Court File No.: 79/09

Released: 20090708

ONTARIO

SUPERIOR COURT OF JUSTICE

DIVISIONAL COURT

Re: Dr. Peter A. Khaiter, Applicant

- and -

Ontario Labour Relations Board and Kelly Waddingham, OLRB Vice-Chair, and York University Faculty Association, and York University, Respondents

Before: Swinton, Low and Karakatsanis JJ.

Counsel: Dr. Peter A. Khaiter, in person

Voy T. Stelmaszynski, for the Ontario Labour Relations Board

James K. McDonald, for York University Faculty Association

Frank Cesario, for York University

Heard at Toronto: July 3, 2009

ENDORSEMENT

Overview

[1] The applicant seeks judicial review of two decisions of the Ontario Labour Relations Board (the “Board”) made by Vice-Chair Kelly Waddingham. The applicant seeks a variety of relief, including the quashing of the two decisions, damages and directions to the Board. The applicant also brought a motion, served a few days before this hearing, seeking relief that included damages, the removal of the licence of YUFA’s counsel, and findings of professional misconduct against certain counsel.

Background

[2] On April 22 and 24, 2008, the applicant filed two complaints of unfair representation against the York University Faculty Association (“YUFA”). YUFA and the employer, York University (“York”), requested that the time for submission of their replies be extended until the completion of an arbitration hearing scheduled June 23, 2008 to deal with the applicant’s tenure and promotion grievance. On May 14, 2008, the Board adjourned the complaints sine die pending the outcome of the arbitration. The Board found that the unfair representation complaints, the applicant’s seventh and eighth against YUFA, were premature.

[3] The applicant sought reconsideration of the May 14 decision and made written submissions. On September 5, 2008, the Board dismissed the application for reconsideration (Record of Proceedings, Tab 2), finding that the allegations in the two complaints arose out of the same facts and involved the same parties. The Board held that it was therefore reasonable to adjourn both pending the outcome of the grievance arbitration. The applicant’s alleged new evidence was not relevant because it was not in relation to the adjournment, but rather was in relation to the merits of his complaints of unfair representation. Finally, the Board held that the applicant had submitted his position on any request for an extension of time in his May 5, 2008 letter to the Board. He had provided no basis to show that an extension was not appropriate.

The Motion

[4] The applicant’s motion was dismissed at the hearing of the application with reasons to follow.

[5] The applicant was informed at the outset that this Court does not have jurisdiction to award damages or to deal with issues of professional misconduct on an application for judicial review of a Board decision.

[6] The applicant argued that the respondents had failed to comply with rule 68.04(4), as they did not deliver their facta within 30 days of service of the application record and the applicant’s factum. As well, they did not comply with the requirements for a factum as set out in rule 68.04(6). Therefore, he sought an order deeming admission of the factual allegations set out in his own factum, striking the facta or an adjournment of the application.

[7] The applicant’s record and factum were served by mail at the end of March 2009. Therefore, the respondents’ facta should have been served by early May. YUFA served its factum on June 3, 2009, and the Board and York served theirs on June 17, 2009.

[8] A failure to comply with the rules is an irregularity, and the court may grant may relief, on such terms as are just, to secure the just determination of the real matters in dispute (rule 2.01(1)(a)). While the respondents’ facta were served late, we see no prejudice to the applicant. The Board, as usual, took no position on the merits and in its factum dealt only with the standard of review and the statutory duty of fair representation. York adopted the facts and arguments in YUFA’s factum.

[9] The applicant had almost a month to prepare for the hearing after receipt of YUFA’s factum. This was adequate time for preparation as this is not a complicated case factually or legally. There was no need for an adjournment of this application to enable the applicant to have time to respond. Therefore, leave is granted to the respondents to file their facta late.

[10] The applicant also takes issue with the respondents’ failure to file a responding record. As YUFA and York relied on the Board’s record of proceedings, there was no need for them to file a record.

[11] The applicant argues that the respondents failed to comply with the factum requirements under the rules because they failed to state which facts set forth in his factum were accepted or disputed, and they failed to respond to each of his issues.

[12] In our view, while the respondents’ facta are technically not in compliance with the rule, there is a reasonable explanation for their format: the applicant is not a lawyer, and his factum is not in compliance with the rule. YUFA structured its factum so as to be of assistance to the Court, especially in its recital of facts and its position on the legal issues relevant to this application. York essentially adopted that factum. The Board, as is usual, took no position on the merits.

[13] Further, it is our view that YUFA’s factum does not leave any doubt as to its position on the issues germane to the application. It is unnecessary for a responding party to engage with the applicant upon facts or issues that are not germane to the application. Therefore, we would not give the relief sought by the applicant, as no sanctions are warranted in these circumstances.

The Application

The Standard of Review

[14] To the extent that the substance of the decision to adjourn the complaints is at issue, the standard of review is reasonableness (Schuit Plastering & Stucco Inc. v. Ontario (Labour Relations Board), [2009] O.J. No. 2082 (Div. Ct.)).

[15] When breaches of the rules of natural justice or the duty of procedural fairness are alleged, there is no need for a standard of review analysis. The issue is whether the applicable duty of fairness has been met (Kalin v. Ontario College of Teachers (2005), 75 O.R. (3d) 523 (Div. Ct.) at para. 9).

Procedural Fairness

[16] The applicant alleges that there is a reasonable apprehension of bias because the Vice-Chair had rejected the other six complaints he had made in December 2007 alleging breach of the duty of fair representation, and he had also raised concerns about her impartiality during that process. He had also asked the Chair of the Board to replace her.

[17] In our view, there is no basis for the allegation of reasonable apprehension of bias. The applicant has not satisfied us that a reasonable person, informed of all the circumstances and viewing the matter realistically and practically, would conclude that the Vice-Chair was likely to approach the determination of the requests for an extension of the time to file responding materials with a closed mind.

[18] The Board was not obliged to respond to the applicant’s request that another Vice-Chair be assigned to hear his complaints. A decision maker is not disqualified simply by virtue of a party having made negative allegations against her. Nor should a litigant be permitted to disqualify an adjudicator who has ruled against him simply by making complaints against her. Indeed, it was reasonable of the Board to assign the same adjudicator to cases involving similar facts and the same parties. The Board could reasonably conclude it would be inappropriate to grant the request for another decision-maker, thus allowing the applicant to “shop” for an adjudicator.

[19] The applicant also submits that the Board failed to provide adequate reasons for its decisions. We reject this submission. The Board clearly concluded that the new complaints were premature, given the referral of the tenure and promotion grievance to arbitration. Moreover, YUFA had filed the six grievances that were the subject of the eighth complaint.

[20] The applicant argued that he was not given an opportunity to make submissions on the request for an adjournment. However, he had sent a letter to the Board dated May 5, 2008 expressly opposing extensions of time to the respondents. He received copies of the May 6 and 7 letters from YUFA and York requesting the extension. The Board was aware of his opposition to the extension, as is clear from the reasons in the reconsideration decision.

[21] While the Board adjourned the second complaint prior to the May 22 request to do so, the decision was a reasonable one, as set out below. The Board was aware of the applicant’s opposition, as explained in the reconsideration decision. Therefore, in our view, there was no denial of procedural fairness, as the applicant’s position was before the Board and was considered.

[22] The Board did not order the consolidation of the two complaints, as the applicant alleges.

The Reasonableness of the Decision

[23] The applicant argues that the Board breached its rules in granting the adjournment and extension of time. Pursuant to Board rule 38.3, the Board has full discretion to adjourn a case if it considers it consistent with the Act, and by rule 3.2, it can extend time periods.

[24] The Board’s exercise of its discretion to extend the time and to grant an adjournment was reasonable, given the prematurity of the complaints. It was reasonable to adjourn both complaints, given there was overlap in the two complaints and their significant focus on the tenure and promotion dispute, which was on its way to a scheduled arbitration hearing.

Conclusion

[25] As there has been no denial of procedural fairness and as the decision of the Board was reasonable, this application for judicial review is dismissed.

[26] None of the respondents raised the issue of the prematurity of this application for judicial review. This Court has often said that it is undesirable to interrupt the course of administrative proceedings by an application for judicial review brought during the course of the proceedings, absent exceptional circumstances (Ontario College of Art v. Ontario (Human Rights Commission) (1993), 11 O.R. (3d) 798 (Div. Ct.) at paras.5-7). It is preferable to avoid fragmentation of the tribunal’s proceedings and to have judicial review on the basis of a complete record, so that the Court is able to determine the full impact of any potential error.

[27] There are no exceptional circumstances here which justify judicial review during the course of the Board’s proceedings. The Board has made no determination of the merits of the two complaints. All that it has done is to adjourn them pending the outcome of the arbitration process. Therefore, we would also have exercised our discretion to dismiss this application on the grounds of prematurity.

[28] The Board does not seek costs. The respondents YUFA and York may make written submissions, through the Divisional Court Office, within 21 days of the release of this decision. The applicant shall make responding submissions within 21 days of the receipt of their submissions. All costs submissions are limited to five pages in length.

Swinton J.

Low J.

Karakatsanis J

Released: July 8, 2009