CITATION: Dot Benefits Corp. v. Grzesiak, 2011 ONSC 3764
DIVISIONAL COURT FILE NO.: 235/09
DATE: 20110615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SWINTON AND DURNO JJ.
BETWEEN:
DOT BENEFITS CORP. and MARTIN P. SHAW
Applicant
– and –
MICHAEL GRZESIAK and ONTARIO HUMAN RIGHTS COMMISSION
Respondents
Benjamin Salsberg, for the Applicant
Michael Grzesiak, In Person
Anthony D. Griffin, for the Respondent, Ontario Human Rights Commission
Margaret Leighton, for the Respondents, Human Rights Tribunal of Ontario
HEARD at Toronto: June 15, 2011
ORAL REASONS FOR JUDGMENT
SWINTON J. (ORALLY)
[1] The standard of review of the Tribunal’s decision is reasonableness.
[2] The applicants argue that the Tribunal erred in law in placing an onus on Mr. Shaw to make inquiries about Mr. Grzesiak’s medical condition around and after June, 2001, given Mr. Grzesiak’s position that he had been dismissed at a meeting on May 22, 2001. The applicants argue that the Tribunal should have concluded that Mr. Grzesiak repudiated his employment contract and, therefore, there was no duty to accommodate his disability.
[3] The Tribunal found, on the evidence, that Mr. Grzesiak had not been dismissed at the May 22 meeting, although Mr. Grzesiak clearly believed that to be the case and communicated his understanding to Mr. Shaw. The Tribunal also found that Mr. Shaw did not provide straight answers to Mr. Grzesiak’s assertion that he had been terminated, and Mr. Shaw took the position that Mr. Grzesiak was never dismissed. The Tribunal accepted that evidence that there had not been a dismissal.
[4] The Tribunal found in these circumstances, there was a duty on the employer to conduct a sufficient inquiry into Mr. Grzesiak’s medical condition and prognosis for recovery in order to meet the procedural component of the duty to accommodate. The Tribunal found that the duty was breached. This was a reasonable conclusion based on the evidence and does not reflect any error of law.
[5] In our view, the Tribunal’s decision meets the standard of reasonableness and the application for judicial review should be dismissed.
[6] Judicial review is a discretionary remedy and the Court has the jurisdiction to refuse relief because of undue delay. The delay in perfecting this application for judicial review was undue and unexplained in the material filed before us. Applicants’ counsel, in submissions today, advised that he understood the consent order extending the time to perfect the application excused any delay. He advised that the delay, until perfection, was caused in large measure by his ill health.
[7] Although the length of the delay to perfection, some seventeen months, would normally warrant dismissal (see Jeremiah v. Ontario Human Rights Commission, [2008] O.J. No. 3013 (Div. Ct.) at paras. 44 to 46), in view of these circumstances, we do not dismiss on this additional ground.
JENNINGS J.
[8] I have endorsed the back of the Application Record, “This application is dismissed for oral reasons delivered today. Costs of $5,000.00, payable to the OHRC forthwith. As no costs are asked for by the Tribunal, none are awarded.”
SWINTON J.
JENNINGS J.
DURNO J.
Date of Reasons for Judgment: June 15, 2011
Date of Release: June 20, 2011
CITATION: Dot Benefits Corp. v. Grzesiak, 2011 ONSC 3764
DIVISIONAL COURT FILE NO.: 235/09
DATE: 20110615
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, SWINTON AND DURNO JJ.
BETWEEN:
DOT BENEFITS CORP. and MARTIN P. SHAW
Applicant
– and –
MICHAEL GRZESIAK and ONTARIO HUMAN RIGHTS COMMISSION
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: June 15, 2011
Date of Release: June 20, 2011