COURT FILE NO.: 02-DV-783

DATE: 20030314

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

B E T W E E N:

MOHAMMED ZAKI

Peter F. Burnet, for the Applicant

Applicant

• and -

OTTAWA HOSPITAL (General Campus)

Lynne J. Poirier for the Ottawa Hospital (General Campus)

Respondent

ONTARIO PUBLIC SERVICE EMPLOYEES UNION (Union)

Respondent

Timothy Hadwen, for the Ontario Public Service Employees Union

C. McKINNON J.

Nature of the Case

[1] The Respondents seek to dismiss this Application for Judicial Review brought by Mohammed Zaki on the basis of excessive delay and lack of standing.

[2] Mr. Zaki's Application for Judicial Review, dated November 29, 2002 and amended on December 10, 2002, seeks, among other things, orders extending all time limits; orders quashing Arbitration awards rendered by Arbitrator Kates dated March 25, 1994 and Arbitrator Keller dated June 17, 1995; orders for rehearing of the arbitrations; orders reinstating the Applicant as an employee of the Ottawa Hospital; an order setting aside the decision of the Ontario Labour Relations Board dated November 2, 1999 dismissing Mr. Zaki's application in which he complained that the Ontario Public Service Employees' Union, (OPSEU) had breached its duty to fairly represent Mr. Zaki and to act in good faith and to the best of its ability in representing Mr. Zaki in the arbitration hearings conducted by Arbitrators Kates and Keller in 1994 and 1995.

[3] Mr. Zaki alleges that at all times the Ottawa Hospital was intent on terminating Mr. Zaki by virtue of his race, nationality and language. Mr. Zaki is a native of Pakistan. He is of the Muslim faith and his first language is Urdu. His second language is English and he does not speak French. In his affidavit in support of this application, Mr. Zaki states:

“…I admit I am not able to state with particularity whether I was discriminated against because of my faith, national origin or language, but I firmly believe I was and have always believed that I was. I do not have direct first hand evidence of any words or specific evidence of a hostile or discriminatory animus against me on these grounds, but I do not believe a native born Canadian citizen would have been subjected to the repeated allegations and fervent campaign for dismissal that I was.”

[4] The Applicant submits that he never made these allegations before because he believed he required direct evidence and because he “found the whole subject embarrassing and humiliating.”

[5] Mr. Zaki had been hired by the Ottawa Hospital as a respiratory therapist in 1971. Throughout his disciplinary hearing, he was represented by OPSEU, the certified exclusive bargaining agent for Mr. Zaki. OPSEU and the Ottawa Hospital were the only parties to the collective agreement in force throughout the period of time that Mr. Zaki was employed with the hospital. The Ottawa Hospital and OPSEU are united in encouraging dismissal of Mr. Zaki’s application.

[6] Mr. Zaki was disciplined on many occasions. On at least ten occasions OPSEU grieved disciplinary measures on behalf of Mr. Zaki and received written decisions by labour arbitrators appointed pursuant to the collective agreement.

[7] The record discloses that in July, 1985 Mr. Zaki was disciplined for conduct reflecting a serious lack of competence following an incident involving an inappropriate use of ventilator equipment and a charting error. The penalty was grieved and dismissed by Arbitrator Jane Devlin on February 15, 1988.

[8] On May 16, 1986 Mr. Zaki was discharged from his position due to a failure to check a patient's identification bracelet, resulting in Mr. Zaki drawing blood from the wrong patient and reporting those results to the attending physician. Mr. Zaki successfully grieved the termination and was reinstated with the penalty of discharge replaced by a 12 month suspension by Arbitrator Joseph Roach in an award dated February 28, 1989.

[9] On January 30, 1991, Mr. Zaki was issued a written reprimand for failure to take appropriate steps to advise the hospital that he would not be at work that day. Mr. Zaki grieved the reprimand. The grievance was heard by Arbitrator Brian Keller on November 30, 1991, and Mr. Keller upheld the reprimand.

[10] On February 26, 1992, Mr. Zaki was issued a written warning for failing to provide a replacement for a shift change. That warning was grieved and Arbitrator David Kwavnick upheld the decision on May 6, 1992.

[11] On August 8, 1989, Mr. Zaki was issued a letter of discipline relating to inappropriate conduct, incompetence and a poor attitude towards his co-workers. That letter was grieved and heard by Arbitrator Fraser in March, 1992. The hospital objected to the proceeding on the basis of excessive delay in referring the matter to arbitration. The arbitrator agreed and the grievance was denied on June 9, 1992.

[12] In April 1991, Mr. Zaki was issued a one day suspension in respect of failures to follow protocol in the treatment of patients. The suspension was grieved and on November 5, 1993 Arbitrator Keller held that the sanction was reasonable and dismissed the grievance.

[13] On February 6, 1992, Mr. Zaki was issued a five day suspension in respect of two serious incidents of professional misconduct in the performance of his duties. The first involved an increase of pressure during the administration of a prescribed Ventolin treatment on “Baby LP” to 29 from the prescribed limit of 23. Secondly, there was an increase of pressure on the manual ventilation of “Baby R” which exceeded the prescribed pressure limit of 10/03. The letter of discipline stated "On numerous occasions you were told by nursing staff to decrease the pressure of the ventilation. Instead, you proceeded to increase the pressure limit on the manometer so as to decrease the noise level emanating from the machine." The five day suspension was grieved and on March 25, 1994, following a 10 day hearing, Arbitrator David Kates upheld the suspension. A review of his decision reveals that the incidents were serious. Mr. Zaki did not testify. Expert evidence from Dr. Davis, an Associate Professor of Pediatrics at the University of Ottawa, and the holder of a neonatal fellowship at the University of California established the “very dangerous” activity of using overly high pressures to ventilate premature babies. Arbitrator Kates found the complaint involving “Baby LP” to be proved on “clear and cogent evidence”, but not the complaint involving “Baby R”.

[14] Mr. Zaki pushed OPSEU to seek judicial review of the Kates Arbitration. On advice of independent counsel dated December 20, 1994 judicial review was not deemed warranted, on the basis that there was “little likelihood of success”.

[15] In his decision, Arbitrator Kates relied, to some extent, on testimony given by Nurses Leduc and Crispin to conclude that Mr. Zaki had increased ventilation pressures beyond prescribed limits. More shall be said on this point later in these reasons.

[16] On April 14, 1992, Mr. Zaki was dismissed by the hospital due to lack of competence and unacceptable practices in his role as a respiratory therapist in the neonatal intensive care unit of the hospital when an incident arose where Mr. Zaki was again found to have committed an error using the ventilator equipment involving “Patient H”. Mr. Zaki grieved the dismissal and on January 17, 1995, following an 8 day hearing, Arbitrator Keller upheld the decision to discharge Mr. Zaki. A review of the decision establishes that there were serious breaches of protocol and Mr. Keller disbelieved Mr. Zaki’s evidence.

[17] As a result of these serious incidents, the Canadian Society of Respiratory Therapists conducted an investigation. Part of the investigation included interviews with the nurses involved. This has been referred to by Mr. Zaki as “new evidence”.

[18] The “new evidence” involved a purported change of testimony on the part of Nurses Crispin and Leduc in respect of the Kates Arbitration. It was revealed that these nurses now maintained that Mr. Zaki had allowed the ventilator pressure to increase, as opposed to physically increasing it.[^1]

[19] With respect to the Keller decision, Arbitrator Keller had noted:

…That same evening, Luce Gougeon, a Registered Respiratory Technologist who had been informed of the unusual reading was in the patients’ room investigating and saw a ventolin mask attached to an O2 flowmeter.

[20] Apparently the hospital’s schedule for March, 1992 demonstrated that Nurse Gougeon did not work on March 31, 1992.[^2]

[21] Mr. Zaki was subsequently subjected to a hearing before the Canadian Society of Respiratory Therapists on July 15, 1996. The three person committee reviewed 12 complaints that had been made against Mr. Zaki. Mr. Zaki's counsel disputed the jurisdiction of the committee, including an argument that the process violated Mr. Zaki's human rights under the Canadian Charter of Rights and Freedoms, and that his client had been subjected to prejudice.

[22] The only viva voce evidence heard was from Mr. Zaki himself. Although there were 12 counts of complaint concerning Mr. Zaki, the committee only dealt with four counts. The committee report simply states “…It was declared that counts number one through six and counts number 11 and 12 would not be addressed during the course of the hearing.” The record discloses that Mr. Zaki’s counsel did not contest the remaining counts of complaint against Mr. Zaki. The uncontested counts were not included in the material filed before me.

[23] As to the counts the committee did consider, reliance was placed upon the documentary record and viva voce evidence from Mr. Zaki. The committee was made aware of the “new evidence” involving Nurses Leduc and Crispin.

[24] The first count was in relation to the increase of pressure in relation to "Baby LP". The second dealt with the failure to arrange for a replacement on a shift change. The third related to an improper recording of the arterial blood gas of "Patient H". The final count was in relation to Mr. Zaki performing a medical act when he had not been re-certified.

[25] After considering the evidence on each of these matters, the first three were disposed of on the basis that the committee were “not convinced beyond a reasonable doubt that Mr. Zaki was guilty”, (emphasis added). The committee determined that “…As professionals within the Society governed by good and just conscience (we) cannot proclaim that the member cited is incompetent as a respiratory therapist, nor do we claim to have the means for such assessment."

[26] Seizing upon the decision of the judicial committee Mr. Zaki attempted to have OPSEU reopen the entire question of his status and sought to be re-employed by the Ottawa Hospital, particularly on the basis of “new evidence” in relation to two of the complaints aforementioned.

[27] In a well reasoned opinion dated July 17, 1997, independent counsel retained by OPSEU concluded that judicial review based on the “new evidence” would not likely succeed, and that even if it were to succeed, rehearing of the arbitrations themselves would not likely result in different decisions.

[28] On July 23, 1997, the negotiations supervisor informed Mr. Zaki's counsel that:

Given the importance we attach to seeking justice for our members, it was decided to seek a legal opinion as to the possibility of proceeding as you suggest. Accordingly, enclosed is a copy of the opinion that we obtained.

Unfortunately it is the opinion of our counsel that the likelihood of successfully arguing for Mr. Zaki's case to be reopened is minimal. That opinion, together with the substantial cost of advancing such a case, leaves OPSEU with no other alternative than to deny your request.

[29] Mr. Zaki's lawyers pursued the point and continued to ask OPSEU to reopen the grievance proceedings. On April 1, 1999, this request was refused by President Leah Casselman who wrote:

…OPSEU has, at a very considerable cost, defended your client in many grievances…Based on legal opinion, and my staff’s review of the file, a decision has been reached not to re-open Mr. Zaki’s case.

[30] On April 15, 1999, Mr. Zaki's counsel again asked for reconsideration and on May 18, 1999 President Casselman wrote and stated:

“I am in receipt of your most recent letter dated April 15, 1999 along with a copy of the report of the judicial committee and recommendations to the board of directors of the CSRT.

After reviewing this documentation our position still stands that we will not reopen Mr. Zaki's case.”

[31] On September 21, 1999, Mr. Zaki brought action against OPSEU on the basis that OPSEU had failed to fairly represent him in the arbitration proceedings before Arbitrators Kates and Keller and the failure of the Union to seek to re-open the arbitration awards based on the “new evidence”. The hearing took place before the Ontario Labour Relations Board and was presided over by Timothy W. Sargeant, Vice-Chair. Among other evidence considered, the full record of the hearing before the judicial committee was filed. On November 7, 1999 the OLRB determined:

In this situation the Board would not presume to second guess how counsel should present evidence in an arbitration case, without the strongest evidence that counsel acted with malice or ill will or was grossly negligent. Contrary to any such reference in the allegations, there is nothing in either award to suggest that counsel representing the Union in these matters acted in such a fashion.

With respect to the Union's refusal to reopen the awards, the responding party obviously turned its mind to the issue and even sought a legal opinion not only once but twice. Given the legal opinions it was not unreasonable for the Union to deny the Applicant's request to try to reopen the two awards. While the Applicant and his advisor may disagree with such denial and legal opinions, such denial and legal opinions are not without reasonable justification or labour relations rationale.

[32] Having been thus rebuffed, Mr. Zaki proceeded to lodge a 35 page letter of complaint with the Ottawa Police Hate Crime Unit that Nurses Crispin, Leduc and Gougeon had perjured themselves at the arbitration proceedings, and that the Ottawa Hospital had engaged in deceitful proceedings in collusion with the trade union. The complaint was investigated fully and dismissed. Unhappy with the decision, Mr. Zaki complained to the Ontario Civilian Commission on Police Services. On August 22, 2001 Mr. Zaki was informed that the Commission was satisfied that the conduct of the Ottawa Police Service was appropriate and closed its file.

[33] It is apparent in reviewing the decision of the OLRB that the allegations and facts pleaded are almost identical to those pleaded in the present application for judicial review, which seeks to reopen the Kates decision of 1994, the Keller decision of 1995 and the OLRB decision of 1999; eight years, seven years and three years respectively after the decisions were rendered in those matters.

[34] It is the position of the Hospital that had the grievance before Arbitrator Keller in 1995 been unsuccessful, the Hospital was prepared to discharge Mr. Zaki on two further grounds: theft of hospital property and alteration of a patient's chart with the intention of exculpating himself from allegations which had led to his dismissal. These letters of discharge were being held on file pending the decision in the Keller arbitration.

[35] The Hospital argues that it would be seriously prejudiced if any reopening of arbitration awards involving Mr. Zaki's suspension and termination were ordered. The memories of witnesses, and the unavailability of other witnesses, would be seriously compromised. OPSEU agrees with their submission.

Excessive Delay

[36] There is no time limit prescribed for appeal of decisions set out in the Ontario Judicial Review Procedure Act. Section 2(5) of the Act provides:

Where in any of the proceedings enumerated in subsection (1), the court had before the 17th day of April, 1972 a discretion to refuse to grant relief on any grounds, the court has a like discretion on like grounds to refuse to grant any relief on an application for judicial review.

Section 5 provides:

Despite any limitation of time for the bringing of an application for judicial review fixed by or under any Act, the court may extend the time for making the application, either before or after expiration of the time so limited, as such terms as it considers proper, where it is satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.

[37] Clearly, excessive delay is a ground on which the Court has traditionally exercised its discretion to refuse to grant relief sought in an application for judicial review. In Balanyk v. Greater Niagara General Hospital [2002] O.J. No. 1208 (Div.Ct.) Farley J., in dealing with an application for judicial review following a decision of the Ontario Labour Relations Board, dismissed the application on the basis of delay. As he stated at paragraph 3:

This application for judicial review was brought more than 21 months from the Board's decision. We find that this inordinate delay is excessive, given that there was no explanation given in the record to justify why it took so long. An applicant is under an obligation to commence and perfect its judicial review application in a timely manner. Failure to do so is an independent basis for the denial of the application regardless of the merits of the case. See Ontario Public Service Employees Union v. The Crown in Right of Ontario (Ministry of Labour), M.E. Cummings and Ontario Labour Relations Board, [2001] OLRB Rep. Mar./Apr. 549 (Div. Ct.) at p. 551; Bettes v. Boeing Canada/De Havilland Division at al., [2000] OLRB Rep. Mar./Apr. 409 (Div. Ct.); Re Selkirk and Schorr et al. (1977), 1977 1070 (ON SCDC), 15 O.R. (2d) 37 (Div. Ct.) at p. 48

Delay is contrary to the principles of prompt dispute resolution, finality and the avoidance of festering caused by unresolved disputes. See ss. 2(1), 114(1) and 116 of the Labour Relations Act; Toronto (City) v. Canadian Union of Public Employees, Local 79, 2001 24114 (ON CA), [2001] O.J. No. 3239 (C.A.) at pp. 15-6; Re Dayco (Canada) Ltd. and National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (1993), 1993 144 (SCC), 102 D.L.R. (4th) 609 S.C.C. at pp. 660-1.

We would therefore exercise our judicial discretion in light of this unjustified inappropriate delay and refuse to make an order in favour of the applicant.

[38] The jurisprudence of the Divisional Court is quite clear that applicants must commence judicial review applications expeditiously. A delay of six months was found excessive by the Divisional Court in OPSEU v. The Crown in Right of Ontario (Ministry of Labour) [2001] OLRB Rep. Mar./Apr. 549 wherein Lederman, J. stated:

It is noteworthy that no time limits for commencing an application for judicial review and for perfection are set out in the Judicial Review Procedure Act. Nonetheless, this Court has repeatedly recognized that in judicial review proceedings the applicant is under an obligation to commence and perfect the application in an expeditious fashion. Judicial review is an equitable and discretionary remedy and an obligation remains upon an applicant to bring the matter before the court without undue delay. Failure to do so has been held to be an independent basis for the denial of the application, regardless of the merits of the case.

While each case must turn upon its own circumstances, this Court has held that delay on the part of an applicant of six or more months in the commencement of an application and/or twelve or more months in the perfection of an application could be serious enough to warrant the dismissal of the application. (authorities deleted)

[39] The harmful effect of delay in the resolution of labour relations was recognized by the Supreme Court of Canada in Dayco (Canada) Inc. v. CAW-Canada (1993), 1993 144 (SCC), 102 D.L.R. (4th) 609 (S.C.C.), wherein Cory J. stated:

Legislators have recognized the importance of speedy determination of labour disputes. By the enactment of labour codes they have sought to provide a mechanism for a fair, just and speedy conclusion of the issues. The legislators have gone further and attempted to insulate the decisions of the various labour boards, tribunals and arbitrators from review by the courts. In earlier times, the courts resisted legislative attempts to restrict their ability to review the decisions of various labour boards. However, over a period of time they have accepted the vital importance of labour tribunals and adopted a more restrained approach in reviewing their decisions.

[40] Support for the proposition that judicial review must be sought promptly can be found in the decisions of the Divisional Court in OPSEU v. The Crown in Right of Ontario (Ministry of Labour) [2001] OLRB Rep. Mar/Apr, 549 and in the decision of International Union of Bricklayers and Allied Craftworkers [2000] OLRB Rep. Mar/Apr, 417 wherein MacFarland J. stated at para. 18:

Judicial Review is an equitable and discretionary remedy and one which the court should refuse where there is unexplained delay - this particularly so in the time-sensitive labour relations area.

[41] In the present case, review is sought of decisions made eight years, seven years and three years respectively after the challenged decisions were rendered. Different forms of review of these decisions have been undertaken without success. There has been no adequate explanation for the excessive delay in commencing the present application. The current allegation of discrimination is, in my view, a rather transparent attempt to circumnavigate time limits. The Ottawa Hospital and OPSEU would be seriously prejudiced were the Applicant granted an extension and permitted to proceed with this application. On the ground of excessive delay, this application is dismissed.

Lack of Standing

[42] Independent of the fact that there has been excessive delay, the Applicant personally does not have standing to make an application for judicial review of decisions resulting from arbitration proceedings. As was stated by Estey J. in St. Anne-Nackawic v. Canadian Paper Workers Union 1986 71 (SCC), [1986] 1 S.C.R. 704, at p. 718:

It would offend the legislative scheme to permit the parties to a collective agreement, or the employers on whose behalf it was negotiated, to have recourse to the ordinary courts.

[43] In Noel v. Société d'énergie de la Baie James, 2001 SCC 39, [2001] 2 S.C.R. 207, at p. 235, Lebel, J. stated:

…a union cannot be placed under a duty to challenge each and every arbitration award at the behest of the employee in question on the ground of unreasonableness of the decision, even in dismissal cases. The rule is that the employer and the union are entitled to the stability that results from (the Labour Code), which provides: “The arbitration award is without appeal, binds the parties and, where such is the case, any employee concerned...” Judicial review must therefore not be seen as a routine way of challenging awards or as a right of appeal. Accordingly, even in discipline and dismissal cases, the normal process provided by the Act ends with arbitration. That process represents the normal and exclusive method of resolving the conflict that arise in the course of administering collective agreements, including disciplinary action. In fact, this Court gave strong support for the principle of exclusivity and finality in Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, at pp. 956-957 and 959, per McLachlin J. That approach is also intended to discourage challenges that are collateral to disputes which, as a general rule, will be definitively disposed of under the procedure for administering collective agreements. While judicial review by the superior courts is an important principle, it cannot allow employees to jeopardize this expectation of stability in labour relations in a situation where there is union representation. Allowing an employee to take action against a decision made by his or her union, by applying for judicial review where he or she believes that the arbitration award was unreasonable, would offend the union’s exclusive right of representation and the legislative intent regarding the finality of the arbitration process, and would jeopardize the effectiveness and speed of the arbitration process.

Recognition of this kind of right to challenge an arbitration award would necessarily offend the fundamental principles governing relations with the employer where there is right of exclusive collective representation. In a case where the arbitration process has been carried out, in accordance with the collective agreement, the employer is entitled to expect that a grievance that has been disposed of by the arbitrator will, as a rule, be disposed of permanently, and that the arbitration process will not be exposed to challenges that are launched without any control being exercised by its union interlocutor…

[44] Section 48(18) of the Ontario Labour Relations Act provides that an arbitrator's decision is final and binding.

[45] It is clear that in this application the Applicant is attempting to circumvent the exclusive bargaining agency of OPSEU and to put the collective bargaining parties to the time and expense of re-litigating matters that have been fully and finally resolved at arbitration in the manner intended by the labour relations scheme of the province.

[46] While this principle certainly applies to the review of the arbitrations involved, it does not apply to a judicial review of the decision of the Ontario Labour Relations Board rendered November 1, 1999. With respect to the decision of the OLRB, the Applicant is prohibited from proceeding by virtue of delay alone and not on the basis that he lacks standing.

[47] To the extent that the Applicant at this very late date now asserts a conspiracy to discriminate against him, he has chosen the wrong forum. Any such complaint must be made to the Human Rights Commission.

[48] The application is therefore dismissed.

[49] In the event the parties are unable to agree concerning costs, I may be spoken to.

C. McKINNON J.

Released: March 14, 2003

[^1]: A careful reading of the Kates decision may lead one to conclude that this is a distinction without a difference, as the evidence established that it was only Mr. Zaki who could set the pressure on the ventilator.

[^2]: Once again, a careful reading of the Keller decision may lead one to conclude that Nurse Gougeon’s evidence was not critical to the finding.