CUPE Local 27 v. Essex School Board, 2017 ONSC 6544

CITATION: CUPE Local 27 v. Essex School Board, 2017 ONSC 6544

DIVISIONAL COURT FILE NO.: 565/16

DATE: 20171101

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Canadian Union of Public Employess Local 27, Applicant (Respondent)

AND:

The Greater Essex County District School Board, Respondent (Moving Party)

BEFORE: L. A. PATTILLO J.

COUNSEL: Gavin Leeb and Devon Paul, for the Applicant (Respondent)

L. P. Kavanaugh Q.C., for the Respondent (Moving Party)

HEARD: October 26, 2017

ENDORSEMENT

[1] The Greater Essex County District School Board (the “Board”) moves to dismiss the Applicant’s, Canadian Union of Public Employees Local 27 (“CUPE”) application for judicial review commenced November 28, 2016, (the “Application”) for delay/latches and/or waiver.

[2] The Application seeks the review of a series of arbitration awards dealing with the dismissal of Tim Mullins (“Mullins”) from employment by the Board on December 6, 2000. At the time of his dismissal, Mullins was a member of CUPE and his employment was covered by a Collective Agreement.

[3] Given the motion deals with delay, I set out a brief chronology of the relevant events that have transpired from Mullins’ dismissal to the hearing of the motion.

• December 7, 2000 – CUPE files a grievance on behalf of Mullins;

• December 11, 2009 – After 54 days of hearing, the arbitrator issues a 93-page decision. The arbitrator finds that Mullins was wrongfully dismissed but, in the circumstances of the case, concludes damages, as opposed to reinstatement are the appropriate remedy. The arbitrator remains seized to deal with compensation;

• September 14, 2015 – the arbitrator releases the last of four decisions (the previous ones were September 20, 2011, June 12, 2012, and March 24, 2015) all dealing with compensation;

• May 22, 2015 – CUPE retains counsel who conducted the arbitration on its behalf, to commence the Application;

• November 28, 2016 – Notice of Application for judicial review is issued. Counsel for CUPE advises that the Record has been completed and served on the Board but, by agreement of counsel, it has not been filed with the court pending the outcome of this motion. Nor has a factum been prepared.

[4] Both parties agree that the test for determining whether an application, including an application for judicial review, will be dismissed for delay is as set out by the Divisional Court in Gigliotti v. College des Grands Lacs (Conseil d’administration), (2005), 2005 23326 (ON SCDC), 76 O.R. (3d) 561 (Div. Ct.) – the length of the delay; whether there is a reasonable explanation for the delay; and whether the moving party has suffered prejudice as a result of the delay.

[5] In this case, there is evidence from both parties that addresses all three aspects of the test.

[6] The decision to dismiss for delay is discretionary. While I have jurisdiction to deal with the motion, it is also a motion that can be dealt with by the Divisional Court panel hearing the appeal: See Gigliotti, supra.

[7] Further, given the importance of judicial review applications, it is my view that unless the determination of the issues raised on the motion are so clear as to leave no doubt as to the result, a single judge ought not decide a motion to dismiss for delay. Rather, such a motion should be decided by the panel hearing the application.

[8] Having carefully considered the facts before the court on this motion and counsel’s submissions, I am unable to conclude that the issues on the motion are so clear that they should be determined by me alone. In my view, given the issues, it is more appropriate that the motion be decided by the full panel hearing the Application.

[9] Accordingly, pursuant to s. 21(1)(4) of the Courts of Justice Act, R.S.O. 1990, Chap. C. 43, I am adjourning this motion to the panel of the Divisional Court who will hear the Application.

[10] The parties have agreed, based on the outcome of the motion that costs in the amount of $5,000 shall be in the cause of the motion and are therefore reserved to the panel hearing the Application.

L. A. PATTILLO J.

Released: November 1, 2017