COURT FILE NO.: 385/02

DATE: 20031007

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: ONTARIO PUBLIC SERVICE EMPLOYEES UNION and SENECA COLLEGE OF APPLIED ARTS & TECHNOLOGY et al.

BEFORE: Mr. Justice Ferrier

COUNSEL: Christopher G. Riggs Q.C and George Avraam for the respondent Seneca College Ian Roland for the applicant

HEARD: October 6, 2003

E N D O R S E M E N T

[1] It is not disputed on this motion that undue delay in pursuing an application for judicial review can be a ground, in the exercise of the court’s discretion, for refusing the application.

[2] Nor is it disputed that delay is particularly relevant in labour relations matters where “labour relations delayed are labour relations defeated and denied”.

[3] The courts examine three factors to determine whether they should dismiss an Application for Judicial Review on the grounds of undue delay:

(a) the length of the delay;

(b) whether there is a reasonable explanation for the delay; and

(c) whether any presumed or actual prejudice has been suffered by the respondent as a result of the delay.

The Queen v. Board of Broadcast Governors and the Minister of Transport et al., 1962 223 (ON CA), [1962] O.R. 657 (C.A.).

Hazelton (Village) v. British Columbia, [1992] B.C.J. No.2788 (S.C.)

International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, [1999] O.J. No.4031 (S.C.J.) at paras.28-33.

United Food and Commercial Workers International Union, Local 717P v. Welling, [1997] O.J. No.2704 (aff’d [1997] O.J. No.4497).

Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers (2003-04-24) ONSCDC 35201.

[4] The Divisional Court has repeatedly stated that in judicial review proceedings, the applicant is obliged to commence and perfect the application as expeditiously as possible.

Retail, Wholesale and Department Store Union, Local 414 v. Dominion Stores Limited, [1978] O.J. No.982 (Div.Ct.), at para.4.

United Food and Commercial Workers International Union, Local 717P v. Welling, supra, at para.4-6.

International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers, supra, at para.31.

The Length of the Delay

[5] A delay of six months in the commencement of an application and twelve months in the perfection of an application has been held to be sufficient to warrant the dismissal of the application. Applications have been dismissed for delays of between six and eighteen months. See:

United Food and Commercial Workers International Union, Local 717P v. Welling, supra, at para.4-6.

Retail, Wholesale and Department Store Union, Local 414 v. Dominion Stores Limited, [1978] O.J. No.982 (Div.Ct.), at para.4.

International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers.

Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No.5413 (Div.Ct.).

[6] In this case, the Board of Arbitration’s decision at issue was delivered on December 4, 2001; the application record was served on June 28, 2002; the application for judicial review was perfected on or about June 6, 2003 – a delay of approximately nineteen months. The delay can fairly be described as substantial.

Explanation for the Delay

[7] The Union retained counsel to proceed with the application in January 2002. The first element of delay was caused by the difficulty in assembling the record, including exhibits; the hearing had taken place over twelve days in 1998, 1999 and 2000.

[8] From March through May 2002, there was a strike in the Ontario Public Service in connection with which the firm retained by the Union was fully engaged. Nevertheless, counsel for the Union advised the College in April 2002 that an application was to be pursued and a copy of a draft notice of application was forwarded to the College on April 24, 2002.

[9] Within weeks of the ending of the strike, the notice of application and application record was served and filed on June 28, 2002.

[10] The delay following the delivery of the notice of application, was caused by several factors, including a staffing and workload problem in the firm representing the Union.

[11] The firm was retained to represent the City of Toronto at the Toronto Computer Leasing Inquiry at about the end of July 2002. This has engaged four lawyers working virtually full time, including the counsel who had been responsible for this matter. Assistance from associates was engaged in the ensuing months, but the draft factums prepared were not adequate. Eventually a factum was served on June 6, 2003.

[12] At all times the instructions of the Union were to proceed with the application for judicial review.

[13] It appears that the application could have been scheduled for hearing in December 2003 or January 2004.

Prejudice

[14] At the hearing before the Board the Union claimed $5,000 in aggravated damages and $5,000 in punitive damages in respect to the termination by the College of the employee. In the decision at issue in the application for judicial review, the majority of the Board rejected the Union’s claim to aggravated and punitive damages on the basis that a board of arbitration lacks jurisdiction to award such damages.

[15] In this case, the delay has not caused actual prejudice to the College. Should the matter proceed, and should the Board be required to consider the claim for aggravated and punitive damages on the merits, the Board will have the evidence that has already been taken and is on the record in connection with those claims. It is unlikely that additional evidence will have to be called. The issue before the Board would be a discreet one, not complex, and relatively easy of resolution.

[16] Nevertheless, the College correctly argues that significant delay can result in presumed prejudice when the delay is so long as in the present case. That is to say that there need not be evidence of actual prejudice, but rather the length of the delay can found a conclusion of prejudice.

[17] In my view the inability of counsel to give attention to a file because of the pressure of other work or the staffing difficulties in the firm would not, in most circumstances, be a sufficient explanation, to prevent the dismissal of an application on the ground of delay.

[18] However, in the present case, there is no actual prejudice and I am satisfied that, apart from the fact that the file has been open for a long time, there has been no aggravation of circumstances in the workplace. There has been no turmoil or simmering of irritants in the workplace as a result of the delay. The rights of the parties have not been affected as a result of the delay.

[19] I acknowledge that a litigant ought not to be faced with the prospect of having a judicial review application hanging over its head for many months. On the other hand, to grant the motion would deprive the litigant of the right to have the application determined.

[20] On balance, in the particular circumstances of this case, especially bearing in mind that there is no actual prejudice, there has not been any impairment of the rights of the College and there has been no ongoing turmoil in the workplace, it is my view that the right of the Union to have its application heard ought not to be denied.

[21] Accordingly, the motion is dismissed. Costs fixed at $2,000 payable by the moving party.

Ferrier J.

DATE: October 7, 2003

cc