Court File and Parties

CITATION: Parikh v. Walmart Canada Corporation et al., 2024 ONSC 6964

DIVISIONAL COURT FILE NO.: 409/24

DATE: 20241212

SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT

RE: Jitesh Parikh, Applicant

-and-

Walmart Canada Corporation, Respondent

BEFORE: FL Myers J

COUNSEL: Jitesh Parikh, self-represented Applicant Edward O’Dwyer and Kelly Brennan, for the Respondent Walmart Canada Corp. William Robinson, for the Respondent Director under the Occupational Health and Safety Act, Andrea Bowker, for the Ontario Labour Relations Board

HEARD: December 11, 2024

Endorsement

[1] Mr. Parikh seeks judicial review of the decisions of the OLRB dated June 2 and 17, 2024 refusing to extend the time for him to appeal an order dated November 30, 2022 made by a Ministry of Labour Inspector under the Occupational Health and Safety Act.

[2] The Occupational Health and Safety Act allows appeals to the OLRB to be brought within thirty days of an inspector’s decision. Mr. Parikh advanced his appeal approximately 17 months after the order.

[3] The OLRB has the discretionary authority to extend the 30-day time limit. It chose not to do so in this case on the evidence and submissions before it.

[4] Mr. Parikh asks for:

a. A stay of the OLRB’s orders pending the hearing of the application for judicial review;

b. An order allowing him to rely on certain evidence that he says supports his claims; and

c. An order allowing him to deliver a Notice of Constitutional Question to raise constitutional issues that were not in issue before the OLRB.

The Background

[5] In October, 2022 Mr. Parikh made a complaint under the Occupational Health and Safety Act against his employer Walmart. The gravamen of the complaint was that Walmart allowed individuals into the workplace who harmed and intimidated Mr. Parikh because of his ethnicity and nationality. Mr. Parikh lays out a complicated story about sectarian violence and criminality in India and Canada that he says affected him.

[6] Mr. Parikh also says that Walmart prevented him from testifying as a witness at a criminal trial in relation to the foregoing matters and ultimately fired him for his involvement.

[7] Mr. Parikh says there were at least six incidents of criminality at the workplace and neither Walmart nor the Inspector was willing to document them. Mr. Parikh says something very similar happened to him at his prior employment with Staples Canada. The same people came into the workplace to harass, intimidate, and injure him. He says that since he has left Walmart members of his community continue to be harassed and he wants to ensure that they do not suffer the ignominy to which he has been subjected by various parties refusing to verify his complaints.

[8] The hearing of the application for judicial review is scheduled for January 21, 2025.

[9] In my view the single overriding consideration before me today is to ensure that the hearing goes ahead so that Mr. Parikh can have a full airing of his issues on their merits before the panel of three judges. It serves no one’s interest for this proceeding to become bogged down in procedural matters and costs.

A Stay of Execution

[10] When lawyers speak of a “stay” of an order, they are using a shortform. The proper phrase is actually a “stay of execution” of the order. The stay prevents the order from being “executed” or “acted upon” or “carried out.” A stay is used to prevent the execution of the order from causing irreversible harm while an appeal or a review of the order is under way. For example, a tenant’s eviction order may be stayed so that the tenant can have the order reviewed without being evicted first.

[11] The orders being reviewed in this case are refusals to extend the time for Mr. Parikh to appeal to the OLRB. No relief was granted. There is no order to be executed or put into place. Staying a refusal to extend time does not extend the time. Mr. Parikh needs to succeed on the judicial review application to have the OLRB’s order reversed. Staying an order refusing to extend time does not do anything.

[12] Mr. Parikh submits that he is being subjected to harassment and embarrassment in the community because his OLRB appeal was dismissed. He submits that a stay would help him respond to critics.

[13] I do not accept that argument. Making an order that has no substantive content and no effect has no bearing on any harassment or embarrassment being suffered by Mr. Parikh.

Further Evidence

[14] As to the evidence that Mr. Parikh wishes to put before the court, the respondents agree that this issue should be left to the panel. The evidence is all uploaded to Case Center already. The Director and Walmart have already dealt with the Mr. Parikh’s request to add to the evidentiary record in their factums for the main hearing. The OLRB will be delivering its factum and it too will likely take the position that material that was not before it ought not be part of this judicial review proceeding.

[15] Judicial review is not a new trial at which new evidence is considered and new facts are found. Rather judicial review is a process whereby the court assesses the reasonableness of the decision of a tribunal. The court is required to pay respectful attention to the tribunal’s reasons and to assess whether the reasons are justifiable, transparent, and intelligible. See: Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65

[16] At the hearing in January, the court will consider the reasonableness of what the OLRB wrote and decided based on the evidence and submissions that were made to the tribunal at the time.

[17] New evidence does not usually help the court assess the reasonableness of what a tribunal did on the material that was in evidence before it. Therefore, new evidence is usually not admitted on a judicial review application. See: Association of Universities and Colleges of Canada v. Canadian Copyright Licensing Agency (Access Copyright), 2012 FCA 22.

[18] But there are exceptions. As discussed by Stratas JA in Association of Universities and Colleges:

(a) Sometimes this Court will receive an affidavit that provides general background in circumstances where that information might assist it in understanding the issues relevant to the judicial review: see, e.g., Estate of Corinne Kelley v. Canada, 2011 FC 1335 at paragraphs 26-27; Armstrong v. Canada (Attorney General), 2005 FC 1013 at paragraphs 39-40; Chopra v. Canada (Treasury Board) (1999), 1999 8044 (FC), 168 F.T.R. 273 at paragraph 9. Care must be taken to ensure that the affidavit does not go further and provide evidence relevant to the merits of the matter decided by the administrative decision-maker, invading the role of the latter as fact-finder and merits-decider. In this case, the applicants invoke this exception for much of the Juliano affidavit.

(b) Sometimes affidavits are necessary to bring to the attention of the judicial review court procedural defects that cannot be found in the evidentiary record of the administrative decision-maker, so that the judicial review court can fulfil its role of reviewing for procedural unfairness: e.g, Keeprite Workers’ Independent Union v. Keeprite Products Ltd. (1980) 1980 1877 (ON CA), 29 O.R. (2d) 513 (C.A.). For example, if it were discovered that one of the parties was bribing an administrative decision-maker, evidence of the bribe could be placed before this Court in support of a bias argument.

(c) Sometimes an affidavit is received on judicial review in order to highlight the complete absence of evidence before the administrative decision-maker when it made a particular finding: Keeprite, supra.

[19] The law is the same in Ontario. See: Gao v. Health Profession Appeal and Review Board, 2023 ONSC 742 at para. 16 and Keeprite cited above.

[20] Some cases have held that a single judge should not decide on fresh evidence as only the panel hearing the application can assess its utility and admissibility. Other cases have held that where the outcome is clear, it is efficient for a single judge to make evidence determinations in advance of the main hearing of the application.

[21] In Lockridge v. Director, Ministry of the Environment, 2012 ONSC 2316 Harvison Young J (as she then was) reconciled the competing policies in this way:

[50] These two principles, considered within the context of the present case, are by no means irreconcilable. Defining the record appropriately in advance of the hearing enhances the panel’s ability to determine the merits, and is thus in the interests of justice. As I will discuss below, there is material contained within the affidavit material that is clearly inadmissible and should be struck. On the other hand, this court must take care not to usurp the role of the panel in determining the merits. In case of doubt concerning the admissibility of affidavit material filed, it should not be struck.

[22] It is not clear to me whether some of Mr. Parikh’s material was put into evidence before the OLRB. I am also unaware of whether he has delivered a sworn affidavit as required. The court will not just look at loose documents uploaded to Case Center. A witness needs to swear or affirm in an affidavit that the documents are authentic. The documents should be attached as exhibits to the affidavit and their authenticity should be stated in the body of the affidavit.

[23] There is sufficient doubt in my mind about the admissibility and purpose of the documents being advanced by Mr. Parikh that, with the consent of the other parties, I defer the issue of admissibility to the panel that hears the application.

Constitutional Questions

[24] Mr. Parikh seeks to raise constitutional issues in this judicial review proceeding. He says that they are very important issues for him and his community. He asks for the court’s assistance with the wording of a Notice of Constitutional Question as required under the Courts of Justice Act, RSO 1990, c.43.

[25] Mr. Parikh articulated to me four possible constitutional claims:

a. That University of Toronto discriminated against him when it expelled hm from his MBA programme at Rotman School of Management;

b. That police and other government officials to whom he has brought his concerns have discriminated against him by labelling him as mentally ill and otherwise refusing to act on his complaints and evidence;

c. That police have violated his rights by failing to investigate his complaints; and

d. Walmart violated his rights by firing hm and failing to protect him from intimidation and harm from third parties.

[26] Mr. Parikh says that he has been injured in his integrity and social standing by government suggestions that he suffers from undiagnosed mental illness. He also wants to ensure that his complaints are investigated and acted upon to protect others in the Hindu community who are being threatened here and in India by those forces who want them to leave Canada. He does not want others to suffer the humiliation and legal roadblocks that he has endured for the past several years in trying to expose the criminality that he has witnessed and heard about.

[27] I told Mr. Parikh at the case conference, that this judicial review applicant is not the right place to bring these kinds of complaints. This proceeding deals only with the question of whether the OLRB was reasonable in refusing to extend the time for him to appeal from the decision of the Inspector under the Occupational Health and Safety Act in 2022. His proposed defendants (U of T, police services, the federal government etc.) are not even part of this case.

[28] The Divisional Court does not have jurisdiction to undertake Charter of Rights and Human Rights Code complaints generally. Mr. Parikh is free to sue the government and others in an action in the Superior Court of Justice and, if under the Human Rights Code, then before the Human Rights Tribunal. I understand that Mr. Parikh has already had some experience with this tribunal although I am uncertain if it was in relation to Walmart or Staples Canada. He may also have complaints to the Law Enforcement Complaints Agency.

[29] It is unfortunate when legal technicalities interfere with an individual’s efforts to make his or her case to a judge in a court of law. I understand that Mr. Parikh views his issues as most pressing and dire. But the Divisional Court is a court with limited statutory jurisdiction. His proposed human rights issues cannot be brought in this judicial review proceeding.

[30] Therefore Mr. Parikh cannot deliver a Notice of Constitutional Question in this application.

Date: December 12, 2024