CITATION: Speck v. OLRB, 2021 ONSC 3176
DIVISIONAL COURT FILE NO.: 371/19
DATE: 20210429
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, BLOOM AND KURKE JJ.
BETWEEN:
Todd Elliott Speck
Applicant
- and -
Ontario Labour Relations Board, Association of Management, Administrative and Professional Crown Employees of Ontario, and Ontario (Treasury Board Secretariat)
Respondents
Todd Elliott Speck, Self-represented
Aaron Hart, for the Respondent, Ontario Labour Relations Board
Adriel Weaver, for the Respondent, Association of Management, Administrative and Professional Crown Employees of Ontario
Caroline Cohen and Joohyung Lee, for the Respondent, Ontario (Treasury Board Secretariat)
Heard by Videoconference: November 18, 2020
REASONS FOR JUDGMENT
BY THE COURT:
OVERVIEW
[1] The applicant, Todd Elliot Speck, applies for judicial review of a decision of the Ontario Labour Relations Board (“the Board”) dated August 10, 2018 (the “interim decision”) and a final decision of the Board (the “final decision”) dated January 25, 2019, dismissing his application pursuant to s. 96 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (the “Act”). The applicant had been seeking relief alleging that his union, the respondent Association of Management, Administrative and Professional Crown Employees of Ontario (the “Union”), had violated the duty of fair representation that it owed him under s. 74 of the Act with respect to his grievances that had earlier been withdrawn by the Union.
[2] The applicant seeks review of the Board’s decisions on the following bases:
a. the Board breached its duty of procedural fairness to him by denying him the full opportunity to present evidence and make submissions;
b. the Board breached its duty of fairness to him by acting as a biased tribunal;
c. the Board’s decision of January 25, 2019 was unreasonable in the context of the record and the governing law; and
d. the conduct of the Board breached his right under s. 15 of the Canadian Charter of Rights and Freedoms.
THE FACTUAL AND PROCEDURAL BACKGROUND
[3] The applicant was an employee of the respondent Ontario Ministry of Health and Long-Term Care (“the Employer”) from June 4, 2002 as a program analyst, until he was suspended pending investigation into allegations of harassment, discrimination, and workplace violence. His employment was terminated in February of 2014 while he was on secondment as an articling student at the Ministry of the Attorney General, expecting a call to the bar in June 2014. His secondment terminated as a result of his discharge.
[4] The Union filed grievances on behalf of the applicant challenging both his original suspension and the termination of his employment (the “grievances”) and referred them to arbitration before the Grievance Settlement Board. Arbitration of the grievances took place over several days in 2014 and 2015.
[5] From the beginning, there was disagreement between the applicant and the Union that resulted in the relationship between the applicant and the Union becoming increasingly strained. The applicant disagreed with the Union’s manner of representing his grievance and threatened to file a duty of fair representation application against the Union under s. 74 of the Act as early as February of 2014. He made the same threat by e-mails dated August 22, 2014, October 24, 2014, November 25, 2014, September 22, 2015 and November 26, 2015. Responding the same day to the applicant’s e-mail of November 26, 2015, the Union’s representative called for the applicant to proceed with his complaint, adding that the Union would be bound by any direction provided by the Board. The applicant responded that it would take him months to prepare a complaint.
[6] On October 5, 2016, the applicant sent an e-mail to the Union indicating that he would prepare a complaint to the Board shortly. On October 14, 2016, the Union responded that it would not proceed further with his case absent an order from the Board; that the Union expected the applicant to file the complaint quickly; and that, should he further delay, the Union reserved the right to object to the complaint based on undue delay.
[7] On April 4, 2017, the Union advised the applicant in writing that it would no longer pursue litigation of the grievances based on an assessment of the merits and the unlikelihood of obtaining reinstatement, but was prepared to pursue settlement discussions. Following notice to the applicant, the Union formally withdrew the grievances on May 9, 2017.
[8] Fifteen months later, on August 7, 2018, the applicant filed his application with the Board under s. 96 of the Act, seeking relief based on s. 74 of the Act. He alleged that the Union had breached the duty of fair representation that it owed him. His application was approximately 288 pages in length with exhibits exceeding 1000 pages.
The interim decision
[9] In its interim decision of August 10, 2018, the Board described the applicant’s s. 96 application as “generally incomprehensible and difficult to follow” and found that the length of the application made it impossible for the Union to know the specific allegations against it and the factual basis for them. As a tenet of procedural fairness, the Union had a right to know the allegation that it had to answer. Accordingly, the Board required the applicant to serve and file submissions not exceeding 20 single-spaced pages setting out his allegations and their factual basis. The applicant was given two weeks to file the materials, failing which his application would be dismissed. The applicant filed his submissions on August 23, 2018, in accordance with the Board’s direction.
The request for summary dismissal
[10] In their responses to the applicant’s revised s. 96 application, both the Union and the Employer submitted that his application ought to be dismissed summarily on the ground of delay or, in the alternative, for failing to disclose a prima facie case of a breach of s. 74.
[11] Section 96(4) of the Act gives the Board the discretion to, among other things, inquire into a complaint of a contravention of the Act and summarily dismiss an application alleging a breach of the Act where it considers it appropriate to do so: Re Dhanota and International Union United Automobile, Aerospace and Agricultural Implement Workers of America (U.A.W.), Local No. 1285; Sheller-Globe of Canada Ltd., Intervenor (1983), 1983 1655 (ON SC), 42 O.R. (2d) 73 (Sup. Ct.).
[12] On October 10, 2018, the Board directed the applicant to file any submissions, no longer than 10 pages, responding to the Union’s request for summary dismissal by October 19, 2018. The Board directed the applicant to indicate which facts in paragraphs 11 to 31 of the Union’s response concerning delay he disagreed with and why. The Board explicitly warned the applicant that any facts not specifically disputed would be deemed accepted by him. The Board further directed the applicant to explain his delay in filing his application in the period after April 4, 2017, when the Union had warned him of its intention to withdraw the grievances.
[13] On October 13, 2018, the applicant wrote to the Board requesting an extension to November 2, 2018 to file submissions in response and an extension to December 2, 2018 to complete the filing of a Notice of Constitutional Question.
[14] On October 16, 2018, the Board granted the applicant until November 15, 2018 to file his submissions responding to the delay argument and the Notice of Constitutional Question. The applicant was given 20 pages to address the delay issue and his Constitutional Question.
[15] The applicant filed his submissions in response to the delay issue on November 14, 2018. In them, he acknowledged the direction of the Board, and denied one aspect of a single paragraph of the Union’s delay submission. He addressed nothing further of the Union’s paragraphs 11-31, but noted that they were, in his view, “of no legal relevance.”
The final decision
[16] On January 25, 2019, the Board dismissed the applicant’s s. 96 application alleging a s. 74 violation based on delay. In its decision, the Board reviewed the relevant factual timeline together with material portions of the statutory scheme of the Act. It also reviewed the applicable case law as regards the exercise of its discretion to dismiss summarily an application based on an allegation of an unfair labour practice. In particular, the Board re-affirmed the principle established in its jurisprudence that where the delay in filing a complaint is more than one year, the applicant bears the onus of providing a satisfactory explanation for the delay.
[17] The Board considered the applicant’s explanation for the delay, including his assertion about the complexity of showing that the Union and Employer claims were contradicted by the documentary record, and his disadvantage as an unrepresented party unfamiliar with the process.
[18] The Board considered the history of the matter, and not just the delay of 15 months from the withdrawal of the grievances by the Union to the filing of the complaint. It considered the applicant’s repeated threats to make a complaint about the Union’s conduct, that he never made any such complaint, and the Union’s warning that it would argue delay in response. The Board also considered the Union’s warnings to the applicant long in advance of its withdrawal of his grievances that it would withdraw them. It found that there was prejudice to the other parties by virtue of the fading memories of witnesses as time passed.
[19] In response to the applicant’s argument that he was unrepresented and that therefore he should be accorded greater leeway, the Board noted that other unrepresented persons have made timely complaints based on arguments about a Union’s duty of fair representation. Moreover, the applicant, in fact, had legal training.
[20] Ultimately, having considered all of the circumstances of the case, the Board held that no exceptional circumstance justified the 15-month delay from the withdrawal of the grievances to the filing of the complaint and the more than two-year delay since the Union had initially informed the applicant that it would withdraw his grievances. Because the Board found the delay excessive and not adequately explained, it exercised its discretion under s. 96 of the Act not to inquire into the s. 74 application.
[21] The Board went on to address the applicant’s arguments based on s. 15 of the Charter. The Board characterized those arguments as an attack on the rebuttable presumption of prejudice applied by the Board where a complaint has been made a year or more after the alleged contravention of the Act. It also viewed the arguments as a contention that s. 74 of the Act requires trade unions to arbitrate all grievances.
[22] The Board rejected the Charter arguments on the basis that no provision of law or exercise of the Board’s discretion made a distinction based on a ground enumerated in s. 15 or an analogous ground, and that no violation of Charter values was demonstrated. The Board further rejected the second argument as moot, given the applicant’s failure on the first argument.
STANDARD OF REVIEW
[23] The parties agree that the standard of review in respect of both the Board’s interim and its final decision dismissing the applicant’s s. 96 application for delay is the presumptive standard of reasonableness as discussed in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, at para. 23.
[24] The reasonableness standard assesses whether there is justification, transparency and intelligibility within the decision-making process and whether the decision falls within a range of possible, acceptable outcomes that are defensible in respect of the facts and the law: Vavilov, paras. 99-100.
[25] The reasonableness standard can be rebutted where a different standard has been explicitly prescribed by statute, or where the Legislature has provided for a statutory appeal mechanism and where the judicial review falls into one of three categories: constitutional questions, general questions of law of central importance to the legal system as a whole, and questions regarding the jurisdictional boundaries between two or more administrative bodies: Vavilov, at paras. 17, 53 and 69.
[26] The applicant submits that the Board’s decision concerning his Charter argument involves a constitutional issue requiring the standard of correctness. The responding parties disagree and submit that the issue before the Board was not a constitutional one and accordingly the presumptive standard of reasonableness is not rebutted.
[27] Where the issue being determined is whether a statutory provision contravenes the Charter, the standard of review is correctness. Where, however, the Charter is invoked as an aid to interpretation, the standard of review is reasonableness: Doré v. Barreau du Québec, 2012 SCC 12, [2012] 1 S.C.R. 395, at paras. 42, 57-58; Vavilov, at para. 57.
[28] There is no standard of review with respect to procedural fairness. Rather, the reviewing court must conduct an assessment of the particular situation having regard to the factors set out by the Supreme Court of Canada in Baker v. Canada, 1999 699 (SCC), [1999] 2 S.C.R. 817.
PROCEDURAL FAIRNESS
Was the applicant denied the full opportunity to present his case?
[29] Before this court, as a preliminary ground of review, the applicant complains that he was denied procedural fairness in the Board’s interim and final decisions in that he was denied the full opportunity to present his evidence and make submissions. In particular, the applicant argues that he was denied procedural fairness by being compelled by the Board in its interim decision to distill down his application to 20 single-spaced pages.
[30] We would not give effect to this ground.
[31] Public decision-makers who make administrative decisions that affect the rights, privileges or interests of an individual have a general duty of procedural fairness. That duty can be heightened when decision-makers make an administrative decision that can affect a person’s profession or employment: Baker, at para. 20.
[32] To determine whether a party before a tribunal has been accorded procedural fairness, a reviewing court must conduct an assessment of the procedures and safeguards required in a particular situation and determine whether the appropriate level of procedural fairness was accorded by the Board: Moreau-Bérubé v. New Brunswick (Judicial Council), 2002 SCC 11, [2002] 1 S.C.R. 249, at para. 74. Baker sets out five factors for consideration to determine the content of procedural fairness: the nature of the decision being made and the process followed in making it; the nature of the statutory scheme and the terms of the statute pursuant to which the body operates; the importance of the decision to the individual affected; the legitimate expectations of the person challenging the decision; and the choice of procedure selected by the administrative body: Baker, at paras. 23-27.
[33] By the terms of s. 99 of the Act, the Board has the discretion to not even hold a hearing with respect to duty of fair representation complaints under s. 74. Section 110(16) of the Act empowers the Board to “determine its own practice and procedure”, which need not even accord a right to call evidence at an oral hearing: Harrison v. Ontario Labour Relations Board, 2015 ONSC 3275, at para. 40. Rule 41.3 of the Board’s Rules of Procedure permits the Board to exercise discretion with respect to the scope of evidence permitted in matters proceeding under s. 99 of the Act, which governs s. 74 complaints, including by limiting the presentation of evidence or submissions, or by proceeding without a hearing.
[34] While the applicant felt that his original filing was well-organized and necessarily compendious, the Board found it to be “generally incomprehensible and difficult to follow,” and pointed out that such a document made it impossible for the Union “to discern the specific allegations against” it. Such a finding, in the applicant’s view, was “completely unfounded.”
[35] We disagree. The Board’s concerns were reasonable, given the nearly 1300 pages of application and exhibits that the applicant had filed. In fact, they were guided by the Board’s duty of procedural fairness to the Union to permit it to understand the allegations that it must answer, the factual basis for the allegations, and the remedies sought. The Board had the authority to set page limits that required the applicant to focus his arguments and render them more manageable for response and argument. In making its interim determination, the Board was balancing its duties to accord procedural fairness to all parties. The Board’s interim decision did not bar the applicant from applying for relief. It merely imposed on the applicant a duty to provide a more concise application. The applicant complied with the interim decision. Once that application was filed, the responding parties promptly filed responses.
[36] The applicant further complains that the page limitations emasculated his application and placed him “in the near-impossible position” of describing six years of evidence within the required page limits without sacrificing relevant material.
[37] We do not agree that the applicant suffered unfairness in that regard as a result of the interim decision. The applicant’s application ultimately did not proceed as a result of the Board’s decision not to inquire into it because of undue delay. Given that determination, the applicant cannot show any unfairness or prejudice that he suffered as a result of the page limits that were imposed: Kuehne + Nagel Ltd. v. Uniform, 2019 ONSC 6779, at para. 7.
[38] Nor do we consider that the applicant was denied the opportunity to present evidence and make submissions in respect of the Union’s request for summary dismissal of his application. In fact, the Board granted the applicant’s request for an extension of time to file his submissions to address both the delay issue and the Constitutional Question that he wished to raise, and expanded its initial 10-page limit to 20 pages in its decision of October 16, 2018.
Was the Board biased?
[39] The applicant also raises the issue of the bias of the Board.
[40] The applicant’s claim of bias carries on from comments in his October 13, 2018 letter in answer to the Board’s directive to him to provide submissions on the Union’s response to dismiss his application for delay. In that letter, the applicant asserted that the Board has a “mandate” to protect unions and employers from workers and that its members are biased as having made a living “serving” those groups and, in some cases, still being dependent upon them. He asserted that the Board’s members are appointed by the Employer in his case. He simply made these assertions without seeking any discernible relief, as part of his request for more time to respond on the issue of delay, which was granted to him. In its January 25, 2019 final decision, the Board makes no reference to these allegations, which the applicant apparently did not further raise or argue in his own submissions.
[41] At paragraph 88 of his factum, the applicant renews his allegation that the Board is institutionally biased and that the Vice-Chair who drafted the decision of the Board was biased as not being impartial. He has provided no submissions in his factum concerning bias. From this court on the review, he seeks as relief that the Board’s decisions be quashed, and the matter be remitted to the Board for a hearing on the merits.
[42] We reject this ground of review.
[43] Bias is a component of procedural fairness and concerns the right to have a decision by an unbiased decision-maker. The test in respect of an administrative decision is: “what would an informed person, viewing the matter realistically and practically – and having thought the matter through – conclude. Would he think that it is more likely than not that [the decision-maker], whether consciously or unconsciously, would not decide fairly?”: Committee for Justice and Liberty et al. v. Canada (National Energy Board) et al., 1976 2 (SCC), [1978] 1 S.C.R 369, at p. 394; Baker, at paras. 45-48.
[44] A party is generally not permitted to raise allegations of bias on judicial review when they have not been properly raised before the tribunal of whose decision review is sought: Alberta (Information and Privacy Commissioner) v. Alberta Teachers’ Association, 2011 SCC 61, [2011] 3 S.C.R. 654, at para. 23. We do not consider the issue to have been properly placed before the Board either in submissions before the member that was considering the delay argument or in any request for reconsideration.
[45] More importantly, based on the record before the court, we are in no position to assess whether there is any genuine basis behind these allegations of bias, or whether such an allegation was simply advanced by the applicant as leverage to get additional time to respond to the Union’s request to dismiss the application for delay. The applicant presented no evidence on this issue, and his argument on this review offered no additional support. As has been observed in our court, unsupported allegations of bias must be carefully controlled lest they become a tool for improperly seeking to overturn unfavourable decisions: Bart v. McMaster University, 2016 ONSC 5747 (Div. Ct.), at paras. 156-163.
[46] Further, in cases such as this, a presumption of impartiality applies to decision-makers on boards such as the OLRB, just as it would with respect to judicial decision-makers: Terceira v. Labourers International Union of North America, 2014 ONCA 839, 122 O.R. (3d) 521, at paras. 29-30. No evidence before us suggests any material pecuniary interest in this case by any members of the Board who dealt with this case that might ground even a reasonable apprehension of bias.
REASONABLENESS
[47] Privative clauses in the Act at ss. 114(1) and 116 make clear that the legislature intended reviewing courts to exercise a deferential standard of review in assessing decisions by the Board. The Judicial Review Procedure Act, R.S.O. 1990, c. J.1, under ss. 2 and 6 of which this review is conducted, does not impose a correctness or other standard of review. Jurisprudence has also afforded to decisions of labour relations boards a high level of judicial deference on matters over which they command jurisdiction: Labourers’ International Union of North America, Local 183 v. GDI Services (Canada) LP, 2020 ONSC 1018 (Div. Ct.), at paras. 27-28. The bar of deference is set particularly high where the review involves a decision to dismiss a matter on the basis of delay, which is a question of mixed fact and law: Colhoun v. Hydro One Networks Inc., 2014 ONSC 163 (Div. Ct.), at para. 8.
[48] At the hearing before the Board and on this review, the applicant’s submissions were blinkered by his untenable insistence that the Board should have considered the unredacted materials of his original filing in dealing with the delay issue. Accordingly, the applicant complains that the Board’s final decision was unreasonable in that it failed to consider “all the circumstances of the matter”, with his focus being on the alleged complexity of the facts in his application. As the issue before the Board was one of delay, however, we agree with the Board that the underlying facts of the applicant’s dispute with the Union and the Employer are a distraction that does not itself justify such a significant delay, particularly in light of the applicant’s ability to quickly produce a 20-page submission in accordance with the Board’s interim decision.
Specific complaints raised by the applicant
[49] The applicant complains that only a single paragraph of the final decision – para. 8 – considered the facts underlying the applicant’s s. 74 complaint.
[50] However, those facts were enough to identify the nature of the original claim against the applicant as involving allegations of harassment, discrimination, and workplace violence. In our view, the Board did not need to explore the circumstances further or get into the applicant’s defense to these allegations. This examination was sufficient for the Board to determine, at para. 22, that the circumstances of the applicant’s case related to an unexceptional disciplinary grievance. The applicant’s objection to the bona fides of the Employer’s allegations against him was not a relevant consideration on the delay analysis that the Board undertook.
[51] And indeed, the delay facts that the Board relied on in its final decision were virtually uncontested by the applicant. After the Union requested, in its response to the applicant’s redacted application, that the application be dismissed for delay, the applicant disputed very few facts regarding delay that the Union presented. Instead, he argued that it was the Union and Employer that had failed to deny the facts in the applicant’s own original compendious application, and should be deemed to have accepted them. The Board properly found this view by the applicant to be “without merit,” and that it would only have been relevant if the Board decided to inquire into the applicant’s application.
[52] The applicant also complains that the Board ignored the “law governing the matter.” Specifically, he complains that the Board did not conduct a prima facie review of the applicant’s claims concerning the Employer’s charges against him, nor his complaint against the Union, and assess them in the context of “labour arbitration jurisprudence and common law”. We disagree that this should have been the appropriate legal focus for the Board.
[53] The relevant law on the preliminary issue before the Board related only to the applicant’s delay in making his s. 96 application. On that score, the Board clearly set out its discretion in s. 96(4) of the Act to dismiss an application where it considers it appropriate to do so. It then went on to consider its own jurisprudence in defining the parameters of that discretion, including the issue of excessive and unexplained delay. The Board considered the need to examine each case on its own merits, including the nature of the claim, the reasons for the delay, and the potential prejudice flowing from excessive delay in making an application. It also set out its longstanding guidepost that delay of more than a year places an onus on an applicant to provide a satisfactory explanation for it, failing which an application will be dismissed: Mississauga (Corp. of the City of), [1982] O.L.R.B. Rep. March 420, at paras. 21-22; Chrysler Canada Ltd., [1997] O.L.R.D. No. 2605, at paras. 13-14. The Board’s reliance on that rebuttable presumption of prejudice after the 15-month delay in this case was reasonable.
[54] The applicant further complains about the Board’s assertion that he should have brought his s. 74 claim long before the Union withdrew his grievances on May 9, 2017. The Board’s finding on this point was supported by the fact that the applicant had known about the intention to withdraw much earlier, and the Union had urged the applicant for years to apply to the Board for a ruling that would bind the Union in its handling of the grievances. In the applicant’s view, he was under no obligation to apply to the Board with a complaint against the Union until the Union had withdrawn his grievances as it had threatened. Until the withdrawal, the Union had a duty to act fairly for the applicant, or seek a ruling itself about how to conduct the grievances: see, e.g., Warren v. Ontario Labour Relations Board, 2015 ONSC 7273 (Div. Ct.), at paras. 57-59.
[55] We disagree with the applicant’s construction of this issue. When the final decision is read as a whole, it is clear that the decision is based on the 15-month delay between when the Union withdrew the grievances and when the applicant commenced his s. 96 application. The Board does refer, at paras. 29 and 53, to the applicant’s earlier disagreements with the Union about its strategy in representing him and the Union’s proposal that he should complain to the Board long before the withdrawal of the grievances. However, in our view, the Board’s point in discussing the details of the dispute between the applicant and the Union was twofold: first, to assist it in evaluating the applicant’s assertion that compiling the details of the lengthy history of the proceedings accounted for the delay; and second, to justify the Board’s view that the applicant had long been on notice of both the Union’s intention to withdraw his grievances and its intention to complain about his delay. As the Board stated, at para. 27: “[e]ven if it might have been premature to file his complaint prior to the formal withdrawal of his Grievances, there was nothing to prevent the applicant from preparing to do so promptly thereafter.” This determination by the Board was reasonable and did not punish the applicant for not bringing his application before the withdrawal of his grievances.
[56] The applicant further argues that any presumption of prejudice suffered by either the Employer or the Union in the circumstances of his application are rebutted because: the Union claimed to have no case to bring to arbitration in any event given its withdrawal of the grievances; the delay was not shown to have had any impact on the parties; the Employer had no live witnesses to present at arbitration as its case relied on documents and not witnesses; and the respondents were in no hurry themselves to move the case forward.
[57] We disagree. While the applicant was not required to bring his application until the Union had withdrawn his grievances, his choice not to complain earlier meant that the Union would have had to defend itself against misconduct alleged by the applicant that occurred long before the Union withdrew the grievances. The original complaints about the applicant that led to his grievances and the related disciplinary steps dated back to 2012 to 2014. The applicant’s complaint against the Union did not simply involve the applicant’s grievances, and significant witness evidence could be anticipated and required to explain how the Union handled those grievances. As the Board reasonably put it, at para. 30, after noting that the applicant was aware of his duty to make his application in a timely fashion:
The other parties are further prejudiced by the delay given the normal fading of memories. In the absence of a compelling reason for the delay, the Union should not now be required to defend against allegation of alleged misconduct dating back year(s) and neither the Union nor the Employer should be required to face the prospect of having to litigate Grievances involving significant factual disputes year(s) after the fact.
[58] In our view, none of the applicant’s specific complaints detract from the reasonableness of the Board’s final decision. The Board’s final decision dismissing the applicant’s s. 96 application for delay displayed the Vavilov hallmarks of reasonableness: transparency, intelligibility, and justification. The decision is internally coherent and follows a rational chain of analysis that discloses no logical fallacy. Its conclusion is justified in terms of the facts and law before the Board.
THE CONSTITUTIONAL QUESTION
[59] The concluding portion of the final decision relates to the applicant’s Constitutional Question, which focuses on s. 15 of the Canadian Charter of Rights and Freedoms. Although the Board, in its factum, argued that the Board’s consideration of a Charter issue should also be subject to a reasonableness standard, we do not need to decide that issue, as we are of the view that the Board was correct in rejecting the applicant’s s. 15 Charter argument.
[60] The applicant’s overarching argument concerning s. 15 of the Charter is as follows:
Specifically, that no governmental party – not the courts, not the Legislature, and not an administrative tribunal – may deprive workers governed by collective agreements of equal benefit and protection of the law, which includes access to the courts or a suitable alternative forum for the redress of civil wrongs.
[61] The applicant subdivides his argument into claims asserting that 1) Section 15 of the Charter mandates compulsory arbitration of disputes involving the substantive rights of employees governed by collective agreements; and 2) Section 15 is violated by the Board’s longstanding practice of imposing a rebuttable presumption of prejudice where the application is filed more than one year after the act complained of. Specifically, the applicant asserts that the presumption of prejudice violates s. 15 because it discriminates against workers in favour of a harmonious union/employer relationship; restricts access to the only dispute resolution forum available to unionized workers (as opposed to non-unionized workers); and denies workers who cannot afford legal representation access to justice, thereby discriminating on the basis of economic capacity.
[62] We decline to consider the first of these arguments. Just as was found by the Board at paras. 41 and 52 of its final decision, we are of the view that this argument relates to the merits of the complaint against the Union, and that it is therefore not properly before us for review, as it was not reached by the Board once the applicant’s s. 96 application was dismissed for delay.
[63] As to the second argument, the Board determined that the applicant had not identified any applicable provision of law or exercise of the Board’s discretion that made a distinction on the basis of any enumerated or analogous grounds under s. 15 of the Charter. The statuses of being a “worker,” a “unionized worker,” or “an individual unable to afford legal representation” (i.e., economic incapacity) are neither enumerated nor analogous grounds: final decision at paras. 45-50. In addition, the Board noted, at para. 49, that the rebuttable presumption of prejudice after a year of delay in making a complaint applies to all parties that come before the Board – unions, employers, or individual workers – in order to promote “the expeditious resolution of workplace disputes”: s. 2(7) of the Act.
[64] In our view, those findings are correct and are a complete answer to the applicant’s s. 15 complaint.
[65] Section 15(1) of the Charter provides: “Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability.”
[66] In the administrative law framework, Charter issues such as these are analyzed in two steps. The first step requires a determination of whether a particular administrative decision engages the Charter by limiting a Charter protection. If so, the question for determination then moves onto the second step: “whether, in assessing the impact of the relevant Charter protection and given the nature of the decision and the statutory and factual contexts, the decision reflects a proportionate balancing of the Charter protections at play”: Doré, at para. 57; Loyola High School v. Québec (Attorney General), 2015 SCC 12, [2015] 1 S.C.R. 613, at para. 39. In our view, a realistic inquiry in this case does not extend to the second step.
[67] At the first step of the analysis, s. 15 is engaged only if an impugned government action makes a distinction on an enumerated or analogous ground that imposes burdens or denies benefits in a manner that has the effect of reinforcing, perpetuating, or exacerbating disadvantage: Kahkewistahaw First Nation v. Taypotat, 2015 SCC 30, [2015] 2 S.C.R. 548, at paras. 19-20. An “analogous ground” identifies suspect decision-making which often leads to discrimination and denial of substantial equality. Analogous grounds involve characteristics that are either actually immutable, or are constructively immutable, or involve decisions adversely affecting discrete and insular minority groups, or groups that have been historically discriminated against: Corbiere v. Canada (Minister of Indian and Northern Affairs), 1999 687 (SCC), [1999] 2 S.C.R. 203, at paras. 8, 13.
[68] None of the characteristics focused on by the applicant are immutable or constructively immutable or otherwise constitute analogous grounds:
a. The characteristic of being a “worker” is not an enumerated or analogous ground: Reference Re Workers’ Compensation Act, 1983 (Nfld.), 1989 86 (SCC), [1989] 1 S.C.R. 922, at p. 924;
b. The characteristic of being a “unionized worker” and therefore being limited to a specific forum to make a grievance is not an enumerated or analogous ground: Pieters v. Canada, 2004 FC 26, at para. 26;
c. Being economically disadvantaged or poor, and unable to afford counsel, is not, in and of itself, an analogous ground: R. v. Banks, 2007 ONCA 19, 84 O.R. (3d) 1, at para. 104. As the Board correctly observed, at para. 23, many unrepresented persons who do not possess the applicant’s legal training “routinely navigate” the s. 74 application process.
[69] However, even presuming that one of these classes was an analogous ground, the applicant has adduced no evidence to show that the procedural step of imposing a rebuttable presumption of prejudice after a year delay in making a complaint reinforces, perpetuates, or exacerbates the disadvantage to that group. The burden is the applicant’s, and he has not met it.
[70] Substantive rights are often subordinated to procedural requirements in a system of justice, and a substantive right does not trump every other concern in the justice system: Kazemi Estate v. Islamic Republic of Iran, 2014 SCC 62, [2014] 3 S.C.R. 176, at paras. 160-162. All parties who seek redress before the Board – employers, unions, and workers – are subject to the same presumption with respect to delay, and non-unionized workers must likewise comply with limitations periods set out in other fora. One fundamental purpose of the Act is to promote “the expeditious resolution of workplace disputes” in pursuance of which the Chair of the Board may make rules governing practice and procedure: Act, ss. 2(7), 110(7).
[71] In the circumstances of this case, where the applicant agreed with the bulk of the factual submissions of the Union, it was not incorrect for the Board to reject the applicant’s assertions that he had been unfairly discriminated against, to find that he had had every reasonable opportunity to offer a sufficient explanation for his delay in making his s. 96 application, and to conclude, at para. 38, that “the applicant, for his own reasons, chose not to prioritize filing the present application until August 2018.”
[72] The Board’s final decision was reasonable, and its rejection of the applicant’s Constitutional Question was correct.
CONCLUSION
[73] For these reasons, the application for judicial review is dismissed.
[74] The Board has not requested costs. The Union and Employer have each requested $5,000 in costs. In view of their success, they are entitled to costs, and the sum of $ 5,000 is reasonable and just in the circumstances. The applicant will pay the Union and the Employer within 60 days costs of $5,000 each, inclusive of fees, disbursements, and applicable taxes.
L.A. Pattillo J.
I.S. Bloom J.
A.D. Kurke J.
Released: April 29, 2021
CITATION: Speck v. OLRB, 2021 ONSC 3176
DIVISIONAL COURT FILE NO.: 371/19
DATE: 20210429
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
PATTILLO, BLOOM AND KURKE JJ.
BETWEEN:
Todd Elliott Speck
Applicant
- and -
Ontario Labour Relations Board, Association of Management, Administrative and Professional Crown Employees of Ontario, and Ontario (Treasury Board Secretariat)
Respondents
REASONS FOR JUDGMENT
BY THE COURT
Released: April 29, 2021