CITATION: Boothe v. CUPE Local 4400, 2023 ONSC 7024
COURT FILE NO.: 059/23
DATE: 20231215
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
BETWEEN:
J.M. BOOTHE
Moving Party/Applicant
– and –
CUPE LOCAL 4400, TORONTO DISTRICT SCHOOL BOARD and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondent
J.M. Boothe, self-represented
W. Alejandro Munoz, for Toronto District School Board
HEARD in writing: December 12, 2023
ENDORSEMENT
schabas j.
Overview
[1] The Applicant J.M. Boothe seeks an extension of time in which to commence an application for judicial review to this Court. The Respondent, Toronto District School Board (“TDSB”), opposes the request. For the reasons below, the motion is dismissed and the application is not permitted to proceed.
Background
[2] The Applicant is a former TDSB employee who worked as a lifeguard at a school from 2012 to 2020. The Applicant was terminated from employment by the TDSB on April 27, 2020. The Applicant’s union, CUPE Local 4400, grieved the termination, which grievance was dismissed on July 13, 2021.
[3] The Applicant then commenced an application in the Human Rights Tribunal of Ontario (“HRTO”) on January 4, 2022, asserting discrimination based on disability. That application was dismissed by the HRTO on September 30, 2022 on jurisdictional grounds because any alleged discriminatory act by the TDSB had occurred more than 12 months before the HRTO application was filed, and because there was no “good faith reason” to explain the delay: Michael v. Toronto District School Board, 2022 HRTO 1181. The HRTO observed that, among other things, the Applicant was seeking to challenge the arbitration award in their application. A subsequent request for reconsideration of its decision was denied by the HRTO on December 15, 2022: Michael v. Toronto District School Board, 2022 HRTO 1454.
[4] The Applicant attempted to commence this application for judicial review of the HRTO decisions on January 29, 2023, two weeks after the 30-day deadline set out in s. 5(1) of the Judicial Review Procedure Act, RSO 1990, c. J.1 (“JRPA”). Ultimately, on July 10, 2023, seven months after the final HRTO decision, the Applicant moved for an extension of time in which to commence the application for judicial review.
[5] Despite a schedule permitting the Applicant time to file evidence in support of their request, the Applicant has only filed a factum.
Analysis
[6] Section 5(2) of the JRPA places a burden on the moving party to satisfy the court that there are “apparent grounds for relief” and that “no substantial prejudice or hardship will result to any person affected by the delay.” However, this does not mean that the court cannot also consider the reasons for the delay by the moving party. Ultimately, the decision remains a matter of discretion, albeit discretion that includes consideration of the factors in s. 5(2) of the JRPA: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 10-19; Belyavsky v. Walsh, 2022 ONSC 3135.
[7] Factors to consider in determining whether there are “apparent grounds for relief” include 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.
[8] Here, although the initial delay in attempting to file the application was only two weeks, the Applicant then took almost six additional months to seek an extension of time, and caused further delays, such as not attending a scheduled case conference, resulting in further delays. No good faith explanation has been provided for the delays caused by the Applicant.
[9] The merits of the application are not apparent either. The issues between the Applicant and the TDSB were addressed in the grievance process. The Applicant has shown no basis for an HRTO application that is, in effect, attempting to second-guess the labour relations process: see, e.g. Weber v. Ontario Hydro, [1995] 2 S.C.R. 929, [1995] S.C.J. No. 59 at paras. 55-59.
[10] Accordingly, I conclude that the first branch of the test in s. 5(2) of the JRPA has not been met and the motion is dismissed.
[11] Although it is not necessary for me to consider any hardship or prejudice, it has been observed that prejudice may be presumed: John Bruce Robinson Construction Limited v. Hamilton (City), 2022 ONSC 911 at para. 10. Permitting an extension of time to allow this application to proceed will result in substantial prejudice to the TDSB. It will have to respond to issues that occurred in 2019, and which issues it has already responded to in the arbitration process.
[12] The delay in bringing this motion also follows a pattern of delay as the Applicant also delayed bringing the application before the HRTO.
[13] The decision whether to grant an extension of time under s. 5(2) of the JRPA is discretionary. Indeed, judicial review itself is an equitable and discretionary remedy which can be refused in appropriate cases. Considering all the factors here, I see no merit in allowing this application to proceed and would dismiss the motion on that basis as well.
[14] The motion for an extension of time to bring this application is dismissed. Although the TDSB seeks costs, it did not file a Costs Outline. Consequently, there shall be no order as to costs.
Paul B. Schabas J.
Released: December 15, 2023
CITATION: Boothe v. CUPE Local 4400, 2023 ONSC 7024
COURT FILE NO.: 059/23
DATE: 20231215
ONTARIO
SUPERIOR COURT OF JUSTICE
Divisional Court
J.M. BOOTHE
Moving Party/Applicant
– and –
CUPE LOCAL 4400, TORONTO DISTRICT SCHOOL BOARD and HUMAN RIGHTS TRIBUNAL OF ONTARIO
Respondent
endorsement
Schabas J.
Released: December 15, 2023