Khaiter v. Ontario Labour Relations Board
CITATION: Khaiter v. Ontario Labour Relations Board, 2013 ONSC 648
DIVISIONAL COURT FILE NO.: 431/08
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
DR. PETER A. KHAITER
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD and KEVIN WHITAKER, CHAIR and KELLY WADDINGHAM, VICE-CHAIR and YORK UNIVERSITY FACULTY ASSOCIATION
Respondents
In Person
James K. McDonald, for the Respondent, York University Faculty Association
HEARD at Toronto: January 25, 2013
ORAL REASONS FOR JUDGMENT
LEDERER J. (orally)
[1] There are four motions brought to dismiss four applications for judicial review. The moving party, the York University Faculty Association says that the scheduling of hearing dates for each of the applications has been delayed such that the court should now exercise its discretion and dismiss them.
[2] At the outset of the proceedings the responding party, Peter A. Khaiter requested an adjournment. He says that from the time these motions were first brought to his attention he advised the parties and the court that he would be unavailable and unable to prepare the four motions to be heard today.
[3] On November 5, 2012 counsel for the Association wrote to Peter A. Khaiter indicating that these motions would be brought and suggesting a series of dates on which they could proceed. It requests that Peter A. Khaiter advise as to his availability. Rather than respond, Peter A. Khaiter wrote to counsel, by email, on December 3, 2012 indicating that “in preparing my response to your November 5, 2012 correspondence I would like to clarify whether you are acting on your own initiative or based on some direction from the Association.” On December 10, 2012 in the absence of any substantive response from Peter A. Khaiter, counsel for the Association wrote to the court asking that it schedule a date from among three that had been included in the list initially provided to Peter A. Khaiter. Only then, on December 12, 2012, did Peter A. Khaiter respond. He indicated that he was unavailable on any of the three dates proposed.
[4] On the following day Swinton J. made the following endorsement:
The motion is to be set down for two hours on one of the three days offered in January, 2013. Dr. Khaiter shall indicate which one, failing which it will be set down for January 25, 2013.
[5] Peter A. Khaiter confirms that on December 14, 2012 counsel for the Association emailed him a copy of this endorsement. The record demonstrates that he picked up a further copy, from the court, on December 18, 2012. What is important is that Her Honour did not select one of the three dates but rather left it to Peter A. Khaiter to choose.
[6] Peter A. Khaiter did not advise the court or counsel as to which of the three dates he preferred. Accordingly, these motions were set down to be heard on January 25, 2013. It was only last Friday, January 18, 2013 that he advised the court that he was unavailable today.
[7] Nonetheless, Peter A. Khaiter says that any delay should not be attributed to him. His obligations at the University regarding the writing of exams, the marking of papers and the beginning of a new term made it impossible for him to respond at an earlier time.
[8] As he see it, he asked the Association a completely appropriate question, to confirm that counsel had instructions necessary to bring these motions. On December 18, 2012 an email was delivered to Peter A. Khaiter from the Association. It makes clear that counsel “is authorized to represent the Association” and requests that if the Association’s representation is to be made an issue, the email is to be brought to the attention of the judge hearing the matter. Even with this answer Peter A. Khaiter did not advise which of the three dates he preferred. Rather, on December 18, 2012, he wrote again asking for clarification. In his view, if the clarification had been provided he would have been prepared to schedule a hearing of these motions.
[9] I am not prepared to adjourn these motions. Peter A. Khaiter was given every reasonable opportunity to take part in the proper scheduling of this date. As I see it, he has used the question of proper representation of the Association and relied on his responsibilities at the University to delay responding. Those who come to court have a responsibility to assist its process, not to obstruct it. There is no reason why Peter A. Khaiter could not have taken the short amount of time needed and made the small effort required to provide the parties and the court with more expeditious and more helpful answers.
[10] Insofar as his preparation for today is concerned, I have observed that Peter A. Khaiter was able to prepare a cross motion with a record which included a document entitled, “Applicant Submissions, dated January 20, 2013”.
LEDERER J.
Date of Reasons for Judgment: January 25, 2013
Date of Release: March 7, 2013
CITATION: Khaiter v. Ontario Labour Relations Board, 2013 ONSC 648
DIVISIONAL COURT FILE NO.: 431/08
DATE: 20130125
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERER J.
BETWEEN:
DR. PETER A. KHAITER
Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD and KEVIN WHITAKER, CHAIR and KELLY WADDINGHAM, VICE-CHAIR and YORK UNIVERSITY FACULTY ASSOCIATION
Respondents
ORAL REASONS FOR JUDGMENT
LEDERER J.
Date of Reasons for Judgment: January 25, 2013
Date of Release: March 7, 2013