Divisional Court rejects worker’s bid to overturn firing over critical social media post
The Ontario Divisional Court has dismissed a judicial review application by former T&T Supermarket employee Cai Song, upholding a 2025 Ontario Labour Relations Board ruling that his firing was not an unlawful reprisal or anti‑union dismissal.
In a Jan. 12, 2026 endorsement, a three‑judge panel dismissed Song’s application and ordered him to pay $7,500 in costs to T&T Supermarket.
Song was a part‑time employee at T&T’s Thornhill grocery store from Nov. 2, 2022 until Nov. 30, 2023.
Critical social media post and workplace complaints
The court recorded that he made a 24-page-long post on York BBS, a social media platform that targets the Chinese Canadian community, T&T’s primary customer base. In that post, he “compared T&T to the ‘majesty of the party state’” and “alleged racism, discrimination and numerous other criticisms of T&T.”
Management directed him to remove the post by Nov. 27, 2023. Song did not and the decision was made to terminate his employment on Nov. 28, 2023.
That afternoon, an inspector from the MOL visited the Thornhill store location pursuant to the applicant’s complaint under the Occupational Health and Safety Act regarding the alleged failure of T&T to have posted workplace violence and harassment policies in the store.
Song’s employment was terminated on Nov. 30, 2023.
Dismissing someone for their conduct outside of work, including their social media posts, is always going to be complicated. However, it may be possible to do so, potentially without having to pay the employee anything, says one employment lawyer.
Reprisal and anti‑union claims at labour board
Song brought two applications before the Ontario Labour Relations Board.
First, he alleged that his termination was an unlawful reprisal under s.50 of the Occupational Health and Safety Act, arguing it was a result of “his internal and external harassment and health and safety complaints.” He had complained about a co‑worker, Ms. Wong, then escalated the complaint to include his store manager, Mr. Zhao, and contacted the Ministry of Labour to initiate an OHSA complaint.
Second, he alleged “an unfair labour practice for engaging in pro-union activity contrary to s.72 of the Labour Relations Act 1995,” after signing a union card with United Food and Commercial Workers and commencing work as an organizer on their behalf.
The court summarized that Song “submitted that all of these matters informed the decision to terminate his employment.”
‘Blatant falsehoods’ as applications dismissed
After a nine‑day hearing, the Board dismissed both applications on May 21, 2025. It preferred the evidence of T&T’s five witnesses over Song’s, finding he “was caught in a number of blatant falsehoods in his cross-examination.” It concluded that he was “given to prevarication and his evidence was unreliable.”
The Board accepted that the decision‑makers “were not aware of the applicant’s pro-union activity or his MOL complaint until after the decision to terminate him was made.”
They were aware of his internal complaints, but “these were found not to be a factor in his termination.” The Board found that the applicant was terminated for refusing to take down the social media post defaming T&T.
Judicial review: standard of review and jurisdiction arguments
On judicial review, Song argued the Board made “numerous errors,” including exceeding its jurisdiction by making findings concerning “defamation, harassment and bad faith,” failing to assess the evidence properly, denying procedural fairness and failing to justify its decision under Canada (Minister of Citizenship and Immigration) v. Vavilov.
He asked that the decision be quashed and remitted to a differently constituted panel.
T&T submitted that his concerns could have been addressed under the reconsideration power in s.114(1) of the Labour Relations Act, that the decision was within the Board’s jurisdiction, procedurally fair and reasonable, and that the dismissal should stand.
The court held that “the standard of review for the Board’s decision is reasonableness,” citing Turkiewicz v. Bricklayers Masons Independent Union of Canada, Local 1. It rejected Song’s position that questions of jurisdiction over defamation and harassment attracted a correctness standard, noting that in Vavilov, the Supreme Court of Canada “expressly rejected a correctness review on general jurisdictional questions,” and that he had not rebutted the presumption of reasonableness.
On procedural fairness, the court said it had to determine whether the Board afforded “the required level of procedural fairness in light of all the circumstances,” applying Baker v. Canada.
Credibility findings and evidentiary issues
The court refused to revisit the Labour Board’s factual and credibility findings, stressing that judicial review cannot “reweigh and reassess” evidence absent exceptional circumstances.
The Board had accepted T&T’s witnesses as credible and found Song unreliable, noting he offered no evidence that decision‑makers knew of his union or MOL activities. The court rejected his reliance on non‑decision‑makers, upheld the refusal to draw an adverse inference from missing witnesses, and found nothing unreasonable in excluding the Ministry of Labour file under Browne v. Dunn.
It concluded Song had not shown the decision was incoherent, unfair, or unreasonable, and dismissed his application.
It ordered Song to pay costs to T&T in the amount of $7, 500.
