Citation: Zubovits v. Her Majesty in Right of Ontario, The Minister of Environment and Climate Change, 2015 ONSC 6055

DIVISIONAL COURT FILE NO.: 3/15 DATE: 20150929

ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT

MOLLOY, KRUZICK AND LOCOCO JJ.

BETWEEN:

CHARLES ZUBOVITS Applicant

– and –

HER MAJESTY IN RIGHT OF ONTARIO as represented by THE MINISTER OF ENVIRONMENT AND CLIMATE CHANGE Respondents

Counsel: Charles Zubovits, In Person Stewart McMahon, for the Respondent, Her Majesty in Right of Ontario as represented by the Minister of Environment Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board

HEARD at Toronto: September 29, 2015

ORAL REASONS FOR JUDGMENT

MOLLOY J. (ORALLY)

[1] Charles Zubovits is requesting judicial review of several decisions relating to his dismissal from the Ministry of Environment and Climate Change (“the Ministry”). Mr. Zubovits submits that the Ministry wrongfully dismissed him in early 2003 and that the various tribunals and courts he has engaged over the years have all failed to properly appreciate the merits of his case, specifically the unenforceability of the Settlement Agreement the parties signed in response to his termination. He is requesting judicial review of:

(1) bias and wrongful dismissal by the Ministry;

(2) errors and omissions made by the Ontario Public Service Employees Union (“OPSEU”) in defence of Mr. Zubovits before the Grievance Settlement Board and non-compliance by OPSEU with the Ontario Labour Relations Act;

(3) a decision by Pollak J. of the Superior Court of Justice dismissing his civil action;

(4) non-compliance by the Ministry with the Ontario Labour Relations Act, Human Rights Code, Canadian Charter of Rights, Crown Employees Collective Bargaining Act and interference under the Employment Insurance Act;

(5) Grievance Settlement Board non-compliance with the Ontario Labour Relations Act;

(6) Ontario Labour Relations Board bias and errors in law; and,

(7) Ontario Human Rights Commission bias and errors in law.

[2] Mr. Zubovits was a unionized Crown employee with the Ministry for seventeen years. His bargaining unit was represented by OPSEU. Mr. Zubovits was terminated from his employment on or about February 25, 2003. He still challenges the grounds of his dismissal. Shortly after his dismissal, Mr. Zubovits filed a grievance which was referred to the Grievance Settlement Board. The Grievance Settlement Board was the appropriate tribunal to deal with that matter. Mr. Zubovits was represented by an appointee from OPSEU. Prior to the hearing of his grievance, the parties entered into a Settlement Agreement, the terms of which included the following:

(1) the Ministry would rescind the dismissal;

(2) the Ministry would place Mr. Zubovits on unpaid leave for several years until he reached the combined number of years and age needed to grant him an unreduced pension;

(3) the Ministry would pay Mr. Zubovits a lump sum amount equal to the amount of money he would have earned during his unpaid leave;

(4) the Ministry would pay Mr. Zubovits a further sum of $56,266.65 less deduction;

(5) Mr. Zubovits would agree to retire; and,

(6) Mr. Zubovits would forfeit every right to pursue this matter in any other form.

[3] Mr. Zubovits signed the Settlement Agreement on December 22, 2003. He contends that the Agreement was actually reached between the Ministry and OPSEU and that it was forced on him by the Union. He also contends that he rescinded his approval of the Agreement on January 5, 2004, before it was actually signed by the Ministry.

[4] Mr. Zubovits received the first part of his settlement money on February 12, 2004. He deposited all the cheques he received but on each occasion indicated in writing that he was not accepting that the Settlement Agreement was binding on him.

[5] There have been numerous legal proceedings arising from the Settlement Agreement, in all of which Mr. Zubovits has been unsuccessful.

[6] Mr. Zubovits filed a complaint at the Ontario Labour Relations Board alleging he was not fairly represented by OPSEU and that the Settlement Agreement was not binding on him. In a series of five decisions from August 20, 2004 to June 1, 2005, the Ontario Labour Relations Board found no prima facie grounds for his complaints that OPSEU breached its duty of fair representation. In one of these decisions, the Labour Relations Board held:

In these circumstances I find that the application does not make out a case that the Settlement Agreement was vitiated by duress or undue influence. Although the applicant must have felt under emotional and economic pressure to conclude the Agreement, those factors are not sufficient to establish that he concluded the Agreement under duress. In the circumstances, the applicant is bound by the Settlement Agreement, and all the matters which arose prior thereto were resolved by his (and the Union’s) conclusion of the Agreement.

[7] The applicant also filed a claim of age and disability discrimination against the Ministry with the Ontario Human Rights Commission. The Commission declined to deal with the complaint. That decision by the Commission was upheld on judicial review by the Divisional Court and appealed from there unsuccessfully. Ultimately, the Supreme Court of Canada denied leave to appeal.

[8] In May 2010, Mr. Zubovits filed a Statement of Claim against the Ministry in a civil action in the Superior Court. He sought in that action to have the Settlement Agreement set aside. On November 26, 2010, that action was dismissed on consent without a hearing on the merits.

[9] Most recently, Mr. Zubovits brought another civil action against the Ministry in the Superior Court of Justice, being action #CV-12-458231. Again, Mr. Zubovits sought to have the Settlement Agreement set aside and also sought damages and compensation in excess of two million dollars. The Ministry responded with a motion asking that his claim be dismissed because: the claim was not in the Court’s jurisdiction; the claim was an abuse of process; and the claim was past the limitations period. Justice Pollak struck out the claim in an oral judgment dated November 12, 2012. One of the matters raised by Mr. Zubovits before us is an appeal from that decision of Pollak J.

[10] Justice Pollak’s order is a final order disposing of the action. Pursuant to s.6(1)(b) of the Courts of Justice Act, R.S.O. 1990, c. 43, an appeal from a final order of this nature lies to the Court of Appeal. Therefore, this Court has no jurisdiction.

[11] Many of the forms of relief brought by Mr. Zubovits are in the nature of judicial review of government action. Pursuant to s.2(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), the Divisional Court has jurisdiction to grant any relief that an applicant would be entitled to in:

(1) proceedings by way of an application for an order in the nature of mandamus, prohibition or certiorari; or

(2) proceedings by way of an action for a declaration or for an injunction or both in relation to the exercise, refusal to exercise or proposed or purported exercise of a statutory power.

[12] None of these categories apply to the present circumstances. First, the powers of mandamus, prohibition and certiorari all involve orders from a Superior Court directed at the exercise of jurisdiction by an individual or inferior tribunal. Setting aside a private agreement between two parties cannot be handled through an order in the nature of mandamus, prohibition or certiorari even when one of the parties is a government Ministry.

[13] Second, the Divisional Court may only grant an injunction under s.2 of the JRPA if there was an exercise, or refusal to exercise, a statutory power. The mere fact that a decision was made by a government entity does not render any decision made by that entity a statutory power of decision. Where the issue between the parties is a matter of contract, it is not a question of a statutory power of decision reviewable on judicial review. The Ministry was Mr. Zubovits’ employer. The nature of that relationship and the nature of the action taken by the Ministry in relation to Mr. Zubovits are not the exercise of a statutory power and are not subject to the judicial review powers of this Court.

[14] The Grievance Settlement Board had sole jurisdiction over this matter. Because the issue underpinning all these proceedings is the applicant’s employment and the OPSEU Collective Agreement, this matter had to be dealt with by the Grievance Settlement Board. Grievances arising from dismissal clearly fall within an Arbitrator’s exclusive jurisdiction: see Weber v. Ontario Hydro, 1995 108 (SCC), [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59. Indeed, this matter was dealt with by a proceeding before the Grievance Settlement Board and thereafter before the Ontario Labour Relations Board, which was appropriate.

[15] The Ontario Labour Relations Board decided all of these issues in the period between 2004 and 2006. Some of the relief now sought by Mr. Zubovits would require this Court to reverse decisions made by the OLRB nearly a decade ago. Those issues have been determined by the appropriate bodies and the decisions are final. To the extent that Mr. Zubovits is seeking judicial review of the OLRB, there are two obstacles. First, applications for judicial review to this Court must be made in a timely manner, usually within six months of the decision in question. Second, and in any event, the standard of review for such decisions is reasonableness. Deference is required. We have no basis to conclude that the decisions of the OLRB with respect to the conduct of OPSEU and the binding nature of the Settlement Agreement were unreasonable. Likewise, with respect to the issues dealt with in the Ontario Human Rights complaint, those issues have been finally and conclusively determined. They cannot be re-litigated now.

[16] In oral argument, Mr. Zubovits also submitted that he was seeking leave under s.12 of the Charter for the cruel and unusual treatment and punishment imposed on him by the Ministry. As a question of fact and a question of law, the principles of s.12 of the Charter are not engaged in the circumstances of this case.

[17] The issues raised in this proceeding have already been litigated before a host of different tribunals and courts. We agree with the position taken by the respondent that this application constitutes an abuse of process.

[18] Accordingly, for all of these reasons, the application is dismissed.

COSTS

[19] I have endorsed the Record, “This appeal is dismissed for oral reasons delivered today. Costs are fixed at $1,000 payable by the applicant to the Minister of the Environment.” But for the financial hardship that we do accept Mr. Zubovits is experiencing, those costs would have been significantly higher.

MOLLOY J.

KRUZICK J.

LOCOCO J.

Date of Reasons for Judgment: September 29, 2015 Date of Release: October 2, 2015