CITATION: Yiming Liu v. Ontario Labour Relations Board et al 2023 ONSC 6568

DIVISIONAL COURT FILE NO.: 465/23 DATE: 20231121

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: YIMING LIU, Applicant

AND:

ONTARIO LABOUR RELATIONS BOARD, HOLIDAY INN TORONTO DOWNTOWN CENTRE and UNITE HERE LOCAL 75 Respondents

BEFORE: Leiper, J.

COUNSEL: Yiming Liu, Self-represented Applicant

Andrea Bowker and Aaron Hart, for the Respondent Ontario Labour Relations Board

David Ali and Abiola Akinyemi, for the Respondent Holiday Inn Toronto Downtown Centre

Ryan White and Cole Eisen, for the Respondent Unite Here Local 75

HEARD at Toronto: November 20, 2023 in writing

Reasons Released: November 21, 2023

ENDORSEMENT

[1] Yiming Liu has brought a motion for an extension of time to bring an application for judicial review of a reconsideration decision of the Ontario Labour Relations Board dated May 9, 2022.

[2] The Board’s reconsideration decision followed an earlier decision of the Board on December 3, 2021, which found that Ms. Liu’s union, Unite Here Local 75, did not act in a manner contrary to the duty of fair representation and did not violate section 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A.

[3] Ms. Liu submits that the approximate eight-month delay should not prevent her from bringing her application for judicial review, based on her intention to seek a review, the lack of prejudice and the other factors, which I discuss below, which she submits, explain the delay.

[4] The respondents, Union, Holiday Inn, and the Board, submit that the motion should be dismissed.[^1]

The Issue on the Motion

[5] The issue on this motion is whether Ms. Liu should be granted an extension of time, given that s. 5(1) of the Judicial Review Procedure Act, R.S.O. 1990, c. J.1, requires that a judicial review shall be brought within 30 days of the decision under review, subject to obtaining an extension time under s. 5(2) of the JRPA.

Background

[6] The context for this motion is as follows. After Ms. Liu’s employment was terminated by Holiday Inn, the union filed a grievance challenging her termination. The grievance was heard before Arbitrator Gail Misra.

[7] On September 28, 2020, Arbitrator Misra upheld the grievance in part, and issued comprehensive and lengthy reasons, directing the Hotel to reinstate Ms. Liu’s employment without loss of seniority, back pay, or compensatory damages.

[8] On January 10, 2021, the union informed Ms. Liu that it would not be taking any further steps to challenge the Award. Ms. Liu then filed an application before the Board alleging that the union had violated the duty of fair representation, under section 74 of the Act. She raised issues of “false testimony,” asserted that witnesses had lied under oath, and alleged that the Arbitrator had “sneakily made this case not a ‘Prima Facie Case’ to escape from being appealed”.

[9] On December 3, 2021, Vice Chair Jesse Kruger found that the Ms. Liu’s assertions against the Union were unsupported and dismissed the application without a hearing. In that decision, the Vice Chair found that:

…the applicant has not pleaded any facts that support her assertion that Arbitrator Misra’s impartiality and integrity obstructed justice or that the Award contains “irregularities” and is “fraudulent”. Arbitrator Misra’s Award is clear, thorough, and well-reasoned. The applicant’s mere disagreement with Arbitrator Misra’s findings of fact and conclusions does not bring into question her impartiality and integrity, or the Award itself. The applicant’s attack on the Award fails to demonstrate that Local 75’s decision not to seek judicial review in the circumstances violated section 74 of the Act.

[10] Ms. Liu filed a request for reconsideration of the Vice-Chair’s decision on March 30, 2022, which was 97 days later than the 20 day time limit prescribed in Rule 18.3 of the Board’s rules of procedure.

[11] Consistent with Board practice, Vice-Chair Kruger reviewed Ms. Liu’s request for reconsideration on its merits and dismissed her request on May 9, 2022. In those reasons, the Board addressed the issue of delay and found this would have justified its dismissal in these terms:

8. The applicant’s request for reconsideration was filed well outside of the 20-day window prescribed by Rule 18.3 of the Board’s Rules of Procedure. The Decision was issued on December 3, 2021 and this application was not filed until March 30, 2022, 117 days after the release of the Decision. The applicant explained that her request was filed late because she became ill with COVID-19 in December 2021 and that it took her more than one month to recover. She also states that her “English writing skill is ESL level 6”; that she has never taken any “law related courses”; that it takes her much longer to complete the forms than other people; and that she could not afford to retain legal counsel to provide her with assistance to complete her request for reconsideration.

9. The applicant’s explanation for the delay in filing her request for reconsideration does not adequately explain why it took 117 days to file her request. Certainly, it was open to the applicant to request an extension before the due date. Given the desire for finality and certainty in labour relations matters, a party must provide the Board with compelling explanation to justify a delay in filing a request for reconsideration beyond the 20-day time limit prescribed by Rule 18.3 (see Universal Workers Union, Labourers’ International Union of North America, Local 183 v. A.C. Concrete Forming Ltd., 2010 45536 (ON LRB)). The applicant’s significant delay in pursuing this matter and her failure to provide a reasonable explanation to justify that delay is itself reason enough for the Board to refuse to exercise its discretion and reconsider the Decision. However, for the following reasons, even if the applicant’s request had been filed in a timely manner, the Board would have still declined to reconsider the Decision.

[12] On May 19, 2022, Ms. Liu wrote to the Board by email and objected to the reconsideration decision. On May 30, 2022, the Board wrote to her. In that correspondence the Board explained to Ms. Liu that:

If you remain dissatisfied with the Board’s decision or the outcome of your application, you can file an application for judicial review at the Ontario Superior Court of Justice (Divisional Court). There may be deadlines in respect of when you may file an application for judicial review. In this respect, you are encouraged to seek independent advice regarding next steps.

[13] Ms. Liu did not serve or file her materials within the time prescribed by the JRPA. On February 13, 2023, she corresponded with the Divisional Court, delivered a record on February 18, 2023, and filed her materials on March 8, 2023. The 30-day deadline for filing an application for judicial review under the JRPA would have fallen on June 8, 2022.

Analysis: Should the Motion to Extend Time be Allowed?

[14] The test for an extension of time found in s. 5(2) of the JRPA requires that, in exercising its discretion to extend the time for a judicial review, the court be satisfied (i) there are “apparent grounds for relief” and (ii) no substantial prejudice or hardship will result.

[15] In considering the “apparent grounds for relief”, the court considers the length of the delay and any explanation offered for it, as well as the substantive merits of the application for judicial review: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 17-18; Rowe v. College of Nurse of Ontario 2023 ONSC 3735 at paras. 28-29, Jonker v. Township of West Lincoln, 2023 ONSC 1948 at para. 35.

The Delay and the Reasons for the Delay

[16] The delay in this matter is 8 months. When Ms. Liu expressed her dissatisfaction with the reconsideration decision Board staff provided her with clear direction of the way she could seek judicial review from the Superior Court of Justice, Divisional Court, in its letter to her of May 30, 2022, including the information that deadlines could apply.

[17] In June of 2022, Ms. Liu corresponded with the Federal Court. In those filings, she noted the matter was not urgent, and she named as respondents the Board and the union, showing her employer as an intervener. Although her affidavit states that she mistakenly filed her application in the Federal Court, the record does not include any information about how or when she learned of her error, or what information she received from the Federal Court on the appropriate place for her application. In a supplementary factum, Ms. Liu wrote that she heard nothing from the Federal Court for over a month, and after a personal attendance, she realized that she was in the incorrect court.

[18] In July of 2022, Ms. Liu corresponded with the Ombudsman of Ontario. She provided one email with her materials on this motion which does not appear to relate to any attempt to file legal proceedings. In her supplementary factum, Ms. Liu stated that she waited a month to hear from the Ombudsman’s office to learn that this office could not assist her.

[19] Ms. Liu waited until November of 2022 to try and obtain provincially funded legal assistance. She was not successful. Her supplementary factum also states that she met with “many lawyers” for a free consultation. It is difficult to understand from the record and Ms. Liu’s assertion that she met with many lawyers, how or why she did not receive information that would have pointed her in the direction of the Divisional Court to avoid a timing problem.

[20] A gap in time followed this correspondence. On February 13 2023, Ms. Liu corresponded with the Divisional Court concerning her application. A series of filing missteps followed which are described in Ms. Liu’s supplementary factum. Ultimately her application was issued on September 22, 2023. Ms. Liu was able to retain counsel privately on September 12, 2023 who assisted her with filing her application.

[21] Ms. Liu has submitted there are several reasons for the delay. She was unable to obtain legal assistance and as a self-represented individual, with English as her second language, she was not able to file her application in a timely way. In addition, Ms. Liu has filed a medical note which confirmed her self-report of fatigue and treatment with medication.

[22] I accept that Ms. Liu has presented some evidence that she wanted to challenge the Board’s reconsideration decision within the 30 days prescribed by the JRPA. A lengthy series of misfiling and requests for assistance followed. These steps were accompanied by lengthy periods of inaction by Ms. Liu.

[23] The record does not explain how these factors accounted for the entire 8-month delay. The medical note is sparse. The medication list does not assist with the role that Ms. Liu’s fatigue and medical status had in the late filing of her application.

[24] Although self-represented, Ms. Liu took advantage of speaking to many lawyers under the Law Society 30-minute free consultation program yet did not contact the Divisional Court until 8 months from the decision.

[25] Overall there has been a pattern of lengthy delay between Ms. Liu’s attempts to find services and in taking any follow-up steps which has not been adequately explained.

[26] I find that although some delay could reasonably have been found to be explained by the factors which Ms. Liu discusses in her material, the entire 8-months of delay has not been wholly or satisfactorily explained, especially given that she was provided with information from the Board on May 30, 2022 that an application would have to be brought to the Superior Court of Justice (Divisional Court) and that there could be deadlines involved.

Substantial Prejudice or Hardship to Any Party

[27] Ms. Liu submits that this is a private matter between herself and her employer, and as result there is no prejudice to the Board by the delay in bringing these proceedings.

[28] The award in question was first adjudicated in September of 2020, and is over three years old. The underlying events took place in 2016. The length of the delay is some evidence of prejudice given the context. There is a public interest in the timely adjudication of disputes, beyond the immediate private interests of Ms. Liu and her employer, Holiday Inn. This court has applied similar reasoning in the context of tribunal adjudication of health professions disputes: Rowe v College of Nurses of Ontario, 2023 ONSC 3735 at para. 49.

[29] I find that the lengthy delay in this case poses substantial prejudice to the value of timely resolution of labour disputes and the interests of the parties and the public.

The Merits of the Application for Judicial Review

[30] Ms. Liu argues that she need not show that she will succeed on her application and that she has at all times acted in good faith. Holiday Inn and the union submit that there are reasons to doubt the merit of her application.

[31] Ms. Liu is seeking to reverse both decisions of the Board below on the basis that:

a The Board failed to appropriately analyze the union’s alleged lack of intervention in the arbitration process on her behalf and the union’s alleged subsequent lack of support to the Moving Party following her reinstatement;

b The Board did not consider the union's alleged history of condoning contentious interactions between employees and upper management in the workplace;

c The Board did not appropriately deal with Ms. Liu’s argument that the union was not obligated to inform her of her right to file a grievance against the employer when she was reinstated; and

d The Board misinterpreted the evidentiary basis of the Ms. Liu’s complaint.

[32] Ms. Liu’s arguments on judicial review are subject to a reasonableness standard of review. Ms. Liu would be faced as well with the reality that the Board expressly considered her allegations. On review, the Board found that her complaints related to findings of fact made by Arbitrator Misra and did not amount to allegations against the union that it had violated s. 74 of the Act.

[33] The Board held that the union was not obliged to inform Ms. Liu of her right to file a grievance against the employer regarding an email she received when she was reinstated because an objective reading of that email did not support her contention that the email amounted to harassment.

[34] Ms. Liu argues on review that the Board “misinterpreted the evidentiary basis of Ms. Liu’s arguments.” This is another way of saying that Ms. Liu wishes to contest the findings of fact made in the underlying decision and relied upon in the reconsideration decision.

[35] The Board considered Ms. Liu’s arguments and addressed them. It relied on its own jurisprudence that a union that decides not to seek judicial review of an award cannot be said to have violated the Act on that basis. On judicial review, these findings are owed deference. The Board applied its case law, and concluded that even if the allegations were true, these did not disclose a violation of the Act, on that basis.

[36] The essence of Ms. Liu’s position is that she does not agree with the findings of fact made by the Arbitrator and has availed herself of two additional processes before the Board to seek to overturn those findings. I find that this application has little merit.

Conclusion

[37] In the circumstances of the lengthy delay, the lack of detailed explanation for the delay, the prejudice to the process and the weak merits of the application for judicial review, I decline to exercise my discretion to permit Ms. Liu an extension of time to file the application for judicial review.

[38] The motion is dismissed without costs payable by any party.

Leiper J.

Date: November 21, 2023

[^1]: Although the Notice of Application named only the OLRB as a Respondent, the parties submit that the employer Holiday Inn and the union should be added. The motion materials from Ms. Liu shows all three responding parties. All respondents filed material on the motion to extend time. This decision reflects those submissions and filings and consistent with r. 5.03(1) of the Rules of Civil Procedure, all three responding parties are joined as parties in these proceedings.