Thomas v. United Food, 2021 ONSC 3015
CITATION: Thomas v. United Food, 2021 ONSC 3015
DIVISIONAL COURT FILE NO.: 436/19
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Backhouse, Favreau JJ.
BETWEEN:
AUDREY THOMAS
Saron Gebresellassi, counsel for the Applicant
Applicant
- and -
UNITED FOOD AND COMMERCIAL WORKERS LOCAL 333
Katherine Ferreira and Lauren Tarasuk, counsel for the Respondent Union
Respondent
- and -
INTERCONTINENTAL HOTEL
Respondent
- and -
ONTARIO LABOUR RELATIONS BOARD (OLRB)
Respondent
David Alli, counsel for Respondent Hotel
Aaron Hart, counsel for Respondent OLRB
HEARD: April 19, 2021 by videoconference
By the Court
[1] The Applicant, Audrey Thomas, seeks judicial review of a July 5, 2019 decision of the OLRB.
[2] On March 5, 2019 the Board had dismissed her application under the Labour Relations Act[^1] ("LRA") alleging that the Respondent Union violated its duty of fair representation under s. 74.[^2] The reconsideration decision of July 5 reached the same conclusion, dismissing her application on the basis of unreasonable delay.
Background
[3] The Applicant was a unionized employee of the Respondent Hotel, employed as a kitchen worker for approximately 18 years. The Hotel terminated her employment on May 5, 2017. The Union provided representation to the Applicant by filing a grievance on her behalf on May 8, 2017. It advocated for her at a grievance meeting but in August 2017 decided not to refer the grievance to arbitration.
[4] The Union subsequently informed her that she would not be afforded union protection, representation or any alternate procedure.
[5] On November 8, 2018, the Applicant applied to the OLRB pursuant to s. 96 of the LRA, claiming that the Union had violated s. 74 of the LRA. In response, the Union and the Hotel submitted that the Applicant had not pleaded a prima facie case for a s. 74 violation. They also argued that the application was untimely. Both the Union and Hotel asked the OLRB to summarily dismiss the application pursuant to Rule 39.1 of the OLRB's Rules of Procedure[^3] or pursuant to its discretion to do so under s. 96[^4] of the LRA.
[6] On January 29, 2019 the Board directed Ms. Thomas to serve and file her response to the request for summary dismissal of her application by February 11, 2019. She did so, citing specific violations of s.74 she says the Union committed. She also gave an explanation for her delay in filing her application to the Board.
[7] On March 5, 2019, the OLRB exercised its discretion under s. 96 of the LRA and dismissed her application due to delay. It found that the Applicant's delay of 15 months in filing her complaint with the OLRB was excessive and not adequately explained.
[8] On April 15, 2019, the Applicant filed a Request for Reconsideration, asking that the Union be ordered to file a grievance with the Hotel on the basis that the OLRB made manifest errors in summarily dismissing her application, including an incorrect calculation of the length of the delay.
[9] On April 17, 2019 Ms. Thomas was directed to file two specific documents with the Board by April 23, 2019: the letter from the Union advising her that a grievance would not be pursued on her behalf and the original unredacted copy of the April 9, 2019 letter from Dr. Attalla. She never produced either document.
[10] On July 5, 2019 the OLRB dismissed the Request for Reconsideration, finding that it was mostly an attempt to raise material facts and arguments that could have been raised at the March hearing. However, notwithstanding the Applicant's failure to produce the letter from the Union, the Board accepted her submission that it was not until November 25, 2017 that she learned the Union was not going to take her grievance forward to arbitration. This altered finding of fact meant the delay in filing her application with the Board was 11.5 months, not the 15 months upon which the March 5 decision was premised. On the reconsideration the issue then was whether this factual alteration ought to change the outcome of that March 5 decision. The Board found that it did not. It found that the Applicant did not provide a reasonable explanation for her delay and that there would be actual prejudice to the Union if the matter was allowed to proceed.
Standard of Review
[11] The parties agree that the standard of review to be applied is reasonableness. The Divisional Court has consistently applied the reasonableness standard and afforded deference to the OLRB with respect to allegations involving a union breaching the duty of fair representation under s. 74 of the LRA.[^5]
[12] This court and the Ontario Court of Appeal have recently affirmed that the long-standing jurisprudential commitment to affording labour relations decision makers the highest degree of deference pre-Vavilov, is properly maintained post Vavilov.[^6]
Issues Raised by the Applicant
[13] The Applicant submits that (1) a delay of less than 12 months is not presumptively unreasonable or prejudicial (2) the Union bears the onus of proving actual prejudice, which it has failed to do, and (3) Ms. Thomas has provided a reasonable explanation for the delay.
[14] The Applicant also submits that the Board never gave any consideration to the substantial impact of its decision on Ms. Thomas (the inability to challenge the loss of her livelihood) in dismissing her application without considering its merit. This submission was never raised with the Board at the original hearing or on the reconsideration hearing and is not in the Applicant's factum in this court. It was raised for the first time in oral argument. It was not incumbent on the Board to address a consideration not advanced by the Applicant at the time. Moreover, we are not prepared to assume the significance of loss of employment was necessarily overlooked by the Board.
Analysis
Statutory Framework
[15] There is no time deadline set out in the LRA for bringing a complaint respecting a Union’s duty of fair representation. The timelines for bringing such a complaint are left to the OLRB's discretion. Where a person brings a complaint that the Union has violated its duty of fair representation, s. 96 of the LRA gives the OLRB wide-ranging discretion whether to inquire into the complaint. Section 99(3) of the LRA provides that the OLRB is not required to hold a hearing to determine a DFR complaint.
[16] Advisory Bulletin 12 posted, on the OLRB's website, provides in regard to a s.74 complaint, in part, that: "While there is no statutory time limit for filing an application, excessive delay without a good explanation may cause an application to be dismissed."
[17] Rule 5 of the OLRB's Rules of Procedure, posted on its website, provides:
Rule 5 Obligation to Make Allegations Promptly
5.1 Where a party in a case intends to allege improper conduct by any person, he or she must do so promptly after finding out about the alleged improper conduct and provide a detailed statement of all material facts relied upon, including the circumstances, what happened, when and where it happened, and the names of any persons said to have acted improperly.
Jurisprudence
[18] The OLRB has developed a body of jurisprudence on how to assess delay in the context of s.74 complaints. In its initial March 15, 2019 decision in this matter, it referenced at paragraph 6, its decision in The Corporation of the City of Mississauga[^7] as follows:
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: the length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years. (emphasis added in paragraph 6 of the OLRB's decision in this matter quoting this decision).
[19] The Applicant relies upon the OLRB's decisions in Chrysler Canada Ltd.[^8] and June Jacobs v. Canadian Union of Public Employees and its Local 1385[^9] in support of the proposition that where delay is less than one year, the onus is on the responding party to demonstrate actual prejudice sufficient to justify dismissing a complaint without a hearing on its merits.
[20] However, in Nicola Gradojevic[^10] the OLRB explained that there is no bright line when the delay in filing an application under section 74 of the LRA results in prejudice to another party:
The Board has attempted to offer some guidance by identifying the one-year mark when it will presume that there is prejudice as a result of the delay. But that does not mean that a delay of 11 months has no prejudice or that it is not reasonable to presume that there will be prejudice to the parties.
[21] The Board's own jurisprudence makes it clear that dismissal for delay is an exercise of discretion, reflecting factually based determinations on a case by case basis.
Lack of Explanation for Delay
[22] The OLRB held in its July 5, 2019 reconsideration decision:
- In this proceeding, counsel for the union argues that an 11.5 month delay is still excessive, unexplained and prejudicial in the circumstances. I agree. A delay of that length is excessive, and Ms. Thomas was provided with more than sufficient time to file with the Board a satisfactory explanation for the delay in filing the application in advance of my decision dated March 5, 2019. She has not done so to date.
[23] It is not accurate to characterize the OLRB's decision as accepting that there was a reasonable explanation for the delay. The March 5, 2019 decision referenced the submission of the Applicant's counsel that the Applicant needed 12 months to raise the money necessary to retain her services. However, while expressing some sympathy for that circumstance, the OLRB found that it did not justify the significant delay in the filing.
[24] In paragraphs 14 and 15 of its reconsideration decision the OLRB considered the medical note proferred by the Applicant. The OLRB found that it was unsigned, appeared to be missing a page and to be partially redacted in at least two places. This was why the Applicant had been directed to file the original note with the OLRB, by April 23. She did not comply with that direction. The OLRB found that at the very least, the fact that the Applicant was not prepared to file the original doctor's note allowed an inference to be drawn that the original note was not helpful to the position she asserted. The OLRB concluded that the medical note should not be given any weight. It further held that even if it was prepared to give the medical note some weight, the note provided by the doctor did not support the position asserted by the Applicant.
Prejudice to the Union
[25] In this case the Board concluded the delay was prejudicial to the Union. At paragraphs 24 and 25 of its reconsideration decision it cited an example of how memory had become inaccurate well before the expiry of the 11.5 month period. It also repeated paragraph 15 of its original decision. Decisions made or not made by the Union's representatives in August 2017 are at the heart of whether it violated its duty to the Applicant so that "the long passage of time between the events complained of (some going back to May 2017) and the date of filing [November 2018] prejudices the ability of the Union to defend itself." The Board added that "the delay is particularly problematic here because it was not until February 11, 2019 that Ms. Thomas pleaded material facts to support what the Union did or did not do to violate s.74".
[26] The effect of that finding was that the Union continued not to have the particulars of the Applicant's claim for a further 3 months after her claim had been filed in November 2018, effectively extending the period of her delay closer to 15 months.
Conclusion
[27] In dismissing the application on the basis of unreasonable delay, the OLRB considered the relevant jurisprudence, the parties' submissions and the governing statutory scheme. It weighed the relevant factors to make a determination in regard to the Applicant's explanation for the delay and prejudice to the Union. The OLRB addressed and rejected the Applicant's submissions that the delay was reasonable given the high cost of legal representation, that she was waiting for the decision from Service Canada before considering whether to bring an application and her medical condition. It is not for this court to weigh the evidence and substitute new factual findings. There was evidence to support the Board's factual findings.
[28] The OLRB's reasoning process was clear and internally coherent in finding that the Applicant's delay was excessive, not adequately explained and that there was prejudice. Whether or not it was the Union's onus to establish actual prejudice, the OLRB found that there was evidence that the Union was prejudiced as a result of the delay.
[29] The OLRB reviewed its discretion to reconsider a decision under s. 114(1) of the LRA and articulated the limited circumstances in which it will vary an original decision. The OLRB found:
- For the most part, the Request for Reconsideration filed by Ms. Thomas is nothing more than an attempt on her part to raise material facts and arguments that could have been raised in the application. The Board has made it very clear that a Request for Reconsideration is not to be treated as an opportunity for an unsuccessful party to remedy a gap or a flaw in his or her case, and then reargue its merits. That is exactly what Ms. Thomas attempts to do here.
[30] We agree with the Union that the issues raised by the Applicant in her Request for Reconsideration were attempts to present facts and arguments that could have been raised in the original application and were not an appropriate way to seek reconsideration.
[31] In a reasonableness review, it is not the proper role of the court to substitute a different factual finding from the OLRB to whom deference is owed. The OLRB has a wide discretion under s. 96 of the LRA to dispose of s. 96 applications in summary fashion. The court is being asked to review a procedural labour relations issue squarely within the OLRB's jurisdiction and expertise. The Applicant has not satisfied her onus to demonstrate that the OLRB's decision was unreasonable.
[32] In the result, the application is dismissed.[^11]
[33] Based on the agreement of the parties, the Applicant shall pay costs to the Union and the Hotel in the total all inclusive amount of $5000.
Aston J.
Backhouse J.
Favreau J.
Released: April 23, 2021
CITATION: Thomas v. United Food, 2021 ONSC 3015
DIVISIONAL COURT FILE NO.: D436/19
DATE: 20210423
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Aston, Backhouse, Favreau JJ.
BETWEEN:
Audrey Thomas
Applicant
- and –
United Food and Commercial Workers Local 333, Intercontinental Hotel and Ontario Labour Relations Board (OLRB)
Respondents
REASONS FOR JUDGMENT
Released: April 23, 2021
[^1]: S.O. 1995, c. 1 [^2]: Section 74 provides that “a trade union … shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit”. [^3]: Rule 39.1 provides: “Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation.” [^4]: Section 96(1) provides: “The Board may authorize a labour relations officer to inquire into any complaint alleging a contravention of this Act.” Subsequent steps follow, depending upon the result of the inquiry. [^5]: Laporte v. United Steelworkers, Local 1998, 2019 ONSC 3705, paras. 18-19, 41, 43; Ma v. Ontario Labour Relations Board, 2018 ONSC 5959, paras. 17, 19 [^6]: Labourers’ International Union of North America, Local 183 v. GDI Services (Canada) LP, 2020 ONSC 1018, paras. 27-28 [^7]: [1982] Rep. March 420, para. 22 [^8]: [1997] O.L.R.D. No. 2605, para. 14 [^9]: 2016 65146, para. 14 [^10]: 2015 2105, para. 12 [^11]: An additional issue is raised in the Union’s factum in regard to striking an affidavit of the Applicant contained in her Record which did not form part of the Record before the OLRB. No submissions were made at the hearing in regard to this. The affidavit was not included in the material before this panel. Accordingly, no finding is made in regard thereto.