Ontario Labour Board rejects appeal from Cataraqui Woods Dentistry

Just over a month after a local dental clinic requested reconsideration of the Ontario Labour Relations Board’s (OLRB’s) decision with regard to one of its former employees, the clinic’s appeal has been rejected.

Cataraqui Woods Dentistry (which will be referred to as CWD), a dental clinic in west-end Kingston, along with its owner, Dr. Waji Khan, and Dr. S. Vaid (relation to dental clinic unknown) filed for an appeal of the OLRB’s decision on July 10, 2023. The decision in question — referred to by the Labour Board as the “Substantive Decision” — concerned the employment status and the conclusion of that employment of a former dental hygienist at the clinic. The Substantive Decision was the result of that former employee asking for a reconsideration of an earlier Board decision.

As previously reported by Kingstonist, in his decision on June 19, 2023, OLRB Vice-Chair Brian Smeenk allowed a former CWD employee (who will be referred to as Ms. X) to apply for a review — and perhaps an overturn — of an Employment Standards Officer (ESO)’s refusal to issue CWD an Order to Pay. This matter related to Ms. X no longer working at CWD and asserting she was, in fact, an employee of the clinic — not an independent contractor — and further, that she was “constructively dismissed,” in that she felt forced to leave her employment with CWD due to the “toxic environment” of the workplace. Much of the case revolved around the actions and behaviours of the owner and operator of CWD, Dr. Khan, a former member of the Canadian Armed Forces and a former federal Green Party candidate for Kingston and the Islands.

Vice-Chair Smeenk found in that Substantive Decision that Ms. X was, indeed, an employee of CWD during her time working there, and that she was, in fact, constructively dismissed from the clinic due to the toxic work environment.

And it was Smeenk who once again heard from the dental clinic and Dr. Khan during the request for reconsideration. The decision in that matter, completed on August 30, 2023, is condensed as follows. For a complete overview of the allegations made by both Dr. Khan and Ms. X, see Kingstonist’s original coverage on this matter.

After outlining the reasons for which the OLRB might reconsider a decision, Smeenk noted that CWD’s reasons for request of reconsideration (appeal) unique to its case were that the decision was “clearly wrong,” in that:

• The Board gave insufficient weight to the factors which reflect an independent contractor relationship between [Ms. X] and CWD and thus erred in finding that she was an employee; and
• [Ms. X]’s lack of credibility and the lack of evidentiary support for her allegations prevented her from establishing an instance of constructive dismissal, and the Board erred in finding otherwise.

Quoting from the “General Guidelines” of the OLRB’s Information Bulletin 19 (which are “distilled from the Board’s prior decisions”), Smeenk noted, “Because of the need for finality in labour relations matters, the Board does not treat its reconsideration power as either a tool for a party to repair the deficiency of its case nor as an opportunity to reargue it… If the requesting party relies on matters that could reasonably have been raised at the original hearing, the Board will normally not reconsider its decision.”

Board’s ‘Analysis’ on ‘Independent Contractor Factors’

“The question before the Board is thus whether the Substantive Decision contains any obvious error. Furthermore, are the issues raised matters that were or could have been raised in the original hearing?” Smeenk began in his decision.

“For the reasons that follow, I have concluded that there is no obvious error in the Substantive Decision. Furthermore, in my view, CWD is seeking to re-argue submissions that were or could have been made in the original hearing.”

With regard to Ms. X’s status with CWD — that is, whether she was an independent contractor or an employee of the clinic — CWD submitted that the Board erred in “the approach it took to weighing and assessing all of the evidence.” Noting that the Supreme Court of Canada has established that there is no universal test to determine whether a person is an employee or an independent contractor,” the dental clinic asserted that “the Board erred by taking a general approach, as it focused its analysis largely on [Ms. X]’s working conditions and renumeration [sic].”

“The Board failed to appropriately weigh the evidence which favours finding [Ms. X] to be an independent contractor,” CWD submitted.

According to CWD, that evidence, condensed by Kingstonist below, included:

• That Ms. X never told Dr. Khan that she perceived herself as an employee
• That Ms. X “confirmed in writing at least once” that she perceived the clinic’s dental hygienists to be independent contractors
• That Ms. X filed her taxes as an independent contractor
• That Ms. X had “admitted that dental hygienists had more independence than CWD employees”
• That Ms. X “stated” that dentists at the clinic were independent contractors, and that those dentists “used [a] virtually identical contract” to her own
• That Ms. X “signed an agreement accurately describing the independent nature of her working conditions”
• That Ms. X was compensated based on the clients she served, which is inconsistent with the compensation format of CWD employees
• That Ms. X “confirmed that she was unfamiliar with any CWD dental hygienist being subject to any form of employment discipline”
• That Ms. X scheduled follow-up appointments directly with her patients
• That Ms. X “had the liberty to use time before and after appointments as she preferred”
• That Ms. X knew that many of her fellow dental hygienists worked at CWD while simultaneously working elsewhere

CWD also submitted that the circumstances of Ms. X entering into an agreement with the clinic were not accurately weighed in the Board’s previous decision:

“Furthermore, the signing of and circumstances surrounding the independent contractor agreement was a crucial element of the reasoning in [the] decision [in question]. However, it does not appear that sufficient weight is afforded to the extensive inconsistencies in [Ms. X]’s testimony when it was determined… that the agreement was not entered into ‘freely and voluntarily’ and that she did not have ‘an opportunity to read and fully understand it before executing it,’” the dental clinic alleged. “This oversight is reflective of multiple fatal flaws in the overarching logic of the decision.”

For those reasons, CWD argued, Ms. X should be considered an independent contractor, “and therefore is not entitled to benefits under the Act.”

Board’s ‘Decision’ on ‘Independent Contractor Factors’

Smeenk noted he agrees that the Supreme Court of Canada has found that there is “no universal test to determine whether a person is an employee or an independent contractor,” citing the case law of Sagaz Industrie (2001).

“Indeed, the very passage from Sagaz cited by CWD in the submission quoted above was quoted in the Substantive Decision at paragraph 51,” Smeenk wrote, the Substantive Decision being the decision in question.

However, that was about the only point on which Smeenk agreed with the dental clinic.

“These submissions, in my view, do not demonstrate that there is an obvious error in the Substantive Decision regarding Ms. [X]’s employment status. Rather, these submissions constitute a re-argument of CWD’s case,” he wrote in his decision.

“After reviewing the governing law, the Substantive Decision reviews the voluminous evidence relating to the relevant analytical factors [in Sagaz Industrie (2001)]. This takes up some 16 pages. That review is followed by a seven-page analysis and weighing of the evidence, on a factor-by-factor basis,” he continued.

“Much of the evidence described in CWD’s submission quoted above, which it argues favours a finding that Ms. [X] was an independent contractor, was explicitly discussed.”

Noting that the Board had recognized in its original decision that some of the evidence and factors relevant to Ms. X’s employment status “weighed in favour of CWD,” Smeenk said those factors and evidence were “not enough to find in CWD’s favour.”

“It is not surprising that CWD would disagree with the Board’s assessment and weighing of the evidence and the conclusion the Board reached. CWD, however, made or could have made all of the same submissions it now makes, during the original hearing,” Smeenk concluded.

“Disagreeing with the Board’s assessment and conclusion is not the same as demonstrating an obvious error of law. No error of law has been demonstrated.”

Board’s ‘Finding on Constructive Dismissal’

The next part of the appeal of the Board’s original “Substantive Decision” saw Cataraqui Woods Dentistry and Dr. Khan submit that the Labour Board “erred in finding that [Ms. X] was constructively dismissed. CWD specifically stated that Ms. X “consistently displayed a lack of credibility and a lack of evidentiary support of her allegations. The dental clinic pointed out that the Board “identified deficiencies in [Ms. X]’s credibility,” and further argued that “It is unreasonable for the Board to recognize [Ms. X]’s lack of credibility yet still rely so extensively on her allegations in its analysis.”

These assertions failed to move Smeenk, given his response.

“Nothing in these submissions demonstrates, in my view, an obvious error of law in the Substantive Decision in relation to the finding of constructive dismissal. Again, CWD simply disputes the conclusions reached in the Decision and seeks to re-argue how the Board should have assessed the evidence. In doing so, CWD fails to note the countervailing credibility problems the Board had with its primary witness, Dr. Khan,” the Board’s vice-chair wrote.

“Assessing credibility and making findings of fact regarding workplace disputes are at the heart of the Board’s adjudicative function. This can be a challenging function when there are many issues of credibility.”

Smeenk went on to outline how and where the Board had dealt with issues of credibility in its original findings and decision, before swiftly concluding any further investigation as to whether Ms. X was constructively dismissed.

“In short, the credibility issues now raised by CWD were dealt with extensively in the Substantive Decision. Although CWD may disagree with some of the conclusions reached by the Board in that regard, and consequently in regard to the constructive dismissal finding, that does not amount to the kind of error of law which would lead the Board to reconsider its decision,” he found.

Board’s final decision

With that, Smeenk concluded the matter of reconsidering the Board’s original decision — the most recent in a long string of filings, hearings, and adjudications on the matter, which began in March 2021.

“For the above reasons, I have concluded that there is no proper basis to exercise the Board’s discretion to reconsider the Substantive Decision,” he determined.

“The request for reconsideration is therefore dismissed.”

Editorial note: Since first publishing an article regarding the conflicts between Cataraqui Woods Dentistry and Ms. X, Kingstonist has learned that not all of the employees listed on the website under the ‘The Oral Health Team’ tab remain employed at the dental clinic — in fact, some of the employees listed have not worked at Cataraqui Woods Dentistry for over a year.