2016 ONSC 3524
DIVISIONAL COURT FILE NO.: 554/15 DATE: 20160530
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
A.C.J.S.C. MARROCCO, R.S.J. MORAWETZ and THORBURN J.
BETWEEN:
COTTON INC.
Applicant
– and –
LABOURER’S INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 837
Respondent
Muneeza Sheikh, for the Applicant
Ryan White, for the Respondent
Leonard Marvy, for the Labour Board
HEARD at Toronto: April 21, 2016
THORBURN J.
REASONS FOR DECISION
OVERVIEW
[1] This is an Application for judicial review of the Ontario Labour Relations Board (“the Board”) decision dated July 10, 2015.
[2] John Semach was an employee of the Applicant. He is a member of the Labourer’s International Union of North America, Local 837 (“the Union”) and was a key inside organizer for the Union. In that capacity, he spoke to co-workers and attempted to collect signed membership cards in favour of the Union. Two days later, his employment was terminated.
[3] The Applicant claims Mr. Semach’s employment was terminated because of his longstanding poor job performance.
[4] On February 25, 2014, the Union sought remedial certification of a bargaining unit in the Applicant’s trucking division on the grounds that Mr. Semach’s dismissal foreclosed the possibility of a vote reflecting the true wishes of the workers. The Union also filed an unfair labour practice complaint alleging that the Applicant had breached ss. 70, 72 and 76 of the Labour Relations Act, R.S.O. 1990, c. L.2 (“the Act”) by dismissing Mr. Semach.
[5] A Notice of Application and Response were filed by the parties.
[6] The Board’s Rules of Procedure provide that each party must file a detailed statement of all material facts including “the circumstances, what happened, when and where it happened and the names of any person said to have acted improperly.” They also provide that unless the Board rules otherwise, no person will be allowed to present evidence about any material fact that was not set out in the Application or Response.
[7] The Board made two interim Orders each of which concerned Mr. Semach’s employment:
a) On March 10, 2014, the Board granted the Union’s request for an interim Order to reinstate Mr. Semach, which was disputed by the Applicant.
b) On August 19, 2014, the Board made a second interim Order denying the Applicant's request to terminate Mr. Semach’s interim employment for wrongful conduct.
[8] Prior to rendering the Orders, the Applicant was asked by the Board to provide evidence of Mr. Semach’s wrongful conduct, and the Board assumed the material filed by the Applicant was correct.
[9] The Board hearing took place over six days and involved seven witnesses (five for the Applicant) and over 337 pages of exhibits. The Board allowed the Applicant to adduce evidence regarding the disciplinary record in Mr. Semach’s personnel file, the Declarations in support of the interim Orders, and the Response to the Notice of Application.
[10] The Applicant was refused permission to adduce additional evidence of Mr. Semach’s alleged wrongful conduct for the first time at the hearing. The Applicant did not seek a written ruling. There is therefore no evidence before this Court as to the reasons and/or what the additional evidence was. (To this day there is no evidence before the Court as to what additional information the Applicant seeks to adduce.)
[11] Notwithstanding this decision by the Board, Mr. Semach’s supervisor, Mr. Ruggi, was asked whether he could provide any other examples of Mr. Semach’s bad behaviour. He was allowed to review all of the documents filed before answering.
[12] On July 10, 2015, the Board certified the Union to represent certain employees of the Applicant. The Board held that the Application did not satisfy its onus of establishing that Mr. Semach’s employment was not terminated because of his role in the Union’s organizing drive, and he was therefore reinstated.
[13] The Applicant claims:
a) there is no logical pathway between the Board’s findings and the evidence adduced;
b) the Board’s decision to refuse to allow the Applicant to adduce further evidence regarding Mr. Semach’s job performance was unreasonable and unfair because that evidence is critical to the determination of whether the Applicant’s employment was terminated because of his union activity or his job performance; and
c) there were inconsistent findings of credibility in assessing the evidence of the Applicant’s and Respondent’s witnesses and repeated failure to weigh and consider key evidence that supports the Applicant’s position.
[14] The Applicant therefore seeks an Order quashing the decision of the Board.
COURT’S JURISDICTION
[15] Subsections 2(1) and (2) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 provide that this Court may quash a decision of a tribunal made in relation to the exercise, refusal to exercise or purported exercise of a statutory power.
STANDARD OF REVIEW OF A DECISION OF THE OLRB
Reasonableness
[16] The standard of review of a specialized tribunal’s decision is reasonableness.[^1] Reasonableness is a deferential standard that “imports respect for the decision-making process of adjudicative bodies with regard to both facts and law”.[^2]
[17] A decision is reasonable when it is justifiable and intelligible, meaning that the basis for the decision has been given, it is understandable and there is some discernible rationality and logic. The reader must be able to understand what the decision maker has done and why. The decision must fall within a range of possible, acceptable outcomes that are defensible in respect of the facts and law.[^3]
[18] While not all evidence needs to be referred to in a decision, the more important the evidence, the greater the obligation to provide reasons for its rejection. Failure to explain the rejection of important evidence seriously affects the reasonableness of a decision.[^4]
[19] Where findings are based upon inference made from the evidence, the reviewing court should examine the evidence that formed the basis for the inference.[^5]
[20] Where a decision depends on credibility assessments, an appellate court, in reviewing the sufficiency of the reasons, must be sensitive to both the advantage the tribunal has over the appellate court when it comes to assessing credibility and the difficulties inherent in articulating reasons for credibility findings.[^6]
[21] There can be more than one reasonable interpretation of legislation or more than one reasonable decision in answer to the question before the decision maker. In McLean v. British Columbia (Securities Commission),[^7] the Court stated, at para. 33:
[T]he resolution of unclear language in an administrative decision maker’s home statute is usually best left to the decision maker. That is so because the choice between multiple reasonable interpretations will often involve policy considerations that we presume the legislature desired the administrative decision maker – not the courts – to make. Indeed, the exercise of that interpretive discretion is part of an administrative decision maker’s “expertise”.
[22] On judicial review on a reasonableness standard, the Court will not reweigh the evidence or substitute its own view of a preferable outcome.[^8] A finding of fact will be reviewed only where there is no evidence to support it.[^9]
[23] Labour boards have a high degree of expertise and experience in a complex and sensitive field. Courts generally cannot equal that expertise and experience. Recognizing this, courts have deferred to the findings of labour boards as they are are usually in the best position to interpret and apply their enabling legislation.[^10]
Procedural Fairness
[24] An issue of procedural fairness does not engage a standard of review analysis. Instead, the court must determine whether the requisite level of procedural fairness has been accorded, taking into account the factors in Baker v. Canada (Minister of Citizenship and Immigration).[^11] These criteria include the following:
a) the context of each case;
b) the nature of the statutory scheme in which the decision arises;
c) the importance of the decision to the individuals affected;
d) the legitimate expectations of the party challenging the decision; and
e) the duty of fairness.
[25] These factors are important to ensure that administrative decisions are made using a fair and open procedure that is appropriate to the decision being made and its statutory, institutional, and social context and that provides an opportunity for those affected by the decision to put forward their views fully and have them considered by the decision maker.
The Burden of Proof
[26] The employer has the burden of proving that its conduct is not tainted by anti-union sentiment. If even a small part of the company’s rationale for the dismissal involved consideration of union activity, a violation is made out.[^12]
[27] Given that an employer will seldom admit that it has acted contrary to the Act and exhibited anti-union animus, the Board must generally rely on circumstantial evidence and draw inferences about the employer’s real motivation from the surrounding circumstances.[^13]
THE ISSUES
[28] The issues on this appeal are as follows:
a) Should the Applicant have been permitted to adduce new evidence regarding Mr. Semach’s job performance for the first time at the hearing?
b) Are the Board’s credibility findings tenable?
c) Are the reasons for the Board’s decision sufficient to show a logical chain of analysis leading to a reasonable result?
THE EVIDENCE BEFORE THE BOARD
Background
[29] The Applicant provides heavy equipment and operators for construction work.
[30] At the time his employment was terminated, John Semach had worked as a tri-axle driver for the Applicant for 16 years. He was one of the Applicant’s most senior drivers.
[31] The Applicant’s trucking division manager testified that the Applicant tended to give more desirable work to the drivers with the most seniority. However, because driving asphalt trucks is an unpleasant experience that most drivers want to avoid, the companies sometimes offer an incentive by giving them priority in scheduling. There was, however, a significant dispute about which categories of drivers were offered work in which order.
[32] It was agreed that in the period leading up to the termination of his employment (November 1, 2013 to February 19, 2014), Mr. Semach worked more shifts than any other driver at the company.
[33] Work schedules for the trucking division were put together by the dispatch office, with the next day’s schedule being posted in the office every evening around 5:00 pm. This schedule was occasionally amended after being posted, in which case drivers were told about the changes.
Mr. Semach’s Union Activities
[34] Mr. Semach made several home visits during the 2014 Family Day long weekend, (Saturday, February 15 to Monday, February 17, 2014) to help convince his fellow workers to support the organizing drive to unionize.
Events Leading up to the Termination of Mr. Semach’s Employment
[35] On Tuesday, February 18, the first day back after the long weekend, Mr. Semach worked a shift driving a dump truck. According to the schedule posted in the Employer’s office that day at 5:00 pm, he was also scheduled to work the following day.
[36] Also on February 18, the Applicant’s supervisor, Mr. Ruggi, had a conversation with the owner of another trucking company. It was agreed that the Applicant would hire some of Mr. Warden’s trucks in the coming days.
[37] On the morning of February 19, a person from the dispatch office called Mr. Semach to inform him that he was no longer scheduled to work that day. It was common for the Applicant to give a reason when a driver was no longer scheduled. No reason was given to Mr. Semach. Mr. Semach became agitated when no reason was provided and told Mr. Ruggi, “That’s bullshit – I want a better reason”.
[38] Mr. Ruggi testified that he informed the Applicant’s owner, Mike Colenari, of the outburst and of his desire to terminate Mr. Semach’s employment given his insubordinate attitude, particularly when viewed in the context of his past disciplinary record. Mr. Colenari agreed. The Applicant also alleged that it was completely unaware of the Union’s organizing campaign.
[39] A termination letter was given to Mr. Semach dated February 18, 2014. The Applicant claims the letter was drafted on February 19 (although the letter is dated February 18). The Applicant claims the date on the letter is an error. The letter also incorrectly notes that Mr. Semach’s last day of work was on “Friday, February 14, 2014” when it was February 18.
PROCEEDINGS BEFORE THE BOARD
Rules Governing Proceedings before the Board
[40] The Rules of Procedure of the Board provide as follows:
2.4 No person will be allowed to present evidence or make any representation at any hearing or consultation about any material fact relied upon which the Board considers was not set out in the Application or response and filed promptly in the way required by these Rules, except with the permission of the Board. If the Board gives such permission, it may do so on such terms as it considers advisable.
5.1 Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
7.5 Any response filed with the Board must include the following details:
(d) where the responding party relies on a version of the facts different from the applicant's, a detailed statement of all material facts on which the responding party relies, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly; (Emphasis added.)
Interim Orders by the Board
[41] In February 2014, the Notice of Application was filed by the Union and a comprehensive Response was filed by the Applicant along with four Declarations. The Applicant’s materials set out the material facts in support of the Applicant’s position as well as the anticipated evidence of four witnesses on behalf of the Applicant.
[42] After the Application for a hearing had been filed and before the hearing commenced, the Union brought an interim request to reinstate Mr. Semach pending a final determination by the Board. On March 10, 2014, the Applicant filed further material in support of its position that Mr. Semach’s employment should be terminated.
[43] On March 10, 2014, Board Member McKellar directed the Applicant to reinstate Mr. Semach’s employment on the same terms that existed prior to his discharge, pending final disposition of the dispute. Mr. Semach was, however, not given any work.
[44] By decision dated April 1, 2014, Board Member Kelly ordered the Applicant to “assign work to Mr. Semach on the same basis that it was assigning him work during the winter season until his termination.” Thereafter, Mr. Semach resumed his shifts with the Applicant.
[45] On August 6 and 8, 2014, the Applicant sought to terminate Mr. Semach’s employment pending a final determination by the Board. The Applicant indicated that there were additional incidents of misconduct on the part of Mr. Semach that it was relying on over and above those listed in the materials already provided.
[46] On September 8, 2014, Board Member McKellar directed the Applicant to file full written particulars of the conduct Mr. Semach was alleged to have engaged in, and how that conduct altered the balance of harm as between the parties if Mr. Semach remained actively employed by the Applicant.
[47] In response to this directive, the Applicant reminded the Board of the incidents on June 4 and July 31, 2014 and provided information about further alleged incidents on April 4, May 9 and July 16, 2014 as further set out below:
- The Applicant alleged that Mr. Semach was involved in an incident on June 4, 2014.
Management representatives went to speak to Semach about the incident. Semach was present on site and was allegedly not wearing a safety vest, contrary to the Applicant policy when an excavator is operating. Semach was issued two written warnings by the Applicant on June 4, 2014.
Management wrote a letter to Mr. Semach in which he was told, “The purpose of this letter is to express our concern for you and to make known the impact of your driving behaviour on June 04, 2014 to the public and this company. We received a phone-in complaint from the public claiming that you exhibited reckless driving behaviour and had cut off other drivers on the road while driving on Highway 406. Upon speaking with you, you confirmed that you were in a lane that was ending and had to merge into another lane. With oncoming traffic, you must yield to right of way drivers and merge safely. Given the complaint and your account of events, we do not find your explanation as to what transpired to be a plausible one and deem your actions not in accordance of safe driving. Aggressive driving behaviour is unacceptable by this company. Aggressive driving, given the size of the vehicle you are operating, could be fatal to other drivers and cause serious damage.
This is not the first time you have been counseled about your driving behaviour. In the past, you have been given a warning for a similar act of aggressive driving and have been asked to administer control.
- In the other alleged incident occurred on July 31, 2014, Mr. Semach was not originally scheduled to work on July 31, 2014, but was called in that morning. The dispatcher did not immediately reach him and was required to make a number of calls. When Semach did come in he was allegedly angry about the late call-in. The dispatcher told him to speak to his manager Joe Ruggi about it, and Semach allegedly said, “Joe won’t fucking do anything about it” or words to that effect. The dispatcher’s 13-year old daughter was present and heard this exchange. The dispatcher reported it to Ruggi.
[48] Information about the latter three incidents was provided by the Applicant with the consent of the Respondent on September 4, 2014:
On April 4, 2014, John Semach failed to “call in” as per the Employer's policy to advise that he had completed a job. Instead, in violation of the Employer's policy, he dispatched himself for another job, which is precisely what dispatch is supposed to do. In short, drivers are not permitted to dispatch themselves on jobs. He then proceeded to come into the office without receiving authorization from dispatch that he was free to do so. When Ms. Pinheiro discussed the issue with him, he became irate and told her that he had been there longer than her, and he did not need her to tell him what to do.
On May 9th, 2014, John Semach attempted to use his truck to pull out a hired truck working at a dump site on Culp Street, in violation of the Employer's policy which specifically precludes drivers from pulling out trucks without calling dispatch as it could result in injury or damage to a hired truck that the Respondent would then be responsible for. The truck belonged to Niagara Haulage.
On July 16, 2014, the Respondent’s largest customer, York Excavating, called to inform that they did not want John Semach on site on any of their jobs as he was a “loud mouth”, a “one-eyed driver” and did not have the ability to take any orders on the site.
[49] The request to terminate Mr. Semach’s employment pending the hearing date was denied by Board Member McKellar for reasons set out in her September 29, 2014 decision.
Findings and Conclusions of the Board
References to Mr. Semach’s Job Performance
[50] The Board heard oral evidence over six days and reviewed approximately 337 pages of exhibits. The Applicant called five witnesses, and the Union called two witnesses, including Mr. Semach.
[51] In the Board’s decision of July 10, 2015, Alternate Chair McLean found that,
The employer justified its decision to terminate Mr. Semach’s employment, in part, on what it viewed as his lengthy history of misconduct. Mr. Ruggi testified that over his first six to seven years at the company he had few problems with Mr. Semach. However, in Mr. Ruggi’s view, after Mr. Semach suffered a serious health issue some years prior, his work attitude changed. Mr. Ruggi testified that after the health issue he “noticed a difference” and “spoke to him on a number of occasions”; he was “constantly engaged in aggressive driving”. There were “numerous” complaints from the public about his driving. He was asked in examination-in-chief to provide examples and he testified about an occasion in Niagara Falls where a member of the public called to complain that he was driving too close to another car. Mr. Ruggi says he counselled Mr. Semach about this and said that if he did it again there would be consequences.
In examination-in-chief he was asked to provide other examples. He could not remember any others and asked to be allowed to look at the documents that had been filed by the company in support of its response to this application. Those documents reveal that in October 2010 a member of the public complained that Mr. Semach had forced two joggers off the road “road rage style”. Management documented the complaint on a health and safety incident investigation report and spoke to Mr. Semach about it. He was told to “smarten up” and to “share the road, especially with pedestrians”.
Mr. Ruggi also gave evidence about another incident where a member of the public complained that Mr. Semach had “scared the crap” out of him in his truck. Mr. Ruggi’s evidence is that he advised Mr. Semach that if he continued to drive in that fashion he would be forced to let him go. That threat to his employment is not reflected in the written document. Mr. Semach denies that he was ever advised that his employment could be terminated.
Mr. Ruggi also testified that there were complaints from a number of contractors that Mr. Semach worked for. The complaints were of the nature that Mr. Semach “always wanted to be in charge”. None of those complaints were specified before me (other than one that occurred after the application) or documented and no contractor was called as a witness.
Mr. Ruggi also testified that Mr. Semach was spoken to about his interaction with another driver. That driver came to Mr. Ruggi because of Mr. Semach’s treatment of him which involved demeaning comments. Mr. Ruggi testified that he counselled Mr. Semach about his treatment of the driver. When asked why there was nothing in writing about this incident Mr. Ruggi said he had a “bad habit” of not putting anything in writing. Mr. Semach does not deny that he was spoken to about his dealings with the driver.
Mr. Ruggi gave no examples of circumstances where Mr. Semach had been “aggressive” in his dealings with him or the company.
Assessment of Credibility
[52] The Board reviewed the following evidence in concluding that the Respondent Union’s evidence was more compelling than the Applicant’s in respect of the key issues: Mr. Semach’s involvement with the Union, the Application’s allegations of Mr. Semach’s wrongful conduct and the behaviour of the Applicant regarding the events that led to the termination of Mr. Semach’s employment:
I also note that there is no dispute that this was the first time in Mr. Semach’s employment with the company that he had been taken off a shift in the morning for a non-weather related reason. The company would have the Board believe that it was just a coincidence that this event occurred – after 15 years of employment – at the time Mr. Semach started union organizing.
Second, Mr. Ruggi’s handling of the situation with Mr. Semach is troubling. It was no surprise that Mr. Semach was upset – Ms. Pinherro had suddenly told Mr. Semach that he was taken off the shift and, contrary to the company’s practice, she could not provide an explanation for the change. Ms. Pinherro referred Mr. Semach’s concerns to Mr. Ruggi. Instead of providing Mr. Semach with an explanation for the cancellation of his shift, which was the company’s practice and as one would have expected in the circumstances, Mr. Ruggi was evasive – asserting management rights rather than explaining what had happened. Further, Mr. Ruggi’s evidence before me about when and how he chose Mr. Semach to be taken off shift was vague and not especially compelling. Given that Mr. Semach had never been removed from a shift for non-weather related reasons, it is surprising that Mr. Ruggi did not appear to have even considered removing another, less senior driver, from their shift. It is particularly surprising given Mr. Ruggi’s commitment to try to get Mr. Semach more shifts.
Third, the evidence of Mr. Semach’s bad behaviour prior to his termination was slim. Mr. Semach was a long term employee. His relationship with Mr. Ruggi was sufficiently sound that Mr. Ruggi had only weeks before agreed to assist him with his financial problems by assigning him more shifts. Now, according to Mr. Ruggi, he was on the verge of termination. Moreover, the company could point to only at most four incidents over fifteen years. These incidents seemed trumped up and, more importantly, were mostly about poor driving and had nothing to do with Mr. Semach’s relationship to Mr. Ruggi. The company did not provide any specific evidence that Mr. Semach had ever “challenged” Mr. Ruggi’s authority. The company did not suggest that Mr. Semach was among the drivers in the company with the most complaints about his driving.
Fourth, there is the issue of the dates. Mr. Recine made two date mistakes – one on the roe and two on the termination letter. His explanation for those mistakes is weak. It is hard to imagine why he would have just guessed that Mr. Semach did not work on the Tuesday when he completed the roe. However, the date on both documents are consistent with a decision to terminate being made the day before.
Fifth, I am also concerned about the evidence Mr. Ruggi gave about his conversation with Mr. Warden. Of course, it is possible he simply forgot the details, but this seems unlikely since the conversation occurred in the context of the termination of a long service employee and that he was required to consider what had happened in order to make a declaration to the Board shortly after the conversation had occurred. Although the conversation with Mr. Warden was not specifically included in Mr. Ruggi’s declaration (filed as part of the company’s response to the interim order application), one would have thought that it would have been in his mind at the time he prepared it as it was part of the context for his explanation for why he discharged Mr. Semach. I note Mr. Warden’s involvement was discussed when he spoke with Mr. Recine prior to Mr. Semach’s termination. The timing of his conversation with Mr. Warden is important. Mr. Ruggi had no explanation for why he had delayed telling dispatch or Mr. Semach of the cancellation of the shift. It is troubling that his evidence was that his decision to cancel Mr. Semach’s shift was made at the end of the day or the next morning given that he had no explanation for why he had not acted earlier. This suggests something occurred after his meeting with Mr. Warden which compelled him to act.
Finally, in assessing the employer’s credibility regarding its explanation for the decision to take away Mr. Semach’s shift and the decision to terminate his employment I take into account the company’s credibility in the other issues in this application, which are discussed below. In this regard, the credibility of Mr. Ruggi specifically, and the company generally, is affected by the claim that following Mr. Semach’s interim reinstatement it had no shifts to give him. It is also affected by the absurd evidence that the creation of a new seniority list – on the day Mr. Semach was to return to work following his interim reinstatement – which created a new category of “Asphalt Tri-Axles” had nothing to do with Mr. Semach’s return to work and the timing was just coincidence.
Reasons for Decision
[53] According to the Board, the Applicant’s explanation for its actions on February 19 lacked credibility and the only realistic explanation was that the cancellation of Mr. Semach’s shift and his subsequent dismissal were both the product of anti-union animus.
[54] In paragraphs 74 and 76, the Board held:
In summary, I have before me a long service employee of the Employer who, at the time he was engaged in union organizing activity, was, for the first time in his employment, removed from work for non-weather related reasons. He was removed in the morning of the day he was supposed to work in circumstances where, on the Employer’s evidence, it would have known that it did not need another driver since approximately 1:00 p.m. the previous day. There is no explanation for the delay in Mr. Ruggi’s decision and, indeed, the Employer’s evidence was shaded to make it appear that it knew it needed to remove a truck driver later. The next morning, rather than explain what had happened, Mr. Ruggi, knowing that Mr. Semach was upset, decided to not give any explanation even when asked for an explanation by Mr. Semach. It should have come as no surprise to him that this upset Mr. Semach more. At the end of the conversation, Mr. Semach swore – but he did not swear at Mr. Ruggi until after he was fired in the course of their second conversation. He simply said this is “bullshit” and that he wanted a better reason for why his shift was taken away. A termination of a 15 year employee in these circumstances seems a surprising result.
I am satisfied that it is more likely than not that on a balance of probabilities the Employer was aware of Mr. Semach’s organizing efforts and, that it acted to thwart those effects by terminating his employment. The Employer has not discharged its onus to demonstrate the termination of Mr. Semach’s employment was free of anti-union animus.
ANALYSIS AND CONCLUSION
Did the Board Fail to Consider Key Evidence?
[55] The second issue raised by the Applicant is whether the Board failed to consider key evidence on critical issues.
[56] The Applicant claims the Board’s conclusion that Mr. Semach’s disciplinary history was “slim” was unreasonable and the Board’s decision to deny the Applicant the ability to adduce new evidence regarding Mr Semach’s disciplinary history at the hearing was in breach of the Applicant’s right to procedural fairness.
[57] As noted above, the content of the duty of procedural fairness depends on the circumstances of the case, the procedural choices available, the legitimate expectations of the parties and the level of deference owed to the tribunal.
[58] The level of deference owed to the specialized tribunal is high. In this case, the information sought to be adduced at the hearing was further evidence of Mr. Semach’s alleged misconduct. Such evidence could be significant to resolving a key issue of whether the Employer satisfied the onus of establishing that Mr. Semach was not dismissed because of his union activities.
[59] However, for the reasons that follow, we disagree that the parties could legitimately expect to introduce new evidence on this issue for the first time at the hearing:
a) The Board’s Rules of Procedure clearly provide that unless the Board orders otherwise, no person will be allowed to present evidence or make representations at the hearing unless they are in the Application or Response to the Application.
b) All parties have known since the beginning of this proceeding that Mr. Semach’s alleged wrongful conduct is a key issue. It was addressed at length in the Response and Declarations filed in response to the Notice of Application.
c) Before rendering the two interim Orders regarding Mr. Semach’s continued employment, the Board asked the Applicant to provide all evidence it had regarding Mr. Semach’s alleged wrongful conduct at work and received further material on the consent of both parties.
d) The Applicant had numerous opportunities before the commencement of the Hearing to file additional material in support of the allegation that Mr. Semach behaved badly.
e) Notwithstanding its knowledge of the Rules of Procedure, awareness that Mr. Semach’s job performance was a key issue and reminders from the Board to file any additional material, the Applicant did not file this evidence before the hearing.
f) Instead, the Applicant asked to introduce new evidence at the hearing.
g) The Board refused the request made at this late stage of the proceeding.
h) The Applicant chose not to disclose what the new information was or why it was not disclosed prior to the hearing and did not ask for a written ruling setting out the reasons for the decision.
i) Because there was no request for a written ruling, the Board was not given the chance to articulate its reasons.
j) Notwithstanding the Board’s order, Mr. Semach’s supervisor was nonetheless permitted to review all of the documentation filed with the Board, Mr. Semach’s personnel file and the Declarations filed by the witnesses for the Applicant, and he was asked whether there were any incidents other than those disclosed in the material that he could remember.[^14] He could not recall any.
[60] After examining the information filed in accordance with the Rules and interim decisions of the Board and hearing the testimony of witnesses, the Board drew reasonable conclusions regarding Mr. Semach’s disciplinary history.
[61] Neither the Board nor this Court was provided with the proposed additional evidence or reasons why the evidence had not been produced earlier.
[62] Given the clear stipulation in the Rules of Procedure, the many opportunities the Applicant had to provide this material and the failure to articulate any exceptional reasons to introduce the evidence at this late stage, there was no legitimate expectation that the parties could and should adduce new evidence on a central issue for the first time at the hearing.
[63] For these reasons, the Board’s decision to deny the Applicant the right to adduce new evidence for the first time at the hearing was not in breach of the Applicant’s right to procedural fairness and it was not unreasonable.
[64] Moreover, we see no merit to the additional claims by the Applicant set out below:
a) Ms. Beroud (a dispatcher with the Applicant’s dispatch office) testified about scheduling. The Applicant submits that the Board only referenced her testimony once (at para. 93 of the Decision).
There is no requirement to refer to specific testimony.
b) Mr. Semach’s termination letter contained two incorrect dates that the Board found to be “consistent with a decision to terminate” being made the day before.
The Board was entitled to draw this conclusion from the letter itself and the circumstances surrounding the termination and prefer this to the testimony of Mr. Recine on behalf of the Applicant.
c) The Board found that because Mr. Semach worked more shifts than any other driver in the months preceding the shift cancellation, something was amiss when he was not given a shift the day before his employment was terminated and he was not told why. The Applicant says it was because they were using trucks from another company.
The Board was entitled to draw this conclusion given the timing of the Union drive, the history of shifts given to Mr. Semach in the past and the company’s practice of advising workers of the reason they were not working if it was not weather related.
d) The Union organizing drive commenced in January 2014, but the Board focused on the events of the Family Day long weekend in February.
This was reasonable as the significant Union drive over the Family Day long weekend took place just before Mr. Semach’s termination.
e) No direct evidence was presented about the Employer’s knowledge of the organizing drive.
The Board relied on the timing of the dismissal and the surrounding circumstances, as it was entitled to do. The Board considered factors such as (i) the small size of the Applicant’s workforce, (ii) the timing of Mr. Semach’s dismissal and (iii) the fact that Mr. Semach had been given more work than other drivers for months and then suddenly, without explanation his shift was cancelled contrary to company practice to draw a reasonable inference that the Employer was aware of Mr. Semach’s involvement with the Union.
f) The Applicant claims the Board ignored key admissions from Mr. Semach’s cross-examination.
Mr. Semach made no admissions regarding the central issue of his job performance. In any event, the court’s role is not to reweigh evidence before the Board.
Are the Board’s Credibility Findings Tenable?
[65] The Applicant claims the Board made “arbitrary and untenable findings of credibility” and “arbitrarily and consistently favoured the evidence of the Union over the Employer and its witnesses”.
[66] We do not agree. The Board made reasonable findings of fact regarding the credibility of the Union’s witnesses that are supported by the Applicant’s work schedules and witnesses who testified on behalf of the Union and are explained in the Decision. The Court should not reweigh the testimony and credibility findings.
[67] We therefore see no merit in this ground of appeal.
Were the Board’s Reasons Sufficient?
[68] The Applicant contends that the Board failed to consider “key evidence on critical issues” and claims there is no logical chain of reasoning that connects the cancellation of Mr. Semach’s shift to his dismissal or that addresses how the Applicant knew about the Union’s organizing drive. The Applicant submits that by not specifically addressing these steps, the Board failed to meet the minimum requirements of procedural fairness.
[69] Sections 70, 72 and 76 of the Act provide that employers shall not interfere with the formation of a trade union and use threats, including threats of dismissal, to intimidate, coerce or compel employees to refrain from supporting a trade union.
[70] Section 96 gives the Board wide discretion to determine whether a contravention of the Act has taken place and to remedy that contravention, including through the reinstatement of discharged employees.
[71] The employer bears the onus of showing that its actions were not tainted by anti-union animus. A failure by the employer to discharge this onus will lead to a finding that the Act has been contravened.
[72] A finding of anti-union animus will taint an employer’s action even where it is not the primary motivation for the employer’s actions, and a finding of anti-union animus is synonymous with a conclusion that the Act has been breached. Where the Act has been breached, the appropriate remedy is remedial certification.[^15]
[73] In this case, there was no direct evidence that the Employer knew Mr. Semach was assisting with the organizing drive to unionize.
[74] However, in lengthy reasons, the Board found that the Applicant knew of Mr. Semach’s Union organizing activities over the Family Day weekend and, as a result, terminated his employment. The Board referred to the following in support of its conclusions:
a) Mr. Semach was a key participant in the Union organizing drive on the Family Day long weekend;
b) the day after his return to work, the Applicant cancelled Mr. Semach’s shift for non-weather related reasons;
c) it was company practice to provide reasons;
d) Mr. Semach was not told why the shift had been cancelled;
e) at the Hearing, Mr. Semach’s supervisor said the shift was cancelled because they were using trucks and truckers from another company, but the Applicant could not remember the conversation with the person from the other company;
f) the Applicant purported to terminate Mr. Semach’s employment after 16 years over a relatively minor matter of swearing after being told his shift had been cancelled without reasons;
g) the Applicant suggested it had been on the verge of firing Mr. Semach before this incident, although the Applicant had been given more shifts than others for months prior to the organizing drive;
h) the date of the termination letter is consistent with a decision to terminate his employment before this incident;
i) the evidence regarding Mr. Semach’s bad behaviour prior to the termination of his employment was considered to be “slim” in the context of his 16-year employment;
j) prior to 2014, Mr. Semach had never been laid off for a lengthy period;
k) after Mr. Semach’s dismissal, he was reinstated by the Board on an interim basis. Notwithstanding this Order, Mr. Semach was given no shifts at all for four months. The Applicant’s reason was the purported creation of a new seniority list on the very day that Mr. Semach was reinstated, a reason the Board found to be “absurd”; and
l) thereafter, the Applicant provided Mr. Semach with shift work only after it was ordered to do so by the Board.
[75] Finally, as noted by the Board at paragraph 62 of its Decision, the presence or lack of “just cause” is not determinative of whether a dismissal is tainted by anti-union animus:
I reiterate that the anti-union motivation need not be the sole reason, or even the predominant reason, for the activity complained of to violate the Act, so long as it is part of the reason. Further, it is not the Board’s place to determine whether there was “just cause” for the employee’s discharge from employment. However, the reasonableness or unreasonableness of the employer’s termination decision may be suggestive of the employer’s true motivations.
[76] Taken together, these factors demonstrate a logical chain of reasoning that is more than sufficient to justify the Board’s conclusion that the Applicant did not satisfy the onus of showing that its actions were not tainted by anti-union animus and that the Act was thereby contravened.
Dismissal of the Appeal
[77] For these reasons, we find that the decision of the Board was reasonable and did not breach the rules of procedural fairness. The Board gave ample reasons for the findings of fact and credibility and fairly assessed the evidence of both parties. There was ample evidence to support its finding that there was a contract and its findings on the terms of the contract and the appropriate measure of damages. The Appeal is therefore dismissed.
Costs
[78] The parties agreed that should the Union be successful on this Application, it should be awarded costs in the amount of $7,000. We so order.
Thorburn J.
Marrocco A.C.J.S.C.
Morawetz R.S.J.
Released: May 30, 2016
2016 ONSC 3524
DIVISIONAL COURT FILE NO.: 554/15 DATE: 20160530
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
A.C.J.S.C. MARROCCO, R.S.J. MORAWETZ and THORBURN J.
BETWEEN:
COTTON INC.
Applicant
– and –
LABOURER’S INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 837
Respondent
REASONS for decision
Thorburn J.
Released: May 30, 2016
[^1]: Newfoundland and Laborador Nurses’ Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, [2011] 3 S.C.R. 708. [^2]: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 48. [^3]: Dunsmuir, at para. 47; Vancouver International Airport Authority v. Public Service Alliance of Canada, 2010 FCA 158, [2011] 4 F.C.R. 425, at para. 17. [^4]: Kulasekaram v. Canadian (Ministre de la Citoyenneté et de l’Immigration), 2013 FC 388, 431 F.T.R. 96 (Eng.), at para. 41. [^5]: Toronto Board of Education v. Ontario Secondary School Teachers’ Federation, District 15, [1997] 1 S.C.R. 487, at para. 48. [^6]: Law Society of Upper Canada v. Neinstein, 2010 ONCA 193, 99 O.R. (3d) 1, at para. 63. [^7]: 2013 SCC 67, [2013] 3 S.C.R. 895. [^8]: Canada (Minister of Citizenship and Immigration) v. Khosa, 2009 SCC 12, [2009] S.C.J. No. 12, at paras. 59-61. [^9]: 142445 Ontario Ltd. v. International Brotherhood of Electrical Workers, Local 636 (2009), 251 O.A.C. 62 (Div. Ct.), at para. 26. [^10]: Royal Oak Mines Inc. v. Canada (Labour Relations Board), [1996] 1 S.C.R. 369, at para 57. [^11]: [1999] 2 S.C.R. 817. [^12]: Pop Shoppe (Toronto) Limited, [1976] OLRB Rep. June 229; United Food and Commercial Workers, Local 206 v. Swiss Chalet Restaurant #1250, OLRB 2953-11-U, at para. 33. [^13]: J. Sousa Contractor Limited, [1988] OLRB Rep. October 1027, at para. 18. [^14]: In oral submissions, the Respondent’s solicitor advised the Court that he does not recall that any other witnesses were told they were not permitted to testify regarding other incidents. He advised that the only issue raised before the attendance in Divisional Court was regarding the Supervisor’s testimony, not the testimony of anyone else. [^15]: Swiss Chalet Restaurant #1250, at para. 33.