CITATION: Airside Security Access Inc. v. Ontario Labour Relations Board, 2017 ONSC 2347
DIVISIONAL COURT FILE NO.: 670/15 DATE: 20170413
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
NORDHEIMER, CORBETT and DiTOMASO JJ.
BETWEEN:
AIRSIDE SECURITY ACCESS INC. Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, RALPH GAWLINA, ONTARIO MINISTRY OF LABOUR, SUE MANICKCHAND-HOSEIN, CHERYL HERNANDEZ, RAUL VALLADARES, TARYK CAMPBELL Respondents
Hamza Talpur, for the Applicant Leonard Marvy, for the Respondent, Ontario Labour Relations Board Andrew Law, for the Director of Employment Standards
HEARD at Toronto: April 13, 2017
NORDHEIMER J. (orally):
[1] This is an application for judicial review brought by Airside Security Access Inc. (“ASA”) seeking to quash two decisions of the Ontario Labour Relations Board (“the Board”). The first decision, dated October 6, 2015, dismissed an application for review brought by ASA under section 116 of the Employment Standards Act, 2000, S.O. 2000, c. 41 (“the ESA”) relating to orders to pay made by the Director of Employment Standards (“the Director”). The Board dismissed the application because ASA had failed to pay the monies to the Director in trust and because the application for review was untimely. The second decision, dated November 13, 2015, denied a request for reconsideration brought by ASA in relation to the Board's first decision.
[2] The underlying issue arises out of complaints by four individuals that ASA failed to pay them wages. ASA contends that the four individuals were not employees of ASA but, rather, were independent contractors. An Employment Standards Officer found the four individuals to be employees. As a result, on June 24 and 26, 2014, the officer issued four Orders to Pay Wages against ASA, with a cumulative value of $10,724.68.
[3] Section 116(1) of the ESA provides that a party against whom an order to pay is issued may seek a de novo review of that order by (i) applying to the Board in writing and (ii) paying the amount owing under the order to pay to the Director in trust or providing the Director with an irrevocable letter of credit for the amount. An application to the Board must be made within 30 days after the date on which the order to pay was served.
[4] In this case, the orders to pay were served on June 30, 2014 and received by ASA on July 9, 2014. On July 30, 2014, ASA wrote to the Ministry of Labour to advise of its intention to appeal from the officer’s decisions.
[5] However, ASA did not apply to the Board for review. Rather, on August 11, 2014, ASA commenced judicial review proceedings in this court seeking, among other things, an Order declaring the orders to pay to be nullities and prohibiting the Ministry of Labour from taking enforcement measures to collect the wages owed. That application was quashed as being premature by Harvison-Young J. on May 27, 2015.
[6] More than three months later, on September 3, 2015, ASA filed an application for review with the Board accompanied by a request for an extension of time. As I have said, that application was dismissed, as was the reconsideration of it.
[7] The standard of review applicable to a decision of the Board of this type is reasonableness. Thus, on this application for judicial review, ASA must not only establish that there is another reasonable decision that might have been made, but also that the decision reached by the Board is unreasonable: McLean v. British Columbia (Securities Commission), 2013 SCC 67, [2013] 3 S.C.R. 895. ASA has failed to do so.
[8] The only explanation offered by ASA for the delay, in seeking a review by the Board, is a complaint that it did not have the financial resources required to launch a review. The Board rejected that explanation for valid reasons. The Board also noted that it is “only in extreme circumstances” that an extension of time will be granted for a review where the period of time involved is a matter of months: Airside Security Access Inc., [2015] O.E.S.A.D. No. 1172 at para. 9.
[9] I cannot find anything unreasonable in the Board’s conclusion on this issue. This is especially so where, what is at issue, is the payment of wages to employees. There is an urgency inherent in such matters, because there is an obvious prejudice to employees when there is a delay in the payment of wages that are due.
[10] In the end result, the Board applied the appropriate factors in considering whether to grant an extension of time. While I appreciate that the Board did not expressly refer to the merits of the case, that factor is but one of four to be considered. That one factor does not exclude consideration of the others. The failure to specifically refer to that factor does not render the decision wrong nor does it render it unreasonable. Consequently, and despite counsel’s able efforts to persuade us to the contrary, there is no basis for this court to interfere with that decision.
[11] The application for judicial review is dismissed.
COSTS
[12] I have endorsed the Applicant’s Application Record for Judicial Review as follows: “This Application is dismissed for oral reasons given. No costs.”
Nordheimer J.
I agree
Corbett J.
I agree
DiTomaso J.
Date of Reasons for Judgment: April 13, 2017
Date of Release: April 21, 2017
CITATION: Airside Security Access Inc. v. Ontario Labour Relations Board, 2017 ONSC 2347
DIVISIONAL COURT FILE NO.: 670/15 DATE: 20170413
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
NORDHEIMER, CORBETT and DiTOMASO JJ.
BETWEEN:
AIRSIDE SECURITY ACCESS INC. Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD, RALPH GAWLINA, ONTARIO MINISTRY OF LABOUR, SUE MANICKCHAND-HOSEIN, CHERYL HERNANDEZ, RAUL VALLADARES, TARYK CAMPBELL Respondents
ORAL REASONS FOR JUDGMENT
NORDHEIMER J.
Date of Reasons for Judgment: April 13, 2017
Date of Release: April 21, 2017