Docket:
T-1221-11
Citation: 2012
FC 955
Ottawa, Ontario,
August 1, 2012
PRESENT: The
Honourable Mr. Justice O'Reilly
BETWEEN:
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JAMILEH MONJAZI
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Applicant
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and
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ING BANK OF CANADA
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Respondent
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REASONS FOR JUDGMENT
AND JUDGMENT
I. Overview
[1]
Ms
Jamileh Monjazi worked for ING Bank of Canada from May 2000 to January 2008.
She was originally hired as an IT Operations Analyst.
[2]
In
2005, Ms Monjazi fell on a wet cafeteria floor and injured her back. She went
on short-term disability leave. ING offered her reduced and more flexible
hours. However, she was still unable to perform the core functions of her job,
so ING created a temporary position for her as a Production Control Analyst,
which involved less shift work and lighter physical duties. ING expected her to
return to her original position by January 2007.
[3]
The
January 2007 deadline passed. In October 2007, ING asked Ms Monjazi to attend
an independent medical examination. The attending physician concluded that Ms
Monjazi could return to her permanent position without further accommodation,
so long as she avoided repetitive bending, heavy lifting, and excessive stress
on her spine. ING was satisfied that Ms Monjazi could return to her original
position as IT Operations Analyst.
[4]
Ms
Monjazi objected. She raised a number of concerns including her fragile
emotional state, her fear of working alone at night, and the physical demands
of the job. She asked for further direction from ING. Because she refused to
return to her job, ING terminated Ms Monjazi’s employment.
[5]
Ms
Monjazi filed a complaint with the Canadian Human Rights Commission alleging
that ING had discriminated against her and failed to accommodate her
disability. The Commission appointed an investigator who interviewed Ms Monjazi
and gathered evidence. The investigator concluded that Ms Monjazi did not
require accommodation for her disability and had not lost her job as a result
of discrimination. After considering the investigator’s report, as well as Ms
Monjazi’s and ING’s submissions, the Commission dismissed the complaint.
[6]
Ms
Monjazi argues that the investigator acted unfairly by failing to interview the
physician who prepared the medical report. She suggests that the doctor
actually concluded that she could not return to her original position, but
could continue in her temporary position. Without an interview, the doctor’s
report remained ambiguous, she says. Ms Monjazi maintains, therefore, that the
Commission rendered an unreasonable decision because it relied on the
investigator’s ambiguous report. She asks me to overturn the Commission’s
decision and order it to reconsider her complaint.
[7]
In
addition to disputing Ms Monjazi’s substantive submissions, ING argues that her
application is out of time. Generally speaking, applications for judicial
review must be brought within 30 days of a decision. The Commission rendered
its decision on May 28, 2009. Ms Monjazi originally applied for judicial review
on June 30, 2009, but named the Commission as a respondent instead of ING.
Counsel for the Commission and the Department of Justice immediately pointed
out the mistake, but Ms Monjazi did not file her corrected application for
judicial review until July 25, 2011. ING asks me to dismiss the application for
judicial review because it was filed two years too late.
[8]
In
my view, this application for judicial review should be dismissed. Ms Monjazi
has offered no explanation for late-filing it and has not even requested an
extension. In an affidavit filed in a separate motion, Ms Monjazi mentions
medical treatment she received in 2012, but does not say that she was unable to
instruct counsel. In addition, ING is prejudiced by the delay because important
witnesses are no longer available and, in any case, they would have to testify
about events that took place several years ago.
[9]
The
sole issue, therefore, is whether Ms Monjazi’s application for judicial review
should be dismissed for delay.
II. Should Ms Monjazi’s
application be dismissed for delay?
[10]
While
Ms Monjazi has not asked for an extension of time, it is appropriate to
consider the factors that would be relevant if she had.
[11]
First,
has Ms Monjazi expressed an ongoing intention to pursue her application? Ms
Monjazi waited more than two years to file a corrected application for judicial
review. In the interim, she filed an action against ING in the Superior Court
of Ontario, but then abandoned it. I see no evidence of a continuing intention
to pursue her application for judicial review.
[12]
Second,
does Ms Monjazi’s application has any merit? The sole argument put forward by
Ms Monjazi is that the medical assessment was ambiguous. While it is not a
strong position, it is not completely devoid of merit.
[13]
Third,
has the delay caused prejudice? ING was not actually made aware of this
application until it was filed in July 2001. Witnesses with important evidence
have left ING and its ability to respond to Ms Monjazi’s application and any
future investigation has been compromised by the delay. This constitutes
prejudice.
[14]
Fourth,
has Ms Monjazi given a reasonable explanation for the delay? Ms Monjazi has
offered no explanation.
[15]
The
30-day time limit for filing an application for judicial review is not
arbitrary; “[i]t exists in the public interest, in order to bring finality to administrative
decisions so as to ensure their effective implementation without delay and to
provide security to those who comply with the decision or enforce compliance
with it, often at considerable expense” (Budisukma Puncak Sendirian Berhad
v Canada, 2005 FCA 267, at para 60).
[16]
In
my view, it would be contrary to the interests of justice to allow this
application to proceed. It must, therefore, be dismissed.
III. Conclusion and
Disposition
[17]
Ms
Monjazi has not demonstrated that her application should be heard and decided
on the merits. It is out of time, no satisfactory explanation has been provided
for the delay, and allowing the application to proceed would be contrary to the
interests of justice. I must, therefore, dismiss this application for judicial
review with costs.
[18]
The
respondent presented a Bill of Costs putting its total fees and disbursements
at $6,450.94. I would fix total costs at $5,000.00.
JUDGMENT
THIS
COURT’S JUDGMENT is that:
1. The
application for judicial review is dismissed with costs fixed at $5,000.00.
“James W. O’Reilly”
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