Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 639

CITATION: Abdoulrab v. Ontario (Labour Relations Board), 2009 ONCA 639

DATE: 20090908

DOCKET: C48942

COURT OF APPEAL FOR ONTARIO

Simmons, Blair and Juriansz JJ.A.

BETWEEN

Abdurahman Abdoulrab, Jospehine Andres, Muoi Au, Ha To Banh, Clint Butts, Emerien Charles, Thuc My Chau, Lin Heung Cheng, Mildred Chichioco, Jui Fang Chung, Hoa Xao Dang, Khuven Thi Dang, Thai Quoc Dang, Quy Doan Dang, Kim Anh Dang, Danilo Dapapa, Tu Co Dat, Miguel De Luna, Donette Defreitas, Hue Mai Diec, Ha To Diep, Joanna Dimopoulos, Quand Duc Duong, Dianne Ellis, Michael Estores, Nouri Fayaz, Xiao Ming Feng, Sean Fitzpatrick, Tan Yne Fong, Seng Tsai Fou, Bimbo Frigillana, Zhu Ping Gao, Alberto Gapo, Victor Garcia, Mesfin Gebre, So Sang Giang, Reynaldo Guiyab, Edward Gysai, Mohammed Hakimi, Truyet Hoang, Quang Thuy Hoang, Em Huynh, Hien Huynh, Lye Jan Jew, Harshika Kapadia, Karamjit Kaur, Mai Tue La, Tan Phuoc Lam, Hoa Lao, Thu Van Le, Chu Chen Liang, Ngoc Boi Lieu, Letien Luong, Tien Duong Luu, Hung Phat Ly, Yen Thoai Mac, Emer Millado, Ssarobjen Mistry, Saeed Mohammed, Kin Siu Mooc, Janet Murray, Lai Ha Ng, Lincheung Ng, Bay Duc Ngo, Tu Van Nguyen, Kwame Obeng, Leonardo Pasi, Antonio Pascua, Lanque Phan, Paul Poku, Vasugy Rajakantham, William Ribeiro, Yat Wing Shum, Prematie Singh, Kamal Singh, Debra Slater, Kuan Su, Heng Tac Tan, Mui Tan, Ky Tang, Kim Tran Thai, Nam Van Tan, Duc Tran, Hien Duc Tran, Quang Van Trang, Nu Trinh, Myvan Truong, Arthur Unciano, Errol Venida, Gloria Vieveen, Dinh Lac Vuong, Hao Vuong, Yuk Kay Wong, Tian Sheng Wu, Nagendran Yogendran, Lye Jan Lew, Hoa Gan Tran, Nu Chau Le, Kelly Cook, Edward Gysai, Bay Duc Ngo, Nu Chau Le, Mesfin Gebre

Appellants

and

Ontario Labour Relations Board, Novaquest Finishing Inc., Catelectric Inc., 4064186 Ontario Inc. & Ontario (Ministry Of Labour – Director Of Employment Standards)

Respondents

Ron Franklin and Avvy Go, for the appellants

Brian Blumenthal and Judy L. Chan, for the respondent Director of Employment Standards (Ministry of Labour)

Clifton Prophet and Brent Arnold, for the respondents Novaquest Finishing Inc., Catelectric Inc., and 4064186 Ontario Inc.

Voy Stelmaszynski, for the respondent Ontario Labour Relations Board

Heard: January 27, 2009

On appeal from the order of the Divisional Court (Lane, Swinton and Bryant JJ.), with reasons for judgment delivered by Swinton J., dated August 13, 2007.

COSTS ENDORSEMENT

[1] The court dismissed this appeal on June 18, 2009. The respondents were successful on all issues. The appellants and the Director of Employment Standards submit that it would be appropriate in the circumstances of this case, to depart from the general rule that “costs follow the event”.

[2] The appellants submit that they should not be required to pay the successful parties’ costs considering that they are employees who lost their jobs without receiving severance and termination pay. They say that a costs order against them would be a hardship given their financial position. They also assert that they were not entirely unsuccessful in that the respondent companies were found to be related entities. Finally, they submit that the appeal engaged the public interest in that the application of section 4 of the Employment Standards Act is of great consequence to all workers in the province.

[3] There is no basis for the first two submissions. First, the appellants were entirely unsuccessful as the Board’s finding that the respondent companies were related was never an issue in the appellate proceedings. Second, assuming the court has discretion to consider impecuniousness in awarding costs, there is no reason to think the appellants, who number about one hundred, are unable to pay a costs award. While their employment with Catelectric-Dip Corporation was terminated in 2003, there is nothing in the record to indicate the appellants could not each pay their prorated share of a costs award. On the other hand, the evidence in the record did establish the uncertain financial viability of the respondents. Cataelectric Inc., for example, was losing money at the time of the hearing before the Board. The respondents have had the expense of a second appeal proceeding imposed on them.

[4] The Director of Employment Standards (“DES”) was a party to the proceedings by virtue of section 116 (7) of the Employment Standards Act. DES submits that costs should not be awarded against it because its role on the appeal was undertaken in the public interest and transcended the issues between the immediate parties. It too asserts that the issues on appeal were of interest to the broader public.

[5] On the appeal, DES utilized its party status to argue the merits of the appeal. It did not, as did the Ontario Labour Relations Board, confine itself to explaining the legislation and the standard of review. While DES may have been entitled to adopt the strong advocacy posture that it did, having participated fully in the proceedings, it cannot invoke its statutory role to shield it from a costs award.

[6] Nevertheless, the appeal did raise for the first time in this court the interpretation of s. 4 of the Employment Standards Act, which is a matter of broad public interest. The Divisional Court ordered that there would be no costs of the appeal before it on this basis.

[7] There will be no order as to costs.

“J. M. Simmons J.A.”

“R.A. Blair J.A.”

“R.G. Juriansz J.A.”