) ) WEIHUA (MARIE) SHI Applicant – v. –, 2013 ONSC 6984

CITATION : Shi v. Ontario Labour Relations Board, 2013 ONSC 6984 DIVISIONAL COURT FILE NO.: 158/13 DATE: 20131108 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., HIMEL AND J. MACKINNON JJ. BETWEEN: ) ) WEIHUA (MARIE) SHI Applicant – and – ONTARIO LABOUR RELATIONS BOARD, HOLCIM (CANADA) INC. AND DIRECTOR OF EMPLOYMENT STANDARDS Respondents )) )) )) )) ))))))) In Person Kikee Malik , for the Respondent, Director of Employment Standards Frank Cesario and Jacqueline J. Luksha¸ for the Respondent, Holcim (Canada) Inc. Voy T.

Stelmaszynski , for the Respondent, Ontario Labour Relations Board ) ) ) HEARD at Toronto: November 8, 2013 THEN R.S.J. (orally) [ 1 ] Weihua Shi applies for judicial review of two decisions of Vice-Chair Kelly of the Ontario Labour Relations Board (“the Board”). The first decision dated October 5, 2012, assessed damages to be paid by Holcim (Canada) Inc. (“Holcim”) to the applicant for breaches of ss. 22 and 74 of the Employment Standards Act , 2000 , S.O. 2000, c. 41 (“the Act”).

The second decision dated January 28, 2013 denied the applicant’s request for a reconsideration of the amounts ordered in the October ruling, with the exception of one minor change. The applicant asks this court to award additional compensation in damages as well as other relief to her.

Holcim asks that the application be dismissed. [ 2 ] The Director of Employment Standards (“the Director”) submits that the Board’s decision is reasonable but that one aspect of the decision to decline an award for lost pension contributions was unreasonable and that the decision should be quashed on this matter only and that Holcim should be ordered to pay the applicant $2,448.00 for lost pension contributions. [ 3 ] The Board’s representative made submissions with respect to this latter issue but ultimately takes no position on this issue.

Background [ 4 ] The applicant was employed with Holcim as a senior tax analyst for approximately thirteen and a half months. During that time, she made complaints about employees having to work long hours. Her employment was eventually terminated. The applicant filed a complaint alleging that Holcim violated s. 74 of the Act and that she had been fired or terminated for exercising her rights under the Act and asserting that the employer had failed to pay appropriate overtime.

An Employment Standards officer investigated the matter and found no contraventions and decided not to issue an order to pay compensation. [ 5 ] The applicant filed an application for review to the Board. The Board dismissed the application for failure to state a prima facie case of a violation of s. 74. The applicant requested reconsideration of that decision. A different Vice-Chair, Vice-Chair Kelly, decided to rescind the previous order and to proceed with a hearing on the merits. The Board found Holcim violated the reprisal section,

s. 74 and the overtime provision, s. 22(1). Holcim applied for reconsideration which was denied. The Board referred the question of damages to the parties but they were not able to resolve it. The Board reconvened the hearing which lasted two days, heard evidence and arguments on the remedy and made an order for damages which was delivered on October 5, 2012. [ 6 ] The applicant has also launched a complaint with the Human Rights Commission. The Tribunal dismissed the complaint in 2010. The applicant requested a reconsideration which was refused. A second complaint was made in 2012 which was dismissed.

She has recently filed the third complaint. She has also complained to the Financial Services Commission of Ontario regarding improper deductions to her pension. The Legislative Framework [ 7 ] The Employment Standards Act, 2000 , establishes the minimum rights and entitlements of employees who fall within its jurisdiction. There is an expeditious mechanism for an aggrieved employee to seek redress against an employer’s alleged failure to comply with the standards. (See Danyluk v. Ainsworth Technologies Inc., 2001 SCC 44 ). [ 8 ] The legislation is regulatory and remedial.

The Employment Practices Branch has the responsibility for enforcement. An appeal lies from the decision of an Employment Standards Officer to the Board. The Board is to conduct the hearing de novo and may amend, rescind or affirm the order or issue a new order.

Section 74 is the reprisal

section and it imposes on the employer the burden of proving it did not contravene the Act .

Section 104 sets out the authority of the Board to award damages. The heads of damages generally awarded under s. 104 are: (

a) for direct wage loss; (

b) for emotional pain and suffering; (

c) for loss of reasonable expectation of continued employment; and, (

d) for job search out-of-pocket expenses. [ 9 ] The authority under s. 104 is discretionary. Under s. 118(13), a decision of the Board is final and binding on the parties. Subsection 14 provides: “Nothing in subsection 13 prevents a Court from reviewing a decision of the Board under this section, but a decision of the Board concerning the

interpretation of this Act shall not be overturned unless the decision is unreasonable.” The Decision of the Board [ 10 ] The Board noted that s. 104 is the relevant statutory provision and that “the overriding and guiding principle in the jurisprudence regarding compensation under s. 104 is that the claimant is to be ‘made whole’ for reasonably foreseeable losses occasioned by the breach of the Act .” [ 11 ] The Board found that the applicant’s work history as well as the testimony of the applicant and her supervisor about a strained relationship suggested that she would only have been employed with Holcim for two years. [ 12 ] Vice-Chair Kelly ordered the following damages: (a) $239.38 for unpaid overtime of 15 hours; (b) $63,648.00 for direct wage loss, representing 9 months for the period between the date of termination and her two year anniversary as an employee and vacation pay; and (c) $1,000 for emotional pain and suffering. [ 13 ] He was of the view that those damages were fair and reasonable in the circumstances. [ 14 ] The Board refused to order a number of additional items requested, including: lost bonus pay, which is discretionary, compensation for loss of reasonable expectation of continued employment, job search and out-of-pocket expenses, legal costs, compensation for lost value to her pension plan and payments of professional membership fees. [ 15 ] The Board declined to order Holcim to provide her with a copy of her performance appraisal, an apology or an order that they not be able to post the senior tax analyst position for ten years.

The total award, accordingly, was $64,887.38.

The Reconsideration Decision [ 16 ] The appellant had argued that she had been constrained at the remedy hearing but the Board noted it did not limit the amount of evidence adduced, it limited closing submissions and that neither party objected and indeed that the applicant did not completely utilize the time that had been offered. [ 17 ] The Board refused to reconsider the matter, except for a minor alteration in the calculation of vacation pay which was increased from 4% to 6% for a total increase of $1,224.00. [ 18 ] The Board held that in respect of other items, the reconsideration motion was an attempt to re-argue the case. [ 19 ] The Board noted that reconsiderations are done in rare circumstances and that awards under s. 104 are discretionary and found no compelling reason to reconsider.

Positions of the Parties

[20] The applicant submitted in oral argument that the standard of review is reasonableness and that the guiding principle forcompensation under s. 104 is that the claimant is to be made whole for reasonably foreseeable losses. [21] The applicant argues that the Board should have awarded additional damages and the decision not to do so was unreasonable. For example, the lost overtime should be for more than two hundred additional overtime hours. The applicant takes issue with thedeductions made by the employer for the benefit plan.

In that regard, she says that she lost $483.00 and that she should have received anadditional amount of $125.54 for lump sum termination pay. She submits that the Board’s decision that her employment would not haveexceeded two years was unreasonable. She says that she is entitled to a loss of wages to the present date, which would total more than$227,000.00, representing losses until she finds other comparable employment.

She argues the loss was caused because of the reprisalissue. [22] The applicant also submits that the failure toward her compensation for a 2009 performance bonus was unreasonable,although she acknowledges that she did not submit the evidence at the first hearing before the Board.

She says she should have receiveda performance bonus of $8,649.00 for 2009, representing 10% of her base salary and that she should have received a performance bonusfor the 30.5 month period for which she claims direct wage loss. [23] She argues that the Board’s view that the case law did not support an award for lost value of her pension plan isunreasonable.

She also submitted that she is addressing certain other pension issues with the Financial Services Commission. [24] The applicant also submits that the Board’s decision not to award compensation for loss of reasonable expectation ofcontinued employment was unreasonable and argues that she should be entitled to an award since the date of the last hearing as she hasbeen unable to secure comparable employment. The amount she claims is $111,000.00, less amounts received from various short-termemployment which she was required to obtain and which paid her a minimum wage.

She further claims that the Board should haveawarded her job search expenses in the amount of $3,031.35 and that the decision to refuse that was also unreasonable. Finally, she saysshe should have received her performance appraisal and the Board decision not to order Holcim to provide that and not to post the seniortax analyst position for a ten year period, is unreasonable because the failure to do so impairs her ability to obtain employment. [25] The Board takes no position on disposition.

It submits that the standard of review is reasonableness. [26] The Director submits that the Board’s decision is reasonable, except that the decision not to award damages for loss ofpension contributions for the nine-month period, is unreasonable.

The Director asks that Holcim be ordered to pay $2,448.00 to theapplicant for loss of pension contribution. [27] Holcim submits that the standard of review is reasonableness and that the decision of the Vice-Chair was reasonable taken asa whole and in respect of the individual items for which compensation is sought. [28] It submits that the remedies under the Act are discretionary. The Vice-Chair applied the correct legal principles. His findingsare owed deference.

Holcim submits the applicant seeks additional amounts as damages but does not demonstrate, in its submission,how the decisions are unreasonable. [29] Holcim submits the reconsideration decision was also reasonable, in their submission, and it relies on the fact that thedecisions of the Board are final. Section 119(3) sets out circumstances for reconsideration but Holcim takes the position that theprovision is not available for a party to re-argue its case. Decision [30] The standard of review on an application for judicial review of a decision of the Ontario Labour Relations Board, isreasonableness.

In that regard, see Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 491 at para. 46. Decisions of a Boardwhich is very specialized in its field are to be accorded deference. In that regard, see Dunsmuir v. New Brunswick, 2008 SCC 9 ,2008 1 S.C.R. 190 at paras. 47 and 49 and Hawrylyshyn v. Ontario (Director of Employment Standards), at para. 17. [31] We conclude that the decisions of the Board which involved the exercise of discretion under the statute in awarding damagesunder s. 104 for a breach of the Act were reasonable.

The outcome of awarding approximately $68,000.00 to the applicant for loss ofwages, pain and suffering and loss of overtime was a result that “falls within a range of possible, acceptable outcomes which aredefensible in respect of the facts and law.” (See Dunsmuir at para. 47). [32] The conclusions reached were clear, rational and logical and demonstrated an appreciation and careful analysis of thestatutory provisions, relevant jurisprudence and the application of the law to the factual findings. [33] The only issue which caused us concern arises out of paragraph 8 of the reconsideration decision where the Board says it findsno support in the case law for including Holcim’s matching contributions for pension under the heading of “Direct Wage Loss”.

However, we are satisfied that the Board considered s. 104 but decided not to award compensation because it could find no support forawarding compensation either in the jurisprudence or on the evidence before it. [34] Given the record before the Board and the manner in which the issue developed, we do not consider the exercise of discretionby the Board to be unreasonable in the circumstances of this case. [35] We are further of the view that the application for judicial review does not stay the order below and that the monies held intrust for the benefit of the applicant should be released with interest to the applicant forthwith. [36] For these reasons, the application for judicial review of the decision of the Board is dismissed. [37] I have endorsed the back of the Application Record, “The application is dismissed for reasons delivered orally by way ofendorsement.

Holcim seeks costs in the upper range of $3,000-$7,000 from the applicant and $500 from the Director. Neither counsel

for the Board or the Director seeks costs. In the circumstances we consider that it is fair and reasonable to award costs in the amount of $1,500 all inclusive, payable by the applicant to the respondent, Holcim forthwith. No costs are ordered against the Director. The monies held in trust for the applicant are to be released forthwith to the applicant.” THEN R.S.J. HIMEL J. J. MACKINNON J. Date of Reasons for Judgment: November 8, 2013 Date of Release: December 2, 2013 CITATION : Shi v. Ontario Labour Relations Board, 2013 ONSC 6984 DIVISIONAL COURT FILE NO.: 158/13 DATE: 20131108 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT THEN R.S.J., HIMEL AND J. MACKINNON JJ. BETWEEN:

WEIHUA (MARIE) SHI Applicant – and – ONTARIO LABOUR RELATIONS BOARD, HOLCIM (CANADA) INC. AND DIRECTOR OF EMPLOYMENT STANDARDS Respondents ORAL REASONS FOR JUDGMENT THEN R.S.J. Date of Reasons for Judgment: November 8, 2013 Date of Release: December 2, 2013