Court File and Parties

CITATION: Gemme v. United Steelworkers Local 9350, 2021 ONSC 7787

DIVISIONAL COURT FILE NO.: 332/20

DATE: 20211126

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: PAUL Gemme, Applicant

AND:

United steelworkers local 9350, Respondent

and:

timmins & district hospitAL, Intervenor

BEFORE: ACJSC McWatt, Coats and Favreau JJ.

COUNSEL: Matthew Langer, for the Applicant Daniel Daigle, for the Respondent, United Steelworkers Local 9350 Aaron Hart and Andrea Bowker, for the Ontario Labour Relations Board No one appearing for the Intervenor, Timmins & District Hospital

HEARD at Toronto (by videoconference): November 25, 2021

ENDORSEMENT

Favreau J.

[1] Paul Gemme seeks to judicially review a decision and reconsideration decision of the Ontario Labour Relations Board dismissing his application to the Board alleging that the United Steelworkers Local 9350 (the “Union”) violated its duty of fair representation. The Board dismissed the application on the basis of delay.

[2] For the reasons that follow, the application for judicial review is dismissed.

[3] At the relevant time, Mr. Gemme worked for the Timmins & District Hospital as a dietary aide. The Union is the bargaining agent for the Hospital’s employees. In July 2016, Mr. Gemme filed grievances with the Union, claiming that he had been subjected to harassment and a hazardous substance. After conducting an investigation, on April 5, 2017, the Union advised Mr. Gemme that it would not refer the grievance to arbitration. At the time, Mr. Gemme inquired about an internal appeal process. While the Union informed him about the process, Mr. Gemme did not pursue an appeal. The Union withdrew the grievances in June 2017.

[4] In October 2017, Mr. Gemme filed a complaint against the Hospital at the Ontario Human Rights Tribunal (“HRTO”). The Union had intervenor status in the proceedings before the HRTO. In December 2017, Mr. Gemme also filed a civil action in the Superior Court against the director of human resources at the Hospital. The Union was not a party to the action. In February 2019, the HRTO dismissed the complaint because of the parallel proceedings in the Superior Court. In December 2019, Tremblay J. dismissed the civil action on the basis that the Court does not have jurisdiction over the matter.

[5] In March 2020, approximately thirty-two months after the Union withdrew the grievances, Mr. Gemme brought an application to the Board under section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, alleging that the Union violated its duty of fair representation. The Union raised a number of preliminary issues, including delay. The Board received written submissions from Mr. Gemme and the Union, and dismissed the application on the basis of delay in a decision dated July 10, 2020.

[6] In its decision, the Board referred to Rule 5 of its Rules of Procedure which provides that a party alleging “improper conduct … must do so promptly”. Relying on its frequently cited decision in City of Mississauga, [1982] OLRB Rep. Mar. 420, the Board said that “delay should be measured in months, rather than years, and that prejudice is presumed after one year”. The Board also stated that the factors to be considered in deciding whether to dismiss an application for delay include the length of the delay, the reason for the delay, prejudice arising from the delay and the nature of the remedy claimed.

[7] Based on these principles, the Board held that the delay in this case was “extreme” and stated that Mr. Gemme would have to demonstrate a “compelling reason to permit the application to proceed”. The Board rejected Mr. Gemme’s arguments that his decision to litigate in other forums was a good explanation for the delay. In doing so, the Board referred to its decision in Jeffery Desmond v. Unifor Local 27, and stated that “the decision to litigate in another forum is not a sufficient explanation to alleviate against the requirement to file an application in a timely manner”. The Board went on to hold that the circumstances in this case were even more compelling than in the Jeffery Desmond case given the extensive length of the delay and the fact that Mr. Gemme did not give the Union notice that he intended to pursue the duty or fair representation application. Ultimately, the Board found that these circumstances would cause prejudice to the Union “through fading memories and deterioration of evidence which are necessary to mount a full defense to the allegations”.

[8] On July 2020, Mr. Gemme filed a request that the Board reconsider its decision. In part, the reconsideration request was based on text messages Mr. Gemme exchanged with one of the Union’s former employees. Mr. Gemme argued that the text messages demonstrated that the Union would have the ability to respond to the application through the former employee’s testimony and the Union’s records. In a decision released on August 4, 2020, the Board rejected the request for reconsideration. In doing so, the Board did not accept Mr. Gemme’s proposed new evidence, finding that it did not justify a reconsideration. The Board found that Mr. Gemme had not explained why he did not previously provide the evidence to the Board given that prejudice is a relevant consideration to the issue of delay. In addition, the Board found that, in any event, the text message exchange was “less than explicit or specific”.

[9] In support of his application for judicial review, Mr. Gemme argues that the Board’s initial decision and reconsideration decision are unreasonable because the Board failed to sufficiently consider his explanations for the delay and because the text messages demonstrate that the Union will suffer no prejudice if the matter is allowed to go forward.

[10] The standard of review that applies to the Board’s decisions is reasonableness. In accordance with the Supreme Court of Canada’s decision in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65, para. 99, a decision is reasonable if it is justified, intelligible and transparent, having regard to the relevant factual and legal constraints. In Speck v. OLRB, 2021 ONSC 3176, para. 28, this Court stated that 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…”

[11] The Board’s decisions in this case have all the hallmarks of a reasonable decision. The issue before the Board involved a matter of discretion, namely whether Mr. Gemme should be allowed to proceed with his application despite his extensive delay. Relying on its own jurisprudence, in the initial decision, the Board found that Mr. Gemme’s choice to pursue other remedies was not a sufficient explanation. The Board also found that the excessive delay would cause prejudice to the Union, especially since the Union had no notice that Mr. Gemme intended to pursue his grievance if the HRTO and civil proceedings did not succeed. These conclusions were reasonable and fully supported by the Board’s own jurisprudence and the circumstances of the case.

[12] Relying on this Court’s decision in Warren v. Ontario Labour Relations Board, 2015 ONSC 7273, Mr. Gemme argues that the decision was unreasonable because the Board failed to consider that, from Mr. Gemme’s perspective, at the time the Union withdrew the grievances, he had not closed the door to pursuing an application against the Union. This argument is simply not supported by the exchange of emails between the parties at the time the Union advised Mr. Gemme that it did not intend to pursue the grievances. In any event, there is no support for this argument in Warren. In that case, the Divisional Court based its decision on a finding that the employer had not made clear that it was denying a claim for severance pay; the Court found that, in those circumstances, it was not reasonable for the Board to dismiss the application for severance pay on the basis of delay. In other words, the relevant consideration is not Mr. Gemme’s intention at the time the Union advised him that it would not bring the grievances forward but, rather, whether the Union made its intention not to pursue the grievances clear. The Board found that the Union’s intention was clear as of June 2017. The communications between the Union and Mr. Gemme at the relevant time fully support this conclusion.

[13] Mr. Gemme also argues that the Board failed to consider his argument that the delay was caused by his previous lawyer’s negligence in pursuing the HRTO complaint and civil claim rather than an application to the Board. While the Board did not address this issue in its decisions, in my view, this does not make the decisions unreasonable. As held in Vavilov, para. 128, an administrative tribunal does not have to address all arguments made by the parties. In this case, the issue of previous counsel’s competence was only briefly touched on in one paragraph of Mr. Gemme’s submissions to the Board and was clearly not central to his argument that the application should not be dismissed for delay. In any event, the Board’s jurisprudence appears to be that counsel errors do not serve as a valid explanation for delay: Walker v United Food & Commercial Workers Canada, Local 175, at para. 10.

[14] Mr. Gemme argues that the text messages with the Union’s former employee demonstrate that there would be no prejudice to the Union if he were allowed to proceed and that the reconsideration decision is therefore unreasonable. However, in its reconsideration decision, the Board reasonably concluded that Mr. Gemme did not provide an explanation for not putting this evidence forward as part of his original submissions on the issue of delay. In addition, the Board addressed the text messages themselves and found that they were not “explicit or specific”. This is a factual finding. As held in Vavilov, a reviewing court will only interfere with factual findings in exceptional circumstances. There are no such circumstances here. At most, the text messages suggest that one former Union employee has a general recollection of the matter and that, while she has no records, the Union may still have records. This does not constitute compelling evidence that the Union would suffer no prejudice if the matter is allowed to proceed. In any event, prejudice was not the only reason the Board dismissed the application for delay. The Board was also concerned with the “extreme” delay and Mr. Gemme’s failure to provide an adequate explanation for his delay.

[15] The Boards’ decisions were reasonable. They are intelligible, well-reasoned and fully supported by the law and the record before the Board.

[16] Accordingly, the application for judicial review is dismissed.

[17] As agreed between the parties, Mr. Gemme is to pay the Union costs in the amount of $5,000. Costs are payable within 30 days.

Favreau J.

I agree _______________________________

ACJSC McWatt J.

I agree _______________________________

Coats J.

Date: November 26, 2021