COURT FILE NO.: 352/01

DATE: 20030424

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

BEFORE: LANE, THEN AND LANG JJ.

B E T W E E N:

THE ONTARIO PROVINCIAL CONFERENCE OF THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, LOCALS 1, 2, 4, 5, 10, 12, 20, 23, 28, 29 AND 31, JERRY COELHO, TOM OLDHAM, THE BRICK AND ALLIED CRAFT UNION OF CANADA AND THE BRICK AND ALLLIED CRAFT UNION OF CANADA, LOCALS, 1, 2, 4, 5, 10, 12, 20, 23, 28, 29 AND 31

Applicants

• and -

THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, JOHN T. JOYCE, JOHN J. FLYNN, FRANK STUPAR AND JAMES BOLAND

Respondents

COUNSEL:

Mark A. Wright and L. A. Richmond, for the Applicants

Barrie Chercover and David A. Wright, for the Ontario Labour Relations Board

Peter Engelmann and Michael Gottheil, for the International Union of Bricklayers and Allied Craftsmen, Locals 6, 7, and 25

Andrew K. Lokan and Donald K. Eady, for the Respondents

HEARD: April 24, 2003

THE COURT: (Orally)

Dismissal for Delay

1The challenged OLRB decision was released on May 2, 2001. This application for judicial review, commenced on May 21, 2001, requested that the matter be heard on an urgent basis by a single judge of this court. The application was not perfected until 13 months later, on June 25, 2002. It came on for hearing today, nearly two years after the challenged decision.

2At the outset of this hearing, the respondents sought to dismiss the application for delay. The applicants offered no explanation for the delay, either by way of affidavit or in their factum; they brought no motion to stay the Board's decision pending this judicial review, nor any motion to expedite this hearing either before a single judge or before a full panel.

3It is common ground that judicial review, a perogative remedy, is discretionary. Motions to dismiss for delay have been granted in Patel v. Ontario (Labour Relations Board), [1998] O.J. No. 571 (Div. Ct.); OPSEU v. Ontario (Ministry of Environment), (1996), 141 D.L.R. (4th) 575; United Food and Commercial Workers International Union, Local 617P v. Welling, [1997] O.J. No. 2704.

4In International Union of Elevator Constructors, Local 50 v. Otis Canada Inc., [2000] O.J. No. 1140 and Ascott v. Ontario (Ministry of Finance), [2000] O.J. No. 4213, this court exercised its discretion, despite delay, to consider those cases on their merits. In Ascott the court had the benefit of an affidavit explaining the delay, an affidavit that was not challenged by cross-examination.

5In International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers [2000] O.J. No. 751, the court had evidence of the numerous events that had taken place in the intervening period, and no explanation for the applicant's delay. The court exercised its discretion to dismiss the application for delay.

6In the case before us, the applicants had notice of the delay argument, but filed no material in explanation. For nearly two years the delay has prevented a final resolution as to the parameters of the relationships between the parties. The issues go to the heart of everything the parties do, and the delay perpetuates a festering dysfunction in labour relations for this sector. The delay brings with it presumed prejudice to the respondents.

7The International Union raised the issue of delay in their factum. While they do not elaborate on the intervening proceedings before the OLRB, their factum does raise the issue of the uncertainty resulting from the delay and the applicant's use of this application as an excuse not to comply with the OLRB ruling. The three isolated locals also articulate the difficult position in which they have been placed during this ongoing dispute (see paragraph 3 of their factum, for example).

8Further, the effect of the delay is apparent from the Board's record. The applicants declined, as was ordered by the Board, to give the members' addresses to the International Union. Instead, unilaterally, the applicants sent out a form of notice that was accompanied by a self-serving explanatory letter, which recommended against payment of the per capita dues ordered by the OLRB. The Board's reconsideration decision of September 20, 2001, in response to this act, illustrates the ongoing problems engendered by the delay in resolving the relationship issue.

9In International Union, Local 50, supra, a case involving the same parties, this court found delay, similar to the delay here, to be extreme and without justification. It referred to Dayco (Canada) Inc. v. CAW-Canada (1993), 102 D.L.R. (4th) 609, which emphasized the time- sensitive nature of labour relations disputes and the potential frustration and hostility that can be engendered by such delay. We are persuaded that principle is applicable to the circumstances of this case.

10This court requires judicial reviews of OLRB decisions to proceed expeditiously. Certainty is imperative in labour relations disputes. This is particularly so in this case, which has a lengthy, complex, and volatile history. It is unacceptable that the applicants delay for 13 months in perfecting the judicial review, evade the explicit orders of the OLRB, and offer no explanation for the delay to this court.

11Accordingly, we dismiss this application for delay.

LANE J.

12The application record is endorsed: "This application is dismissed for delay. The Court will receive written submissions as to costs.

Date of Reasons for Judgment: April 24, 2003

Date of Release: May 20, 2003

COURT FILE NO.: 352/01

DATE: 20030424

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LANE, THEN AND LANG JJ.

B E T W E E N:

THE ONTARIO PROVINCIAL CONFERENCE OF THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, ET AL.

Applicants

And

THE INTERNATIONAL UNION OF BRICKLAYERS AND ALLIED CRAFTWORKERS, JOHN T. JOYCE, JOHN J. FLYNN, FRANK STUPAR AND JAMES BOLAND

Respondents

ORAL REASONS FOR JUDGMENT