James McGrath

The complainant filed a grievance alleging the employer unfairly declared her position abandoned under section 42 of the Public Service of Ontario Act, 2006.

The employer raised a preliminary objection that the complainant failed to file her Notice of Proposal within the mandatory 14-day time limit under O Reg 378/07.

The complainant argued the employer waived this objection by participating in mediation.

The Board held that the statutory time limits are substantive and cannot be waived.

Because the notice was filed 15 days after the complainant became aware of the decision, the Board lacked jurisdiction to hear the complaint on its merits.

The complaint was dismissed.

The respondents brought a motion to strike the applicants' application.

The court did not strike the application but granted the applicants leave to convert it to an action.

The parties subsequently made written submissions on the costs of the motion.

The applicants argued they should not be subject to costs as they were public interest litigants.

The court rejected this argument, finding the applicants were pursuing a personal pecuniary interest related to their commercial property.

The court awarded costs to the respondents, fixing the amounts at $15,000 plus disbursements for the federal respondents, and $2,500 each for the two municipal respondents.

This costs endorsement followed a motion where the applicants' initial application was converted to an action, which they subsequently did not pursue.

The respondents sought costs for the motion.

The court determined that the applicants were not public interest litigants, as their claims were personal and pecuniary.

Consequently, the applicants were ordered to pay partial costs to the various respondents, reflecting the respondents' ultimate success in concluding the litigation, albeit not on the exact grounds initially pleaded.