Morin v. Minister of Labour (Ontario), 2022 ONSC 5299
CITATION: Morin v. Minister of Labour (Ontario), 2022 ONSC 5299
DIVISIONAL COURT FILE NO.: DC-2622-20
DATE: 20220927
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Aston, Swinton and Sheard JJ.
BETWEEN:
GUY MORIN
Melynda Layton, for the Applicant
Applicant
– and –
MINISTER OF LABOUR (ONTARIO), DIRECTOR OF EMPLOYMENT STANDARDS, ATTORNEY GENERAL (ONTARIO), HUAWEI TECHNOLOGIES CANADA CO., LTD.
Gráinne McGrath, for the Respondent Director of Employment Standards
Jennifer Birrell and Neil Dzuba, for the Respondent Huawei Technologies Canada Co., Ltd.
Andrea Bowker, for the Ontario Labour Relations Board
Respondents
HEARD at Ottawa (by videoconference): September 15, 2022
Swinton J.
Overview
[1] The applicant seeks judicial review of a decision of the Ontario Labour Relations Board (the “Board”) dated November 4, 2020 that dismissed his complaints of reprisal pursuant to s. 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. O.1 (“OHSA”) and s. 74 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). He argues that the decision respecting reprisal under the ESA was unreasonable, and he was denied procedural fairness in the hearing.
[2] I would dismiss this application for judicial review, as the Board’s reprisal decision was reasonable, and there was no denial of procedural fairness.
Preliminary issue respecting affidavit evidence
[3] The applicant filed an affidavit dated June 7, 2021 in his Application Record. The Director of Employment Standards, the Board and his former employer, Huawei Technologies Canada Co., Ltd., objected that the evidence was not admissible on judicial review. The applicant’s counsel indicated at the hearing that she would not be relying on the affidavit, and no weight has been given to it.
Background Facts
[4] The applicant, an engineer, was employed by Huawei from 2014 until his employment was terminated on October 1, 2018. The letter of termination stated that he was being terminated because of ongoing performance issues. It did not allege cause.
[5] On December 12, 2018, the applicant brought an application pursuant to s. 50 of OHSA alleging that the termination was an unlawful reprisal because he had alleged harassment by Huawei prior to his termination. Subsequently, he brought an application under the ESA alleging reprisal pursuant to s. 74 of the ESA. He claimed that he had been terminated because he exercised his right to personal emergency leave under the ESA on July 11, 12 and 13, 2018. An employment standards officer found that he had been terminated because of performance issues unrelated to taking personal emergency leave under the ESA. The applicant then sought review of that decision by the Board.
[6] After an eleven-day hearing, the Board dismissed both applications. The Board Vice Chair gave detailed reasons explaining why he found that there had been no reprisal under either Act, and he concluded that the only reason for termination was the unsatisfactory work performance of the applicant.
[7] The applicant does not take issue with the finding that there was no reprisal because of the harassment complaint. However, he argues that the decision about reprisal under the ESA was unreasonable on the following bases:
The Board incorrectly and unreasonably interpreted the law respecting personal emergency leave under the ESA.
The Board incorrectly applied the test for finding reprisal under OHSA to determine the issue of reprisal under the ESA.
The Board failed to consider if the performance review letter given to the applicant on July 10, 2018 was a reprisal under the ESA.
The Board erred in finding that the applicant was not entitled to take personal emergency leave under the ESA on July 11, 12 and 13, 2018.
[8] The applicant also argues that he was denied procedural fairness because of two evidentiary rulings: not allowing the applicant to testify about the content of a 2016 phone call he had with Henry Wong because it was hearsay, and excluding his evidence about a conversation with Sheldon Rowsell on the basis of the rule in Browne v. Dunn. In his factum, he also alleged bias on the part of the Board.
The Board’s reprisal decision was reasonable
The standard of review
[9] The standard of review with respect to the decision on the merits is reasonableness.
The Board applied the correct test to determine reprisal
[10] The applicant argues that the Board incorrectly applied the test for finding reprisal under OHSA when determining whether there was a reprisal under the ESA. He takes issue with the Board’s statement that there must be evidence to show, on a balance of probabilities, that there was a nexus or a connection between the adverse consequences suffered by an employee and the exercise or assertion of the employee’s rights under the applicable statute (Reasons, at para. 66). Counsel argued that the test is whether the termination decision was “tainted” by an improper motive of the employer, relying on the Board’s decision in Podobnik v. Society of St. Vincent de Paul Stores (Ottawa) Incorporated, 2016 65109 (ON LRB) at para. 41.
[11] Contrary to the applicant’s submission, the Vice Chair applied the longstanding test applied by the Board to determine whether there has been a reprisal under the OHSA and the ESA. The test, as set out in paragraph 66 of his reasons, is consistent with the test applied in Podobnik. Indeed, the Board in Podobnik stated that the same test is used under both the ESA and OHSA (at paras. 43-44). This makes sense, as both s. 50 of OHSA and s. 74 of the ESA contain the word “because”, thus requiring a nexus, as the Board said in the present case, between an employee’s exercise of rights under the relevant Act and an adverse consequence suffered by the employee.
[12] The Board member in the present case was well aware that an employer might have valid reasons for terminating employment, such as concerns about performance, yet still may be found to have engaged in a reprisal if part of the motivation for termination was the fact that the employee asserted statutory rights (see, for example, Reasons, at paras. 62 and 67).
The Board reasonably concluded that there was no reprisal
[13] The applicant argues that the Board incorrectly and unreasonably interpreted the personal emergency leave provisions of the ESA: first, by restricting the ability of an employee to use the leave to a situation where the employee was providing medical care to parents, and second, by unreasonably finding that the applicant had no right to personal emergency leave on July 11,12, and 13, 2018.
[14] Neither argument has merit. At paragraph 64 of the Reasons, the Board summarized the leave entitlements under Part XIV of the ESA. The Vice Chair referenced Emergency Leave with the following statement in brackets, “(because, among other things, the employee is needed to provide care or assistance to certain relatives, including parents)” (emphasis added). The applicant takes issue with the Board’s failure to make reference to s. 50(1)3 of the ESA, which deals with personal emergency leave to deal with an “urgent matter” involving, among others, parents. There is no merit to this argument because the Board, in this paragraph, was not giving a definitive and restrictive interpretation of the personal emergency leave provisions.
[15] With respect to the second argument, again, there is no merit. First, the Board concluded that there was no reprisal against the applicant because he took personal leave on September 25, 2017. The Vice Chair reached this conclusion after examining an email between the applicant and his then supervisor Sheldon Rowsell dated September 25, 2017, stating (Reasons, at para. 86):
The email from Morin to Rowsell is not the assertion of a right to a leave of absence covered by the ESA – the ESA does not provide for personal days off. On the other hand, Huawei Canada has a policy enabling employees to take three personal days off annually. That appears to be what Morin was doing on September 25, 2017. Putting all that aside, the email does not say what counsel claims it does. Nowhere does Morin claim that he was taking the day off to care for his father.
This was a reasonable conclusion for the Board to make, given the wording of the email.
[16] Second, the Board concluded that the applicant had no right to take personal emergency leave under the ESA on July 11, 12 and 13, 2018. After examining the evidence, the Board stated (Reasons, at para. 56):
As it turns out, Morin was not sick on July 11, 12 or 13, nor did he have any emergency that warranted an emergency leave of absence under the ESA. For example, he was not providing care or assistance to his parents during the company’s normal business hours on July 11, 12 or 13. Rather, he was preparing his rebuttal to the warning letter issued under Rowsell’s signature and preparing his harassment complaint. That is not a basis for claiming emergency leave under the ESA, or any other leave of absence described in Part XIV of the ESA.
Again, the Board could reasonably reach this conclusion based on the evidence.
[17] I turn now to the reasonableness of the Board’s decision that there had been no reprisal. The Board found that Huawei had discharged its onus of proof to show that its decision to terminate the applicant’s employment was not motivated by the applicant’s invocation of the personal emergency leave provisions of the ESA. The Vice Chair carefully examined the evidence and concluded that the decision to terminate was based on continuing poor performance by the applicant. The applicant had been given a formal evaluation in February 2018 in which he received a “C” grade for performance. From February through July, 2018, he refused to follow directives from Mr. Rowsell about setting goals for performance.
[18] On July 10, 2018, Mr. Rowsell and Davide Tonietto, the Director of Highspeed Interfaces Development, met with the applicant and issued a performance letter, requiring improvement in his performance or he would face possible termination of his employment.
[19] In the aftermath of that letter, the applicant entered the company premises late that evening and removed personal items, including a chair and a computer. He also went to the laboratory and detached and removed a frame attached to a lab bench, which he claimed to own. The Board described this conduct and the supervisors’ reaction as follows (Reasons, at para. 78):
Quite understandably, on the morning of July 11, 2018 Rowsell and Tonietto were shocked by the evidence of Morin’s highly unusual workplace visit the night prior. Tonietto in particular was alarmed that Morin had gone into a secure area and removed equipment that Tonietto viewed as belonging to Huawei Canada. He may have been wrong in the conclusion that the frame was the company’s property – I make no finding one way or the other about the frame’s ownership - but his reaction was nevertheless understandable. He and Rowsell viewed the matter as the final straw, and proof positive that Morin was beyond rehabilitation. Tonietto proceeded to cut off Morin’s access to the workplace.
[20] The Board rejected the applicant’s argument that one of the reasons for termination was the applicant’s decision to take personal emergency leave under the ESA on July 11, 12, and 13. On each of those days, the applicant sent an email stating that he was taking personal emergency leave, explicitly referencing the ESA. Pat Sample, the Manager of Human Resources, counselled caution to Mr. Rowsell and Mr. Tonietto in moving ahead with termination while the applicant was on personal emergency leave.
[21] The Board accepted that there was no improper motive or reprisal by Huawei, because neither the taking of personal emergency leave nor the harassment complaint were reasons for the termination. At para. 79 of the Reasons, the Board stated:
Whether Sample truly believed Morin was entitled to a statutory leave of absence or was simply acting out of an abundance of caution in all of the circumstances, it is clear from the facts that Morin had no basis for claiming emergency leave under the ESA, or any other leave of absence described in Part XIV of the ESA. In any event, Sample asked for Tonietto’s and Rowsell’s patience, explaining that the company had to tread cautiously where statutory rights were being claimed. This is behaviour that is entirely inconsistent with counsel for the applicant’s submission that, in reality, Sample was persuaded to support Morin’s termination because, or even partly because, he claimed emergency leave on July 11 and 12, 2018 and/or because he took personal leave in September 2017. And it is also entirely inconsistent with what Sample did on July 13, 2018, when she brought an abrupt halt to the planned termination of Morin after receiving his harassment complaint.
[22] After receiving the harassment complaint, Huawei conducted an investigation of the complaint by hiring a third-party investigator. The applicant was put on paid leave for 11 weeks. Termination occurred on October 1, 2018, following the report from the investigator finding that the allegation of harassment was unfounded. Ultimately, the Board concluded (at para. 83):
I accept Sample’s evidence that, once the investigator concluded there was no substance to Morin’s harassment complaint, the company simply implemented the termination decision it had already taken on July 12, 2018. If anything, the situation was even clearer at that point than it had been on July 12, 2018. In his July 13, 2018 rebuttal to the warning letter, Morin conveyed unequivocally that he did not accept Tonietto’s and Rowsell’s judgment of his performance over the span of the previous 12 months. With that, the employment relationship was rendered officially dysfunctional. There was no credible evidence to suggest that Huawei Canada’s decision to dismiss Morin on October 1, 2018 had anything to do with the filing of Morin’s harassment complaint on July 13, 2018, or his claim to be entitled to a leave of absence under the ESA, and everything to do with Morin’s refusal to accept Rowsell’s assessment of his performance in the Applications Group.
[23] The Board’s rejection of the allegation of reprisal pursuant to s.74 of the ESA was reasonable. The Board carefully examined the evidence and applied the correct test and very logically and clearly explained its findings of fact and conclusions, as well as its reasons for finding the applicant was not a credible witness.
[24] At the hearing before this Court, the applicant made a further argument that the Board erred in failing to consider whether the performance letter provided to him on July 10, 2018 was a reprisal for his having taken personal leave in September 2017. The Board found that the evidence did not establish the leave taken in September 2017 was a leave under the ESA. Moreover, the applicant does not appear to have argued before the Board that this was a separate act of reprisal, as his application was concerned with the termination as an act of reprisal, not the performance letter.
Procedural Fairness
Bias
[25] Bias was raised for the first time before this Court in the applicant’s factum and without any reasonable factual foundation. The statement in the Board’s reasons about the applicant’s father’s illness, which he challenges, does not suggest any bias against the applicant.
The refusal to accept evidence
[26] The applicant also argues that he was denied procedural fairness because of two evidentiary rulings. He argues that these rulings denied him procedural fairness.
[27] The Board held that the applicant’s proposed evidence respecting a telephone call with Mr. Wong, his former supervisor, about Mr. Tonietto’s alleged reaction to a personal leave he took in 2016, was hearsay. I agree. The Board reasonably and, indeed, properly, excluded this evidence.
[28] The Board also excluded evidence about a purported conversation between the applicant and Mr. Rowsell on September 26, 2017 following the personal leave the applicant had taken. The Board held that it would be unfair to allow the applicant to give this evidence because of the applicant’s failure to comply with the rule in Browne v. Dunn. Mr. Rowsell had not been asked about this conversation during cross-examination.
[29] In an interim decision dated March 16, 2020, the Board gave careful reasons explaining why it would be unfair to Huawei to allow the applicant to give this evidence without having put it first to Mr. Rowsell. While the Board could have exercised its discretion to allow this evidence in and allowed Huawei to recall Mr. Rowsell in reply, the Board carefully explained why this was not appropriate nor fair in the circumstances. This too was a reasonable evidentiary ruling.
[30] In my view, these two evidentiary rulings, the reasons for which are succinctly summarized in paragraphs 23 and 24 of the March 16, 2020 decision of the Board, did not deny the applicant the opportunity to fairly present his case, and they did not result in procedural unfairness.
Conclusion
[31] Accordingly, the application for judicial review is dismissed. Costs to Huawei, payable by the applicant, are fixed at $7,500.00 all inclusive. The Director of Employment Standards and the Board do not seek costs.
___________________________ Swinton J.
I agree
Aston J.
I agree
Sheard J.
Date of Release: September 27, 2022
CITATION: Morin v. Minister of Labour (Ontario), 2022 ONSC 5299
DIVISIONAL COURT FILE NO.: DC-2622-20
DATE: 20220927
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Swinton and Sheard JJ.
BETWEEN:
GUY MORIN
Applicant
– and –
MINISTER OF LABOUR (ONTARIO), DIRECTOR OF EMPLOYMENT STANDARDS, ATTORNEY GENERAL (ONTARIO), HUAWEI TECHNOLOGIES CANADA CO., LTD.
Respondents
REASONS FOR JUDGMENT
Swinton J.
Date of Release: September 27, 2022