CITATION: Cambridge Pallet Ltd. v. Pereira, 2022 ONSC 3213
DIVISIONAL COURT FILE NO.: DC-21-187-JR
DATE: 2022-06-03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
K. SWINTON, R.D. GORDON, W. MATHESON JJ.
BETWEEN:
Cambridge Pallet Ltd.
Applicant
– and –
Michael Pereira and Ontario Labour Relations Board
Respondents
Matthew Langer, Counsel for the Applicant
Michael Pereira, acting in person
Aaron Hart/Andrea Bowker, Counsel for the Ontario Labour Relations Board
HEARD at Toronto via Zoom: May 16, 2022
DECISION ON APPLICATION
R.D. GORDON, J.
Overview
[1] This is an application for judicial review of several decisions of the Ontario Labour Relations Board (the “Board”) finding the Applicant engaged in an unlawful reprisal against the Respondent Michael Pereira, contrary to s. 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”). The Board found that the Applicant terminated the Respondent’s employment at least in part because he raised concerns about unsafe working conditions and threatened to contact the Ministry of Labour if his concerns were not addressed.
[2] The Applicant asserts that it was denied procedural fairness by the Board because it was not given an opportunity to call certain witnesses at the hearing on the reprisal issue, and because the Board refused to allow it to provide evidence or make submissions on the issue of remedy after it failed to attend the remedy hearing. The Applicant also asserts that the decisions on reprisal and remedy are unreasonable because they conflict with an earlier decision of an Employment Standards Officer that found the Respondent was not terminated for raising health and safety concerns.
[3] The Applicant seeks an order setting aside the Board’s decisions and dismissing the Respondent’s OHSA application. In the alternative, the Applicant seeks an order remitting the matter to a differently constituted panel of the Board.
Factual Background
[4] The Respondent Michael Pereira was employed by the Applicant Cambridge Pallet Limited (“Cambridge”) as a general labourer at its warehouse in Cambridge, Ontario with a hire date of September 17, 2018.
[5] On April 4, 2019 he was involved in a fight at the workplace with another employee. He was subsequently provided with a Notice of Discipline/Letter of Concern indicating that he had violated the Applicant’s Violence & Harassment in the Workplace Policy and was given a one-day suspension. The notice included a provision indicating that “further issues relating to this matter may result in additional discipline up to and including termination of employment”.
[6] On February 13, 2020 the Respondent was involved in a second workplace altercation with a different employee. He was again provided with a Notice of Discipline/Letter of Concern advising him that he had violated the company’s Violence & Harassment in the Workplace Policy and would be suspended for two days beginning February 14. This notice once again advised that: “Going forward any future incidents will be subject to further disciplinary action up to and including possible termination”. The notice indicated that he was to return to work on his regularly scheduled shift on February 19.
[7] During his suspension Mr. Pereira sent a number of text messages to Cambridge’s operations manager and director, Jorge Meneses indicating that he felt his suspension was not warranted and complaining about unsafe working conditions including black mould, fungi, rodents, and mushrooms on rotting boards. Mr. Pereira advised Mr. Meneses that if the safety concerns were not addressed, he would contact the Ministry of Labour. When Mr. Meneses did not respond to Mr. Pereira’s concerns, he did just that.
[8] In addition, on February 18, 2020 the Respondent filed a claim with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”) seeking compensation for the two days he was suspended without pay.
[9] On February 19, 2020, Mr. Pereira returned to work and was told by Mr. Meneses and Peter Paquette (another director of Cambridge) that things were not working out and they were going to let him go. Mr. Pereira was given severance pay and a termination letter that stated, in part, the following:
This letter is to provide you with official notice that effective immediately your employment at Cambridge Pallet Ltd. has been terminated.
A copy of your Record of Employment will be forwarded to the address you provided. All wages/severance owed will be paid/deposited as per usual payroll.
[10] After his termination the Respondent added to his ESA complaint an allegation that his termination was a reprisal for raising health and safety concerns in the workplace, contrary to s. 74(1) of the ESA.
[11] On May 19, 2020, an Employment Standards Officer denied Mr. Pereira’s ESA claim. He found that Cambridge had satisfied its onus of showing that the termination was not a reprisal under s. 74(1) and found that Mr. Pereira was terminated for “willful misconduct” related to breaches of the company’s violence and harassment policy. The Employment Standards Officer noted that based on the first workplace incident in April 2019, Mr. Pereira “ought to have known that his actions on February 13, 2020 may result in his immediate dismissal.”
[12] The Respondent subsequently filed the current application with the Board alleging his termination was a reprisal contrary to s. 50 of the Occupational Health and Safety Act.
[13] Eventually, the Board issued a Notice of Hearing dated October 21, 2020 for a “Consultation/Hearing” to be held on December 7 via Zoom.
[14] On the hearing date, the Board had before it significant documentation from the Applicant including its investigation reports for the incidents of April 4, 2019 and February 13, 2020, the investigation notes with summaries of the evidence of each person involved in the incident of February 13, 2020 and the notices of discipline provided to Mr. Pereira. The Applicant’s legal representative had also arranged for several witnesses to be in attendance for the hearing by videoconference, including Mr. Meneses, Mr. Paquette, and the other employees involved in the two workplace incidents with the Respondent. At the outset of the hearing all witnesses but Mr. Meneses were placed in breakout rooms at the instance of the Vice-Chair conducting the hearing. Discussion was had. Submissions were made. In the end, no witness gave evidence in relation to either workplace incident or the decision to terminate the Respondent.
[15] On January 14, 2021, Vice-Chair Kitchen issued a decision holding that Cambridge had engaged in an unlawful reprisal contrary to s. 50 of the OHSA (the “Reprisal Decision”).
[16] The Vice-Chair noted several inconsistencies that cast doubt on the reasons provided by Cambridge for dismissing Mr. Pereira: (1) Although Mr. Pereira was found by the Applicant to have threatened another employee with violence on February 13, 2020, Mr. Meneses did not consider the threat serious enough to terminate his employment and instead issued Mr. Pereira a two-day suspension. (2) The Explanation of Notice warned that any future incidents would be subject to future disciplinary action, up to and including possible termination. There were no further incidents prior to the Respondent’s termination. (3) When Mr. Pereira was terminated on February 19, 2020, he was not told that the reason for his dismissal was his violent behaviour – he was simply told that “things were not working out and we are going to let you go.” His termination letter did not indicate termination was for cause. (4) Notwithstanding Cambridge’s allegation that he was dismissed for violent behaviour, Mr. Pereira was given severance pay.
[17] The Vice-Chair noted that between February 13 and 19, Mr. Pereira texted Mr. Meneses about health and safety concerns in the workplace and threatened to contact the Ministry of Labour. He also noted that at some point during this same period of time Mr. Pereira’s two-day suspension became a termination of employment. The close connection in time between the exercise of the health and safety right and the adverse consequence gave rise to a “heavy onus” on the employer to prove there was no connection.
[18] The Vice-Chair found Cambridge failed to meet its onus and that Mr. Pereira’s termination was tainted, at least in part, by his expression of concern about unsafe conditions and his threat to contact the Ministry of Labour. The Vice-Chair found Cambridge had engaged in an unlawful reprisal, with the issue of remedy to be dealt with at a later date.
[19] On March 12, 2021, the Registrar of the Board sent a Notice of Video Hearing to the parties with a hearing date of April 12, 2021 to consider the issue of remedy. It is undisputed that both Cambridge and its legal representative received the Notice of Video Hearing. Around the same time, Cambridge took steps toward initiating a judicial review application of the Reprisal Decision.
[20] The remedy hearing was held on April 12, 2021 in accordance with the Notice. Mr. Pereira was present, but no one appeared for Cambridge. The hearing proceeded in Cambridge’s absence. Mr. Pereira gave evidence and made submissions.
[21] On April 28, 2021, having learned of the April 12 hearing, Cambridge’s legal representative sent a letter to the Board requesting that any evidence from the April 12 hearing be struck and that no hearing be rescheduled until after the Divisional Court had issued a decision in its judicial review application. In the alternative, she requested a new hearing so that Cambridge could make submissions.
[22] On May 25, 2021, Vice-Chair Kitchen issued a decision refusing Cambridge’s request to strike the evidence from the April 12, 2021 hearing or set a new hearing date. Vice-Chair Kitchen referred to Information Bulletin No. 14, “Unlawful Reprisal Applications and Referrals Under Section 50 of the Occupational Health and Safety Act,” which states “The hearing is a legal proceeding that will determine the parties’ legal rights. If a party does not attend the hearing, it will go ahead anyway and their rights will be determined in their absence.” There was no dispute that Cambridge received the Notice of Hearing and at no time did it request an adjournment or stay of proceedings. The Vice-Chair noted that an application for judicial review does not automatically result in a stay of proceedings.
[23] In a decision dated May 27, 2021, Vice-Chair Kitchen awarded Mr. Pereira the following:
(a) $45,287.55 for loss of earnings (63 weeks at an average weekly wage of $718.85)
(b) $2,875.40 for loss of reasonable expectation of continued employment (four weeks’ pay)
(c) $1,500 for pain and suffering
(d) $849.14 in pre-judgment interest
(e) Interest on the amounts awarded for pain and suffering and loss of reasonable expectation of continued employment at the applicable post- judgment interest rate of 2%.
[24] The Applicant requested reconsideration of the Reprisal Decision and the Remedy Decision. Both were dismissed.
Jurisdiction
[25] This court has jurisdiction over this application pursuant to subsections 2(1) and 6(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1.
Standard of Review
[26] The standard of review respecting the merits of the decision is reasonableness. The hallmarks of reasonableness are transparency, intelligibility, and justification. The decision must be internally coherent, follow a rational chain of analysis that discloses no logical fallacy, and the conclusion must be justified in terms of the facts and law before the Board [see Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65].
[27] In addressing issues of procedural fairness, no standard of review analysis is necessary. Instead, the court must conduct an assessment of the procedures and safeguards required in the particular situation and determine whether an appropriate level of procedural fairness was accorded by the Board [Baker v. Canada (Minister of Citizenship and Immigration, 1999 699 (SCC), [1999] 2 S.C.R. 817].
Analysis
Denial of Witnesses at the Consultation
[28] Section 50(4.1) of the OHSA permits the Board to make rules under section 110(18) of the Labour Relations Act, 1995 to expedite proceedings involving unfair reprisal complaints made under s. 50 of the OHSA. Rule 41.2 of the Board’s Rules of Procedure provides the Board’s authority to conduct a consultation and to otherwise expedite proceedings.
[29] Rule 41.3 of the Board’s Rules of Procedure provides as follows:
Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations matters, the Board may decide an application by limiting the parties’ opportunities to present their evidence or to make their submissions, or without a hearing.
[30] The Applicant submits that the Board did not provide a reasonable and meaningful opportunity to present relevant facts required for the Board to make a procedurally fair decision pursuant to the section 50 Reprisal Application.
[31] There is a factual dispute as to whether or not the Applicant was denied the right to call witnesses at the consultation. Mr. Meneses has sworn an affidavit in which he states that witnesses, and in particular Mr. Paquette, were “not given an opportunity” to provide evidence. However, in the reconsideration decision of the Board dated February 17, 2021 the Board held that “Cambridge Pallet had every opportunity to present to the Board Mr. Paquette’s explanation concerning the reasons for Pereira’s dismissal but did not seek an opportunity to do so”.
[32] Even if we were to accept the version of events provided by the Applicant, we are not persuaded there was procedural unfairness.
[33] The Board had before it substantial documentary evidence outlining the Respondent’s disciplinary record with the Applicant including investigative reports, notes of what participants and witnesses said, and the discipline imposed. It heard full submissions from the Applicant’s legal representative and from Mr. Meneses, a Director of the Applicant and co-author (with Mr. Paquette) of the letter given to Mr. Pereira terminating his employment.
[34] The Applicant had a full opportunity to put its position before the Board.
[35] The Applicant also argued that it had a legitimate expectation that it would be provided an opportunity to call witnesses at the Reprisal Hearing. The doctrine of legitimate expectations is based on the principle that the circumstances affecting procedural fairness take into account the promises or regular practices of the administrative decision-maker, and that it will generally be unfair for it to act in contravention of representations as to procedure, or to backtrack on substantive promises without according significant procedural rights. See Baker, supra, at para. [26].
[36] In this instance the Board did not make promises that give rise to the alleged legitimate expectations. In addition to its authority to conduct a consultation and expedite proceedings as noted above, its Information Bulletin #14 is specific in setting out what parties may expect in a consultation conducted into a reprisal complaint under s. 50 of the OHSA:
A consultation is different from a hearing. A consultation is meant to be more informal and less costly to the parties than a hearing, and the Vice-Chair plays a much more active role in a consultation than in a hearing. The goal of a consultation is to allow the Vice-Chair to expeditiously focus in on the issues in dispute and determine whether an employee’s statutory rights have been violated.
While the precise format of a consultation varies depending on the nature of the case and the approach of the individual adjudicators, there are some universal features. To draw out the facts and arguments necessary to decide whether the unlawful reprisal provision has been violated, the Vice-Chair may: 1) question the parties and their representatives, 2) express views, 3) define or re-define the issues, and 4) make determinations as to what matters are agreed to or are in dispute. The giving of evidence under oath and the cross examination of witnesses are normally not part of a consultation, and when they are, it is only with respect to those matters that are defined by the Board.
The Board conducted the consultation in accordance with its rules and the information bulletin.
Refusal to Allow Evidence or Submissions on Remedy
[37] The Applicant and its legal representative were given written notice of the hearing to determine remedy. They failed to file any documents and failed to attend. No request for an adjournment was made.
[38] Rule 38.6 of the Board’s Rules of Procedure provides as follows:
Where any person has been notified of a hearing or consultation in the way required by these Rules and fails to attend (in the case of an oral hearing or consultation) or to participate (in the case of a written or electronic hearing), the Board may decide the application without further notice to that person and without considering any document filed by that person.
[39] In addition, the Response form A-54 filed by the Applicant directed it to review Information Bulletin No. 14, which contains the following explicit warning:
The hearing is a legal proceeding that will determine the parties’ legal rights. If a party does not attend the hearing it will go ahead anyway and their rights will be determined in their absence.
[40] Clearly, the Applicant was or ought to have been aware of the consequences of its failure to attend the hearing/consultation on remedy. By design or neglect it did not appear. The refusal of the Board to thereafter disregard the evidence it had heard, schedule a new hearing, or accept written submissions from the Applicant does not, in these circumstances, amount to procedural unfairness.
Failing to Consider Relevant Evidence
[41] In the Respondent’s application under the ESA the Employment Standards Officer found that Mr. Pereira was dismissed for violations of the Workplace Violence and Harassment Policy of the Applicant, not for threatening to report workplace health and safety issues. The Applicant submits that the Board’s failure to properly grapple with this decision and its disregard of evidence of the workplace incidents involving the Respondent renders its decision unreasonable.
[42] Although the Board did not address the findings of the ESA Officer in its initial reprisal decision, it did consider the issue on its reconsideration. It held that a determination by an Employment Standards Officer that there was not a contravention of the ESA is not a determination under the Occupational Health and Safety Act (“OHSA”). I agree.
[43] Section 74 of the ESA provides that no employer shall intimidate, dismiss or otherwise penalize or threaten to penalize an employee for exercising any of its rights under that Act. There is no authority or jurisdiction under the ESA to determine the issue of reprisal under the OHSA. As stated in Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 at para. 51, an administrative decision which is made without jurisdiction from the outset cannot form the basis of an estoppel.
[44] Furthermore, it is clear that the Board was well aware of and gave full consideration to the two incidents of workplace violence. However, it found that that the discipline imposed as a result of those incidents were short suspensions and not termination of employment. Given that the discipline notices given to Mr. Pereira were specific in this regard that finding is hardly surprising.
[45] There being no other incidents involving Mr. Pereira after February 13, the Board’s conclusion that termination of his employment was related at least in part to his occupation health and safety complaints was, in my view, reasonable.
Conclusion
[46] The Application for judicial review is dismissed. In accordance with the submissions of the parties, there shall be no costs.
R.D. Gordon J.
I agree _______________________________
K. Swinton J.
I agree _______________________________
W. Matheson J.
Released: June 3, 2022
CITATION: Cambridge Pallet Ltd. v. Pereira, 2022 ONSC 3213
DIVISIONAL COURT FILE NO.: DC-21-187-JR
DATE: 2022-06-03
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
K. SWINTON, R.D. GORDON, W. MATHESON JJ.
BETWEEN:
Cambridge Pallet Ltd.
Applicant
– and –
Michael Pereira, Ontario Labour Relations Board
Respondents
DECISION ON APPLICATION
Released: June 3, 2022