Ontario Labour Relations Board
[1983] OLRB Rep. April 490
1530-82-U Kazimir Cigan, Complainant, v. International Union, United Automobile Aerospace and Agricultural Workers of America, Local 444 and Chrysler Canada Ltd., Windsor, Respondents
BEFORE: R. D. Howe, Vice-Chairman, and Board Members J. A. Ronson and C. A. Ballentine.
APPEARANCES: Jeffrey A. Baker and Kazimir Cigan for the complainant; Raymond J. Lebert, Harvey R. Courtland, and Edward Baillargeon for the respondent union; David Deluzio, Lou Bulat, and Arthur Krueger for the respondent company.
DECISION OF THE BOARD; April 18, 1983
Decision
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that he has been dealt with by the respondents contrary to sections 68 and 70 of the Labour Relations Act.
The complaint, as filed with the Board on November 12, 1982 (by a lawyer other than the complainant's present counsel), alleges, without particularization, that there were "several violations" by the respondents from "1976 to 1978," and states that the "foreman of the second respondent, Chrysler Canada Ltd., physically struck the complainant." The matter was originally scheduled for hearing in Toronto on December 13, 1982, but the location of the hearing was subsequently changed to Windsor. That hearing was rescheduled to February 10, 1983, but was adjourned on the agreement of the parties, including the complainant, who was at that time being represented by yet another lawyer. Thereafter, the matter was scheduled for hearing in Windsor on March 23, 1983 on the agreement of the parties. Less than twenty-four hours before that hearing, the complainant's present counsel served the respondents with a notice of intention to rely upon a lengthy series of events alleged to have occurred between September of 1974 and January of 1978. In view of the fact that those events allegedly occurred over five years before the filing of that notice of intention, the Board found it appropriate to call upon the complainant to show cause why the Board ought to exercise its discretion under section 89 of the Labour Relations Act to hear this complaint, as substantially expanded by the notice of intention, after the passage of such a lengthy period of time.
In The Corporation of the City of Mississauga, [19821 OLRB Rep. March 420, the Board described its approach to delay in cases of this type as follows:
"20. It is by now almost a truism that time is of the essence in labour relation 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 with 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 and 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.
See also Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417; Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446; and Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113.
The gist of the complainant's allegations is that various Chrysler Canada Ltd. foremen organized several distinct "campaigns of harassment" against him between September of 1974 and January of 1978, and that the respondent union "failed to take adequate measures to protect [him] from such harassment by arbitrarily dismissing [his] complaints or dealing with [him] in bad faith." The complainant further alleges that as a result of the alleged harassment, and the union's alleged failure to adequately protect him, he "has suffered a nervous breakdown which has resulted in a psychological disability that prevents [him] from maintaining any form of employment whatsoever." The relief sought by the complainant is compensation for all past and future losses of income. Thus, the complaint involves both retrospective and prospective financial liability.
The complainant ceased to perform work for the respondent company on April 21, 1978. Although he has not worked for the company since then, he remains an employee and is receiving extended disability payments from the company's insurance carrier pursuant to the applicable collective agreement. The complainant is also receiving two partial disability pensions under the Workmen's Compensation Act.
In June of 1978, the complainant sought legal advice and thereafter "went through a number of lawyers" with whom he discussed his problems, including difficulties that he was encountering in respect of Workmen's Compensation. During the summer of 1981, the complainant was advised of the possibility of filing a complaint with this Board under section 89 of the Act but no such complaint was filed until October 21, 1981. Under the circumstances, it may be inferred that at least one of the reasons that the complainant was not advised of the availability of Board proceedings before the summer of 1981 is that the primary thrust of his concerns related to Workmen's Compensation and the actions of the company, rather than any alleged failure by the respondent union to properly represent him. In any event, as noted in the Sheller-Globe case, supra, the respondents are not to be made responsible for any errors or omissions on the part of the complainant's own agents.
On October 21, 1981, a complaint was filed with the Board (Board File No. 1559-81-U) by a lawyer other than those previously mentioned. That complaint merely alleged that the respondent union "failed to represent the complainant in the bargaining unit," contrary to what is now section 68 of the Act. It was subsequently withdrawn on November 5, 1981 (with leave of the Board) because it was "incomplete." No explanation whatever has been provided for the period of over a year which elapsed between the withdrawal of that complaint and the filing of the present complaint, which is admittedly based upon the same events that gave rise to the initial complaint. Moreover, the respondents have been prejudiced by the complainant's undue delay in filing and proceeding with his complaint. Records have been destroyed and at least one key witness has died. Other witnesses have retired and moved away. Thus, faulty recollections, unavailability of witnesses, and disposal of records would hamper a fair hearing at this late date of the issues in dispute, which go back to events which are alleged to have occurred the better part of a decade ago.
Accordingly, having regard to all of the relevant circumstances, including the factors set forth in paragraph 22 of the City of Mississauga case, supra, the Board finds it appropriate to exercise its discretion under section 89 of the Labour Relations Act not to inquire into this complaint. The complaint is therefore dismissed.