Islam v. Ennis Fabrics Ltd., 2012 ONSC 3296
CITATION: Islam v. Ennis Fabrics Ltd., 2012 ONSC 3296
DIVISIONAL COURT FILE NO.: 506/10
DATE: 20120604
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, POLOWIN AND WILTON-SIEGEL JJ.
BETWEEN:
MR. SHAH ISLAM Applicant
– and –
J. ENNIS FABRICS LTD., DIRECTOR OF EMPLOYMENT STANDARDS and ONTARIO LABOUR RELATIONS BOARD Respondents
In Person
Katherine Ballweg, for the Respondent, Director of Employment Standards
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
Morgan M. Deacon, for the Respondent, J. Ennis Fabrics Ltd.
HEARD at Toronto: June 4, 2012
BY THE COURT
[1] The applicant seeks judicial review of a decision dated September 29, 2009 of the Ontario Labour Relations Board (“the Board”) dismissing his application for a review of a refusal of the delegate of the Director of Employment Standards dated March 20, 2009 to issue an Order to Pay to the applicant’s former employer, J. Ennis Fabrics Ltd., on the grounds that it was not timely. He also seeks a review of reconsideration decisions of the Board dated October 27, 2009 and November 18, 2009.
Background
[2] The applicant filed a complaint seeking termination pay under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“the Act”). The applicant was served with a letter advising of the refusal to issue an Order to Pay on March 20, 2009. Subsection 116(4) of the Act requires that an application for review of a refusal to issue an Order to Pay be made to the Board within thirty days after the date of the letter advising of the refusal to issue an Order to Pay is served. Subsection 116(5) provides that the Board may extend the time for applying for a review if it considers it appropriate in the circumstances.
[3] The applicant did not file an application for review until September 16, 2009. The letter advising the applicant of the refusal to issue an Order to Pay advised the applicant of the time limit in s.116(4) for filing an application for review. The applicant says that on April 17, 2009 he faxed a request to the delegate of the Director of Employment Standards advising that he wished to file an application for review of her refusal to issue an Order to Pay. He says the delegate did not reply to his faxed request within the thirty-day period and he assumed that he was thereby entitled to treat the limitation period as extended. It appears he received a copy of the form on or about September 4, 2009.
[4] In its decision of September 29, 2011, the Board refused to exercise its discretion under s.116(5) on the ground that the applicant failed to demonstrate extenuating circumstances. It also concluded that there was nothing on the facts of this case to rebut the presumption in cases of delay that there is real prejudice to the administration of justice and to the Director of Employment Standards.
[5] The applicant sought reconsideration of the decision stating, among other things, that he contacted the Board shortly after receipt of the delegate’s letter on March 20, 2009 to request an application form. The request for reconsideration was refused on October 27, 2009. The Board concluded that there was nothing raised in his submissions seeking a further reconsideration that was not raised in his earlier submissions nor were there any additional facts raised that would cause the Board to reconsider its decision. The applicant sought a further reconsideration of the decision which was refused on November 18, 2009 for the same reasons as the previous request for a reconsideration was denied.
[6] We would note that the applicant’s notice of application for judicial review refers only to a decision “dated 27, 2009 followed by similar one dated November 17, 2009” although the application record includes the Board’s decision and reconsideration decisions described above and the oral argument before this Court also addressed these three decisions. Accordingly, we have proceeded on the basis that the application for judicial review relates to all three decisions.
The Issues Raised in this Application
[7] The applicant submits that he was denied natural justice. In addition, he submits that the Board erred in refusing to exercise its discretion under s.116(5) to extend the time period for his application for review.
The Standard
[8] With respect to the issue of natural justice, the court need not determine the standard of review. Rather, the court must decide if the requisite fairness was afforded. It is well- established that the standard of review from a decision of the Board is reasonableness. This standard also applies in respect of the reconsideration decisions of the Board.
Was there a Denial of Natural Justice?
[9] We have carefully reviewed the detailed submissions of the applicant, both to the Board in respect of his application for review and applications for reconsideration and to this Court in respect of this application for judicial review.
[10] The applicant’s claim that he has been denied natural justice is based on an assertion that there has been systemic bias applied throughout the various proceedings arising out of his termination, particularly since the commencement of the criminal proceedings against him. In this regard he alleges that the Vice-Chair of the Board was pressured to reach her decisions in this matter by unknown Crown representatives. We find no evidence in the record before us to support this allegation. Accordingly, we find there was no denial of natural justice by the Board.
Was the Board’s Decision Reasonable?
[11] In paragraph 5 of the decision, the Vice-Chair properly reviewed the factors considered relevant by the Board in the exercise of its discretion under s.116(5). The applicant does not deny that he was advised of the thirty-day time limit for filing an application for review in the letter advising of the refusal to issue an Order to Pay. As the Board observed, the applicant had the responsibility for filing a timely application for review.
[12] The only evidence before the Board was the applicant’s alleged fax of April 17, 2009, on the 28th day of the thirty-day period. The applicant failed to file in timely fashion and failed to provide a reasonable explanation for his failure to do so. The decision of the Board applied the factors described above to the present circumstances in a reasonable manner.
[13] In our view, the decision satisfies the test for reasonableness required of the Board.
The Reconsideration Decisions
[14] In each of the reconsideration decisions, the Board concluded that the applicant’s request for reconsideration failed to set out any new facts or arguments that would warrant a reconsideration of the decision.
[15] In our view, the Board’s reconsideration decisions are also reasonable and are entitled to deference by this Court.
Conclusion
[16] For these reasons, the application for judicial review is dismissed.
BY THE COURT
COSTS
[17] In our opinion, the issues were simple. The respondent company was not called upon and, given the circumstances explained to us by Mr. Shah Islam, the principles of Boucher v. Public Accountants Council for the Province of Ontario 2004 14579 (ON CA), [2004] O.J. No. 2634 (C.A.) would be satisfied by a cost award of $2,000.00.
[18] We have endorsed the Application Record, “Application is dismissed for oral reasons of the Court delivered today. Costs payable by Mr. Shah Islam to Ennis fixed at $2,000.00 inclusive.”
JENNINGS J.
POLOWIN J.
WILTON-SIEGEL J.
Date of Reasons for Judgment: June 4, 2012
Date of Release: October 5, 2012
CITATION: Islam v. Ennis Fabrics Ltd., 2012 ONSC 3296
DIVISIONAL COURT FILE NO.: 506/10
DATE: 20120604
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
JENNINGS, POLOWIN AND WILTON-SIEGEL JJ.
BETWEEN:
MR. SHAH ISLAM Applicant
– and –
J. ENNIS FABRICS LTD., DIRECTOR OF EMPLOYMENT STANDARDS and ONTARIO LABOUR RELATIONS BOARD Respondents
ORAL REASONS FOR JUDGMENT
BY THE COURT
Date of Reasons for Judgment: June 4, 2012
Date of Release: October 5, 2012