Citation and Court Information

CITATION: Liu v. Ontario Labour Relations Board, 2024 ONSC 1253

DIVISIONAL COURT FILE NO.: 465/23

DATE: 2024-02-29

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: Yiming Liu, Applicant/Moving Party

AND: Ontario Labour Relations Board, Holiday Inn Toronto Downtown Centre and Unite Here Local 75, Respondents

BEFORE: Edwards, Sachs and Davies JJ.

COUNSEL: Yiming Liu, Self-represented, Applicant/Moving Party Andrea Bowker and Aaron Hart, for the Ontario Labour Relations Board, Respondent Carey O’Connor and David Ali, for Holiday Inn Toronto Downtown Centre, Respondent Ryan White and Cole Eisen, for the Unite Here Local 75, Respondent

HEARD at Toronto in writing: February 28, 2024

Endorsement

[1] In November 2017, Ms. Liu was terminated from her job at the Holiday Inn in downtown Toronto (“the employer”). Ms. Lui was a member of Unite Here Local 75 (the “Union”) and the Union filed a grievance claiming that Ms. Liu was unjustly terminated.

[2] In September 2020, an arbitrator reinstated Ms. Liu. The arbitrator restored Ms. Liu’s seniority but did not order any compensation: Holiday Inn Toronto Downtown Centre v. Unite Here Local 75 (2020), 146 C.L.A.S. 89. The Union did not seek judicial review of the arbitrator’s decision.

[3] Ms. Liu filed an application at the Labour Relations Board (“the Board”) alleging the Union violated its duty of fair representation. Ms. Liu did not take issue with the representation afforded to her by the union. Rather, she complained about the outcome of the arbitration. She argued that witnesses lied. She also argued the Arbitrator relied on false evidence and ignored relevant evidence. Ms. Liu also complained that the employer’s communication about her return to work amounted to harassment.

[4] On December 3, 2021, the Board dismissed Ms. Liu’s application: Yiming (Jenny) Liu v. Unite Here Local 75. Ms. Liu filed a request for reconsideration of the Board’s decision and the Board dismissed her request on May 9, 2022: Liu v. Unite Here Local 75.

[5] On February 13, 2023 – nine months after the Board’s reconsideration decision – Ms. Liu first contacted the Divisional Court about seeking an extension of time to bring an application for judicial review of the Board’s reconsideration decision. Ms. Liu finally filed her motion for an extension of time on March 8, 2023.

[6] On November 21, 2023, Leiper J. dismissed Ms. Liu’s motion for an extension of time to file a judicial review application: Liu v. Ontario Labour Relations Board et al, 2023 ONSC 6568. The motion judge found Ms. Liu had not adequately explained the nine-month delay between when the Board released its reconsideration decision and when she filed her application for an extension of time. The motion judge also found that the lengthy delay caused substantial prejudice to the value of timely resolution of labour disputes. Finally, the motion judge found that Ms. Liu’s proposed judicial review application had little merit because the essence of Ms. Liu’s judicial review application is that she does not agree with factual findings made by the Arbitrator and those findings of fact would be entitled to deference on review.

[7] Ms. Liu now brings a motion before a panel of the Divisional Court seeking an extension of time to file a motion to set aside or vary Leiper J.’s order and, if an extension of time is granted, an order setting aside Leiper J.’s decision under s. 21(5) of the Courts of Justice Act.

[8] Further to the February 13, 2024 case management direction from Corbett J., the respondents have not filed responding materials on this motion. The panel is satisfied it can fairly decide Ms. Liu’s motions on their merits without materials from the respondents.

[9] We find that it is not necessary to rule on Ms. Liu’s request for an extension of time because, even if an extension of time were granted, there is no basis to set aside or vary the motion judge’s decision. As a result, Ms. Liu’s motion is dismissed.

a. Is there a basis to set aside the motion judge’s decision denying Ms. Liu an extension of time to file a judicial review application?

[10] A motion to a panel of the Divisional Court to vary or set aside the decision of a single judge is not a de novo hearing. This court will only interfere if the motion judge made an error of law or a palpable and overriding error of fact. If the motion judge’s decision involved the exercise of discretion, a panel of this court can also intervene if the the motion judge’s decision is so clearly wrong that it amounts to an injustice or if the motion judge gave insufficient weight to relevant considerations: Guillaume v. Barney Rivers Investments Inc., 2022 ONSC 1123, at para. 4. The burden is on Ms. Liu to establish a basis for the panel to set aside or vary the motion judge’s decision.

[11] Ms. Liu argues the motion judge erred in finding that her judicial review application lacked merit because the motion judge improperly analyzed the facts and ignored relevant facts.

[12] Ms. Liu included new information in her factum about her allegations that she was harassed by the employer. Ms. Liu argues the motion judge would not have found her judicial review application lacked merit if the motion judge had the information she submitted to the panel.

[13] Ms. Liu has not brought a fresh evidence motion. If Ms. Liu had brought a motion to adduce fresh evidence on this motion, she would have had to establish the following:

a. The evidence could not have, through the exercise of due diligence, been presented at the hearing before the motion judge;

b. The evidence is reasonably capable of belief;

c. The evidence is relevant to a potentially decisive issue on the motion; and

d. The fresh evidence, if believed, likely would have affected the result of the motion: R. v. Palmer, [1980] 1 S.C.R. 759, Alghaithy v. University of Ottawa, 2011 ONSC 5879 (Div. Ct) at para. 31.

[14] Even if Ms. Liu had brought a fresh evidence motion, she has not explained why she could not have filed the evidence she now seeks to adduce as part of the record before the motion judge. She has also not established that the fresh evidence likely would have altered the motion judge’s assessment of the merits of her application for judicial review. An application for judicial review would not be a de novo hearing of Ms. Liu’s complaints about the Union and the employer. The judicial review application would be based on the evidence before the Board. Fresh evidence is only admissible on a judicial review application in exceptional circumstances. The proposed fresh evidence must fit into one of the narrow exceptions namely, to show a breach of natural justice that is not apparent on the record or to show a complete absence of evidence on an essential point: Kids Kingdom Daycare Inc. v. Ontario (Min. of Education), 2024 ONSC 487(Div. Ct.), at para. 28, Canadian National Railway Company v. Teamsters Canada Rail Conference, 2019 ONSC 3644 (Div. Ct.). The new information Ms. Liu provided relates to her allegation that she was being harassed by the employer. It is not clear whether the information contained in Ms. Liu’s factum on this motion was before the Board when it considered her application to set aside the Arbitrator’s decision. If not, Ms. Liu has not established the fresh evidence would be admissible on her judicial review application. As a result, even if the information in Ms. Liu’s factum is new, it would have had no bearing on the motion judge’s assessment of the merits of her judicial review application.

[15] The motion judge applied the correct legal test for deciding whether to grant an extension of time and made no palpable and overriding error in her assessment of the evidence relevant to that issue. The Labour Relations Board told Ms. Liu on May 30, 2022 she could seek judicial review of its decision in the Divisional Court if she was not satisfied with the reconsideration decision. Rather than following the Board’s advice, Ms. Liu filed an application in the Federal Court. She then filed a complaint with the Ombudsman’s office. Ms. Liu did not explain the lengthy delay in seeking an extension to file an application for judicial review. The motion judge also made no error in her assessment of the prejudice caused by the delay or the merits of Ms. Liu’s judicial review application.

[16] The final decision whether to grant an extension of time involves an exercise of the motion judge’s discretion. The motion judge carefully considered and weighed all the relevant factors in dismissing Ms. Liu’s motion. Given the overall delay in the case and the lack of merit of Ms. Liu’s judicial review application, the motion judge’s decision to deny Ms. Liu an extension of time does not amount to a miscarriage of justice.

[17] Ms. Liu’s motion is, therefore, dismissed.

b. The Court need not decide the motion for an extension of time

[18] Under R. 61.16(6) of the Rules of Civil Procedure, a motion to set aside or vary the order of a single judge under s. 21(5) of the Courts of Justice Act must be served and filed within four days after the order is made. Ms. Liu did not file her Notice of Motion to set aside Leiper J.’s November 21, 2023 decision until February 6, 2024. Ms. Liu submits that she mistakenly thought the deadline for filing the motion was 30 days, not four days. She also submits that her health issues prevented her from pursuing her motion in a timely manner.

[19] One of the other factors the Court will consider when deciding whether to grant an extension of time to file a motion is the merits of the motion itself: Unifor and its Local 303 v. Scepter Canada Inc., 2022 ONSC 5683 at paras. 21 and 22. Given our conclusion that Ms. Liu’s motion to set aside Leiper J.’s November 21, 2023 decision has no merit, we need not consider all the other elements of the test for granting an extension of time. Having said that, Ms. Liu’s request for an extension of time seems to be part of a persistent pattern of conduct on her part of failing to comply with court filing deadlines and failing to provide an adequate explanation for the delay. Nevertheless, even if we were to exercise our discretion to grant Ms. Liu an extension of time to file her motion under s. 21(5) of the Courts of Justice Act, we would dismiss her motion to set aside Leiper J.’s November 21, 2023 decision.

[20] Because the respondents were not required to file any materials on this motion, there will be no order for costs.

Edwards RSJ.

Sachs J.

Davies J.

Date: February 29, 2024