Warren v. Ontario Labour Relations Board, 2015 ONSC 7273
DIVISIONAL COURT FILE NO.: 345/14
SUPERIOR COURT OF JUSTICE – ONTARIO
DIVISIONAL COURT
RE: Dean Warren, Appellant
AND:
Ontario Labour Relations Board and National Hockey League, Respondents
BEFORE: Kruzick, Sachs and Wilton-Siegel JJ.
COUNSEL: Jon Laxer, for the Appellant
John-Paul Alexandrowicz and Mitchell R. Smith, for National Hockey League
Leonard Marvy, for the Ontario Labour Relations Board
HEARD at Toronto: September 22, 2015
ENDORSEMENT
Wilton-Siegel, J.
1In this proceeding, Dean Warren (“Warren”) seeks judicial review of a decision dated October 6, 2010 (the “Decision”) of Vice-Chair Gedalof (herein referred to as the “Board”) of the Ontario Labour Relations Board (the “OLRB”) which dismissed Warren’s application for severance pay from the National Hockey League (the “Respondent”) on the grounds of undue delay. Warren seeks an order quashing the Decision and remitting the application to the OLRB for a hearing on the merits.
Background
2Warren was a referee employed by the Respondent from 1998 to 2008. The Respondent terminated his employment in April 2008 for “substandard performance”.
3At the time of Warren’s release from the Respondent, his employment was governed by the 2006-2010 National Hockey League Officials’ Association collective bargaining agreement (the “CBA”) between the National Hockey League Officials’ Association (the “NHLOA”) and the Respondent.
4Article 13(i) of the CBA provided as follows:
The NHLOA acknowledges and agrees that the remedies and procedures provided for in this Agreement, including the appeal process set forth in paragraph (h) above, shall be the sole and exclusive remedy pursued by the NHLOA or an official in connection with the release or retirement of such official, and that any decision rendered pursuant to the appeal procedure shall be final, binding, and fully determinative, subject to the rights set forth in this Agreement, including, without limitation, the grievance procedure set forth in section 30 below. In the event a released or retired official pursues legal action against the NHL in connection with the release or retirement of his employment with the NHL outside of or in addition to pursuing the remedies or procedures provided for in this Agreement, such official shall remain entitled to his rights under law, but he shall be deemed to have waived his right to receive any of the benefits provided for in this Agreement, including, without limitation, the benefits provided for in sections 14 and 17. [italics added]
5The following provisions of Article 14 of the CBA provided for severance pay in the event of termination of employment:
14(a) Subject to paragraph (b) below, in consideration for the execution by a released or retired official of a waiver and release substantially in the form of Exhibit D releasing and discharging the League, its member clubs and other appropriate parties from any and all claims under statute, contract or common law arising out of or relating to the release or retirement of the official’s employment with the NHL, the League shall pay severance for released NHL officials or those who voluntarily retire […]. …
14(c)(iii) An official’s entitlement to be paid his accrued severance shall be deferred until final disposition of any and all appeal and grievance rights that have been exercised pursuant to this Agreement, unless and until the official signs a waiver and release substantially in the form of Exhibit D waiving his right to pursue any such rights and remedies.
6On August 8, 2008, in accordance with Article 14(a) of the CBA, the Respondent sent Warren a letter (the “Respondent Letter”) offering severance pay conditional upon signing a release form waiving the right to pursue all claims under statute, contract or common law arising out of, or relating to, his termination.
7The Appellant did not sign the release. Instead, in November 2008, Warren commenced an application before the OLRB challenging his termination and seeking reinstatement. Warren alleged that his termination was motivated, in part, by his involvement with the NHLOA. Warren was an officer of the NHLOA. Warren’s claim was dismissed by the OLRB in a decision dated October 6, 2010. His application for judicial review of this decision was dismissed by the Divisional Court on March 5, 2013, and he was subsequently denied leave to appeal to the Court of Appeal.
8On September 16, 2013, following the denial of leave, Warren signed the release form that had been sent to him with the Respondent Letter and delivered it to the Respondent on September 17, 2013 requesting severance pay. There had been no communications between Warren and the Respondent regarding this document or, more generally, regarding his entitlement to severance pay, since the Respondent Letter.
9On September 27, 2013, the Respondent advised Warren that it took the position that it had no further obligations to him, meaning, in particular, that the Respondent took the position that Warren was no longer entitled to severance pay.
10Following this refusal, Warren commenced the current application before the OLRB under s. 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sch. A (the “Act”) challenging the Respondent’s decision not to pay him severance pay. Warren alleges the Respondent discriminated against him and penalized him for having brought his previous application before the OLRB. He argues that the Respondent’s refusal to pay him severance is a breach of ss. 70, 72 and 76 of the Act and that reliance on Article 13(i) of the CBA to deny his severance pay claim is inconsistent with s. 87(1) of the Act. In its response, the Respondent denies that it is required to pay severance on the basis that Warren waived his entitlement to severance by challenging his termination before the OLRB in his first application. The Respondent takes the position that the italicized sentence in Article 13(i), as reproduced above, applies in such circumstances.
11The Respondent asserted a preliminary objection to Warren’s current application before the OLRB, alleging that his current application was unduly delayed as well as barred by the operation of the doctrines of res judicata, issue estoppel and abuse of process. It submitted that Warren’s claim for severance crystallized in 2008 at the time of his initial OLRB application and that he should not be permitted to have held back one issue as the basis for a second round of litigation after having lost the first. The Respondent argued that it was prejudiced by the delay, for the reasons discussed below.
12The Board granted the Respondent’s motion and dismissed Warren’s current application on the grounds of undue delay. The reasons of the Board are set out in the Decision, which was reported at Warren v. National Hockey League, [2014] O.L.R.B. Rep. 517. Having determined the issue on the basis of undue delay, the Board did not address the other grounds for dismissal raised by the Respondent that had been argued before the Board.
The Decision
13After setting out the facts in this proceeding, the nature of the Respondent’s preliminary motion and the positions of the parties on the motion, the Board set out its analysis and decision in paragraphs 28 to 37 of the Decision.
14The Board described the fundamental question for determination as being when Warren’s claim for severance pay crystalized. The only two possibilities considered by the Board were: (1) the time that the prior application was filed in 2008; and (2) the time that Warren requested the severance pay and the Respondent denied that request, being September 27, 2013. The Board held that Warren’s claim crystalized at the time that the prior application was filed in 2008, and that there had therefore been excessive delay in filing the current application.
15The Board’s reasoning and conclusions are principally set out in paragraphs 31 and 32 of the Decision, which read as follows:
In my view, the complaint crystalized when the applicant, having received the NHL offer to pay severance in terms which cited the relevant provisions of the Collective Agreement and were conditional on signing the waiver, chose to proceed with the prior application. I do not accept that in order for the issue to crystalize, the NHL was required to then make a further and explicit representation revoking the offer and stating that now that the prior application had been filed, it would not pay severance. That is, simply put, what the provision in the Collective Agreement already says, and it is the collective agreement that gives rise to the severance entitlement in the first place. If the applicant wished to challenge that condition in the Collective Agreement, it was incumbent on the applicant to advise the NHL of his position in the event he was not successful in his application before the Board.
In assessing whether the applicant should have brought forward this complaint at the outset of the prior application, the Board must assess the issue from an objective perspective; would a reasonable person have known that he or she had grounds for a complaint. Articulating this standard on the facts of this case, the Board asks “should the applicant have known that he was deemed to have forfeited his right to severance under the collective agreement when he pursued the prior application.” In my view, in light of the clear language of the Collective Agreement and the NHL’s explicit reference to the obligation to release the NHL from any further action in order to access the right under the Collective Agreement, a reasonable person ought to have known so.
16The Board then observed that the onus rested with Warren to explain the delay in bringing his current application. The Board described Warren’s explanation as “essentially that assuming the deemed forfeiture of the severance entitlement on the basis of having brought a complaint under the Act was unlawful, it was not required to assume that the NHL would act unlawfully and deny his request for severance until it actually did so.” The Board rejected this explanation for the reasons set out above.
17The Board then reiterated its conclusion in the following terms in paragraph 36:
…The terms of the Collective Agreement and the NHL’s position were made clear to the applicant at the time of his termination. A reasonable person would have known that he was making a choice: take the severance offered or seek reinstatement at the Board. The applicant made his choice. If being put to that choice was unlawful, as the applicant now effectively claims, it was incumbent on him to raise the issue in a timely manner. Instead, he remained silent on the issue for over 5 years. This constitutes undue delay.
18In reaching its conclusion, the Board also made a number of observations and findings that are relevant for the issue in this application.
19First, the Board stated that, in its view, there is nothing inconsistent in seeking severance as an alternate remedy to reinstatement under the Act, and, accordingly, the fact of having filed the prior application did not preclude Warren from raising his claim for severance in that proceeding. While it is not made express, it appears that the Board considered that such a claim should have been raised by way of a request for a declaration that any future action of the NHL to deny his severance claim based on his having brought the prior application would contravene ss. 72 and/or 87 of the Act. The Board held that the fact that, in the prior application, the parties were before the OLRB addressing the other issues related to Warren’s termination arising under the Act without this issue having been raised was a factor that the Board could consider in exercising its discretion to dismiss the application for delay. The Board also held that, while it might have been appropriate to decide the issue of reinstatement before determining whether it was necessary to address the lawfulness of the severance provision, this procedure would not have made such a request for an alternate remedy premature.
20Second, the Board acknowledged that Warren’s claim “raised a substantial issue concerning the scope of the protection afforded to parties under the Act.” This finding recognized that there was an important public policy issue at stake in Warren’s current application, and that this was a factor which weighed against dismissing his application on a preliminary basis. The Board also stated that, in its view, the purpose of the deemed forfeiture of severance provided for in Article 13(i) was clear on its face, and that extrinsic evidence on the origins of the provision would not assist in determining this issue.
21Third, the Board appears to have concluded that the Respondent was prejudiced by the delay. In this regard, it held that the delay was inherently prejudicial to the Respondent based on the principles articulated in The Corporation of the City of Mississauga [1982] OLRB Rep. March 420 (“City of Mississauga”), Susan Jukes, 2012 (ON LRB) (“Jukes”), and Jose Lopes, 2014 14952 (ON LRB) (“Lopes”). The Board further held that it would be prejudicial to the Respondent “to have now to face an entirely new round of litigation, to deal with an issue that could properly have been raised in the previous litigation” and that the Respondent was entitled to rely on the finality of the litigation pertaining to Warren’s termination from employment. These issues are addressed further below.
Jurisdiction of the Court
22As mentioned, Warren seeks judicial review of the Decision pursuant to the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. Sections 2 and 6(1) give the Divisional Court 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.
Standard of Review
23The parties agree that the standard of review in respect of a decision of the OLRB dismissing an application for undue delay is reasonableness.
24In Dunsmuir v. New Brunswick, 2008 SCC 9, [2008] 1 S.C.R. 190, at para. 47, the Supreme Court addressed the requirements of reasonableness as follows:
Reasonableness is a deferential standard animated by the principle that underlies the development of the two previous standards of reasonableness: certain questions that come before administrative tribunals do not lend themselves to one specific, particular result. Instead, they may give rise to a number of possible, reasonable conclusions. Tribunals have a margin of appreciation within the range of acceptable and rational solution. A court conducting a review for reasonableness inquiries into the qualities that make a decision reasonable, referring both to the process of articulating the reasons and to outcomes. In judicial review, reasonableness is concerned mostly with the existence of justification, transparency and intelligibility within the decision-making process. But it is also concerned with whether the decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
25In this application, the issue for the Court is whether the Decision is reasonable, that is, whether the Decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law. As set out in Law Society of New Brunswick v. Ryan, 2003 SCC 20, [2003] 1 S.C.R. 247, at paras. 49 and 52, the Court must inquire as to whether any of the Board’s reasons adequately support the Decision. At paragraph 55 of Ryan, Iacobucci J. addressed the operation of this principle:
A decision will only be unreasonable if there is no line of analysis within the given reasons that could reasonably lead the tribunal from the evidence before it to the conclusion at which it arrived. If any of the reasons that are sufficient to support the conclusion are tenable in the sense that they can stand up to a somewhat probing examination, then the decision will not be unreasonable and a reviewing court must not interfere (see Southam, at para. 56). This means that a decision may satisfy the reasonableness standard if it is supported by a tenable explanation even if this explanation is not one that the reviewing court finds compelling (see Southam, at para. 79).
26Further, the Court’s examination is to be conducted looking at the Board’s reasons as a whole: see Ryan, at para. 56:
This does not mean that every element of the reasoning given must independently pass a test for reasonableness. The question is rather whether the reasons, taken as a whole, are tenable as support for the decision. At all times, a court applying a standard of reasonableness must assess the basic adequacy of a reasoned decision remembering that the issue under review does not compel one specific result. Moreover, a reviewing court should not seize on one or more mistakes or elements of the decision which do not affect the decision as a whole.
Analysis and Conclusions
27The issue for this Court is whether the Decision falls within a range of possible, acceptable outcomes which are defensible in respect of the facts and law.
28The Decision, as set out in paragraph 32, is essentially that Warren knew or ought to have known that the Respondent would take the position that Warren had forfeited his right to severance under the CBA when he commenced his prior application. This alleged knowledge is based on the language of the Respondent Letter, the language of Article 13(i) of the CBA and the obligation to release the Respondent in order to access the severance to which he was entitled under the CBA. Given such knowledge or deemed knowledge, the Board concluded that, if Warren had wished to challenge Article 13(i) of the CBA, Warren was required to advise the Respondent of his position in the event that he was unsuccessful in his prior application and should have sought relief in his prior application.
29The Decision rests on two principal findings: (1) that Warren’s complaint in his current application before the OLRB crystallized in 2008, because a reasonable person in Warren’s position would have known that, in bringing his prior application, he was forfeiting his right to severance; and (2) that the Respondent suffered prejudice from the delay in litigating Warren’s current application under the Act in respect of severance pay. I will discuss each proposition in turn.
Crystallization of Warren’s Current Claim in 2008
30The Board held that Warren’s complaint in his current application before the OLRB crystallized in 2008 because a reasonable person in Warren’s position would have known that, in bringing his prior application, he was forfeiting his right to severance pay.
31The Board’s logic can be expressed in the following propositions: (1) as most clearly set out in paragraph 36 of the Decision, at the time that Warren commenced his prior application, he knew or ought to have known of (A) the terms of the Collective Agreement; and (B) the Respondent’s position regarding forfeiture of severance pay if he commenced an application for reinstatement before the OLRB; (2) therefore, at the time of the commencement of his prior application, Warren had actual or constructive knowledge of all relevant facts pertaining to the complaint in his current application before the OLRB; (3) accordingly, his current complaint crystallized at such time in 2008; and (4) Warren had an obligation to raise the complaint in a timely manner by including an alternative request for declaratory relief in his prior application.
32I accept for the purposes of this application that Warren knew or ought to have known the terms of the CBA, including Articles 13 and 14 thereof. Warren was an officer of the NHLOA. He either knew, or had access to and ought to have known, such provisions of the CBA. Therefore, the condition in (1)(A) above is taken as satisfied.
33The issue for the Court is whether there is any line of analysis that can reasonably support the remaining propositions, in particular, the propositions in 1(B), (2) and (4) above. After consideration of the specific nature of Warren’s complaint in his current application before the OLRB, this endorsement will address each of these issues.
The Nature of Warren’s Claim
34The starting point for this judicial review proceeding is the specific nature of Warren’s claim in his current application before the OLRB. Warren’s claim is that the Respondent’s reliance on Article 13(i) to deny his claim for severance pay, based on his having brought the prior application, constitutes a contravention of ss. 72 and 87 of the Act. Section 72 of the Act precludes an “employer, employers’ organization or person acting on behalf of an employer or an employers’ organization” from imposing “any condition in a contract of employment … that seeks to restrain an employee … from … exercising any other rights under this Act”. Section 87 of the Act precludes the same persons and entities from imposing “a pecuniary or other penalty on a person … because the person has made an application or filed a complaint under this Act or has participated in or is about to participate in a proceeding under this Act.”
35It should be noted that Warren is not simply seeking an order that he is entitled to severance pay. The OLRB does not have jurisdiction to address this issue absent a finding of an unfair labour practice.
36Nor is he seeking a determination that, as a matter of contractual interpretation, Article 13(i) of the CBA must be interpreted so as not to apply in respect of any application before the OLRB alleging unfair labour practices under the Act.
37The issue of the scope of Article 13(i) should not be confused with the issue raised in Warren’s current application before the OLRB. The issue of contractual interpretation — whether the term “legal action” in Article 13(i) extends to applications before the OLRB alleging unfair labour practices — is distinct from the issue of statutory interpretation, i.e., whether the application of Article 13(i) in the present circumstances constitutes an unfair labour practice under the Act. Even if the issue of contractual interpretation were resolved in favour of the Respondent, the issue of statutory interpretation would remain. If the issue of contractual interpretation were resolved against the Respondent, the Respondent would be in jeopardy on both issues.
38I note that, in paragraphs 31 and 32 of the Decision, the Board proceeded on the basis that the CBA contained clear language to the effect that the filing of the prior application resulted in a deemed forfeiture of Warren’s right to severance. On the other hand, the Board was not purporting to decide the proper contractual interpretation of Article 13(i), much less to decide whether the Respondent’s reliance on its interpretation resulted in an unfair labour practice. In paragraph 33 of the Decision, the Board expressly acknowledged the existence of a real legal issue regarding the application of this provision in Warren’s circumstances, i.e., whether the Respondent’s actions contravened s. 87 of the Act. Accordingly, in the earlier paragraphs, the Board can have meant no more than that the plain meaning of Article 13(i), in particular the italicized language above, could be interpreted to apply to proceedings commenced under the Act before the OLRB as well as to the assertion of common law rights in actions commenced in the Superior Court.
The Board’s Determination Regarding Warren’s Knowledge
39An important implication of Warren’s claim in his current application is that it logically requires two circumstances: (1) Warren’s commencement of his prior application; and (2) knowledge that such action would result in the Respondent’s denial of his claim for severance pay. Accordingly, Warren’s complaint that the Respondent contravened ss. 72 and 87 of the Act could not logically crystallize unless and until Warren had the knowledge contemplated in circumstance (2).
40In the usual case, an individual in the position of Warren would obtain such knowledge when the Respondent took the action of denying his claim for severance, an action that occurred in this case in 2013. The present circumstances are novel in that the Board determined that Warren had full knowledge in 2008 that the Respondent would deny any future claim for severance, even though the Respondent did not actually take this action until five years later.
41In concluding that Warren’s complaint crystallized in 2008, the Board effectively determined either that (1) the Respondent had made it clear to Warren that there was a certainty that it would deny him his severance by asserting the operation of Article 13(i) if he commenced his prior application; or (2) Warren otherwise learned of facts that established that he would forfeit his claim to severance pay if he commenced his prior application.
42I propose to address this conclusion by considering three issues:
did Warren have actual knowledge of an intention of the Respondent to deny his severance claim if he commenced his prior application?
did Warren have constructive knowledge of an intention of the Respondent to deny his severance claim if he commenced his prior application? and
would Warren’s request for declaratory relief in his prior application have been premature?
Did Warren Have Actual Knowledge of an Intention of the Respondent to Deny His Severance Claim?
43To repeat, the Board held that Warren knew or reasonably ought to have known “that he was deemed to have forfeited his right to severance under the collective agreement when he pursued the prior application.” This conclusion is based on the Board’s determination, as stated in paragraph 36, that Warren knew both the terms of the CBA and the Respondent’s position at the time of his termination or, more precisely, at the time he commenced his prior application.
44There is, however, no reasonable basis in the evidence for a finding that Warren had actual knowledge of the Respondent’s intention to deny his severance claim. The Respondent did not actually advise Warren that his severance pay would be denied if he sought reinstatement in a proceeding before the Board. The only communication from the Respondent to Warren prior to November 2013 was the Respondent Letter. This Letter does not provide any reasonable basis for concluding that Warren knew the Respondent’s position. In this regard, the following three considerations are relevant.
45First, the Respondent Letter was sent before Warren commenced his prior application before the OLRB. There is no evidence the Respondent knew of any plans of Warren to bring the prior application when it sent the Respondent Letter. In any event, the Respondent Letter makes no reference to any such proceeding. Moreover, this silence suggests an absence of any formulated intention on the part of the Respondent prior to the commencement of Warren’s prior application.
46Second, the Respondent Letter does not refer to Article 13(i) of the CBA, let alone any proposed assertion of rights under that provision by the Respondent.
47Third, while the Respondent Letter does refer to Article 14(c)(iii) of the CBA, this provision speaks only to the deferral of Warren’s entitlement to be paid his accrued severance “until final disposition of any and all appeal and grievance rights that have been exercised pursuant to this Agreement”. As mentioned, there is no reference in the Respondent Letter to Article 13(i), to any deemed forfeiture of his right to severance pay, or to any proceeding other than “appeal and grievance rights that have been exercised pursuant to this Agreement”. The Respondent Letter was entirely silent with respect to any application to the OLRB pursuant to the Act.
48The Respondent argues that the requirement for “timely execution and return” of the waiver and release enclosed in the Respondent Letter somehow put Warren on notice because of the requirement for timeliness. It suggests that commencement of an application before the OLRB necessarily excluded the possibility of timely execution and delivery of the waiver and release, and thereby ruled out Warren’s claim. However, the Respondent Letter expressly contemplates the possibility of an extension of the time period for delivery of the waiver and release in the circumstances of an appeal or grievance. There is nothing that suggests that the time period for asserting an entitlement to severance pay would not be similarly deferred pending determination of any application to the Board asserting unfair labour practices under the Act. To repeat, the Respondent Letter makes no mention whatsoever of any prospective application to the OLRB pursuant to the Act or to the Respondent’s view of the consequences of any such application in respect of severance pay.
49Accordingly, I conclude that, insofar as the Board relied on the Respondent Letter to support its conclusion that the Respondent had made its position clear to Warren as a factual matter and, therefore, that Warren had actual knowledge of the Respondent’s intention to deny his severance claim at the time he commenced his prior application, the Decision materially misapprehends the content and significance of the Respondent Letter for the state of Warren’s purported knowledge.
Did Warren Have Constructive Knowledge of an Intention of the Respondent to Deny His Severance Claim?
50If the Respondent Letter did not put Warren on notice of the Respondent’s intention, is there anything else that did? The only remaining possibility would be that the terms of the CBA, specifically Article 13(i) on its own, were sufficient to put Warren on notice of the Respondent’s intention.
51Any such argument must, however, accommodate the Board’s finding that the Respondent’s actions in applying the provisions of Article 13(i) in 2013 gave rise to a legitimate issue regarding compliance with the Act. Accordingly, this theory would require acceptance of the following propositions: (1) Warren ought to have recognized that Article 13(i) could be interpreted to apply to the circumstances of an application to the Board in respect of an allegation of an unfair labour practice; (2) Warren ought to have understood that the Respondent intended to apply Article 13(i), notwithstanding that such action would either contravene the Act or raise a legitimate issue of contravention of the Act; and (3) Warren ought to have understood from propositions (1) and (2) that the effect of commencement of his prior application would be a forfeiture of his right to severance pay with the result that his claim in the present application would crystallize. There are three problems with this approach.
52The first difficulty is that there is no evidence that the Respondent ever actually formed the intention to deny Warren’s severance claim prior to the commencement of Warren’s prior application. The documentation discussed above does not establish any such intention, nor is there any other evidence internal to the Respondent that supports the existence of such an intention. I find it hard to see how the Board could impute knowledge to Warren of the existence of this intention when there is no evidence upon which to conclude that the Respondent had itself formed such an intention at the time he commenced his prior application. I will return to this matter in the context of the Board’s discussion of prematurity and the issue of the appropriate party to have brought the request for declaratory relief envisaged by the Board.
53Second, I do not read the Decision to rely exclusively on Warren’s knowledge of the terms of the CBA. In paragraphs 31 and 32 of the Decision, the Board found that Article 13(i) clearly extended to the commencement of applications before the OLRB alleging unfair labour practices under the Act. However, in the first and last sentences of these paragraphs, respectively, the Board also refers to Warren’s receipt of the Respondent’s offer to pay severance in the Respondent Letter as an element of the Board’s finding that Warren had notice of the Respondent’s position. As such, I think the Decision rests on Warren’s knowledge of both the relevant provisions of the CBA and the Respondent’s position (as communicated in the Respondent Letter) regarding entitlement to severance pay where an application is commenced before the OLRB. The Decision does not rest merely on Warren’s knowledge of the relevant provisions of the CBA.
54Third, and in any event, I do not see any reasonable basis for the conclusion in (2) above, i.e., Warren ought to have understood that the Respondent intended to apply Article 13(i), notwithstanding that such action would either contravene the Act or raise a legitimate issue of contravention of the Act, for the following reasons.
55The conclusion that Warren should have inferred an intention of the Respondent to assert the provisions of Article 13(i) is supportable only if it is reasonable to find that Warren would have understood that he would forfeit his severance pay notwithstanding that the Respondent’s action in taking this position either contravened the Act or, at a minimum, would raise a legitimate issue regarding a contravention of the Act.
56For this purpose, it is necessary to distinguish between two very different circumstances. I accept that Warren might be deemed to have had knowledge that the Respondent would interpret Article 13(i) broadly in support of its position. In this sense, it might be reasonable to conclude that Warren had deemed knowledge of the Respondent’s intention to assert its contractual interpretation of Article 13(i). It is, however, a very different matter to assert that Warren had deemed knowledge of the Respondent’s intention to rely on this contractual interpretation in the face of a very legitimate issue as to whether such action would constitute an unfair labour practice. It would appear that the Board failed to appreciate this distinction.
57Regardless of whether Warren should be deemed to have had knowledge of the Respondent’s likely position regarding the contractual interpretation of Article 13(i), Warren is surely entitled to assume that the Respondent would act in accordance with the law. Therefore, it is not reasonable to assume that the necessary knowledge of the Respondent’s intentions could be established to the extent that it involved an action on the part of the Respondent that constituted an unfair labour practice. Warren says that the Board was required to assume for the purposes of the Respondent’s motion that the pleadings are true and therefore the Respondent’s actions were unlawful. I think this is correct and, accordingly, there can be no basis for the Board’s imputation to Warren of knowledge of the Respondent’s intention to deny his severance claim. Even if such an assumption were not made, however, the imputation to Warren of knowledge of the Respondent’s intention to deny his severance claim would be unreasonable to the extent that such action would contravene the Act.
58Insofar as it is suggested that Warren would have had the requisite knowledge of the Respondent’s intention in the circumstances where the Respondent’s reliance on Article 13(i) would raise a legitimate issue regarding a contravention of the Act, the following considerations apply. First, an intention can always be changed so there could have been no certainty of the Respondent’s action until it actually denied Warren’s claim for severance pay. This consideration has particular force in this case because of the existence of a legitimate issue regarding a contravention of the Act. In these circumstances, there is a significant difference between an intention to deny Warren’s claim for severance and the actual action of denial. This difference arises from the fact that Warren could not have been certain that any intention would be translated into the action without knowledge of the legal advice given to the Respondent and of the amount of risk the Respondent was willing to take on to pursue its objective. Such knowledge would necessarily be unavailable to Warren. Moreover, depending upon the legal advice given, Warren might still have been unable to know with certainty of the Respondent’s intention until it actually denied his severance claim. Accordingly, in the circumstances of this case, Warren could not have had constructive knowledge of all the information necessary to be confident, let alone certain, of the Respondent’s intention. As a consequence, Warren could not have known with the certainty assumed by the Board that he would forfeit his right to severance under the CBA when he commenced his prior application.
59Put another way, the Decision unreasonably required Warren to predict whether or not the Respondent would deny his severance claim in the face of a significant legal uncertainty and without full knowledge of the Respondent’s state of mind. The Decision thereby also unreasonably placed the effective onus of requesting a determination of the legality of any such prospective action by the Respondent on Warren. In my view, if any party had an obligation to bring an application for declaratory relief, it was surely the Respondent. It was the only party in a position to address the probability of a denial of Warren’s claim for severance pay based on his having commenced the prior application if, in fact, the Respondent had even addressed this question at the time that Warren commenced such application. Moreover, if the Respondent had formed such an intention, it would not have been timely to have waited until Warren commenced his current application to raise the issue of undue delay.
60Based on the foregoing, I conclude that Warren could not have had the requisite knowledge of the Respondent’s intention to deny his severance pay if he commenced his prior application until the Respondent actually denied his claim. Insofar as the Board proceeded otherwise, there can be no reasonable basis for such a conclusion.
Would Warren’s Request for Declaratory Relief in his Prior Application Have Been Premature?
61There is a further dimension to the Decision which reinforces the conclusions reached above. The Board addressed the issue of prematurity in paragraph 30 of the Decision in the context of its conclusion that Warren should have sought declaratory relief regarding the legality of the Respondent’s denial of his severance claim as an alternate remedy in his prior application. It stated that the OLRB might have addressed the issue of reinstatement before the issue of lawfulness of any denial of Warren’s severance claim. However, the Board was of the view that such procedural consideration “would not have made such a request for an alternate remedy premature.”
62The Respondent submits that the Board effectively determined that the OLRB would have addressed any request of Warren for such declaratory relief if he had raised it in his prior application. It says that, in respect of this issue, the Decision engages the OLRB’s discretion and should therefore be accorded deference, as the Board is more experienced in OLRB procedure than the Court. I accept that the Court should give deference to procedural issues of the OLRB as a general rule. However, in this case, the Board’s determination that Warren’s complaint crystallized in 2008 excluded any issue of prematurity, as is clear from the foregoing casting of the issue of prematurity in terms of the sequencing of the hearing of issues. The Board did not determine that the OLRB would have rejected any opposition from the Respondent to a request for declaratory relief by Warren on the grounds of prematurity. Accordingly, the Decision does not involve any determination regarding OLRB procedure to which the Court must show deference.
63Moreover, I think the Board misconstrued the issue of prematurity.
64In order to determine any request by Warren for declaratory relief, the OLRB would have had to determine whether a future action of the Respondent would have constituted an unfair labour practice before it was taken, in the absence of any statement of the Respondent that such action would be taken, and, in any event, with no certainty that such action would be taken unless and until it occurred. For the reasons set out above, Warren could not have had that certainty at the time that he commenced his prior application. At best, any such request by Warren for declaratory relief would have been based on speculation regarding the Respondent’s likely response to his prior application.
65Even allowing for the unique context in which labour relations matters come before the OLRB, I am not persuaded that the OLRB would necessarily have exercised its discretion to adjudicate such a request for declaratory relief, particularly in the absence of any certainty as to the position that the Respondent would have taken, for strategic or other reasons, with respect to any such request for declaratory relief. At a minimum, therefore, any request by Warren for declaratory relief in his prior application regarding the validity of any response by the Respondent would have raised significant issues regarding prematurity.
66On the other hand, the Respondent could have made such a request if it so chose. As mentioned above, the Respondent was the only party able to do so, as it was the only party in a position to address any intention on its part to deny Warren’s claim for severance pay based on his having commenced the prior application. I do not suggest that the Respondent failed to bring such a request because it preferred to “lie in the weeds” until Warren brought his current application. It is probable that it did not do so because it did not form its intention to deny Warren his severance claim on the basis of Article 13(i) until sometime later. For present purposes, however, the significance of the Respondent’s inaction is that the issue of prematurity regarding any request for declaratory relief respecting the validity of the Respondent’s actions could only have been avoided if the request had been brought by the Respondent rather than Warren, as the Board held.
Conclusion
67Based on the foregoing, I conclude that there is no reasonable line of analysis on the facts of this case and the applicable law that can support the Board’s conclusion that the Respondent’s intention was made clear to Warren, or was otherwise known by Warren, at the time of his termination. On this basis, it logically follows that there is also no reasonable line of analysis that can support the Board’s conclusion that Warren knew, or reasonably ought to have known, that he was making a choice between taking the severance pay offered and seeking reinstatement before the OLRB when he commenced his prior application.
Alleged Prejudice to the Respondent
68The Board also concluded that the Respondent suffered prejudice. On this appeal, the Respondent addressed three possible grounds for finding that the Respondent suffered prejudice as a result of Warren’s delay in bringing his current application before the OLRB — a line of reasoning that the Respondent says the Board effectively accepted. I will address each of the three grounds in turn.
69First, the Board may have accepted the Respondent’s position that it had lost the ability to address any issues with the NHLOA related to the obligation to pay severance in the circumstances presented by this case in the negotiation of the 2010-2014 collective agreement. To the extent it did so, under the relevant case law, such matters do not constitute prejudice for the purposes of the exercise of discretion to dismiss a proceeding for undue delay.
70Second, the Board held that the delay in the assertion of Warren’s application regarding the operation of Article 13(i) was inherently prejudicial, in reliance on the decisions in City of Mississauga, Jukes and Lopes. However, the presumption of inherent prejudice arising from a delay of proceedings is rebuttable: see City of Mississauga, at para. 23, citing the OLRB decision in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan 113, at para. 13.
71In the present case, the presumption is rebutted on two grounds.
72First, insofar as a principal reason for the presumption of prejudice is the likelihood of “fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records” (see City of Mississauga, at para. 22), this presumption is rebutted by the Board’s own finding that the interpretation of Article 13(i) is a legal issue, i.e., an issue of contractual interpretation for which extrinsic evidence on the origins of the provision would be irrelevant. Although the Board did not address the issue of evidence in respect of Warren’s current application, I do not see how any extrinsic evidence would be relevant to the issue of the alleged contravention of the Act in the circumstances of such application. There is, therefore, no concern that the passage of time will have impaired the Respondent’s ability to produce relevant evidence in support of its position.
73Further, the presumption of prejudice can be rebutted by a reasonable explanation for the delay by the complainant. The Board’s understanding of Warren’s explanation has been set out above. For the reasons discussed above, there was a reasonable explanation for the delay in this case.
74Third, the Board found that the Respondent was prejudiced by its inability to have finality after five years of litigation. This is an important consideration in labour relations matters for the reasons addressed in City of Mississauga. However, as the Board makes clear at paragraph 35, such prejudice can only be asserted if the issue at hand “could properly have been raised in the previous litigation”, i.e., Warren’s prior application. Given the determinations above, in particular the determination that Warren’s current complaint did not crystallize in 2008, the Respondent’s entitlement to finality cannot reasonably be a consideration.
75Moreover, in this case, the policy that underlies the significance of finality is not present. In Lopes at paragraph 9, the OLRB noted that “[i]t is not appropriate that a party, having reached the reasonable belief that it [sic] conduct had been accepted, finds that the same conduct is attacked years later”. That is not the case in the present circumstances. Warren’s prior application addressed different circumstances, those being his termination. In the absence of any communication from the Respondent to Warren setting out its position regarding his entitlement to severance pay prior to its letter of September 27, 2013, for the reasons stated above, the Respondent had no basis for believing that its position had been accepted by Warren, nor does it make any such assertion in this proceeding.
76I agree with the Respondent that the exercise of the Board’s discretion under s. 89 of the Act to dismiss for undue delay necessarily involves a weighing of considerations. However, in this case, the Board expressly acknowledged the need to consider the fact that Warren’s current application raised a “substantial issue concerning the scope of the protection afforded to parties under the Act” which engaged an “important public policy issue” that weighed against the possible prejudice to the Respondent. Given the determinations above, there is no countervailing consideration weighing in favour of a dismissal for undue delay, other than the absence of finality which must be discounted for the reasons addressed above.
Conclusion
77In paragraph 36 of the Decision, the Board concludes that there was undue delay in Warren’s assertion of the complaint in his current application that the Respondent contravened ss. 72 and 87 of the Act when it denied his severance claim in reliance on Article 13(i) of the CBA. I accept that the Decision involved the exercise of the Board’s discretion under s. 89 of the Act and that the exercise of such discretion must be afforded considerable deference, particularly as the Board is a specialized tribunal with considerable experience and expertise in the area of labour relations. I also accept that a finding that the Board’s Decision was unreasonable engages a very high standard, i.e., a demonstration that there is no line of analysis within the Decision, taken as a whole, that could reasonably lead the Board from the evidence before it to the determination that there was undue delay justifying dismissal of Warren’s current application before the OLRB.
78However, for the reasons set out above, I have concluded that there was no reasonable basis for the Board’s determination that Warren’s complaint had crystallized in 2008 or for the Board’s determination that the Respondent has suffered prejudice as a result of the timing of the commencement of Warren’s current application. While I am mindful of the caution of the Supreme Court in Ryan that it is not necessary that every element of the Decision must independently pass the test of reasonableness to sustain the Decision, these two determinations constitute the entire basis upon which the Decision is grounded. It necessarily follows that, in this case, there is no line of analysis that could reasonably lead the Board from the evidence before it to its decision to dismiss Warren’s current application for undue delay. Accordingly, I conclude that the Decision is not reasonable.
79Based on the foregoing, I would grant the application before the Court and order that the Decision be quashed, with the result that Warren’s current application before the OLRB should be remitted to the Board for a determination with respect to any other preliminary issues it deems necessary to address and then, if appropriate, for a determination on the merits of Warren’s claim. Pursuant to the agreement of the parties, Warren, as the successful party on this application, is entitled to his costs from the Respondent, fixed in the amount of $5,000 on an all-inclusive basis.
Wilton-Siegel J.
Kruzick J.
Sachs J.
Date: November 26, 2015