of the Occupational Health and Safety Act (OHSA) and will not tolerate or condone the intimidation and/or coercion of employees. Consequently, you are dismissed from your employment with the Commission.
[14] On March 8, 2000, the TTC filed the contempt motion in respect of Mr. McNaught with the Board. In that motion, the TTC relied on Mr. McNaught's distribution of the documents referred to in the February 25 letter. The TTC's motion material summarized its allegation in the following terms:
... the essence of the Application (sic) relates to Mr. McNaught's use of two documents that had been filed by the Commission in the course of certain proceedings before the Board, in a manner that violates Mr. McNaught's implied undertaking that those documents will be used only for the purpose of the litigation in which the documents were produced, and for no other purpose. ...
And furthermore, it is alleged that Mr. McNaught used the documents in a way that was intended to intimidate one Carol Jesseau, a potential witness in some outstanding Board proceedings.
In substance, the Commission alleges that Mr. McNaught took a witness statement prepared by Carol Jesseau, in her handwriting, and a transcript of a voice mail message left on Carol Jesseau's voice mail system, both of which had been filed by the Commission with the Board and copied to Mr. McNaught, (as required by the Board's rules), and distributed copies of these documents to employees of the Commission, colleagues of Ms. Jesseau. This would have the obvious effect of intimidating and coercing Ms. Jesseau, who is anticipated to be a witness in some ongoing proceedings.
[15] The TTC took the position throughout that it had not dismissed Mr. McNaught until it delivered to him the February 25 letter.
[16] Prior to the hearing of the two proceedings, the TTC sought their consolidation; Mr. McNaught opposed the consolidation request.
[17] Board Vice-Chair Nairn, in a decision dated April 3, 2000, directed that the two matters be listed together for hearing. Referring to the contempt motion, she said,
... I hereby direct that this matter be scheduled for hearing with the hearing of the reprisal complaint. Whether or not this alleged conduct would amount to contempt, there is a prima facie allegation of improper conduct which may be relevant to any exercise of the Board's direction [sic] in Board file No. 3297-99 OH [the reprisal complaint]. [page284]
[18] On April 14, 2000, Mr. McNaught requested that Vice-Chair Nairn reconsider the decision to combine the two matters. He submitted that the two proceedings should be "uncoupled". One of the reasons, he argued, was that the actions complained of in the contempt motion materials took place after he had been dismissed by the TTC and post-termination conduct on his part should be irrelevant to whether the TTC had terminated his employment as a reprisal.
[19] Vice-Chair Nairn declined to reverse her decision. She reasoned:
From a review of Board file no. 3297-99-OH, [the reprisal complaint] it appears that there will be an issue between the parties as to the effective date of any termination from employment and the grounds on which the TTC is entitled to rely in support of its decision to terminate Mr. McNaught's employment. It is, however, the case that prior to filing this application, the TTC had forwarded a letter to Mr. McNaught (dated February 25, 2000) in which it sets out its asserted grounds for termination. Those grounds included an allegation that Mr. McNaught distributed the materials filed by the TTC for the purpose of intimidating and coercing a witness. Thus the TTC will attempt, in Board file No. 3297-9908, [the contempt motion] to rely on the very allegation raised in this application.
[20] On March 21, 2000, Mr. McNaught filed his response to the contempt motion. He submitted that he had a lawful reason to distribute the documents in question. He asked the Board to deal with several preliminary issues and requested that the two proceedings be "uncoupled".
[21] On May 29, 2000, counsel for Mr. McNaught advised the Board that he would raise the issue of the consolidation of the two proceedings as a preliminary matter at the start of the hearing. He also requested that the Board first hear evidence regarding the effective date of the TTC's dismissal of Mr. McNaught in order to determine whether the events following that date were relevant to the alleged unlawful dismissal.
[22] The Board dismissed Mr. McNaught's preliminary arguments. With respect to the request to determine the date of termination first, the Board stated: "This issue can most thoroughly, efficiently and fairly be dealt with in the context of the case as a whole through the presentation of evidence and argument."
[23] The two proceedings were heard together. At the conclusion of the TTC's case, Mr. McNaught brought a motion for a non-suit and was put to his election concerning whether to call evidence. Although evidence was presented on Mr. McNaught's behalf, he did not testify. The Board dismissed Mr. McNaught's reprisal complaint.
[24] In its decision, dated April 25, 2001, the Board stated"[t]he uncontradicted evidence is that Mr. McNaught was terminated for [page285] orchestrating a work refusal which is a serious abuse of the OHSA". The Board noted the uncontradicted evidence of Mr. McNaught's Superintendent to the effect that Mr. McNaught's involvement with health and safety played no part in the decision to terminate him. The Board stated"[h]aving heard Mr. Haffey's evidence, I have no reason to disbelieve his version of events and his motivation for the termination".
[25] In the course of summarizing its conclusions on the evidence, the Board stated:
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. In many instances Mr. McNaught was the only person who could contradict the reasonable inferences to be drawn from the evidence. Only his evidence could have allowed me to draw conclusions different from the ones advanced by the TTC. He failed to testify. He did not say that he did not plan and orchestrate the work refusal, he did not say that he did not distribute the material at the Terminal Grill, he did not say that he did not write the resignation letter requiring Ms. Jesseau and Mr. Kamall to resign. Further he did not deny that the reference in the Unity Caucus web site was directed at Ms. Jesseau. In this case I have no evidence to support the version of facts put forward by Mr. McNaught's counsel. I cannot, as he suggests, infer, in the face of cogent and credible evidence put forward primarily by Ms. Jesseau and Mr. Haffey, that Mr. McNaught did not engage in the conduct he is accused of.
[26] The Board found that:
Mr. McNaught refused to sit at a desk and distribute statistical information to other bus drivers and to listen to and communicate with other workers on safety issues. By no stretch of the imagination is there anything inherent in that work that could lead him to believe that it was dangerous. He simply did not want to do that work because he did not have a job description and more generally because he thought he, and not the TTC or the JHSC, should have control over it. He was not entitled to use the work refusal provisions of the OHSA to advance his position. The work refusal was not bona fide, but rather an orchestrated attempt on Mr. McNaught's part to win this battle with Mr. Haffey.
[27] With respect to Mr. McNaught's reprisal complaint, the Board concluded:
I find that the termination of Mr. McNaught was not a reprisal for acting in compliance with or seeking the enforcement of the OHSA. I find no violation on the part of the TTC or any of its employees under section 50(1) of the Act.
[28] The Board dismissed the contempt motion saying:
I am not prepared at this time to state a case to the Divisional Court in order for Mr. McNaught to be punished for contempt. The circumstances giving [page286] rise to the TTC's request in this regard are novel. I agree with counsel for the TTC that the documents distributed at the Terminal Grill were distributed for an improper purpose. Mr. McNaught's access to them came about as a result of the TTC's pleadings in another Board file.
Mr. McNaught has lost his employment. Although parties must be scrupulous in using documents such as these, the relationship between the parties is now at an end. I see no labour relations or health and safety purpose in continued litigation between them. I am therefore not persuaded that there would be any good reason for a contempt application to proceed any further and I exercise my discretion not to grant the employer's request.
The Divisional Court Decision
[29] The Divisional Court concluded that, given the nature of the two proceedings, the Board failed to uphold Mr. McNaught's right to a fair hearing in accordance with the principles of fundamental justice by consolidating the proceedings into one hearing. Those portions of the reasons that explain the Divisional Court conclusion are set out below [at paras. 30-31, 41, 43 and 45-48].
Although it can be reasonably argued that the procedure that was commenced by the TTC under s. 13 of the SPPA was not the "hearing of the contempt" allegation, the motion brought by the TTC did commence a "contempt procedure".
It puts too fine a point on s. 13 to suggest, as the Respondents did, that the TTC's s. 13 application was not the hearing of the contempt application. While this is technically correct, these nuances would mean little to someone in the position of Mr. McNaught. It follows then that he was in a position analogous to that of a person cited for contempt who is entitled, because he/she is charged with a criminal offence, to the protection of s. 11 of the Charter and, more particularly, of s. 11(c) which provides that a person charged with a criminal offence cannot be compelled to testify. See Vidéotron Ltée. v. Industries Mirolac Produits Electroniques Inc., [1992] S.C.R. 1065.
As a result of the TTC bringing its s. 13 motion relating to actions that occurred after the date of the reprisal complaint and convincing the Board to have the two matters heard together, Mr. McNaught was potentially faced with evidence that could be very prejudicial to his reprisal application. For example, if the Board determined that the action of the TTC on February 1, 2000 was found not to be an unlawful reprisal, the allegations of Mr. McNaught's conduct "contemptuous of the Board" would be before the Board when the Board was exercising its discretion under subsection 7 of s. 50 of the OHSA to consider substituting a penalty other than termination.
When faced with the alleged contemptuous conduct towards the Board, that of breaching his implied undertaking given to the Board in that other procedure, Mr. McNaught was being put in a position of being "pitted" against the tribunal. In one sense, that issue was not between the TTC and Mr. McNaught. It was between Mr. McNaught and the Board in a matter that related to a different application before the Board. Requiring Mr. [page287] McNaught to defend this "contemptuous conduct" of the breach of an implied undertaking in another procedure before the Board in his reprisal complaint hearing constituted serious prejudice to him. Furthermore, the appearance of fairness, is severely compromised when the Board is proceeding with his reprisal hearing at the same time.
In these circumstances, the decision to force Mr. McNaught in his reprisal case to face the allegations of contempt of the Board in another pending proceeding would not create the impression that he was being given a fair hearing by an "independent and impartial tribunal".
Faced with these obstacles, it is not unreasonable that Mr. McNaught chose not to testify at the hearing. The Board's decision to hear the two matters together created a serious quandary for Mr. McNaught. He was taking the position that he was wrongfully terminated from his employment as a reprisal action by his employer for his action in having the OHSA enforced. His employer, however, was permitted to refer to conduct that he was engaged in several days after the alleged "reprisal conduct". Mr. McNaught felt any "post-reprisal" conduct by him was irrelevant to the reprisal issue. Because that "post-reprisal" conduct was being alleged by his employer as constituting "contemptuous conduct of the Board", Mr. McNaught obviously had an interest in opposing the employer's motion to have a case of contempt stated against him to the Divisional Court.
Although Mr. McNaught had an onus to prove the reprisal conduct, it was the TTC's onus to convince the Board that a prima facie case of contempt had been made out. . . .
It is clear from this passage that the Board did draw adverse inferences from Mr. McNaught's failure to testify.
The Issues
[30] The central issue in this appeal can be stated simply: did the Divisional Court err in concluding that the Board breached Mr. McNaught's right to a fair hearing by consolidating the two proceedings into one hearing?
[31] In addition, for the first time on this appeal, Mr. McNaught challenges the power of the Board to consolidate the two proceedings absent the consent of both parties.
Analysis
[32] In my view, the Divisional Court was in error when it concluded that Mr. McNaught had been denied a fair hearing. The conclusion flowed from a misapprehension of the nature of both the reprisal complaint proceedings under s. 50 of the OHSA and the proceedings under s. 13 of the SPPA.
The reprisal complaint proceedings
[33] The Divisional Court made two errors when considering the reprisal complaint. The first related to the burden of proof [page288] and the second to the evidence that would have been before the Board on the complaint.
[34] Mr. McNaught maintained that the TTC dismissed him because of his prior involvement in enforcing the OHSA. He filed a reprisal complaint with the Board pursuant to s. 50 of the OHSA.
[35] The provisions relevant to Mr. McNaught's reprisal complaint are ss. 50(1), (2), (5) and (7) of the OHSA, set out below.
50(1) 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 or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.
(2) Where a worker complains that an employer or person acting on behalf of an employer has contravened subsection (1), the worker may either have the matter dealt with by final and binding settlement by arbitration under a collective agreement, if any, or file a complaint with the Board in which case any rules governing the practice and procedure of the Board apply with all necessary modifications to the complaint.
(5) On an inquiry by the Board into a complaint filed under subsection (2), the burden of proof that an employer or person acting on behalf of an employer did not act contrary to subsection (1) lies upon the employer or the person acting on behalf of the employer.
(7) Where on an inquiry by the Board into a complaint filed under subsection (2), the Board determines that a worker has been discharged or otherwise disciplined by an employer for cause and the contract of employment or the collective agreement, as the case may be, does not contain a specific penalty for the infraction, the Board may substitute such other penalty for the discharge or discipline as to the Board seems just and reasonable in all the circumstances.
[36] Section 50(5) is unambiguous. The burden of proof in the reprisal complaint was on the TTC, as employer. The Divisional Court erred, in para. 47 of its reasons, when it stated that Mr. McNaught "had an onus to prove the reprisal conduct".
[37] The second error is in paras. 41 and 43 of the Divisional Court reasons. In those paragraphs, the Divisional Court found [page289] that it was the Board's decision to have the two matters heard together that caused Mr. McNaught to be "potentially faced with evidence that could be very prejudicial to his reprisal application" and that requiring him to defend such conduct "constituted serious prejudice to him". The potentially prejudicial evidence referred to by the Divisional Court was evidence of Mr. McNaught's conduct on February 18. In making this finding, the Divisional Court appears to have overlooked the fact that evidence of Mr. McNaught's conduct on February 18 would have been before the Board had the Board heard only the reprisal complaint.
[38] Once Mr. McNaught filed his reprisal complaint with the Board pursuant to s. 50(2), the Board was required, by virtue of s. 50(1), to determine whether the TTC had wrongly dismissed Mr. McNaught because of actions that Mr. McNaught had taken, as a member of the JHSC, seeking the enforcement of the OHSA. The Board had to make a factual determination as to whether Mr. McNaught had been terminated on February 1 or on February 25. Mr. McNaught maintained that termination occurred on February 1, 2000. The TTC maintained, on the other hand, that it terminated Mr. McNaught's employment on February 25, 2000 and that the termination was based, in part, on Mr. McNaught's actions on February 18, 2000.
[39] Both Mr. McNaught and the TTC had the right to present their cases to the Board in the reprisal proceedings. The TTC was entitled to call its evidence in its entirety, as was Mr. McNaught. Given the TTC's position, Mr. McNaught's conduct of February 18 was germane to the reprisal complaint; it was direct evidence in support of his dismissal and would have been adduced by the TTC. Thus, that evidence would have been before the Board even if the s. 13 motion had not been heard together with the reprisal complaint.
[40] Moreover, the evidence relating to the events of February 18 would have been before the Board because of the Board's discretion under s. 50(7). If the Board finds that an employee has been dismissed for cause, s. 50(7) empowers the Board to substitute a penalty for discharge that "seems just and reasonable in [all] the circumstances". Even if the Board had found that Mr. McNaught had been terminated on February 1, the TTC was entitled to lead evidence of Mr. McNaught's actions on February 18 as, arguably, it was relevant to the Board's exercise of discretion under s. 50(7).
[41] It was not the Board's decision to consolidate the hearings that caused the evidence of Mr. McNaught's conduct on February 18 to be before the Board on the reprisal complaint. Consolidation meant only that the same vice-chair who heard the evidence [page290] about what occurred on February 18 would determine also whether a prima facie case had been made out on the s. 13 motion and, if so, whether to exercise her discretion to state a case to the Divisional Court.
Proceedings pursuant to [s. 13](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html#sec13_smooth) of the [SPPA](https://www.canlii.org/en/on/laws/stat/rso-1990-c-s22/latest/rso-1990-c-s22.html)
[42] In my view, the Divisional Court made a number of errors flowing from a misapprehension of the operation of s. 13 of the SPPA.
[43] Section 13(1) of the SPPA provides:
13(1) Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or
(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or
(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,
the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.
[44] Proceedings pursuant to s. 13 of the SPPA have two stages. The first stage takes place before the tribunal, which in this case is the Board. The goal of the first stage is for the Board to determine whether a case ought to be stated to the Divisional Court. In making this determination, the Board must decide whether a prima facie case has been made out that conduct described in s. 13 occurred. If it determines that a prima facie case is established, it must decide whether to state a case to the Divisional Court. If it chooses to state a case, the matter proceeds to the second stage.
[45] It can be seen that the Board's jurisdiction at the first stage is limited to deciding, within the context of its overall statutory mandate, whether to state a case to the Divisional Court. Section 13 does not confer on the Board the power to adjudicate the issue of contempt. In the s. 13 proceeding before the Board, [page291] Mr. McNaught was not in the position of a person who has been cited for, or charged with, contempt.
[46] The proceedings at the second stage take place before the Divisional Court. It is the Divisional Court that must determine whether to punish a person in like manner as if the person had been guilty of contempt of court. The Divisional Court must make findings of fact and determine whether to make a finding of guilt; in so doing, it must give the affected person the opportunity to be heard. See R. v. Yanover (1974), 1974 812 (ON CA), 6 O.R. (2d) 478, 53 D.L.R. (3d) 241 (C.A.), at p. 483 O.R.
[47] When a judge is in the position of citing a person for contempt, that judge also determines whether the contempt occurred and, if so, the appropriate punishment. Section 13 of the SPPA divides those functions between the Board and the Divisional Court. The Board's role is limited to determining whether a prima facie case has been made out that contravention occurred and, if so, whether to state a case to the Divisional Court. It is the Divisional Court that conducts the "trial" and sentences.
[48] A separation of the prima facie finding of contemptuous behaviour and the trial ensures that the alleged contemnor has full access to his or her rights before any finding of or punishment for contempt. For example, s. 14 of the SPPA affords the affected person an important protection if the matter goes to the Divisional Court. Section 14 provides that if the person testified before the Board, any testimony given at the Board cannot be used against the person in the Divisional Court.
[49] Thus, the Divisional Court was in error in para. 31 of its decision when it found that in the hearing before the Board, Mr. McNaught was "in a position analogous to that of a person cited for contempt who is entitled, because he/she is charged with a criminal offence, to the protection of s. 11 of the Charter". A s. 13 motion to the Board to state a case for contempt is not a criminal proceeding. A person is in the position of having been charged with a criminal offence only at the second stage of proceedings under s. 13, that is, when the matter is before the Divisional Court. At that point, the stated case is akin to an information as it provides the basis upon which the person is to be tried by the Divisional Court. See R. v. Yanover at p. 483 O.R. Prior to the stated case going to the Divisional Court, the person has not been charged with a criminal offence nor does the person face true penal consequences.
[50] The Divisional Court was in error also when it found that s. 13 proceedings before the Board put the person in a position of being "pitted" against the Board. The Board has no stake in the outcome of the first stage of a s. 13 motion. Its role, as in human rights complaints, is that of a disinterested arbiter without a [page292] "stake" in the outcome. See Pritchard v. Ontario (Human Rights Commission), 2004 SCC 31, [2004] 1 S.C.R. 809, [2004] S.C.J. No. 16, at para. 22.
[51] Further, even if the Board drew an adverse inference from Mr. McNaught's failure to testify, the Divisional Court was in error in concluding that that contributed to an unfair hearing in relation to the reprisal complaint. As already noted, the TTC was entitled to call evidence of events that occurred after February 1, 2000 in relation to the reprisal complaint even if the s. 13 motion had not been consolidated with the reprisal complaint. At least in relation to the reprisal complaint proceeding, the Board was entitled to apply the ordinary rules of evidence and to draw legitimate inferences from the evidence that it heard. It was entitled to accept the largely uncontradicted evidence of the TTC witnesses, evidence that in many instances only Mr. McNaught could have contradicted. There was nothing improper in the Board finding that there was no evidence to support the version of facts put forward by Mr. McNaught's counsel and in accepting the "cogent and credible" evidence of the TTC witnesses.
[52] Finally, the Divisional Court failed to note that before the Board, prior to his closing submissions, Mr. McNaught did not raise any issue concerning the possible impact of consolidating the proceedings on his decision to testify. Accordingly, when making the decision to consolidate, the Board did not have the opportunity to consider: (i) whether procedural differences between the reprisal complaint hearing and the s. 13 motion could affect Mr. McNaught in a manner that was unfair; (ii) if they did, whether procedural accommodations could be made to offset the unfairness; and (iii) whether the level of unfairness outweighed the factors favouring consolidation. In these circumstances, I am not persuaded that consolidation resulted in any unfairness.
[53] The respondent asks that this court find that the consolidation was improper on an alternative basis, namely, that consolidation resulted in a contravention of Mr. McNaught's s. 11(c) Canadian Charter of Rights and Freedoms right not to be compelled to be a witness in proceedings against him. The Divisional Court found it unnecessary to decide this matter. In any event, the issue can be dealt with summarily as, in my view, s. 11 of the Charter is inapplicable in this case.
[54] As explained above, in the first stage of proceedings in a s. 13 motion, a person in Mr. McNaught's position is not "charged with an offence". Stage 1 proceedings are not, by their nature, criminal proceedings and facing a possible stated case does not amount to facing a true penal consequence. Thus, s. 11 of the Charter has no application to the s. 13 proceedings before the Board. See R. v. Wigglesworth, 1987 41 (SCC), [1987] 2 S.C.R. 541, [1987] S.C.J. No. 71.
The Board's power to consolidate [page293]
[55] Mr. McNaught contends for the first time on this appeal that s. 9.1 of the SPPA applies to the proceedings, that the usual procedural provisions governing the Board did not apply and thus, in the absence of consent of the parties to have the matters heard together, the Board lacked the power to consolidate the proceedings. In short, he submits that the Board was not entitled to rely on either s. 110(16) of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A [See Note 1 at the end of the document], which gives the Board the right to determine its own practice and procedure nor Rule 58 of the Ontario Labour Relations Board Rules of Procedure [See Note 2 at the end of the document], enacted under s. 110(17) of the Labour Relations Act, 1995, which explicitly empowers the Board to consolidate cases.
[56] The TTC argues that this court ought to decline to deal with this submission because it was not raised below, either at the Board or before the Divisional Court. I agree.
[57] As this court has repeatedly stated, new issues should not be raised on appeal unless the party seeking to raise the new issue demonstrates that the interests of justice require it. See, for example, Wasauksing First Nation v. Wasausink Lands Inc., 2004 15484 (ON CA), [2004] O.J. No. 810, 184 O.A.C. 84 (C.A.). No reason for the failure to raise this issue in a timely fashion was advanced. There is no apparent reason why the respondent could not have made the argument in the earlier proceedings. This is not a case where such an important procedural question can be properly resolved without a full exploration of the issue before the Board and the court below. This issue significantly changes the landscape of the litigation calling into question longstanding Board powers that we have been advised are frequently used by the Board.
[58] Accordingly, I would decline to decide the respondent's submission that s. 9.1 of the SPPA prevails and that the consolidation of the two matters, without Mr. McNaught's consent, was improper.
Conclusion
[59] It is trite law that a duty of fairness applies to any Board decision that affects the rights, privileges or interests of a party to the hearing. See Baker v. Canada (Minister of Citizenship and Immigration), 1999 699 (SCC), [1999] 2 S.C.R. 817, [1999] S.C.J. No. 39. [page294]
[60] At the same time, it is equally clear that courts are not to interfere with the Board's procedural decisions, so long as they comply with the rules of fairness, unless they are shown to be patently unreasonable. See Prassad v. Canada (Minister of Employment and Immigration), 1989 131 (SCC), [1989] 1 S.C.R. 560, [1989] S.C.J. No. 25. The words of Arnup J.A., speaking on behalf of this court in Re Cedarvale Tree Services Ltd. and Labourers' International Union of North America, Local 183, 1971 341 (ON CA), [1971] 3 O.R. 832, 22 D.L.R. (3d) 40 (C.A.), at p. 841 O.R., pp. 49 and 50 D.L.R. apply with equal vigour today:
It is clear to me that under the Labour Relations Act the Board is master of its own house not only as to all questions of fact and law falling within the ambit of the jurisdiction conferred upon it by the Act, but with respect to all questions of procedure when acting within that jurisdiction. . . .
The Board has been entrusted with very wide powers in the labour relations field, and so long as it acts within the ambit of its jurisdiction, it is for the Board itself to decide how it shall proceed.
[61] I see no basis upon which it could be maintained that the Board decision to consolidate the two proceedings was unreasonable. The Board gave careful consideration to the question of consolidation on several occasions and determined that there was sufficient overlap in the issues and evidence to be adduced that the matters would be most thoroughly, efficiently and fairly dealt with if heard together. It is clear that there was a factual connection between the two matters hinging upon whether Mr. McNaught had been dismissed on February 1, 2000 or February 25, 2000. If the latter, there would be a direct overlap in the facts as between the reprisal complaint and the contempt motion. If the former, Mr. McNaught's actions on February 18 would arguably be relevant to the exercise of the Board's discretion under s. 50(7). In either case, it cannot be said that the Board decision to consolidate was patently unreasonable. Indeed, it is hard to conceive of how the Board could have fairly decided the matters separately without excessive duplication of evidence and the possibility of inconsistent findings.
[62] And, as has already been explained, in my view the consolidation of the two matters was not a breach of the Board's duty of fairness to Mr. McNaught. Hearing the two matters together did not prejudice Mr. McNaught nor did it result in a denial of his right to a fair hearing.
[63] Accordingly, the appeal is allowed, the order of [the] Divisional Court is set aside and the application for judicial review dismissed. Costs of the appeal to the Divisional Court to the TTC fixed in the agreed upon sum of $5,000. Costs to the TTC of this appeal fixed at $15,000, inclusive of GST and disbursements.
Appeal allowed. [page295]
Notes
Note 1: 110(16) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions.
Note 2: 58. The Board may consolidate or hear any cases together on such terms as it considers advisable.