COURT FILE NO.: 188/07

DATE: 20081027

ONTARIO SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

LEDERMAN, SWINTON, BALTMAN JJ.

B E T W E E N:

Dana Horochowski

Altaf Khan, for the Applicant

Applicant

• and -

Ontario English Catholic Teachers’ Association

York Catholic District School Board

Ontario Labour Relations Board

Bernard Hanson, for the Respondent OECTA

John Woon, for the Respondent School Board

Voy Stelmaszynski, for the Respondent Ontario Labour Relations Board

Respondents

Heard at Toronto: October 20, 2008

ENDORSEMENT

[1] Ms. Horochowski seeks judicial review of the decision of the Ontario Labour Relations Board (the Board), wherein it dismissed her complaint that the Ontario English Catholic Teachers’ Association (OECTA) had breached its duty of fair representation towards her. Ms. Horochowski claims the Board erred in dismissing her complaint and breached the principles of natural justice in doing so.

Factual Background

[2] Ms. Horochowski was employed by the York Catholic District School Board (YCDSB) as a permanent teacher from 1989 until 2003. She then resigned and was placed on the YCDSB’s occasional teachers’ list. Ms. Horochowski’s complaint relates to her subsequent removal from the occasional teachers’ list and what she alleges to be OECTA’s unfair response to that removal.

[3] Ms. Horochowski believes there is a conspiracy involving the Catholic Church, the “Black Pope”, and the Illuminati. She also believes there is a cover up of corruption and ritual abuse within the Catholic Church. She shared those views with her students and developed a website exploring those topics. She denied the YCDSB’s request that she not disseminate her views in the classroom, saying she needed to be honest with the students.

[4] Following a meeting in February 2004 with representatives of the YCDSB and OECTA, Ms. Horochowski ceased working as an occasional teacher. The YCDSB and OECTA claim she resigned; Ms. Horochowski says she was removed from the list and that OECTA subsequently failed to take any steps to advance her case.

[5] She then filed a complaint against OECTA, claiming a denial of the union’s duty of fair representation under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A (the “Act”). It reads:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be [emphasis added].

[6] In November 2004, in the course of a consultation process held by the Board, the parties signed Minutes of Settlement, wherein OECTA agreed to investigate whether a grievance could be filed on Ms. Horochowski’s behalf. As part of its investigation OECTA concluded it required an assessment from a psychiatrist regarding Ms. Horochowski’s fitness to teach, whether her actions might have been the result of a psychiatric disability, and whether she might qualify for Long Term Disability benefits.

[7] Ms. Horochowski initially agreed to undergo a psychiatric assessment. However, she declined OECTA’s request that she see Dr. Hy Bloom, a well-known forensic psychiatrist located in Toronto, and failed to identify an acceptable alternative. In its initial decision of January 17, 2006, the Board concluded that OECTA’s request for a psychiatric assessment was reasonable and gave Ms. Horochowski two months to provide OECTA with an assessment from a qualified psychiatrist regarding her fitness to teach.

[8] On February 20, 2006, the Board granted Ms. Horochowski’s request for an extension beyond March 17, 2006, but stated she was to provide a report “as soon as possible”. The report was to respond to reasonable questions posed by the union. In its letter of April 13, 2006, the Board reiterated the necessity of Ms. Horochowski providing a psychiatric report in a timely way. By letters dated April 18 and 19, 2006, respectively, counsel for OECTA and the YCDSB both requested that Ms. Horochowski’s complaint be dismissed on the basis that a report had not yet been provided.

[9] In her letter of April 23, 2006, Ms. Horochowski asked the Board to refrain from dismissing her case (due to an oversight, the letter from counsel for OECTA was not sent to Ms. Horochowski until April 28, 2006). She stated she would be following up with her physician, Dr. Macmichael, on April 26, 2006. However, Dr. Macmichael had already advised her that he was not certified as a psychiatrist and therefore could not provide the report needed for her case.

[10] After Ms. Horochowski’s appointment with him on April 26, 2006, Dr. Macmichael advised the Board by letter that Ms. Horochowski had no serious mental illness. He stated that he found her capable of living freely and without any need for medication or supervision. He commented that Ms. Horochowski did have “major concerns that suppression of information may exist within the school curriculum”, but stated this was an issue for “a court of law to resolve.”

[11] Acting on a request by OECTA and the YCDSB, the Board concluded in its decision dated May 15, 2006, that as OECTA’s request for a psychiatric request was reasonable and Ms. Horochowski had failed to cooperate with it, the union had met its duty of fair representation. It noted that Dr. Macmichael’s letter did not constitute the kind of psychiatric assessment required, as it did not respond to the questions posed by OECTA and Dr. Macmichael, by his own admission, was not qualified to conduct the necessary assessment. The Board therefore dismissed her complaint. Her request for reconsideration was dismissed on January 25, 2007.

Standard of Review

[12] Previous case law determined that the Board’s decisions were subject to a standard of patent unreasonableness. In the recent case of Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, the Supreme Court re-examined the concept of standard of review, and determined there are only two standards: correctness and reasonableness. The previous standard of patent unreasonableness was collapsed within the “reasonableness” standard. Dunsmuir also held that once a standard of review had been established in the jurisprudence, it was not necessary to do an exhaustive analysis. We are therefore satisfied that reasonableness is the appropriate standard for review with respect to the merits of the decision. On the question of natural justice, the court must determine whether the appropriate level of procedural fairness was accorded.

Reasonableness of Board’s Decision

[13] There is extensive evidence to support the reasonableness of the Board’s conclusion that OECTA was entitled to request a psychiatric assessment. Ms. Horochowski acknowledged she had suffered from serious bouts of depression in recent years. She had previously been disabled from employment for two separate periods due to stress and depression. She advised that she was currently under psychiatric care. She repeatedly claimed that she feared “ending up dead” because of what she knew about corruption within the Catholic system.

[14] Likewise, there is ample support for the Board’s conclusion that Ms. Horochowski failed to cooperate with the assessment process. Her correspondence along with her ongoing delay in obtaining a psychiatric assessment suggested she was unwilling to pursue this obligation with diligence. She repeatedly expressed doubt that any psychiatrist she contacted would want to provide her with an assessment. She failed to notify the Board that she was allegedly awaiting an assessment from Dr. Pistor, a psychiatrist to whom she had been referred (who ultimately declined to assess her). She charged psychiatrists with being part of the “Illuminati” and suggested that providing an assessment in her case would jeopardize their profession. She rejected Dr. Bloom, a qualified psychiatrist suggested by the union, but to the date of the Board’s reconsideration decision failed to identify a qualified psychiatrist who was prepared to assess her and was acceptable to her.

[15] In light of these factors, it was entirely reasonable for the Board to rule that OECTA had done all it could do in the circumstances, and had not breached its duty of fair representation by acting in a way that was arbitrary, discriminatory or in bad faith.

Procedural Fairness

[16] Ms. Horochowski claims she was denied procedural fairness because the Board used a consultation process rather than a formal hearing. However, subsection 99(3) of the Act provides that the Board is not required to hold a hearing when considering a complaint of unfair representation. Under s. 99 (5) of the Act, the Board may make any final order it considers appropriate after “consulting with the parties.” Moreover, Ms. Horochowski was given a meaningful opportunity to participate. She was provided with all the information the Board was considering and was given an opportunity to provide information and make submissions. As the Board consulted meaningfully with both sides before making a decision, her assertion that the principle of audi alteram partem was violated is unfounded.

[17] For those reasons, the application for judicial review is dismissed. As indicated at the hearing, none of the responding parties is seeking costs.

S.N. Lederman J.

K.E. Swinton J.

D. Baltman J.

Released: October 27, 2008