Executive Summary: Key Legal and Evidentiary Issues

• Central dispute concerned whether the applicant’s termination was a reprisal for OHSA complaints or union organizing, or a response to his refusal to remove a reputationally damaging social media post.
• Reasonableness was confirmed as the applicable standard of review for the Ontario Labour Relations Board’s decision, including its handling of alleged jurisdictional questions about defamation and harassment.
• Allegations of procedural unfairness failed, as the court found the Board’s comments on “defamation” and “harassment” were contextual, not determinations of tort or Code liability, and could have been addressed through reconsideration.
• The Board’s credibility findings—preferring T&T’s witnesses and finding the applicant unreliable and prone to falsehoods—were upheld, with the court refusing to reweigh evidence or draw adverse inferences from non-testifying decision-makers.
• Attempts to rely on hypotheticals, “plausible channels” of knowledge, peripheral issues, and minor typographical errors were rejected as either unsupported, immaterial, or appropriately addressed through the Board’s reconsideration process.
• Costs were awarded against the self-represented applicant, underscoring that impecuniosity and self-representation do not immunize a litigant from adverse cost consequences where a meritless judicial review is pursued instead of a cheaper reconsideration route.

Background and facts

The case arises from the termination of the employment of Mr. Cai Song, a part-time employee of T&T Supermarket Inc. at its Thornhill grocery store. He worked there from November 2, 2022 until his termination on November 30, 2023. During his employment, the applicant created a lengthy, 24-page post on York BBS, a social media platform aimed at the Chinese Canadian community, which is a key customer base for T&T. In that post, he compared T&T to the “majesty of the party state” and alleged racism, discrimination, and a series of other serious criticisms against the company. Management learned of the post and directed him to remove it by November 27, 2023. He did not comply. The employer decided on the morning of November 28, 2023 to terminate his employment because he refused to take down what it regarded as a damaging post. That same afternoon, an inspector from the Ministry of Labour attended the Thornhill location in response to the applicant’s complaint under the Occupational Health and Safety Act (OHSA) about an alleged failure to post workplace violence and harassment policies. His employment was formally terminated on November 30, 2023.

The applications before the Ontario Labour Relations Board

The applicant commenced two separate applications before the Ontario Labour Relations Board (the Board). First, he alleged an unlawful reprisal under section 50 of the OHSA. In this OHSA application, he asserted that the termination was retaliation for his internal and external health and safety and harassment complaints. These included an internal complaint about a co-worker, Ms. Wong, which he escalated to include allegations about the conduct of his store manager, Mr. Zhao, and his subsequent complaint to the Ministry of Labour. Second, he alleged an unfair labour practice under section 72 of the Labour Relations Act, 1995 (LRA). On this front, he argued that he had signed a union card with the United Food and Commercial Workers, worked as an organizer on their behalf, and that his termination was motivated by anti-union animus. He maintained before the Board that these protected activities—including internal complaints, the MOL complaint, and his union organizing—collectively informed T&T’s decision to dismiss him.

The Board’s decision and key factual findings

After a nine-day hearing, the Board dismissed both applications in a decision dated May 21, 2025. The evidence for the employer came from five witnesses, including human resources decision-makers. The Board found the applicant to be an unreliable witness, describing him as having been caught in several “blatant falsehoods” in cross-examination and characterizing him as given to prevarication. As a result, where the applicant’s evidence conflicted with any other evidence, the Board preferred the other witnesses’ testimony. On the central issue of motive, the Board accepted that the individuals who decided to terminate his employment were not aware of his union organizing activity or his OHSA complaint to the Ministry of Labour at the time the termination decision was made. While they knew about his internal complaints, the Board found that these internal complaints did not factor into the termination decision. Instead, the Board concluded that T&T terminated the applicant for a different reason: his refusal to remove the York BBS post, which the employer saw as reputationally damaging. The Board used the term “defamatory” in a colloquial sense to describe the effect of the post on T&T’s reputation, not as a formal conclusion on the tort of defamation. It also found that the internal complaint against Ms. Wong was not made in good faith, had suspicious timing, and related to a very minor incident which could hardly be considered bullying or harassment, reinforcing its view on the credibility and motivations of the applicant.

Judicial review brought to the Divisional Court

Unsuccessful at the Board, the applicant sought judicial review in the Ontario Divisional Court. He argued that the Board’s decision was marred by jurisdictional errors and procedural unfairness, and was substantively unreasonable under the framework set out by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov. Among other things, he said the Board exceeded its jurisdiction by making findings touching on defamation and harassment, failed to assess the evidence properly, denied him procedural fairness, and provided reasons that were not justified in light of the record. He asked the court to quash the decision and remit the matter to a differently constituted panel of the Board. T&T, for its part, argued that the decision was within the Board’s jurisdiction, procedurally fair, reasonable, and that many of the applicant’s concerns could and should have been addressed by invoking the Board’s reconsideration power under section 114(1) of the LRA, rather than a judicial review.

Standard of review and treatment of alleged jurisdictional errors

The Divisional Court held that the applicable standard of review was reasonableness. Relying on Vavilov and subsequent Ontario authority, the court confirmed that there is a presumption of reasonableness on judicial review of administrative decisions, and that the applicant had not rebutted this presumption. The applicant attempted to carve out a correctness standard for what he characterized as jurisdictional questions about defamation and harassment, suggesting that these went to the boundaries between different decision-making bodies. The court rejected this approach, pointing to Vavilov’s express rejection of a broad category of “true questions of jurisdiction” subject to correctness review. It found that the Board’s use of the word “defamatory” was clearly non-technical and descriptive, not an adjudication of the tort of defamation (which remains in the Superior Court’s purview), and that its comments on harassment were contextual findings about the applicant’s motives and the bona fides of his internal complaint, not human rights determinations under the Human Rights Code.

Procedural fairness and the availability of reconsideration

On procedural fairness, the court applied the well-known criteria in Baker v. Canada (Minister of Citizenship and Immigration) and concluded that the applicant had not been denied fairness. His complaint was that he had no opportunity to make submissions before the Board referred to his post as defamatory or described his internal harassment complaint as de minimis and in bad faith. The court held that this misunderstood the Board’s role: it was not purporting to impose defamation liability or rule on a harassment claim under human rights legislation, but instead assessing the context and nature of the conduct that T&T said justified termination. Further, the court found that any concerns about the chance to respond to those characterizations could have been raised through the Board’s reconsideration process under section 114(1) of the LRA. The Board’s Information Bulletin 19 specifically contemplates reconsideration where a party seeks to make representations it previously had no opportunity to make or where there are obvious errors in the decision. In the court’s view, this made the judicial review on those points premature. Minor typographical or superficial errors identified by the applicant were likewise treated as matters suitable for reconsideration, not grounds to overturn an otherwise reasonable decision.

Evaluation of the evidentiary record and credibility findings

The Divisional Court refused to interfere with the Board’s factual and credibility findings. The applicant effectively invited the court to reweigh evidence, engage with hypotheticals, and draw different inferences about the knowledge and motives of T&T’s decision-makers. The court reiterated Vavilov’s direction that reviewing courts must not reassess the evidence or substitute their own credibility determinations absent exceptional circumstances. The Board had explicitly framed the case as turning on whose evidence to accept: the employer’s witnesses or the applicant and his witness. It chose to credit the employer’s witnesses and found the applicant’s evidence unreliable, a conclusion anchored in the record. The applicant also urged the court to draw an adverse inference from the fact that only two of four decision-makers testified and pressed arguments about “plausible channels” through which the decision-makers might have learned about his union activities or MOL complaint before the termination decision. The Board, and then the court, declined to draw this adverse inference in circumstances where there was no critical conflict in the evidence and where the applicant led no direct evidence contradicting the testimony of the HR decision-makers. The court noted that, if the applicant viewed other individuals as crucial witnesses, he could have called them himself before the Board. Hypothetical chains of communication raised for the first time on judicial review, without supporting evidence, did not create a reviewable error.

Peripheral issues and the limits of reasonableness review

The applicant raised numerous minor or peripheral issues, some of them for the first time on judicial review, including detailed criticisms of individual passages, case citations, and the Board’s handling of specific procedural points. The court emphasized that, under Vavilov, an administrative decision-maker is not required to address every argument or analytical avenue, and a failure to deal explicitly with issues that are immaterial or never properly raised is not a ground for judicial intervention. The Board was entitled to focus on the determinative question: whether the termination was motivated by anti-union or anti-OHSA animus. Having reasonably accepted the decision-makers’ evidence that they were unaware of the applicant’s protected activities at the time of the decision, and that his internal complaints were not a factor, the Board’s conclusion that the termination was for refusing to remove the damaging social media post was, in the court’s view, coherent and justified. The applicant had not shown that the Board’s decision was internally inconsistent, factually incoherent, procedurally unfair, or otherwise unreasonable.

Disposition and costs

In light of these findings, the Divisional Court dismissed the judicial review application and upheld the Board’s dismissal of both the OHSA reprisal application and the unfair labour practice application. The court then turned to costs. T&T sought $11,700, while the Board sought no costs. The applicant asked that no costs be awarded against him, relying on his inability to pay, the importance of the issues, and the fact that he had not pursued the Board’s reconsideration process. The court acknowledged its responsibility to ensure fair access and equal treatment for self-represented litigants but stressed that this does not entitle them to consequence-free litigation or to a different costs regime than represented parties. Appellate authority confirms that costs are an important tool for courts to influence parties’ conduct and deter abusive or unmeritorious proceedings. The court concluded that it would not be fair or appropriate to order no costs, noted that impecuniosity does not automatically shield a party from costs, and observed that reconsideration before the Board would have been a less expensive route. Given that the application for judicial review was found to be lacking in merit, the court ordered the applicant to pay costs to T&T in the amount of $7,500, thereby confirming T&T Supermarket Inc. as the successful party and fixing the total monetary award in its favour at $7,500 in costs.