) ) CTS (ASDE) INC. Applicant – v. –, 2023 ONSC 1640

CITATION : CTS (ASDE) Inc. v. Labourers’ International Union of North America et al , 2023 ONSC 1640 DIVISIONAL COURT FILE NO.: 295/22 DATE: 20230313 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Newton and O’Brien JJ BETWEEN: ) ) CTS (ASDE) INC. Applicant – and – LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 AND ONTARIO LABOUR RELATIONS BOARD Respondents ) ) ) ) ) ) ) ) ) ) ) ) ) E. R. Schafer, for the Applicant P. Cavalluzzo, A. Telford and M. McDonough, for the Respondent, Labourers’ International Union of North America A.

Hart , for the Respondent, Ontario Labour Relations Board ) ) HEARD: Heard at Toronto by videoconference on January 30, 2023 O’BRIEN j. reasons for decision Overview [ 1 ] On August 28, 2019, Alexis Williams, a Black man, was dismissed from his employment with CTS (ASDE) Inc. (“ASDE”), where he had worked for two years. Mr. Williams’ union grieved his dismissal to the Ontario Labour Relations Board, which found that Mr. Williams had been dismissed without just cause and that race was a factor in the decision to dismiss him.

ASDE seeks judicial review of the Board’s decision and its subsequent dismissal of a request to reconsider the decision. [ 2 ] Mr. Williams was employed with ASDE as a labourer-journeyman at four underground transit stations on the Eglinton Crosstown LRT project. He was briefly laid-off on two occasions in March and April 2019. He returned to work in May 2019 at the Forest Hill station, where he worked until his dismissal. His dismissal arose from incidents on August 15 and 16, 2019 at Forest Hill Station. [ 3 ] Specifically, on August 15, 2019, Mr.

Williams was assigned with three other labourers to assist with moving a crane. A conflict arose because one of the other workers yelled at Mr. Williams and accused him of not knowing how to operate his radio. Mr. Williams’ evidence was that the radio was not working. The conflict continued when the crew convened in the foreman’s office for the morning briefing. Mr. Williams was subsequently spoken to by the site superintendent and thought the matter was at an end. However, the following day, the foreman raised the issue with him again in a public location, which led Mr. Williams to become loud and upset.

The foreman reported the incident to the site superintendent and Mr. Williams was sent home. ASDE terminated him twelve days later. [ 4 ] Mr. Williams’ union, the Respondent Labourers’ International Union of North America, Local 183, grieved both his lay-offs and his dismissal and referred them to the Board for arbitration. The Board dismissed the layoff grievances but found that ASDE did not have just cause to terminate Mr. Williams’ employment. The Board noted that the termination letter relied on past conduct for which Mr. Williams was never disciplined.

At the time of his dismissal, he had been disciplined only once, with a written warning, for a “single act of unruly behaviour.” The Board also concluded that, “even on the Company’s best case,” Mr. Williams’ conduct on August 15 and 16 did not warrant discharge. Finally, the termination letter claimed Mr. Williams repeatedly accused ASDE of being inappropriately motivated, which was a reference to Mr. Williams’ allegations that he had been subject to racism in the workplace. According to the Board, none of Mr. Williams’ claims of racism had been investigated on anything but a cursory and superficial level.

In any event, ASDE never informed Mr. Williams that his claims of racism were inappropriately motivated, nor took action with respect to them. [ 5 ] With respect to the question of whether the discharge was discriminatory, the Board relied on evidence from an expert in implicit bias, who testified regarding implicit anti-Black bias and negative traits associated with Black men. The Board identified

conduct on the part of ASDE management that supported a conclusion that Mr. Williams was the target of anti-Black bias. It ultimately concluded that Mr. Williams’ termination was tainted by discrimination based on race and colour. [ 6 ] The Board dismissed ASDE’s subsequent request for reconsideration on the basis that ASDE had not made new arguments nor offered new evidence that was not available to it at the time of the hearing. [ 7 ] ASDE seeks an order setting aside the Board’s decisions.

In its submission, the Board unreasonably determined it had no just cause without conducting credibility assessments and in the face of its finding that Mr. Williams was dishonest during the hearing. It further submits that the Board ignored relevant evidence, including the prior incident for which Mr. Williams was disciplined, together with his pattern of volatile conduct and disregard for authority.

Finally, ASDE submits that the union did not discharge its burden of proving that the termination was discriminatory. [ 8 ] For the reasons that follow, I would defer to the Board’s conclusions on the issues in dispute, which fall within the core of its expertise. The application is dismissed. Issues [ 9 ] The issues raised by ASDE are: 1. Did the Board unreasonably determine there was no just cause to dismiss Mr. Williams? and 2. Did the Board unreasonably find that race was a factor in the decision to dismiss Mr. Williams?

Standard of Review [ 10 ] There is no dispute that the standard of review in this case is reasonableness. [ 11 ] The Court of Appeal recently applied reasonableness principles in the context of reviewing a Board decision. In doing so, the Court emphasized the importance of deference. Judicial review starts from the principle of judicial restraint and respect for the distinct role of the decision maker: Turkiewicz (Tomasz Turkiewicz Custom Masonry Homes) v.

Bricklayers, Masons Independent Union of Canada, Local 1 , 2022 ONCA 780 , 476 D.L.R. (4th) 421, at para. 55 ; see also Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 S.C.R. 653, at para. 13 . The reviewing court should respect the specialized expertise of the administrative decision maker and should refrain from asking how they themselves would have resolved an issue.

The focus is instead on whether the applicant has demonstrated that the decision is unreasonable: Turkiewicz , at para. 55; Vavilov , at para. 75 . [ 12 ] In this case, the union referred its grievances to the Board for arbitration under s. 133 of the Labour Relations Act , 1995, S.O. 1995 c. 1, Sched. A (the “ Act ”).

Section 133 empowers a party to a collective agreement to refer a grievance arising from an alleged violation of the collective agreement to the Board for final and binding determination. Pursuant to this section, a Vice-Chair of the Board is granted the same powers as an arbitrator under s. 48(12) of the Act , including the power to “interpret and apply human rights and other employment-related statutes, despite any conflict between those statutes and the collective agreement.” [ 13 ] The legislature has sent a clear signal that deference is to be afforded to decisions of the Board.

Section 114 of the Act gives the Board exclusive jurisdiction to exercise the powers conferred on it.

Section 116 of the Act contains a strong privative clause, stating in part that “[n]o decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court…”. [ 14 ] The Court of Appeal emphasized in Turkiewicz at para. 77 that “[t]he OLRB is a highly specialized tribunal with considerable expertise, placing it in an elevated position to interpret its home statute.” Also, given the fact-specific exercise before this Court, I note that Vavilov emphasized, at para. 125 , it is for the decision-maker to assess and evaluate the evidence before it.

The reviewing court is specifically required to refrain from reweighing and reassessing the evidence: “[A]bsent exceptional circumstances, a reviewing court will not interfere with [the decision-maker’s] factual findings.” Just Cause [ 15 ] With respect to the finding of just cause, ASDE submits that the Board failed to make credibility determinations required to meaningfully address a key issue. Specifically, in its submission, credibility determinations were needed to properly grapple with the question of what happened on August 15 and 16, 2019.

This was particularly necessary given the Board’s recognition that Mr. Williams had been dishonest at various points in the hearing. ASDE emphasizes that at para. 101 of its reasons, the Board rejected Mr. Williams’ claim that he was “cool, calm and collected” during the August 15, 2019 meeting in the foreman’s office. The Board also noted at para. 107 that Mr. Williams “occasionally assessed his own behaviour in a self-serving manner (for example, by underplaying the volatility of his reactions to the perceived offence of others).” [ 16 ] There are a number of problems with ASDE’s submission.

First, its focus on the above statements minimizes the Board’s overall conclusion that Mr. Williams’ account of events was reliable. The Board stated at para. 41 of its reasons: The Grievor’s shortcomings as a witness – his rectitude, his suspicions that others were obsessed with bringing him down, his tendency to overstate – belie a sense of self-importance, but do not cause me to seriously doubt the overall reliability of his evidence. Much of what he said about what happened (as opposed to why it happened) was corroborated by the Employer’s witnesses. (italics in original, underlining added)

[17] Second, the Board reasonably rejected this submission in the reconsideration decision. There, the Board underscored that“nothing going to the issue of just cause or whether the Grievor’s discharge was discriminatory was determined on credibility.” Forexample, the Board accepted the evidence of ASDE’s witnesses, and rejected Mr. Williams’ denials that he was confrontational in themeeting on August 15 and in his dealings with ASDE officials on August 16. Nevertheless, the Board found ASDE still had no cause todischarge Mr. Williams. [18] This is a reasonable reading of the original decision.

In that decision, having reviewed the competing allegations regarding theevents of August 15 and 16 in detail, the Board ultimately determined that Mr. Williams’ conduct on those dates, “even on theCompany’s best case,” did not warrant discharge. The Board reasoned that even if what ASDE alleged occurred in the foreman’s officeon August 15 was accepted at face value, there was a “reset” by the end of that day. The site superintendent “gave Mr.

Williams everyreason later that day to believe that he had been forgiven, or at least that he and the Company should move forward and put the incidentin the past.” [19] In spite of the reset, however, matters unraveled further the following day. The site superintendent permitted the foreman to“accost” Mr. Williams about the previous day’s incidents, which the foreman proceeded to do in a public place. The site superintendentthen himself went to speak to Mr. Williams, again in a public place.

The Board found these subsequent interventions to represent a “poorexercise of judgment,” particularly where the site superintendent had said the day before that the parties should move on from theconflict. [20] In short, on the Board’s analysis, it was not critical to determine precisely what occurred, for example, in the meeting onAugust 15. The Board found that even if it accepted ASDE’s “best case” as to what had occurred at that meeting, there was an attempt toreset the relationship and move forward at the end of that day. [21] ASDE disputes this analysis. It insists that, on its “best case,” Mr.

Williams’ conduct on August 15 was highly inappropriateand amounted to insubordination. It also does not accept that there was a reset at the end of the day. However, this is an attempt to re-weigh the evidence and is not the task of this Court, absent exceptional circumstances which do not exist here. [22] The Board was entitled to assess the evidence as it did, and to find an absence of just cause in all the circumstances. Inaddition to its conclusions regarding the evidence on August 15 and 16, 2019, the Board relied on a number of factors in reaching itsfinding of no just cause.

It noted that ASDE’s letter of termination relied on past conduct for which Mr. Williams was never disciplinedand, in one case, for which no evidence was led. Similarly, the termination letter claimed that Mr. Williams’ conduct caused employeesto be concerned for their safety – again, an allegation not supported by the evidence. Finally, the termination letter stated Mr. Williamsrepeatedly accused management of being “inappropriately motivated,” which was a reference to claims of racism he had made. TheBoard noted that ASDE did not investigate Mr. Williams’ claims of racism, nor did they inform Mr.

Williams that his claims wereinappropriately motivated. The Board was not persuaded that ASDE had just cause to discharge Mr. Williams in the context of thetotality of his conduct and where there was only a single incident of prior discipline on his record. [23] ASDE’s argument that the Board ignored a February 2019 written warning letter in finding that it had failed to giveprogressive discipline a reasonable chance must be rejected.

The Board expressly referenced the “single written warning on hisdisciplinary record” but found this was not sufficient to constitute progressive discipline. [24] Overall, it was entirely reasonable for the Board to find an absence of just cause on the factors it emphasized, without theneed to more finely excavate the details of the parties’ conduct on August 15 and 16, 2019. A determination of whether just causeexisted fell squarely within the Board’s expertise. ASDE has not identified a persuasive basis for this Court to interfere in the Board’sconclusion on this point.

Discrimination [25] ASDE submits that the Board’s decision was extraordinary in its finding of discrimination motivated by implicit bias in theemployment context. In its submission, it is not enough to find a particular person is part of a group subjected to discrimination. Instead,the union was required to lead evidence of a particular decision motivated by bias. It submits the union failed to do so in this case. [26] I reject the suggestion that the analysis in this case was unprecedented. In its reasons, the Board relied on the Court ofAppeal’s decision in Peel Law Association v.

Pieters, 2013 ONCA 396, 116 O.R. (3d) 81. In that case, the appellants and their articlingstudent, who were Black, acted as counsel in a proceeding at the Brampton courthouse. During a break, they went to the lawyers’ lounge,which was reserved for the use of lawyers and law students. A librarian in the lounge asked the appellants and articling student foridentification to show they were lawyers or law students.

She did not ask to see the identification of anyone else in the lounge. [27] The Court of Appeal overturned the Divisional Court decision quashing the tribunal’s conclusion that the treatment of theappellants was discriminatory. In doing so, the Court of Appeal accepted, as a sociological fact, at para. 113, that “[r]acial stereotypingwill usually be the result of subtle unconscious beliefs, biases and prejudices.” It then reproduced a passage from R. v.

Parks (1993), (ON CA), 15 O.R. (3d) 324 (C.A.) making the same point as follows: Racism, and in particular anti-black racism, is a part of our community’s psyche. A significant segment of our community holds overtlyracist views. A much larger segment subconsciously operates on the basis of negative racial stereotypes. [28] The Court of Appeal, at para. 112, also accepted as a long-established legal proposition that direct evidence of discriminationis not required.

Discrimination will more often be proven by circumstantial evidence and inference. [29] In short, I disagree that the Board’s decision was extraordinary in the sense of establishing new law. It applied principlesconfirmed in Peel Law Association to the facts of the case before it.

[ 30 ] ASDE’s submission that the Board was required to identify a particular individual motivated by bias is also without merit. As confirmed in Peel Law Association , a finding of discrimination only requires that a prohibited ground be a factor in the adverse treatment. It need not be the sole or even predominant factor, nor need it be a causal factor. The Board was entitled to find that race was a factor in Mr. Williams’ dismissal without finding that an individual at ASDE acted intentionally or was racially motivated.

Peel Law Association , at paras. 55-60, 111 . [ 31 ] I similarly dismiss ASDE’s objection to the Board’s use of the evidence of Dr. Kawakami, the expert in implicit bias. Dr. Kawakami did not opine on the specific factual determinations in the case. The Board instead made findings based on the evidence of the witnesses but found that Dr. Kawakami’s evidence deepened its understanding of the interactions between Mr. Williams and others. In Peel Law Association , the Court of Appeal raised a caution about the tribunal’s reliance on social science regarding racial profiling.

The issue there was that the social science was not introduced into evidence. As the Board noted in this case, the Court of Appeal specifically affirmed at para. 118 that “social science can deepen the understanding of interactions between individuals generally, thus assisting the adjudication of a particular case.” That is precisely what occurred here. [ 32 ] Finally, the Board reasonably concluded, on the evidence, that race was more likely than not a factor in ASDE’s decision to discharge Mr. Williams.

The Board made the following findings, which were supported in the evidence and formed the basis for its conclusion: A. Mr. Williams was treated differently from his non-Black colleagues. For example, the Vice-Chair noted that when Mr. Williams’ white colleague yelled at him regarding his alleged failure to use the radio, the white colleague’s conduct was not scrutinized and he was given the benefit of the doubt. By contrast, although Mr. Williams’ outbursts in the foreman’s meeting appeared not to have frightened anyone, his conduct was closely scrutinized.

ASDE obtained multiple witness statements and claimed in the termination letter that Mr. Williams was a threat to employees’ safety and wellbeing. B. Contrary to its own health and safety policy, ASDE did little if anything to investigate Mr. Williams’ human rights concerns. It instead accused Mr. Williams of “playing the race card” (as described by the Board at para. 105 of its reasons) when it had done very little to inquire into his complaints. ASDE’s accusation is consistent with the evidence of Dr.

Kawakami that complaints about racism are often perceived negatively, with the recipient assuming race is being used as an excuse for what has transpired. I reject ASDE’s argument that the duty to investigate was not triggered in the circumstances of this case. The Vice-Chair was entitled to treat Mr. Williams’ allegations as sufficiently particularized to require investigation. C. ASDE reacted disproportionately to Mr. Williams’ conduct when he was accosted twice in public on August 16, 2019. It also asserted exaggerated safety concerns, claiming that Mr.

Williams had engaged in a pattern of threatening behaviour, which falls squarely within the stereotypes applied to Black men, despite the absence of tangible evidence of such a pattern. The Vice-Chair carefully reviewed the evidence of ASDE’s witnesses, concluding that they did not raise any concern about safety arising from Mr. Williams’ conduct. [ 33 ] The Board is specifically authorized under s. 133 of the Act (which incorporates s. 48(12) )(j)) to apply human rights statutes. It has considerable experience in doing so in the context of allegations of unjust dismissal.

ASDE has not demonstrated that the Board’s factual findings or conclusion of discrimination warrant interference by this Court. Disposition [ 34 ] Accordingly, the application is dismissed. [ 35 ] With respect to costs, the Applicant shall pay the agreed-upon amount of $12,500 all-inclusive to the Respondent. _______________________________ O’Brien, .J. I agree _______________________________ Backhouse, J. I agree _______________________________ Newton, J. Released: March 13, 2023 CITATION : CTS (ASDE) Inc. v. Labourers’ International Union of North America et al , 2023 ONSC 1640

DIVISIONAL COURT FILE NO.: 295/22 DATE: 20230213 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT Backhouse, Newton and O’Brien JJ BETWEEN: CTS (ASDE) INC. Applicant – and – LABOURERS’ INTERNATIONAL UNION OF NORTH AMERICA, LOCAL 183 AND ONTARIO LABOUR RELATIONS BOARD Respondents REASONS FOR DECISION O’BRIEN, J Released: March 13, 2023