CITATION Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 2928
DIVISIONAL COURT FILE NO.: 699/21
DATE: 20230517
ONTARIO SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
R. A. LOCOCO, J. LEIPER and P. B. SCHABAS JJ.
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
Christopher D. Pigott and Grace P. McDonell, for the Applicant
Applicant/Moving Party
– and –
Michael A. Church and Sukhmani Virdi, for the Respondent
TEAMSTERS CANADA RAIL CONFERENCE
Respondent/Responding Party
– and –
ARBITRATOR WILLIAM KAPLAN
Respondent/Responding Party
HEARD at Toronto: Monday, May 8, 2023
Leiper J.
I. Introduction
[1] On February 3, 2023, the motion judge, Nishikawa J. granted a motion brought by the Respondent Teamsters Canada Rail (Teamsters Canada) and dismissed the application for judicial review brought by the Applicant Canadian Pacific Railway Company (CP) on the basis of delay: Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 1045.
[2] CP brought a motion to review the motion judge’s order pursuant to s. 21(5) of the Courts of Justice Act, R.S.O. 1990, c. C.43 (CJA).
II. Standard of Review under s. 21(5) of the Courts of Justice Act
[3] At the hearing of the s. 21(5) motion, CP argued that the nature of a s. 21(5) motion is unclear, and that it could be conducted as a de novo hearing. CP cited decisions of this court to that effect in CAS (Ottawa) v. L.F.(1) and L.F.(2), 2016 ONSC 4044 (Div. Ct.), at para. 9, cited in Desai v. Desai, 2022 ONSC 2809 (Div. Ct.), at para. 10. I disagree.
[4] In 2011, this court said in Ransom v. Ontario, 2011 ONSC 559, 96 C.C.E.L (3d) 51 (Div. Ct.) that the standard of review from a decision of a judge to dismiss a matter based on delay is “well-settled law” flowing from the discretionary nature of that decision: Ransom, at para. 6. More recently, other decisions from the Divisional Court have confirmed that this court will not interfere with a single judge’s decision absent an error of law, or a palpable and overriding error of fact: Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123 (Div. Ct.), at para. 4, citing Franchetti v. Huggins, 2022 ONCA 11, at para. 5; Provan v. TWKD Development Inc., 2022 ONSC 3208 (Div. Ct,), at para. 3.
[5] Finally, the Court of Appeal considered an identically worded provision in s. 7(5) of the CJA and found that “the panel may interfere with the order if the chambers judge failed to identify the applicable principles, erred in principle, or reached an unreasonable result: (citations omitted)”: Hillmount Capital v. Pizale, 2021 ONCA 364, at para. 18. This identically worded provision did not create a right to a de novo hearing in the Court of Appeal.
[6] I would adopt and apply the same standard of review in the s. 21(5) process as in Hillmount Capital, consistent with the decisions of the Divisional Court in Provan and Guillaume.
III. The Preliminary Issue: Delayed Service of the Notice of Motion to Vary
[7] CP served and filed its notice of motion for this matter 14 days after the underlying motion decision was released. The Rules of Civil Procedure, R.R.O. 1990, Reg 194, require a motion under 21(5) to be filed within four (4) days of the order being made: r. 61.16(6). The Respondent submits that the motion to vary should be dismissed for delay.
[8] CP seeks an extension in time and to have its motion heard. CP submits that it erroneously believed it had 15 days to serve its motion and that a ten-day delay causes no prejudice to Teamsters Canada. CP filed an affidavit in support of its motion to extend time stating that counsel to CP obtained instructions to proceed with an appeal on February 16, 2023, three days after the decision of the motion judge. At that time, counsel believed that this was a final decision, which would be appealed to the Court of Appeal with leave, in which case CP would have had 15 days to file its notice of motion for leave to appeal. He gave instructions regarding preparation of materials based on that belief. Counsel discovered the error on February 23, 2023 and by February 27, 2023 CP had filed the motion materials in this court.
[9] Teamsters Canada submits that the failure to file this motion on time is part of CP’s pattern of failing to meet timelines or adequately attend to the rules of this court. In the absence of a compelling explanation, Teamsters Canada submits that the extension should be denied, and the motion dismissed at the outset.
[10] A decision to extend time for late filing is an exercise of discretion. It should be informed by the reasons for the delay, any prejudice to a party, the merits of the motion and whether the moving party formed an intention to move to vary the order. In this case, there is a reasonable explanation for the delay, the time of delay is short and there is no evidence of prejudice to the responding party.
[11] I conclude that the court should exercise its discretion to hear the motion.
IV. Background Facts
[12] On August 23, 2021, CP served a notice of application for judicial review, regarding two arbitral awards between the parties. The first arbitral award was made on consent on March 25, 2021. It dealt with grievances regarding annual vacation for members.
[13] The second arbitral award, which the parties refer to as the “supplemental award”, was made on July 23, 2021. This award addressed the precedential effect of the initial award on other employees.
[14] In September 2021, the court approved a schedule for the parties to exchange their motion materials. The court scheduled CP’s application for judicial review to be heard on June 2, 2022. Under this timetable, CP was to deliver its application materials by October 22, 2021. It did not do so.
[15] On October 26, 2021, Teamsters Canada contacted CP to ask about the status of the materials. CP responded that it was planning to amend its notice of application. CP did not seek any extensions of time to the timetable or engage with the court on its failure to meet the timetable.
[16] In April 2022, the June hearing date was rescheduled to August 18, 2022, due to a court scheduling issue. On July 18, 2022, the court notified the parties to remind them that they were required to upload their materials to CaseLines for the August hearing. Teamsters Canada replied that it was unable to do so since CP had still not filed its application materials.
[17] The court vacated the August hearing date and asked for CP’s submissions as to why its application should not be dismissed. CP responded with written submissions that included an amended notice of application for judicial review.
[18] Matheson J. directed the parties to agree to a new timetable. On August 11, 2022, Teamsters Canada indicated it would not agree to a new timetable based on delay and its objections to CP’s amended judicial review application, which was issued August 23, 2022. In October 2022, the parties participated in a case conference and Matheson J. set a timetable for Teamster Canada’s motion to dismiss the application for delay and abuse of process.
V. The Reasons for Dismissal
[19] The motion judge granted Teamster Canada’s motion based on CP’s delay, without addressing abuse of process. In making this finding, she considered and discussed in her reasons the length of delay, the reasonableness of CP’s explanation for delay and the prejudice suffered by Teamsters Canada due to the delay, citing Canadian Chiropractic Association v. McLellan, 2011 ONSC 6014 (Div. Ct.), at para. 15.
[20] Regarding the length of delay, the motion judge noted that the case management timelines that applied during the period of this litigation and wrote that directions from case management are orders to be respected and followed. The motion judge made a finding that CP did not perfect its application within the court directed timelines, nor did it request an extension of time to do so. CP also did not take steps to perfect the application. The motion judge cited Ransom, at para. 10, where the court found that a delay of 12 months or more to perfect an application for judicial review could warrant dismissal.
[21] The motion judge rejected CP’s argument that there was no delay because it was entitled to amend its notice of application if no affidavits had yet been served, and therefore, the deadline to perfect had not passed. The motion judge found this would permit parties to extend judicial review applications indefinitely and was contrary to the Rules. She found the delay in this case was, at minimum, 11 months and was an excessive period of delay.
[22] CP’s explanation for the delay was that it was engaged in collective bargaining and an arbitration, and it was managing supply chain difficulties during this time. The motion judge found that these were vague attempts to justify taking no action in the proceeding. The motion judge found that CP’s explanations did not justify its failure to respect case management directions, in a case that it initiated, even by taking steps to vary the timetable.
[23] Regarding prejudice, Teamsters Canada submitted that CP’s failure to move the matter along meant other grievances regarding vacation entitlement remained outstanding. The motion judge found that CP’s failure to diligently pursue the application resulted in “a prolonged lack of certainty regarding the underlying issue of annual vacations.” She also found that the amended notice of application differed fundamentally from the original notice, an independent source of prejudice to Teamsters Canada.
[24] The motion judge found it was plain and obvious that the application should be dismissed for delay.
VI. Analysis
[25] CP submits that the motion judge made a palpable and overriding error by concluding that an 11-month delay could warrant dismissal for delay. CP submits that Ransom does not envision dismissal of a matter for a delay that is less than 12 months from filing to perfection. CP relies on the statement in Ransom, at para. 10, as follows:
The jurisprudence of this Court has held that a delay of six months or more in commencing an application and/or twelve months or more in perfecting it could warrant dismissing the application. See Gigliotti v. Conseil d'Administration du Collèges des Grands Lacs, [2005] O.J. No. 2762 (Div. Ct.) at paras. 29-30 and Bettes v. Boeing Canada/DeHavilland, [2000] O.J. No. 5413 (Div. Ct.).
[26] The decisions in Gigliotti and Bettes in fact stand for the proposition that a delay of 12-months “alone” in perfecting an application in the Divisional Court could justify dismissal for delay. Consistent with that proposition, more than simply the length of delay is relevant on a motion to dismiss for delay. This discretionary exercise requires the court to consider as well the reason for the delay and the impact of the delay on the parties and others: Canadian Chiropractic Association, at para. 15.
[27] The motion judge considered Ransom, and the three relevant factors, discussing each in turn in the reasons for decision. She concluded that not only was there excessive delay of 11 months, with the Applicant providing no compelling reason for apparently ignoring case management directions, but there was prejudice flowing from the new grounds in the amended application and the impact of the delay on other outstanding grievances.
[28] The motion judge, at para. 24, found that the explanation for the delay was insufficient, in these terms:
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, [2022 ONSC 5683] at para. 24. CP's explanation is far from robust.
[29] The motion judge made specific findings that Teamsters Canada had been prejudiced by the delay and the prolonged lack of certainty around vacation entitlement. This is a reasonable conclusion given the nature of the arbitrator’s finding that the decision on vacation entitlement applied to other employees. A second finding of prejudice arose from the amended Notice of Application. As the motion judge found, this latter form of prejudice flowed from a change to the relief sought, the grounds for relief and the evidence required in support. CP did not explain why it had not provided the amended grounds sooner, which the motion judge found was a “substantively different application.”
[30] CP submits that the motion judge erred in law by failing to make any findings on prejudice. CP also submits that its amended application narrowed the issues to be reviewed.
[31] The first submission overlooks the paragraphs in the motion judge’s reasons which clearly discuss her findings on prejudice. The second submission mischaracterizes the plain wording of the amended Notice of Application as compared to the original Notice of Application. These substantive differences included the basis for relief, the nature of the record and evidence in support of the application and the nature of the relief sought.
[32] The motion judge’s findings as to prejudice were amply supported by the record and the pleadings. I find that the motion judge applied the facts before her to the applicable principles in law. Her exercise of discretion was reasonable and clear from the reasons.
VII. Conclusion
[33] The motion judge exercised her discretion to dismiss this application for delay reasonably. I would dismiss the motion to review that decision.
[34] By agreement of the parties, costs are awarded in favour of Teamsters Canada in the amount of $5,000, payable by CP.
Leiper J.
I agree.
I agree.
Schabas J.
Date of Release: 17 May 2023
CITATION Canadian Pacific Railway Company v. Teamsters Canada Rail Conference, 2023 ONSC 2928
DIVISIONAL COURT FILE NO.: 699/21
DATE: 20230517
ONTARIO
SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
R.A. LOCOCO, J. LEIPER and P.B. SCHABAS, JJ.
BETWEEN:
CANADIAN PACIFIC RAILWAY COMPANY
Applicant/Moving Party
-and-
TEAMSTERS CANADA RAIL CONFERENCE
Respondent/Responding Party
-and-
ARBITRATOR WILLIAM KAPLAN
Respondent/Responding Party
REASONS FOR DECISION
Leiper J.
Date of Release: 17 May 2023