Retaliation or Cause? OLRB Decision Upheld After Employee Fired for Online Defamation

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Terminations following employee complaints often attract heightened scrutiny from courts and labour tribunals. Important questions arise in these situations: was the employer action against the complainant justified or was it a reprisal for the decision to file the complaint? And is the employee using the complaint process to gain an advantage in litigation? In legal terms, is the employee using the process as a shield for legitimate protection or a sword to pursue a remedy they may not be entitled to?

A recent decision of the Ontario Superior Court of Justice (the “Court”) underscores an important point for employers: where there is a clear, well-supported and independent reason for termination, courts are cautious about overturning an employer’s decision.

In Cai Song v. Ontario Labour Relations Board, 2026 ONSC 165, the Court dismissed an application for judicial review of a decision in which the Ontario Labour Relations Board (the “OLRB” or the “Board”) rejected both a reprisal complaint and an unfair labour practice complaint. The case provides a useful illustration of how determination of credibility, proper timing for action and the decision-maker’s knowledge influence reprisal analysis.

What Happened

Cai Song (the “Applicant”) had been a part-time employee at T&T Supermarket Inc. (the “Employer”) in Thornhill, Ontario, from November 2022 until the end of November 2023.

During his employment, the Applicant wrote a 24-page post on York BBS, a social media platform commonly used within the Chinese Canadian community and regularly viewed by the Employer’s customer base. The post included allegations of racism, discrimination and other criticisms of the Employer.

The Employer became aware of the post and directed the Applicant to remove it by November 27, 2023. The Applicant refused. Accordingly, on the morning of November 28, 2023, the Employer terminated the Applicant’s employment, to be effective two days later on November 30, 2023.

Following the Applicant’s termination meeting on November 28, 2023, a Ministry of Labour inspector attended the Employer’s store in response to a complaint filed by the Applicant, alleging that workplace violence and harassment policies had not been posted.

The Applicant then filed two applications with the OLRB alleging unlawful reprisal under the Occupational Health and Safety Act and unfair labour practice under the Labour Relations Act, based on alleged union-organizing activity.

The Board’s Findings

After a nine-day hearing, the OLRB dismissed both applications.

Central to its decision were credibility findings. Notably, the Board preferred the evidence of the Employer’s witnesses and found the Applicant’s testimony unreliable. This included multiple inconsistencies and falsehoods revealed during cross-examination. The Board also found that the individuals who made the termination decision were unaware of the Applicant’s union activity or Ministry of Labour complaint at the time the decision was made. While they were aware of certain internal complaints raised by the Applicant, the Board found that those complaints played no role in the termination decision.

The OLRB accepted the Employer’s position that the Applicant’s termination was based on a single reason: the Applicant had refused to remove a social media post that management viewed as damaging to its reputation and business.

The Board described the Applicant’s post as “defaming” the Employer in the ordinary sense of harming its reputation, without making any legal determination about defamation as a cause of action. Importantly, the Board rejected the argument that the proximity in time between the Applicant’s postings, the Employer’s request to delete them and the decision to terminate was sufficient to establish improper motive. The Board found that there had been no evidence that the decision to terminate was influenced by anti-union animus, retaliation for health and safety activity or any right the Applicant allegedly sought to enforce under the statute.

Judicial Review

The Applicant sought judicial review of the OLRB’s decision, arguing that the Board had exceeded its jurisdiction, made unsupported findings and failed to properly consider the surrounding circumstances. The Superior Court dismissed this appeal.

The Court emphasized that the judicial review process is not an opportunity to re-argue the case. The Board had conducted a full hearing, assessed the evidence and made clear credibility findings. Those findings were entitled to deference by the Court.

The Court also rejected mere speculation that decision-makers might have learned about protected activity through informal channels. The Board had made a factual finding that they did not have such knowledge, and there was no basis for the Court to disturb that conclusion.

The Court also confirmed that the Board did not stray beyond its role by commenting on the nature of the social media post or the reasonableness of the Employer’s response. Those comments were made in the context of explaining why the termination decision was not retaliatory.

Minor errors in the Board’s reasons were found to be inconsequential and did not undermine the overall reasonableness of the decision.

Takeaways

The decision confirms that, even where a termination occurs close in time to employee complaints, employers may lawfully terminate employment where there is a clear, independent reason for doing so. Timing alone does not convert a misconduct-based termination into an unlawful reprisal.

Additionally, the case highlights the value of clear, contemporaneous employer responses to employee misconduct, including on social media. Where concerns are identified, directions are given and consequences follow from non-compliance, employers are better positioned to demonstrate that any subsequent discipline was grounded in misconduct rather than retaliation.

And finally, the advice to “Document! Document! Document!” is never more valuable than it is in situations where an employee alleges reprisal. In the absence of a paper trail (hard copy or virtual), a court or tribunal will be more likely to accept a former employee’s version of events than that of the employer. Vigilance in approach and documentation may ultimately dull the employee’s sword.

The Workplace Law Group at Aird & Berlis LLP provides strategic labour advice to help employers navigate union-related challenges, from resisting certification to managing collective bargaining and arbitration. Please contact the authors or a member of the team if you have any questions or require assistance.