) ) 1520247 Ontario Inc. c.o.b. as Pro Pipe Construction Applicant – v. –, 2010 ONSC 6713

CITATION : 1520247 Ontario Inc. c.o.b. as Pro Pipe Construction v.

Ontario Pipe Trades Council et al., 2010 ONSC 6713 DIVISIONAL COURT FILE NO.: 408/09 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: ) ) 1520247 Ontario Inc. c.o.b. as Pro Pipe Construction Applicant – and – Ontario Pipe Trades Council and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 800 – and – Norfab Construction Ltd. – and – 1630648 Ontario Limited c.o.b. as Norfab Metal and Machine – and – Ontario Labour Relations Board Respondents )) )) )) )) )) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Steven A.

McArthur , for the Applicant Craig Flood , for the Respondent, Ontario Pipe Trades Council and United Association of Journeymen and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 800 ) ) ) HEARD at Toronto: December 2, 2010

Endorsement: Ferrier j.: [1] The Respondent moves to dismiss this Judicial Review application on the ground of delay. I dismissed the motion forreasons to be delivered, but without prejudice to the right of the respondent to seek a dismissal by the panel hearing the application, onthe ground of delay. [2] The following are my reasons. [3] In Ransom v. Ontario, [2010] O.J.

No. 2430, Molloy J. succinctly stated the law concerning delay in judicial reviewapplications: 1) Judicial review is a discretionary remedy and can be denied if there has been excessive delay: International Union of Bricklayersand Allied Craftworkers v. Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftworkers (2000), 132O.A.C. 87 at para. 18 (Div. Ct.); Jeremiah v. Ontario Human Rights Commission, [2008] O.J. No. 3013 (Div.

Ct.) 2) In determining whether to dismiss an application for delay, the court will consider the length of the delay, whether there is areasonable explanation for the delay and whether the moving parties have suffered prejudice as a result of the delay: Gigliotti v. Conseild’Administration du Colleges des Grands Lacs, (ON SCDC), [2005] O.J. No. 2762.

Some cases suggest that themerits of the application may also be taken into account. 3) This Court has held on many occasions that a delay of more than six months in commencing a judicial review application is reasonfor concern: Gigliotti at para. 29; Jeremiah at para. 45. 4) In an employment context, delay is particularly troubling given the need to resolve workplace issues promptly and avoid lingeringdisharmony: Amodeo v. Ontario (Ministry of Labour), [2010] O.J. No. 1200 (Div. Ct.); Ontario Public Service Employees Union v.Ontario (Ministry of Labour), [2001] O.J. No. 1037 (Div. Ct.); Patel v.

Ontario (Labour Relations Board), [1998] O.J. No. 571 (Div.Ct.). [4] The matter was also succinctly put by this Court in International Union of Bricklayers and Allied Craftworkers v. OntarioProvincial Conference of International Union of Bricklayers and Allied Craftworkers, [2000] O.J. No. 751: Judicial Review is an equitable and discretionary remedy and one which the court should refuse where there is unexplained delay -- thisis particularly so in the time - sensitive labour relations area. [5] In Ransom, Molloy J. was sitting as a single motions judge in the Divisional Court.

After considering the length of thedelay, almost 6 years, the question of prejudice to the respondent and the reasons for the delay, she dismissed the application for JudicialReview. [6] I do not take issue with the decision of Molloy J. in Ransom. [7] Nevertheless, I am of the view that a motion to dismiss for delay, as a general rule, should be brought before the panel.

Simply put, I am of view that, except where it is plain and obvious that the application should be dismissed for delay, a motions judgeshould not dismiss for delay, but rather should leave the issue to the panel. [8] I say this because of the equitable and discretionary nature of the relief being sought in a Judicial Review application and thenecessity to apply discretion in considering the issue of delay -- a discretion which the applicant is entitled to have exercised by thepanel, as a general rule. [9] I hasten to add that Ransom was clearly one of those cases where a dismissal on a motion before a single judge wasappropriate.

[ 10 ] There is a significant argument that can be made against this approach – namely, that to leave the delay issue to the panel means that a full record and full argument must be prepared on the merits of the application, when the panel may ultimately dismiss for delay. [ 11 ] That argument has some considerable force here. Without doubt, the record will be very, very large. All the preparation and effort to argue the application on its merits will be for naught if the panel dismisses for delay.

The cost to the parties will be substantial. [ 12 ] On balance I am of the view that the applicant, except in the clearest case, is entitled to have the panel determine the issue of delay. [ 13 ] On consent, no order as to costs. Ferrier J. Released: CITATION : 1520247 Ontario Inc. c.o.b. as Pro Pipe Construction v. Ontario Pipe Trades Council et al., 2010 ONSC 6713 DIVISIONAL COURT FILE NO.: 408/09 DATE: 20101208 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN:

1520247 Ontario Inc. c.o.b. as Pro Pipe Construction Applicant – and – Ontario Pipe Trades Council and United Association of Journeyman and Apprentices of the Plumbing and Pipefitting Industry of the United States and Canada, Local 800 – and – Norfab Construction Ltd. – and – 1630648 Ontario Limited c.o.b. as Norfab Metal and Machine – and – Ontario Labour Relations Board Respondents ENDORSEMENT Ferrier J. Released: December 8, 2010