CITATION: AWC Manufacturing LP v. Larocke, 2021 ONSC 7357
DIVISIONAL COURT FILE NO.: 304/21
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Emery and Mew JJ.
B E T W E E N:
AWC MANUFACTURING LP
Justin Hempel and Laura Buck, for the
Applicant
Applicant
- and -
AARON LAROCKE, DIRECTOR OF
Mr. Larocke, in person
EMPLOYMENT STANDARDS and
ONTARIO LABOUR RELATIONS BOARD
Evan Schiller, for the Director of Employment
Standards
Respondents
Aaron Hart, for the Ontario Labour Relations
Board
Heard by video-conference on October 29,
2021, at Hamilton
REASONS FOR DECISION
Emery J.:
[1] This is an application for judicial review brought by an employer, AWC Manufacturing LP, from a decision of the Ontario Labour Relations Board (the “OLRB”), upholding an order of the Director of Employment Standards (the “Director”), requiring AWC to pay statutory termination and severance pay to its former employee, Aaron Larocke.
[2] At the conclusion of the hearing, the court dismissed this application with brief reasons to follow.
[3] AWC terminated Mr. Larocke summarily, purportedly with cause, for his misconduct toward a co-worker, Jonathan MacBeth, on March 22, 2020. This misconduct occurred away from the workplace and outside of work hours, when Mr. Larocke sent text messages and left voicemail messages berating and threatening Mr. MacBeth one evening. In a voicemail message, Mr Larocke went so far as to threaten Mr. MacBeth that he would kill him.
[4] Mr. Larocke had been drinking heavily and was intoxicated at the time he sent or left those messages.
[5] AWC considered Mr Larocke’s misconduct to be a serious breach of its Workplace Violence and Harassment Policy. It considered the misconduct “wilful” and therefore did not pay Mr. Larocke termination or severance pay under the Employment Standards Act, 2000 (the “ESA”). Under sections 2 and 9 respectively, Ontario Regulation 288/01 provides that an employee is not entitled to termination pay or severance pay pursuant to the ESA if the employee was terminated from his employment for “wilful misconduct.”
[6] Mr. Larocke filed a claim with the Director seeking termination pay under s. 61 and severance pay under s. 64 of the ESA.
[7] At first instance, an Employment Standards Officer found that Mr. Larocke was entitled to termination pay and severance pay under the ESA. Since he had been employed at AWC for almost 14 years upon his termination, AWC was ordered to pay Mr. Larocke $24,295.56. The calculation of this amount is not disputed on this application.
[8] AWC applied to the OLRB for a review of the Employment Standards Officer’s decision pursuant to s. 116 of the ESA. For reasons released on March 17, 2021, Vice Chair Kuttner upheld the decision of the Employment Standards Officer (2021 23680 (ON LRB)). AWC seeks judicial review of this decision.
[9] The OLRB decision “is final and binding on the parties” (ESA, s.119(13)). This provision does not prevent this court from “reviewing a decision of the Board.” That said, a decision of the Board concerning interpretation of the ESA “shall not be overturned unless the decision is unreasonable” (ESA, s.119(14)). The jurisdiction for this court to review the OLRB decision is found in s.2(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1, and based on principles of judicial review and ESA, s.119(14), the standard of review in this court from the OLRB decision is reasonableness. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
[10] Counsel for AWC initially submitted that this application involves an important principle of law central to the legal system, attracting a correctness standard of review. However, during oral argument, he conceded that the standard of review is reasonableness. This concession was appropriate. Deciding whether misconduct rises to such a level as to justify non-payment of statutory termination and severance pay is squarely within the mandate and expertise of the OLRB. While the issue could have implications for the common law of employment law, it does not raise the issue to one of central importance to the legal system. It is an issue of statutory interpretation and employment law squarely within the purview of the OLRB.
[11] As interpreted by the OLRB, the phrase “wilful misconduct” should not be understood as a mechanical identification of conduct as “misconduct”, followed by an assessment of whether the employee had an “operating mind” (as that term might be understood in a criminal law context). It involves an assessment of the entire context of the impugned behaviour, including the work and discipline history of the employee, the seriousness of the misconduct, the consequences of the misconduct, and any facts that would tend to explain to attenuate (or exacerbate) the employee’s responsibility for the misconduct.
[12] Here, there is no doubt that the misconduct was serious. There is also no doubt that Mr Larocke had been employed for fourteen years, had no prior material discipline history, was severely intoxicated at the time of the events, and that the offensive communications were made remotely, rather than in person. There is also the fact that the misconduct took place outside work hours and away from the workplace. The issue for the OLRB was not whether the employer was justified in terminating Mr Larocke’s employment, but rather whether the misconduct was so serious and the context such as to render it “wilful misconduct” to deprive Mr Larocke of the termination and severance pay that he would otherwise be entitled to receive as an employee of fourteen years’ tenure.
[13] Upon a review of the decision and the factors considered by Vice Chair Kuttner, I am satisfied that the decision is within a range of reasonable possible results. The findings, and in particular the findings at paragraph 30, were supported by the evidence and are entitled to deference in this court. This case turned on the facts and the OLRB’s interpretation and application of the pertinent provisions of the ESA and its Regulations. When the decision is reviewed on the reasonableness standard, there is no basis for this court to interfere.
[14] For these reasons, the application is dismissed.
[15] As the Director and the OLRB did not ask for costs and as Mr. Larocke did not file any materials, no costs are awarded on this application.
Emery J.
I agree _______________________________
D.L. Corbett J.
I agree _______________________________
Mew J.
Released: November 5, 2021
CITATION: AWC Manufacturing LP v. Larocke, 2021 ONSC 7357
DIVISIONAL COURT FILE NO.: 304/21
DATE: 20211105
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett, Emery and Mew JJ.
BETWEEN:
AWC Manufacturing LP
Applicant
- and -
Aaron Larocke, Director of Employment Standards and Ontario Labour Relations Board
Respondents
REASONS FOr decision
Emery J.
Released: November 5, 2021