Court File and Parties
COURT FILE NO.: 84/02
DATE: 20031118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.
B E T W E E N:
ROCCO TASSONE Applicant
- and -
THE ONTARIO LABOUR RELATIONS BOARD, AMALGAMATED TRANSIT UNION, LOCAL 113 and THE TORONTO TRANSIT COMMISSION Respondents
Counsel: Joseph Markin, for the Applicant Leonard Marvy, for the Respondent, Ontario Labour Relations Board Ian J. Fellows and David A. Wright, for the Respondent, Amalgamated Transit Union, Local 113 Tim P. Liznick and Allyson M. Fischer, for the Respondent, Toronto Transit Commission
HEARD: November 18, 2003
Oral Reasons for Judgment
CUNNINGHAM A.C.J.: (Orally)
[1] This is an application for a judicial review of a decision of the Ontario Labour Relations Board. In May, 1997, the Board dismissed the applicant’s complaint that the Union violated ss. 74 and 76 of the Labour Relations Act. In August, 1997, the Board dismissed the applicant’s request for reconsideration of the s.74 complaint.
[2] This application was filed approximately 4 and one half years after the reconsideration decision. It was not perfected for a further 7 months. In our view, this is undue delay. The explanation that the applicant was involved in other ways of addressing his concerns is not a sufficient explanation for the failure to bring or perfect the application in a timely fashion.
[3] With respect to the merits, the standard of review is that of patent unreasonableness. Concerning the applicant’s s.74 claim that he was dealt with differently from others in a discriminatory fashion, he agreed to participate in a consultation process before the Board. After failing a welding test that was required of him in order to maintain his existing employment, the Union arranged a retesting that he failed to attend and then a further retesting that he did not complete.
[4] While the Board did not deal with the applicant’s argument that he was treated differently, on the rehearing the Board dealt with it in this way:
“The applicant argues that other similarly situated persons were treated differently from him by the respondent and that this is conduct which is a breach of section 74 of the Act. This is a theory that the applicant had the opportunity to elaborate upon at the consultation in this matter but did not do so sufficiently to persuade the Board that this conduct on the respondent’s part amounted to a breach of the Act. The Board is not obliged to deal directly with each and every submission put forward by counsel. What the Board should do however and what was done in this case, is to fairly put the reasons upon which its decision is based.”
[5] It was not patently unreasonable for the Board to conclude that the Union had not acted arbitrarily in a discriminatory way or in bad faith in failing to file a grievance about this matter. Moreover the applicant did not seek reconsideration of the Board’s decision under s.76 and accordingly he did not exhaust alternative remedies available to him with respect to the s.76 claim.
[6] For these reasons, the application is dismissed.
[7] Costs to the Union fixed at $3,000 and costs to the TTC fixed at $2,000.”
CUNNINGHAM A.C.J.
MCRAE J.
EPSTEIN J.
Date of Reasons for Judgment: November 18, 2003
Date of Release: November 24, 2003
COURT FILE NO.: 84/02
DATE: 20031118
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
CUNNINGHAM A.C.J., MCRAE AND EPSTEIN JJ.
B E T W E E N:
ROCCO TASSONE Applicant
- and -
THE ONTARIO LABOUR RELATIONS BOARD, AMALGAMATED TRANSIT UNION, LOCAL 113 and THE TORONTO TRANSIT COMMISSION Respondents
ORAL REASONS FOR JUDGMENT
CUNNINGHAM A.C.J.
Date of Reasons for Judgment: November 18, 2003
Date of Release: November 24, 2003