Court File and Parties

DIVISIONAL COURT FILE NO.: 872/21

DATE: 20221012

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: UNIFOR and its LOCAL 303, Applicant

AND:

SCEPTER CANADA INC. and JAMES HAYES, Respondents

BEFORE: Backhouse, Matheson & Charney JJ.

COUNSEL: Anthony Dale, for the Applicant

Frank Cesario, Scott G. Thompson and Lesley Campbell, for the Respondent Scepter Canada Inc.

HEARD: October 6, 2022, in Toronto (virtually)

ENDORSEMENT

Matheson J.:

[1] This application for judicial review was dismissed on the date of the hearing, with reasons to follow. These are those reasons.

[2] The applicant union sought leave to extend the time to seek judicial review of the arbitral award of James Hayes dated February 22, 2021 (the “Award”), and in turn sought an order quashing the Award. The application for judicial review was brought more than eight months after the release of the Award. The requested extension of time is denied for the reasons that follow.

Brief background

[3] The union is the bargaining agent for certain of the employees of the respondent manufacturer. The Award arose from six grievances brought as a result of employee discharges made after a change to the collective agreement.

[4] Prior to the relevant time, the respondent had maintained two classifications of unionized employees, known as Level 1 and Level 2, with the more onerous functions generally forming part of Level 2. In the 2019 round of collective bargaining, the parties agreed to eliminate Level 1 and have all production employees rotate through all functions. This was done to achieve the mutual goal of effective and efficient rotation through all functions.

[5] As a result of this change, six employees were permanently laid off for failing to complete the rotation standard, despite the cross training provided. The applicant filed grievances in respect of these employee discharges.

[6] Five of the six employees could not complete the rotation because of disabilities. The application for judicial review relates to the dismissal of these employees only. The applicant has conceded that these employees were not capable of doing the full rotation.

[7] The parties agreed to an expedited process for the determination of the grievances. An arbitration hearing was conducted, including witness testimony, documentary evidence and submissions. The applicant framed the grievances as a group or policy grievance. It did not call the grievors as witnesses. It did not adduce evidence of the grievors’ individual limitations or medical restrictions. The applicant agreed that the Arbitrator would determine a single issue: whether the ability to participate in the rotation was essential to the Level 2 classification within the meaning of s. 17(1) of the Human Rights Code, R.S.O. 1990, c. H.19 (“Code”). If so, then the applicant would accept that the grievances must fail.

[8] At the joint request of the parties, the Arbitrator released a “streamlined” award (the Award) five days after the conclusion of the hearing. The Arbitrator found that rotation through all functions in Level 2 was an “essential duty or requirement” of a Level 2 employee within the meaning of section 17(1) of the Code and dismissed the grievances.

[9] Despite the expedition of the grievance process and despite the 30-day time limit in s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1 (“JRPA”), this application for judicial review was not commenced until November 2021, more than eight months after the Award. Although an affidavit was put forward in support of the application, it offers no explanation for the delay.

Thirty day time limit

[10] Subsection 5(1) of the JRPA imposes the 30-day time limit, as follows:

5 (1) Unless another Act provides otherwise, an application for judicial review shall be made no later than 30 days after the date the decision or matter for which judicial review is being sought was made or occurred, subject to subsection (2).

[11] The applicant submits that it should be granted an extension of time because its application fulfills the express requirements set out in s. 5(2) of the JRPA, which provides as follows:

(2) The court may, on such terms as it considers proper, extend the time for making an application for judicial review if it 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.

[12] More specifically, the applicant submits that there are “apparent grounds for relief” in its application and “no substantial prejudice or hardship will result”.

[13] The applicant submits that the prior approach to timeliness of applications for judicial review has no role under s. 5(2). Previously, there was no time limit. If an applicant proceeded with undue delay, the application could be dismissed. In exercising the discretion to dismiss an application for judicial review for delay, the court would consider the length of the delay, the reasonableness of any explanation offered for the delay and any prejudice suffered by the respondent as a result of that delay: Kaur v. The National Dental Examining Board of Canada, 2019 ONSC 5882, at para. 4.

[14] The applicant submits that the legislative change in s. 5(2) swept away those factors, which are no longer relevant. The applicant submits that it need not explain the delay, nor should the court consider the length of the delay or any explanation for the delay. The only questions would be whether there were apparent grounds for relief and any prejudice.

[15] Counsel to the applicant frankly agreed that, taking this approach, it would be easier to proceed after a delay under the new regime (with the 30-day time limit) than the prior regime (with no time limit).

[16] Although the applicant’s counsel acknowledges that an extension under s. 5(2) is in the court’s discretion, the applicant’s position is essentially that if there are apparent grounds and no substantial prejudice, an extension must be granted. I disagree.

[17] Subsection 5(2) must be interpreted in context and giving meaning to all of its words. Subsection 5(1) is important context. The legislative reform introduced a 30-day time limit, which should be given force. Moving to s. 5(2), an extension of time is not mandatory where the two factors referenced in that subsection are satisfied. On the contrary, the subsection provides that an extension is in the court’s discretion. The two factors mentioned are prerequisites to the exercise of that discretion. They are necessary, but do not preclude the consideration of other circumstances. Given the time limit in s. 5(1), the length of delay and any explanation offered for it would be relevant considerations.

[18] Therefore s. 5(2) does not foreclose a consideration of the length of the delay, and any explanation offered for the delay, in the exercise of the court’s discretion. The impact of these facts may vary depending on the case and will now be considered in the context of a 30-day time limit. The lengthy delay in this case is therefore significant. Even before the imposition of the 30-day time limit, a delay of more than six months could justify the dismissal of an application for judicial review for delay: Kaur, at para. 4.

[19] The applicant puts forward Belyavsky v. Walsh 2022 ONSC 3135 and respectfully disagrees with its approach in this regard. In Belyavsky, the judge considered not only the two factors in s. 5(2), but also the length of the delay and explanation for the delay, in exercising her discretion to deny the requested extension of time. In my view, she was entitled to do so.

Request for an extension of time

[20] Both factors in s. 5(2) are disputed in this case.

[21] The question of whether the application raises apparent grounds for relief calls for a consideration of the merits. In this case, the applicant raises two grounds in support of its application: that the Arbitrator’s reasons for decision failed to justify the finding of a core or essential job requirement, and that the Arbitrator failed to undertake a proper accommodation analysis. Yet the Award does show the line of reasoning followed by the Arbitrator, given the parameters agreed to the parties. He considered the evidence, the arbitral jurisprudence, and relevant legal principles, as applied to the question put before him. With respect to the accommodation analysis, the applicant appears to be attempting to change the streamlined process and question put forward to the Arbitrator, in hindsight, rather than showing that the Award was unreasonable. It agreed to the process and that question, and the Arbitrator proceeded in turn.

[22] While an applicant need not show that it has a successful application on the merits to have apparent grounds for relief, I find that these grounds are weak.

[23] Moving to prejudice, the respondent submits that workplace issues should be resolved promptly to avoid perpetuating disharmony in the workplace. This submission is consistent with the parties’ approach to the grievance stage of this dispute when the grievances were pursued expeditiously and in a streamlined way. However, neither party has put forward evidence either demonstrating or denying prejudice.

[24] Even if the above prerequisites were satisfied, I consider the lengthy delay in this case significant. If the applicant wished to pursue equitable relief through judicial review, it should have moved forward within the 30-day time limit or provided a robust explanation for what is a very lengthy delay. Here, we have nothing. I would not exercise my discretion to grant an extension of time in this case.

Order

[25] This application has therefore been dismissed, with costs to the respondent Scepter Canada in the agreed-upon amount of $5,000, all inclusive.

Matheson J.

I agree _______________________________

Backhouse J.

I agree _______________________________

Charney J.

Date: October 12, 2022