) ) SUSAN JOHNSTON Applicant – v. –, 2023 ONSC 59

CITATION : Johnston v. Ontario Secondary School Teachers’ Federation, 2023 ONSC 59 DIVISIONAL COURT FILE NO.: 934/21 DATE: 20230105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT MCCARTHY, MATHESON & AKBARALI JJ.

BETWEEN: ) ) SUSAN JOHNSTON Applicant – and – ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, YORK REGION DISTRICT SCHOOL BOARD, ONTARIO LABOUR RELATIONS BOARD Respondents ) ) ) ) ) ) ) ) ))))))))))) Allan Rouben , for the Applicant Jodi Martin and Kate Shao , for the Respondent Ontario Secondary School Teachers’ Federation Angela Rae and Stephen Choo , for the Respondent York Region District School Board Aaron Hart and Andrea Bowker , for the Ontario Labour Relations Board HEARD at Toronto: November 2, 2022 (by videoconference) REASONS FOR DECISION By the Court: [ 1 ] The applicant seeks judicial review of a decision of the Ontario Labour Relations Board (the “OLRB”) dated October 25, 2021 (the “Decision”), dismissing her duty of fair representation application. [ 2 ] This matter has a long history, beginning in 2003 and ending with the Decision.

The OLRB dismissed the application in part due to delay and in part for failure to raise a prima facie case of breach of s. 74 of the Labour Relations Act, 1995 , S.O. 1995, c.1 . The applicant did not seek reconsideration of the Decision. [ 3 ] For the reasons set out below, the application is dismissed. Brief Background [ 4 ] The applicant was employed as a teacher in the York Region District School Board, starting in 1990. In 2003, she went on medical leave with depression and received short and then long-term disability benefits for a lengthy time period.

In October 2005, the applicant was terminated from her employment based on the long-term disability guideline in place at the time. The guideline was developed by the School Board and with the involvement of the Ontario Secondary School Teacher’s Federation (the “Union”). [ 5 ] There was then a lengthy course of events, all of which we have considered. What follows is a brief overview: (

i) the applicant sought to grieve her termination and was refused because of the guideline, however, the Union did file a grievance and it is disputed whether the applicant was informed at this stage; (ii) the applicant retained a lawyer, made several inquiries of the Union, was told that she would be kept on the employee roster, and was told that the guideline was under review; (iii) in 2008 and 2009, the applicant received confirmation that she still had a position with the School Board; (iv) the Union informed the applicant of the grievance in September of 2008 and in early 2009 told the applicant that the grievance was kept in abeyance because the School Board had changed its position with respect to the guideline; (

v) in January of 2010, the applicant made a complaint to the Human Rights Tribunal of Ontario (“HRTO”) on the grounds of discrimination based upon disability, naming both the School Board and the Union;

(vi) in the course of the HRTO proceedings, which were ultimately dismissed for delay, the applicant received documents from earlier steps, including a legal opinion obtained by the Union opining that the guideline violated Human Rights legislation; (vii) in October 2013, the applicant asked to return to work on an accommodated basis; (viii) after the applicant submitted medical reports, she was asked to have an independent medical examination and, after a dialogue on various issues, she did so in April of 2015; (ix) as a result, the medical evidence showed that the applicant could return to work with the assistance of a rehabilitation counsellor, and she returned to work in June of 2015; (

x) after the applicant’s return to work, her lawyer wrote to the Union to reactivate her termination grievance; (xi) the Union assessed the matter, obtained a legal opinion, and in February 2016, the Union revived the grievance; (xii) the applicant retired in 2016 but told the Union that she wished to continue with the grievance/arbitration; (xiii) the grievance hearing began in 2017 with dates in 2017 and 2018, but several dates were adjourned because the applicant could not attend; (xiv) in June 2018, the applicant brought a duty of fair representation application to the OLRB under s. 96 of the Act, raising issues about her dismissal, responses to her requests of the Union after her dismissal, the circumstances surrounding her return to work in 2015, and the course of the grievance from April 2016 on forward; (xv) in October of 2018, the OLRB dismissed the application as premature but the applicant was told she could refile after the grievance was concluded; (xvi) in January 2019, the grievance was dismissed for delay, among other reasons, and did not proceed to be heard on the merits; (xvii) in May of 2020, the applicant refiled her duty of fair representation application, alleging unfair labour practices; (xviii) the OLRB dismissed the unfair labour practices application, partly due to delay and partly for failure to raise a prima facie case, giving rise to the Decision. [ 6 ] The applicant’s unfair labour practices application questioned the Union’s defence to the timeliness challenge raised by the School Board.

Further, the applicant questioned the scheduling of the arbitration and submitted that the Union did not advise her of the arguments it would make.

She submitted that all the documents were not put forward, that the Union relied on the fact that the applicant was receiving LTD benefits rather than putting forward medical information, that the Union wrongly agreed to exclude the applicant’s post-termination medical records because the parties did not agree on redactions, that there was helpful evidence that was not put forward, that the Union misrepresented the significance of a 2006 legal opinion sent to the Union, that she did not receive copies of all the documents in a timely way, and that the Union did not make a sincere effort to explain the delay. [ 7 ] In response to the unfair labour practices application. the Union and School Board submitted that the application should be dismissed for delay, that the application failed to disclose a prima facie case, that a number of the remedies sought were not available or were moot, and that the application was an abuse of process.

With respect to the ground of delay, the Union asked for dismissal for the period before the grievance was revived in early 2016, not for the entire period of time raised in the application. OLRB Decision [ 8 ] The OLRB first considered delay and declined to dismiss the entire application for delay. Only the part of the application that made allegations of misconduct predating the reactivation of the grievance in March 2016 were dismissed for delay. The events relevant to the early allegations were considered, including when the applicant became aware of them and what steps she did and did not take.

The OLRB concluded that those allegations should have been raised by the spring of 2016 and no significant mitigating circumstances had been put forward. [ 9 ] The OLRB then considered whether the post-March 2016 allegations made out a prima facie case that the Union acted in a manner that was discriminatory, arbitrary or in bad faith in its representation of the applicant.

The allegations fell into two categories: the manner in which arbitration dates were selected and the Union’s strategic handling of the litigation including what evidence would be put forward. [ 10 ] The OLRB concluded that the facts did not disclose a prima facie case that the Union violated s. 74 of the Act and dismissed the application. Standard of Review [ 11 ] The standard of review is reasonableness, in keeping with the presumption in Canada (Minister of Citizenship and Immigration) v. Vavilov , 2019 SCC 65 , [2019] 4 SCR 653, at paras. 17 , 53 and 69.

The exceptions to the presumption of reasonableness do not arise. [ 12 ] This case involves labour relations, the OLRB’s home statute and the exercise of discretion under that statute. As set out in Vavilov , at para. 13 , reasonableness review is meant to ensure that courts intervene in administrative matters only where it is truly necessary to do so. Reasonableness review “finds its starting point in the principle of judicial restraint and demonstrates a respect for the distinct role of administrative decision makers.

However, it is not a “rubber-stamping” process or a means of sheltering administrative decision makers from accountability. It remains a robust form of review.”

[13] The “reviewing court must develop an understanding of the decision maker’s reasoning process in order to determine whetherthe decision as a whole is reasonable. To make this determination, the reviewing court asks whether the decision bears the hallmarks ofreasonableness — justification, transparency and intelligibility — and whether it is justified in relation to the relevant factual and legalconstraints that bear on the decision”: Vavilov, at para. 99. [14] The burden is on the party challenging the decision to show that it is unreasonable: Vavilov, at para. 100.

Issues [15] The applicant submits that the Decision is “infected with legal error” and “unreasonable” because of the following: (

a) for failure to address the misleading communications from the Union to the applicant; (

b) for failure to recognize that the Union’s counsel was in a conflict of interest creating a risk that counsel would “soft peddle”the defence; and, (

c) for failure to find on the facts put forward that it was not plain and obvious that the application could not succeed. Analysis [16] The first issue is the alleged misleading communications. In the early period, after the applicant’s dismissal, there werecommunications from the Union that could be characterized as misleading. For example, the applicant was told that there would be nogrievance yet one was commenced that she was told of much later on. [17] The OLRB did not proceed with respect to these alleged misleading communications because of the applicant’s delay.

TheOLRB considered the relevant rule, which requires that a party who intends to allege improper conduct must do so promptly after findingout about the alleged improper conduct. The OLRB considered the key principles in determining whether the delay was excessive fromits prior jurisprudence and the course of events over the period from 2005 on forward. The OLRB noted that some of the delay had beenexplained and that the applicant’s mental state in the period between January 2019 and May 2020 was a significant mitigatingcircumstance.

However, the OLRB found no mitigating circumstances that explained the applicant’s failure to bring her prior allegationsto the OLRB before June 2018. The OLRB found that they could have and should have been raised no later than the spring of 2016. The applicant has not shown that this conclusion was unreasonable. [18] The second issue, based upon conflict of interest, was not raised before the OLRB. While we have discretion to consider anew issue, the applicant has not provided an adequate reason for doing so in this case. She had the facts needed to advance this argumentbefore the OLRB and did not do so.

The applicant now submits that the Union and its counsel were in a distinct undisclosed conflict ofinterest because the Union was the source of the delay that ultimately caused the grievance to be dismissed. The applicant also suggeststhat the Union’s involvement in the long-term disability policy, including the guideline, that gave rise to her dismissal compromised theUnion. The applicant further submits that the Union’s counsel represented both the applicant and the Union, yet the Union is the partyto a grievance, not the applicant.

The applicant also relies on caselaw as if she had retained Union counsel, which is not analogous to therelationship between the applicant and the Union’s counsel. Having considered the applicant’s submissions, we are not prepared toexercise our discretion to grant relief on this ground. [19] The third issue challenges the finding that there was no prima facie case. Given the above ruling based on delay, the OLRBfocused on the period after the spring of 2016. The applicant advanced several grounds in her application for that period.

Thoseallegations relate to the scheduling of the arbitration hearing dates and the Union’s litigation strategy in its response to the SchoolBoard’s position that the application should be dismissed for want of a prima facie case.

Rule 39 of the Rules of Procedure of the OLRBprovides for such an outcome where, even if all the facts stated in the application are assumed to be true, the application does not makeout a case for the orders or remedies requested. [20] The OLRB assumed the applicant’s facts to be true and concluded that the applicant had not made out a prima facie case thatthe Union had acted in a manner that was arbitrary, discriminatory or in bad faith in its representation of her in the arbitration process. [21] The OLRB found that the applicant did not show that she was treated differently or that the Union was motivated by ill-will ordishonesty in the scheduling of the hearing dates.

The OLRB recognized that the applicant was dissatisfied with the choices that theUnion made regarding the evidence but noted that the applicant did not propose a particular strategy to the Union or press the Union toput forward certain evidence. If she had done so, the Union would have had to consider it, although not necessarily follow it.

But theUnion not apprising the applicant of its litigation strategy did not, on its own, show that the Union acted arbitrarily, in bad faith or in adiscriminatory manner. [22] The applicant submits that Rule 39.1 of the OLRB rules should be interpreted as applying the test for r. 21.01(1)(

b) of theRules of Civil Procedure. Although it does not appear that this submission was raised before the OLRB, the applicant submits that theOLRB should have applied the test from Hunt v. Carey Canada Inc., (SCC), [1990] 2 SCR 959, and asked whether itwas “plain and obvious” that the equivalent to pleadings could not succeed on the merits. The

interpretation of OLRB Rules fallssquarely within its expertise and is entitled to deference. In the Decision, the OLRB referred to and applied its jurisprudence regardingits Rule 39. The applicant has not shown that the decision is unreasonable, even if there was arguably a “plain and obvious” standardthat applied in this case. Decision [23] This application is dismissed with costs to the Union and School Board in the total amount of $5,000, all inclusive, and nocosts to the OLRB.

_______________________________ Justice McCarthy _______________________________ Justice Matheson _______________________________ Justice Akbarali Released: January 5, 2023 Johnston v. Ontario Secondary School Teachers’ Federation, 2023 ONSC 59 DIVISIONAL COURT FILE NO.: 934/21 DATE: 20230105 ONTARIO SUPERIOR COURT OF JUSTICE DIVISIONAL COURT BETWEEN: SUSAN JOHNSTON – and – ONTARIO SECONDARY SCHOOL TEACHERS’ FEDERATION, YORK REGION DISTRICT SCHOOL BOARD, ONTARIO LABOUR RELATIONS BOARD REASONS FOR DECISION Released: January 5, 2023