Court File and Parties

CITATION: Medeiros v. Vacheff, 2024 ONSC 3990

DIVISIONAL COURT FILE NO.: 737/23

DATE: 20240717

SUPERIOR COURT OF JUSTICE – ONTARIO

DIVISIONAL COURT

RE: DANNY MEDEIROS, Applicant/Moving Party

AND:

JAMES VACHEFF, KRAFT CANADA INC., MONDELĔZ CANADA INC., BAKERY, CONFECTIONARY & TOBACCO WORKERS & GRAIN MILLERS INTERNATIONAL UNION, LOCAL 426, Respondents

BEFORE: Matheson J.

COUNSEL: Patrick Di Monte, for the Applicant/Moving Party

Greg McGinnis, for the Respondents Kraft Canada Inc. and Mondelěz Canada Inc.

No one else appearing on the motion.

HEARD at Toronto: In writing.

ENDORSEMENT

[1] Danny Medeiros seeks to bring an application for judicial review more than three years after the decision he wishes to challenge. Mr. Medeiros was a unionized employee of Kraft Canada Inc. in a bakery business that was transferred to Mondelěz Canada Inc. during his employment. Events transpired in 2012 giving rise to a series of proceedings including a civil action brought by Mr. Medeiros. Kraft and Mondelěz, sued in the civil action, applied for an order under s. 31 of the Workplace Safety and Insurance Act, 1997, S.O. 1997, c. 16, Sched. A (the WSIA). Section 31 of the WSIA provides that a party to an action may apply to the Workplace Safety and Insurance Appeals Tribunal to determine whether, because of the Act, the right to commence an action has been taken away.

[2] The Workplace Safety and Insurance Appeals Tribunal granted the application. The Tribunal concluded that the right of action against Kraft and Mondelěz had been taken away by the WSIA. The Tribunal released its decision regarding that application on January 23, 2020 (the Decision).

[3] In November 2023, Mr. Medeiros sought to commence an application for judicial review three years and eight months after the Decision.

[4] The Judicial Review Procedure Act, R.S.O. 1990, c. 11, as amended, currently provides for a 30-day time period to commence an application for judicial review, which may be extended with leave of the court. Under the prior regime, there was no prescribed deadline. However, judicial review is a discretionary remedy and under the prior regime the court would dismiss an application for judicial review where there was undue delay. The court would consider the length of the delay, the reasonableness of any explanation offered for the delay and any prejudice suffered by the respondent as a result of that delay: The Canadian Chiropractic Association v. Dr. Barry McLellan, Coroner, 2011 ONSC 6014 (Div. Ct.), at paras. 14-15.

[5] This Divisional Court file was administered at intake as if it was under the current legislation. However, it is so stale that the Decision predates the introduction of the 30-day time period in 2020. I have therefore proceeded on the basis that the prior regime applies and the onus is on the respondents to show that the application should not be permitted to proceed.

[6] Under the prior regime, this Court has “consistently held that a delay of six months in bringing an application for judicial review and a delay of 12 months in perfecting it is excessive. …Moreover, a substantial delay creates a presumption of prejudice.[citations omitted]”: None of the Above Direct Democracy Party v. Chief Electoral Officer of Ontario, 2022 ONSC 3498 (Div. Ct.), at para. 32.

[7] Mr. Medeiros has put forward an explanation for the delay. He acknowledges that he contemplated bringing an application for judicial review after the Decision came out in 2020. He submits that he then took reasonable steps that explain his delay. Those steps included seeking an expert opinion on his chances of success (which was not ultimately obtained), the Covid-19 Pandemic, conclusions he drew from a newspaper story, and conclusions he drew from an intervening Divisional Court/Court of Appeal decision in what he saw as a related case. Mr. Medeiros also relies on the merits of his proposed claim against Kraft and Mondelěz and the steps he took in his civil action.

[8] Kraft and Mondelěz dispute the above position and submit that this application for judicial review should not be permitted to proceed.

[9] The Decision includes a 16-paragraph agreed statement of facts. While I need not quote it all here, the events in question are briefly described as follows:

On or about July 6, 2012 Medeiros alleged that Vacheff, the Union President at the Lakeshore Bakery at that time, had given him an open handed push on the back. As a result, Kraft carried out an investigation in respect of this allegation. Vacheff stated that he had given Medeiros a friendly tap on the shoulder on July 6, 2012.

[10] As a result of the investigation, the employer concluded that the allegation had been substantiated. The agreed facts continue as follows:

While Kraft concluded that Vacheff had not intended to hurt or threaten Medeiros by tapping him on the shoulder, this physical contact was contrary to Kraft’s Violence in the Workplace Policy and as a result Kraft imposed a one day suspension on Vacheff.

[11] In this Court, Mr. Medeiros also submits that Mr. Vacheff uttered offensive and threatening words at the time of the above incident and that the incident caused Mr. Medeiros to develop anxiety and stress and related physical conditions.

[12] The agreed facts recount that Mr. Medeiros stopped attending work in 2012, citing both fear of Vacheff and medical conditions related to his encounter with Vacheff. Among other things, he applied for benefits under the WSIA. By a decision in 2013, the benefits claim under the WSIA was unsuccessful. An appeal from that decision was brought and adjourned and was still outstanding at the time of the Decision. Mr. Medeiros also brought an application to the Ontario Labour Relations Board, which was unsuccessful, and commenced a civil action in the Ontario Superior Court. The civil action gave rise to the s. 31 application by Kraft and Mondelěz, two of the defendants named in that action. Mr. Vacheff and the Union were also named as defendants but the Decision does not rule out the action as against them. They did not make an application under s. 31 of the WSIA.

[13] In the Decision, the Tribunal applied the WSIA and found that Kraft and Mondelěz were both Schedule 1 employers, Medeiros and Vacheff were both workers for Schedule 1 employers, and Medeiros filed a WSIA claim in relation to the July 6, 2012 incident. The Tribunal considered the events and concluded that the claim for damages in the civil action flowed from the July 6, 2012 workplace injury and therefore fell squarely within s. 26 of the WSIA. Section 26 provides that all claims for benefits under the insurance plan shall be heard and determined by the Board. As a result, the right to sue the employer was taken away by the WSIA.

[14] Moving to Mr. Medeiros’ explanation for his lengthy delay, I have considered all of his reasons. While seeking an opinion is reasonable, a substantial delay is not. Further, there was no response from the lawyer who he sought to retain back in 2020. The Covid-19 Pandemic is certainly a reason why an application could not be commenced during the period following the March 2020 shutdown, but an application was not commenced in a timely way after the shutdown was lifted.

[15] Mr. Medeiros relies on an article from the October 26, 2020 Toronto Star. He read the article, entitled “Harassed and Taunted at the Job but she can’t sue ex-employer” about a Ms. Morningside having been foreclosed from suing her employer. Mr. Medeiros attests that at that time he believed that his remedies were at an end (except for his appeal at the Board). There was then a Divisional Court decision released in August 2021, specifically Morningstar v. WSIAT, 2021 ONSC 5576. In that case, the Court found that a claim for constructive dismissal was not barred by s. 31 of the WSIA, while other claims, including claims of harassment, were. The underlying Tribunal decision was quashed as regards the constructive dismissal claims and related damages, but not as regards the other claims. Mr. Medeiros attests that he believed that this decision did “open the door” for judicial review of the Decision, at least on the subject of constructive dismissal.

[16] Despite this reliance on Morningstar, Mr. Medeiros acknowledges that as unionized employee he could not sue for wrongful dismissal (including constructive dismissal). Further, a party cannot await the ebb and flow of potential legal developments to justify what is, in this case, a very substantial delay.

[17] There were also (infrequent) communications between counsel in April 2020 (mentioning judicial review) and in March and April 2022 (mentioning Morningstar, an intention to bring an urgent application for judicial review and mentioning settlement negotiations). In early 2023, there was correspondence regarding settlement. In the 2023 communications, responding counsel wrote noting that it was then long past any conceivable timeframe to pursue judicial review of the Decision. The application for judicial review was not submitted until November 2023, which happens to be after the respondents brought a motion for summary dismissal of the civil action. Mr. Medeiros also relies on the steps he took in furtherance of that civil action.

[18] At best, the events put forward amount to saying that some steps were taken, some efforts were made, and some conclusions were drawn about the merits of bringing an application for judicial review. I accept that there is an explanation for some delay, but the delay was well past reasonable. A party cannot wait and see how other initiatives turn out, or how the law develops, and expect to proceed with an application for judicial review after a delay of three years and eight months.

[19] Mr. Medeiros further submits that there is no prejudice. He submits that the facts are established. He then focuses on the Union (which is apparently non-operational) and Mr. Vacheff (who has passed away). However those parties are not the subject of the Decision. The well-established jurisprudence quoted above supports the submissions of Kraft and Mondelěz that with this length of delay, prejudice is presumed.

[20] Lastly, on the merits, Mr. Medeiros makes submissions about the merits of his civil claim and challenges the concept that his civil claim can or should be precluded by the workers’ compensation regime. Mr. Medeiros further submits that this court should exercise its inherent jurisdiction to hear this application, relying on the inherent jurisdiction of the Superior Court. However, the Divisional Court is a statutory court. It does not have the inherent jurisdiction to proceed as suggested by Mr. Medeiros.

[21] I have considered all the evidence and the submissions and conclude that the respondents have established that the proposed application for judicial review should be dismissed for delay. In turn, the motion is dismissed. Mr. Medeiros sought costs of $7,500. The respondents, the successful parties, have delivered a costs outline supporting their claim for a lower amount of costs. Mr. Medeiros shall pay costs fixed at $3,200, all inclusive.

Matheson J.

Date: July 17, 2024