Court File and Parties

CITATION: Malekzadeh v. Ontario Labour Relations Board, 2024 ONSC 2559

DIVISIONAL COURT FILE NO.: 553/22

DATE: 2024-05-03

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: MINA MALEKZADEH, Applicant

AND:

THE ONTARIO LABOUR RELATIONS BOARD, CITY OF TORONTO, CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 79, TINA SCOTT, JASON BAKER, RHONDA BRITTON, AMANDI C. ESONWANNE, CHARLES VANVLIET, JENNIFER FARRELL, STELLA COADY, MICHAEL A. CHURCH and CALEYWRAY LAWYERS, Respondents

BEFORE: Lococo, Matheson and Mew JJ.

COUNSEL: Self-represented Applicant

Stephanie Moutsatsos, for the Respondents City of Toronto, Jason Baker, Tina Scott, Rhonda Britton and Amandi Esonwanne

Sukhmani Virdi, for the Respondents Canadian Union of Public Employees Local 79, Charles Vanvliet, Jennifer Farrell, Stella Coady, Michael A. Church and CaleyWray Lawyers

Andrea Bowker, for the Respondent Ontario Labour Relations Board

HEARD: May 1, 2024, in Toronto

Endorsement

[1] In this application for judicial review, the applicant seeks relief in relation to a series of decisions of the Ontario Labour Relations Board (OLRB) arising from her layoff and a letter of expectation issued to her by the City.

[2] The City of Toronto and the Canadian Union of Public Employees, Local 79 (the Union) submit that this application should be dismissed as premature. After hearing submissions, we adjourned the application due to prematurity with reasons to follow. These are those reasons.

[3] The applicant commenced four applications at the OLRB, alleging breach of the duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A,, reprisals resulting a breach of the Occupational Health and Safety Act, , R.S.O. 1990, c. O.1, unfair labour practices, and breaches of the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A. The applications all arise from the same employment history.

[4] The applications made to the OLRB were dismissed for failure to show a prima facie case. On three of the four applications, the applicant’s requests for reconsideration were unsuccessful. On the fourth application, regarding the duty of fair representation, the OLRB granted the request for reconsideration. That matter is ongoing at the OLRB.

[5] It is settled law that applications for judicial review of the decisions of administrative tribunals should not be brought until the completion of the tribunal’s proceedings. They are premature. Unless there are exceptional circumstances, the administrative proceedings should be completed first. In this case, one application is ongoing and there may then be a reconsideration arising from that decision.

[6] The applicant submits that there are exceptional circumstances. Among other things, she emphasizes that only a small part of her OLRB proceedings remain outstanding, she has already prepared substantial court materials, and she has waited a long time for her court hearing. She also submits that she continues to prepare materials.

[7] We recognize that three of the four OLRB applications have been finally disposed of. However, one remains and all four arise from a common factual basis. In the circumstances of this case, to proceed now would create the very fragmentation, inefficiency and risk of inconsistent findings that inform the prematurity principle. We therefore conclude that the application is premature, and we do not exercise our discretion to hear it. We have addressed some of the applicant’s concerns through our disposition of the application.

[8] The application for judicial review is adjourned to a date to be set by the Registrar after the final decision on the applicant’s outstanding application before the OLRB. In particular, within 60 days from the decision of the OLRB on the remaining application, or within 60 days from the reconsideration decision (if reconsideration is requested), the applicant shall serve and file an amended notice of application or advise the Court if she does not intend to proceed. If proceeding, the parties shall request a case conference to address scheduling of the needed steps for the application for judicial review and directions for scheduling the hearing. The court materials that have already been delivered on this application may still be used, with any amendments permitted when the new schedule is set.

[9] Costs are left to be determined by the panel hearing the application for judicial review.

Lococo J.

Matheson J.

Mew J.

Date: May 3, 2024