Ontario Labour Relations Board

[1980] OLRB Rep. August 1200

0697-80-R Commercial Workers Union, Local 486 Chartered by the United Food & Commercial Workers International Union, Applicant, v. General Bearing Service Ltd., Respondent, v. Group of Employees, Objectors.

BEFORE: R.D. Howe, Vice-Chairman, and Board Members E.J. Brady and M.A. Ross.

APPEARANCES: Ian Roland, Cliff Evans and Barry Baily for the applicant; L. M. Joval, Q.C., and Ernest Bouchard for the respondent; no one appearing for the objectors.

DECISION OF THE BOARD; August 11, 1980

1. This is an application for certification.

2. The applicant has not previously been found to be a trade union within the meaning of section l(l)(n) of The Labour Relations Act. Accordingly, the Board heard evidence and argument on the threshold question of whether the applicant is a trade union within the meaning of the Act. Having regard to all the evidence before it and the submissions of the parties, the Board finds that the applicant is a trade union within the meaning of section l(l)(n) of the Act.

3. Although Mr. Bouchard, the President of the respondent, appeared at the hearing with counsel, the respondent failed to file a reply, a list of employees and specimen signatures. After cross-examining witnesses called by the applicant and making submissions concerning the issue of the trade union status of the applicant, counsel requested that the balance of the case be adjourned and reconvened in Ottawa "at a date to be fixed by the Board and/or convenient to the parties". In support of this request, counsel noted that he had also requested a change of venue for the three section 79 complaints which have been filed against the respondent by the applicant (Board Files Nos. 0698-80-U, 0862-80-U and 0863-80-U) and that he understood from the Registrar that this request had been "favourably received". Counsel also indicated that the basis for the requested adjournment and change of venue was the availability of simultaneous translation services in Ottawa which, counsel suggested, would partially satisfy Mr. Bouchard who, counsel advised the Board, maintains as a matter of principle that the Board's proceedings should be conducted bilingually to permit him to "respond to the application in a manner which would be meaningful to him". Counsel also suggested that the invocation of section 7a by the applicant indicated that the certification application and the section 79 complaints are all "part and parcel of the employer — employee relations picture" and that "they are all issues which for the benefit of the Board and the parties might probably be better heard if not together, at least before the same panel."

4. Counsel for the applicant opposed the motion for an adjournment and change of venue on the basis of the Board's well known and long standing policy of refusing to grant nonconsensual adjournments, particularly in certification cases, in the absence of compelling circumstances. He noted that the disposition of the application had already been somewhat delayed by the extension of the terminal date, originally fixed as July 11, 1980, to July 18, 1980as a result of the respondent's request that certain documents be provided in French. He contended that there was no merit in the request for simultaneous translation as counsel for the respondent was bilingual and an interpreter supplied by the Board was present at the hearing to translate from French to English and English to French. Counsel also noted that it is not the practice of the Board to hold certification hearings outside of Toronto. With respect to the invocation of section 7a, counsel stated that, as indicated in his letter to the Board dated July 22, 1980 (a copy of which was sent to counsel for the respondent prior to the hearing), the applicant only relies upon section 7a if the Board determines that the applicant is in a vote position. He further advised the Board that he understood from the Labour Relations Officer that it would be unnecessary for the Board to consider the applicability of section 7a because the applicant was in an "automatic certification" position. He contended that the delay which would result from granting the requested adjournment would cause grave prejudice to the applicant. He conceded that another member of his firm had earlier written to counsel for the respondent to request the latter's consent to the certification hearing being adjourned from July 25, 1980 to August 8, 1980, but suggested that this was irrelevant because counsel for the respondent had refused to consent to the requested adjournment, and because that request had been made at a time when only one section 79 complaint had been filed. He stated that the applicant's desire for an adjournment had been extinguished by the two additional section 79 complaints which arose after the request for an adjournment was made by his colleague. He also indicated that the applicant had arranged for three persons to come to Toronto from Ottawa for the purpose of the hearing.

5. The Board has a discretion to adjourn any hearing, if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it considers fit (see Rule 57(1)) of the Board's Rules of Procedure; see also section 21 of The Statutory Powers Procedures Act, 1971, S.O. 1971, c. 47). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of The Labour Relations Act. In Re Avenue Structures, [1979] OLRB Rep. Nov. 1036, at paragraph 8, the Board stated:

..... The usual practice of the Board is to grant adjournments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Bay-crest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated as page 433:

'5. The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal, 70 CLLC ¶ 14,024) wherein the Board stated:

.... the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness.. .

As noted in Canada Dry Bottling Company (Kingston) Ltd., [19781 OLRB Rep. Nov. 976, at paragraph 8, labour relations policy considerations make adherence to this approach particularly important in certification cases:

..... In certification matters it is particularly important that all parties be prepared to prove their case on the date fixed for the hearing. Delays can often cause serious and irreparable prejudice to the applicant. As Estey, C.J.O. (as he then was) noted in Journal Publishing Co. of Ottawa Ltd. et al v. Ottawa Newspaper Guild Local 205, OLRB et al (unreported) March 31, 1977 C.A.) 'labour relations delayed are labour relations defeated and denied'. (See also Komo Construction Incorporated v. Quebec Labour Relations Board et al, 68 CLLC ¶14,108 (SCC))."

(See also Melnor Manufacturing Limited, [1969] OLRB Rep. Mar. 1288, The Savarin Limited, [1969] OLRB Rep. Mar. 1297; and Civil Services Assoc. of Ont. (inc.)[1971]OLRB Rep. Aug. 538).

6. The powers of the Board with respect to adjournments were recently confirmed by Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400, at pages 404 and 405:

"Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Ex p. Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 O.R. 461, 13 D.L.R. (3d) 289 (C.A.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7N.B.R. (2d)41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of The Statutory Powers Procedure Act, 1971, S.0. 1971, c. 47, and afford the parties the opportunity to be present and be represented, if they wish, by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

It cannot be suggested that the Board may not in the exercise of its discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Authority, Ex p. Kynoch, Ltd., [1919] 1 K.B. 176. That policy is obviously necessary to the proper administration of the Board's process..."

7. After considering the submissions of counsel and its policy on adjournments, the Board unanimously ruled that this was not an appropriate case for an adjournment with a continuation of hearing in Ottawa. In making this ruling, the Board noted that, at the request of Mr. Bouchard, the Board has arranged for the Form S Notice to Employees of Application for Certification and of Hearing to be translated into French. Moreover, by decision dated July 11, 1980, the Board had directed the Registrar to extend the terminal date from July 11, 1980 to July 18, 1980 to allow time for the revised Form S to be posted and considered. Arrangements had also been made by which an interpreter was available at the hearing to translate from French to English and English to French to ensure that all parties could fully and effectively participate in the hearing of this matter. The representation of the respondent by very able bilingual counsel further ensured that Mr. Bouchard would be in a position to effectively respond to the application if he chose to do so. While an adjournment and resumption of hearing in Ottawa might have been appropriate if it had been necessary for evidence and argument to be presented in relation to an application for certification of the applicant under section 7a, the applicant's membership position in the present case (as set forth later in this decision) entitled it to certification without a vote irrespective of the applicability of section 7a. Counsel for the respondent did not suggest that anything improper or irregular had occurred with respect to the membership evidence such that it might be necessary for the Board to receive viva voce evidence concerning it or any other matter relevant to this application. Thus, at the time the request for an adjournment was made, only a few moments of additional time were required for disposition of the application. In view of the foregoing, the Board hereby confirms the ruling by which it denied the request for an adjournment and resumption of hearing in Ottawa.

8. Upon being informed of the Board's ruling at the hearing, counsel for the respondent and Mr. Bouchard withdrew and the hearing proceeded in their absence.

9. The Board further finds that all employees of the respondent in Ottawa, Ontario, save and except Manager, and persons above the rank of Manager, constitute a unit of employees appropriate for collective bargaining.

10. The Board is satisfied on the basis of all the evidence before it that more than fifty-five per cent of the employees of the respondent in the bargaining unit at the time the application was made, were members of the applicant on July 18, 1980, the terminal date fixed for this application and the date which the Board determines, under section 92(2)(j) of The Labour Relations Act to be the time for the purpose of ascertaining membership under section 7(I) of the said Act.

11. A certificate will issue to the applicant.