CITATION: A. & F. Di Carlo Construction Inc. v. Saucedo, 2024 ONSC 3945
DIVISIONAL COURT FILE NO.: 657/23 DATE: 20240710
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
SACHS, CORBETT, DAVIES JJ.
BETWEEN:
A. & F. DI CARLO CONSTRUCTION INC.
Applicant
– and –
DARIEL SAUCEDO,
DIRECTOR OF EMPLOYMENT STANDARDS and
ONTARIO LABOUR RELATIONS BOARD
Respondents
Elizabeth McConkey, for the Applicant
Self-Represented Respondent,
Dariel Saucedo
Terry Wong and Sepideh Kamali for the Respondent,
Director of Employment Standards
Aaron Hart, for the Respondent,
Ontario Labour Relations Board
HEARD at Toronto: July 10, 2024
D.L. CORBETT J. (Orally):
[1] The Applicant seeks judicial review of the Ontario Labour Relations Board decision directing the applicant to pay certain wages to its employee, Mr. Saucedo.
[2] The company provides salting and snow plowing services to the City of Toronto. Mr. Saucedo was an employee of the applicant, who resigned his employment on January 13, 2023.
[3] The Board found, as a fact, that:
(a) the parties did not agree that Mr. Saucedo’s terms of employment would include a provision that he would forfeit a month’s worth of standby pay if he declined a single call-in;
(b) Mr. Saucedo agreed to make himself available for both salting and plowing work; and
(c) that Mr. Saucedo declined a call-in for December 24, 2022, and subsequently resigned on January 13, 2023.
[4] These are findings of fact, available on the record below, and we see no basis to interfere with them.
[5] Before us, the Applicant argued:
The Board’s finding of credibility is inconsistent with the Board’s ultimate finding; and
The Board made an unreasonable decision in light of its own findings.
[6] It is axiomatic that a trier of fact may accept some, none or all of a witness’ evidence. We see nothing “inconsistent” in the Board’s acceptance of Mr. Saucedo’s evidence respecting the terms of his contract for call-in, and not accepting other aspects of his testimony.
[7] In respect to the second argument, the employer submitted that the finding that Mr. Saucedo did not believe he was contracted to do salting vitiated the entire call-in arrangement effectively defeating the employment contract. We note that this argument was not made below and was not made in this manner in the factum. We do not accept the argument on its merits, in any event, because a refusal to come in on Christmas Eve (when Mr Saucedo believed he was justified in making the refusal) does not require an inference that he would have refused other, less inconvenient call-ins. This argument was also not made before the Board and the decision below is not unreasonable for failure to consider and make a finding about whether this inference should be drawn.
[8] Mr. Saucedo sought to argue that the Board made certain errors in its findings which, if corrected, would result in an increased award in his favour. We declined to hear those submissions. No cross-application was brought raising these issues, and the written submissions did not address these points.
[9] The application is dismissed.
[10] There will be no order as to costs.
“D. L. Corbett J.”
I agree: “Sachs J.”
I agree: “Davies J.”
Date of Reasons for Judgment: July 10, 2024
Date of Release: July 22, 2024
CITATION: A. & F. Di Carlo Construction Inc. v. Saucedo, 2024 ONSC 3945
DIVISIONAL COURT FILE NO.: 657/23 DATE: 20240710
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
SACHS, CORBETT, DAVIES JJ.
BETWEEN:
A. & F. DI CARLO CONSTRUCTION INC.
Applicant
– and –
DARIEL SAUCEDO,
DIRECTOR OF EMPLOYMENT STANDARDS and
ONTARIO LABOUR RELATIONS BOARD
Respondents
ORAL REASONS FOR JUDGMENT
D.L. CORBETT, J.
Date of Reasons for Judgment: July 10, 2024
Date of Release: July 22, 2024