COURT FILE NO.: 258/07
DATE: 20080728
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE, LEDERMAN AND SWINTON JJ.
B E T W E E N:
DR. OLIVER BAJOR
Self-represented
Applicant
- and -
ONTARIO LABOUR RELATIONS BOARD/MINISTRY OF LABOUR
Respondents
- and -
ARBITRAGE RESEARCH AND TRADING (U.K.) LTD.
Added Party
Voy T. Stelmaszynski, for the Respondent Ontario Labour Relations Board
Judy L. Chan, for the Respondent, Ministry of Labour
Mrs. Lisa Bajor, unrepresented, for the added party Arbitrage Research and Trading (U.K.) Ltd.
HEARD at Toronto: May 29, 2008
BROCKENSHIRE J.:
[1] This was an application for judicial review of a decision of Ian Anderson, vice-chair of the Ontario Labour Relations Board (the OLRB) upholding the refusal of an employment standards officer under the Employment Standards Act, 2000, (the Act), to issue an order to pay wages to the applicant, which decision issued January 25, 2007, and also of a further decision of the said vice-chair issued August 9, 2007, denying the request of Dr. Bajor for reconsideration of his original decision.
[2] The alleged employer named in the original application under the Act was Arbitrage Research and Trading (U.K.) Ltd. (hereinafter ART (UK)). The application for judicial review did not name ART (UK). Counsel for the Ontario Labour Relations Board pointed out that the alleged employer was a proper party to this proceeding, and that Mrs. Lisa Bajor was present in the courtroom. It was not disputed that she was the sole shareholder and director of ART (UK). It was also not disputed that she is Dr. Bajor’s mother. On consent, ART (UK) was added as a party before us and Mrs. Lisa Bajor was invited to and did address the court.
[3] Dr. Bajor (whose doctorate is in mathematics) had made a claim under the Act, alleging that during the period April 2004 to March 2005 he was entitled to be paid by ART (UK) the sum of $41,563.60, but only received $27,387.10, leaving $14,276.50 allegedly due to him. The Act provides a statutory scheme whereby an employment standards officer, after investigating a complaint by a worker, can issue an order requiring the employer to pay unpaid wages up to $10,000. Dr. Bajor followed this course, but the employment standards officer refused to issue the order sought. An appeal lies from that decision to the Ontario Labour Relations Board, which in effect holds a trial de novo before it. As is customary, there was no transcript of the oral evidence, but the vice-chair of the board, who heard the matter, provided reasons, five pages long, for his dismissal of the application. Dr. Bajor objected to that decision and sought reconsideration. The vice-chair provided a further three pages of reasons for denying the application for reconsideration.
[4] As I gather it from the summary of the evidence before him in the written decision of the vice-chair, from the submissions of Dr. Bajor before us, and from the documents filed, Dr. Bajor had been an investment banker in England, who had been instrumental in setting up ART (UK) in England for the purposes of providing educational seminars to other investment bankers by himself and others. He was not an officer or director of ART (UK), but submitted he was an employee, being paid in kind – that is that all of his living expenses were being paid by ART (UK). To accomplish that he had a corporate credit card, and simply charged whatever he wanted to the corporation.
[5] It was clear from his submissions that whatever success the corporation may have had in earlier years, by at least the end of 2003 it was not generating any income. Further, from his submissions, the corporate bookkeeper was fired or left at the end of 2002, and there were no financial records after that. His submission was that he moved to Canada to develop software, and also to write a book, so that the company was not generating revenue in that time, but that did not mean it ceased to be obliged to pay him “in kind”.
[6] Mrs. Lisa Bajor’s side of the story also comes from the reasons below, her submissions before us and the documents, such as they are. She described her son as brilliant, but said that he had worked for a bank in London, England, was fired, sued, lost, and went bankrupt because he could not pay the legal fees. He created ART (UK), with him as the only real employee, being paid “in kind” to provide educational seminars, and it in fact did do some. However that ended in 2002 or 2003, and the company income with it. He continued to charge all of his expenses, including a very expensive London flat, to the company, and she covered the credit card bills personally to a total of something like $150,000, using up her savings. When she could no longer afford that, the company credit card was cut off, the lease on the London flat ended and he left England. She took him into her small two bedroom home in the Toronto area and allowed him to use her personal bank credit card. She let him set up a phone, fax, computer, etc., at her expense, so that he could continue to try to market seminars, but if he tried, he had no success. Although he worked on writing a book, he produced no income, and drew for his expenses on her personal bank credit card. When she could no longer afford that, she cut off the card and put him out of her house. He to some extent corroborates the sad ending, saying he disowned her in 2004.
[7] The relief sought in the application for judicial review was a reversal of the decision below, giving him the order for payment of $10,000 originally requested, failing which an order for a re-hearing “before a body other than the OLRB” and “that the OLRB process be reviewed for systemic and endemic negligence, incompetence, obstruction and highly unreasonable and improper conduct, with a view to impeach those who were guilty of improper conduct…”
[8] The 27 page “main points/outline” filed by Dr. Bajor raised some specific points, which were argued by him before us.
LIBEL
[9] Dr. Bajor raised, as a primary concern, his feeling that the wording of the decision of the vice-chair attacked his character and would damage his reputation. The Supreme Court of Canada in a series of decisions (the most recent being R. v. Walker released by the Supreme Court June 6, 2008) has reiterated the need for judges in trial courts to give adequate reasons for the decisions they render so that the losing party knows why he or she has lost, interested members of the public can satisfy themselves that justice has been done and an appellate court can review the reasons for the decision, among other things. An explanation for a credibility finding, and for other findings, may seem offensive to the loser, but is essential for the above reasons, and for that reason, trial judges and persons such as the vice-chair who are performing a like function are protected from claims of libel or slander.
THE TAX COURT FINDING
[10] In addition to his application to the OLRB, Dr. Bajor also appealed to the Tax Court of Canada from a determination of the Minister of National Revenue that he was not in insurable employment with ART (UK), within the meaning of the Employment Insurance Act, during the period April 4, 2004 to March 30, 2005. Mr. Justice Weisman of the Tax Court of Canada delivered oral reasons in that case on September 24, 2007, the transcript of which was released November 21, 2007, long after the original decision and the reconsideration decision of the vice-chair, now being judicially reviewed. In the case before the Tax Court, there was evidence that in the period from April 4, 2004 to March 30, 2005 ART (UK) paid $3,063.60 for the storage of Dr. Bajor’s goods in England, an average of $255.30 per month. The Tax Court judge concluded that for the purposes of the Employment Insurance Act, while he could not determine whether or not the other items in the alleged payments to him of a total of $27,287.10 were remuneration, at least the $3,063.80 could support an insurable contract of service so that the Minister’s decision that there was no insurable contract of service was set aside.
[11] This particular issue of storage payments was not raised before us, nor apparently before the vice-chair, and in any event would have no direct relationship to the claim before the vice-chair, which was for an alleged balance of $14,276.50 due in payments in kind on account of wages, after credit for the $27,387.10 Dr. Bajor alleged he received.
[12] I accept the submissions of Mr. Stelmaszynski, counsel for the OLRB, that the Tax Court application was for a different purpose and objective, with the provincial Employment Standards Act, 2000 establishing minimum rights and entitlements of all employees within its jurisdiction, while the Employment Insurance Act is federal legislation establishing a benefit conferral program on only those individuals who qualify. Further, the relief sought before the OLRB would have been an order for wages from the corporate respondent. In the Tax Court proceeding the claim was for access to the federal employment insurance benefit program. There were different parties in the two proceedings, the sole respondent in the Tax Court case being the Minister of National Revenue. Therefore even if the Tax Court case had proceeded before the board hearing, the doctrine of issue estoppel would have had no application: Rasanen v. Rosemount Insurance Ltd., [1994] O.J. No. 200 (C.A.). Further, it is evident from the Tax Court decision that the judge there heard different evidence from both Dr. Bajor and Mrs. Lisa Bajor than was heard before the board.
[13] The vice-chair was required to make findings of fact on the evidence that was before him. He did so. There is no way in law that he, or for that matter this panel, could apply the decision of the Tax Court judge, in an entirely different court application, under a different statute, seeking a different result, to the claim for allegedly unpaid wages raised in this proceeding. Therefore there would be no point in the OLRB delaying the hearing as scheduled before it so that the proceedings in the Tax Court could be completed first.
THE STANDARD OF REVIEW
[14] Dr. Bajor, in his outline, and in oral argument, urged that the standard should be correctness because he had raised “technical matters” and added that “in any case there is the higher standard of properness”. Counsel for the board submits that the standard is reasonableness.
[15] The Employment Standards Act provides a summary process to require employers to pay wages due to employees up to $10,000. Under the Act, s. 1(1):
“wages” means,
(a) monetary remuneration payable by an employer to an employee under the terms of an employment contract, oral or written, express or implied,
(c) any allowances for room or board under an employment contract or prescribed allowances,
but does not include,
(e) any sums paid as gifts or bonuses that are dependent on the discretion of the employer and that are not related to hours, production or efficiency,
(f) expenses and travelling allowances, …
[16] Therefore, the vice-chair was required to find whether or not there was an employer-employee relationship between Dr. Oliver Bajor and ART (UK) between April 2004 and March 2005, and if so what was the monetary remuneration payable, which could include allowances for room and board but could not include expenses and travelling allowances or sums paid as gifts within the discretion of the employer, not related to hours, production or efficiency. These are all completely dependent on fact findings, and the interpretation of the Act. The standard for review of pure fact findings has always been reasonableness, and counsel for the board reminded us that s. 119 (14) of the Act provides that:
…a decision of the Board concerning the interpretation of this Act shall not be overturned unless the decision is unreasonable.
[17] In addition to s. 119 (14) of the Act, Dunsmuir v. New Brunswick, 2008 SCC 9, in para. 54 points out that reasonableness is often the appropriate standard for reviewing legal or statutory interpretations by an administrative tribunal by saying that:
Deference will usually result where a tribunal is interpreting its own statute or statutes closely connected to its function, with which it will have particular familiarity: …. Deference may also be warranted where an administrative tribunal has developed particular expertise in the application of a general common law or civil law rule in relation to a specific statutory context: …. Adjudication in labour law remains a good example of the relevance of this approach. (Citations omitted)
[18] I do not accept Dr. Bajor’s submission that the standard of review of the two decisions by the vice-chair should be higher than reasonableness.
CREDIBILITY
[19] In my view, essentially the vice-chair had before him a credibility trial as between Dr. Bajor and his mother, and after hearing them both preferred the evidence of Mrs. Lisa Bajor.
[20] It is the duty of a person hearing oral evidence to make findings of credibility, and reviewing courts should give deference to such decisions. Having heard Dr. Bajor and Mrs. Lisa Bajor make submissions before us, as well as having considered the vice-chair’s written reasons, I find no basis for attacking his finding that Dr. Bajor was a most unsatisfactory witness, while accepting the evidence of Mrs. Lisa Bajor.
CONTINUING EMPLOYMENT
[21] The vice-chair found that neither Dr. Bajor’s employment nor any arrangement for ART (UK) to pay him “wages” survived Dr. Bajor’s move to Canada. This would be before April 2004, and an essential part of Dr. Bajor’s case was that the employment arrangement and the “wage” arrangement continued through to March of 2005. The vice-chair, in para. 13 of his first decision, relied upon a letter dated May 15, 2004, which he found Dr. Bajor had composed, which referred to ART (UK) as being in a “quasi dormant state”, and refers to Dr. Bajor, as a “quasi staff member” of ART (UK), while being a principal and director of some related but independent companies. Dr. Bajor, in his submissions before us pointed to a corporate structure outline for ART (UK) found at page 86 of the application record, indicating that while ART (UK) had been set up to provide seminars, several other related companies had been set up for different purposes, such as creating software, and eventually setting up a hedge fund. Dr. Bajor’s submissions before us were that in Canada he was involved in trying to develop software, and at least looking into the possibility of setting up a hedge fund, as well as writing a book.
[22] The only evidence Dr. Bajor put before the vice-chair of work for ART (UK) in Canada was a copy of a contract for a seminar in 2002, and references in a sale ledger for billing for it, but with no indication of payment ever being received. He found that ART (UK) never had a valid contract to provide a seminar to the supposed client. By Dr. Bajor’s own admission before us, the “line of business” of ART (UK) was giving seminars. From April 2004 to March 2005, if he was working on software programs, or a potential hedge fund, or writing a book, if it was for an employer, it would be for some employer other than ART (UK).
[23] Further, as was admitted and as the documents disclose, the corporate credit card of ART (UK) was cancelled, the lease on the premises used by ART (UK) and occupied by Dr. Bajor in England ended, and he was taken into his mother’s home in the Toronto area, where he had some use of his mother’s personal credit card until she had cut that off. All of that is supportive of Mrs. Lisa Bajor’s evidence and of the vice-chair’s finding that Dr. Bajor was not an employee of ART (UK) from April 2004 to March 2005.
THE MINIMUM WAGE FINDING
[24] Dr. Bajor objected to the alternate finding by the vice-chair, that in any event, Dr. Bajor admitted to receiving over $27,000 in the period in question, and as no wage rate had been proven, that would be well above the minimum wage rate for the year, so that no order could issue against the employer for payment. Dr. Bajor’s objections are two-fold – that this is inconsistent with the evidence, and he had no notice that any suggestion of a minimum wage rate for him would be raised.
[25] Quite simply, success for Dr. Bajor involved two things – proof of employment, and proof of the amount of wages claimed as unpaid. Here, the first part of the decision of the vice-chair dealt with the employment issue. On the second part, the vice-chair found that no wage rate had been admitted or established and therefore simply relied on s. 23 of the Act, which requires an employer to pay employees at least the prescribed minimum wage. Before us, Dr. Bajor failed to point to any evidence, including documentary evidence, that would support his claim that $14,276.50 was due to him. His explanation was simply his allegation that in the previous year he had received $41,563.60, but from April 2004 to March 2005 he received only $27,387.10, so he was owed a further $14,276.50. There was no documentary evidence to which we were led to support the alleged $41,463.60 in the previous year. In view of the lack of evidence on the very important aspect of wages, I would find the decision of the vice-chair to be reasonable, and in accord with the Act.
CONCLUSION
[26] For the foregoing reasons, I would find that the standard of review on this application is reasonableness, and that the findings of the vice-chair, including his findings on credibility, in both his original decision and in the decision on the application for reconsideration are reasonable, as are the conclusions that he drew from such findings. Therefore, this application for judicial review must be dismissed.
BROCKENSHIRE J.
I AGREE ___________________________
LEDERMAN J.
I AGREE ___________________________
SWINTON J.
Date of Release: July 28, 2008
COURT FILE NO.: 258/07
DATE: 20080728
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BROCKENSHIRE J., LEDERMAN AND SWINTON JJ.
B E T W E E N:
DR. OLIVER BAJOR
Applicant
- and –
ONTARIO LABOUR RELATIONS BOARD/MINISTRY OF LABOUR
Respondents
ARBITRAGE RESEARCH AND TRADING (U.K.) LTD.
Added Party
REASONS FOR JUDGMENT
BROCKENSHIRE J.
Date of Release: July 28, 2008