The Ontario Labour Relations Board did not err in consolidating and hearing together the reprisal complaint of the Respondent against his former employer at the same time as the employer’s motion for contempt. The Respondent was not denied a fair hearing as a result of both matters being heard together.

Administrative law – Decisions of administrative tribunals – Labour and employment boards – Jurisdiction – Hearings – Consolidation – Contempt – Judicial review – Procedural requirements and fairness – Evidence

McNaught v. Toronto Transit Commission, [2005] O.J. No. 224, Ontario Court of Appeal, January 27, 2005, J.M. Simmons, E.E. Gillese JJ.A. and P.C. Hennessy J. (ad hoc)

The Respondent McNaught worked for the Toronto Transit Commission (“TTC”) for 29 years. On February 1, 2000 the TTC notified McNaught that he was being relieved of his duties effective that day. McNaught was of the view that the notification terminated his employment and on February 3, 2000, he filed a reprisal complaint against the TTC with the Ontario Labour Relations Board (the “Board”). On March 8, 2000, the TTC brought a motion before the Board in which it asked the Board to state a case to the Divisional Court so that the Divisional Court might take steps to punish McNaught for contempt. The contempt motion was based upon McNaught’s alleged disclosure of documents filed by the TTC with the Board in other proceedings and was brought pursuant to the Statutory Powers Procedure Act (the “SPPA”). The TTC then sought the consolidation of the two proceedings; McNaught opposed this request. The Board directed that the two matters be listed together for hearing. The matters were heard together and the Board ultimately dismissed both McNaught’s reprisal complaint and the TTC’s contempt motion. McNaught did not testify at the hearing. McNaught sought judicial review of the Board’s Order. The Divisional Court allowed his application and quashed the Board’s decision, holding that, by consolidating the two proceedings into one hearing, the Board failed to uphold McNaught’s right to a fair hearing in accordance with the principles of fundamental justice. The TTC appealed from the Order of the Divisional Court to the Ontario Court of Appeal.

The Court of Appeal held that the Divisional Court was in error when it concluded that McNaught had been denied a fair hearing. With respect to the reprisal complaint, the Divisional Court erred when considering the evidence that would have been before the Board on that issue. The Divisional Court had found that the Board’s decision to have the two matters heard together caused McNaught to be potentially faced with evidence that could be very prejudicial to his reprisal application, and that requiring him to defend such conduct constituted serious prejudice to him. This potentially prejudicial evidence was alleged to be evidence of McNaught’s conduct on February 18. However, the Court of Appeal held that the Divisional Court erred in overlooking the fact that evidence of McNaught’s conduct on February 18 would have been before the Board had the Board heard only the reprisal complaint. On that issue, the Board had to make a factual determination as to whether McNaught had been terminated on February 1 (as alleged by McNaught) or on February 25 (as alleged by the TTC). Given the TTC’s position, McNaught’s conduct of February 18 was germane to the reprisal complaint. Thus that evidence would have been before the Board even if the contempt motion had not been heard together with the reprisal complaint.

With respect to the contempt motion under section 13 of the SPPA, the court noted that such proceedings had two stages. The first stage takes place before the Tribunal, which in this case was the Board. The goal of the first stage is simply for the Board to determine whether a case ought to be stated to the Divisional Court. In making this determination, the Board must decide whether a prima facie case has been made out that conduct described in section 13 has occurred. If it determined that a prima facie case is established, it must decide whether to state a case to the Divisional Court. The Board’s jurisdiction, therefore, at the first stage, is limited to deciding, within the context of its overall statutory mandate, whether to state a case to the Divisional Court. Section 13 does not confer on the Board the power to adjudicate the issue of contempt. In the section 13 proceeding before the Board, McNaught was not in the position of a person who has been cited for, or charged with, contempt. Thus, the Court of Appeal held that the Divisional Court was in error in its decision when it found that in the hearing before the Board, McNaught was in a position analogous to that of a person cited for contempt who was entitled, because he was charged with a criminal offence, to the protection of section 11 of the Charter. A section 13 motion to the Board to state a case for contempt is not a criminal proceeding. A person is in the position of having been charged with a criminal offence only at the second stage of the proceeding under section 13, that is, when the matter is before the Divisional Court.

The Court of Appeal also held that the Divisional Court failed to note that, before the Board, prior to his closing submissions, McNaught did not raise any issue of concern of the possible impact of consolidating the proceedings on his decision not to testify.

The court held that reviewing courts are not to interfere with the Board’s procedural decisions so long as they comply with the rules of fairness, unless they are shown to be patently unreasonable. The court found no basis upon which it could be maintained that the Board’s decision to consolidate the two proceedings in this case was unreasonable. The Board gave careful consideration to the question of consolidation on several occasions and determined that there was sufficient overlap in the issues and evidence to be adduced that the matters would be most thoroughly, efficiently and fairly dealt with if heard together. It was clear that there was a factual connection between the two matters, hinging upon whether McNaught had been dismissed on February 1 or February 25, 2000. If the latter, there would be a direct overlap in the facts as between the reprisal complaint and the contempt motion. Consolidation of the two matters was not therefore a breach of the Board’s duty of fairness to McNaught and hearing the two matters together did not prejudice McNaught nor did it result in a denial of his right to a fair hearing.

As such, the appeal was allowed, and the order of the Divisional Court was set aside.

To stay current with the new case law and emerging legal issues in this area, subscribe here.