Canadian Employment Law Today
Apr 13, 2005
Worker loses $23-million lawsuit against Ontario's Ministry of Labour
Ontario man sought damages for negligence, abuse of statutory powers, constructive fraud and civil conspiracy
A $23 million lawsuit, that Ontario’s Ministry of Labour called frivolous and an abuse of the court, was thrown out by the Ontario Superior Court of Justice.
The lawsuit was brought by Andy Harabulya, a temporary labourer who was employed by Kelly Services, a staffing agency. Harabulya was assigned to Kuehne and Nagel, a business in Brampton, Ont., from September 2001 to August 2002.
Harabulya said he left the job due to the hazardous nature of increased workplace duties. He alleged the working conditions rendered his employment impossible and constituted wrongful dismissal.
He sought the assistance of the following Ministry of Labour agencies: the Occupational Health and Safety Branch, the Employment Standards Branch and the Freedom of Information Office.
Ministry can’t order extra pay for added responsibilities
On Dec. 3, 2002, an employment standards officer conducted a fact-finding meeting between Harabulya and his former employer. Harabulya’s position was that he was entitled to more pay because of the additional responsibilities he was given.
The employment standards officer told Harabulya, orally and in writing, that there is no provision in Ontario’s Employment Standards Act that gave the Ministry of Labour jurisdiction to require an employer to pay an employee extra because of added duties.
On Dec. 10, 2002, the employment standards officer prepared a report, stating the file was being closed because the ministry lacked jurisdiction to find the employer had committed a violation. Harabulya did not appeal this decision under the review mechanisms provided in the Employment Standards Act.
Alleged health and safety violations
Harabulya also wrote to the Ministry of Labour’s legal services branch, asking that Kuehne and Nagel be prosecuted for health and safety violations.
After one exchange of letters and a conversation in which Harabulya told the ministry that, to the best of his knowledge, the hazards had been removed, neither Harabulya nor the ministry pursued the matter any further.
Freedom of information complaint
Harabulya then proceeded to make a number of requests pursuant to the Freedom of Information and Protection of Privacy Act.
When he received the information, he wrote to the manager of the Freedom of Information office alleging that certain information was missing and that he feared the records search had been sabotaged.
He received letters in response explaining that none of the records had been sabotaged, but they were “severed” because they contained personal information concerning other individuals. These letters also set out his right to appeal and the process by which to do so. Harabulya did not appeal this decision.
The $23 million lawsuit
Harabulya then launched legal action against the Ministry of Labour and a number other defendants including the employment standards officer and Chris Bentley, Ontario’s Minister of Labour. He claimed damages in connection with:
•the claim he made for unpaid wages pursuant to the Employment Standards Act;
•the request he made for prosecution of his former employer for violations under the Occupational Health and Safety Act; and
•the requests for information that he made to the Freedom of Information Office of the Ministry of Labour pursuant to the Freedom of Information and Protection of Privacy Act.
He sought $23 million in damages for negligence, abuse of statutory powers, constructive fraud and civil conspiracy.
The Ministry of Labour’s response
The Ministry of Labour moved for an order to dismiss Harabulya’s action on the following grounds:
•the statement of claim discloses no reasonable cause of action against any of the defendants;
•the defendant, the Ontario Ministry of Labour, is not a legal entity capable of being sued;
•the Ontario Superior Court of Justice does not have jurisdiction over the employment standards and freedom of information issues raised in the action; and
•the action is frivolous, vexatious and an abuse of the process of the court.
The court’s decision
The court agreed with the ministry that the court did not have jurisdiction over the employment standards issues raised in the action. Section 116 of Ontario’s Employment Standards Act governs review of decisions and orders of an employment standards officer.
These reviews by way of appeal can be made only pursuant to the legislation and provide for a review of an officer’s refusal to issue an order provided the employee applies in writing to the Ontario Labour Relations Board within 30 days of the service of the letter of refusal.
Harabulya did not apply in writing to file an application for review of the decision and because of that he could not seek judicial review of that decision by the court. Because he did not seek internal review, the decision of the employment standards officer was final, the court said.
The same held true for the freedom of information complaint. Because Harabulya did not file an appeal with the commissioner, as required by legislation, the court had no jurisdiction to hear an appeal from a decision concerning the disclosure of information under the Freedom of Information and Protection of Privacy Act.
The court then tackled whether there was a reasonable cause of action against any of the defendants named by Harabulya. It found there was not.
Harabulya also made allegations of abuse of power, fraud and conspiracy against the defendants.
•Abuse of power. In order for a plaintiff to succeed in an abuse of power claim, the following elements must be established as set out in Odhavji Estate v. Woodhouse:
•the defendant public officer engaged in deliberate and unlawful conduct in her capacity as a public officer;
•the public officer was aware that her conduct was unlawful and that it was likely to harm the plaintiff;
•such conduct was the cause of the plaintiff’s injuries; and
•proof of damages suffered must be adduced and they must be compensable at law.
The court said Harabulya did not plead any facts to support a finding of abuse of process in light of the above factors.
•Fraud. In order to establish fraud, the plaintiff must prove:
•a false representation or statement was made by the defendants;
•such a representation or statement was knowingly false;
•it was made with the intention to deceive the plaintiff; and
•it materially induced the plaintiff to act, resulting in damage.
The court said Harabulya’s allegations did not meet the above conditions and therefore dismissed his fraud claim.
•Conspiracy. In order to prove conspiracy, the plaintiff must prove that:
•there was an agreement between two or more persons to perform specific acts to injure the plaintiff;
•the defendants acted in furtherance of that agreement;
•the predominant purpose of that agreement was to injure the plaintiff or the conduct of the defendants was unlawful, directed towards the plaintiff alone and the defendant should have known that injury to the plaintiff was likely; and
•the plaintiff was injured as a result of the conspiracy.
The court said Harabulya did not prove a conspiracy.
Justice Donald MacKenize of the Ontario Superior Court of Justice dismissed Harabulya’s actions.
For more information see:
• Harabulya v. Ontario (Ministry of Labour), 2005 CarswellOnt 1163 (Ont. S.C.J.)