CITATION: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 1045

DIVISIONAL COURT FILE NO.: 699/21

DATE: 20230213

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: CANADIAN PACIFIC RAILWAY COMPANY, Applicant/Responding Party

AND:

teamsters canada rail conference, Responding/Moving Party

AND:

ARBITRATOR WILLIAM KAPLAN, Respondent

BEFORE: Nishikawa J.

COUNSEL: Christopher Rae, for the Applicant/Responding Party

Michael A. Church & Sukhmani Virdi, for the Respondent/Moving Party

No one appearing for William Kaplan

HEARD at Toronto: February 3, 2023 (by videoconference)

ENDORSEMENT

Overview and Background

[1] The Respondent, Teamsters Canada Rail Conference (TCRC), brings a motion to dismiss the application for judicial review of the Applicant, Canadian Pacific Railway Company (CP), for delay or, alternatively, as an abuse of process.

[2] In brief, the parties agreed to submit certain grievances relating to annual vacation to an arbitrator. The arbitrator made an initial award, on consent, on March 25, 2021. Thereafter, the parties made further submissions to the arbitrator on the precedential effect of the award. The arbitrator made a supplemental award on July 23, 2021.

[3] On August 23, 2021, CP served a notice of application for judicial review, seeking review of both the original and supplemental awards on the basis that they were unreasonable. CP sought to have the application heard on an expedited basis.

[4] On September 14, 2021, D.L. Corbett J. approved the parties’ schedule for the exchange of materials. CP was to deliver its application materials by October 22, 2021. On October 26, 2021, in response to TCRC’s inquiry about CP’s application materials, CP advised that it would be amending its notice of application.

[5] In April 2022, the hearing was rescheduled by the court from June 2, 2022 to August 18, 2022.

[6] On November 24, 2021 and again on July 18, 2022, TCRC wrote to the court to advise that it could not respond to the application because CP had not filed any application materials.

[7] On July 19, 2022, Matheson J. vacated the August 2022 hearing date and directed that CP provide written submissions as to why the application should not be dismissed as abandoned for failure to adhere to the timetable and to deliver the required materials. On July 20, 2022, CP responded to the court attaching its amended notice of application for judicial review.

[8] On July 28, 2022, Matheson J. directed the parties to agree to a new timetable for the exchange of materials on the application. On August 11, 2022, TCRC advised that given the delay, it would not agree to a timetable and sought directions from the court. At a case management conference on October 3, 2022, a timetable was set for TCRC’s motion to dismiss for delay and abuse of process.

[9] On the motion, TCRC takes the position that the application ought to be dismissed for delay because CP failed to deliver its application materials in accordance with the direction of D.L. Corbett J. or at any time subsequently. TCRC further submits that the amended notice of application is in fact a new application for judicial review of a different decision, on new grounds and seeking new relief.

[10] CP submits that any delay has been minimal and that TCRC has failed to show any prejudice arising from the delay.

[11] For the reasons that follow, the motion is granted.

Issues

[12] The motion raises the following issues:

(a) Should the application be dismissed for delay?

(b) If not, should the application be dismissed as an abuse of process?

Analysis

Should the Application be Dismissed for Delay?

The Applicable Principles

[13] 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.). An applicant is under an obligation to commence and perfect their judicial review application in a timely manner.

[14] Subsection 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1. sets out a 30-day period for commencing an application for judicial review. Under s. 5(2), the court may exercise its discretion to extend the 30-day period 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.

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

(a) The length of the 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. See also: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683, at para. 17.

Application

[16] In this case, CP filed its application for judicial review within 30 days of the supplemental award. The issue is not CP’s timeliness in commencing the application for judicial review but, rather, the timeliness in perfecting it. Under Rule 68.04 of the Rules of Civil Procedure, where no record of proceedings is required, an applicant is required to perfect an application for judicial review within 30 days. This court has held that a delay of 12 months or more in perfecting an application for judicial review could warrant its dismissal: Ransom v. Ontario, 2011 ONSC 5594 (Div. Ct.), at para. 10.

[17] Since the COVID-19 pandemic, the Notice to Profession provides that any timetable or deadline directed through case management supersedes the timelines under the Rules of Civil Procedure.

[18] Pursuant to the direction of D.L. Corbett J., CP was required to perfect its application by October 22, 2021. It failed to do so. As this court found in Isaac v. Law Society of Ontario, 2022 ONSC 3577, at para. 26, case management orders and directions are not suggestions, but are orders to be respected and followed. Not only did CP fail to perfect its application for judicial review within the timeline ordered by D.L. Corbett J., at no time did it request an extension of time or take any steps to perfect its application.

[19] CP’s conduct in this proceeding reflects a consistent lack of diligence in pursuing its application. Despite advising TCRC in October and December 2021 that it intended to amend the notice of application, CP took no steps to do so until nine months later, in July 2022. Even this step was brought about by the direction from Matheson J. to explain why the application should not be dismissed as abandoned. Similarly, the August 2022 hearing date was vacated one month before that date, not at CP’s request, but because TCRC advised the court that CP had failed to file its application materials. At no time did CP advise the court that it would not be able to perfect the application in time for the hearing date, including at an earlier time when the court communicated with the parties about rescheduling the hearing date.

[20] Shortly after CP provided its amended notice of application, it stated that it was prepared to perfect the application by August 26, 2022. However, it did not do so. CP could have delivered application materials with its amended notice of application or anytime thereafter, until TCRC was permitted to proceed with its motion to dismiss for delay. TCRC’s refusal to agree to a timetable for the exchange of material did not preclude CP from perfecting the application.

[21] On the motion, CP argued that the issue of delay was already adjudicated by Matheson J. when, after requiring CP to show cause why the application should not be dismissed for delay, she did not dismiss the application as abandoned and directed the parties to agree to an amended timetable for the delivery of material. I disagree. Matheson J.’s direction makes no finding on the issue of delay. Matheson J. did not have submissions from both parties on the issue. Moreover, had the issue already been adjudicated, this motion would not have been permitted to proceed.

[22] Similarly, I reject CP’s argument that there is no delay because it was entitled to amend the notice of application as long as no affidavits were served and that, therefore, the time to perfect the application had not yet passed. CP’s argument would permit parties to extend indefinitely the time to perfect their judicial review applications and would disregard the express requirement under Rule 68.04 of the Rules of Civil Procedure. Applications for judicial review are intended to proceed in an expeditious manner, as is further evidenced by the Registrar’s ability to dismiss an application for judicial review that has not been perfected within one year: Rule 68.06(2).

[23] In my view, in the face of a specific case management direction and the general 30-day timeline under Rule 68.04, CP’s delay in perfecting its application for judicial review, which is at a minimum 11 months long, is excessive.

[24] CP’s explanation for the delay is that it was engaged in collective bargaining that resulted in an impasse and arbitration, as well as “significant operational challenges resulting from supply chain disruptions caused by the COVID-19 pandemic.” In my view, this vague attempt to justify taking no action in a legal proceeding that CP itself initiated is not a reasonable explanation for failing to respect the case management direction, which CP did not seek to vary, and failing to take any steps to pursue its application for almost one year. In Unifor v. Scepter, this court found that, in the case of an eight-month delay in commencing an application for judicial review, the applicant should have moved forward within the time limit “or provided a robust explanation for what is a very lengthy delay.” Unifor v. Scepter, at para. 24. CP’s explanation is far from robust.

[25] CP submits that its application ought not to be dismissed for delay because, despite the delay, the courts’ strong preference for adjudicating disputes on their merits should prevail. While it is generally preferable to adjudicate disputes on their merits, the case law makes clear that an application for judicial review may be dismissed for delay regardless of the merits of the case: Pelham v. Human Rights Tribunal of Ontario, 2011 ONSC 7006, at para. 14. In my view, the court’s preference for adjudicating disputes on their merits does not permit parties to disregard court-ordered timelines and to fail to pursue their proceedings for extended periods of time.

[26] On the issue of prejudice, TCRC points out that as a result of the failure to move the matter forward, the other outstanding grievances regarding the cancellation of annual vacation remain unresolved. In the labour relations context, delay raises concerns about the “acrimony that may result from drawn-out litigation, and the timely resolution of disputes is essential.”: Ransom v. Ontario, 2011 ONSC 5594, at para. 15. CP’s failure to pursue its application with diligence resulted in a prolonged lack of certainty regarding the underlying issue of annual vacations.

[27] Moreover, in my view, the fact that the amended notice of application differs fundamentally from the original notice of application is also relevant to the issue of prejudice. While CP maintains that the amended notice of application “narrows” and “focuses” the grounds for review, the amended notice expands the grounds for review beyond those that were initially pleaded. The original notice of application is based on, as CP described it, a “generic” challenge to the reasonableness of the original and supplementary awards. The awards were not challenged for lack of jurisdiction. The jurisdictional challenge requires different evidence than a reasonableness review, as evidenced by CP’s reliance on statements made by the arbitrator at the time. The amended notice of application also seeks relief that was not sought in the original application, specifically, that TCRC’s original motion be dismissed in its entirety, rather than an order remitting the matter to a different arbitrator. CP has provided no explanation as to why it could not raise the jurisdictional challenge in the original application. Had CP sought to file a new application for judicial review, it would have been out of time under s. 5(1) of the JRPA. In my view, it is prejudicial to TCRC to have to respond to a substantively different application for judicial review one year after the application was first commenced.

[28] The cases that CP relies upon do not assist its position. In both of those cases, the delay was found not to have resulted in actual prejudice to the respondents: Ontario Public Service Employees Union v. Seneca College of Applied Arts & Technology (Div. Ct.); Solidwear Enterprises Ltd. v. Union of Needletrades, Industrial & Textile Employees (Unite), Local 219 (Div. Ct.).

[29] In the circumstances of this case, given the length of the delay, the lack of reasonable explanation for the delay and the prejudice to TCRC, I find that it is plain and obvious that the application should be dismissed for delay.

Should the Application be Dismissed as an Abuse of Process?

[30] Given my conclusion above, it is not necessary for me to consider whether the application should be dismissed as an abuse of process.

Conclusion

[31] The motion to dismiss the application for judicial review for delay is granted. Pursuant to the parties’ agreement, as the successful party, the Respondent, TCRC, is entitled to $5,000 in costs.

“Nishikawa J.”

Date: February 13, 2023