|
Presentation - Kind Stories. Kuca v George Brown College of Applied Arts and Technology
In Kuca v George Brown College of Applied Arts and Technology (Div Court, 2024) the Divisional Court, faced with a long-delayed appeal case that presented a risk to a retired worker's arbitration settlement funds, and where there was no apparent prejudice to the College employer, effectively (and also extensively, and not so tacitly) advised the representing applicant of her options in the course of case conference 'directions':[27] I offer Ms. Kuca the following assistance. The proceeding in the Divisional Court is an appeal from the order of Chiappetta J dated January 2, 2013. The only issue is whether the judge was correct in deciding that George Brown College did not violate the arbitration board’s awards when it refused to accept the June 7, 2012 direction to pay into Ms. Kuca’s LPP the two uncashed cheques it agreed to re-issue.
[28] This is an appeal. It is a review of a judge’s final decision. The judge made no decision about the validity of the arbitration award. She also made no decision about allegations of discrimination against the union or George Brown College. These issues cannot therefore be added to the appeal.
[29] If Ms. Kuca wants to try to have the arbitration award reviewed, she will have to look into whether there is an appeal available in the Colleges Collective Bargaining Act, 2008 or perhaps whether she can bring an application for judicial review under the Judicial Review Procedure Act, RSO 1990, c J.1. In either case she will have to contend with the fact that more than a decade has passed since the events.
[30] I note as well that there is a reasoning flaw with bringing the proposed challenges together. If Ms. Kuca says that the arbitration award should be set aside, then George Brown College will not have any obligation to pay her RPP as she asserts. It may be that the award could theoretically be set aside and replaced with something else. But whatever that award would be, it would undermine or render moot this appeal of the order of Chiappetta J.
[31] Similarly, one cannot claim discrimination in an appeal without first suing the person allegedly responsible. Ms. Kuca is of the view that she can sue the union and George Brown College for discrimination as a standalone tort in the Superior Court of Justice rather than bringing a proceeding before the Human Rights Tribunal of Ontario. There are obvious issues with the passage of time, the ability to sue a union, and the question of suing for discrimination alone. But regardless, Ms. Kuca is free to try if she wishes to do so. But that means she has to start a claim in a court or tribunal of first instance.
[32] Ms. Kuca should seek legal advice about her ability to bring proceedings now for such old events. When one sues in Ontario and is unsuccessful, she is likely to be required to pay some or all of the other side’s legal fees. Starting a lawsuit without understanding the risk of paying costs can be a very expensive endeavour.
[33] There is a question of whether I can schedule anything in an appeal where the parties agree the court has no jurisdiction. But section 110 of the CJA expressly allows a court to consider a transfer of an appeal that is already in the wrong court. So I do have authority to schedule a hearing under that section.
[34] Under s.110, there are just two possible outcomes. Either the appeal is transferred to the Court of Appeal or, it is dismissed for want of jurisdiction. This would leave Ms. Kuca free to ask the Court of Appeal to extend the time to allow her to bring an appeal in that court now.
[35] Motions in this court in an appeal are governed by Rule 61.13. That rule directs the parties to the procedures in Rule 37. I told Ms. Kuca to have particular regard to Rule 37.10 to see how to prepare a motion record. She will need a new notice of motion to transfer the appeal to the Court of Appeal under s. 110 of the CJA.
[36] Ms. Kuca knows how to do some research on CanLII. She should look for cases that discuss what the court considers when it is asked to transfer an appeal to the Court of Appeal under s. 110 of the CJA. She then needs to find evidence to meet those factors or tests. I can advise her that the issues of delay and whether the appeal from Chiappetta J. has merit will likely be important issues for her to explain in evidence or in submission in a factum. She should also consider whether she would suffer prejudice or harm if the appeal is not transferred and she is left to ask the Court of Appeal to extend the time for an appeal to that court.
[37] Ms. Kuca should also review Rule 61.13 (4) to see the specific requirements for her motion record and factum in this court.
[38] Ms. Kuca shall deliver her motion record under s. 110 of the CJA by May 31, 2024.
[39] George Brown College shall deliver its responding record by August 2, 2024.
[40] Ms. Kuca’s shall deliver her factum by August 30, 2024. George Brown shall deliver its factum by September 13, 2024.
[41] The Registrar is directed to schedule a date for the hearing of this motion to transfer for no more than two hours on a date after September 20, 2024.
[42] We discussed at the case conference giving notice to the union if Ms. Kuca sought relief against it. However, for the reasons discussed above, I do not grant her leave to bring a motion to add the union to this appeal. Her wish to bring a claim against the union has nothing to do with the appeal from the order made by Chiappetta J. that is before this court.
|
