Court File and Parties

CITATION: Bukaczewska v. Longmore-Crann, 2023 ONSC 6052 DIVISIONAL COURT FILE NO.: 262/23 DATE: 2023-11-14

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Matylda Bukaczewska, Moving Party/Applicant AND: Jacqueline Longmore-Crann, Employment Standards Officer, Stephen McDonald, Director of Employment Standards and Alberto Ojeda Prieto, Respondents

BEFORE: Nishikawa J.

COUNSEL: Marek Z. Tufman, for the Moving Party/Applicant Judith Parker, for the Respondent, Director of Employment Standards Melanie Anderson & Ella Bedard, for the Respondent, Alberto Ojeda Prieto

HEARD at Toronto: October 24, 2023 (by videoconference)

Endorsement

Overview

[1] The Applicant, Matylda Bukaczewska, brings a motion for an extension of time to seek judicial review of a decision made by the Respondent Employment Standards Officer, Jacqueline Longmore-Crann (the “ESO”), under the Employment Standards Act, 2000, S.O. 2000, c. 41 (“ESA”). The Decision dated October 11, 2022 ordered the Applicant to pay the Respondent, Alberto Ojeda Prieto, unpaid wages, overtime, vacation pay, and public holiday pay (the “Decision”).

[2] The Respondents oppose the motion on the basis that the statutory requirements for an extension of time have not been met.

[3] For the reasons given below, the motion for an extension of time is dismissed.

Analysis

The Applicable Principles

[4] Subsection 5(1) of the Judicial Review Procedures Act, R.S.O. 1990, c. J.1 (“JRPA”), requires that an application for judicial review be made within 30 days of the impugned decision. 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.).

[5] 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.” Both conditions are mandatory: Jonker v. Township of West Lincoln, 2023 ONSC 1948 (Div. Ct.), at para. 35.

[6] If both conditions are met, the court will also consider the length of delay and the reasonableness of any explanation offered for the delay when determining whether to exercise its discretion to extend the time: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 (Div. Ct.), at para. 17.

Application to this Case

[7] As noted above, the Decision was made on October 11, 2022. The Applicant brought this motion almost six months later, on April 3, 2023. As noted by the Respondents, the Applicant did not serve a draft notice of application for judicial review with her motion for an extension of time, as would normally be expected. Based on the submissions made by the Applicant, it appears that the grounds that she intends to rely on for review are a breach of procedural fairness and that the decision was unreasonable.

[8] The “apparent grounds for relief” condition is a more demanding standard than the test for striking or amending a pleading and requires a consideration of the substantive merits of the case. The apparent grounds for relief should be assessed in light of the applicable standard of review, which, in this case would be a standard of reasonableness: Jonker, at paras. 37 and 40.

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

[10] The Applicant’s main argument is that she was not a party to the review conducted by the ESO and that there was no evidence to support the ESO’s conclusion that she was Mr. Prieto’s employer. The Applicant attempts to argue that the ESO made the order against her solely on the basis of information that she was married to Marcin Kozuch, who was the actual employer.

[11] First, there is no basis for the submission that the Applicant did not participate in the review. The ESO sent all correspondence to the employer, Pheno Design, for which the Applicant is the principal. The ESO also sent the correspondence to the Applicant’s email address. The Applicant’s position on the motion contradicts the statement in her own affidavit that after receiving a letter from the ESO in August 2022, “… it became very important for our lawyer to write back to explain that Marcin and Pheno Design had nothing to do with each other.” The Applicant was fully aware of the investigation and was represented by counsel, who was corresponding with the ESO.

[12] Second, the Applicant’s submission that Mr. Prieto was not employed by Pheno Design is groundless. There was ample evidence in the documentary record to demonstrate that the Applicant directed Mr. Prieto in the work that he was performing for Pheno Design. The ESO did not base her finding that Mr. Prieto was employed by Pheno Design solely on the basis of the relationship between the Applicant and Mr. Kozuch. In the Decision, she referred to the documentary record, which included instructions and designs that were originally sent by the Applicant to Mr. Kozuch and then forwarded to Mr. Prieto and a cheque from the client for whom Mr. Prieto was performing the work, which was made out to Pheno Design.

[13] In addition, where the legislature has created a statutory decision-making regime with an appeal mechanism, courts will hear judicial review applications of such decisions only in exceptional circumstances: Toth Equity Ltd. v. Ottawa (City), 2011 ONCA 372, at para. 35. In this case, the ESA provides a statutory appeal of decisions of an ESO to the Ontario Labour Relations Board (“OLRB”): ESA, ss. 116, 122. Before the OLRB, the Applicant would have had the opportunity to call evidence at a de novo hearing on the very issues that she now raises. The OLRB has the power to exercise any of the powers of an ESO under the ESA and can substitute its findings for those of the ESO. The OLRB can amend, rescind or affirm the orders or issue a new order” ESA, s. 119. This is a more than adequate alternative remedy to an application for judicial review.

[14] The Applicant commenced the review process before the OLRB, however, the review was terminated in January 2023 because the Applicant failed to fulfil the required procedural steps, including serving the application on the Respondent and paying the ordered amount in trust, as required by s. 116(1) of the ESA. Having failed to avail herself of an adequate alternative remedy, the Applicant cannot demonstrate apparent grounds for relief on her application for judicial review.

[15] The Applicant relies on Carillon Decorative Products Inc. v. Mellon, 2004 1535 (Div. Ct.) to argue that there are exceptional circumstances warranting the availability of judicial review where the amount that a party is required to pay is extremely high. In that case, however, the amount was over $500,000, and the court found that there was apparent merit to the application. In this case, the order to pay was for $31,442.84. While the Applicant alleges that this would cause her significant hardship, it is not an amount that would result in a finding of exceptional circumstances. As this court held in Airside Securuity Access Inc. v. Manickhand-Hosein, 2015 ONSC 3419 (Div. Ct.), at para. 5, the administrative process under the ESA “is not meant to be readily avoided[.]”

[16] Moreover, in this case, the Applicant simply asserts that she and Mr. Kozuch, are impecunious. Other than a partial income tax return form for 2022, the Applicant has submitted no evidence of her income or assets, or that of Mr. Kozuch. Further, her assertions that she has been unable to borrow money are unparticularized. In Airside, at para. 8, this court did not accept bald assertions “entirely unsupported by any supporting documentation such as financial statements or specific details about the financial circumstances of the… employer” as justifying a conclusion that there were exceptional circumstances. The Applicant has failed to satisfy me that there are exceptional circumstances that would warrant a finding that judicial review is appropriate in this case.

[17] In respect of the second element of s. 5(2) of the JRPA, the Applicant has failed to demonstrate that there would be no substantial prejudice or hardship to any person affected by reason of the delay. There is no doubt that Mr. Prieto will suffer substantial prejudice or hardship because of the delay. In addition to the presumed prejudice resulting from delay, Mr. Prieto will be required to continue to forego payment of wages that have been found to be owing to him for work that he performed three years ago. The amount owing is significant to Mr. Prieto, who is a recent immigrant and vulnerable worker. In addition, because the order does not provide for pre or post-judgment interest, Mr. Prieto has had to forego the ability to earn interest on the amount. Had the Applicant pursued an appeal before the OLRB, the amount would have been paid into trust and earning interest from October 2022. As a result, in addition to not receiving the amount owing to him in a timely manner, Mr. Prieto receives no interest.

[18] In conclusion, the Applicant has failed to satisfy the requirements of s. 5(2) of the JRPA, 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 if the application is allowed to proceed. I further find that the delay of almost six months in this case was excessive, and that there is no reasonable explanation for the delay. While the Applicant points to Mr. Kozuch’s health and her having given birth in the interim period as reasons for the delay, she has not provided particularized evidence as to how those circumstances affected her ability to proceed. It was during the same time that the Applicant commenced, but did not pursue, her application before the OLRB.

Conclusion

[19] Accordingly, the motion for an extension of time to file the notice of application for judicial review is dismissed.

[20] Further to the parties’ agreement on costs, no costs of the motion are ordered.

“Nishikawa J.”

Date: November 14, 2023