ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
carnwath, swinton and ray jj.
B E T W E E N:
DEVENDRANAUTH MISIR, a.k.a. DEV MISIR
Applicant
- and -
MULUNESH F. AGAGO, JOAN A. BLAGROVE, ROSA DALIA BURBANO, RUTH M. CARBAJAL, DOREEN A. EMANUEL, LIBANOS GETACHEW, MARIA DELIA MANZANO-GIMENEZ, HELEN REZENDES-MEDEIROS, ROSLYN SINGER, DONNA SUTHERLAND, EVELYN T. TUAZON, AMSALE WORKU, EDITH MOLNA and DIRECTOR OF EMPLOYMENT STANDARDS
Respondents
David S. Steinberg, for the Applicant
Brian A. Blumenthal and
Courtney Harris, for the Respondent, Ministry of Labour
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
HEARD at Toronto: October 2, 2008
CARNWATH J.: (Orally) (Amending Judgment of October 2, 2008)
1The application is dismissed for oral reasons given in Court by Swinton J.
SWINTON J.
2The decision whether to grant an adjournment is an exercise of discretion, which is entitled to considerable deference provided the discretion of the tribunal is exercised judicially and in accordance with the principles of natural justice (see Kalin v. College of Teachers (Ontario) (2005), 254 D.L.R. (4th) 503 (Ont. Div.Ct.)).
3The Board in this case refused to grant the adjournment request, given the lack of consent from the respondents and the prejudice to them, as the individuals had taken time from work to be at the hearing. The Board observed that the applicant had had adequate time to seek their consent to an adjournment. The Board also observed that the original request for an adjournment and the oral submissions of the agent of the applicant did not base that request on the lack of access to a document in the possession of the trustee in bankruptcy.
4The applicant did not authorize his son, a lawyer and his agent, to act as his counsel and proceed with the hearing. The Board then dismissed his s.116 application because there was no evidence to support his request for review.
5The Board’s decision to refuse the adjournment was a reasonable one and, in the circumstances, the applicant was not denied natural justice. The applicant knew from as early as March, 2006, when the Employment Standards Officer first requested any relevant documents,
that documents proving the length of his position as a director were useful, if not necessary, to support his allegation that he was not a director of the employer company at the relevant time. The applicant had sufficient time to obtain the relevant document and failed to do so in advance of the scheduled hearing date at the Board.
6Considering the lateness of the request, the failure to attempt to seek consent from all parties, the inconvenience to the responding parties and the reason for the adjournment request - specifically the conflicting hearing dates - the Board’s decision not to grant an adjournment was not a denial of natural justice. The Board proceeded with the hearing on the merits. The applicant, as a lawyer, ought to have known of the inherent risk of not being prepared to proceed, should the Board deny the adjournment.
7The Board is charged with the responsibility of administering a comprehensive statute regulating minimum employment standards, and it is therefore in the best position to decide whether, having regard to the nature of the application before it and the respective interests of the parties, an adjournment should be granted.
8The Board acted reasonably in dismissing the applicant’s s.116 application, given the lack of evidence to support it.
9Therefore, the application for judicial review is dismissed.
CARNWATH J.
10The application record is endorsed: “The application is dismissed for oral reasons given by Swinton J. in Court. Costs to the respondent, Director of Employment Standards, fixed at $2,500.00 inclusive of fees, disbursements and GST, payable 30 days on a partial indemnity basis.”
___________________________
CARNWATH J.
___________________________
SWINTON J.
___________________________
RAY J.
Date of Reasons for Judgment: October 2, 2008
Date of Release:
COURT FILE NO.: 281/07
DATE: 20081002
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
carnwath, swinton and ray jj.
B E T W E E N:
DEVENDRANAUTH MISIR, a.k.a. DEV MISIR
Applicant
- and -
MULUNESH F. AGAGO, JOAN A. BLAGROVE, ROSA DALIA BURBANO, RUTH M. CARBAJAL, DOREEN A. EMANUEL, LIBANOS GETACHEW, MARIA DELIA MANZANO-GIMENEZ, HELEN REZENDES-MEDEIROS, ROSLYN SINGER, DONNA SUTHERLAND, EVELYN T. TUAZON, AMSALE WORKU, EDITH MOLNA and DIRECTOR OF EMPLOYMENT STANDARDS
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: October 2, 2008
Date of Release: