Court File and Parties

COURT FILE NO.: 624-17 DATE: 2017/06/26 SUPERIOR COURT OF JUSTICE - ONTARIO

RE: Myriam Michail, Applicant AND: Ontario English Catholic Teachers’ Association (‘OECTA’), et al, London District Catholic School Board (‘LDCSB’), Ontario Labour Relations Board (‘OLRB’), Respondents

BEFORE: Mr. Justice A.D. Grace

COUNSEL: Self-Represented, Applicant P. Cavalluzzo and C. Perri, for the Respondent OECTA B. Traynor and A. Shaw for the Respondent LDCSB L. Marvy, for the Respondent OLRB

HEARD: June 19, 2017 Date: Handwritten endorsement released June 26, 2017 Transcribed June 28, 2017

Endorsement

[1] Ms. Michail taught in the Catholic School system for many years.

[2] Several grievances have been filed over the years on her behalf by OECTA.

[3] In an Interim Consent Award dated April 12, 2013, Arbitrator Richard Brown (the ‘Arbitrator’), stated that he would be seized of all future issues that may arise if they were connected to Ms. Michail’s employment with the LDCSB.

[4] Subsequent grievances were filed including one dated April 26, 2013 concerning events that occurred during the 2012-2013 school year at Regina Mundi College in London, Ontario.

[5] The hearing of the grievance occupied more than two dozen days spread over a period, commencing November 14, 2013 and ending on May 26, 2015. In a July 23, 2015 award, the Arbitrator concluded that the elements of the tort of intentional infliction of mental suffering had been established, and awarded $20,000 in damages and compensation (really reimbursement) for certain expenses Ms. Michail had incurred on account of an airline ticket and psychological services. The Arbitrator declined to award punitive damages but did direct the LDCSB to remove a February 19, 2013 letter from Ms. Michail’s personnel file.

[6] Ms. Michail was and continues to be extremely dissatisfied with the July 23, 2015 Award (the ‘2015 Award’). In a July 5, 2016 document filed with the OLRB she described it as an “iniquitous Award that left me in total distress” containing “numerous errors of law”, that ignored evidence and made “findings without evidence”.

[7] Ms. Michail described what followed. She made “[r]equests and pleas to OECTA to proceed to Judicial review.” OECTA declined to do so.

[8] During the course of the proceeding that resulted in the July, 2015 Award, the LDCSB took the position (in an October 29, 2014 letter) that Ms. Michail’s employment contract had been frustrated.

[9] Another grievance was filed by OECTA challenging that decision. Damages in lieu of reinstatement are sought, (the ‘termination grievance’). The termination and several other (four of them) grievances have not yet been heard by the Arbitrator.

[10] Hearing dates were scheduled but adjourned to permit OECTA and the LDCSB to participate in settlement discussions.

[11] It appears that the relationship between OECTA and Ms. Michail deteriorated over time and continued – perhaps even completed – a death spiral when OECTA indicated an intention to accept a settlement offer Ms. Michail did not and does not believe is remotely adequate.

[12] In a December 8, 2015 letter, OECTA advised Ms. Michail of the following at page 6:

The proposed settlement is objectively reasonable. It is consistent with applicable jurisprudence. Accordingly, OECTA has determined that it will not continue the arbitration before Arbitrator Brown unless ordered to do so by the Ontario Labour Relations Board. The final offer will be available for acceptance until February 2, 2016. Should you file a Duty of Fair Representation Complaint, the offer will be available for your acceptance until 30 days after a final decision is made from [sic] the OLRB.

[13] An application regarding OECTA’s duty of fair representation was filed with the OLRB on March 29, 2016. Ms. Michail maintained that OECTA had violated s. 74 of the Labour Relations Act, 1995. That section provides:

A trade union…so long as it continues to be entitled to represent employees in a bargaining unit shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union…

[14] The Record of the Proceeding before the OLRB occupies eleven volumes. The OLRB process culminated in a February 8, 2017 decision of Vice-Chair Patrick Kelly (the ‘OLRB decision’). For reasons set forth therein, the application was dismissed.

[15] Proceedings started in this court on March 9, 2017 with the issuance of a 67 page (exclusive of an Appendix) notice of application seeking judicial review of:

(a) The 2015 Award; and (b) The OLRB decision.

Ms. Michail, the applicant, maintains the decisions are connected. Ms. Michail seeks a long list of orders, declarations and remedies.

[16] The substantial record compiled by the parties so far also includes a notice of constitutional question dated May 18, 2017 (the ‘Notice’). Ms. Michail contends that sections 45(1) (the subsection deems every collective agreement to provide that the trade union named therein “is recognized as the exclusive bargaining agent of the employees in the bargaining unit” it defines) and 116 (which appears under the heading “Board’s orders not subject to review”) of the Labour Relations Act, 1995 are unconstitutional because the provisions are inconsistent with the Constitution of Canada. I understand the Notice has been served on the Attorney Generals of Canada and Ontario as s. 109(1) of the Courts of Justice Act requires and they have declined, at least for now, to participate.

[17] A motion was brought by Ms. Michail before the Notice was served. She seeks:

“Leave to file an Application for judicial review to the Superior Court of Justice with leave of a judge.”

[18] Ordinarily applications for judicial review must be made to the Divisional Court: Judicial Review Procedure Act (‘JRPA’), s. 6(1).

[19] However, such an application may be made to this court with leave of a judge, which may be granted at the hearing of the application if two preconditions are met:

(a) it is made to appear to the judge that the case is one of urgency; and (b) the judge is satisfied the delay required for an application to the Divisional Court is likely to involve a failure of justice: JRPA, s. 6(2).

[20] Ms. Michail’s motion effectively bifurcated the process. In other words, the issue of leave is to be determined separately from the application even if the relief sought under s. 6(2), JRPA is granted. That does not appear to be contemplated by the Rules of Civil Procedure: Rule 68.02.

[21] The motion for leave was first returnable on March 21, 2017 – a “regular” motions day in London. Usually dozens of matters are then returnable. I suspect this was no exception. All of the parties were present or represented. The Honourable Justice Leitch presided. Eventually the motion was adjourned to a June 19, 2017 special appointment over Ms. Michail’s strong objection. Intervening steps were timetabled and the required Certificate of Readiness was completed and filed.

[22] I pause to observe that having had the benefit of the materials I will soon describe and about a half-day of argument, I too wish the leave issue had been made returnable earlier. However, given the number of parties and the record compiled that comment may be more fanciful than practical.

[23] The record on this motion consisted of the following:

(a) Ms. Michail’s motion record dated March 28, 2017; (b) a volume the applicant filed entitled “Applicant’s Written Submissions to the OLRB”; (c) the responding motion record of OECTA dated April 10, 2017; (d) the responding motion record of LDCSB dated April 11, 2017; (e) a Reply to the responding motion record dated April 20, 2017; (f) the 11 volume Record of Proceedings before the OLRB. In fairness, the record is needed for the application for judicial review wherever conducted; and (g) a factum and book of authorities from the applicant, OECTA and LDCSB. The Consolidated Provincial Practice Direction of this court sets a 20 page limit on factums unless leave is granted: Part III, A, para. 45c. Ms. Michail’s “Factum and Constitutional Questions of the Applicant” contained two components aggregating approximately 165 pages. I declined to accept the written replies she offered during argument since they were not contemplated by the timetable I have mentioned previously.

[24] Before proceeding further, I want to recognize and commend the applicant for the quality of the written argument she has generated. It is well organized, thoughtful and detailed. The research that underlies it is impressive indeed. I cannot deny that its length is excessive and some of the content outside the boundaries of what any lawyer would be permitted to file. However and as counsel for the LDCSB fairly acknowledged, the sincerity and depth of feeling of the applicant cannot be doubted whatever may ultimately be the outcome on the merits.

[25] Ms. Michail urged me to grant leave in the strongest, but always respectful, terms possible. She advances these reasons:

(a) first, proceedings involving the parties have already been protracted. As mentioned, the 2015 Award related to events that occurred in 2012 and 2013. The hearing was conducted between November, 2013 and May, 2015. Proceedings in the OLRB were commenced in March, 2016 and took almost a year. Ms. Michail relies on the legal maxim “Justice delayed is justice denied”; (b) second, the process has taken an incredible toll on her psychological and physical health. Letters from family physician Dr. Jonathan Horne and psychologist Dr. Nicole Reist dated February 27 and March 16, 2017 respectively were filed in support. Dr. Horne noted the applicant suffers from hypertension – which has been worsening – anxiety and depression. Dr. Reist addressed in further detail the psychological issues mentioned by the family physician along with other post traumatic symptoms. Both maintain that there is a significant connection between those conditions and the ongoing legal proceedings. The two professionals ask that Ms. Michail’s case be expedited; (c) third, Ms. Michail maintains that her health issues make it very difficult if not impossible – to travel outside of London although she has been required to do so from time to time in the past. She even maintained in argument that a hearing by video conference would unfairly disadvantage her by adding additional stress and, I believe, causing some imbalance issues; (d) fourth, Ms Michail maintains that she has had no income since October or November, 2015 and that she had been subsisting on a reduced income for several months beforehand; (e) fifth, Ms. Michail submits that there has been a failure and miscarriage of justice that is apparent on the present record that should be addressed and redressed as quickly as possible; (f) sixth, the applicant notes that the Divisional Court sits in London only twice a year – for one week in April (now passed) and in November. The state of the November, 2017 list in London was not known during argument. I have made an inquiry of the local Divisional Court office and am advised that there is no time available for the applicant’s application for judicial review(s).

[26] The assessment of urgency and delay involving a failure of justice is very much a fact driven exercise and requires a consideration of the individual circumstances of the applicant, the nature of the proceeding under review, the issues raised and matters of a systemic nature: see, for example, Yashin v. National Hockey League, (2000), 192 D.L.R. (4th) 747 (Ont. S.C.J.); Borton v. Her Majesty the Queen, 2013 ONSC 6418 (S.C.J.); Re T. and Board of Review for the Western Region, (1983), 44 O.R. (2d) 1153 (S.C.J.); Hanif v. Ontario, 2014 ONSC 6613 (S.C.J.); Savone v. LSUC, 2013 ONSC 1015 (S.C.J.); The Canadian Football League Players’ Association v. The Hamilton Tiger Cat Football Club (2003) Corp., 2013 ONSC 5483 (S.C.J.) (‘CFL’); Jafine v. College of Veterinarians of Ontario (1991), 5 O.R. (3d) 439 (Gen. Div.).

[27] The merits of the matter – to the extent they can be determined – are also a factor: CFL, supra at para. 11; Savone, supra at para 9; Kuki v. Ministry of Training, Colleges and Universities, 2013 ONSC S. 5574 (S.C.J.) at para. 11. In my view, it was not possible on the record assembled to formulate any view on the substantive issues.

[28] I will deal with the issues of urgency and a failure of justice in turn.

A. Is this case one of urgency?

[29] OECTA and LDCSB submit that Ms. Michail has not satisfied this part of the statutory test.

[30] They note that her livelihood is not at stake because she does not seek reinstatement. She seeks (primarily) a monetary award.

[31] While raised in the context of a failure of justice, OECTA submits that the letters provided by Ms. Michail’s family physician and psychologist concerning their patient’s health are, on their own “not sufficient to determine the proper forum for this judicial review application, which is a legal question outside of the scope of Ms. Michail’s doctors”: see para. 44 of OECTA’s factum.

[32] For the purposes of this motion, I accept that Ms. Michail is profoundly and detrimentally affected by the events that have given rise to her grievances and the processes involving the Arbitrator and Vice-Chair Brown. She sincerely believes that she has been frequently wronged by a significant number of people.

[33] If “urgency” was tied only to the subjective view of a party this case would easily meet the first part of the statutory test set forth in s. 6(2) of the JRPA. As noted, she claims to have no present source of income either. I concede some surprise that is so but have no evidence to the contrary.

[34] In Hanif v. Ontario, supra. Mew J. found that the applicant had met the requirements of s. 6(2) of the JRPA because:

It has been over three years since proceedings were commenced against Mr. Hanif. For the most part, the delay has resulted from the Attorney General’s interventions. The years of legal proceedings have taken their toll on Mr. Hanif and his family. It is time to move Mr. Hanif’s lengthy ordeal towards a resolution. Justice and fairness dictate as much.

[35] Justice Mew did not distinguish between “urgency” and the “interest of justice”. However, I think it clear that he considered Mr. Hanif’s subjective beliefs and the surrounding circumstances in order to determine whether they were objectively reasonable.

[36] Otherwise, the statutory bar an applicant would have to clear would be too low. Virtually every applicant is anxious to have their matter heard at the first possible moment. Legal proceedings are upsetting to virtually all who participate in them. A person should not fall in the queue because they are stoic or climb the list because they are shrill. Similarly, many claimants are enduring economic hardship.

[37] Nonetheless, for present purposes, I will assume that the first part of the test has been met because, in my view, the motion fails on the second.

B. Is the delay required for an application to the Divisional Court likely to involve a failure of justice?

[38] It is important to remember that Ms. Michail seeks to combine three things into one application:

(a) a challenge of the 2015 Award. Yet, currently, Ms. Michail lacks standing: Misra v. City of Toronto, 2016 ONSC 2246 (Div. Ct.) at para. 56 and the cases cited there. That may change if she successfully challenges what I mention next; (b) the OLRB decision; and (c) the constitutionality of two provisions of the Labour Relations Act, 1995.

[39] While Ms. Michail argued that her Charter rights were violated before the OLRB, she did not advance her constitutional challenge there.

[40] Although not for me to decide on this motion, I think it likely that Ms. Michail’s application will require separate consideration of:

(a) Her application for judicial review of the OLRB decision (which may or may not include the constitutional issues); (b) With her application for judicial review of the 2015 Award proceeding afterward if the application for judicial review of the duty of fair dealing decision of Vice-Chair Kelly succeeds.

[41] None of the other cases considering s. 6(2) of the JRPA have involved a similar situation. Those decisions have involved situations where a Superior Court Justice was able to consider the preliminary issue and the merits of the judicial review application after a single attendance as rule 68.02(2) of the Rules of Civil Procedure contemplates.

[42] A preliminary motion, followed by an application that in all likelihood will be heard on a bifurcated basis at least months apart, appears to be unprecedented.

[43] If the Superior Court of Justice was to assume jurisdiction, a single justice would have to be identified who, for reasons of judicial economy, would be expected to hear the application in its entirety. However, work ordinarily done by the Divisional Court is not part of the usual docket and would have to be scheduled on an exceptional basis. As it now stands, I would be the logical choice given the volume of materials I have already reviewed. Yet no date is currently available until December 21, 2017.

[44] The Divisional Court has limited presence in London. As noted, I am told that the Divisional Court list in London is currently full for November. There will be no other sitting until April, 2018. I believe the matter – at least the first component – could be accommodated then.

[45] However, had Ms. Michail proceeded in the normal course and filed a notice of application in form 68A in the Divisional Court and the application record and certificate of perfection rules 68.04 and 68.05 of the Rules of Civil Procedure require, this matter could have been heard (once again, at least the first stage) in November, 2017. It cannot be the case that an ill-fated request for review under s. 6(2) of the JRPA can transform the underlying application into one that meets the failure of justice requirement.

[46] In any event, there will not be a failure of justice. I recognize that Ms. Michail says that she cannot travel to Toronto. She relies on the letter of Dr. Reist dated November 25, 2015. However, it is clear from the record that she has done so.

[47] If provided with a hearing date well in advance – as she would be – I simply do not accept that the travel would be prejudicial let alone compromise or result in a failure of justice.

[48] Importantly, rule 1.08, item 7 of the Rules of Civil Procedure expressly allows an application for judicial review to be conducted by video conference. Ms. Michail objected to that suggestion too. With respect, I simply do not accept that her current health conditions as communicated to the court preclude participation in that fashion.

[49] Ms. Michail’s application raises a litany of issues. She has used very strong language in relation to adverse parties, their counsel and, on occasion, prior decision makers. With respect to the latter, Ms. Michail has written for example at para. 96 of her “Factum and Constitutional Challenge”:

For 7 years I have been denied natural justice and my constitutional right in being heard by a fair and impartial decision maker.

[50] I am of the view that interests of justice require that Ms. Michail’s application for judicial review be heard by three justices. The Divisional Court does, indeed, have specialized expertise in reviewing the decisions of administrative bodies. The issues raised by Ms. Michail are of critical importance to her. Speed and convenience may, to her mind, favour a hearing in London by a single judge of this court. However, neither consideration justifies deviating from the usual statutory rule set forth in s. 6(1) of the JRPA given consideration of the breadth and complexity of the issues she wishes to raise and canvass. As mentioned, I express no view on the merits.

C. Disposition and Costs

[51] In the circumstances, the motion is dismissed. The application for judicial review is hereby transferred to the Divisional Court in London or at the written request of Ms. Michail to be made by Requisition filed with the London Divisional Court office, (since the respondents have already consented) to the Divisional Court in Toronto. I strongly suggest she consider that latter course.

[52] It is my hope that the application can be scheduled for hearing as soon as possible wherever it is to be heard once the requirements of rule 68 of the Rules of Civil Procedure have been fulfilled and that a request for participation by video conference, if made by Ms. Michail, can be accommodated.

[53] Since Ms. Michail is self-represented, I refer her to the Consolidated Practice Direction for Divisional Court Proceedings which is available at http://www.ontariocourts.ca/scj/practice/practice-directions/divisional_court. While all of its requirements are important, the 30 page limit on factums (para.12) is particularly noteworthy.

[54] All of the parties may wish to seek an appointment with a judge of the Divisional Court at some point to discuss that issue and possibly the manner in which the panel will deal with the application in due course. It will be important to the parties and court to know what portion of the application is being heard and when.

[55] If any of the respondents seek costs of the motion, concise written submissions not exceeding five typed pages each may be sent to me through the trial coordinator in London within fifteen days. Ms. Michail may respond within fifteen days thereafter subject to a ten page limit.

“Justice A.D. Grace” Justice A.D. Grace Date: Handwritten endorsement released June 26, 2017 Transcribed June 28, 2017