CITATION: Belyavsky v. Walsh, 2022 ONSC 3135

DIVISIONAL COURT FILE NO.: 071/22

DATE: 20220526

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: YEFIM BELYAVSKY, Appellant/Moving Party

AND:

GREGORY M. WALSH, Respondent

BEFORE: Nishikawa J.

COUNSEL: Yefim Belyavsky, in person

Jason A. Schmidt, for the Respondent

HEARD at Toronto: April 22, 2022

ENDORSEMENT

Overview and Factual Background

[1] The Moving Party, Yefim Belyavsky, brings a motion for an extension of time to file a notice of application for judicial review of a decision of an employment standards officer (“ESO”) of the Ministry of Labour (“MOL”) dated March 18, 2021 (the “Decision”). Mr. Belyavsky first attempted to file the notice of application for judicial review on February 3, 2022, or over ten months after the decision was rendered.

[2] Mr. Belyavsky worked as an apprentice/associate advisor for the Respondent, Gregory Walsh, from October 1 to December 31, 2020. After his termination, on January 11, 2021, Mr. Belyavsky filed a complaint with the MOL alleging wrongdoing by Mr. Walsh, including unpaid wages, vacation pay, and termination pay, among other things.

[3] In the Decision, the MOL found that Mr. Walsh: (i) did not provide Mr. Belyavsky with a copy of a MOL poster; (ii) did not provide Mr. Belyavsky with the proper wage statement; and (iii) breached s. 74(1)(a)(iii) of the Employment Standards Act, 2000, S.O. 2000, c. 41 (the “ESA”). Mr. Belyavsky was awarded $100.00 in damages for pain and suffering. In the Decision, the MOL found that Mr. Belyavsky was terminated during the probationary period and dismissed the remainder of the complaint.

[4] Mr. Belyavsky commenced an appeal of the decision to the Ontario Labour Relations Board (“OLRB”) in March 2021. In April 2021, he withdrew his appeal.

[5] Notwithstanding s. 97 of the ESA, which prohibits a former employee from both proceeding with a complaint to the MOL and an action for wrongful dismissal in the Superior Court, in August 2021, Mr. Belyavsky brought a civil proceeding for wrongful dismissal against Mr. Walsh and Sun Life Financial Inc. (“Sun Life”) (Court File No. CV-21-663467, the “Civil Action”). Mr. Belyavsky filed an amended statement of claim on December 15, 2021. Mr. Belyavsky alleges that the true employer was Sun Life, but has not added Sun Life as a party to this application.

[6] Mr. Belyavsky filed his notice of motion to extend time and supporting affidavit in February 2022, and an additional affidavit in March 2022. After cross-examination on his affidavits on March 18, 2022, on March 24, 2022, Mr. Belyavsky filed a Fresh as Amended Notice of Motion (the “Amended Notice of Motion”). The Amended Notice of Motion refers to a “Charter violation of natural justice endured by the applicant in an Employment Standards officer decision…” and also raises issues of procedural fairness.

Analysis

The Applicable Principles

[7] Subsection 5(1) of the Judicial Review Procedures Act requires that an application for judicial review be made within 30 days of the impugned decision. Subsection 5(2) allows for an extension of time to bring an application for judicial review if the Court is “satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship will result to any person affected by reason of the delay.”

[8] An applicant is under an obligation to commence and perfect their judicial review application in a timely manner. Judicial review is an equitable and discretionary remedy that can be denied on the basis of excessive delay, regardless of the merits of the case (Ransom v. Ontario, 2010 ONSC 3156 at para. 4; affirmed 2011 ONSC 5594 (Div. Ct.).

[9] In exercising its discretion to dismiss an application for judicial review, the court will consider the following factors:

(a) The length of delay;

(b) The reasonableness of any explanation offered for the delay; and

(c) Any prejudice suffered by the respondent as a result of that delay.

Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014 (Div. Ct.), at para. 15.

Length of the Delay

[10] In this case, the delay of over ten months is lengthy, and well in excess of the statutory deadline of 30 days. In considering the length of delay, it is worth nothing that Mr. Belyavsky worked for Mr. Walsh for a period of less than three months, which ended in December 2020.

Reasonableness of the Explanation

[11] In my view, Mr. Belyavsky has not provided a reasonable explanation for the delay in bringing his application for judicial review.

[12] Mr. Belyavsky’s material and submissions focus on fresh evidence that he discovered after Mr. Walsh served an affidavit of documents in the Civil Action as the main reason for the delay. Mr. Belyavsky relies on details that he discovered from the documents, such as the fact that he was not copied on correspondence between Mr. Walsh and the ESO and the fact that Mr. Walsh did not have a registered business name or number. However, Mr. Belyavsky does not explain how the discovery of this information affected his ability to determine whether to pursue an application for judicial review. The existence of correspondence or communications between the ESA officer and Mr. Walsh, in and of itself, is not a sufficient explanation.

[13] Moreover, in his affidavit, Mr. Belyavsky states of the Decision that “the findings are so patently impossible that they are absurd and any reasonable observer would assume a reasonable apprehension of bias or gross incompetency.” It would have been apparent to Mr. Belyavsky as soon as he reviewed the Decision that he disagreed with it. In addition, Mr. Belyavsky argues that Mr. Walsh made false statements to the ESO. The Decision details the information that Mr. Walsh provided, and Mr. Belyavsky would have known then whether he believed the statements to be false.

[14] In fact, Mr. Belyavsky sought to review the Decision to the OLRB, as provided in s. 116 of the ESA, within the 30-day timeframe, demonstrating that he was aware that steps were available to challenge the Decision. Mr. Walsh states that he withdrew the review on the advice of counsel. Mr. Belyavsky also attributes the delay in commencing the application for judicial review to information that he received from counsel that he had engaged in connection with the Civil Action. While he has terminated the relationship with his former counsel, he has not brought a claim against them.

[15] In addition, in his affidavit, Mr. Belyavsky attributes the delay to “COVID and many other factors[.]” He mentions being put in “a state of PTSD” but does not relate this to the delay. On cross-examination, Mr. Belyavsky was asked multiple times whether a medical condition prevented him from bringing a judicial review application. Mr. Belyavsky was evasive, saying only “there might be.” After making a reference to depression and anxiety, Mr. Belyavsky stated, “so, I never stated that it did prevent me, I’m just saying that it could have.” When asked to confirm that no medical condition prevented him from commencing the application, Mr. Belyavsky, despite being self-represented, responded, “so, this is something that I’m going to need to discuss with my counsel before giving evidence.” Based on the evidence on the motion, I cannot find that the delay was attributable to any medical condition.

[16] The fact that Mr. Belyavsky is self-represented is also not a reasonable explanation for the delay. While some allowance can be made to accommodate the known difficulties that self-represented people encounter, that allowance cannot be made at the expense of the proper functioning of the administration of justice: Taylor v. Pivotal Integrated HR Solutions, 2020 ONSC 6108, at para. 39.

[17] Based on the foregoing, I am not satisfied that there is a reasonable explanation for the delay.

Prejudice Resulting From the Delay

[18] Mr. Walsh submits that delay entails inherent prejudice in the labour and employment context where workplace issues must be resolved promptly to avoid perpetuating disharmony: Ransom, at paras. 16-18. In my view, this is somewhat attenuated where there is no ongoing employment relationship. Mr. Walsh is prejudiced, however, by having to respond to the delayed application for judicial review, which includes allegations of misconduct and false statements, while also defending against the Civil Action.

Apparent Grounds for Relief

[19] As stated above, in his notice of application for judicial review, Mr. Belyavsky alleges a Charter violation and a denial of procedural fairness. However, it is not clear from the notice of application what relief Mr. Belyavsky seeks. Paragraph 19 of the Amended Notice of Motion states: “By quashing the ESA decision directly, Belyavsky is permitted to file an ESA claim against Sun life, the rightful employer, still within his limitation period, but intends to keep only the superior court claim where Sun Life is named as a defendant active.”

[20] For the following reasons, I am not satisfied that there are apparent grounds for relief.

[21] First, it is not apparent to me that the process leading to the Decision was lacking in procedural fairness, simply because the ESO did not disclose everything Mr. Walsh said and give Mr. Belyavsky the opportunity to respond. Both parties had multiple communications with the ESO. The ESO is not required to keep going back and forth so that each party may answer the other party’s allegations. In his notice of application for judicial review, Mr. Belyavsky confuses the process before the ESO with a hearing before the OLRB, and alleges that the OLRB’s procedural rules were not followed. Moreover, Mr. Belyavsky’s position appears to be that something akin to disclosure in a criminal proceeding is required. An investigation under the ESA is not a criminal proceeding, and the same legal rights and interests are not at issue.

[22] Second, Mr. Belyavsky has not identified which specific Charter right he alleges was breached as a result of the process before the ESO. On cross-examination, Mr. Belyavsky refused to state which Charter right he was relying on.

[23] Mr. Belyavsky’s argument is flawed for another reason. The ESA provides for a right of review to the OLRB. Subsections 116(6) and (8) require that the OLRB hold a hearing and give the parties a full opportunity to present their evidence and make their submissions. Under s. 119(1) of the ESA, the OLRB may exercise the powers conferred on an ESO and may substitute its findings for those of the ESO who issued the order or refused to issue the order. In other words, had Mr. Belyavsky pursued a review before the OLRB, he would have been entitled to a de novo hearing, which could have addressed any procedural or other deficiencies before the ESO. Mr. Belyavsky cannot complain about a lack of procedural fairness before the ESO when he failed to pursue the means available to him to challenge the Decision and the process through which it was reached.

Conclusion on Delay

[24] In conclusion I find that the delay in this case was excessive; that there is no reasonable explanation for the delay and that Mr. Walsh will suffer prejudice if the application is allowed to proceed. I am not satisfied that there are apparent grounds for relief and that no substantial prejudice or hardship to the respondent will result.

Conclusion

[25] The motion for an extension of time to file the notice of application for judicial review is dismissed.

[26] As the successful party, Mr. Walsh is entitled to reasonable costs of the motion. After the hearing, Mr. Walsh’s counsel submitted a bill of costs in the amount of $17,285.05 on a full indemnity basis, including disbursements and HST. I see no basis for an award of full or substantial indemnity costs. I fix reasonable costs of the motion on a partial indemnity basis at $7,000.00.

[27] Mr. Belyavsky shall pay costs of the motion, on a partial indemnity basis, which are fixed at $7,000.00.

Nishikawa J.

Date: May 26, 2022