Executive Summary: Key Legal and Evidentiary Issues

• Azadbir Brar sought an extension of time — approximately eighteen months — to apply for judicial review of Arbitrator Kaplan's compensation award dated September 27, 2023.
• Section 5(1) of the Judicial Review Procedure Act requires judicial review applications to be brought within 30 days of the decision; s. 5(2) grants the court discretion to extend time where apparent grounds for relief exist and no substantial prejudice will result.
• Brar's explanation for the delay — relying on a withdrawn unfair labour practice complaint, a file request, and post-surgery bedrest — was found to be weak and unsupported.
• Under established labour law, a unionized employee generally cannot seek judicial review of an arbitration award where the union has decided not to pursue one, subject to limited exceptions.
• Even on the merits, the presumptive standard of review is reasonableness, and courts afford considerable deference to arbitrators in the labour relations context.
• Substantial prejudice to the respondents was found, and the importance of finality in labour relations weighed heavily against granting the extension.

Facts of the case

Azadbir Brar was terminated from the Toronto Transit Commission (TTC) in 2019. His union, ATU Local 113, pursued a grievance on his behalf, which proceeded to arbitration before Arbitrator William Kaplan. During the hearing, the TTC agreed to reinstate Brar, and the arbitration continued solely on the issue of compensation. Arbitrator Kaplan issued a decision on September 27, 2023, awarding Brar $175,000 in compensation as well as reimbursement of certain expenses. Dissatisfied with the financial outcome, Brar returned to work at the TTC but sought to challenge the award.

Statutory framework and the union's position

The central procedural provision at issue was s. 5(1) of the Judicial Review Procedure Act, which requires that an application for judicial review be brought within 30 days of the impugned decision. Section 5(2) gives the court discretion to extend that period where there are apparent grounds for relief and no substantial prejudice or hardship will result. After obtaining legal advice, the Union declined to bring an application for judicial review and notified Brar of that decision in October 2023. At Brar's request, the Union confirmed its position in writing by email in February 2024. The Union's position was that when the email stated Brar was "free to seek his own remedy," it referred to pursuing an unfair labour practice complaint — which Brar did in fact pursue, before withdrawing it in December 2024.

Court's reasoning and analysis

Justice Matheson found Brar's explanation for the approximately eighteen-month delay to be weak at best. Brar relied on three grounds: his unfair labour practice complaint (ultimately withdrawn), a request for his file from the Union in August 2024, and a period of bedrest following surgery in August 2023. The court found that the dialogue over documents did not amount to a barrier to commencing judicial review proceedings, and that no supporting medical evidence was provided for the bedrest period — particularly given that Brar was able to file the unfair labour practice complaint during that same time. Citing Unifor v. Scepter, 2022 ONSC 5682 (Div. Ct.), the court noted that even an eight-month delay requires a robust explanation; here, the delay was nearly eighteen months. On the merits, the court identified a further obstacle: under established labour law, a unionized employee generally cannot seek judicial review of an arbitration award where the union has chosen not to pursue one, with exceptions that did not appear to apply on the facts. The court also found no merit to Brar's allegations of procedural unfairness, no basis for an application against the Arbitrator personally, and noted that Brar's reliance on private employment law principles was disputed by the respondents. The lengthy delay was held sufficient to give rise to a presumption of prejudice, reinforced by the importance of finality in labour relations.

Ruling and overall outcome

Justice Matheson declined to grant the extension of time and dismissed the motion. The respondents — ATU Local 113 and the TTC — were the successful parties. Brar was ordered to pay each of the TTC and the Union $3,000 in costs, all inclusive, for a total costs award of $6,000.