COURT FILE NO.: 461/08

DATE: 20090121

SUPERIOR COURT OF JUSTICE - ONTARIO

DIVISIONAL COURT

RE: MOHAMED C.Z. KHAN V. ONTARIO LABOUR RELATIONS BOARD AND ROYAL ALLIANCE

BEFORE: JENNINGS, BELLAMY & LITTLE JJ.

COUNSEL: Mohamed C.Z. Khan, appearing in person, Applicant Voy T. Stelmaszynski, for the Respondent, Ontario Labour Relations Board Jacqueline M. Lund, for the Respondent, Royal Alliance

HEARD AT TORONTO: Monday, January 19, 2009

E N D O R S E M E N T

THE COURT:

[1] The applicant brings this application for judicial review of a decision of the Ontario Labour Relations Board (the Board) dated September 17, 2002, in which the Board dismissed a complaint of an unlawful reprisal pursuant to its authority under the Occupational Health & Safety Act, R.S.O. 1990, c.O.1, s.50. The applicant asks that the Board be held accountable for perverting the course of justice, and seeks $2.5 million relief from the respondent Royal Alliance for violating the OHSA. The application for judicial review was filed on September 12, 2008, nearly six years after the Board’s decision dismissing the applicant’s complaint.

[2] In its September 17^th decision, the Board found that the applicant had not raised any health and safety concerns regarding dangerous working conditions in the workplace, and that he had not been fired, but instead had resigned from the workplace.

[3] The applicant brought a request for reconsideration of the Board’s decision. The Board found that the reconsideration of this matter was not appropriate as there was no new information, no obvious error had been made, and the request did not raise significant and important policy issues which had not been given adequate attention or consideration. On March 3, 2003, the Board confirmed the earlier decision of September 17, 2002.

[4] On March 18, 2003, the applicant brought another request for reconsideration. As it appeared to raise the same concerns in the earlier request for reconsideration, on March 24, 2003, the Board decided that it was not prepared to exercise its discretion to reconsider either decision.

[5] On April 2, 2003, the applicant again sought a reconsideration, raising the same grounds, plus an additional one. On April 11, 2003, the Board again refused to exercise its discretion to reconsider saying that “It raises no issue that would normally merit the exercise of that discretion in the applicant’s favour, and it merely repeats, albeit with amplification, the previous position of the applicant.”

[6] On April 24, 2003 and May 9, 2003, the applicant again sought a reconsideration either of the Board’s decision dismissing the initial application or of one or more of the three subsequent decisions in which the Board declined to exercise its jurisdiction to reconsider the first decision. This time, when none of the applicant’s filings had raised any new material, the Board concluded as follows:

1. The Board’s resources ought not to be utilized in such a fashion.
2. For these reasons, the Board will no longer accept any further reconsideration applications from the applicant regarding Board File No. 2153-01-OH.

[7] Almost six years later, the applicant seeks to judicially review these decisions.

[8] Before the Supreme Court of Canada’s decision in Dunsmuir v New Brunswick, 2008 SCC 9, [2008] S.C.J. No. 9, decisions of the Ontario Labour Relations Board had been reviewed on a patent unreasonableness standard: Jacobs Catalytic Ltd. v. International Brotherhood of Electrical Workers, Local 353, et al., (2008) 2008 26686 (ON SCDC), 91 O.R. (3d) 20 (Div.Ct.). That standard of review has been eliminated by Dunsmuir. Counsel for the responding parties agreed that Board decisions are now to be reviewed on the reasonableness standard. Decisions under s.50 of the Occupational Health & Safety Act were reviewed on a patent unreasonableness standard before Dunsmuir: Rooke v. Ontario (Labour Relations Board) (2006), 2006 23945 (ON SCDC), 214 O.A.C. 175 (Div.Ct.).

[9] We conclude that the appropriate standard of review with respect to decisions of the Ontario Labour Relations Board under s.50 of the Occupational Health & Safety Act is one of reasonableness.

[10] It is for the applicant to show that the Board’s decisions and reconsiderations were unreasonable. He has not satisfied that onus. The Board’s decision of September 17, 2002 was eminently reasonable, as were the reconsideration decisions.

[11] The strongest argument advanced by the applicant was that he was denied natural justice because the Board refused to grant him an adjournment on the hearing date. At the start of the hearing, both parties had made opening statements, after which the Board provided directions to the parties. In the course of those directions, the Board member informed the parties that he would not permit the applicant to lead evidence of settlement discussions that had taken place prior to the hearing. At this point, the applicant sought an adjournment to obtain legal counsel. In its reasons at paragraph 5, the Board noted “The reason given for his request was not clear, but it had to do with the Board’s ruling prohibiting evidence of the settlement discussions.”

[12] The respondent, Royal Alliance, strongly resisted this motion for an adjournment on the basis that it had gone to considerable time and expense to bring its witnesses to the hearing and, in any event, the applicant had made a deliberate and conscious decision to represent himself.

[13] The Board denied the motion because the applicant had failed to provide any compelling justification for his late request. Further, two separate Board documents which had been sent to the applicant much earlier “clearly informed him of his right to be represented by legal counsel. He had ample time to make the necessary arrangements.” The alleged reprisal had occurred twenty months earlier.

[14] The Board has the authority to control its own process and has the discretion to grant or refuse an adjournment. A party to a hearing under s. 50 of the OHSA is not required to have legal representation. Here, the applicant had twice been advised well in advance of the hearing that he could have legal representation if he so chose. On the hearing date, he appeared without counsel and was ready to proceed. Indeed, he made an opening statement. It was only after hearing that he could not introduce discussions with respect to settlement that he asked for an adjournment to obtain a lawyer. In our view, the Board’s decision to deny the adjournment was a reasonable exercise of its discretion and we will not interfere with it.

[15] Judicial review is an equitable and discretionary remedy. There is an obligation on the applicant to bring the matter to the Divisional Court without undue delay. The applicant has not given us reason why we should exercise our discretion to hear this judicial review after such an unexplained lengthy delay.

[16] The application is dismissed. No costs being demanded by either respondent, there will be no costs awarded.

Jennings, J.

Bellamy, J.

Little, J.

Date Released: January 21, 2009