Court Finds Employee Rightfully Dismissed After Publishing Social Media Post About His Employer

Overview

In Cai Song v. Ontario Labour Relations Board, 2026 ONSC 165, the employer, T&T Supermarket Inc. (the Employer), was found to have rightfully terminated Cai Song's (Mr. Song) employment after he refused to remove a social media post against the Employer alleging discrimination and racism. Mr. Song argued that his termination was an unlawful reprisal because he had filed internal harassment/safety complaints, a Ministry of Labour (MOL) complaint, and he had become a union member and began working as a union organizer.

At first instance before the Ontario Labour Relations Board (the Board), the Board dismissed Mr. Song's unfair labour practice and reprisal claims, finding that the decision to terminate Mr. Song's employment was made prior to the Employer becoming aware of his pro-union activity or his MOL complaint. In addition, although the Employer was aware of Mr. Song's internal complaints, the Board found these complaints were not a factor in the decision to terminate his employment. The Board noted that the employee's credibility, the decision-maker's knowledge at the time of termination, and the timing of events are foundational to any reprisal analysis. The Ontario Divisional Court agreed.

This decision is also a helpful reminder that an employee's conduct outside the workplace may, in appropriate circumstances, carry direct consequences for the employment relationship.

Facts

Mr. Song worked part-time for the Employer at their Thornhill location from November 2, 2022 until November 30, 2023.

The dispute arose after Mr. Song published a 24-page post on the social-media platform "York BBS", commonly used within the Chinese Canadian community – the Employer's primary customer base.

In the social media post, Mr. Song compared the Employer to the "majesty of the party state," and accused the company of racism and discrimination, and made numerous complaints. Management learned of the post and instructed Mr. Song to remove the post by November 27, 2023. Mr. Song refused. On the morning of November 28, 2023, the Employer decided to terminate Mr. Song's employment.

Later that same afternoon, a Ministry of Labour inspector attended the Employer's Thornhill location regarding a complaint Mr. Song had filed under the Occupational Health and Safety Act, 1990 (OHSA),¹ alleging that the Employer had failed to post required workplace violence and harassment policies.

On November 30, 2023, the Employer terminated Mr. Song's employment.

Mr. Song's Applications to the Board

Mr. Song then filed two applications with the Board:

1. OHSA Reprisal Application. Song alleged that the termination of his employment constituted a reprisal contrary to section 50 of OHSA. After the Employer had initiated disciplinary investigations regarding Mr. Song, he raised a complaint about a co-worker. He escalated the complaint internally and included complaints about the conduct of his store manager. He then contacted the MOL to initiate a complaint under OHSA.
2. Unfair Labour Practice Application. Song signed a membership card with a union and began working as an organizer on their behalf. In the second application, Mr. Song alleged an unfair labour practice for engaging in pro-union activity contrary to section 72 of the Labour Relations Act, 1995 (the LRA).²

Mr. Song argued that these events informed the Employer's decision to terminate his employment.

The Board's Decision

The Board dismissed both applications (the Decision). The Board preferred the evidence of the Employer's witnesses over Mr. Song's evidence, who "was caught in a number of blatant falsehoods in his cross-examination" and his evidence was overall unreliable.³ The Board accepted that the Employer's decision-makers were not aware of Mr. Song's pro-union activity or his MOL complaint, until after the decision was made to terminate his employment.

Although the Employer was aware of Mr. Song's internal complaints, the Board found that these complaints did not factor into the decision to terminate his employment. The Board ultimately concluded that Mr. Song was terminated because he refused to remove the disparaging social-media post about the Employer. Mr. Song sought judicial review of the Board's Decision to the Ontario Divisional Court.

Judicial Review

The Divisional Court dismissed Mr. Song's application in its entirety, relying on the following:

1. Procedural Fairness. Song argued that he was denied the opportunity to respond before the Board found his post defamatory. The Court held that Mr. Song misunderstood the Board's comments concerning defamation. The Board did not make a finding concerning the legal question of defamation. Rather, the Board used the term "defamatory" when considering whether it was appropriate for the Employer to direct Mr. Song to remove the social media post.
2. Mr. Song argued he was denied the opportunity to make submissions concerning harassment. The Court held that Mr. Song could have sought reconsideration under the LRA.
3. The Board Did Not Exceed Its Jurisdiction. The Board did not exceed its jurisdiction by making findings about defamation and harassment. The Board did not make findings concerning defamation or harassment under the Ontario Human Rights Code.

The Court did not find a basis to interfere with the Board's findings. The Court emphasized that reasonableness, not perfection, is the standard. The Court dismissed the application, and the Employer was awarded $7,500 in costs.

Key Takeaways

Terminating an employee after they raise a workplace complaint often attracts heightened scrutiny from courts and tribunals regarding the reason for termination. This decision reinforces that employers who can demonstrate a clear, well-documented, and independent basis for termination may successfully defend allegations of unlawful reprisal.

Footnotes

1. Occupational Health and Safety Act, 1990, c.O.1.

2. Labour Relations Act 1995, S.O. 1995, c.1., Schedule A, s.72.

3. Cai Song v. Ontario Labour Relations Board, 2026 ONSC 165 at para 5.

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