CITATION: Airside Security Access Inc. v. Manickhand-Hosein, 2015 ONSC 3419
DIVISIONAL COURT FILE NO.: 363/14 DATE: 20150527
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
AIRSIDE SECURITY ACCESS INC.
Applicant/Moving Party
– and –
SUE MANICKHAND-HOSEIN, CHERYL HERNANDEZ, RAUL VALLADARES, TARYK CAMPBELL AND THE DIRECTOR OF EMPLOYMENT STANDARDS (MINISTRY OF LABOUR)
Respondents
Yuvraj S. Chhina, for the Applicant (Moving Party)
Jason Tam, for the Respondent, Director of Employment Standards
HEARD at Toronto: May 27, 2015
HARVISON YOUNG J. (ORALLY)
[1] The respondent Director of Employment Standards moves to quash the application for judicial review brought by the applicant employer Airside Security Access of four orders to pay made by an Employment Standards Officer, Ralf Gawlina on the basis that the applicant has failed to exhaust its remedies under the Employment Standards Act (“ESA”). The applicant also moves to stay the orders to pay pending judicial review application.
[2] The employer argues that the application for judicial review should not be quashed for two reasons which it submits effectively reinforce one another. First, it argues that the officer’s decision and process violated the principles of natural justice, citing Downing v. Graydon, [1978] (1424) (Ont. C.A.).
[3] In brief, it submits that the officer failed to observe the principles of natural justice by not advising the applicant of the case against it and by not giving it an opportunity to respond to the allegations made in the complaint against it. It also complains that even since the decision was rendered, it has been unsuccessful in obtaining information about the substance of the information against it.
[4] Second, the employer submits that it cannot pay the award into trust as the ESA requires when an employer seeks review of an order pursuant to s.116(1). The original material filed on this motion by the respondent employer made no reference to its financial circumstances. However, it has now submitted an affidavit sworn a few days ago by the secretary/officer of the employer stating that it is not possible to pay this amount. The Director opposes the admissibility of this affidavit. I advised the parties that I would consider the admissibility in the course of the reasons. While I would admit it, I do not find that it assists the employer as I will discuss further below.
[5] I am unable to accept the employer’s submissions. The statutory scheme sets out a clear process for review of Employment Standard Officer’s orders to the Ontario Labour Relations Board as provided by s.116 of the Act. This process is not meant to be readily avoided: Susan Shoe v. Ricciardi, 1994 1313 (ON CA), [1994] O.J. No. 1093 at para. 7 (Ont. C.A.):
The intention of the Act is that questions of entitlement under the Act are to be determined by specialized officers or referees established under the Act. The courts ought not to interfere before the procedures under the Act have been exhausted, except in exceptional circumstances, which do not exist in this case: see Nyman Holdings Inc. v. Koskie (unreported, Ont. Div. Ct., March 19, 1992) and 949198 Ontario Ltd. v. Koskie (unreported, Ont. Div. Ct., March 4, 1993).
[6] If an application for review is filed under the Act, the payment into trust of the money ordered is mandatory: Flower King-Oasis Inc., [2004] O.E.S.A.D. No. 809 at para. 5. The Ontario Labour Relations Board process is de novo. The presence of natural justice concerns or other alleged legal errors in the original decision does not constitute exceptional circumstances. As A. Campbell J. wrote in Happy Landing v. Ontario (Ministry of Labour, Employment Standards Branch), [1998] O.J. No. 2416 stated at para. 4:
As for the motion to quash the applications for judicial review, judicial review is an alternative and extraordinary remedy. The courts ought not to interfere in the processes of the Employment Standards Act before the procedures under the statute have been exhausted, save in exceptional circumstances. Absent exceptional circumstances the practice of the court in cases where an adequate alternative remedy is available under the Employment Standards Act is to decline to entertain applications for judicial review even if the application is based on considerations of jurisdiction, procedural unfairness, or bias. [Emphasis added]
[7] In my view, there is no basis for treating the natural justice allegations as exceptional circumstances that justify derogating from the statutory scheme in this case.
[8] The central concern for the employer appears to be, as counsel for the applicant/employer acknowledged, the requirement for payment of the orders to pay into trust. It now claims (in the recent affidavit) it cannot afford to do so. As the Director concedes, this could constitute an exceptional circumstance but in my view, the record does not support such a finding in this case. While I have concerns about the lateness of the affidavit relative to the motion hearing, the affidavit on its face does not in any event satisfy me that the financial circumstances are such that the employer cannot pay or that doing so would amount to serious hardship that constitutes exceptional circumstances. The cases in which financial circumstances have been found to constitute exceptional circumstances are cases where very large amounts of money have been involved - $4 million in Nyman v. Ontario (Employment Standards Officer), [1992] O. J. No. 3768 and $529,632 in Carillon Decorative Products Inc. v. Ontario (Employment Standards Officer), 2004 1535 (ON SCDC), [2004] O.J. No. 2880. Here, the amount of the order is approximately $10,000.00. The content of the affidavit amounts to bald assertions and is entirely unsupported by any supporting documentation such as financial statements or specific details about the financial circumstances of the corporation, employer which could justify concluding that there are exceptional circumstances here.
[9] Accordingly, I conclude that the applicant employer has not established any exceptional circumstances that justify permitting the judicial review application to continue before the employer has exhausted its remedies pursuant to the Employment Standards Act.
[10] The application to quash is therefore granted.
COSTS
[11] I have endorsed the Record, “For reasons given orally the motion to quash the judicial review is dismissed for reasons delivered orally. The employer’s motion for a stay of the ESO orders to pay is dismissed accordingly.”
HARVISON YOUNG J.
Date of Reasons for Judgment: May 27, 2015
Date of Release: June 8, 2015
CITATION: Airside Security Access Inc. v. Manickhand-Hosein, 2015 ONSC 3419
DIVISIONAL COURT FILE NO.: 363/14 DATE: 20150527
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
AIRSIDE SECURITY ACCESS INC.
Applicant/Moving Party
– and –
SUE MANICKHAND-HOSEIN, CHERYL HERNANDEZ, RAUL VALLADARES, TARYK CAMPBELL AND THE DIRECTOR OF EMPLOYMENT STANDARDS (MINISTRY OF LABOUR)
Respondents
ORAL REASONS FOR JUDGMENT
HARVISON YOUNG J.
Date of Reasons for Judgment: May 27, 2015
Date of Release: June 8, 2015