COURT FILE NO.: 385/02

DATE: 20040329

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, MACFARLAND AND SWINTON JJ.

B E T W E E N:

ONTARIO PUBLIC SERVICE EMPLOYEES UNION

Applicant

• and -

SENECA COLLEGE OF APPLIED ARTS & TECHNOLOGY AND PAMELA COOPER PICHER, ROBERT J. GALLIVAN AND SHERRIL MURRAY

Respondents

Ian Roland, for the Union

Christopher G. Riggs, Q.C., for the Applicant, Seneca College of Applied Arts & Technology

HEARD: March 29, 2004

O’DRISCOLL J.: (Orally)

1Seneca College has brought a motion under s.21(5) of the Courts of Justice Act to set aside the order of Ferrier J., dated October 7, 2003. By that order, Ferrier J. dismissed Seneca’s application to dismiss the Union’s application for judicial review on the ground of undue delay between the date of the impugned award (December 4, 2001) and the launching of the judicial review on June 27, 2002.

2In his reasons, Ferrier J. described the delay of nineteen (19) months as substantial. The delay, he said, was attributable to several factors with the principal one being staffing and workload problems of the solicitors for the Union. Ferrier J. notes that at all times the instructions of the Union were to proceed and also noted that no complaint about the delay was ever forthcoming from Seneca College until it served its Notice of Motion, dated October 22, 2003.

3Ferrier J. said this about the delay:

“[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.

15In 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.

16Nevertheless, 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.

17In 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.

18However, 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.

19I 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.

20On 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.”

4A reading of these paragraphs from the reasons of Ferrier J. demonstrate that he was aware of all the submissions about prejudice, whether actual or presumed. In the end, he exercised his discretion and held that the right of the Union to have it’s application heard ought not to be denied.

5It is not disputed that Mr. Fogel has not been employed at Seneca College since about October, 2001. Ferrier J. well knew that if he allowed the motion, it would be the death-knell of the application for judicial review.

6We cannot say that Ferrier J. erred in the way that he exercised his discretion. The application to vary the October 7, 2003 order of Ferrier J. is dismissed. The application for judicial review will continue.

7Costs of this motion will be determined at the same time as the costs of the judicial review application are determined.

O’DRISCOLL J.

MACFARLAND J.

SWINTON J.

Date of Reasons for Judgment: March 29, 2004

Date of Release: April 7, 2004

COURT FILE NO.: 385/02

DATE: 20040329

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT