[1982] OLRB Rep. October 1446
1994-79-U Dennis H. O'Keefe, Complainant, v. 410874 carrying on business as Concrete Construction Supplies, Concrete Supplies of Windsor Inc., M.B.L. International Contractors Inc., Concrete Construction Supplies Limited, Respondents, v. Teamsters, Chauffeurs, Warehousemen and Helpers Union Local 880, Intervener
BEFORE: R. O. MacDowell, Vice-Chairman, and Board Members C. G. Bourne and M. J. Fenwick.
APPEARANCES: John Pistor and Dennis O'Keefe for the complainant; Charles F Clark for Concrete Supplies of Windsor Inc.; R. M. Parry and Henry Marentette for M.B.L. International Contractors Inc.; Ken Petryshen and Ray Doe for Teamsters, Local 880.
DECISION OF THE BOARD; October 14, 1982
I
11. The style of cause in this matter is hereby amended to include as respondents the following firms: M.B.L. International Contractors Inc., Concrete Supplies of Windsor Inc., 410874 Ontario Limited carrying on business as Concrete Construction Supplies, and Concrete Construction Supplies Limited. This amendment is made solely for the purpose of identification of the potential parties herein and to permit their counsel to make representations. The amendment to the style of cause is without prejudice to the various submissions that these companies cannot be placed in jeopardy at this time, or at all, in respect of the complainant's unfair labour practice allegations. The Board also grants the request of Teamsters, Chauffeurs, Warehousemen and Helpers Union, Local 880 to be added as an intervener for the purpose of making representations on certain ancillary relief sought by the complainant in this matter.
2This is the complaint of Dennis H. O'Keefe who contends that he has been dealt with by his former employer contrary to section 58 [now section 66] of the Labour Relations Act. The material portions of section 66 read as follows:
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person inregard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
This is the latest in a series of applications which Mr. O'Keefe has filed. In order to explain the conclusion which we have reached, it will be necessary to review these earlier proceedings and the events preceding the hearing of the instant complaint.
3Concrete Construction Supplies Limited, as its name suggests, was a read-mix concrete supplier in the Windsor area. Mr. O'Keefe was employed as a driver in May of 1972. There is no dispute that his relationship with his employer was not always a happy one. He was discharged on March 17, 1977, allegedly for failing to wear prescribed safety equipment.
4Mr. O'Keefe's termination resulted in a grievance alleging that he had been unjustly discharged and requesting that he be reinstated in employment with full seniority and compensation for lost wages. That grievance was not settled in the grievance procedure, and eventaully came on for hearing before a board of arbitration chaired by his Honour Judge Gordon Stewart. The hearing consumed two days because of the union's preliminary objection to the composition of the arbitration panel. The decision of the arbitration board dismissing Mr. O'Keefe's grievance was announced on October 26, 1977, and its written reasons for that decision were issued on January 16, 1978. Those reasons include certain findings concerning the company's efforts to ensure that all of its employees wore safety hats, a finding that the grievor had been warned about that matter before (inter alia, by his shop steward), and a note that the grievor's evidence (which the board chose not to believe) was that none of the other employees wore safety hats. The board of arbitration decided not to modify Mr. O'Keefe's discharge or substitute some lesser penalty.
5On October 31, 1978, Mr. O'Keefe filed a complaint with this Board (Board File 1280‑78‑U) alleging that he had been unfairly represented by Local 880 of the Teamsters' Union, which was then his bargaining agent, and had carried the grievance forward to arbitration on his behalf. The relief requested was that the employer reinstate the complainant in employment with full seniority and compensation for lost wages -that is, the same relief which had been requested of the arbitration board. On November 2, 1978, in accordance with its usual practice, the Board appointed a Labour Relations Officer to meet with the parties to endeavour to effect a settlement. At the same time the Registrar fixed November 21, 1978 as the date for the hearing should such settlement not be forthcoming. On November 20, 1978, the parties agreed to adjourn the complaint sine die for a period not exceeding one year, and on the condition that if it were not revived within that time the proceeding would be terminated. The unfair representation complaint against Teamsters' Local 880 was drafted for Mr. O'Keefe by a law student at the University of Windsor, Legal Aid Clinic, who was acting on his behalf when the matter was adjourned.
6The complaint was revived 6 months later by a letter from Mr. O'Keefe dated May 30, 1979. At this point it is unclear whether or not he was represented. The individual from Student Legal Aid subsequently advised the Board that it was no longer representing him. The Teamsters' Union filed a reply claiming that the Board should not hear the complaint by reason of the delay in proceeding with it, and demanding particulars of the allegations of misconduct. The employer intervened in the proceeding and took a similar position. The employer submitted that the discharge and already been considered by a board of arbitration, and further that, with the passage of time, there would be difficulty securing the presence of necessary witnesses and documentation.
7The case came on for a hearing before the Board on July 26, 1979. The Board (differently constituted) decided that it would entertain the complaint, and that the question of delay could be considered in fashioning a remedy in the event the complainant was successful. The Board further determined that the lack of particularity might prevent an expansion of the allegations but would not bar the complaint altogether. However, on the basis of the evidence before it, and for the reasons more particularly set out in its decision dated August 23, 1979, (see, [1979] OLRB Rep. Aug. 739) the complaint was dismissed. The Board concluded in part:
It would appear that the respondent [trade union] did everything reasonable to represent the complainant's interest and there is nothing here which would suggest that it acted arbitrarily, discriminatorily, or in bad faith.
The complainant wrote a detailed request for reconsideration which was denied by a decision of the Board dated September 20, 1979.
8On November 6, 1979, Mr. O'Keefe filed a new complaint against his trade union setting out further allegations concerning his discharge (Board File 1509‑79‑U). The Board (again differently constituted) reviewed the submissions in that complaint as well as the proceedings to date, and observed:
A comparison of the facts alleged by the Complainant in the instant application and the findings of fact made by the Board in its August decision clearly discloses that the Complainant is attempting to relitigate his earlier unsuccessful complaint before the Board. The Complainant is relying upon the acts or omissions of the Respondent which were the subject of an earlier Board proceeding and is requesting that the Board find that the Respondent contravened section 60 [now section 68].
The Board then went on to review its power of reconsideration under section 95(1) [now section 106(1)] of the Act as well as the application of a principle analogous to res judicata which had been applied in previous Board cases and affirmed by the Divisional Court, [See; Radio Shack v. United Steelworkers of America, 79 CLLC ¶14,217.] By decision dated December 28, 1979, (unreported) the Board dismissed Mr. O'Keefe's new complaint on the basis that he could not re-open and relitigate a matter which had already been settled by a decision of the Board which, by statute, is expressed to be "final and binding for all purposes". It is not disputed that this is what Mr. O'Keefe was trying to do. He hoped that the new complaint would provide a vehicle by which he could raise matters which he felt he had been unable to advance previously.
9Throughout the period from his discharge to the dismissal of his second complaint (i.e. March 17, 1977 — Dec. 28, 1979) Mr. O'Keefe did not consult a solicitor, nor did he seek legal aid so that he could retain counsel. As mentioned above, his only assistance was a law student who helped him draft the first complaint in October, 1978 and who, it appears, played no role following the adjournment of the hearing in that matter.
10The instant complaint (Board File 1994-79-U) was filed on January 25, 1980, a couple of weeks after Mr. O'Keefe received the Board decision dismissing his earlier (second) complaint. This time it is his former employer which is the named respondent. The allegation is that the company dealt with him over the period May 1, 1972 until March 17, 1977, (i.e., from the date of his employment to the date of his discharge,) contrary to section 58 [now section 66] of the Act. Essentially, the contention is that in its various dealings with Mr. O'Keefe in 1973, 1975 and 1976, the company exhibited an anti-union animus, and desire to penalize or discriminate against him because of his trade union activities. It is Mr. O'Keefe's submission that this is the "real reason" he was "singled out" and fired in 1977 for failing to wear a hard hat. That allegation, of course, is somewhat at odds with the arbitration board's factual findings concerning the company's efforts to maintain its safety policy and the finding that Mr. O'Keefe had been warned about the matter before and refused to comply. On the other hand, there is no indication that the. anti-union element surfaced before the arbitration board and because the board chose not to believe Mr. O'Keefe, it is difficult to determine from its reasons how squarely his claim of discrimination was put to the board. The union takes no position in respect of this unfair labour practice complaint. The above-named respondents all oppose it for reasons which will be considered below.
11The Board processed Mr. O'Keefe's new complaint as before. By a decision dated January 31, 1980, it authorized a Labour Relations Officer to meet with the parties to see if any settlement were possible and by notice dated February 1, 1980, the Registrar fixed February 27, 1980 as the date for a hearing should no such settlement be forthcoming. By letter dated February 14, 1980, counsel for Concrete Supplies of Windsor Inc. wrote to the Board to put on the record his client's protest that it was not a proper party to the complaint, that the allegations were untimely and ought not to be heard because of the delay involved, and to demand that the complaint supply full particulars of the material facts, actions, and omissions upon which he intended to rely. At the complainant's request the hearing was rescheduled to be held in Windsor on March 19, 1980. Once again, counsel for the respondent demanded particulars of the generalized allegations which, at that time, covered a period of some five years.
12There followed a long period during which Mr. O'Keefe sought legal advice and legal aid. He consulted a number of solicitors and apparently had some difficulty finding one who was prepared to represent him. In August he notified the Board that he had retained a Mr. Rossi, who was to act on his behalf. But on October 8, 1980, the Registar of the Board was forced to write to Mr. O'Keefe to advise that it had heard nothing from his solicitor to that date. This elicited a response from Mr. Rossi requesting documentation and advising that particulars would be furnished to the respondent by the end of that month (i.e., October, 1980). It must be noted that there is no evidence to indicate whether Mr. Rossi had actually been retained before that date. In any event, particulars were forwarded to the Board on November 10, 1980, and in consultation with the parties, the Board scheduled a hearing to take place in Windsor on January 8, 1981. That hearing was adjourned at the request of counsel for the complainant who further wrote the Board on February 17, 1981 to request that the entire matter be adjourned sine die. It was his opinion that it might not be proceeded with any further, but that prior to confirming this result he would need a few more weeks to confirm certain information received. By decision dated February 20, 1981, the Board adjourned the complaint sine die for a period not exceeding one year. As before, the Board noted that unless within that time the parties requested that the Board proceed with the application, the proceeding would be terminated.
13The Board heard from Mr. O'Keefe once again in late August, 1981 when, by letter, he requested that his case be put on for a hearing. On October 9, 1981, he requested that the complaint be amended to add two new parties: Concrete Supplies of Windsor Inc., and 410874 Ontario Limited. By this time it appears that Mr. O'Keefe was no longer represented by Mr. Rossi and had consulted his present counsel. The ambiguity was clarified by letter dated February 19, 1982 wherein his new solicitors requested that: the complaint be reactivated and be amended to include relief against the various corporate respondents under section 1(4) of the Act. Under section 1(4) the Board is empowered in certain circumstances to treat several corporate entities as a single employer for the purposes of the Act. The complainant's purpose in relying on section 1(4) is to buttress his argument that if his former employer no longer exists he ought to be able to pursue certain allegedly related firms.
14A bearing was fixed for March 25, 1982 in Windsor, Ontario, but by letter dated March 17, 1982, Mr. O'Keefe's counsel requested an adjournment of that hearing. The other parties consented. The case, rescheduled for May 27, 1982, eventually came on for a hearing before the present panel of the Board on September 14, 1982. At that hearing the Board decided that it would only entertain the parties' submissions on the preliminary objection that the matter should not proceed on its merits at all. The Board also heard the union's concerns about the application of section 1(4), and the complainant's oral and documentary evidence touching on the preliminary issue. Before turning to that evidence, however, it may be useful to briefly digress to explain the status of the various corporate respondents who appeared by separate counsel. As will become apparent, their corporate relationship is not only the basis for the complainant's request for the application of section 1(4), but also partly underpins the respondents' argument that it is simply too late for the complainant to "switch targets" and seek relief against them.
15Mr. O'Keefe was employed by Concrete Construction Supplies of Windsor Limited ("CCSW Limited"). Sometime in 1978, CCSW Limited together with nine other companies was merged or amalgamated with M.B.L. International Contractors Inc. ("M.B.L."). The Marentette family apparently had interests in all of these various businesses. Today, CCSW Limited exists, if at all, as part of the merged entity. In 1979, Concrete Construction Supplies of Windsor Inc. was adopted as the name and style under which a new numbered company, 410874 Ontario Limited would carry on business. It is not clear whether Concrete Construction Supplies of Windsor Inc. is a separate corporate entity from the numbered company or is merely another form of the style under which it operates. For the purpose of this decision it does not matter. M.B.L. owns twenty per cent of this business, and it is not disputed that the numbered company carries on a ready-mix concrete operation similar to that of CCSW Limited and, in the complainant's contention, from the same location.
16The union points out that whatever the corporate realities after CCSW Limited was absorbed into M.B.L., it continues to have a "ready-mix" collective agreement with Concrete Supplies of Windsor Inc. and that M.B.L. is bound by a quite different "heavy construction" collective agreement through its membership in a local construction association. The union takes no position on the merits of the unfair labour practice complaint or whether the complainant should be able to follow the path of CCSW Limited into M.B.L. and perhaps to the numbered company and/or Concrete Supplies of Windsor Inc., in order to affix one or the other of these corporate entities with liability. The union is only concerned lest any relief under section 1(4) disturb its settled bargaining relationship with them. Regardless of the changes in corporate form, the parties, for collective bargaining purposes, have divided the business into its construction and ready-mix aspects, and have negotiated separate collective agreements to cover the employees in these parts of the business. The union is concerned that a direction that these various employers are one, might create problems for the application and administration of the two collective agreements which had previously bound the separate corporate "pieces" of the business - hence, the need to give those "pieces" status to make representations before the Board. In their submission these corporate changes merely underline the problems associated with delay, and support their argument that the Board should not inquire into the complaint at all.
17Mr. O'Keefe's evidence was largely concerned with his attempts to get legal advice, financial assistance, and a solicitor who was prepared to represent him. We are not unsympathetic to his plight, but the fact remains that the primary thrust of his complaint is that he was discharged by his employer on March 17, 1977 because he was exercising rights protected by the Act and that complaint did not crystallize until almost three years later. In the meantime, of course, he went to arbitration and lost, then began vigorously pursuing his allegations against the trade union. Despite an antipathy to his former employer which he made no effort to conceal at the hearing before us, no unfair labour practice allegation was directed against it until almost three years after the discharge, and about seven years after the first allegation of misconduct (in 1973) upon which he now seeks to adduce evidence. There is no indication that the alleged anti-union considerations, which the complainant now says constitute the real reason for his discharge, were ever raised before Judge Stewart, and, as the Board has already noted, Judge Stewart does seem to have considered the consistency of the employer's efforts to ensure that all of its employees wore safety hats. In the circumstances, it is hardly surprising that the respondents' preliminary objection is that it is simply too late to pursue such matters and that pursuant to its discretion under section 89(4) of the Act, the Board should decline to inquire into the complaints. The respondents assert that the complainant's tardiness irreparably prejudices their ability to marshall evidence in their defence, that it would be a denial of natural justice to proceed at this time, and that there are sound labour relations policy reasons for the Board refusing to do so.
18Mr O'Keefe testified that this was not the first time that he had raised an unfair labour practice allegation against the company. He asserted that he had filed an unfair labour practice complaint against the company in the first instance, before launching his first complaint against his union (i.e. before October 1978). He told the Board that he had withdrawn that complaint after discussions with a Board-appointed Labour Relations Officer, whose name he could not recall, but who advised him that he should proceed first against his trade union, and only if unsuccessful should he turn his attention to his employer. Mr. O'Keefe testified unequivocally that he actually filed such unfair labour practice complaint, on the prescribed forms, and that when he decided to reformulate his complain as one against his trade union, he wrote to the Registrar of the Board indicating his intention and specifying that it was without prejudice to his right to proceed against his employer should he be unsuccessful.
19A search and perusal of the Board's records, including all the files for all the proceedings commenced by Mr. O'Keefe, did not reveal any such unfair labour practice complaint against his employer, nor any such letter to the Registrar. There is no indication that any file was ever opened in the matter, nor that any Labour Relations Officer was ever appointed. That in itself is curious, if, as the complainant now says, a complaint was filed. The complainant did not tender any letter from the Registrar acknowledging receipt of his complaint or any of the usual follow-up material (similar to that which he received in his other cases) indicating that the complaint was being processed. A review of the Board's cross-referenced card index did not turn up any file number assigned to any complaint prior to Mr. O'Keefe's first complaint against his union (Board File No. 1280-78-U) on October 31, 1978. Mr. O'Keefe did not have a copy of the letter purportedly withdrawing his complaint, although he did have copies of other letters to the Registrar. Nor does the information which Mr. O'Keefe said he received from a Board Officer seem reasonable and probable, given an Officer's role.
20It is possible that if a complaint were deficient the Board might have requested an Officer to seek clarification prior to processing it, and it is possible that Mr. O'Keefe might have been contacted by a Board Officer for this purpose. It is also possible that the Officer might have explained to him that if he had an unfair labour pactice complaint against his employer he could proceed in that direction (bearing in mind the hurdle of the arbitrator's award), or if he were concerned about the quality of representation he had received, he could proceed against his trade union as he ultimately did. It is possible that the complainant got the impression that he could, without prejudice, proceed sequentially, although there is no evidence to indicate that he ever actually launched a proceeding against his employer or purported to reserve his right to do so. It is also possible that Mr. O'Keefe is confused as to the timing and content of these alleged conversations given that Officers were appointed in the unfair practice complaints against his union. At this stage, years later, it is difficult to make any concrete finding and the complainant's own recollection was hazy. One thing does seem to be clear - no complaint was processed prior to 1978. Whatever the complainant's understanding or intentions, the instant complaint against his former employer was not filed until January 25, 1980, and it was not until October 9, 1981 that Mr. O'Keefe sought to add the respondents 410874 Ontario Limited and Concrete Supplies of Windsor Inc.
21Following the hearing in this matter, counsel for the complainant wrote to the Board to advise that his client had undertaken a search of his files and had discovered several documents which he (Mr. O'Keefe) felt to be relevant. Those documents included a copy of letter to the Board dated April 5, 1977 (i.e., just after his discharge) requesting the forms to make a complaint against his employer under section 58 [now section 661 and two letters dated March 6, 1978 purporting to advise two union officials that he was filing such complaints. The letter to the union officials indicates that copies are to be sent to various company personnel. The complainant also discovered and tendered what purports to be an unfair labour practice complaint against Merentette Brothers Limited of a breach of section 58 [now section 66] of the Act which, however, is undated and unsigned.
22There is no evidence before the Board that these letters or complaint had ever been received by anyone, nor is there any explanation why Mr. O'Keefe, with due diligence, could not have produced them at the hearing in this matter so that he could be examined regarding their contents. There was no mention in Mr. O'Keefe's oral evidence before the Board of any letter directly to his former employer or its officials concerning any unfair labour practice on its part, nor, for this reason, did they have an opportunity to respond to a factual assertion which might be relevant to the argument respecting delay. It would make nonsense of the hearing process if a witness were permitted, after the hearing, to bolster his evidence through the submission of documents not even adverted to in his testimony. It would also be unfair to the other parties. It is not as if the complainant did not have ample opportunity to prepare his submissions on delay. His complaint was filed in January, 1980 and did not come on for a hearing until mid-September, 1982. The complainant had more than 2 years to prepare and he was on notice that his delay in raising unfair labour practice allegations would be a matter for the Board's consideration. While there may be cases which warrant reopening a hearing because of assertions made after the fact, or the discovery of evidence which could not, with due diligence, have been produced earlier, this case is not one of them. The Board declines to reopen the hearing for the purpose of receiving or considering these documents. Perhaps Mr. O'Keefe simply forgot these communications made by him back in 1978. But it is precisely this difficulty of failing recollection which the respondents rely upon to support their preliminary objection. And as the Board has already indicated, whatever Mr. O'Keefe's intentions in 1977-78, he did not proceed against his employer until 1980; and his complaint spans the period 1972-77.
II
23This is not the first time that the Board has had to address the problem of delay. In these troubled times the pattern of the instant case is repeating itself with increasing frequency. In more and more cases the Board is being asked to inquire into alleged breaches of the Act occurring years before, after the aggrieved employee has abandoned or unsuccessfully pursued his remedies in other forums. Indeed, in this case, the complainant has not only been unsuccessful before a board of arbitration, but he has already been unsuccessful in his earlier complaints before this Board. While these complaints were framed against his union, the object, as in the present case, is to obtain a relitigation of the circumstances of his discharge in 1977. And even the allegation that Mr. O'Keefe was singled out and treated differently from other employees seems to have been dealt with, at least peripherally, by Judge Stewart in 1977.
24Two recent cases will serve to illustrate the Board's approach to this problem. Both of them involved an exercise of the Board's discretion not to inquire into an alleged unfair labour practice complaint. That is the result which the respondents urge the Board in the instant case.
25In Sheller Globe, [1982] OLRB Rep. Jan. 113, the complainant was discharged in March, 1979 and filed her complaint with this Board in October, 1981. In between, she had discussions with union and employer officials, she took legal advice, she filed a complaint with the Human Rights Commission, and in December 1980, she filed a wrongful dismissal action. Finally, two and a half years after the alleged offence, she complained to this Board that her union had not represented her adequately, and requested the Board to direct that the propriety of her discharge be submitted to a board of arbitration. The Board dismissed the complaint with the following observations:
A delay of the present magnitude carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending. Here the respondent was justifiably under the impression that the grievance route, or any further demands against the union, had been abandoned in favour of other actions against the company. The lingering discussions which the complainant's husband had with Mr. Pattison and the stewards were clearly of an amicable nature; they provided no indication that action would subsequently be directed against the trade union itself, so that notes or other forms of evidence could be more actively maintained. The defence of the employer is not the defence of the trade union in these proceedings. The Board would be concerned not with the matter of cause for discharge, but rather the steps which the respondent's officials went through in concluding in their own minds that no grounds for a grievance existed. The defence would turn upon the recollections and credibility of the respondent's own officials. It might be noted parenthetically that the Labour Board, in administering the Labour Relations Act, is primarily concerned with the ongoing labour relations of a workplace, and such workplaces do not remain static over time. The Board as a result has always been conscious of the need for expedition in its practices and procedures. The delay in the present case raises concerns over an appropriate remedy, if the Board were to permit this complaint to now proceed, which are not fully answered by the complainant's concession as to damages. In the circumstances such as the present, the onus shifts to a complainant to satisfy the Board that there are compelling labour relations reasons to cause the Board to exercise its discretion and entertain the complaint under section 89.
In the present case, the delay has indeed been "extreme", and the factors put forward by the complainant are insufficient to deliver her from the consequences of that delay. Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching a section 68 application with the Board. But a point is reached, after a reasonable period of time, when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely on the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless. The important point to note here is that the other forms of action being pursued by the complainant were directed solely against the employer. Not a word was said to the trade union during that period to indicate that its conduct was being viewed as unlawful, or that its own position might still be placed in jeopardy. The complainant will not now be permitted, at this late date, to use section 68 against the trade union as a last resort to reach the employer.
26In Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, the Board also had before it a complaint against a trade union arising initially from an employer's decision to discharge one of his employees. The complainant in that case had been terminated in 1976. His reinstatement had been arranged on terms apparently satisfactory at the time; but five years later, after an unsuccessful reference to the Ontario Human Rights Commission, he brought an unfair labour practice complaint against his union. The Board commented on the issue of delay as follows:
It is by now almost a truism that time is of the essence in labour relations matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour - management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C. G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical & Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 L.A.C. 51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay - holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties’ current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: the length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
27The Labour Relations Act provides a comprehensive code wherein volatile industrial disputes can be resolved quickly, and usually without great expense. Access to this Board is relatively easy. There are none of the procedural or financial impediments applicable to a proceeding in the Courts. There are no express limitation periods. There is no risk of costs. There is no requirement to retain a solicitor. There is little by way of formal pleading. There is no pre-trial discovery. The rules of evidence are substantially relaxed. And as has been indicated by the course of the earlier proceedings, the Board will normally respond to an unfair labour practice complaint within a few days, and will typically schedule a hearing within three or four weeks of the date upon which the complaint is filed. Informality and expedition are the norm. Against this background, it is difficult to reconcile accepting a complaint filed several years after the precipitating event (i.e. the discharge) encompassing allegations going back years before that.
28A collective bargaining relationship is both delicate and dynamic. There is a real need to resolve disputes finally and expeditiously. Prompt adjustment of unfair labour practice complaints is of considerable importance in maintaining an orderly collective bargaining process. In general, parties should not have to face the resurrection and litigation (in this case relitigation) of these "ghosts from the past" which surface unexpectedly to plague the parties' current relationship. There must be some limits; and, as the Board indicated in Corporation of the City of Mississauga, supra, unless the circumstances are exceptional or there are overriding public policy considerations, that limit should ordinarily be measured in months rather than years. If a complainant does not assert his claim within a reasonable period of time, he will face the possibility that the Board may decline to entertain it. In this respect the Board's approach is akin to the common law doctrine of laches. Nor does it avail the complainant to argue, as he now does, that he was pursuing his remedies in another forum (arbitration) or against other parties (his trade union and its officials). A point is reached, after a reasonable period of time, when the individual must decide whether he is going to proceed against a particular respondent and, if so, then to take concrete steps in that direction. The complexity of labour relations remedies is an unfortunate fact of life; but this does not mean that the Board must become the forum of last resort for individuals who have pursued their remedies elsewhere, unsuccessfully, and seek to reformulate their complaint so as to bring it within the Board's jurisdiction. Labour relations policy considerations dictate not only that a complaint should be resolved expeditiously, but also that it should be brought without undue delay.
29In the present case the delay has been extreme. Mr. O'Keefe waited almost three years (until January 1980) after his discharge before prosecuting his complaint against his former employer and, as already noted, some of the particulars of alleged misconduct, go back to 1973. In the meantime, an arbitration board has determined that his employer had just cause for his discharge, and the Board has affirmed that his trade union represented the complainant properly and did what it could for him. It took Mr. O'Keefe a year before he formulated his complaint against his union and more than two years until that complaint was resolved. It is only after that that Mr. O'Keefe decided to "switch targets" back to the employer. Until 1980, there was no allegation of a breach of the Act levelled against the employer. Until 1980, the situation was as Judge Stewart found it to be: that the complainant had been discharged for failing to adhere to the company's well-established rules about wearing safety equipment. Throughout this period the company was on the sidelines and not directly in jeopardy.
30We must determine whether at this date we should inquire into the events in the years preceding the complainant's termination to determine whether in 1977 he was dealt with contrary to the Act having regard, inter alia, to Judge Stewart's finding that all employees were required to wear safety hats, the complainant persistently refused to do so, and he was properly discharged for that reason. If after our enquiry, a breach of the Labour Rei'ations Act could be sustained, the Board would then face the difficult task of trying to fashion a remedy against one or more of the respondents having regard, inter alia, to the passage of time, and the altered corporate and commercial context. We decline to do so. In our view, the circumstances overwhelmingly dictate that there should be no further litigation arising out of Mr. O'Keefe's discharge in 1977. These proceedings must be brought to an end.
31The Board is not satisfied with the complainant's explanation for the dalay in bringing this complaint and, in our view, there are no special public policy reasons for enquiring into it. Indeed, all of the policy and practical considerations arising from the facts of this case suggest a contrary conclusion. Accordingly, pursuant to its discretion under section 89(4) of the Act, the Board declines, at this time, to enquire into Mr. O'Keefe's allegations.
32The compalint is therefore dismissed.