Court File and Parties

CITATION: Ransom v. Her Majesty the Queen, 2010 ONSC 3156 COURT FILE NO.: 74/09 DATE: 2010-06-02

SUPERIOR COURT OF JUSTICE – ONTARIO – DIVISIONAL COURT

RE: DOUGLAS RANSOM, Applicant (Responding Party) AND: HER MAJESTY THE QUEEN IN RIGHT OF ONTARIO et al, Respondents (Moving Parties)

BEFORE: MOLLOY J.

COUNSEL: Omar Shabab, Counsel, for the Moving Parties Douglas Ransom, in person

HEARD: May 13, 2010

Endorsement

Introduction

[1] Douglas Ransom had a highly successful career as a member of the Toronto Police Service for 33 years. Towards the end of that career, he applied for and was awarded a position as instructor at the Ontario Police College, beginning on May 13, 2002. On March 4, 2003, while still in his probation period, Mr. Ransom was dismissed from employment, ostensibly for failing to meet the requirements of the job.

[2] This judicial review application was issued on February 20, 2009. The responding parties include Her Majesty the Queen, the Ontario Police College and several government officials. The application was not perfected until March 10, 2010.

[3] The responding parties now seek an order dismissing the judicial review application for delay.

The Test

[4] Judicial review is a discretionary remedy and can be denied if there has been excessive delay: International Union of Bricklayers and Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (2000), 132 O.A.C. 87 at para. 18 (Div.Ct.); Jeremiah v. Ontario Human Rights Commission, [2008] O.J. No. 3013 (Div.Ct.).

[5] In determining whether to dismiss an application for delay, the court will consider the length of the delay, whether there is a reasonable explanation for the delay and whether the moving parties have suffered prejudice as a result of the delay: Gigliotti v. Conseil d’Administration du Colleges des Grands Lacs, 2005 23326 (ON SCDC), [2005] O.J. No. 2762. Some cases suggest that the merits of the application may also be taken into account.

Length of the Delay

[6] Mr. Ransom was dismissed on March 4, 2003.

[7] On March 21, 2003, Mr. Ransom wrote to his supervisor, objecting to the manner in which he had been dismissed without having been given an opportunity to respond to any concerns raised and requesting a ministry review of his termination.

[8] His employer agreed to undertake a review, which was conducted by Acting Assistant Deputy Minister Glenn Murray.

[9] Mr. Ransom promptly retained counsel, who on June 26, 2003 made extensive written submissions to the Minister on his behalf. On July 18, 2003, ADM Glenn Murray advised Mr. Ransom in writing that he had upheld the decision to terminate his employment. No further steps were taken at that time to either sue civilly for wrongful dismissal or bring an application for judicial review.

[10] Over five years later, on December 3, 2008, Mr. Ransom (who was by then acting in person) advised respondents’ counsel by email that he intended to seek judicial review of his termination. In an ensuing exchange of email correspondence, counsel for the respondents told Mr. Ransom that the respondents would be taking the position the application was untimely and on December 18, 2008 provided Mr. Ransom with a Divisional Court decision dealing with delay.

[11] The notice of application for judicial review was served on the respondents on February 20, 2009. Nothing further was done at that time. The respondents maintained their position that the application was out of time. At one point, Mr. Ransom requested counsel’s consent to extend the time to perfect the application, which was refused.

[12] On February 22, 2010 the Registrar of the Divisional Court issued a Notice advising Mr. Ransom that if he did not perfect his application by March 14, 2010, his application would be dismissed.

[13] Mr. Ransom delivered his application and factum on March 14, 2010, thereby perfecting the application just over seven years after his dismissal.

[14] Thus, we are dealing with a delay of nearly six years from the date of the dismissal to the date upon which this proceeding was commenced and a further year to perfect the application.

[15] This Court has held on many occasions that a delay of more than six months in commencing a judicial review application is reason for concern: Gigliotti at para 29; Jeremiah at para 45.

[16] In an employment context, delay is particularly troubling given the need to resolve workplace issues promptly and avoid lingering disharmony: Amodeo v. Ontario (Ministry of Labour), [2010] O.J. No. 1200 (Div.Ct.); Ontario Public Service Employees Union v. Ontario (Ministry of Labour), [2001] O.J. No. 1037 (Div.Ct.); Patel v. Ontario (Labour Relations Board), [1998] O.J. No. 571 (Div.Ct.).

[17] The delay in this case is excessive by any standard. Further, Mr. Ransom did not move expeditiously even after the initial six year delay in commencing the proceeding and notwithstanding repeated warnings from responding counsel that delay would be raised as an issue barring any remedy from this court.

Prejudice as a Result of the Delay

[18] There has been no specific evidence of actual prejudice as a result of the delay. However, given the length of the delay and the nature of the remedy sought, a certain degree of prejudice is obvious.

[19] Mr. Ransom seeks reinstatement into his position as an instructor at the Ontario Police College. If his application is successful, that remedy would likely not take effect until 2011 at the earliest, eight years after his dismissal. A lot has changed in policing in eight years and Mr. Ransom has been removed from it for all these years. Further, there would be an obvious disruption of staff members who have been in place for many years since Mr. Ransom left.

[20] Finally, it is clear from much of the material filed by Mr. Ransom that he has been engaged for the past seven years in extensive and bitter disputes and litigation against the Police College and many of his former police colleagues. There is considerable acrimony between these parties and a smooth transition back into this workplace could not be expected.

[21] I am satisfied that there has been prejudice to the respondents as a result of the delay.

Reasons for the Delay

[22] I am prepared to discount the delay from March 4, 2003 to July 18, 2003. It took some time for Mr. Ransom to consider his position and retain counsel. It was then reasonable to request the internal ministry review and await its outcome. By July 18, 2003, however, Mr. Ransom knew or ought to have known that his dismissal was final.

[23] For the most part, Mr. Ransom’s explanation for the delay in proceeding with this judicial review application is that he has been too busy pursuing other litigation and obtaining information he considered crucial to his application.

[24] Mr. Ransom spent considerable time trying to ascertain whether ADM Glenn Murray was in a conflict of interest position at the time he conducted the review of the dismissal decision. This was an irrelevant inquiry. The process undertaken by the ADM was merely an informal internal review. It was not undertaken pursuant to any statutory power of decision and would not be reviewable by this court in any event.

[25] Mr. Ransom also spent considerable time attempting to gather information to undermine the credibility of his immediate supervisor. This included a Freedom of Information request for the results of an Ontario Police College management review. This proceeding is based on alleged breaches of procedural rights and natural justice in the course of Mr. Ransom’s dismissal from employment. It is not a wrongful dismissal action, nor a review of management practices generally at the Ontario Police College. I cannot characterize the pursuit of this information as a reasonable basis for delaying bringing the judicial review application. Mr. Ransom eventually commenced this judicial review application without receiving the management review document. It was ultimately provided to him by counsel for the applicants in an effort to convince him that there was no “smoking gun” to be found there. I agree with Mr. Shabab’s position that the document is not relevant to this proceeding.

[26] Another significant investigation effort related to a dismissal of another probationary employee and Mr. Ransom’s belief that the ministry had hired two probationary employees for one full-time position, knowing (without disclosing) that only one of the two would be retained. Again, relevance is questionable and this was not a reasonable use of Mr. Ransom’s time.

[27] Mr. Ransom has been engaged in a lengthy dispute and litigation with the Ontario Provincial Police Association (“OPPA”), which was the bargaining agent for civilian employees of the Ontario Police College. He believes that the OPPA did not adequately represent his interests. His complaint to the Ontario Labour Relations Board in that regard was dismissed for lack of jurisdiction. In addition to his own disputes with the OPPA, Mr. Ransom has spent considerable time assisting another former employee to seek redress from the OPPA, including a complaint to the Human Rights Commission. There has also been an extensive letter writing campaign, both on his own behalf and on behalf of others he believes to be similarly aggrieved.

[28] In March 2010, Mr. Ransom commenced a civil action against the OPPA for breach of “contractual and duty of care obligations”. It covers 118 paragraphs and seeks damages of $1 million. This is the project that substantially contributed to Mr. Ransom’s failure to perfect his judicial review application in a timely way after it had been commenced.

[29] I do not see any of these proceedings as providing a legitimate explanation for a delay of the magnitude involved in this case. Mr. Ransom chose to devote his time and resources pursuing particular avenues that were no doubt important to him. That does not constitute a reasonable explanation for delay in commencing these proceedings.

[30] Finally, Mr. Ransom argues that his ignorance of the law contributed to the delay as he did not realize until October 2008 that judicial review was an available remedy. He testified that he only discovered the possibility as a result of sitting in on a judicial review proceeding in the Divisional Court that was of interest to him because it involved police officers. Mr. Ransom was represented by counsel immediately following his dismissal. If he failed to properly understand, explore or pursue the remedies available to him, that is not a matter that should be visited upon the respondents. I do not see this point as warranting or excusing the kind of delay that took place in this case. (On this point, I will add that it is by no means clear that judicial review is an available remedy. Mr. Ransom was a probationary employee. Further, the Supreme Court of Canada’s decision in Dunsmuir v. New Brunswick may be a considerable obstacle to Mr. Ransom’s argument that he was entitled to procedural fairness and natural justice before he could be dismissed. However, I do not rest my decision on the merits of Mr. Ransom’s application and will comment no further)

Conclusion

[31] The delay in this case has been inordinate, far beyond what can ever be considered reasonable, particularly for a case of this nature. The explanations offered for the delay are not adequate to justify it in all of the circumstances. They merely explain that Mr. Ransom has not been sitting idly by; he has been busy pursuing many different options. But these are choices he has made. They are not an adequate explanation for the delay. Finally, as a result of the delay there has been prejudice to the respondent, particularly in light of the remedy sought (and indeed the remedies that are available from this court).

[32] In all of these circumstances, I am satisfied that the respondent has met the test for dismissal.

[33] The respondent seeks costs of $1000.00, which is a modest request in light of the materials and the time involved.

[34] Accordingly, this application is dismissed. Costs, if demanded by the respondents, are fixed at $1000.00.

MOLLOY J.

Date: June 2, 2010