An Ontario court has dismissed a worker’s application for judicial review after a labour board found he was terminated for refusing to remove a social media post criticizing his employer, not for union activity or health and safety complaints.
The worker was employed part-time at a T&T Supermarket location in Thornhill, Ont., from November 2022 until November 2023. He made a 24-page post on York BBS, a social media platform targeting the Chinese Canadian community, which the court noted was the employer’s primary customer base. In the post, the worker compared the employer to “the majesty of the party state” and alleged racism, discrimination and other criticisms.
Management directed the worker to remove the post by November 27, 2023. He did not comply, and the decision to terminate his employment was made on the morning of November 28, 2023.
Ministry of Labour complaint
That same afternoon, a Ministry of Labour inspector visited the store pursuant to the worker’s complaint under the Occupational Health and Safety Act regarding the employer’s alleged failure to post workplace violence and harassment policies. The worker’s employment was terminated on November 30, 2023.
The worker filed two applications with the Ontario Labour Relations Board. He alleged his termination was unlawful reprisal for health and safety complaints contrary to the OHSA, and that it constituted an unfair labour practice for engaging in pro-union activity contrary to the Labour Relations Act. He had signed a union card with United Food and Commercial Workers and worked as an organizer on their behalf.
Board finds worker’s evidence unreliable
After a nine-day hearing, the board dismissed both applications on May 21, 2025. The board preferred the evidence of the employer’s five witnesses over the worker’s testimony, finding he “was caught in a number of blatant falsehoods in his cross-examination.” The board found the worker was given to prevarication and his evidence was unreliable.
The board accepted that the decision-makers were not aware of the worker’s pro-union activity or his Ministry of Labour complaint until after the termination decision was made. While they were aware of his internal complaints, these were found not to be a factor in his termination. The board concluded the worker was terminated for refusing to remove the social media post.
Judicial review application
The worker sought judicial review, arguing the board exceeded its jurisdiction by making findings related to defamation, harassment and bad faith, failed to properly assess evidence, denied procedural fairness and failed to justify its decision according to Supreme Court of Canada principles.
The Divisional Court found the worker was not denied procedural fairness. The court determined the board used the term “defamatory” in the colloquial sense when considering whether it was appropriate for the employer to direct removal of the social media post, and was not deciding a legal question of defamation.
The court noted that if the worker felt denied an opportunity to make submissions on defamation and harassment, he could have sought reconsideration under the Labour Relations Act. The board has stated it will grant reconsideration requests where “representations are sought to be made which the party seeking consideration had no previous opportunity to make.”
“The applicant’s application for judicial review on this issue is premature,” the court found.
Credibility findings upheld
The court also rejected the worker’s request to reassess the board’s credibility findings. “The decision maker may assess and evaluate the evidence before it and, absent exceptional circumstances, a reviewing court will not interfere with its factual findings,” the court stated, citing Supreme Court of Canada authority.
The board had found the employer’s witnesses credible and the worker’s evidence unreliable. It accepted testimony from two decision-makers that they were not aware of the worker’s union organizing activities or Ministry of Labour complaint when making the termination decision.
The worker argued two other individuals could have known the reasons for the Ministry of Labour visit. The court found this was not evidence that the decision-makers themselves knew the reason prior to making the termination decision.
The court rejected the worker’s argument that the board should have drawn an adverse inference from the fact that two of four decision-makers did not testify. The board had correctly found there was no critical conflict in the evidence requiring such an inference.
The worker also raised what he called “plausible channels” through which decision-makers could have learned of his protected activity. The court found these hypothetical areas were unsupported by evidence and were not raised before the board.
Costs awarded
The court ordered the worker to pay costs of $7,500 to the employer. While noting that courts must ensure self-represented persons receive fair access, the court stated this does not mean consequence-free access or unequal treatment compared to represented parties.
“Had the applicant sought reconsideration before the Board, that would have been a less costly way of proceeding,” the court found. “The application was lacking in any merit.”
For more information, see (Plaintiff) v. Ontario Labour Relations Board, 2026 ONSC 165 (CanLII)
