COURT FILE NO.: DC05-00947400
DATE: 20060915
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: KOSTANTINOS IAONNIDIS v. AMALGAMATED TRANSIT UNION, LOCAL 1572, CORPORATION OF THE CITY OF MISSISSAUGA, TRANSPORTATION AND WORKS DEPARTMENT, TRANSIT DIVISION
BEFORE: MacKENZIE J.
COUNSEL: Mr. W. Wolfe, for the Applicant
Mr. M. Rotman, for the Respondent, Amalgamated Transit Union, Local 1572
Mr. J. A. Maier, for the Corporation of the City of Mississauga
No one appearing for the Ontario Labour Relations Board
HEARD: August 3, 2006
E N D O R S E M E N T
[1] The Applicant moves under Rule 68.06(4) of the Rules of Civil Procedure to set aside or vary the order of the Registrar made under Rule 68.06(3) dismissing the Applicant’s application for judicial review for delay.
[2] For the reasons set out below, the motion to set aside or vary the Registrar’s order is dismissed with costs.
[3] The background facts are comprehensively set out in the factum of the City of Mississauga. The salient facts for the purpose of this ruling which are described below are taken from that source.
[4] The Applicant was employed by the City of Mississauga as a transit driver from August 12, 1985 until his dismissal on November 28, 2002. He was a member of and represented by the Respondent Amalgamated Transit Union, Local 1572 (the Union).
[5] Approximately two years after his dismissal, the City received on or about October 1, 2004 a complaint by the Applicant in accordance with s. 96 of the Labour Relations Act, 1995, (the Act). In this complaint, the Applicant alleged that the Union had violated his fair representation under s. 74 of the Act by failing to submit a grievance regarding his dismissal.
[6] The City intervened in the complaint arguing that the Applicant’s complaint should be dismissed without a hearing due to the lengthy and unexplained delay of approximately two years.
[7] The Ontario Labour Relations Board (the Board) heard the complaint on or about the 4th of November 2004 and rendered its decision the same day. The Board ruled that the Applicant was required to “provide a convincing explanation for the delay and the reason why the Board should not grant a motion to the other parties to dismiss on that basis”: p. 27, Decision of the Board dated November 4, 2004. By written submissions, the Applicant attempted to explain why he had delayed for approximately two years before filing a complaint against the Union. By its decision dated January 18, 2005, the Board declined to accept such explanation as justification for the delay and stated, among other things:
It is inherently unfair to the Union to have an applicant pursue and fail in obtaining relief in other forums and then to decide to proceed with a s. 74 complaint after a substantial period of time has elapsed: Decision OLRB January 18, 2005, p. 29.
[8] By way of a letter from a solicitor for the Board received on or about December 9, 2005, the City learned the Applicant had initiated an application for judicial review in the Divisional Court by notice issued September 15, 2005.
[9] On or about December 22, 2005, counsel for the Board served all parties with the Board’s Record of Proceeding. However, as of that date the City had not received the Applicant’s notice of application for judicial review.
[10] By letter dated January 25, 2006, counsel for the City notified the Applicant of its non-receipt of the notice of application for judicial review. On or about January 30, 2006, the City received the notice of application for judicial review.
[11] About one month later, on February 28, 2006, counsel for the Applicant notified each of the Respondents i.e. the Union and the City, that the Applicant required their consent to add the Board as a party. The consents were delivered on a timely basis, by the City on or about March 2, 2006.
[12] On or about March 10, 2006, the Union moved to have the application for judicial review dismissed by the Registrar on the basis of delay, pursuant to Rule 68.06(1).
[13] On or about March 22, 2006, the Registrar for the Divisional Court heard the motion by the Union and dismissed the application for judicial review, in accordance with Rule 68.06(3). In dismissing the Application for Judicial Review, the Registrar noted the Applicant had failed to deliver his application record and factum within 30 days of the Board’s filing its Record of Proceedings: see R.68.04(1)(a).
[14] The position of the Applicant now is that this court should exercise its discretion under Rule 68.06(4) and set aside the Registrar’s dismissal order. Counsel for the Applicant submits that any delay in complying with the time limits was reasonably explained and that the justice of the case requires an extension of the time for the Applicant’s compliance. In this regard, the Applicant refers to the difficulties encountered in obtaining a certificate of perfection and other procedural requirements and contends the justice of the case requires an extension of the time limit period.
[15] In response, the Union and the City state that to set aside the Registrar’s dismissal order, the Applicant must meet the three part test set out in Chiu v. Universal Water Technology Inc., [2004] O.J. No. 4048 (Div. Ct.), as follows:
The applicant must prove that:
(a) He had a bona fide intention to comply with the applicable time limit;
(b) There was a reasonable explanation for the delay; and
(c) The justice of the case requires an extension.
[16] Dealing with the first branch of the test, i.e. the bona fide intention to comply within the applicable time limit, I accept the evidence of the Applicant that he had a bona fide intention to comply with the applicable time limit, however, he obviously failed to do so.
[17] Apart from any other aspects of delay, it is undisputed that there has been a minimum delay of three months, that is, from the date of issuance of the notice of application for judicial review and the existence of such application coming to the attention of the City. In addition, the Board provided the Applicant and the other Respondents with its Record of Proceedings on or about December 22, 2005 but the Applicant failed to take any steps to add the Board as a party until approximately three months had past. As well, the Applicant gave no indication of the need for additional time to deliver his application and record, notwithstanding the expiry of the deadline stipulated in Rule 68.04(1)(a).
[18] The inquiry then turns to the second branch whether there has been a reasonable explanation for the delay.
[19] I agree with the contention of the City and Union that the Applicant has failed to provide a reasonable explanation for this delay. There is no reasonable explanation as to why, having issued the notice of application on September 15, 2005, (a) the Applicant took no steps to serve the Respondents until January of 2006; and (b) the Applicant, for a period of about two months, took no active steps to add the Board as a party after being notified of the Board’s request to be so added on or about December 19, 2005. As well, the City points out that there is no adequate reason for the Applicant’s decision to serve his application record and factum on the very day that the Registrar heard the motion of the Union to dismiss the application on the basis of delay.
[20] I then turn to the third branch, that is, whether the justice of the case requires an extension.
[21] The standard of review for the Board’s decision to dismiss the Applicant’s initial complaint is patent unreasonableness. This standard of review, when coupled with the finality clauses found in sections 114 and 116 of the Act and the expertise of the Board, leads the court to be highly deferential to the decisions of the Board: see Blasdell v. OLRB, [2006] O.J. No. 406, paras. 19-20. See also Jamal Ontario Labour Relations Board, [2005] O.J. No. 4163 (Div. Ct.) in which the court referred to the specialization of the Board and its mandate to administer the statutory labour relations regime in Ontario, particularly in the context of the Board’s jurisdiction to adjudicate on issues of delay prior to dealing with a case on its merits.
[22] The Applicant submits that the Board in its reasons in a decision dated January 18, 2005 had misunderstood (among other things) the nature of the Applicant’s litigation against health and extended benefits insurance carriers. In this regard, the Applicant focuses on the following sentence in paragraph 8 of the reasons of the Board:
The only reason advanced for the delay from the additional material filed by the applicant is that he was involved in pursuing other avenues in dealing with his claim for extended benefits.
Decision dated January 18, 2005
[23] Counsel for the Union refers to an extract from this court in Jamal v. Ontario Public Service Employees Unions and Ontario Labour Relations Board, [2005] O.J. No. 4163, in dealing with the Board’s jurisdiction to decide whether or not there was unreasonable delay and the applicable standard of review, i.e. patent unreasonableness, in the following terms:
Unless the determination 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.
[24] I find nothing in the above extract from paragraph 8 of the Board’s decision, above that comes within the language used in Jamal as to constitute error of such nature that could properly described as patently unreasonable. Accordingly, I find that the Board’s decision and reasoning for the decision was not patently unreasonable.
[25] In the result, the motion to set aside the order of the Registrar is dismissed, with costs to the Respondents appearing on the return of the motion.
[26] If the parties are unable to agree on costs, I will entertain written submissions, as follows:
(1) By the Respondents, not to exceed 4 pages exclusive of supporting materials, to be received within 15 days from the date of issuance of this Ruling;
(2) By the Respondents, not to exceed 4 pages exclusive of supporting materials, to be received within 10 days following his receipt of the Respondents’ submissions; and
(3) Reply, if any, by the Respondents, not to exceed 4 pages, within 7 days from date of receipt of the Applicant’s responding submissions.
MacKENZIE J.
DATE: September 15, 2006
COURT FILE NO.: DC05-00947400
DATE: 20060915
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: KOSTANTINOS IAONNIDIS v. AMALGAMATED TRANSIT UNION, LOCAL 1572, CORPORATION OF THE CITY OF MISSISSAUGA, TRANSPORTATION AND WORKS DEPARTMENT, TRANSIT DIVISION
COUNSEL: Mr. W. Wolfe, for the Applicant
Mr. Rotman, for the Respondent, Amalgamated Transit Union, Local 1572
Mr. J. A. Maier, for the Corporation of the City of Mississauga
No one appearing for the Ontario Labour Relations Board
ENDORSEMENT
MacKENZIE J.
DATE: September 15, 2006