Court File and Parties
CITATION: Malekzadeh v. OLRB et al., 2025 ONSC 6323
DIVISIONAL COURT FILE NO.: 553/22
DATE: 20251117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Varpio, Corbett and O’Brien JJ.
BETWEEN:
MINA MALEKZADEH Applicant
– and –
ONTARIO LABOUR RELATIONS BOARD Respondent
- and –
CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 79, JENNIFER FARRELL, STELLA COADY, CHARLES VANVLIET, MICHAEL A. CHURCH and CALEYWRAY LAWYERS Respondents
- and –
CITY OF TORONTO, TINA SCOTT, JASON BAKER, RHONDA BRITTON and AMANDI C. ESONWANNE Respondents
Counsel:
Self-Represented
Andrea Bowker/Aaron Hart, for the Respondent, Ontario Labour Relations Board
Sukhmani Virdi, for the Respondents, Canadian Union of Public Employees Local 79, Jennifer Farrell, Stella Coady, Charles VanVliet, Michael A. Church and CaleyWray Lawyers
Stephanie Moutsatsos, For the Respondents, City of Toronto, Tina Scott, Jason Baker, Rhonda Britton and Amandi C. Esonwanne
HEARD: June 5, 2025
REASONS FOR JUDGMENT
[1] This is an application for judicial review brought by Ms. Malekzadeh who is a former City of Toronto (the “City”) employee. She received a letter of expectation on March 31, 2015 and was laid off on June 3, 2015. CUPE filed two grievances on her behalf on June 11, 2015.
[2] In the six months after she was laid off, Ms. Malekzadeh applied to 12 jobs posted by the City. She was unsuccessful. She states in her materials (without evidence) that she told CUPE that she wanted to grieve these job applications, and that union representatives told her the post-layoff applications were within the scope of the grievances. She did not ask CUPE to file a separate grievance in relation to these applications.
[3] After arbitration, both grievances were dismissed on August 4, 2021.
[4] Ms. Malekzadeh then commenced four applications at the OLRB, bearing OLRB Case numbers:
0902-21-U – This application involved allegation that CUPE violated its duty of fair representation under the Labour Relations Act, 1995, S.O. 1995, c. 1, Sched. A (“LRA”);
0903-21-UR – This application involved an allegation that the City and others engaged in reprisal contrary to the Occupational Health and Safety Act (“OHSA”), R.S.O. 1990, c. O.1;
0904-21-U – This application involved an allegation that the City and others committed unfair labour practices contrary to the LRA; and
0905-21-UR – This application involved an allegation that the City and others violated reprisal provisions under the Public Service of Ontario Act, 2006, S.O. 2006, c. 35, Sched. A [“PSOA”].
[5] On February 28, 2022, the Ontario Labour Review OLRB (“OLRB”) dismissed three of the applications:
0903-21-UR: The OLRB decided that the alleged retaliation under the OHSA was dealt with by the arbitrator and that Ms. Malekzadeh was not permitted to bring a duplicate proceeding before the OLRB;
0904-21-U: The OLRB decided that the facts pled did not disclose anti-union animus on the part of any respondent or that CUPE interfered with the formation of an employer’s organization, interfered with the exercise of bargaining rights or operated or controlled a hiring process. Thus, Ms. Malekzadeh did not plead a prima facie breach of ss. 71-76 of the LRA; and
0905-21-UR: The OLRB decided that Ms. Malekzadeh was not a public servant within the meaning of the PSOA.
[6] Ms. Malekzadeh sought reconsideration of the OLRB’s decision to dismiss three of her four applications. On August 31, 2022, the OLRB dismissed the reconsideration request, finding that the Applicant’s submissions were “repetitive and amount largely to a re-statement of positions taken and arguments made in submissions that were considered prior”.
[7] The OLRB also dismissed the application in File No. 0902-21-U, which was the only one of the four applications not entirely dismissed by the OLRB Applications Decision. The Vice-Chair of the OLRB found that while the Applicant filed a timely amended request for relief (now seeking $5,000,000 rather than $45,000,000), that amendment did not convince the Vice-Chair that it would serve any labour relations purpose to inquire further into the application.
[8] On June 22, 2023, the OLRB granted a reconsideration request to File No. 0902-21-U. Ms. Malekzadeh made claims of bias as against, inter alia, the Vice-Chair in this matter and the OLRB found that the claims were without merit. The OLRB held that its members are appointed because they have expertise so the Vice-Chair’s past work as counsel for a union did not ground an argument for bias, nor did his work as a private arbitrator and a member of a professional association related to that work. Similarly, no reasonable apprehension of bias arose from the fact that the arbitrator in the arbitration proceeding was previously an OLRB member. Finally, the fact that CUPE’s counsel had previously appeared before the Vice-Chair did not ground a reasonable apprehension of bias.
[9] This second reconsideration request was granted “due to an administrative oversight” because the applicant’s submissions of March 15, 2022 were not before the Vice-Chair when the OLRB decided the first reconsideration decision. Though the Vice-Chair found that the amended monetary sum sought “may prove to be excessive”, the Vice-Chair was convinced that the claim was compensatory rather than punitive, as it amounted to a claim for a loss of opportunity to access the grievance and arbitration provisions of the relevant collective agreement.
[10] The OLRB scheduled a new hearing on the issue of whether CUPE breached its duty of fair representation by failing to file a grievance in respect of Ms. Malekzadeh’s post-layoff job applications.
[11] The OLRB heard and dismissed Ms. Malekzadeh’s claim based on CUPE’s alleged failure to file a grievance in respect of her post-layoff job applications. Between hearing dates, Ms. Malekzadeh sought to file additional materials containing further arguments. These materials were rejected. The OLRB also denied her request to revise the damages she sought from $5 million in compensatory damages to $6.2 million in compensatory damages and $45 million in punitive damages.
[12] Ms. Malekzadeh’s conceded that she did not ask CUPE to file a separate grievance relating to her post-layoff applications for jobs with the City. Rather, she submitted that the union’s representatives had informed her that there was no need to file a separate grievance because those issues fell within the scope of the grievances that had already been filed.
[13] The Vice-Chair accepted the evidence of CUPE’s witnesses: CUPE’s representative did not tell Ms. Malekzadeh that her outstanding grievances would encompass post-layoff job applications. The CUPE representative merely told her to keep notes about such applications in case she wanted to pursue such a grievance later. Ms. Malekzadeh indicated in a subsequent meeting that she did not want to return to work with the City. The OLRB found that CUPE fully and fairly considered whether to file a grievance relating to the post-layoff job applications in light of the information it had. It did not act in a manner that was arbitrary, discriminatory or that constituted bad faith.
[14] Ms. Malekzadeh requested that the OLRB reconsider its decision. The OLRB dismissed all of her arguments, including allegations that:
The title of the proceeding did not list all of the respondents;
The OLRB erred by making her proceed with her case first;
The OLRB improperly placed the onus on her to prove a breach of the duty to fair representation;
The OLRB erred in finding that Ms. Malekzadeh conceded that she had not asked CUPE to file a separate grievance for the post-layoff job applications; and
The OLRB improperly dealt with Ms. Malekzadeh’s proposed remedy.
[15] The OLRB held that these arguments were attempts to re-argue the OLRB’s determination that CUPE did not breach the duty of fair representation or were attempts to litigate issues that were not properly before the OLRB. While Ms. Malekzadeh complained that the OLRB did not address all her submissions, many of the issues she raised were not relevant to the subject-matter of the hearing, and many of the matters raised by Ms. Malekzadeh fell outside the OLRB’s jurisdiction. The OLRB found that it had no obligation to review the thousands of pages Ms. Malekzadeh submitted to discern her arguments. The OLRB also found that Ms. Malekzadeh wrongly asserted that there was an inappropriate relationship between CUPE’s lawyers and the OLRB and, contrary to her submission, the OLRB found that there was no improper communication as between the OLRB and the lawyers.
[16] The applicant seeks judicial review of these decisions and has filed volumes of materials in this court. She appears to argue that the OLRB decisions were unreasonable and that the process undertaken by the OLRB, that is the OLRB made its decisions on a written record, is also unreasonable.
STANDARD OF REVIEW
[17] The presumptive standard of review for all questions on judicial review is reasonableness, per Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65 (“Vavilov”).
[18] The Supreme Court in Society of Composers, Authors and Music Publishers of Canada v. Entertainment Software Association, 2022 SCC 30, at paras. 26-42, set out several exceptions where the presumption of reasonableness review will be rebutted. In each of the following cases, the court will review the administrative decision on a correctness standard:
Issues engaging constitutional questions;
General questions of law of central importance to the legal system as a whole;
Questions related to the jurisdictional boundaries between two or more administrative bodies; and
Issues over which an administrative decision maker shares with the courts concurrent first instance jurisdiction.
[19] For issues of procedural fairness, there is no standard of review: Afolabi v. Law Society of Ontario, 2025 ONCA 257, at para. 60. the court must apply the factors outlined in Baker v. Canada (Minister of Citizenship and Immigration), [1999] 2 SCR 817.
ANALYSIS
[20] It must first be noted that the applicant’s written materials were extensive, contained a considerable amount of irrelevant material, and were poorly organized. Her oral submissions were difficult to follow and often contained inflammatory suggestions presented in a “stream of consciousness”. For example, in her oral submissions, the applicant submitted that the OLRB is biased as against her as an institution. She asked that her matter be remitted to the Superior Court of Justice for a hearing on the merits. She stated that the OLRB had secret meetings as regards her files. She submitted that representatives from the City colluded against her. She submitted that the union failed to raise her concerns despite the fact that she had prepared thousands of pages of materials through the years.
[21] The OLRB has been in existence for decades and is a highly specialized tribunal. There is no factual basis for the submission that the OLRB is biased against the Applicant. The same analysis is applicable to the Applicant’s sweeping statements about the conduct of opposing counsel, OLRB officials, alleged “secret meetings” as between officials and other such submissions. There is simply no admissible evidence to support these claims and no air of reality to them.
[22] Secondly, the OLRB afforded the applicant procedural fairness. We would first note that the applicant in the matter filed several hundreds, if not thousands, of pages in support of her positions at the OLRB (and before this court). Rather than constituting a failure to afford the complainant with procedural fairness, it is clear from the record that the OLRB extended considerable opportunity to the applicant to pursue her case. She was able to put a considerable amount of material before the tribunal and was able to rely upon same. Indeed, the following Baker factors auger in favour of the process adopted by the OLRB:
The decision being made could easily be made via written record;
The OLRB’s governing statute is powerful and the OLRB is given considerable latitude.[^1];
Ms. Malekzadeh could not have had a reasonable expectation to have viva voce evidence following up on hundreds of pages of written submissions; and
The written record is a robust process that can allow for determinations of fact as well as for findings of credibility in appropriate circumstances.
[23] The process chosen by the OLRB was therefore fair in the circumstances.
[24] Third, the applicant submitted that the OLRB’s decisions were inherently unreasonable. However, and despite being asked by the President of this panel to point to errors in the OLRB decisions on several occasions, the applicant did not point to any such error. Rather, it is clear that the OLRB found that the applicant failed to plead any facts capable of supporting her claim in three of her four grievances. In the fourth grievance, the OLRB considered the evidence filed, made determinations that were based upon that evidence, and drew conclusions that were reasonable. During reconsideration, the OLRB probed areas of concern raised by the applicant and satisfied itself of the justification for its decisions.
[25] There is thus no basis to interfere with the OLRB’s decisions.
CONCLUSION
[26] For the reasons set out above, the application is dismissed.
COSTS
[27] The City seeks $1,500 in costs while CUPE seeks $1,000. For her part, the applicant seeks $160,000 in costs.
[28] Given that winning parties in such applications regularly receive $5,000 or even $10,000 in costs, the Costs sought by the City and CUPE are reasonable.
[29] The applicant shall pay the City $1,500 in costs and CUPE $1,000 in costs. These sums shall be paid within thirty days of the release of these reasons.
“Varpio J.”
“D.L. Corbett J.”
“O’Brien J.”
Released: November 17, 2025
CITATION: Malekzadeh v. OLRB et al., 2025 ONSC 6323
DIVISIONAL COURT FILE NO.: 553/22
DATE: 2025117
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Varpio, Corbett and O’Brien JJ.
BETWEEN:
MINA MALEKZADEH
- and –
ONTARIO LABOUR RELATIONS BOARD
- and –
CANADIAN UNION OF PUBLIC EMPLOYEES LOCAL 79, JENNIFER FARRELL, STELLA COADY, CHARLES VANVLIET, MICHAEL A. CHURCH and CALEYWRAY LAWYERS
- and –
CITY OF TORONTO, TINA SCOTT, JASON BAKER, RHONDA BRITTON and AMANDI C. ESONWANNE
REASONS FOR JUDGMENT
Released: November 17, 2025
[^1]: I note that the Court of Appeal for Ontario has held that the OLRB is master of its own process: see Turkiewicz (c.o.b. Tomasz Turkiewicz Custom Masonry Homes) v. Bricklayers, Masons Independent Union of Canada, Local 1, 2022 ONCA 780, [2022] O.J. No. 4983; and Enercare Home & Commercial Services Limited Partnership v. UNIFOR Local 975, 2022 ONCA 779.