) ) LABOURERS’ INTERNATIONAL ) M Andrew Black v. Maheen Merchant, 2023 ONSC 747

CITATION : Labourers’ International Union of North America, Local 183 v. Multy Home LP, 2023 ONSC 747 DIVISIONAL COURT FILE NO.: 784/21 DATE: 20230131 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT D.L. Corbett, Stewart and Leiper JJ. BETWEEN: ) ) LABOURERS’ INTERNATIONAL ) M Andrew Black and Maheen Merchant , UNION OF NORTH AMERICA, ) for the Applicant LOCAL 183 ) ) Applicant ) ) – and – ) ) MULTY HOME LP and NORM JESIN ) Michael Horvat , for Multy Home LP ) Respondents ) Mr Jesin , not appearing ) ) HEARD at Toronto (by videoconference): ) October 27, 2022 REASONS FOR DECISION D.L.

Corbett J. [ 1 ] The Applicant union seeks judicial review of the grievance arbitration award of Arbitrator Norm Jesin dated August 25, 2021, dismissing the Union’s grievance of the Respondent employer’s dismissal of Union member Senior Hopeton (the “Grievor”) for just cause. The Respondent concluded that the Grievor stole property from the Respondent, and on this basis terminated his employment for just cause. The Arbitrator concluded that the Grievor had stolen two rugs from the Respondent and upheld the dismissal. [ 2 ] The Union argues that the Arbitrator’s decision is unreasonable because: (

a) the Arbitrator determined the grievance based on “extraneous and ex post facto evidence” (

b) the Arbitrator determined the grievance based on “erroneous hypotheticals and erroneous factual conclusions” (

c) the arbitrator determined the grievance based on “an arbitrary determination of the [G]rievor’s credibility” (

d) the arbitrator determined the grievance based on “a misapprehension of the burden and onus of proof in cases of termination for just cause.” [ 3 ] I would not give effect to these submissions. This grievance decision turned on a finding of fact: the Arbitrator was satisfied, on a balance of probabilities, that the Grievor stole two rugs from his employer. In so concluding, the Arbitrator did not accept the Grievor’s explanation. These findings were amply supported by the record and were reasonable, and they were adequately explained in the Arbitrator’s reasons.

Therefore, for the following reasons, this application is dismissed. Jurisdiction and Standard of Review [ 4 ] A grievance decision of a labour arbitrator is final; there is no appeal. Thus, this court’s jurisdiction is limited to judicial review of the Arbitrator’s decision: Judicial Review Procedure Act, RSO 1990, c.J.1, ss. 2(1) and 6(1) . The standard of review is reasonableness: Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , paras. 10 , 23 and 99.

Facts [ 5 ] The Respondent manufactures and sells rugs (among other things). [ 6 ] Video surveillance shows that, on Saturday September 12, 2020, the Grievor removed four rugs from the respondent’s shipping area and, with help from others, placed them in the car of a co-worker, Ravin Nandalall. The Grievor then drove Mr Nandalall’s car to the far end of the parking lot and transferred two of the rugs into his own car.

[ 7 ] Mr Nandalall was interviewed and said that he had previously ordered and paid for four rugs. He had already received two rugs and on September 12 th he was picking up the remaining two rugs he had paid for. Mr Nandalall said that he approached the Grievor to obtain the remaining two rugs. The Grievor offered to load the rugs into Mr Nandalall’s car and told Mr Nandalall that he had purchased two rugs himself.

The Grievor put all four rugs in Mr Nandalall’s car and then transferred two of them to his own car. [ 8 ] When the Grievor was interviewed, he told the Respondent that he had loaded four rugs into Mr Nandalall’s car, in accordance with the purchase receipt shown to him by Mr Nandalall.

He did not mention transferring two of the rugs to his own car. [ 9 ] On the basis of the information set out above, the Respondent concluded that the Grievor had removed two rugs without authorization and terminated the Grievor’s employment for cause. [ 10 ] Following termination, prior to the grievance hearing, the Grievor provided a further explanation to the Respondent. He advised that he has a part-time catering business, and that Mr Nandalall offered to sell him two rugs in return for a catered lunch of Caribbean pork for his family.

The Decision [ 11 ] Both Mr Nandalall and the Grievor gave evidence before the Arbitrator. Mr Nandalall contradicted the Grievor’s explanation. He said that he did not know that the Grievor was a caterer and that, in any event, he would not have agreed to a meal of pork because he is Hindu. In cross examination, Mr Nandalall acknowledged that he had eaten food prepared by the Grievor at a company barbecue and at another event at the Grievor’s home. [ 12 ] The Grievor, in his evidence, provided the account described above.

Framing the Issue [ 13 ] The Arbitrator’s task was to decide whether the Grievor had stolen two rugs. [ 14 ] The video evidence establishes that two rugs were stolen from the Respondent on September 12, 2020. It establishes that the Grievor removed the rugs from the Respondent’s premises and placed those rugs in his own car. The Grievor did not purchase those rugs from the Respondent.

All of this appears to show that the Grievor stole the two rugs. [ 15 ] The information provided by Mr Nandalall to the Respondent, and to which he testified before the Arbitrator, supported the conclusion that the Grievor stole the two rugs. [ 16 ] The information provided by the Grievor in his interview with the Respondent did not exonerate the Grievor of the theft.

His account failed to mention or account for the transfer of two of the rugs to the Grievor’s car. [ 17 ] The explanation provided by the Grievor to the Arbitrator was that it was Mr Nandalall who had stolen the two rugs (by taking four, not two rugs, under false pretenses), and that immediately after having accomplished this theft, Mr Nandalall bartered the two stolen rugs for a catered meal of Caribbean pork from the Grievor.

This was the Grievor’s explanation for loading the two stolen rugs into his car. [ 18 ] Thus, the case turns on the evidence of the Grievor – whether his subsequent account, in all the circumstances, explains events in a manner that exonerates him of the theft. This subsequent account of events cannot, however, assist the Grievor if it is not believed. And that is what the Arbitrator’s decision turns on – the Arbitrator did not believe the Grievor’s subsequent account of events. Analysis [ 19 ] The theft is shown on the video surveillance recording.

Either or both of the Grievor and Mr Nandalall may have been responsible for the theft. Based on the Respondent’s investigation, the Grievor failed to acknowledge that he had placed two of the rugs in his own car and failed to provide any explanation for doing that. This lack of candour was a sufficient basis upon which the Respondent could conclude that the Grievor was party to the theft.

Thus, at the time the decision was made to terminate the Grievor’s employment for just cause, the Respondent’s decision was reasonable. [ 20 ] It is in this context that the Arbitrator weighed the subsequent account of events provided by the Grievor. On this basis, the Applicant’s arguments may be disposed of as follows: (

a) The Applicant argues that the Arbitrator improperly considered and used the fact that the Grievor never returned the rugs or offered to pay for them. These facts, the Applicant argues, are “extraneous and ex post facto evidence” that cannot be used to assess the Respondent’s decision at the time that decision was made. I do not accept this argument. The Grievor’s explanation is “after-the-fact evidence” that was not available to the Respondent when it made its termination decision.

It was reasonable of the Arbitrator to consider the Grievor’s subsequent explanation – including any explanation the Grievor had for not providing a full and complete explanation when he was interviewed by the Respondent. In this context, the fact that the Grievor retained the rugs, after he knew they had been stolen, is a fact that the Arbitrator could use to assess the Grievor’s credibility. On the Grievor’s account, he thought he had purchased the rugs from his colleague, and he thought that his colleague was entitled to the rugs.

However, once the Grievor learned (on his account of events) that his colleague had stolen the rugs, he knew he was in receipt of stolen property. Further, on his account of events, he had not yet paid his colleague for the stolen rugs. Retaining the rugs, knowing that they had been stolen, when he, himself, had not paid anything for the rugs, was dishonest. This dishonesty was a matter the Arbitrator could consider in assessing the Grievor’s credibility. In his reasons, the Arbitrator states that this wrongful retention of the rugs could give rise to an inference that the Grievor

had intended theft all along. In my view, this rather overstates the use that can be made of this evidence: it seems that the Grievor felt that if he returned the rugs, he would somehow be admitting culpability (misguided as this feeling might be). However, judicial review is not a “line by line treasure hunt for error” [ Vavilov , para. 102] . The Arbitrator reasonably found that retention of the stolen property weighed against the Grievor’s credibility, and imperfect expression of this finding is not a basis for this court to intervene. (

b) The Arbitrator did not proceed on the basis of “erroneous hypotheticals” and made no unreasonable findings of fact. The Arbitrator was not required to decide everything about what happened: his task was to decide whether he believed the Grievor’s explanation. The Arbitrator did this. (

c) The Arbitrator’s adverse finding of the Grievor’s credibility was not “arbitrary”. The Arbitrator acknowledged that he had difficulties with Mr. Nandalall’s credibility. He was still entitled to prefer Mr Nandalall’s evidence to that of the Grievor. This was not a “credibility contest,” where one witness must be telling the truth and the other lying. It was possible, in this case, that neither witness was telling the truth, and that they were both complicit in the theft, but the Arbitrator did not need to decide that issue: he quite properly confined his decision to the question he did have to decide – whether the Grievor was complicit. The Arbitrator did this. (

d) The Arbitrator did not reverse the burden of proof. The Respondent had the onus to establish the theft. Employers must do so on the basis of “clear, cogent and compelling evidence that an employee acted dishonestly” [Brown, Beatty and Beatty, eds., Canadian Labour Arbitration (5 th ed.), at 7:23). It did that by producing the video surveillance evidence and the substance of the interviews with the Grievor and Mr Nandalall.

The Grievor made no error in finding that the Respondent had proved its case unless the Grievor’s subsequent account of events was believed. [ 21 ] There are some imperfections in the Reasons, such as, as noted above, stating that retention of the rugs without payment was evidence that the Grievor stole the rugs, instead of showing dishonesty, bearing on the Grievor’s credibility. I repeat my observation above: judicial review is not a line-by-line treasure hunt for error. This was a straightforward grievance arbitration that turned on one central issue: was the Grievor’s subsequent explanation to be believed.

If not, then the Respondent’s decision should be upheld. The Arbitrator understood that this was the issue and gave detailed reasons why he did not believe the Grievor. The Grievor’s account of events was far-fetched, implied bizarre and dishonest conduct by another employee, failed to explain the Grievor’s lack of candour in his initial interview, was coloured by the Grievor’s dishonest retention of the rugs after he knew they had been stolen.

In this context, the Arbitrator was entitled to prefer the evidence of Mr Nandalall to the evidence of the Grievor, which he did, and the Arbitrator’s reservations about Mr Nandalall’s credibility cannot be taken as expressing uncertainty about the Grievor’s culpability for the theft.

Summary [ 22 ] The respondent’s case was strong. The Grievor’s explanation made little sense. It was not necessary for the Respondent to establish that the Grievor was solely responsible for the theft. It was enough to show that he was complicit in stealing the rugs. The Arbitrator considered the evidence before him and came to a reasonable conclusion that the Grievor was complicit. There is no basis for this court to intervene. Disposition [ 23 ] The application is dismissed, with costs payable by the Applicant to the respondent fixed at $10,000, inclusive, payable within thirty days.

I agree ___________________________ Stewart J. I agree ___________________________ Leiper J. Date of Release: January 31, 2023

CITATION : Labourers’ International Union of North America, Local 183 v. Multy Home LP, 2023 ONSC 747 DIVISIONAL COURT FILE NO.: 784/21 DATE: 20230131 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT D.L. Corbett, Stewart and Leiper JJ. BETWEEN: Labourers’ International Union of North America, Local 183 Applicant – and – Multy Home LP and Norm Jesin Respondents REASONS FOR DECISION D.L. Corbett J. Date of Release: January 31, 2023