CITATION: Qiu v. Tim Hortons Inc., 2017 ONSC 1281

DIVISIONAL COURT FILE NO.: 669/15

DATE: 20170223

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: QINGRONG QIU v. TIM HORTONS INC., ONTARIO LABOUR RELATIONS BOARD and DIRECTOR, EMPLOYMENT STANDARDS BRANCH

BEFORE: NORDHEIMER J.

COUNSEL: Q. Qiu, moving party/applicant in person and with his wife, D. Ye J. Heeney & D. Israelsohn, for the respondent, Tim Hortons Inc. L. Marvey, for the respondent, Ontario Labour Relations Board K. Ballweg, for the respondent, Director, Employment Standards D. Campbell, pro bono amicus

HEARD at Toronto: February 23, 2017

ENDORSEMENT

[1] Mr. Qiu brought a motion for certain relief in relation to a judicial review application he has brought from a decision made by the Ontario Labour Relations Board (the “Board”). While I gave a handwritten endorsement at the conclusion of the hearing, in the circumstances I consider it prudent to repeat and somewhat expand on that handwritten endorsement.

[2] First, at the outset of the hearing, Ms. Ye, the wife of Mr. Qiu, purported to address the court on his behalf. I advised Ms. Ye that she was not entitled to do so. Ms. Ye contended that she could address the court because she was a “party”. I said that she was not, as the title of proceedings makes clear, and when she then asked to be added as a party, because the monies in issue are “family income”, I told her that there was no legal basis for adding her as a party. The issue raised in this proceeding arises from Mr. Qiu’s employment by Tim Hortons Inc. No one else in Mr. Qiu’s family is properly a party to that proceeding. Consequently, Mr. Qiu could either make submissions on his own behalf or he could retain counsel – see r. 15.01(3) of the Rules of Civil Procedure, R.R.O. 1990, Reg. 194. Ms. Ye then purported to act as a translator for Mr. Qiu, which caused its own problems, but in the interests of attempting to get the motion dealt with, I permitted it.

[3] Mr. Qiu sought three things in his motion, none of which had any merit. First, he sought to have a copy of his opening submissions to the Board produced to him. Counsel for the Board confirmed that there is no transcript of the proceedings that took place before the Board. Mr. Qiu then said that his opening submissions had been in writing. If so, a party’s written submissions do not form any part of the evidence before the Board, and would not properly form any part of the record before this court on a judicial review application. Mr. Qiu did not explain why he did not have a copy of his own written submissions.

[4] Second, Mr. Qiu sought “750 pages” of payroll records. Both counsel for the Board and counsel for Tim Hortons confirmed that all of the material that had been placed before the Board was in the record of proceedings that has been filed with this court. The reference to 750 pages is in error, in any event. What is important for the purposes of the judicial review application is that the record of the proceedings before the Board is complete and it is filed.

[5] Third, Mr. Qiu sought to strike out the respondents’ facta on the basis that they were “misleading”. That is not a proper basis for striking a factum. It is, at best, a matter of argument before the panel hearing the judicial review application. I note that what Mr. Qiu characterizes as “misleading” appears to, in fact, be matters with which he simply does not agree.

[6] It is for these reasons that I dismissed the applicant’s motion. I ordered the applicant to pay to the respondent, Tim Hortons Inc. costs fixed at $3500 inclusive of disbursements and HST. Those costs are to be payable within thirty days as provided for in the Rules – see r. 57.03(1)(a). Neither the Board nor the Director sought costs.

[7] I also advised Mr. Qiu, and his wife, that she could not represent him at the judicial review hearing. Again, Mr. Qiu either has to act on his own behalf or he has to retain counsel. I also told both Mr. Qiu and his wife that, if Mr. Qiu needed a translator for the judicial review hearing, then he must arrange for a properly qualified translator to be available at his expense – see, by analogy, r. 34.09(2) & r. 53.01(6).

[8] Finally, I dispense with approval of the formal order by the applicant.

NORDHEIMER J.

DATE: February 23, 2017