CITATION: Hotta v. Ontario Labour Relations Board, 2012 ONSC 5420
DIVISIONAL COURT FILE NO.: 613/10
DATE: 20120925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. BROWN, MATLOW AND SWINTON JJ.
BETWEEN:
RICHARD HOTTA, A DIRECTOR OF PROTEUS CRAFTWORKS INC.
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD AND THE PARTIES LISTED ON APPENDIX A
Respondents
In Person
Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board
Judy L. Chan, for the Respondent, Ministry of Labour
HEARD at Toronto: September 25, 2012
SWINTON J. (orally)
[1] The applicant, Richard Hotta, seeks judicial review of a decision of the Ontario Labour Relations Board dated August 27, 2010, in which the Board rejected a request for reconsideration of a decision dated December 7, 2009.
[2] In the December decision the Board had dismissed the application brought by the applicant and another director of a defunct company for review of an order to pay outstanding wages and vacation pay pursuant to the directors’ liability provisions of the Employment Standards Act, S.O. 2000, c. 41 (“the Act”).
[3] The applicant had failed to appear for the December hearing and had not notified the Board that he sought an adjournment because of illness, although he had told the lawyer for the Director of Employment Standards of the Ministry of Labour that he was ill. As a result of his failure to appear, the Board treated his application as abandoned and confirmed the order to pay made against him in the amount of $16,137.31.
[4] The applicant did not seek formal reconsideration of that decision, although he had sought reconsideration of an earlier Board decision in June, 2009. However, a group of employees sought reconsideration in order to challenge the quantum of outstanding wages payable by the applicant. Their request was rejected in the decision that is the subject of this application for judicial review.
[5] The applicant argues that he was denied procedural fairness in that he has not been able to address the issue of the amounts owing. He also argues that the Board made mathematical errors in calculating the sum he was ordered to pay.
[6] The standard of review is reasonableness when the Board is interpreting the Employment Standards Act (see s.119(14) of the Act and Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 49 at paras. 46-47).
[7] Despite the applicant’s effort to characterize the Board’s actions as a denial of procedural fairness, in substance he is attacking the merits of the Board’s decision to dismiss his application as abandoned. In this case the applicant did not request an adjournment from the Board, although he had informed the Director’s counsel that he felt ill. His June 2009 letter to the Board shows that he knew how to contact the Vice Chair of the Board.
[8] Rule 38.6 of the Board’s Rules of Procedure provides that where a person has received written notice of a hearing and fails to attend, the Board may decide the application without further notice to the person and without considering any documentation that the person may file at a later date.
[9] In the circumstances, the Board reasonably proceeded in the applicant’s absence. In the absence of any argument made about the propriety of the order under review, the Board reasonably confirmed the order to pay made by the Employment Standards Officer.
[10] It is telling that the applicant did not make a timely request for reconsideration on the grounds that he was treated unfairly because the Board proceeded in his absence (see para. 17 of the Board’s August 27, 2010 order).
[11] We are not satisfied that there has been any procedural unfairness here. Accordingly, the application for judicial review is dismissed.
COSTS
R. S. J. BROWN
[12] On behalf of the panel, I have endorsed the Application Record, “For oral reasons given, the application for judicial review is dismissed. No order as to costs.”
SWINTON J.
R.S.J. BROWN
MATLOW J.
Date of Reasons for Judgment: September 25, 2012
Date of Release: October 2, 2012
CITATION: Hotta v. Ontario Labour Relations Board, 2012 ONSC 5420
DIVISIONAL COURT FILE NO.: 613/10
DATE: 20120925
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R.S.J. BROWN, MATLOW AND SWINTON JJ.
BETWEEN:
RICHARD HOTTA, A DIRECTOR OF PROTEUS CRAFTWORKS INC.
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD AND THE PARTIES LISTED ON APPENDIX A
Respondents
ORAL REASONS FOR JUDGMENT
SWINTON J.
Date of Reasons for Judgment: September 25, 2012
Date of Release: October 2, 2012