An application for judicial review, brought by a former unionized employee of Kraft Canada nearly four years after the original decision, has been dismissed by the Ontario Superior Court of Justice.
The court’s decision underscores the importance of timely judicial proceedings and highlights the challenges faced by employees seeking redress through multiple legal avenues.
Delayed action and legal precedents
D.M., who worked for Kraft Canada Inc. and later Mondelēz Canada Inc. following a business transfer, initiated a judicial review three years and eight months after a decision by the Workplace Safety and Insurance Appeals Tribunal (WSIAT) had ruled against him.
The Tribunal had concluded that his right of action against his employers was barred by the Workplace Safety and Insurance Act (WSIA).
Justice Matheson noted that judicial review is a discretionary remedy, and undue delay can be grounds for dismissal. “This Court has consistently held that a delay of six months in bringing an application for judicial review and a delay of 12 months in perfecting it is excessive,” said Matheson.
Background
The dispute dates back to July 2012 when D.M. alleged that J.V., then Union President at the Lakeshore Bakery, had pushed him on the back. Kraft’s subsequent investigation substantiated the claim, though it concluded J.V.’s action — a friendly tap on the shoulder — was unintentional. J.V. received a one-day suspension for violating Kraft’s Violence in the Workplace Policy.
D.M. stopped attending work shortly after, citing fear of J.V. and resulting medical conditions. His application for benefits under the WSIA was denied in 2013, and an appeal of that decision was still pending at the time of the Tribunal’s ruling.
D.M. also pursued other legal avenues, including a civil action and a complaint to the Ontario Labour Relations Board, which was unsuccessful.
Tribunal’s findings
The WSIAT’s January 2020 decision determined that Kraft and Mondelēz, as Schedule 1 employers under the WSIA, were protected from civil action regarding D.M.’s workplace injury claims.
The Tribunal ruled that his claims were squarely within the scope of WSIA, which mandates that all claims for benefits be heard by the Board, thereby eliminating the right to sue the employer.
Explanation for delay
D.M. cited several reasons for his delay in seeking judicial review, including the COVID-19 pandemic, awaiting an expert opinion on his case (which was never obtained), and relying on subsequent legal developments, such as the Morningstar v. WSIAT decision in August 2021. However, Justice Matheson found these explanations insufficient to justify the extensive delay.
“While seeking an opinion is reasonable, a substantial delay is not,” Matheson said. The Court further noted that while the pandemic justified some delay, D.M. did not act promptly once restrictions were lifted.
Additionally, waiting for potential favourable legal precedents does not excuse inaction.
Prejudice and merits
Justice Matheson emphasized the presumed prejudice against the respondents due to the prolonged delay, which Kraft and Mondelēz argued effectively compromised their ability to respond to the claims.
D.M.’s assertion that there was no prejudice because the facts were established was dismissed by the court.
On the merits, D.M. challenged the applicability of WSIA in barring his civil claim. He argued that the court should exercise its inherent jurisdiction to hear his application. However, Matheson clarified that the Divisional Court, being a statutory court, lacks inherent jurisdiction to override statutory provisions.
Conclusion and costs
The court concluded that the substantial delay was unreasonable and dismissed the application for judicial review. D.M. was ordered to pay costs of $3,200 to the respondents.
For more information, see Medeiros v. Vacheff, 2024 ONSC 3990 (CanLII).
