COURT FILE NO.: 567/04
DATE: September 29, 2005
SUPERIOR COURT OF JUSTICE - ONTARIO
DIVISIONAL COURT
RE: NASEEM JAMAL V. ONTARIO PUBLIC SERVICE EMPLOYEES UNION AND THE ONTARIO LABOUR RELATIONS BOARD
BEFORE: Justices Greer, Chapnik and Lax
COUNSEL: Naseem Jamal, In Person
G.J. Leeb, for the Ontario Public Service Employees Union ("OPSEU")
V.T. Stelmaszynski, for the Ontario Labour Relations Board
HEARD: September 12, 2005
E N D O R S E M E N T
Nature of the Application
[1] This is an application for judicial review of two decisions of the Ontario Labour Relations Board ("the Board"). In the first decision, dated August 25, 2004, the Board dismissed an application under section 96 of the Labour Relations Act 1995, R.S.O. 1995, c.1 ("the Act"), alleging a breach of section 74 of the Act. The application was dismissed for delay and the Board decided not to inquire into its merits. In the second decision, dated September 28, 2004, the Board denied the Applicant's request to reconsider the August 25, 2004 decision.
Facts
[2] The Applicant was a long-time employee of the Crown in Right of Ontario. The duty of fair representation complaint arises from grievances filed by the Applicant against her Employer before the Grievance Settlement Board. The grievances pertained to an alleged poisoned work environment and the Applicant's claim for reinstatement of her compressed workweek schedule. The grievances were mediated and settled on June 28, 2001. The application to the Board alleging that OPSEU failed to represent her fairly in the mediation was filed some two years later on November 6, 2003.
[3] The Memorandum of Settlement that the Applicant signed provided, in part, that in consideration of the Applicant's resignation from her employment, she would receive a monetary settlement of $105,000. This amount was to be paid in two instalments to the Applicant's RRSP to "the maximum amount permitted by law". The parties acknowledged that the maximum permitted by law was $36,000. We point this out because one of the Applicant's reasons for the delay was her allegation that she first became aware that there were adverse tax consequences to the settlement in August 2003.
[4] Two months after the mediated settlement, the Applicant sought to have the Memorandum of Settlement set aside and her case reopened alleging duress. Her complaint appears to be that by resigning from her employment, she was prevented from participating in a buyback program of past service for pension entitlement for the period June 15, 1977 to September 30, 1978. The Applicant alleges that she only learned of this opportunity shortly after the settlement of her grievances and that OPSEU did not properly protect her interests in the mediation in respect of this issue.
[5] The Applicant provided the Court with a letter from OPSEU dated March 6, 2002. It states that by the time of the mediation hearing on June 28, 2001, the Applicant was outside the time limits for a buyback relating to the period in question. Whether or not this is so, the buyback issue was not the subject matter of the grievances or within the purview of the Grievance Settlement Board to review on June 28, 2001. The Applicant informed the Court that when she received this letter, she realized that OPSEU was unwilling to reopen the settlement. Thus, when the complaint was filed with the Board on November 6, 2003, this was twenty-eight months after the alleged improper conduct of her union, twenty-six months after she learned of the buyback opportunity, and eighteen months after receiving the letter from OPSEU.
[6] OPSEU and the Employer served and filed written responses to the s.74 application that included a request to dismiss it due to unreasonable delay and because it did not disclose a prima facie breach of the Labour Relations Act. On June 24, 2004, the Board issued an interim decision asking the Applicant to file submissions responding to both issues.
The Decisions of the Board
[7] In its August 25, 2004 decision, the Board noted that the Applicant filed lengthy written submissions and summarized its understanding of the Applicant's explanation for the delay as a) the fact that she only knew the settlement put her in a financially disadvantageous tax position in the summer of 2003; b) that she was giving OPSEU an opportunity to settle; c) that OPSEU should have anticipated legal action from her; and d) that she was intimidated.
[8] In the decision, the Board stated at para. 9:
The Board's rules and practice require that allegations of improper conduct must be made promptly after the conduct is said to have occurred. In cases where it is alleged that a trade union violated section 74 of the Act, the Board's "rule of thumb" is that it will not accept allegations made more than one year after the misconduct is alleged to have occurred. There are several reasons for the Board's policy. One is that the passage of time impedes a party's ability to defend itself. Another is that the parties should be entitled to "move on" after an event has occurred. That is particularly, the case where, as here, there was actually a settlement entered into.
[9] The Board stated in paras. 12 and 13:
The reasons advanced by the applicant are not satisfactory to explain her delay. As noted, it is clear that the applicant knew that she was dissatisfied with the union's representation of her and the fact that OPSEU would not resolve her concerns in the summer of 2002, at the latest. The applicant still waited one and one half year to file her application. (emphasis added)
As for the third ground, intimidation, the Board has sympathy for the applicant's situation. Filing a duty of fair representation claim against one's trade union is not easy for many reasons. It takes some courage. However, the fact that the applicant felt intimidated is, in the absence of a specific allegation of intimidation or coercion, not sufficient reason for the Board to permit a long delayed application to proceed.
[10] In its September 28, 2004 decision denying the request for reconsideration, the Board found that there was no new information which could not have been provided earlier to explain the applicant's delay in filing the application.
Analysis
[11] The Board is a highly specialized tribunal with a strong mandate to oversee and administer the statutory labour relations regime in Ontario. The duty of fair representation has been part of this statutory scheme for over three decades. The Act confers on the Board the power to determine its own practice and procedures.
[12] The Board is not required to hold a hearing to determine a fair representation complaint and it may make any final order it considers appropriate after "consulting" with the parties: Section 99(3) and (5) of the Act. It is within the jurisdiction of the Board to adjudicate on the preliminary issue of delay prior to hearing a case on its merits: Re Dhanota and International Union of United Automobile, Aerospace and Agricultural Workers of America Local No. 1285 (1983), 1983 1655 (ON SC), 42 O.R. (2d) 73 (Ont. Div. Ct.).
[13] The Applicant knew that she was required to bring a complaint to the Board "promptly", but submits that she did not know, nor could have been expected to know that this was within one year. Counsel for the Board did not think that the Board's one-year "rule of thumb" was published to the general public. If the rule is not generally known, this could create unfairness in some circumstances. However, the rule is presumptive only and it is apparent that the Board did not apply its rule arbitrarily. It afforded the Applicant an opportunity to explain the delay. It measured the delay from the date that was most favourable to the Applicant. It gave careful consideration to her reasons for the delay.
[14] The determination of whether or not a complaint should be inquired into due to a lack of timeliness is a question of fact or of mixed fact and law. The Board was required to balance the Applicant's interest in having her application heard with the relative prejudice to OPSEU and the Employer in hearing a matter alleging misconduct that had occurred more than two years earlier. A considerable degree of deference is afforded to administrative decisions that require more fact-intensive determinations and a balancing of interests of different communities: Pushpanathan v. Canada (Minister of Citizenship and Immigration) (1998), 1998 778 (SCC), 160 D.L.R. (4th) 193 (S.C.C.); Dr. Q v. College of Physicians and Surgeons of British Columbia, [2004] 1 S.C.R. 226:
[15] The appropriate standard of review involves a consideration of the four contextual factors first enumerated in Pushpanathan, supra, and most recently in Voice Construction Ltd. v. Construction & General Workers' Union, Local 92, 2004 SCC 23, [2004] 1 S.C.R. 609. See also, Dr. Q, supra and Law Society of New Brunswick v Ryan, (2003), 2003 SCC 20, 223 D.L.R. (4th) 577 (S.C.C.), [2003] 1 S.C.R. 247. This standard requires that a decision be left to the near exclusive determination of the decision-maker unless it can be described as "clearly irrational" (Canada (Attorney General) v. P.S.A.C., 1993 125 (SCC), [1993] 1 S.C.R. 941 (S.C.C.) at pp. 963-964, per Cory J. or "so flawed that no amount of curial deference can justify letting it stand": Ryan, supra, at D.L.R. p.596, para. 52. A patently unreasonable standard is a very strict test and is one where the "result must almost border on the absurd": Voice Construction, supra, at p. 618, para. 18.
[16] We are satisfied that the appropriate standard of review in this case is one of patent unreasonableness for the reasons set out at paragraphs 17 through 31 of the Board's Factum. The Applicant agrees that this is the standard of review, but submits that the failure to afford her a hearing was a denial of natural justice and an error in jurisdiction. As we have stated, the Board is not required to hold a hearing to determine a duty of fair representation complaint, but we accept that there was no determination of the complaint on the merits.
[17] The Applicant is a layperson, but not an unsophisticated one. This was evident from the scope of the materials that she filed and from her presentation at the hearing before us. We appreciate the efforts she made to present the application in a manner that would be of assistance to the Court, but her submissions do not persuade us that there is any basis upon which to interfere with the decisions of the Board.
[18] The Board clearly had jurisdiction to decide whether or not there was unreasonable delay, whether or not to inquire into the merits of the application under section 74 of the Act and whether or not to reconsider its decision. Unless these determinations by the Board can be characterized as 'clearly irrational' or 'so flawed that no amount of deference can allow them to stand', or 'bordering on the absurd', the Board is entitled to deference. In our view, the decisions cannot be characterized in this way.
[19] The application is therefore dismissed, but without costs.
GREER J.
CHAPNIK J.
LAX J.
DATE: