CITATION: Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563
DIVISIONAL COURT FILE NO.: 079/22
DATE: 20220805
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
LAKSAMAN FERNANDO
Mr Mihundukulasuriya, self-represented
MIHUNDUKULASURIYA
Applicant
– and –
ARAMARK FOOD SERVICES LTD.,
ONTARIO LABOUR RELATIONS
BOARD and UNION UNITEHERE
LOCAL 75 TORONTO
Respondents
In Chambers, In Writing
REASONS FOR DECISION
D.L. Corbett J.
[1] The applicant seeks judicial review of a decision of the Labour Relations Board made in 2015. The deadline to initiate such a review was six months at the time of the impugned decision.
[2] The court directed the Registrar to issue a notice pursuant to R.2.1 that the court was considering dismissing the application as frivolous, vexatious and an abuse of process, on the following basis:
… the decision of the Labour Board was made on May 29, 2015. The time to seek judicial review from this decision is long past and the delay is so inordinate that it appears that a motion for an extension is doomed to failure and would put the responding party and the administration of justice to needless expense.
[3] The applicant responded by addressing the merits of his proposed application. The court then issued additional directions as follows:
The applicant has responded to the R.2.1 notice with various documents related to the underlying proceeding at the Labour Board. The R.2.1 notice was given because the application for judicial review is so clearly beyond the reasonable time to appeal or for an extension in which to appeal.
The crucial issue the applicant needs to address is this: why has he delayed so long to bring this appeal?
The court will give the applicant another opportunity to respond to this question. His response should only address the delay issue.
[4] The applicant responded to the delay issue as follows:
The main issue for the delay to apply for the Judicial review of this file is my Disability. I am a PTSD patient since 2013 suffering from various mental disorders according to the health professional's medical DSM diagnosis reports. I sent Divisional court few reports in my earlier mail and I will send few now as well. I am living with many barriers everyday due to my disability. The biggest problem is my correct memory since Dec.2013. But after 8 years of my all kind of medication and herbal treatments my memory is back and got to remember this Labour board hearing decision and decided to send and judicial review application.
How I damaged my memory due to my mental disorders which my employer and my union gave me at work during my 8 years of work period is a psychiatric matter and how come a human brain remember things and not remember things time to time also a psychiatric issue, I think. The work place safety insurance appeals tribunal explains about my mental disorders in their psychiatric manual. I will attach here for the Divisional court consideration together with my health professional's medical reports. I can Convince and prove my disability to divisional court through submitting my medication chart and my medical reports from my health professionals since 2013 up to now
[5] The applicant attached the following documents to his email:
(i) Medical record from Dr Chan dated September 23, 2014, assessing the applicant as suffering from “depression” and as reporting symptoms including “Occasional panic attack, forgetful, poor concentration. Poor insight.” The plan for treatment is noted as “individual psychotherapy”.
(ii) Medical record from Dr. Chan dated September 26, 2015, assessing the applicant as suffering from post-traumatic stress disorder “due to work “(employer’s verbal and physical abuse)””. Dr Chan states that the applicant was under psychological treatment from Dr. Chow.
(iii) Further medical record from Dr Chan dated December 9, 2015, identifying the following limitations in participating in activities of daily living: ability to concentrate and energy/stamina. With symptoms including: depression, anxiety, poor concentration, insomnia, forgetful, withdrawn, phobia, PTSD.
(iv) Letter from Dr Manike Herath, a doctor in Sri Lanka, dated September 27, 2017, who advised that the applicant reported the following symptoms: physical unfitness, sleeplessness, loss of memory, fear and depressed mental condition. Dr Siriwardana prescribed “continue Ayurvedic Treatment” including various oral medications.
(v) Letter from Dr M. Vakilha dated November 24, 2020 advising that the applicant “is suffering from depression since 2013, causing intermediate short-term memory loss over the past 7 years.”
(vi) Pharmaceutical records documenting the applicant’s prescribed medications.
[6] On the basis of these materials, for the purposes of considering the issues under R.2.1, I accept the following facts:
(a) The applicant has reported symptoms consistent with PTSD, including poor concentration, forgetfulness to the point of “intermediate short-term memory loss”. The impact of these symptoms on the applicant’s ability to commence and pursue an application for judicial review are not addressed in the medical documentation, but could be the subject of further evidence, cross-examinations, and the other steps that may be undertaken on a contested motion for an extension. I approach the balance of the issues on this application taking the most favourable reasonable view of these issues from the perspective of the applicant.
(b) The practical effect of the applicant’s condition may be viewed by examining the applicant’s litigation history. It discloses that the applicant has been very active as a self-represented litigant, and has been able to pursue litigation throughout the period of his disability, so long as he has been accorded reasonable accommodations such as additional time to prepare his materials.
(c) The gravamen of the applicant’s allegations is not that his disability prevented him from moving forward with his application in a timely manner, but rather that, over time, he has remembered things dating back to the time of his employment with Aramark, and that these recollections provide additional bases for his underlying claims.
Proceedings Brought by the Applicant
(a) Labour Board Proceedings
[7] The applicant was employed as a food services employee by Aramark between September 2007 and February 2015. The applicant learned that his position had been reclassified from “cook” to “pizza maker” or “cook helper” to which he took objection. He pursued a grievance through the auspices of his union, UNITE HERE Local 75. The applicant effectively abandoned his grievance after objecting to the manner in which it was being pursued by his union. He then brought a claim under the Employment Standards Act, which was dismissed by an ESA Officer. He then brought proceedings before the Labour Relations Board (a) against his union for breach of the duty of fair representation; and (b) appealing the decision of the ESA Officer. Both applications were dismissed by the Labour Board in 2015: 2015 32246 (ON LRB). It is these decisions which the applicant seeks to have reviewed in this court in these proceedings.
(b) WSIB Proceedings
[8] The applicant also made a claim for WSIAT benefits which was denied in a decision letter dated October 27, 2014. That decision was reconsidered and was unchanged in the result on March 16, 2016. An Appeals Resolution Officer denied an appeal from the decision on August 24, 2016. The applicant then appealed to the WSIAT. The appeal was heard, but before the appeal decision was rendered the Act was amended in respect to claims for damages caused by mental stress. The case was returned for a fresh hearing pursuant to the amended provisions. The claims were again denied in a decision of an Appeals Resolution Officer dated October 1, 2019, leading to an appeal before the WSIAT heard May 21, 2021. By decision of WSIAT dated September 17, 2021, the applicant’s appeal was denied: 2021 ONWSIAT 1488. The facts giving rise to the WSIB claims and the facts giving rise to the claims before the Labour Board are the same: conduct by Aramark and its employees was alleged to have been wrongful and caused psychological harm and damages to the applicant.
[9] The applicant has brought an application for judicial review in this court of the decision of the WSIAT, and the hearing of that application is scheduled before a panel of the Divisional Court on November 16, 2022.
(c) Human Rights Tribunal Proceedings
[10] The applicant commenced three separate proceedings against Aramark at the Human Rights Tribunal:
(a) for discrimination in reclassifying his employment (2014-17277-I);
(b) for harassment and discrimination during the course of his employment (2015-20930-I); and
(c) for discrimination in terminating his employment (2015-22279-I).
On August 25, 2016, claims (b) and (c) were deferred until disposition of claim (a).
[11] Claim (a) was dismissed on October 25, 2016 (2016 HRTO 1388), and reconsideration of that decision was dismissed on April 28, 2017 (2017 HRTO 473). The applicant did not seek judicial review of these decisions in this court, and thus claim (a) was finally disposed of in the referenced decisions of the HRTO.
[12] The deadline for the applicant to request reactivation of claims (b) and (c) was sixty days after disposition of claim (a), that is, until June 28, 2017. In May 2018 the applicant requested reactivation of claim (b), and in October 2018, he requested reactivation of claim (c). The HRTO declined to extend the time to reactivate claims (b) and (c) by decision dated June 19, 2020 (2020 HRTO 540), and that decision was upheld on reconsideration (2020 HRTO 913). The applicant brought an application for judicial review of these decisions, and the hearing of that application is scheduled before a panel of this court on November 16, 2022.
Test for an Extension
[13] The test for an extension of time to bring an application for judicial review is well established:
(a) Did the applicant have a timely intention to commence the application?
(b) Is there a reasonable explanation for the delay?
(c) Is there merit to the proposed application?
(d) Will there be prejudice to a respondent if the extension is granted?
(e) Does the justice of the case favour granting the extension?
[14] In the context of a review pursuant to R.2.1, a request to move for an extension should only be dismissed in the “clearest of cases”. If there is some arguable basis for the motion, the moving party should be permitted to bring the motion.
[15] I proceed on the basis that there may be arguable merit to the application and there may be no prejudice (other than inherent prejudice) if the extension were to be granted. I thus confine my consideration to grounds (a), (b) and (e), weighing my conclusions on those three grounds against my conclusion that there may be a basis for granting the extension under grounds (c) and (d).
[16] The applicant has provided no information that would establish a timely intention to bring the application for judicial review. He has likewise provided no information providing a reasonable explanation for his delay in bringing this application for judicial review from the time of the Labour Board decisions in 2015 and 2016 to the commencement of this proceeding in 2022. I so conclude on the following basis:
(a) The applicant has consistently pursued his claims, in multiple proceedings, before multiple administrative tribunals, from 2014 to the present.
(b) The medical evidence does not establish that the applicant was ever unable, by reason of disability, to commence or pursue legal or administrative proceedings. Put another way, the evidence does not establish, on any view of it, that the applicant is, or has ever been, under a legal disability that could have the effect of tolling a deadline or limitation period.
(c) The substance of the applicant’s position appears to be that he remembers today information about events that took place during his employment. This information was not available to him at the time of the hearings below because of memory and concentration issues caused by his disability. This is another way of saying that the applicant takes the position that he now has “fresh evidence” bearing upon the merits of his claims that should be admitted now. This argument must fail. First, the applicant has not particularized his fresh recollections. His generalized assertion that he now remembers things he had once forgotten does not come close to establishing a basis for reopening matters decided finally in 2016. Second, the gravamen of the decision below accepted the applicant’s general characterization of the impact on him of conflict in the workplace, but rejected his one-sided characterization of the nature of that conflict and its causal relationship to his acknowledged disability. In simple terms, the Board accepted that the applicant is disabled, but found that the disability was not caused by actionable conduct for which the employer was responsible. The applicant has not described any fresh evidence he has recently remembered that would disturb this central finding.
[17] There comes a time when the parties must be able to say “this matter has been decided”. That is the core of the finality principle, which is just as much a principle of justice as the justice system’s goal of deciding cases on their merits. The applicant’s long history of participation in disputes respecting his employment with Aramark establishes that his disability did not prevent him from commencing judicial review of the Labour Board’s decisions long before 2022. The delay is far too long, and the basis offered for it too chimerical.
[18] The motion to extend the time to seek judicial review from the decisions of the Labour Board in 2016 and 2016 is dismissed pursuant to R.2.1, without costs.
___________________________ D.L. Corbett J.
Released: August 5, 2022
CITATION: Mihundukulasuriya v. Aramark Food Services Ltd., 2022 ONSC 4563
DIVISIONAL COURT FILE NO.: 079/22
DATE: 20220805
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
D.L. Corbett J.
BETWEEN:
LAKSAMAN FERNANDO
MIHUNDUKULASURIYA
Applicant
– and –
ARAMARK FOOD SERVICES LTD., ONTARIO LABOUR RELATIONS BOARD and UNION UNITEHERE LOCAL 75 TORONTO
Respondents
REASONS FOR DECISION
D.L. Corbett J.
Released: August 5, 2022