CITATION: Faculty Assn. of the University of Windsor v. University of Windsor, Adell, 2014 ONSC 1142
DIVISIONAL COURT FILE NO.: 590/04
DATE: 20140220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND DALEY JJ.
BETWEEN:
THE FACULTY ASSOCIATION OF THE UNIVERSITY OF WINDSOR Applicant
– and –
THE UNIVERSITY OF WINDSOR, BERNARD ADELL, PETER MERCER AND JOYCE LORIMER Respondents
James A. Renaud and Matthew R. Todd, for the Applicant
Glenn P. Christie and Kathryn L. Meehan, for the Respondent, The University of Windsor
James K. Ball, for the Intervenor, Salem Taboun
HEARD at Toronto: February 20, 2014
SACHS J. (ORALLY)
[1] The Applicant Association applies for judicial review of preliminary and final arbitral awards that had the effect of dismissing the intervenor, Dr. Taboun, from his employment as a professor at the Respondent University for just cause. Dr. Taboun intervenes on the ground that the Board had no jurisdiction to decide the issues as between the University and the Association. According to Dr. Taboun, the only proper parties were him as a “member” of the Association and the University. Both Dr. Taboun and the Association request that the award be quashed and that the matter be remitted for a new hearing.
[2] On October 29, 2013 Pardu J. (as she then was) ordered that all parties address the issue of delay in having this application heard. At the hearing of this matter we directed the parties to address the issue of delay as a preliminary matter.
[3] The following are the relevant dates regarding the delay in bringing this application for judicial review:
(i) On September 10, 2002 the Board issued its award finding just cause to dismiss Dr. Taboun.
(ii) On January 30, 2003 the Association issued its Notice of Application for Judicial Review.
(iii) Later that year Dr. Taboun’s counsel indicated that he may intervene in that application.
(iv) In November of 2004 the Association perfected its application and the hearing was scheduled for January 31, 2005.
(v) Before the hearing date the University moved to strike certain paragraphs from the affidavit filed by the Association. That motion was disposed of in May of 2005 on the basis that it should be put before the full hearing panel. The University served a notice of appeal respecting this decision, which it later abandoned.
(vi) On January 25, 2006 the hearing was rescheduled for April 18, 2006.
(vii) On April 18, 2006 the panel adjourned the hearing because no transcripts had been provided by the parties.
(viii) In February of 2007 the Association provided copies of the transcripts to the University.
(ix) On August 31, 2007, the Association completed a hearing request form and the hearing was scheduled for November 20, 2007.
(x) On October 25, 2007 Dr. Taboun wrote a letter to the Association and the University in which he raised the issue of the Board’s jurisdiction to decide the issues in dispute.
(xi) On November 20, 2007 the hearing was adjourned on consent because of Dr. Taboun’s letter.
(xii) From November of 2007 to September of 2011 the parties engaged in intermittent communications regarding Dr. Taboun’s intention to join the application as a party or an intervenor.
(xiii) In September of 2008 the University examined Dr. Taboun and Mr. Renaud (counsel for the Association and, allegedly, Dr. Taboun at the hearing).
(xiv) On May 22, 2009 the Association wrote to the University seeking a resolution of the procedural issues.
(xv) On September 19, 2011 Hoy J. (as she then was) granted Dr. Taboun leave to intervene on the application.
[4] The Association argues that no party raised the issue of delay. Further, it submits that it has moved the matter forward in a timely manner. According to the Association, the delay in having this application heard has been caused by events beyond its control and any delay is attributable as much to the University and Dr. Taboun as it is to the Association.
[5] The University submits that the application could be dismissed for delay, although it is not asking we do so. First, it points out that the length of the delay has been extreme. Second, even if the delay was not entirely the fault of the Applicant, the court can decline to grant a discretionary remedy. Third, delay can be prejudicial in a labour relations context even where no actual prejudice can be demonstrated. The jurisprudence has recognized that certainty and finality are important in workplace disputes. Here, the Applicant is seeking to relitigate the underlying issues of Dr. Taboun’s dismissal for cause over a decade later. This is highly prejudicial as memories fade with time. Further, Dr. Taboun did not give evidence before the Board but, if this matter is remitted as requested to a new Board, he could choose to do so (and likely will, given his position on this application). This would only enhance the prejudice to the University, who may not be in a position after such a long period of time to gather the evidence needed to cross-examine Dr. Taboun on his evidence or to rebut his evidence in an effective manner.
[6] Dr. Taboun submits that the University was on notice regarding his jurisdictional argument as early as October of 2007 and raised no complaint about prejudice.
[7] In Bettes v. Boeing,[2000] O.J. No. 5413 the Divisional Court heard the judicial review of an Ontario Labour Relations Board decision rendered in December of 1990. The application came on for a hearing 10 years later. At paragraph 10 of its decision the court makes the following finding:
Even though the delay in this matter was not the total responsibility of the applicant, there remains a necessity upon an applicant to proceed expeditiously. That is so even if there is some arguable basis for various interlocutory proceedings. At some point in time the exhaustion of such interlocutory proceedings must give way to a timely hearing on the merits. To require a tribunal to re-hear a matter of this nature twelve years or more after the fact, regardless of its merit, would otherwise bring the administration of justice into disrepute.
[8] In our view, this finding is equally applicable in this case. Dr. Taboun was dismissed from his employment in 2001, over twelve years ago. This is a workplace dispute where timely resolution is a priority. To require this matter to be relitigated after this extreme length of time, when memories have faded and evidence may no longer be available, would bring the administration of justice into disrepute. As far as Dr. Taboun’s jurisdictional argument is concerned, there is no satisfactory explanation for why it was not raised until 5 years after the Board rendered its decision or why Dr. Taboun did not get leave to intervene in this proceeding for another 4 years. This is particularly disturbing given that it is Dr. Taboun’s interests that were at stake in this application.
[9] For these reasons, given the extreme nature of the delay at issue, the application is dismissed.
LEDERMAN J.
[10] I have endorsed the Record to read, “This application is dismissed for delay for oral reasons delivered by Sachs J. Given that all parties bear some responsibility for the delay, there will be no order as to costs.”
SACHS J.
LEDERMAN J.
DALEY J.
Date of Reasons for Judgment: February 20, 2014
Date of Release: February 24, 2014
CITATION: Faculty Assn. of the University of Windsor v. University of Windsor, Adell, 2014 ONSC 1142
DIVISIONAL COURT FILE NO.: 590/04
DATE: 20140220
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN, SACHS AND DALEY JJ.
BETWEEN:
THE FACULTY ASSOCIATION OF THE UNIVERSITY OF WINDSOR Applicant
– and –
THE UNIVERSITY OF WINDSOR, BERNARD ADELL, PETER MERCER AND JOYCE LORIMER Respondents
ORAL REASONS FOR JUDGMENT
SACHS J.
Date of Reasons for Judgment: February 20, 2014
Date of Release: February 24, 2014