Court File and Parties
CITATION: McHayle v. Ontario Labour Relations Board, 2024 ONSC 5048
DIVISIONAL COURT FILE NO.: DC-24-0123-JR
DATE: 20240911
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BACKHOUSE, RYAN BELL, O’BRIEN JJ.
BETWEEN:
ERROL MCHAYLE Self-Represented Applicant Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD Aaron Hart, for the Respondent Respondent
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION Emily Home, for the Respondent, Ontario Public Service Employees’ Union Respondent
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, AS REPRESENTED BY THE TREASURY BOARD SECRETARIAT Alana Bujeya, Lisa Compagnone and Marriette Matos, for the Intervenor Intervenor
HEARD at Toronto: September 11, 2024
REASONS FOR DECISION
O’Brien J. (Orally):
[1] The Applicant, Mr. McHayle seeks judicial review of a decision of the Ontario Labour Relations Board. He alleged before the Board that his bargaining agent, OPSEU, violated its duty of fair representation under s. 74 of the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (LRA).
[2] Mr. McHayle’s allegations against OPSEU relate to an amendment to the OPSEU pension plan, of which he was a member. By way of background, when an OPSEU member transfers out of the OPSEU bargaining unit, the person can no longer remain a member of the OPSEU pension plan and, if remaining in the public service, is required to transfer into the Public Service Pension Plan. Before the amendment to the plan, the OPSEU pension plan paid those who terminated their membership and transferred to the Public Service Pension Plan a commuted value excess payment. This payment was the amount by which the member’s credit under the OPSEU pension plan exceeded the amount that OPSEU was required to pay into the other plan.
[3] Effective September 27, 2013, OPSEU and the Crown agreed to amend the OPSEU pension plan. This was called Amendment 22. Under Amendment 22, the OPSEU pension plan was modified to eliminate the payment of commuted value excess payments to transferring members.
[4] Mr. McHayle terminated his membership in the OPSEU pension plan in April 2016 when he accepted a managerial position in the Ontario public service. Because Amendment 22 was in place at that time, Mr. McHayle did not receive a commuted value excess payment.
[5] Mr. McHayle filed his application before the Board on September 28, 2022, alleging OPSEU violated its duty of fair representation by entering into an agreement with the Crown as reflected in Amendment 22.
[6] In a decision dated January 10, 2023, the Board dismissed the application on the basis of delay. The Board was aware Mr. McHayle had pursued complaints and litigation before the Financial Services Commission of Ontario, the Financial Services Tribunal and by judicial review to this court. It rejected Mr. McHayle’s reliance on this other litigation to justify his delay. It stated that a party who prioritizes other litigation does so at its own peril. The Board also was not persuaded by Mr. McHayle’s argument that the complexity of the issues justified his delay since he had no difficulty advancing them in other forums.
[7] The Board refused Mr. McHayle’s request for reconsideration. It did not accept it had committed an “obvious error” in its original decision.
[8] Mr. McHayle makes numerous submissions in his written material and oral argument before this court. I summarize his primary submissions as follows: (1) the Board erred by mischaracterizing his other litigation as showing that he prioritized litigation in another forum; (2) He only became aware of his cause of action against OPSEU shortly before he initiated the application before the Board; (3) The Board did not take into account all the necessary factors related to delay including that OPSEU had not suffered any prejudice; (4) there is no time limit in s. 74 of the LRA for filing a duty of fair representation application; (5) OPSEU’s discrimination is ongoing given the continued impact of Amendment 22 and (6) OPSEU’s conduct was unfair and violated his constitutional rights.
[9] There is no dispute that the standard of review for a decision of the Board is reasonableness. The Board’s decision to dismiss an application for delay is an exercise of discretion. The court will accord a high degree of deference to this type of discretionary decision.
[10] The Board’s decision in this case was reasonable. The Board was entitled to find Mr. McHayle’s decision to pursue other litigation was an unsatisfactory justification for the delay. In addition, it was open to the Board to presume prejudice in circumstances where Mr. McHayle did not start his application against OPSEU until over six years after his pension was transferred to the Public Service Pension Plan. The Board was not required to address all possible factors related to an assessment of delay. Instead, it was reasonable for the Board to emphasize as the most important factor that the delay was substantial and unjustified.
[11] Contrary to Mr. McHayle’s submission, s. 74 did not constitute a relevant legal constraint on the Board’s decision, even though it does not contain a time limit for bringing an application. The Board is entitled to control its own process. It relied on its own case law, which provides that an applicant has the onus of justifying a delay of more than a year and lengthy delays are presumptively prejudicial.
[12] I also do not accept Mr. McHayle’s submission that the Board was precluded from dismissing the application for delay because of what he says is OPSEU’s ongoing discrimination through Amendment 22. Mr. McHayle’s application was brought on his own behalf and sought the payment of the excess commuted value he claimed was due to him on his transfer to a managerial position in 2016. The application did not raise other circumstances or the specific losses of any other OPSEU members. Therefore, the application did not raise any facts that would allow the Board to address allegations of ongoing discrimination. It was not unreasonable for the Board to dismiss the application due to delay on the basis of Mr. McHayle’s particular circumstances.
[13] It was also reasonable, on reconsideration, for the Board to find there was no obvious error in its original decision. The Board explained that a finding of delay does not depend on the applicant’s subjective state of knowledge. It was reasonable for the Board to consider that Mr. McHayle had been aware of the relevant facts for many years and ought to have known he had a claim under the LRA. There was also no error in declining to reconsider its original order because of what Mr. McHayle considers to be important public policy issues. Those issues have been dealt with in other forums and did not require the Board to hear an application with substantial unjustified delay.
[14] Mr. McHayle has made submissions about the merits of his application before the Board including that his constitutional rights were violated. Those issues are not before the court given our finding that the Board’s decision to dismiss the application for delay was reasonable.
[15] Therefore, the application is dismissed.
[16] As agreed by the parties, Mr. McHayle shall pay costs of $1500 to OPSEU. The other parties did not seek costs and none are awarded.
O’Brien J.
I agree:
Backhouse J.
I agree:
Ryan Bell J.
Oral Reasons Released: September 11, 2024
Written Endorsement Released: September 18, 2024
CITATION: McHayle v. Ontario Labour Relations Board, 2024 ONSC 5048
DIVISIONAL COURT FILE NO.: DC-24-0123-JR DATE: 20240911
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BACKHOUSE, RYAN BELL, O’BRIEN JJ.
BETWEEN:
ERROL MCHAYLE Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD Respondent
– and –
ONTARIO PUBLIC SERVICE EMPLOYEES’ UNION Respondent
– and –
HIS MAJESTY THE KING IN RIGHT OF ONTARIO, AS REPRESENTED BY THE TREASURY BOARD SECRETARIAT Intervenor
ORAL REASONS FOR DECISION
O’Brien J.
Oral Reasons Released: September 11, 2024
Written Endorsement Released: September 18, 2024