CITATION: Carney v. Ontario Labour Relations Board, 2021 ONSC 7590
DIVISIONAL COURT FILE NO.: 110/21
DATE: 20211119
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, D.L. Corbett and Nishikawa JJ.
B E T W E E N:
Kaydian Carney
Ms Carney, self-represented
Applicant
- and -
Ontario Labour Relations Board and
Raquel Chisholm and Neil Dzuba, for the
Peterborough Regional Health Centre
respondent, Peterborough Regional Health
Centre
Aaron Hart, for the respondent, Ontario
Respondents
Labour Relations Board
Heard by ZOOM at Ottawa: Oct. 7, 2021
REASONS FOR DECISION
Aston J.
[1] Kaydian Carney brings this judicial review application to quash the January 13, 2021 decision of the Ontario Labour Relations Board (“the Board”). In her application to the Board she alleged that her former employer, Peterborough Regional Health Centre (“PRHC”) had dismissed her as a reprisal, in violation of s.50 of the Occupational Health and Safety Act, R.S.O. 1990, c.O.1 (“OHSA”). The Board found instead that PRHC had terminated her employment for cause. The court dismissed the application orally on the day of the hearing with these reasons to follow.
[2] The hearing before the Board lasted 25 days. The applicant testified at length and filed 61 exhibits. Eleven witnesses were called by PRHC. The Board’s lengthy decision addressed the evidence in detail. The key determination was the Board’s finding that there was no nexus between the applicant exercising her rights under the OHSA (reporting her concerns about health and safety matters in the workplace) and the termination of her employment.
[3] Before addressing the adequacy of the Board’s treatment of the evidence I will address the applicant’s submission that there was a breach of procedural fairness. She asserts in this court, as she did in her 184 page motion to the Board shortly before the completion of its hearing, that (1) the Vice-Chair, who conducted the hearing and rendered both interim decisions and the final decision, made rulings and comments that raise a reasonable apprehension of bias, (2) the interim decisions denying the applicant production of certain documents were prejudicial to her ability to present her case, and (3) the Vice-Chair ought to have recused himself.
[4] In support of her submission the applicant has identified certain remarks the Vice-Chair made during the course of the hearing before the Board, in the January 20, 2020 ruling denying production of further documents, and in paragraph 27 of the final decision. She also submits that the reasons for refusing recusal are inadequate. I have examined those reasons as well as each of the examples cited by the applicant.
[5] There is a presumption that statutory decision makers are free from bias and, consequently, an onus on the applicant to prove the contrary. I do not doubt the applicant’s sincere belief on the question of bias. However, there is no evidence in this case of actual bias. The test, therefore, is whether a reasonably informed person would objectively perceive an appearance of bias or prejudice. The applicant has failed to meet that test.
[6] The Vice-Chair’s reasons for refusing to recuse himself (paragraphs 10-27 of the Board’s Reasons) are clear and compelling. They stand up to scrutiny.
[7] It is also apparent on the face of the record that the applicant had ample opportunity to prepare and present her case.
[8] I therefore reject the applicant’s submission that there has been a breach of natural justice or procedural fairness.
[9] I turn next to the decision itself, starting with some observations respecting the standard of review. A judicial review is not like a trial. The court does not examine the evidence from a fresh fact-finding perspective. The court does not weigh the evidence to arrive at its own factual conclusions.
[10] The issue for the court is not whether the decision under review is correct. The issue is whether it is reasonable, within the meaning of Canada (Minister of Citizenship and Immigration v. Vavilov, 2019 SCC 65, paras.13, 83, 99 and 100. Decisions of the Ontario Labour Relations Board in reprisal cases are afforded special deference, not only because of the Board’s expertise but because of the strong privative clauses in ss. 114 and 116 of the Labour Relations Act, 1995, S.O. 1995 c.1. Section 50(4) of the OHSA specifies that these privative clauses apply to unfair reprisal complaints.
[11] The applicant’s challenges to the Board’s decision can fairly be described as a “treasure hunt for error”. Vavilov cautions against framing a judicial review in that fashion. The Board is not required to explicitly mention every piece of evidence. It did conduct an extensive review of the evidence at paragraphs 29-176 of the decision, after a helpful preface in paragraph 28. That review of the evidence is easy to follow, especially because of the Observations and Partial Conclusions found in paragraphs 69, 75-77, 87, 105, 115-116, 128, 135, 143, 155, and 176.
[12] In this case the Board explained at length why it preferred PRHC’s evidence over the applicant’s testimony. It explained why there was no causal connection between the applicant’s professed health and safety concerns and the termination of her employment. The Board’s reasons are lucid and logical. There is a clear line of analysis connecting the findings of fact to its ultimate conclusion. The applicant has not identified any flaws or gaps in the Board’s reasoning. She simply disagrees with the findings of fact upon which the decision rests. However, her sincere disagreement with the facts is not enough. She has not established that the Board ignored or misapprehended any evidence that would alter the outcome, or any other basis upon which to find the decision is unreasonable.
[13] I would therefore dismiss the application.
[14] The Board is not seeking costs, but the applicant is to pay Peterborough Regional Health Centre costs, which I would fix in the amount of $4,500, all inclusive.
Aston J.
I agree
D.L. Corbett J.
I agree
nishikawa J.
Released: November 19, 2021
CITATION: Carney v. Ontario Labour Relations Board, 2021 ONSC 7590
DIVISIONAL COURT FILE NO.: 110/21
DATE: 20211116
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, D.L. Corbett and Nishikawa JJ.
BETWEEN:
Kaydian Carney
Applicant
– and –
Ontario Labour Relations Board and
Peterborough Regional Health Centre
Respondents
REASONS FOR DECISION
Aston J.
Released: November 19, 2021