[1980] OLRB Rep. July 1049
0837-79-U Teamster, Chauffeurs, Warehousemen and Helpers, Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Complainant, v. Russell MacVicar Limited, Respondent.
BEFORE: R. O. MacDowell, Vice-Chairman and Board Members B. Armstrong and J. A. Ronson.
APPEARANCES: Stephen Krashinsky and John Impens for the complainant; Charles F. Clark and Henry J. Lamotte for the respondent.
DECISION OF THE BOARD; July 7, 1980
This is an application under section 95 of The Labour Relations Act for reconsideration of a decision of the Board dated March 5, 1980. In that decision the Board set out its reasons for denying the respondent's request for an adjournment and, on the basis of the evidence before it, found that the respondent had illegally terminated four of its employees. By letter dated April 10, 1980 the respondent (by its solicitor, Charles F. Clark of the firm of McTague, Clark) requested reconsideration of that decision. The Board held a hearing on June 23, 1980 in order to hear the respondent's evidence and representations.
The respondent makes two submissions in support of its request for a new hearing. It is argued that the Board should have granted the respondent's original request for an adjournment, and that its failure to do so resulted in a denial of natural justice. It is further argued that the respondent failed to attend the first hearing because of a misunderstanding of its legal position, and confusion arising from the advice of its solicitors. On both grounds it is argued that the proceedings should be re-opened and reheard de novo. We propose to deal with these arguments seriatim, but before doing so it may be useful to refer to those portions of the Board's original decision which are relevant to the request for reconsideration. Paragraphs 2 to 8 of that decision read as follows:
"The complaint was filed on August 3rd, 1979 and, at that time, dealt with only two terminations. Subsequently the union learned that two other employees had been "laid off' and, by letter dated August 10th, 1979 the union requested an amendment to its complaint to add two further grievors. In accordance with its usual practice the Board appointed a Labour Relations Officer to meet with the parties and attempt to effect a settlement. A hearing was scheduled for September 19th, 1979 and, in the meantime, settlement efforts proceeded.
A few days prior to the hearing date, the respondent's solicitor (from the firm of Bartlett and Richards, in Windsor) met with counsel for the union, in Toronto, and were able to reach, what they considered to be, an amicable resolution of the matters in dispute. It was agreed that the terms of this settlement would be reduced to writing, and that both solicitors would recommend acceptance to their respective clients. Meanwhile, the hearing was adjourned. Shortly thereafter, the trade union received a written document incorporating the proposed settlement, reviewed and executed same, and then waited for the respondent to do likewise. Since the discharged employees had not been able to find alternate employment, counsel for the union pressed the solicitor for the respondent for an early resolution of the matter. The solicitor for the respondent advised that, although he was making his best efforts, the respondent was unwilling to accept the proposed settlement.
By mid-December, the union concluded that Henry Lamotte, the president of the respondent, was simply disregarding the rights of his employees, the processes of the Board, and the advice of his own solicitor; and requested the Board to reschedule the matter for a hearing. The union also requested that the Labour Relations Officer make a further attempt to settle the case. Counsel for the union was subsequently advised that these further efforts by the Labour Relations Officer, and by the solicitors for the respondent, were to no avail. On January 31st, 1980 the respondent was sent a new notice of hearing fixing the hearing date for Friday, February 29th, 1980. A final settlement effort was made between the service of the new notice of hearing and the hearing date but it, toe, proved unsuccessful.
Early in February Mr. Lamotte contacted the firm of Mathews, Dinsdale and Clark, in Toronto, with a view to retaining them with respect to these matters. Mr. J. D. Carrier, a member of the firm, spoke to Mr. Lamotte on February 11th, 1980 and with Mr. Lamotte's wife on or about February 14th, 1980. Mr. Carrier advised Mr. Lamotte of his understanding, that Bartlett and Richards were still the solicitors of record and that, in the circumstances, the Mathews, Dinsdale firm would not act and did not wish to be retained. Mr. Carrier's advice, inter alia, that he did not wish to act or be retained at that time, was confirmed by letter to Mr. Lamotte, dated February 14th, 1980. Mr. Carrier never met Mr. Lamotte, never received instructions, and as we have already pointed out, was never retained in any formal sense.
In the two days immediately preceding the hearing, following telephone conversations with the Assistant Registrar of the Board, Mr. Carrier learned that there might be some confusion, or misapprehension, on Mr. Lamotte's part concerning his legal representation. On Thursday, February 28th, Mr. Carrier spoke to Mr. Lamotte and was told that the respondent would, in any event, be seeking an adjournment of the Friday hearing. Lamotte told Carrier that his brother had died on Sunday, February 24th, the funeral had taken place on Wednesday, February 27th, and that he was still in a state of shock and mourning and could not proceed with the hearing. Mr. Carrier (who is experienced in labour law matters and has frequently appeared before the Board) told Mr. Lamotte that: adjournments are not granted as a matter of course — particularly at such a late date; that the union might well oppose the request for an adjournment; and that he (Lamotte) should attend personally at the Board hearing, in order to speak in support of his request for an adjournment. As a courtesy to Mr. Lamotte, and because he was concerned that there still might be some confusion on Mr. Lam otte's part, Mr. Carrier spoke to counsel for the union on Thursday, February 28th, to relay the respondent's request for an adjournment. Mr. Carrier also appeared the following morning before the Board to communicate the same information. Despite Mr. Carrier's advice to him, Mr. Lamotte did not appear at the hearing.
The union opposed the respondent's request for an adjournment. The employees remained without work, and in the union's view, Lamotte had had ample opportunity to either settle the case or retain counsel to act on his behalf. After a brief adjournment, to allow counsel to contact the firm of Bartlett and Richards, in Windsor, counsel advised that that firm had told Mr. Lamotte, some time ago, that it was unwilling to act for him any longer. Moreover, the union led evidence demonstrating that, notwithstanding his brother's death, Mr. Lamotte had continued to carry on his ordinary business on the Monday and Tuesday immediately after the death, and on the Thursday following the funeral and immediately preceding the Board hearing. In the union's submission Mr. Lamotte's position was patently without foundation, and an attempt to mislead both Mr. Carrier and the Board.
In the circumstances, and having regard to the evidence before us, the Board was not satisfied that it should exercise its discretion to grant an adjournment in this matter. Following this ruling Mr. Carrier advised that, as he had not been retained, and had received no instructions with respect to the merits of the complaint, he would be withdrawing from the hearing."
At the hearing on June 23rd, Henry Lamotte, the owner of the respondent, gave viva voce evidence. Mr. Lamotte confirmed that his brother had died on February 24th and told the Board that because of his bereavement, he was unable to do any work that week. He visited the business premises only once, and then, only for the purpose of delivering some papers. He clearly, unequivocally, and repeatedly denied ever driving a truck during that week or doing any other manual work about the premises. On cross-examination however, he was confronted with an invoice bearing his signature and indicating that a load of sewage had been delivered to a sanitary landfill site in Essex County on February 25, 1980; that is the day (Monday) following his brother's death. Lamotte admitted the accuracy of this document, but then maintained that this was the only work which he performed. Subsequently the Board heard the evidence of John Impens and Robert Martineau, two employees of the respondent, who were picketing the premises throughout that week. They testified that on the Monday and Tuesday immediately after his brother's death, and on the Thursday following the funeral and immediately preceding the Board hearing, Lamotte came to work as usual, changed into his coveralls, and continued to carry on his ordinary business activities. He was observed performing various tasks about the premises, driving the pump truck, and leaving the premises transporting a septic tank. The employees testified that because they were on strike and Lamotte was trying to maintain "business as usual," he was very busy and was engaged in a number of tasks which would normally be done by his employees. Having regard to the demeanour of the witnesses, the manner in which they gave evidence, and the credibility and consistency of the various versions of events, we have no hesitation in accepting the evidence of Martineau and Impens, and rejecting that of Lamotte. Indeed, we are satisfied that Lamotte has not been candid with the Board, and has intentionally misrepresented the facts.
Section 91(12) of the Act and Rule 57 of the Rules of Practice permit the Board to adjourn any proceeding where the Board considers it in the interests of justice to do so; and in appropriate circumstances a death in a party's immediate family may well provide grounds for an adjournment. In the present case however, Mr. Lamotte's sense of loss did not prevent him from going to work and carrying on his ordinary business as a sewer and drainage contractor on the Monday and Tuesday following his brother's death, and on the Thursday following the funeral and preceding the scheduled hearing date. The hearing itself did not conflict with his funeral obligations, and we are satisfied that in the circumstances no adjournment was warranted.
The second ground advanced by the respondent in support of its request for reconsideration, is an alleged misunderstanding by Mr. Lamotte concerning the necessity of his presence on the original hearing date. It is admitted that he received notice of the hearing and had ample opportunity to retain and instruct counsel. Mr. Lamotte argues, however, that there was some confusion concerning his selection of, and communications with, his solicitor, with the result, rightly or wrongly, that he formed the impression that an adjournment would be granted as a matter of course, and his presence at the hearing would not be required. Mr. Lamotte explained to the Board that he had become dissatisfied with his original solicitor's performance and had decided to retain new counsel. The firm of Mathews, Dinsdale and Clark was contacted in early February; but Mr. J. D. Carrier of that firm advised Lamotte by telephone, and subsequently by letter, that he was unwilling to act until Lamotte settled the outstanding account of his previous solicitor, and that solicitor resigned from the record. Lamotte told the Board that Carrier was "working for him" and had been retained to appear on his behalf at the original hearing (a fact which Carrier denied); but he admitted that no settlement of the previous solicitor's account, retainer, or payment of Carrier took place until well after the hearing. Nothing turns on the formalities of Carrier's retainer however, since Carrier appeared at the hearing and put the respondent's position as well as he could in the absence of Lamotte. Carrier told the Board at the first hearing that he had spoken to Lamotte by telephone ~.he evening before, and had told him that an adjournment might not be granted and that he should be present in Toronto in case the Board decided to proceed with the case on the merits. Carrier said he didn't know where Lamotte got the idea that an adjournment would be granted automatically, but, in any event, he explained that this was not the case. Lamotte admits discus sing the hearing with Carrier, but testified that he was told that there would be an adjournment. He told the Board he could not recall Carrier ever suggesting that an adjournment might not be granted as a matter of course; and he denies being advised to attend the Board hearing. Lamotte told the Board that he had made reservations to come to Toronto, and that after his discussion with Carrier he decided not to come. His present predicament was characterized as his "lawyers' fault."
J. D. Carrier is an experienced solicitor who frequently appears before the Board in labour relations matters. We are satisfied that he advised Mr. Lamotte that an adjournment might not be granted, that the hearing might proceed on the merits and that he should be present at the hearing. It is difficult to see how a person who has conducted a successful business for some years could misunderstand these simple instructions. We are satisfied that Lamotte decided to ignore Carrier's advice (as he had ignored the advice of his previous solicitor) and take the chance that an adjournment would not be granted. Even if Mr. Lamotte bona fide, misunderstood his solicitor's instructions (and we repeat that we are not satisfied that this is the case) this in itself would not be sufficient to prompt the Board to rehear the matter. This is not a case in which the respondent's position is in any way attributable to the complainant or the processes of the Board. The Notice of Hearing was explicit and provides in bold type that "IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS." Counsel for the applicant did not at any time suggest that he would consent to a further adjournment. On the contrary, after considerable forbearance while Lamotte's previous solicitor pursued the possibility of a settlement short of litigation, he ultimately concluded that the matter could only be resolved by a hearing. The "misunderstanding," if there is one, lies solely with Mr. Lamotte himself; and it is well established that a mistake by a party or its counsel, which results in a failure to attend a Board hearing is not a ground requiring reconsideration of a Board decision or a rehearing of the original matter. (See Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; Soo Dairies Ltd., [1968] OLRB Rep. Mar. 1183). One of the principal purposes of an administrative agency is to process the matters that come before it with expedition and economy. This value can only be achieved if there is finality to the Board's decisions in the vast majority of cases. To rehear cases because one party made a mistake and neglected to attend a hearing would substantially impair this end. This is especially the case, where, as here, there has been clear notice and explicit instructions from a solicitor that the respondent should appear.
We have carefully considered the respondent's representations and are not satisfied that the Board's decision should be set aside or reconsidered. The respondent had ample opportunity to appear and make its submissions at the original hearing, and we do not consider it necessary to conduct a further hearing or hear the matter de novo. Accordingly, the application for reconsideration is dismissed.