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Labour (Ont) - OLRB Procedures. McHayle v. Ontario Labour Relations Board
In McHayle v. Ontario Labour Relations Board (Div Court, 2024) the Divisional Court dismissed a JR, here against an OLRB denial of a 'duty of fair representation' case [LRA s.74] for delay (at the OLRB):[6] In a decision dated January 10, 2023, the Board dismissed the application on the basis of delay. The Board was aware Mr. McHayle had pursued complaints and litigation before the Financial Services Commission of Ontario, the Financial Services Tribunal and by judicial review to this court. It rejected Mr. McHayle’s reliance on this other litigation to justify his delay. It stated that a party who prioritizes other litigation does so at its own peril. The Board also was not persuaded by Mr. McHayle’s argument that the complexity of the issues justified his delay since he had no difficulty advancing them in other forums.
[7] The Board refused Mr. McHayle’s request for reconsideration. It did not accept it had committed an “obvious error” in its original decision.
[8] Mr. McHayle makes numerous submissions in his written material and oral argument before this court. I summarize his primary submissions as follows: (1) the Board erred by mischaracterizing his other litigation as showing that he prioritized litigation in another forum; (2) He only became aware of his cause of action against OPSEU shortly before he initiated the application before the Board; (3) The Board did not take into account all the necessary factors related to delay including that OPSEU had not suffered any prejudice; (4) there is no time limit in s. 74 of the LRA for filing a duty of fair representation application; (5) OPSEU’s discrimination is ongoing given the continued impact of Amendment 22 and (6) OPSEU’s conduct was unfair and violated his constitutional rights.
[9] There is no dispute that the standard of review for a decision of the Board is reasonableness. The Board’s decision to dismiss an application for delay is an exercise of discretion. The court will accord a high degree of deference to this type of discretionary decision.
[10] The Board’s decision in this case was reasonable. The Board was entitled to find Mr. McHayle’s decision to pursue other litigation was an unsatisfactory justification for the delay. In addition, it was open to the Board to presume prejudice in circumstances where Mr. McHayle did not start his application against OPSEU until over six years after his pension was transferred to the Public Service Pension Plan. The Board was not required to address all possible factors related to an assessment of delay. Instead, it was reasonable for the Board to emphasize as the most important factor that the delay was substantial and unjustified.
[11] Contrary to Mr. McHayle’s submission, s. 74 did not constitute a relevant legal constraint on the Board’s decision, even though it does not contain a time limit for bringing an application. The Board is entitled to control its own process. It relied on its own case law, which provides that an applicant has the onus of justifying a delay of more than a year and lengthy delays are presumptively prejudicial.
[12] I also do not accept Mr. McHayle’s submission that the Board was precluded from dismissing the application for delay because of what he says is OPSEU’s ongoing discrimination through Amendment 22. Mr. McHayle’s application was brought on his own behalf and sought the payment of the excess commuted value he claimed was due to him on his transfer to a managerial position in 2016. The application did not raise other circumstances or the specific losses of any other OPSEU members. Therefore, the application did not raise any facts that would allow the Board to address allegations of ongoing discrimination. It was not unreasonable for the Board to dismiss the application due to delay on the basis of Mr. McHayle’s particular circumstances.
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