Labor & Employment Law

The Ontario Divisional Court considered, in part, the impact that delay would have on an application for judicial review of a decision of the Ontario Labour Relations Board ("OLRB"). 

The case involved an application to review two decisions of the OLRB dated February 6, 2008 and April 28, 2008.  The employee also sought to "set aside" a memorandum of settlement entered into between the employer, union and the employee.  The Court concluded that it had no jurisdiction to "set aside" the memorandum of settlement, but then went on to consider the application for judicial review and the issue of delay.

The Court observed that:

There was a delay of eleven months after the [Memorandum of Settlement] was executed in bringing the application and a further seven months delay before it was perfected.   This Court has held that applications for judicial review are to be commenced expeditiously and has exercised the power to dismiss an application on the basis of undue delay:

??the Divisional Court has held on numerous occasions that delay on the part of an applicant of six or more months in the commencement of an application and/or twelve months in the perfection of an application could be serious enough alone to warrant the dismissal of the application?.  (Bettes v. Boeing Canada/Dehavilland, [2000] O.J. No. 5413 (Div. Ct.) at para.7).

The length of delay in this case well exceeds any reasonable limit.  Furthermore, the record discloses no evidence of any reasonable explanation for the delay and in particular, as I have stated, no medical evidence of incapacity or impairment.  Moreover, this Court has stated that judicial review of OLRB decisions should proceed expeditiously because certainty is particularly important in labour disputes (see Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers v. International Union of Bricklayers and Allied Craftworkers 2003 CanLII 34378 (ON S.C.D.C.), (2003), 172 O.A.C. 156 (Div. Ct.) at para. 10).

In the circumstances, the application was dismissed.