CITATION: Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501
DIVISIONAL COURT FILE NO.: 537/17 DATE: 20190923
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
Swinton, Perell and R.D. Gordon JJ.
BETWEEN:
JOHN IWAN NAHIRNY
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, LIQUOR CONTROL BOARD OF ONTARIO AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondents
John Iwan Nahirny, acting in person
Brian A. Blumenthal, for the Respondent Human Rights Tribunal of Ontario Lauri A. Reesor, for the Respondent Liquor Control Board of Ontario Jodi Martin, for the Respondent Ontario Public Service Employees Union
HEARD at Toronto: September 23, 2019
SWINTON, J. (Orally)
[1] The applicant John Nahirny seeks judicial review of a series of decisions of the Human Rights Tribunal of Ontario (the “Tribunal”).
[2] In October, 2013, the applicant filed a human rights application against his employer, the Liquor Control Board of Ontario (“LCBO”), and his union, the Ontario Public Service Employees Union (“OPSEU”), alleging discrimination on the basis of family status and disability and reprisal.
[3] Three decisions are key in this application for judicial review:
(1) The decision after a summary hearing dated November 26, 2015, in which the Tribunal dismissed the complaint based on family status and reprisal against the LCBO, but allowed the applicant’s claim that he was ordered to work outside his medical restrictions be scheduled for a hearing. The complaint against OPSEU was dismissed on the grounds that the applicant failed to show that there was a link between the failure to process his grievances and the protected grounds of discrimination in the Human Rights Code, R.S.O. 1990, c. H.19.
(2) The decision dated May 13, 2016, in which the Tribunal dismissed the application after the applicant failed to comply with numerous requests that he provide available dates for a hearing.
(3) A reconsideration decision dated August 8, 2016, in which reconsideration was denied.
[4] LCBO and OPSEU both request that this application for judicial review be dismissed for delay.
[5] Judicial review is a discretionary and equitable remedy. Courts have exercised their discretion to dismiss an application for judicial review on account of delay after considering the length of delay, whether there is a reasonable explanation for the delay, and whether the moving party has experienced prejudice. In Green v. Ontario Human Rights Commission, 2010 ONSC 2648 (Div. Ct.) at paras. 2 and 4, the Divisional Court observed that a delay of more than six months in commencing an application and/or twelve months in perfecting the application can be serious enough to warrant the dismissal of the application.
[6] The Tribunal’s final decision on the merits was made on May 13, 2016, but the application for judicial review was filed some 16 months later on September 15, 2017. The reconsideration decision was on August 8, 2016. Thus the application for judicial review was filed some 13 months later than the reconsideration decision. The application was not perfected for almost 12 months, on September 5, 2018, and the matter has now come before us for hearing on September 23, 2019. All of these proceedings relate to events in the workplace that occurred prior to October, 2013.
[7] The delay here is excessive - 16 months to commence the application and almost another year to perfect it.
[8] There is no reasonable explanation for the delay. It appears that the applicant waited for about a year to contact the Divisional Court about filing an application for judicial review. It appears that he was busy with other legal matters. Even if the applicant was pursuing other litigation, that does not relieve him of his obligation to move expeditiously in pursuing judicial review (see Ransom v. Ontario, 2011 O.J. No. 6208 (Div. Ct.) at para. 12).
[9] Prejudice to the parties can be presumed. The events in issue date back to 2013. The application against OPSEU was dismissed in November 2015. This is a labour relations matter, where the courts have stated that timely resolution of a dispute is particularly important (see OPSEU v. Ontario Ministry of Labour, 2001 O.J. No. 1037 (Div. Ct.) at para. 10).
[10] For these reasons, the application for judicial review is dismissed for delay.
[11] I have endorsed the application record as follows: “This application is dismissed for oral reasons delivered today. The Tribunal does not seek costs. Costs to the LCBO and to OPSEU each fixed at $2,500.00.”
___________________________ Swinton J.
I agree
Perell J.
I agree
R.D. Gordon J.
Date of Oral Reasons for Judgment: September 23, 2019
Date of Release: September 24, 2019
CITATION: Nahirny v. Human Rights Tribunal of Ontario, 2019 ONSC 5501
DIVISIONAL COURT FILE NO.: 537/17 DATE: 20190923
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Swinton, Perell and R.D. Gordon JJ.
BETWEEN:
JOHN IWAN NAHIRNY
Applicant
– and –
HUMAN RIGHTS TRIBUNAL OF ONTARIO, LIQUOR CONTROL BOARD OF ONTARIO AND ONTARIO PUBLIC SERVICE EMPLOYEES UNION
Respondents
ORAL REASONS FOR JUDGMENT
Swinton, J.
Date of Oral Reasons for Judgment: September 23, 2019
Date of Release: September 24, 2019