Citation: Li v. Novopharm Limited (TEVA Canada Limited), 2015 ONSC 3221
DIVISIONAL COURT FILE NO.: 47/15
DATE: 20150520
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
KAM CHONG LI
Applicant
– and –
NOVOPHARM LIMITED (TEVA CANADA LIMITED) AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
Counsel:
In Person
Sonia Regenbogen, for the Respondent, Novopharm Limited (TEVA Canada Limited)
James B. Schneider, for the Respondent, Human Rights Tribunal of Ontario
HEARD at Toronto: May 20, 2015
LEDERMAN J. (ORALLY)
[1] The respondent TEVA brings this motion to dismiss the applicant Li’s judicial review application for the reason of delay.
Background
[2] Li filed an application for judicial review on January 30, 2015 seeking judicial review of certain decisions of the Human Rights Tribunal of Ontario issued some five years earlier in 2009, namely, the initial decision dated June 19, 2009, the Reconsideration Decision dated November 10, 2009 and a “closed file” decision delivered by letter dated December 1, 2009.
[3] In his application for judicial review, Li submits that the Human Rights Tribunal decisions deprived him of his “judicial remedy rights” under both the Workplace Safety and Insurance Act and the Ontario Human Rights Code. He also seeks a declaration that certain sections of the Workplace Safety and Insurance Act are inconsistent with the Ontario Human Rights Code, the Constitution and the United Nations Convention on Civil and Political Rights and are of no force and effect.
[4] The events giving rise to the application for judicial review began on July 30, 2002 when Li suffered a workplace injury.
[5] Since that date, Li alleged that TEVA failed in its duty under the Ontario Human Rights Code to accommodate him and thereby discriminated against him because of his disability. In addition, he raised other allegations of contraventions of the Code.
[6] Li also filed a claim with the Workplace Safety Insurance Board and ultimately the Appeals Tribunal (“WSIAT”) issued its decision in 2009.
[7] The Ontario Human Rights Tribunal also decided the issues before it in 2009. Therefore, by late 2009, both the Ontario Human Rights Tribunal and the WSIAT had issued its decisions.
[8] In 2011, Li lodged a complaint with the United Nations.
[9] In 2014, Li filed an application for leave to the Supreme Court of Canada, which was dismissed in November 2014.
Disposition
[10] Judicial review is an equitable discretionary remedy and can be denied if there has been excessive delay.
[11] A Court will consider, on a motion of this nature, the length of delay, whether there is a reasonable explanation for the delay and whether any prejudice has been suffered by the moving party as a result of the delay.
[12] Li’s explanation for the extraordinary delay in bringing the application is that he tried other avenues of redress: he filed a complaint with the United Nations; he tried to appeal to the Supreme Court of Canada; and, he states that as a self-represented party he did not know to what body he should turn. He did not learn of the possibility of a judicial review until so advised by someone in the Divisional Court office on December 23, 2014.
[13] Explanations such as these were made in the case of Ransom v. Ontario, [2010] O.J. No. 2430 and the Court found them unacceptable.
[14] Similarly, Li’s explanation here should be given little weight especially when looked at in the context of a five year delay since the decisions in question were made.
[15] Of some importance, as well, is the fact that the decisions relate to workplace issues in an employment context and courts have repeatedly stated that, as a matter of policy, these kinds of issues should be resolved promptly and not be allowed to fester over many years. That is so particularly so here because Li remains an employee of TEVA.
[16] In addition, ss. 40 and 53(4) of the Human Rights Code expressly state that the merits of disputes are to be disposed of in an “expeditious manner.”
[17] Also, it goes without saying that revisiting these issues after such a lengthy delay, creates obvious prejudice for TEVA.
[18] Here the delay is particularly egregious, five years since the Human Rights Tribunal decisions and twelve years since the workplace incident occurred.
[19] The motion is therefore granted and the application for judicial review is dismissed for delay.
COSTS
[20] I have endorsed the Record, “For oral reasons delivered the motion is granted and the application for judicial review is dismissed for delay. TEVA will have its costs fixed at $1,200 all inclusive, if demanded.”
___________________________ LEDERMAN J.
Date of Reasons for Judgment: May 20, 2015
Date of Release: May 22, 2015
CITATION: Li v. Novopharm Limited (TEVA Canada Limited), 2015 ONSC 3221
DIVISIONAL COURT FILE NO.: 47/15
DATE: 20150520
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
LEDERMAN J.
BETWEEN:
KAM CHONG LI
Applicant
– and –
NOVOPHARM LIMITED (TEVA CANADA LIMITED) AND THE HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondents
ORAL REASONS FOR JUDGMENT
LEDERMAN J.
Date of Reasons for Judgment: May 20, 2015
Date of Release: May 22, 2015