HUMAN RIGHTS TRIBUNAL OF ONTARIO
B E T W E E N:
Russell Jarvis
Complainant
-and-
Ontario Human Rights Commission
Commission
-and-
Sheet Metal Workers’ International Association, Local 30
and Eduardo Oliveira
Respondents
DECISION
Adjudicator: Sherry Liang
Indexed As: Jarvis v. Sheet Metal Workers’ International Association
AppearanceS
Russell Jarvis, Complainant ) On his own behalf
Ontario Human Rights Commission ) Christine Elwell, Counsel
Sheet Metal Workers’ International ) Jerry Raso, Counsel
Association, Local 30 and Eduardo Oliveira, )
Respondents )
INTRODUCTION
1The style of cause is amended to reflect the correct name of the union respondent: “Sheet Metal Workers’ International Association, Local 30”.
2In this complaint, a member of the Sheet Metal Workers’ International Association, Local 30 (the “union”), alleges that the union and its business agent discriminated against him in failing to refer him to certain jobs between March 1998 and May 1999. The complainant, Russell Jarvis, states that he is a black person whose right to equal treatment without discrimination on the basis of race and colour was infringed by the respondents, who showed favouritism towards workers of Portuguese descent.
3The complaint to the Ontario Human Rights Commission (the “Commission”) is dated February 14, 2001. In April 2008, the Commission referred the complaint to this Tribunal for a hearing.
4The Tribunal held an oral hearing to receive submissions from the parties on preliminary issues raised by the respondents. The respondents request that the Tribunal dismiss the complaint on the basis of abuse of process, and on the basis that another proceeding has appropriately dealt with the substance of the complaint. This is the Tribunal’s decision on the preliminary issues.
BACKGROUND
5The facts relevant to the preliminary issues are for the most part described in correspondence and other written materials, and are not in dispute. Where there are differences between the parties, I describe them below. The parties made reference to some additional facts in their oral submissions on the preliminary issues, which I refer to as necessary.
6As of 1998, the complainant had been a member of the union for almost 20 years. The union’s membership includes both sheet metal workers and roofers. Its members who work in the roofing industry are covered by a provincial collective agreement between the union and the roofing contractors’ association and its member contractors. An employer who is signatory to the collective agreement must hire workers through the union’s hiring hall. As part of the administration of the hiring hall, the union maintains a list of unemployed roofer members. A member’s placement on the list reflects the length of time that he/she has been unemployed, with those out of work the longest at the top of the list.
7In February of 1998, the complainant was placed on the union’s list of unemployed roofers. The complainant remained out of work for about 16 months, during most of which he was near or at the top of the list. In that period, the union dispatched members who were placed lower on the list to various jobs, but the complainant was not dispatched.
THE COMPLAINT TO THE ONTARIO LABOUR RELATIONS BOARD
8The complainant made inquiries at the Commission about filing a complaint under the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”), in May 1999, but did not file a complaint at that time. He states that he was told by an employee of the Commission that the Labour Board “had priority” because “it was a union matter.” On May 31, 1999, the complainant made a complaint to the Ontario Labour Relations Board (Board or OLRB) alleging, among other things, that the union had violated its duty of fair referral under section 75 of the Labour Relations Act, 1995, S.O. 1995, c.1, Sched. A (the “LRA”). Section 75 states:
Where, pursuant to a collective agreement, a trade union is engaged in the selection, referral, assignment, designation or scheduling of persons to employment, it shall not act in a manner that is arbitrary, discriminatory or in bad faith.
9The complainant was represented by counsel at this time. In his complaint, he alleges that the union acted arbitrarily and in bad faith in its operation of the hiring hall. He alleges that the union practiced nepotism, and further:
[i]n the alternative, Mr. Jarvis pleads that a full examination of the Requisition Books will disclose that ethnic origin or race played any role in the Union’s hiring hall practices and reserves the right to assert that the Union acted in a discriminatory matter in the operation of his hiring hall.
10As remedy the complainant requested, among other things, a declaration that the union violated section 75 of the LRA, the Board order the union to confirm in writing and disseminate to all its members clear proper rules for the operation and monitoring of its hiring hall, and monetary compensation.
11Following filing of his complaint, the complainant received disclosure from the union of lists of unemployed roofers, dispatch records and labour requisition records, and filed a number of these documents with the Board, in support of his complaint.
12Under the Board’s rules, it may decide a duty of fair referral complaint through an expedited process. Where it is satisfied that a case be decided on the basis of the material before it, the Board may limit the parties’ opportunities to present their evidence or to make their submissions. Its practice is, and was at the time, to hold “consultations” in these types of complaints, rather than an oral hearing. The consultation process was described by Board Chair Kevin Whitaker in Patrolman Security Services Inc., in which he described the differences between this procedure and a hearing:
In a consultation, the parties are not provided with an oral hearing - which would consist of the opportunity to verbally put forward relevant evidence and argument. Rather, the parties are being “consulted” by the Board for the purpose of filling in the informational gaps that exist in the Board’s understanding of the dispute, after having reviewing the detailed material and submissions filed in support of their positions. While the parties have less control over the process and the adjudicator exercises more procedural discretion, the consultation process is far more expeditious and practical than a traditional oral hearing. Such a balancing of procedural entitlements as against expedition and practical focus is not unusual in labour relations litigation.
Teamsters Local Union No. 938 v. Patrolman Security Services Inc., 2005 CanLII 38038, at para.10 (Patrolman)
13On June 7, 2000, the Board held a consultation on the complainant’s complaint. Present were the complainant (who by this time was no longer represented by counsel), the union and its counsel, and a representative of a company (Dean-Chandler Roofing) named by the complainant as an affected party.
14On February 2, 2001, the Board issued a written decision on the complaint (Russell Jarvis v. Sheet Metal Workers International Association Local Union No. 30 [2001] O.L.R.D. No. 3044). In dismissing it, the Board described the complainant’s allegations that the union improperly gave work to other Local 30 members, while he was on the list of unemployed roofers. It referred to the fourteen work referrals that the complaint alleged were unfairly made, and the union’s explanation for these. The Board noted the documentary material that the complainant had filed in support of his complaint, including 150 labour requisitions and lists of unemployed roofers covering the period in question. The Board stated:
Mr. Jarvis also asserts that Mr. Oliveira’s administration of the hiring hall is marked by favouritism toward workers of Portuguese descent. [para.12]
15The Board’s decision stated, in part:
The Board is satisfied that each vacancy identified by Mr. Jarvis was filled by direct solicitation or employer recall, or required a worker at a lower classification than that held by Mr. Jarvis. At the consultation, the union identified which worker got each position and why. There is therefore insufficient evidence that Mr. Jarvis was denied a specific position because of arbitrary, discriminatory or bad conduct by the union in the administration of the hiring hall. [para.16]
16It also stated:
No material facts were adduced by the applicant to support the allegation that Mr. Oliveira favoured certain workers because of their Portuguese background. [para.18]
17Despite the Board’s conclusion that there was no arbitrary, discriminatory or bad faith conduct by the union towards the complainant, it did make some recommendations to the union:
The union admits that there are no written rules outlining how the hiring hall is administered or operated. The Board is satisfied that the absence of written rules, PER SE, did not result in Mr. Jarvis being actually deprived of work. Nevertheless, in light of the above-referenced passage from JOE PORTISS which points to the heavy responsibility to administer a hiring hall in a scrupulously fair manner, the Board would be remiss if it did not offer the observation that it is troubled by the absence of clear and transparent rules for the Local 30 hiring hall. Some of the confusion or uncertainty experienced by Mr. Jarvis resulted from the fact that he was not FORMALLY advised that Mr. Oliveira did not consider him to be qualified or competent to assume ANY AND ALL vacancies within his nominal classification as assistant roofer. That is, without following any formal process to inform Mr. Jarvis, the union restricted the position for which Mr. Jarvis was eligible to that of "pot man". This restriction should have been made clear to him. In the Board's view, written and posted rules would enhance the fairness of the administration of the hiring hall. [para.20]
18Following the Board’s decision, the union put its hiring hall rules for roofers in writing.
19The day after the consultation, the complainant returned to the Commission. He states that he filed his complaint with the Commission after the consultation because the Board “ignored the documented facts” and refused to allow him to cross-examine the company representative. This time he initiated the process for making a complaint, by taking an intake questionnaire which he returned to the Commission on or around June 30, 2000. In the questionnaire, and in the subsequent formal complaint, the complainant refers to two of the fourteen referrals put before the Board at the consultation.
20Following receipt of the Board’s decision on his complaint, the complainant made a Request for Reconsideration. In it, he asks the Board to reverse its decision based on “new light – NOT new evidence” [emphasis in original]. In the Request, he states that
The consultation became a heated debate at times and I fear the fact and truth, precious truth may have been sacrificed in the confusion. Now that clearer heads prevail, I believe that the true material facts speak for themselves…
Being pressed for time, following the respondents defense, I was only able to mount a quick rebuttle, and not fully present my case as I have provided here. This material is the same as in my application, nothing different. Thanking you in advance for your consideration. See added attachments.
21The Board, by decision dated May 5, 2001, denied the Request for Reconsideration, stating among other things:
(…) the applicant has filed with the Board a detailed re-iteration of the argument and factual assertions that he made at the consultations. He again itemizes referrals from the hiring hall that he considers should have been offered to him. All of these assertions either were made, or could have been made at the consultation.
A careful review of the applicant’s submissions does not reveal circumstances which would lead the Board to reconsider its decision. The submissions reflect the applicant’s disagreement with the Board’s decision. However, the reasons for the disposition of this matter are set out in that decision. In essence, the applicant is attempting to reargue the matter.
THE COMMISSION’S INVESTIGATION
22The Commission gave the union notice of the complaint by letter dated February 19, 2001. The union requested that the Commission exercise its discretion under section 34 of the Code (as it then read) to not deal with the complaint because it had already been dealt with by the Board and also because the events complained of occurred more than six months earlier.
23The Commission notified the union on January 6, 2003 of its decision to proceed with the complaint and subsequently appointed an investigation officer. It also turned down the union’s request for reconsideration of the Commission’s decision. On November 19, 2003, the Commission appointed a new investigation officer. During 2004 and up to March 2005, this investigator corresponded with the union over the production of documents by the union. The union objected to the Commission’s intention to investigate allegations of discriminatory work referrals beyond the two identified in the complaint noting, among other things, that the events occurred more than five years previous.
24There was no action on the investigation for a year. On March 20, 2006, the Commission assigned a new investigation officer to the complaint. On June 13, 2006, the union was advised of a further re-assignment to another investigation officer. The union continued to object to the continuation of the complaint. In a letter dated September 15, 2006, to the Commission’s Director of Mediation and Investigation Services, the union submitted that the matter should be terminated on the basis of delay. It also submitted that the investigator had shown bias against the respondents.
25The parties attended a mediation meeting on November 29, 2006, which did not lead to a resolution of the complaint. By letter dated October 16, 2007, the Commission sent the union the Case Analysis Report and informed it of the Commission’s intention to decide whether to refer the complaint to the Tribunal. By letter dated April 16, 2008, the union was advised of the Commission’s decision to refer the subject-matter of the complaint to the Tribunal for a hearing.
26In its hearing brief, the union submitted that the Tribunal should dismiss the complaint on the basis of abuse of process. It asserted that the complaint had been heard and decided in another forum (the OLRB), and that there was unreasonable delay and bad faith on the part of the Commission in referring the matter to the Tribunal.
27The Tribunal scheduled a preliminary day of hearing to hear the parties’ submissions on the issues raised by the union. The Tribunal also requested the parties’ submissions on the application of section 45.1 of the Code, which came into effect on June 30, 2008, following the referral of this complaint. That section reads:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
SUBMISSIONS OF THE PARTIES
28Counsel for the union took the Tribunal through the chronology of the complainant’s dealings with the Board and the Commission. He referred the Tribunal to the text of the complaint made under section 75 of the LRA, as well as to the numerous documents filed by the complainant in support of his complaint.
29Counsel submits that it is clear from the Supreme Court of Canada decision in Tranchemontagne v. Ontario (Director, Disability Support Program) 2006 SCC 14 that human rights tribunals do not have exclusive jurisdiction to decide claims of discrimination. This is also explicitly recognized in section 45.1. Counsel for the union also relied on the doctrine of abuse of process, which is applied to prevent the re-litigation of issues, and has been discussed by the Tribunal in Snow v. Honda of Canada Manufacturing, 2007 HRTO 45. In his submission, the principles underlying s.45.1 and the common law doctrine of abuse of process are the same. Both recognize the need for finality in litigation and both seek to protect litigants from having to defend themselves twice in the same cause.
30Relying on O’Connor v. Canadian National Railway Co., 2006 CHRT 5, counsel asserts that in applying these principles, it is not necessary to find that the OLRB explicitly used the same language as the Tribunal in considering issues of discrimination. In his submission, it has been recognized that the OLRB is an appropriate forum for the litigation of human rights issues. Further, a comparison of the human rights complaint and the section 75 complaint makes it apparent that the issues put before both forums are the same – the work referrals. The complainant filed a list of work referrals at issue in the section 75 complaint and these same work referrals became the list considered by the Commission as part of his human rights complaint. The very same documents that were put before the Board are now before the Tribunal.
31Further, in both complaints, the complainant alleged that he was not given work because he is black and not Portuguese. Section 75 explicitly gives the OLRB the authority to consider whether a union discriminated against a member in the operation of its hiring hall. The nature of discrimination covered by section 75 is broader than, but includes all the grounds under the Code. In its decision, the OLRB specifically considered issues of race and ethnicity and decided that there was no discrimination in how the union treated the complainant. The union submitted that the OLRB considered each work referral and issue, considered whether the complainant was not given the work because of race or ethnicity, and concluded that was not the case.
32The purpose of the LRA is to deal with workplace disputes, and this is in essence a workplace dispute over which the OLRB has expertise. The OLRB’s processes contain procedural safeguards, such as the availability of a request for reconsideration (which the complaint exercised) and judicial review. The union also submitted that the Board has broad remedial powers.
33In the union’s submissions, it is apparent that if the complainant had received a favourable decision from the OLRB, he would not have filed his complaint with the Commission. The complainant was not satisfied with his hearing before the Board, and in bringing his complaint under the Code, he is effectively seeking to have the Tribunal sit on appeal or judicial review of the Board’s decision.
34The Commission submitted that the human rights issues in this complaint were not litigated or addressed before the OLRB. There is therefore no basis to apply the principles of abuse of process or section 45.1 to dismiss the complaint. Further, the circumstances surrounding the delay between the events and the referral of the complaint to the Commission do not amount to an abuse of process warranting dismissal of the complaint.
35With respect to the relitigation of issues, the Commission states that it is seeking significant public interest remedies that would not have been available through the OLRB proceeding. It also submits that the human rights issues were not put “squarely” before the OLRB. It states that, at most, counsel for the complainant reserved his right to raise the issue of discrimination pending the disclosure and production of the union’s requisition books. The Commission asserts that, at the hearing, the complainant “did not and was in fact unable to raise the issue of discrimination”. Despite the Board’s decision, the Commission takes the position that the Board did not deal with allegations of discrimination on the basis of race or ethnicity in the union’s administration of its hiring hall.
36The Commission submits that in determining whether another forum has appropriately dealt with the substance of a human rights claim, the Tribunal should consider whether procedural fairness was followed. In this case, the Commission submits that the Board did not adequately review the evidence, nor did it allow the complainant to speak to the issue of the union’s preference towards Portuguese roofers. It is submitted that the OLRB proceeding was “perfunctory at best.”
37The Commission did agree that the decision resulted in some positive changes in the union’s hiring hall procedures. The union complied with the Board’s recommendation on the transparency of its rules. The decision thus led to a review of the union’s procedures, to the parties’ mutual benefit.
38In his written and oral submissions, the complainant focussed on his perception that the Board’s consultation process was inadequate. He denies the union’s assertion that the Board dealt with the identical issues and facts as his complaint before the Tribunal, with reference to that process. The complainant stated that he brought his complaint to the Commission to pursue a “proper and fair approach” to his situation. He states that he did not have a chance to put in his case before the Board. He felt that matters were rushed. The parties spent much time discussing the complainant’s qualifications for certain jobs, and did not discuss human rights issues. He believes that the Vice-Chair of the Board was too friendly with counsel for the union, asking his opinion on matters of procedure, without giving the complainant the same opportunity. He states that he was not permitted to cross examine the company representative.
39The complainant states that the union’s preference towards Portuguese workers was shown in the documents. Although the union’s requisition books had been produced and were available, the Vice-Chair did not examine them. Although the Board found that there was “insufficient evidence” to support the complaint and that he had failed to adduce facts to support his assertion that the union favoured Portuguese workers, the complainant states that he was not given time to make his arguments on those points. At one point in his oral submissions, the complainant stated that he was “surprised” to see the Board’s reference to his allegation about favouritism towards Portuguese workers, and that “we didn’t discuss that.” However, he did not dispute the statement made in the union’s hearing brief that this was part of his complaint before the Board.
DECISION
40Although the union relied on the principle of abuse of process as well as section 45.1 of the Code in its request to dismiss the complaint, it is not necessary to consider abuse of process. I have decided that the proceeding before the Board appropriately dealt with the substance of the complaint, and that I should exercise my discretion to dismiss it.
41Section 45.1 of the Code states:
The Tribunal may dismiss an application, in whole or in part, in accordance with its rules if the Tribunal is of the opinion that another proceeding has appropriately dealt with the substance of the application.
42As in the Tribunal’s decision in Campbell v. Toronto District School Board, 2008 HRTO 62, I find it helpful to consider section 45.1 in two parts:
was there another proceeding?
if so, did it appropriately deal with the substance of the application?
43In Campbell, the Tribunal stated that a “proceeding” for the purpose of section 45.1 includes, at the very least, an adjudicative process established under a statutory regime. Applying this, I find that the complaint under section 75 of the LRA was a “proceeding” within the meaning of section 45.1. This was not contested by the parties, who focused their submissions on the issue of whether the complaint before the OLRB “appropriately dealt with the substance of the application.” It is to this issue that I now turn.
WHETHER THE COMPLAINT TO THE OLRB APPROPRIATELY DEALT WITH THE SUBSTANCE OF THE APPLCIATION
44Some of the guiding principles the Tribunal has considered in applying section 45.1 are:
Section 45.1 gives expression to a legislative intent to avoid the duplication of proceedings and the re-litigation of issues that have been dealt with elsewhere;
The discretion given to the Tribunal in s. 45.1 is at least as broad as the doctrines of issue estoppel and abuse of process;
In determining whether another proceeding has appropriately dealt with the substance of the application, the Tribunal should not be overly technical;
The Tribunal does not act as an appellate court from the decisions of other tribunals, and the Tribunal need not be satisfied that it would have reached the same conclusion as that reached in the other forum.
45Although the discretion given to the Tribunal under section 45.1 is broad, the Tribunal’s exercise of the discretion is based on the application of certain factors to the circumstances of each case. Some of the factors the Tribunal has considered in cases under section 45.1 are:
The purpose of the other statutory scheme and its relationship to the Code;
Whether the other proceeding decided the same questions;
Whether human rights principles were applied in the other proceeding;
The nature of the process applied in the other proceeding and the availability of procedural safeguards.
These factors are relevant to the case before me.
The Purpose of Section 75 of the LRA and its Relationship to the Code
46As described in the Tribunal’s decision in Dunn v. Sault Ste Marie (City), 2008 HRTO 149, the duty of fair representation flows from a union’s role as exclusive bargaining agent. So long as a union has the exclusive authority to represent employees, and employers are prohibited from bargaining directly with employees in the bargaining unit, the union has the corresponding obligation to be fair in the manner in which it represents those employees. In the case of work referrals, so long as a union has the exclusive authority to dispatch workers to an employer covered by a collective agreement, the union again has a corresponding obligation to be fair in the manner in which it operates its hiring hall.
47In Dunn, the Tribunal described the relationship between the duty of fair representation, and discrimination under the Code:
The requirement under s. 74 of the LRA that a union not act in a discriminatory manner includes and is broader than discrimination on the grounds set out in the Code. As the OLRB stated in Kenneth Edward Homer, [1993] OLRB Rep. May 433:
The term “discriminatory” in [what is now s. 74] has been interpreted broadly to include all cases in which a trade union distinguishes between or treats members differently without a cogent reason for doing so (see, for example, The Municipality of Metropolitan Toronto, [1978] OLRB Rep. Feb. 143, Douglas Aircraft Co. of Canada Ltd., [1976] OLRB Rep. Dec. 779). [emphasis added]
This doubtless includes discrimination on Code grounds. Therefore, the OLRB can decide an allegation that a union discriminated against a member of a bargaining unit, contrary to the Code, when it adjudicates a claim that the union violated the duty of fair representation by acting in a discriminatory manner.
48Section 75 has a labour relations purpose, in that it is about the relationship between a union and the members covered by its hiring hall, but it includes a human rights purpose. Section 75 incorporates the anti-discrimination purposes of the Code into the principles governing the relationship between unions and those members. This favours the application of section 45.1 to a decision of the Board made under section 75.
49It is also worth noting that the Board has broad remedial powers under the LRA. In complaints under section 75, the Board has ordered systemic remedies akin to those the Tribunal may consider. In Joe Portiss, [1983] OLRB Rep July 1160, in addition to compensation to the complainant, the Board directed the union to draft written hiring hall rules, present them for discussion and adoption by the general membership, permanently post the rules, provide a copy to each member, establish a committee on classification of members, appoint an auditor to review the administration of the hiring hall rules for a specified time, post copies of the out of work list, and take other steps.
50The Board’s experience and expertise in crafting systemic remedies to address discrimination in a labour relations environment again support the application of section 45.1 to a decision of the Board.
Whether the Same Question was Decided, Using Human Rights Principles
51The Commission does not dispute that it would be within the jurisdiction of the Board, in applying section 75 of the LRA, to determine whether a union has discriminated against a member within the meaning of the Code. The Commission’s submission is that discrimination under the Code was not in fact an issue before the Board at the consultation into this complainant’s duty of fair work referral complaint.
52I cannot accept this submission. As a question of fact, it is contradicted by the Board’s decision, and by the positions taken by the union and the complainant. The Board stated clearly that the issues included the allegation that the union favoured Portuguese workers, to the exclusion of the complainant, and made findings about this allegation. In applying section 75 of the LRA, the Board considered whether the union had acted in a manner that was unfair, discriminatory or in bad faith, including whether it had discriminated against the applicant on the basis of Code grounds.
53As indicated above, in his written reply to the union’s hearing brief, the complainant agreed that his Board complaint included the allegation that the union favoured members who were Portuguese. The complainant’s position therefore is not that the issue was not before the Board, but that the Board failed to come to the right conclusions. This is consistent with his Request for Reconsideration of the Board decision in which the complainant essentially asked the Board to take another look at the documents and conduct a more thorough examination of the evidence which he believed should lead to a different conclusion.
54I find therefore that the question before the Board included the same issues as those before the Tribunal – whether the union discriminated against the complainant on the basis of his race and ethnic origin, in favouring Portuguese workers in its hiring hall practices.
55It is worth noting that the Commission’s position assumes that a complainant may choose to put into issue all aspects of a union’s operation of a hiring hall in a complaint under section 75 (and whether it acted in a manner which was arbitrary, discriminatory or in bad faith), while reserving to the Tribunal the specific issue of discrimination under the Code. Whether there is any logic in permitting the duplicate litigation of the identical facts in such a manner is an issue for another day. I am satisfied that the complainant did not ask the Board to specifically refrain from making any findings on discrimination under the Code, and the issue was before the Board.
56Finally, the question of whether human rights principles were applied by the Board in its determination does not require the Tribunal to be satisfied that the Board engaged in a review of Code jurisprudence. It does not require that the Board’s decision “look” like a Tribunal decision. In this case, the Board came to the conclusion that there were valid non-discriminatory reasons for the work referrals at issue, and no material facts to support the allegation that they were discriminatory. Its decision was made within the context of a statutory provision that is broader than but includes Code-related discrimination, and was ultimately based on the facts. Although I recognize that the complainant holds a different view of those facts, the Board decided that there no basis for the allegations of discrimination.
The Nature of the Consultation Process
57The complainant asserts that the consultation process was unfair. His complaints about the process can be summarized as:
The Vice-Chair appeared to favour the union by treating union counsel with familiarity, asking for his views on whether a formal hearing was required, and allowing him an ample opportunity to explain the union’s position;
In contrast, the complainant was not given an opportunity to fully explain his position and was denied the chance to cross examine a witness.
58In applying section 45.1, the Tribunal may consider whether the process leading to a prior decision was so manifestly unfair or lacking in procedural safeguards that it would be unjust to prevent a complainant from having the issues dealt with by the Tribunal. On my review of the circumstances of this case, however, I do not think that the alleged procedural deficiencies should open the door to re-litigation of the issues decided by the Board.
59First, the process through which the Board reached its decision in the complainant’s case is consistent with the manner in which the Board generally conducts consultations, as described in the Patrolman decision above. The Board placed heavy reliance on the written materials filed by the parties. The complainant had, through counsel, submitted a detailed account of his allegations that the union had violated its duty of fair work referral, and then supplemented this with extensive documentation. It is apparent that at the consultation held on June 7, 2000, the parties were, as described in the Patrolman decision “consulted” by the Board for the purpose of filling in the informational gaps in the Board’s understanding of the dispute, after reviewing the material and submissions filed in support of their positions.
60Second, the Board’s consultation process has been upheld by the courts [see, for example, International Brotherhood of Electrical Workers, Local 1739 v. International Brotherhood of Electrical Workers (2007), 2007 CanLII 65617 (ON SCDC), 86 O.R. (3d) 508 (Div.Ct.)].
61In this context, the substitution of a formal hearing with evidence under oath and cross-examination of witnesses, by a process in which the Board played a much more activist role in defining the issues and eliciting the facts, is not a reason for the Tribunal to disregard the Board’s conclusions and inquire once again into the same facts and issues.
62The complainant was left with the unfortunate impression that the Vice-Chair of the Board was more interested in hearing from the union than from himself. But the matters he describes do not, ultimately, lead me to the conclusion that he should not be held to the determinations made by the Board.
63In conclusion, I find that the Ontario Labour Relations Board has appropriately determined the substance of the complaint before me. In the exercise of my discretion under section 45.1 of the Code, I dismiss this complaint.
Dated at Toronto, this 4th day of February, 2009.
“Signed by”
Sherry Liang
Vice-chair