COURT FILE NO.: 574/04

DATE: 20050525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

O’DRISCOLL, JENNINGS AND SWINTON JJ.

B E T W E E N:

HARDEV KUMAR

Applicant

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UNITED STEELWORKERS OF AMERICA, LOCAL 13571 (formerly Local 2858 United Steel Workers of America)

Respondent

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TOWER AUTOMOTIVE, INC. (formerly Algoods Inc. or Algoods Ltd. Division of Alcan)

Respondent

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ONTARIO LABOUR RELATIONS BOARD

Respondent

Hardev Kumar, In Person

Robert Healey, for the Respondent, United Steelworkers of America, Canadian National Office

Leonard Marvy, for the Respondent, Ontario Labour Relations Board

HEARD at Toronto: May 25, 2005

O’DRISCOLL J.: (Orally)

1The applicant seeks judicial review and moves to quash and set aside two (2) decisions of Vice-Chair Kelly Waddingham of the Ontario Labour Relations Board (OLRB), the first, dated May 27, 2004, and the second, the Reconsideration, dated July 6, 2004.

2In November 1995, the applicant filed a grievance dealing with the denial of sickness and accident benefits by the respondent corporation as a result of his status as an inactive employee. The applicant had been absent from active employment since approximately 1989. The respondent Union, Local 2858, reviewed the grievance and made a determination not to proceed with that grievance to arbitration because it was the Union’s view that the applicant had received his full entitlement under the terms of the Collective Agreement. The applicant had received more than the six (6) month entitlement. The applicant appealed the decision of Local 2858 at a membership meeting. The membership voted to confirm Local 2858’s initial decision not to proceed with the grievance to arbitration.

3The applicant was unsatisfied with Local 2858’s decision in respect of the grievance. He filed an application to the OLRB under s.96 of the Labour Relations Act (LRA). This became known as the “1997 application”.

4The 1997 application alleged that Local 2858 had violated the LRA. The decision of the OLRB, dated May 22, 1997, found the 1997 application to be insufficiently particularized and directed the applicant to file full particulars of all material facts upon which he was relying to support his allegation that Local 2858 had breached the LRA. On July 3, 1997, after having reviewed the applicant’s particulars, the OLRB issued a decision dismissing the 1997 application.

5Almost seven (7) years later, on April 16, 2004, the applicant filed another application to the OLRB. The applicant made allegations regarding events that occurred between 1986 and 1989, and covered the same subject matter that was covered by the 1997 application, which had been dismissed by the OLRB.

6In its decision, dated May 27, 2004, the OLRB exercised its discretion pursuant to s.96 of the LRA and dismissed the application. In rendering its decision, the OLRB considered the two (2) issues raised by the Union in its response to the application. The OLRB considered the explanation provided by the applicant that health reasons had prevented him from filing his application sooner. The OLRB rejected that explanation and said:

“The Board finds that the length of time that has passed significantly prejudices the responding parties. The applicant’s explanation for the delay is that he was unable to pursue his original 1997 complaint due to health reasons. However, Mr. Kumar did avail himself of the Board’s process in 1997, and did respond to the Board’s request for further particulars in May 1997. It was on the basis of Mr. Kumar’s further particulars that the Board dismissed the application in July 1997.”

7The OLRB then found that given: (1) the length of the delay, in filing of the application, (2) the lack of credible explanation provided by the applicant and (3) the substantial prejudice to the union and the employer were the matter to proceed, it would exercise its discretion not to inquire further into the application and dismissed the application.

8On June 12, 2004, the applicant sought reconsideration by the OLRB of its decision, dated May 27, 2004, pursuant to the OLRB’s authority under s.114 of the LRA.

9In its decision, dated July 6, 2004, the OLRB dismissed the applicant’s reconsideration application. The OLRB reviewed the basis upon which the applicant was seeking reconsideration and, in particular, the OLRB found that the applicant was seeking reconsideration of its decision on three (3) grounds:

(i) The OLRB’s July 3, 1997 decision referred to in its May 27, 2004 decision did not name the Union as a respondent and dealt with the “clarification of the applicant’s status with the successor company”;

(ii) The OLRB did not deal with the “core issue”, of why the applicant is no longer a member of the Union;

(iii) The OLRB did not accept that the applicant’s “severe disability” was a “credible adequate explanation” for the delay in filing his application.

10The OLRB then reviewed the circumstances under which it would exercise its discretion to reconsider its decisions. The OLRB indicated that its decisions were intended to be final and, therefore, it did not reconsider its decisions unless: (1) a party proposed to adduce new evidence or facts that were not available to it through the exercise of due diligence and which would be practically conclusive of the case, or (2) where a party wished to make representations it had no opportunity to make earlier. The OLRB indicated that its reconsideration power was not used in order to allow a party to re-argue the merits of its case.

11With respect to the first ground proposed by the applicant, the OLRB noted that while the style of cause in the May 22, 1997, decision did not list “Local 2858” as a respondent in the 1997 application, the OLRB’s July 3, 1997 decision had clearly considered and determined the issue of Local 2858’s duty of fair representation to the applicant.

12With respect to the applicant’s second ground, the OLRB noted that the issue of the applicant’s membership in the Union had been the subject matter of the 1997 application. The OLRB determined that the applicant had raised nothing new in his reconsideration application that would cause it to alter the decision under review.

13With respect to the applicant’s third ground, the OLRB reviewed the new medical evidence provided by the applicant. The OLRB noted that such evidence could have been provided to the OLRB with the application. In any event, the OLRB determined that the medical reports submitted by the applicant did not assist with his argument that his medical condition rendered him incapable of pursuing the application prior to 2004.

14The OLRB noted that the medical evidence provided by the applicant only spoke to his condition as of the date they were written, namely, in 1998 and 2000.

15Given the above, the OLRB found it was not persuaded on any of the grounds asserted, or accumulatively, to reconsider its earlier decision. As a result, the reconsideration application was denied by the OLRB.

16The parties, in their materials filed in this Court, are all in agreement that the standard of review to be applied by this Court, on this application, is one of patent unreasonableness. In our view, neither the OLRB’s decision of May 27, 2004, nor its reconsideration decision, dated July 6, 2004, is patently unreasonable.

17In answer to the allegation of apprehension of bias on the part of the OLRB, we are of the view that the Union’s factum answers that allegation accurately and succinctly in paragraph 82:

“In this case, there is no indication of any apprehension of bias on the part of the Board. Indeed, the Applicant’s factum provides no factual foundation whatsoever for any allegation that the Board’s conduct could have caused a reasonable person to have perceived bias on the part of the Board in adjudicating the issues before it. Rather, the Applicant’s position appears to be based solely on the fact that the same Board member was asked to reconsider her earlier decision. Given the nature of the reconsideration power, the Union submits that such a conclusion is incorrect.”

18With that submission, we agree.

19On this judicial review application, the applicant also raises the allegation of discrimination of the part of the OLRB contrary to s.15 of the Charter. We are of the view that the factum of the Union answers that allegation in paragraphs 86 and 87:

“86. It is submitted that there has been no discrimination by the Board in the instant case within the meaning of section 15 of the Charter. In particular, in exercising its authority under section 114 of the Act, did not draw a distinction between the Applicant and others based on any physical disability, nor did the Board fail to take into account the circumstances surrounding the Applicant’s medical condition.

87. On the contrary, in exercising its discretion under section 114 of the Act the Board explicitly considered the medical evidence submitted by the Applicant. The Board noted that the medical evidence submitted by the Applicant referred to his condition in the years 1998 and 2000, respectively. There was no evidence before the Board that the Applicant’s medical condition prevented the Applicant from having the issues raised in the 1997 Application filed with the Board properly determined. In addition, the Board determined that the medical explanation was insufficient to outweigh the prejudice to the Union and the Employer given the 16-year delay since the events first complained of arose, and the 7-year delay since the dismissal of the 1997 Application.”

20For these reasons, we are of the view that the application for judicial review must be dismissed.

21After hearing submissions as to costs by counsel for the Union and by the applicant, with the concurrence of my colleagues, I have endorsed the back of the Application Record as follows: “This application is dismissed for the oral/recorded reasons of even date. Costs of this application are fixed at $3,800.00, all inclusive, and, if demanded, are payable to the Union by the applicant. No costs to or payable by the Ontario Labour Relations Board. A court reporter transcribed this hearing.”

O’DRISCOLL J.

JENNINGS J.

SWINTON J.

Date of Reasons for Judgment: May 25, 2005

Date of Release: June 6, 2005

COURT FILE NO.: 574/04

DATE: 20050525

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT