2017 ONSC 6724, 2017 ONSC 6724

CITATION : 946900 Ontario Limited v. Teneva, 2017 ONSC 6724 DIVISIONAL COURT FILE NO.: 239/16 DATE: 20171110 SUPERIOR COURT OF JUSTICE – ONTARIO DIVISIONAL COURT RE: 946900 ONTARIO LIMITED o/a IDLEWOOD INN/CLOVERLEAF MOTEL, Applicant AND: ELITSA V. TENEVA and DIRECTOR OF EMPLOYMENT STANDARDS and ONTARIO LABOUR RELATIONS BOARD [1] , Respondents BEFORE: SPIES J. COUNSEL: Alnaz I.

Jiwa , for the Applicant Elitsa Teneva, Self-Represented Respondent Grainne McGrath , for the Respondent, Director of Employment Standards Leonard Marvy and Aaron Hart , for the Respondent, Ontario Labour Relations Board HEARD at Toronto: November 2, 2017 ENDORSEMENT background [ 1 ] By Notice of Application for Judicial Review dated May 13, 2016 (Application), the Applicant sought to quash a decision made by Vice-Chair Kelly Waddingham (Vice-Chair) of the Ontario Labour Relations Board (Board) on January 19, 2016 (Decision) directing the Applicant to pay $16,451.19 to Elitsa Teneva in unpaid wages, overtime pay and pain and suffering pursuant to the Employment Standards Act, 2000 , S.O. 2000, c. 41 ( ESA ). [ 2 ] According to the court file, a Notice Dismissing the Application dated May 16, 2017 (Notice) was sent by mail to Jyoti Thakrar at 9 St.

Quentin Avenue, Toronto, ON, M1M 2M7. Ms. Thakrar is a Director of the Applicant and she confirmed that this was the proper address for service. I also note this is the address for service on her Application but she has deposed that she did not receive the Notice.

This Notice clearly stated that the Application would be dismissed for delay with costs on June 5, 2017 unless the Applicant delivered an application record and factum and filed a certificate of perfection within 10 days after service of the Notice. [ 3 ] The Application was dismissed pursuant to Rule 68.06(3) of the Rules of Civil Procedure , by order of the Registrar of the Divisional Court on June 7, 2017 (Dismissal Order), with costs fixed at $750. The Dismissal Order was also mailed to Ms.

Thakrar at the same address and there is no issue that she received it. [ 4 ] The Applicant now moves for an order setting aside the Dismissal Order and allowing it a further 30 days to perfect its Application. [ 5 ] In the Applicant’s motion record the Applicant includes a letter from Andrew Law, Crown counsel with the Ministry of Labour to Ms. Thakrar dated April 19, 2017. This letter confirms receipt of an email of April 12 th , 2017 from Ms. Thakrar which confirmed that a two-hour motion had been set down for June 29, 2017 and advised Ms.

Thakrar that she needed leave of the court to represent the corporation. I am not clear on what the original relief claimed was as this was before the Notice was mailed but this letter led to the motion that was heard by Corbett J. on June 29, 2017 and does confirm that Ms. Thakrar had started to take steps to move the Application forward as of April 12, 2017. [ 6 ] When Ms. Thakrar moved before Corbett J., she was seeking an order permitting her to represent the Applicant on the Application and that the payment of the amount ordered by the Decision be stayed.

Justice Corbett dismissed the motion as he did not consider Ms. Thakrar competent to help the court on the issues in lieu of a lawyer. He also noted that Ms. Thakrar advised that the Applicant had made arrangements to pay the full amount awarded in the Decision to the Board in periodic payments as a condition of a stay of execution. At the outset of the hearing of the motion before me I confirmed that those payments are being made as agreed. The

amount owing to Ms. Teneva, however, has still not been paid in full. The facts [ 7 ] The Applicant operates two motels. Ms. Teneva cleaned rooms for the Applicant, initially for the Cloverleaf Motel. She was then transferred to the Idlewood Inn, which is also owned by the Applicant. [ 8 ] In June 2014, Ms. Teneva filed a complaint with the Employment Standards Office (ESO) alleging that the Applicant had not complied with the ESA . By a decision dated January 13, 2015, the Employment Standards Officer who investigated the complaint found that Ms.

Teneva was an “independent contractor” providing housekeeping services to the Applicant and not an employee and that there was no contravention of the ESA and as such no orders were issued. [ 9 ] Ms. Teneva requested a review of the ESO’s refusal to issue an order for unpaid wages, overtime pay, termination pay and a reprisal. The Vice-Chair allowed Ms. Teneva’s application for review of the ESO decision and gave detailed reasons for the Decision. [ 10 ] Ms. Thakrar requested that the Board reconsider its Decision (Request for Reconsideration).

The Board did so and made a further decision dated April 29, 2016 affirming the Decision (Affirming Decision). In accordance with the Board’s usual practice, the Request for Reconsideration was referred to the panel which made the original Decision. [ 11 ] Ms. Thakrar swore an affidavit in support of this motion as the Applicant’s Director. With respect to the issue of delay, Ms. Thakrar deposed that after issuing the Application she became “ill which caused me to lose about 40 pounds and [I] was sent to various specialists.

The illnesses made me weak and delayed my preparation for finalizing the application record.” [ 12 ] Ms. Thakrar deposed that by March 2017 she had prepared the Application Record as best she could but in a conversation with a lawyer from the Ontario Labour Relations Board (OLRB) she was informed that because the Applicant is a corporation she could not represent the corporation without leave from the court. That is when she started preparing to bring the motion that was heard on June 29, 2017 before Corbett J. [ 13 ] Ms.

Thakrar has deposed that not only did she not receive the Notice but that after she received the Dismissal Order she attended at court and found no copy of the Notice in the file. That could not be correct as there was a Notice in the file when I received it from my Registrar during the hearing of the motion. [ 14 ] Ms. Thakrar gave a considerable amount of evidence in her affidavit setting out what amounts to a number of complaints of procedural fairness and other alleged errors at the Board hearing. Ms. Teneva challenges these points by relying on the Decision and the Affirming Decision.

I will deal with this evidence when I come to the merits of the Application. Analysis [ 15 ] This motion raises the issue of whether or not the Applicant has satisfied the test for setting aside the Registrar's order. [ 16 ] Pursuant to Rule 68.06(4), a party affected by a Registrar's order dismissing an application for delay, may make a motion to set aside or vary the order. [ 17 ] To set aside a Registrar's order pursuant to Rule 68.06(4), the Applicant must demonstrate the following three factors: (

i) a bona fide intention to seek judicial review within the prescribed time limit; (ii) a reasonable explanation for the delay; and (iii) that the justice of the case requires that the requested extension be granted; see Chiu v. Universal Water Technology Inc. , [2004] O.J. No. 4048 (Div. Ct.) at para. 2 . Was there a bona fide intention to seek judicial review within the prescribed time limit? [ 18 ] Mr. Marvy advised that there is in fact no time limit to seek judicial review of a decision of the OLRB reviewing an ESO decision.

As such the Applicant clearly brought its Application in time, in fact within two weeks of the Affirming Decision. This branch of the test has been satisfied. Is there a reasonable explanation for the delay? [ 19 ] Ms. Teneva argued that the Applicant has not provided sufficient evidence that Ms. Thakrar did not receive the Notice from the court nor has she provided sufficient evidence as to the reason for delay in perfecting the Application. [ 20 ] Mr. Jiwa relies on Khaiter v.

Human Rights Tribunal of Ontario, 2011 ONSC 1597 , but that case is easily distinguishable as the applicant in that case provided evidence that the notice under Rule 68.06(2) had the incorrect postal code and so Herman J. was prepared to accept that he did not receive the required notice. [ 21 ] In this case I have only Ms. Thakrar’s statement in her affidavit that she did not receive the Notice and that it was not in the court file suggesting that it was never sent. However, the Notice is in the court file and, in accordance with the court’s usual practice, I find it was mailed to the correct address.

Given this finding, I find that the Applicant has not provided sufficient evidence to establish on a balance of probability that it did not receive the Notice. The Applicant has not given this court any evidence of how it receives its mail sent to the address provided by Ms. Thakrar. [ 22 ] The delay has been lengthy-a period of more than twelve months. As for explaining the delay in perfecting the Application, I

agree with Ms. Teneva that the delay has not been explained. The evidence of Ms. Thakrar is not very persuasive but I accept it may betrue that she personally was unable to perfect the Application. There is no explanation for why a lawyer for the Applicant could not havebeen retained to perfect the Application. In fact in the Request for Reconsideration Ms. Thakrar stated that the Applicant had retainedlegal counsel to commence filings in Divisional Court. Furthermore, the Decision refers to two managers that Ms.

Thakrar called at thehearing and there is no evidence before me that she is the only person who could have perfected the appeal. [23] For these reasons I find that this branch of the test has not been met. Does the justice of the case require that the requested extension be granted? [24] Mr. Jiwa submitted that if the other aspects of the test were met, that the motion should be granted even if I had concernsabout merits of the Application for Judicial Review. I disagree.

In Chui, supra, at para. 6, Benotto J., as she then was, clearly stated thatan “examination of the justice of the case involves the consideration of the merits of the appeal.” [25] This is exactly what was done in Iaonnidis v. Amalgamated Transit Union, (ON SCDC). After citing thetest in Chiu, the Court went on to consider the merits of the application for judicial review under the third branch of the test; namely,whether the justice of the case required an extension. [26] The Iaonnidis case also involved an application of judicial review from a decision of the Board.

The Court noted that thestandard of review for the Board’s decision is “patent unreasonableness” and that, coupled with the expertise of the Board, leads thecourt to be highly deferential to the decisions of the Board (at para. 21). The Court found that the Board’s decision and reasoning for thedecision was not patently unreasonable and in the result the motion to set aside the order of the Registrar was dismissed. [27] There is no dispute that at the hearing before the Board, Ms. Thakrar called two witnesses; David McKeown, the manager ofCloverleaf who hired Ms.

Teneva, and Binota Vasavada, the manager of Idlewood. Ms. Thakrar deposed that after their evidence wascompleted that she expected Ms. Teneva to give evidence and that she would be able to question her and she expected that she would beable to give evidence. Ms. Thakrar alleges that when she indicated that she wanted to ask the complainant questions the Vice-Chair saidthat she would “like to see this end today” and simply started asking the complainant questions without asking Ms. Teneva to take thestand and be sworn. Ms. Thakrar also alleges that she was not given an opportunity to question Ms.

Teneva nor give her own evidence tothe Board. [28] These issues were not raised in the Request for Reconsideration but other proposed errors of the Board that the Applicant nowasserts were and were dealt with in the Affirming Decision. Ms. Thakrar alleges that the Board made significant errors as follows: (

a) the Board assumed Ms. Teneva worked daily even though there was documentary evidence and Ms. Teneva admitted that she did notwork every day. The Applicant relies on a spreadsheet that was marked as an exhibit at the hearing; (

b) that she was not able to question Ms. Teneva about the fact that she alleged she was fired. The position of Ms. Thakrar is that Ms.Teneva quit and did not show up for work; (

c) the Board had a document the Applicant’s manager wrote for Ms. Teneva, which was written for the welfare department, as to howmuch rent she was paying. The Board decided that Ms. Teneva worked a few hours a week while the note does not mention this and Ms.Thakrar deposed that it seems like the Vice-Chair took that to mean that Ms. Teneva was an employee as she ultimately held; and (

d) Ms. Teneva testified that she ceased to get welfare after she was fired but Ms. Thakrar has obtained information from the welfareoffices that Ms. Teneva did not terminate welfare after she stopped working for the Applicant. This last piece of evidence was not beforethe Board. I note that this submission is contrary to Ms. Thakrar’s evidence that Ms. Teneva did not testify. [29] Mr. Jiwa submitted that the most important point was that Ms.

Thakrar could not give evidence on the issue of whether Ms.Teneva was an independent contractor or an employee. [30] In the case at bar I am advised that there is no transcript of the hearing before the Board which I understand is standardpractice for hearings before the Board. In considering the merits of the Application, there is the evidence of Ms. Thakrar but in manyrespects, it is at odds with what is stated in the Affirming Decision to have occurred at the hearing.

Although on a judicial reviewapplication affidavits of the parties can be considered on issues of what the procedure and evidence was before the Board, I understandthat Ms. Teneva disputes what Ms. Thakrar has complained of in terms of procedural fairness issues. I presume she would file anaffidavit in response to the Application if it is allowed to proceed.

In my view in those circumstances of competing evidence from theparties, any court hearing a judicial review application of the Decision would likely rely on what is stated by the Vice-Chair in theDecision and the Affirming Decision to resolve these issues. [31] With that in mind I turn briefly to the errors the Applicant alleges were made by the Board.

These alleged errors all appear tohave been addressed in the Request for Reconsideration, the Affirming Decision and the Decision itself. [32] In the Request for Reconsideration the Applicant submitted that the Board failed to consider the “contract” signed by theparties which provided that Ms. Teneva was an independent contractor. However, as confirmed in the Affirming Decision, the Vice-Chair was aware that Ms. Teneva had signed a document confirming that she worked as an independent contractor. The Vice-Chairreferred as well to the fact that Ms. Teneva “testified”. The Board considered first whether or not Ms.

Teneva was an employee orindependent contractor. The Board conducted a detailed analysis of the law and the facts and concluded that Ms. Teneva was anemployee of both the Cloverleaf Motel and the Idlewood Inn. [33] In the Request for Reconsideration the Applicant also asserted that the Board made an error in law and did not apply theproper legal test as outlined in Logitek Technology Ltd. v. Canada (Ministry of National Revenue), 2008 TCC 331.

In the AffirmingDecision the Board noted that this case was a case decided pursuant to the Federal Income Tax Act and did not assist the Applicant in itsRequest for Reconsideration because the Board has provincial jurisdiction. In the Affirming Decision the Board found that the relevant

case law pertaining to the issue of the proper legal test was correctly set out by the Board in its decision and that the Applicant wassimply attempting to reargue its case on this point. [34] The Request for Reconsideration also asserted that the Board had made an error and misinterpreted records presented by bothparties in determining Ms. Teneva’s weekly hours of work. In the Affirming Decision, the Board found that the allegations and limitedreasons put forward by the Applicant did not disclose an obvious error or amount in any other way to proper grounds for reconsideration.Mr.

Jiwa submitted that the record of the hours of work Ms. Teneva had relied upon had been created from her memory following thetermination of her employment and was therefore unreliable but the Board was aware of that and held that it would have been impossiblefor her to accurately record those hours on a particular day months later. The Board noted that the Applicant also did not record Ms.Teneva’s hours of work, and relied on its record of rooms cleaned by Ms. Teneva to make its findings as to what was owed for unpaidwages. [35] The Request for Reconsideration also stated that the statement of Mr. and Mrs.

Patel was contained in its “merit brief” and itconfirmed that Ms. Teneva quit her employment. The Applicant alleged that the Board did not address the Patel statement because theBoard stated that it would not wish to have a “continuance”. To this the Board said in the Affirming Decision that: a hearing before the Board is not an investigative inquiry, as the Board explained at the beginning of the hearing parties are expected tocall viva voce evidence. At no time did the Board indicate that it was unwilling to hear evidence.

The responding party [the Applicantherein] was given a full opportunity to present evidence including calling the Patels and making submissions at the hearing. Theresponding party chose not to call the Patels. (Reasons at para. 9) [36] The Request for Reconsideration also stated that the Applicant had “new evidence”, namely statements of Mr. and Mrs. Pateland Mr. McKeown. The Board noted that they did not satisfy the test for new evidence. Furthermore, the “new statement” of Mr.McKeown set out alleged welfare fraud on the part of Ms. Teneva. To this the Board noted in its Affirming Decision that Mr.

McKeownwas a witness at the hearing and that it was beyond the Board’s jurisdiction to address allegations of welfare fraud. [37] The Board concluded its Affirming Decision by stating that it was clear the Applicant was simply attempting to use theRequest for Reconsideration to try to reargue its case and to challenge the Board’s reasoning or findings of fact. As such the Request forReconsideration was dismissed. [38] In my view all of the issues the Applicant wishes to raise in the Application were raised before the Board in the Request forReconsideration.

The “patent unreasonableness test” no longer exists following Dunsmuir v. New Brunswick, 2008 SCC 9 ,[2008] 1 S.C.R. 190. However, the Applicant would have to establish that the Board’s findings of fact are unreasonable and itsinterpretation of the law correct. In my view given the deference that the decisions of the Board attract from this Court, the onlyreasonable conclusion is that there is no merit to the Application. [39] In my view in considering the justice of the case, I should also consider whether there is any prejudice to Ms. Teneva because of the delay in the hearing of the Application (see Reid v.

Dow Corning Corp. (2001), 11 C.P.C. (5th) 80 affirmed at (2002), 48 C.P.C. (5th) 93 (Ont. Div. Ct.). In this case, the delay has meant that Ms. Teneva has not received the benefit of the award which is aconsiderable sum of money for an individual. Furthermore, given the length of the delay, in my view prejudice can be presumed; seeSingh v. Toronto Police Services Board, 2016 ONSC 6291 (Div. Ct.) at para. 20.

Disposition and costs [40] In my view in considering and weighing all of the factors, for the reasons stated, the justice of the case demands that thismotion be dismissed and that the Application not be permitted to proceed. [41] As the successful party Ms. Teneva is entitled to costs. The Director of Employment Standards does not seek costs. I amgrateful, however, for the attendance of counsel for the Director and the Board who answered questions that I had about the procedurebefore the Board. [42] Ms. Teneva provided original receipts for making copies of documents.

The receipts since the hearing before Justice Corbetttotal $42.28. Accordingly, I order that the Applicant pay Ms. Teneva her costs in the amount of $42.28 within 30 days of the release ofthis decision. _______________________________ SPIES J. Date: November 10, 2017