CITATION: Kuca v. George Brown College, 2024 ONSC 6565
DIVISIONAL COURT FILE NO.: DC-13-00000060-0000 DATE: 20241129
ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT
BETWEEN:
Self-represented Appellant
Bonnie Roberts Jones, for the Respondent
Laura Kuca
Appellant
– and –
George Brown College
Respondent
HEARD at Toronto: September 23, 2024
Shore J.
REASONS FOR DECISION
[1] The Appellant, Ms. Kuca, filed an appeal to this court that belonged at the Ontario Court of Appeal ("ONCA"). She now seeks an order pursuant to s. 110 of the Courts of Justice Act, R.S.O., 1990, c. C-43, transferring the Divisional Court file to ONCA. George Brown College (the "Respondent" or "George Brown") opposes the requested transfer order.
[2] The Appellant appeals the January 2, 2013, decision where Justice Chiappetta determined that George Brown College did not violate the September 2011 arbitration award.
[3] The appeal commenced over ten years ago, on January 30, 2013.
[4] For reasons that follow, the motion is dismissed.
Material Facts:
[5] Below is a summary of the events leading up to the appeal. Details, not germane to this motion, such as the dates various cheques were issued, are removed to keep the summary succinct.
[6] On November 23, 1981, the Appellant started working at George Brown. On November 24, 2008, the Respondent terminated the Appellant's employment for cause.
[7] The Appellant was a member of a bargaining unit represented by the Ontario Public Service Employees Union (the "Union"). On November 25, 2008, the Appellant filed a grievance with respect to her termination. The grievance was referred to arbitration before the Arbitration Board (the "Board").
[8] On November 2, 2010, the Board issued its award and ordered the Respondent to compensate the Appellant for her loss of employment.
[9] A supplementary award was issued on September 26, 2011, wherein the Board ordered the Respondent to pay the Appellant damages in the sum of $127,059, as compensation for her loss of employment.
[10] In the supplementary award, the Board ordered the Respondent to comply with any lawful direction by the Appellant, received within 30 days of the date of the award to pay the compensation in a particular manner to minimize the impact of income tax.
[11] On October 6, 2011, counsel for the Union emailed the Respondent's counsel with the Appellant's directions. The direction requested that the Respondent pay the Appellant in three installments, over a three-year period, 2011, 2012 and 2013.
[12] At no time during the 30-day period did the Appellant direct the Respondent to pay any portion of the damages award directly to her Registered Pension Plan ("RPP").
[13] The Respondent followed the instructions. The cheques were reissued a few times because of disagreements regarding pre-and post-judgement interest and the Appellant's failure to cash the cheques before they became stale dated.
[14] On December 8, 2011, the Appellant commenced an application at the Superior Court, seeking to enforce the Board's supplementary award terms. However, the Appellant did not serve the Respondent.
[15] On June 25, 2012, counsel for the Respondent received a letter from the Appellant's newly retained lawyer. The letter returned the cheques and asked that the cheques be re-issued payable to the Appellant's RPP.
[16] This is the first time the Respondent received instructions to make the payments to an RPP.
[17] The cheques were reissued, but payable to the Appellant, as per the initial directions. Ultimately, the Appellant cashed the cheques.
[18] In October 2012, the Appellant issued an amended application, claiming that the Respondent did not follow her instructions. The Appellant served this application on the Respondent.
[19] In January 2013, Justice Chiappetta heard the application. The real issue before the court was whether the Respondent complied with the award.
[20] Justice Chiappetta found that the Respondent complied with the award: the Appellant provided her directions regarding the manner of paying the damages award, within 30 days; there were no other directions given within the 30 days; and the Respondent complied with those directions. Justice Chiappetta dismissed the application.
[21] On January 30, 2013, the Appellant appealed the order to the Divisional Court.
[22] On July 31, 2013, the Registrar issued a Notice to Dismiss the Appeal because the Appellant had not perfected or set down the appeal for a hearing. The Appellant brought a motion seeking an order extending the time for her to perfect the appeal. Justice Aston made an order permitting the Appellant 60 days to perfect the appeal. The appeal was perfected, and the Registrar sent out a notice that the parties must complete a Hearing Request Form to set the matter down for a hearing.
[23] On February 4, 2014, the Respondent served their material.
[24] The Appellant took no further steps and did not complete the Hearing Request Form.
[25] The Appellant did not communicate further until July 18, 2022, 8 years later, and then not again until December 2023, when the Appellant advised the Respondent that she would be asking the court to schedule the appeal.
[26] On February 21, 2024, the Appellant served a Notice of Motion for an order extending the time to allow for the scheduling of the appeal, an order permitting an amendment to the grounds for appeal, and an order allowing her to seek damages from the Union.
[27] The matter came before Justice Myers as the case management judge. Justice Myers and the parties discussed and agreed that the parties were in the wrong court and that the matter should have been appealed to ONCA. Justice Myers scheduled this motion, to address the transfer of the appeal from the Divisional Court to ONCA.
Analysis:
[28] Section 110(1) of the Courts of Justice Act provides: "[w]here a proceeding or a step in a proceeding is brought or taken before the wrong court, judge or officer, it may be transferred or adjourned to the proper court, judge or officer." Whether to do so is a matter of discretion.
[29] In exercising my discretion, there are three criteria to consider:
(a) Does the Appellant have a meritorious appeal?
(b) Will the Respondent suffer undue prejudice as a result of further delay while the appeal is waiting to be heard by ONCA?
(c) Has the Appellant moved expeditiously after becoming aware that jurisdiction was an issue?
[30] Applying those criteria, the Respondent argues that this court should exercise its discretion against transferring the appeal to ONCA and instead dismiss the appeal for want of jurisdiction.
[31] I have considered each factor in turn, and I find that the appeal has little to no reasonable chance of success.
[32] In considering whether the appeal is meritorious, the court must consider whether the Appellant has an arguable case that could reasonably, but not necessarily be successful. Justice Chiappetta found that the Respondent complied with the Board's award and stated the following:
The applicant asserts non-compliance with the supplementary award due to the failure to have the severance amount award or portion thereof transferred to her RPP. There is no evidence submitted, however, that the applicant or the applicant's union directed the respondent to transfer the amount awarded or a portion thereof within the 30 days as set out in the supplementary award. [emphasis added].
[33] Justice Chiappetta's decision is sound and reasonable. I find that the appeal has no reasonable chance of success.
[34] Although the Appellant moved promptly in bringing her motion when she realized she was in the wrong court, the Appellant failed to provide a reasonable explanation for her delay of over 10 years in bringing this appeal to fruition. George Brown considered the matter resolved and closed their file. In this case, prejudice can be assumed given the lengthy passage of time and the Appellant's complete inaction. The test is whether the delay in transferring the matter to ONCA will cause prejudice, but based on the circumstances of this case, I find it is not in the best interest of justice to exercise my discretion and make the transfer order.
[35] The motion for transfer is dismissed. The appeal is dismissed.
___________________________ Shore J.
Released: November 29, 2024
CITATION: Kuca v. George Brown College, 2024 ONSC 6565
DIVISIONAL COURT FILE NO.: DC-13-00000060-0000 DATE: 20241129
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
BETWEEN:
Laura Kuca
Appellant
– and –
George Brown College
Respondent
REASONS FOR DECISION
Shore J.
Released: November 29, 2024