Court File and Parties
CITATION: Allen v. Eamon Park Housing Cooperative Inc., 2019 ONSC 6868
DIVISIONAL COURT FILE NO.: 18-199
DATE: 20191127
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, BALTMAN, and MYERS JJ.
BETWEEN:
ALICIA R. ALLEN
Applicant
– and –
EAMON PARK HOUSING COOPERATIVE INC. and ONTARIO LABOUR RELATIONS BOARD
Respondents
Alicia R. Allen, in person
Lora Castellucci, for Eamon Park Housing Cooperative Inc.
Aaron Hart, for the Ontario Labour Relations Board
HEARD at Toronto: November 14, 2019
REASONS FOR DECISION
Myers J.:
Background
[1] Ms. Allen seeks judicial review of the decision of the Ontario Labour Relations Board (the “Tribunal”) dated October 10, 2017. Before the Tribunal, Ms. Allen claimed that her former employer Eamon Park imposed disciplinary measures and ultimately dismissed her from her employment in reprisal for her efforts to enforce her rights under the Occupational Health and Safety Act, RSO 1990, c O.1 (the “Act”).
[2] In its decision, the Tribunal dismissed Ms. Allen’s claim. It found that there was no evidence that the employer “was motivated, in whole or in part, by Ms. Allen’s complaint to the Ministry or by any issue raised by Ms. Allen under the Act”.
[3] On December 4, 2017, the Tribunal declined Ms. Allen’s request that it reconsider its decision.
[4] For the reasons that follow, I find that the decisions of the Tribunal under review were reasonable and I would therefore dismiss this application.
[5] Eamon Park is a cooperative housing corporation. It rents units to its members. The business and affairs of the corporation are managed and supervised by a board of directors elected by the members. The board of directors hires management employees to conduct the operations of the co-op.
[6] Ms. Allen worked as the manager at Eamon Park for just over three months - from the end of July to the beginning of November 2016. Under the terms of her written employment contract, she was employed on a probationary basis for the first three months. The contract also provided that Eamon Park could extend Ms. Allen’s probationary term for a further three months if it chose to do so.
[7] On September 21 and 24, 2016, Ms. Allen made complaints to the board of directors’ delegate and to the board of directors, respectively, about alleged mistreatment by an employee of the co-op’s external bookkeeper. This led to meetings among staff members to try to resolve the underlying bookkeeping issues that seemed to be the cause of the inter-personal issues that had arisen.
[8] At the same time, other employees had complained to the board of directors about Ms. Allen’s competence and behaviour.
[9] On October 6, 2016, the board of directors extended Ms. Allen’s probationary period in light of concerns that it had regarding her performance of her employment duties. Ms. Allen points to this as the first reprisal that she says was taken against her by the employer due to her efforts to enforce her entitlement under the Act to an emotionally safe workplace.
[10] On October 14, 2016, Ms. Allen made a formal complaint to the Ministry of Health and Safety in which she alleged that she was being harassed at work. She alleged that she was bullied by the administrative assistant and that she was being harassed by the bookkeeper and by a member of the board of directors. The Ministry issued several orders to Eamon Park requiring it to investigate the allegations and conduct a workplace safety assessment.
[11] In response to the Ministry’s orders, the board of directors retained a lawyer to investigate Ms. Allen’s harassment allegations. It also held a meeting on October 19, 2016 to hear from Ms. Allen directly.
[12] At the meeting on October 19, 2016 the board of directors also decided to conduct an evaluation of Ms. Allen’s performance. Although first proposed on October 6, 2016, the evaluation was postponed when Ms. Allen’s probation was extended. Ms. Allen points to the requirement that she undergo a performance evaluation as another act of reprisal against her.
[13] To conduct the job performance evaluation a member of the board of directors met with Ms. Allen and asked her to complete a questionnaire about the financial procedures at Eamon Park. Ms. Allen refused to complete the questionnaire unless the board member first completed a questionnaire that Ms. Allen had prepared for her. The meeting ended abruptly.
[14] As a result of Ms. Allen’s refusal to participate in her performance evaluation by completing the questionnaire as required, the board of directors terminated Ms. Allen’s employment on November 1, 2017. Ms. Allen says that her termination was a final act of reprisal against her for trying to enforce her workplace rights under the Act.
[15] In March, 2017, the lawyer who had been retained to investigate Ms. Allen’s allegations conducted interviews and delivered a report. The report concluded that Ms. Allen’s allegations were unfounded.
[16] The Legislature has assigned the task of hearing and deciding reprisal complaints under s.50 of the Act to the Tribunal. It held a two-day hearing during which it heard evidence and argument. Both parties were represented by lawyers before the Tribunal.
Jurisdiction
[17] This court has jurisdiction to review the Tribunal’s decisions under s.2(1) of the Judicial Review Procedure Act, RSO 1990, c J.1.
Standard of Review
[18] The Legislature has limited the court’s role in reviewing decisions made by the Tribunal. The standard by which the court assesses decisions of the Tribunal is one of reasonableness. That means that the court will look at decisions to see if the Tribunal provided sufficient justification, transparency, and intelligibility in its decision-making process. The court will consider whether a decision falls within a range of possible, acceptable outcomes which are defensible on the facts of the case and the applicable law: Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47.
[19] This is a very deferential standard of review. In Maystar General Contractors Inc. v. International Union of Painters and Allied Trades, Local 1819, 2008 ONCA 265, Gillese JA described the proper approach in the following way:
The decisions of the Supreme Court of Canada, over the course of many decades, show an unbroken commitment to affording labour relations boards the highest levels of judicial deference on matters within their exclusive jurisdiction. [Emphasis added.]
[20] Moreover, this court confirmed that the deferential, reasonableness standard applies specifically to matters under s.50 of the Act in Lee v Ontario Lottery and Gaming, 2017 ONSC 3745, at para. 4.
[21] Ms. Allen argues that the Tribunal lacks expertise in the housing cooperative sector. She submits that as a result, the court should adopt a stricter correctness standard of review. However, in my view, the reasonableness standard has been directed by the Supreme Court of Canada and remains the law that is binding upon this court.
Analysis
[22] In her factum and orally, Ms. Allen raises a number of arguments. I understand the most significant of her arguments to be the following:
a. The Tribunal erred in its understanding of the chronology. In particular, it did not understand that the employer’s unlawful reprisals were not limited to just the termination of her employment. Ms. Allen submits that the trigger for the reprisals taken against her was not her formal complaint under the Act on October 14, 2016, but her earlier complaints on September 21 and 24, 2016;
b. The Tribunal erred in failing to understand the impact of the fact that the employer is a housing cooperative;
c. The Tribunal erred in reversing the burden of proof under s.50 of the Act;
d. The Tribunal erred by effectively amending Ms. Allen’s employment contract; and
e. The Tribunal erred in its reconsideration decision by refusing to allow Ms. Allen to adduce a witness statement dated October 11, 2017 by board of directors’ member R. Brown;
[23] In response, the employer argues that the decision was reasonably based on the evidence before the Tribunal and the applicable law as found. Therefore, it submits that the court ought to defer to the Tribunal’s findings and dismiss this application.
The Chronology
[24] Ms. Allen submits that the Tribunal erred by starting its analysis only after she made her report to the Ministry on October 14, 2016. She says it treated only her termination as a reprisal when, in fact, she was subjected to unlawful reprisals first by the extension of her probationary period and then by the requirement that she undergo a performance evaluation.
[25] Ms. Allen puts great reliance on the fact that the Tribunal did not set out the date of her complaint to the board of directors. In para. 24 of its decision, the Tribunal introduced the complaint with the phrase “[a]t some point” rather than stating the actual date of September 24, 2016. Ms. Allen submits that the Tribunal’s reasons are insufficient as they do not disclose a proper understanding of the chronology.
[26] In Newfoundland and Labrador Nurses' Union v. Newfoundland and Labrador (Treasury Board), 2011 SCC 62, Abella J discussed the role of reasons as part of the reasonableness analysis as follows:
Reasons may not include all the arguments, statutory provisions, jurisprudence or other details the reviewing judge would have preferred, but that does not impugn the validity of either the reasons or the result under a reasonableness analysis. A decision-maker is not required to make an explicit finding on each constituent element, however subordinate, leading to its final conclusion (Service Employees' International Union, Local No. 333 v. Nipawin District Staff Nurses Assn., 1973 191 (SCC), [1975] 1 S.C.R. 382, at p. 391). In other words, if the reasons allow the reviewing court to understand why the tribunal made its decision and permit it to determine whether the conclusion is within the range of acceptable outcomes, the Dunsmuir criteria are met.
[27] In an application such as this in which the reasonableness standard of review applies, the Tribunal’s findings of fact based on the evidence before it are not subject to minute review. Unless the applicant is able to establish that errors were made that were so pervasive as to undermine the reasonableness of the decision - as that term has already been described - the court will defer to the Tribunal’s findings of fact.
[28] The Tribunal discussed Ms. Allen’s September complaints in paras. 19 through 24 of its reasons. While it did not specify the date of the September 24th complaint, it referred to that complaint expressly in para. 24. The Tribunal then covered the facts leading to the October 6th meeting of the board of directors in paras. 25 through 37. It dealt with the decision to extend Ms. Allen’s probationary period in paras. 38 to 41 and then the decision to require a performance evaluation in paras. 46 through 50 of the reasons.
[29] The Tribunal knew that Ms. Allen made complaints of improper conduct prior to her complaint to the Ministry. It understood and discussed her concerns with the extension of her period of probationary status and the job performance evaluation specifically. The Tribunal did not accept Ms. Allen’s view that these events were reprisals. It accepted the employer’s good faith exercise of its authority in respect of both events. As quoted at the outset of this decision above, the Tribunal found that Eamon Park was not motivated by her complaint to the Ministry “or by any issue raised by Ms. Allen under the Act.” It did not limit its considerations to just the formal complaint to the Ministry and her termination as submitted by Ms. Allen.
[30] The Tribunal’s findings are anchored in the evidence that it recited. I therefore defer to the Tribunal’s findings in this regard.
The Housing Cooperative Setting
[31] Ms. Allen submits that the Tribunal failed to appreciate that housing cooperatives are democratic institutions that are ultimately run by the members. Individuals with representative positions are all accountable and have only their defined roles. She argues that the Tribunal erred in treating employees who appeared as witnesses as being entitled to speak for the co-op. She submitted that only the President or the Vice-President of the co-op can speak for it and neither of them testified.
[32] In fact, the housing co-op form of business is well understood at law. It does not differ in any significant way from a business corporation in respect of the issues raised by Ms. Allen. As witnesses before the Tribunal, individuals do not occupy representative positions. They testify about facts that they personally observed. Formal corporate positions or opinions are generally not admissible evidence. Counsel spoke for the co-op at the hearing to the extent that formal positions were required to be taken. The presence of senior officers as witnesses was not required unless they, as individuals, observed something of significance that counsel wished them to convey to the Tribunal.
The Burden of Proof
[33] Ms. Allen submits that in its assessment of the legal issues, the Tribunal reversed the burden of proof. Under s.50 of the Act, the burden is on the employer to prove that its actions were not, in whole or in part, a reprisal for the employee’s enforcement of her rights.
[34] The Tribunal was alive to the legal burden on the employer and discussed it correctly in paras. 59 to 63 of its reasons. Its conclusions left no doubt that it found that the employer had met its burden.
Ms. Allen’s Contract of Employment
[35] Ms. Allen submits that the Tribunal made legal errors in holding her to a standard of proving to the representative of the board of directors that she can perform bookkeeping duties rather than just supervising the bookkeeper as required under her contract of employment. In addition, she submits that she was not required to undergo a performance evaluation under the terms of her contract.
[36] In my view, the Tribunal did not err. The terms of the contract specified both that Ms. Allen had established job duties and that she was hired for a probationary period at first. Any party to a contract is entitled to inquire as to whether the other party is performing her side of the bargain. Para. 12 of Attachment “C” to her employment contract expressly required Ms. Allen to accept directions emanating from the board of directors. Moreover, absent specific provisions to the contrary, the common law requires employees to obey the reasonable directions of the employer. The board of directors was within its rights to require a performance evaluation.
[37] Furthermore, the Tribunal did not rule that Ms. Allen was required to display bookkeeping skills or to perform as a bookkeeper under her contract of employment. The precise scope of Ms. Allen’s duties could have been an issue for discussion in her performance evaluation. However, when approached by the board of directors’ delegate to discuss her performance, Ms. Allen refused to participate. The Tribunal found:
In this act of defiance, Ms. Allen failed to appreciate that she was a probationary employee who was about to undergo a performance evaluation. It is entirely understandable for the employer to be dissatisfied with Ms. Allen’s performance after this meeting.
[38] The Tribunal’s legal analysis is correct in my view and therefore it follows that it is also reasonable.
The Reconsideration Decision
[39] As part of her request for reconsideration of the Tribunal’s decision, Ms. Allen submitted as fresh evidence a witness statement of a member of the board of directors named Ms. Brown. Ms. Brown attended the hearing before the Tribunal as a possible witness. Ms. Allen submitted that when Ms. Brown heard the evidence given by witnesses from Eamon Park, she had different evidence in response that she has now provided in her witness statement.
[40] The Tribunal found that since Ms. Brown was at the hearing, her evidence was reasonably available to Ms. Allen at the time. Therefore, it was not appropriate to receive the witness statement after the hearing was over. The witness statement did not meet the test of “fresh evidence” that can be admissible in some cases after a hearing has concluded. See: R. v. Palmer, 1979 8 (SCC). In addition, the Tribunal found that Ms. Brown’s witness statement was objectionable on a number of different bases under the law of evidence.
[41] Ms. Allen argues that Ms. Brown’s statement was not reasonably available to her at the hearing because Ms. Brown did not write it until some time later. While that is true, it does not address the real issue. Ms. Allen had a lawyer at the hearing. The lawyer could have put Ms. Brown forward as a witness if the lawyer determined that she had appropriate reply evidence to offer and that it was in Ms. Allen’s interest to do so. So, Ms. Allen could have readily provided Ms. Brown’s admissible evidence to the Tribunal during the hearing. The rule against admitting fresh evidence is one that aims to promote the finality of the decision-making process. The fact that Ms. Brown chose to write a statement sometime after the hearing does not address the question of whether Ms. Brown’s evidence was reasonably available to Ms. Allen before the hearing ended. It was. The Tribunal’s refusal to admit the witness statement for that reason was a reasonable decision. As a result, I do not need to address the other concerns raised by the Tribunal with the proposed fresh evidence.
Outcome
[42] I am satisfied that on the evidence before the Tribunal its decision was justified and its reasoning was both transparent and intelligible. Overall the Tribunal’s decision was well within the range of acceptable outcomes on the facts and applicable law.
[43] Therefore, the application is dismissed.
[44] I encourage the parties to agree on costs on the assumption that the norm in Ontario is that the unsuccessful party will partially indemnify the successful party for the fees and disbursements that it reasonably incurred in defending this proceeding. If the parties are unable to agree, Eamon Park may deliver up to three pages of submissions and its Costs Outline to the Office of the Registrar of the Divisional Court by November 29, 2019. In response, Ms. Allen may then deliver no more than three pages of written submissions and her Costs Outline to the Office of the Registrar of the Divisional Court by December 13, 2019. In addition, the parties may also submit copies of offers to settle that were exchanged on which they rely, if any.
Myers J.
I agree _______________________________
Kiteley J.
I agree _______________________________
Baltman J.
Date of Judgment: November 27, 2019
CITATION: Allen v. Eamon Park Housing Cooperative Inc., 2019 ONSC 6868
DIVISIONAL COURT FILE NO.: 18-199
DATE: 20191127
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
KITELEY, BALTMAN, and MYERS JJ.
BETWEEN:
ALICIA R. ALLEN
Applicant
– and –
EAMON PARK HOUSING COOPERATIVE INC. and ONTARIO LABOUR RELATIONS BOARD
Respondents
REASONS FOR DECISION
Released: November 27, 2019