Ontario Labour Relations Board

[1983] OLRB Rep. June 875

1477-82-U Kuljinder Singh Bhanga and Newman Nkrumah, Complainants, v. United Food & Commercial Workers Local #287 and Charles Bonello, Respondents, v. Caravelle Foods, Intervener

BEFORE: Corinne F. Murray, Vice-Chairman.

APPEARANCES: Michael F Smith for the complainants, Harold F Caley and Charles Bonello for the respondents, James T Heather for the intervener.

DECISION OF THE BOARD; June 8, 1983

1. This is a complaint filed pursuant to section 89 of the Labour Relations Act in which the complainants allege a violation of section 68 of the Act by the respondents. They claim by way of remedy that they be reinstated to their former jobs with full pay. Paragraph 4 of the complaint (Form 32) mow 581 states that:

On or about 12th of February, 1982 the grievors were dealt with by the United Food Commercial Workers International Union Local #287 Charles Bonello, Business Representative contrary to the provisions of Section 60 [sic] of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent: act in a manner that was arbitrary, discriminatory or in bad faith in representing the complainants/employees in a bargaining unit, by not submitting the complainants' grievance over their alleged wrongful dismissals to arbitration.

Subsequent to this and in response to a demand for particulars made by the respondent, the complainant's counsel supplied the following:

1. The particulars of the alleged violation of section 60 (now 68) as follows:

(a) Upon receiving from the complainants the report of their dismissal by the employer, on or about February 15, 1982, Mr. Bonello failed to consider all of the circumstances that were relevant to the termination and relevant to a determination of whether the termination would be upheld upon an Arbitration.

(b) Mr. Bonello treated the complainants in an arbitrary and discriminatory manner and in bad faith by refusing to submit the matter of their termination to Arbitration pursuant to the Collective Agreement.

(c) Mr. Bonello treated the complainants in an arbitrary and discriminatory manner and in bad faith in advising the complainants that their grievance against the termination could not succeed at Arbitration and did so in a reckless, careless disregard of the complainants' rights under the Collective Agreement and as Union Members.

(d) Mr. Bonello did not treat the grievance in the manner required by the Collective Agreement and did so in reckless and careless disregard of the complainant's Isici rights.

(e) Officials of the Respondent Local 287, United Food and Commercial Workers, treated the complainants in an arbitrary and discriminatory manner and in bad faith in not ensuring that their grievance was received and processed pursuant to the Collective Agreement, in referring the complainants to the Respondent, Charles Bonello, in delegating their responsibilities with respect to the grievance of the complainants to Mr. Bonello, in not ensuring that the grievance was treated in a fair and proper manner by Mr. Bonello and in adopting the conduct of Mr. Bonello with respect to the grievance.

(f) The Complainants allege that the conduct of the Respondents, as well as its motivated intention, in violation of the Act is within the knowledge of the Respondents.

2. Both the respondents made three preliminary motions on the first day of hearing, February 7, 1983, that the Board ought to refuse to entertain the complaint because:

(1) of the complainants' delay;

(2) the complaint does not disclose a prima facie case; and

(3) of insufficiency of particulars given by the complainants.

After hearing argument on all these points I reserved on the latter two motions and received evidence and additional argument as to the reasons for the eight-month delay between March of 1982 (the time by which the actions complained of had occurred) and November 2, 1982 (the date this complaint was filed). Since the evidence as to delay could not be completed on February 7th, a second day (April 11, 1983) was scheduled. This complaint had been originally scheduled for hearing for December 6, 1982, was adjourned on consent to January 17, 1983, and adjourned again to February 7, 1983.

3. The evidence in connection with the issue of delay is that the complainants were discharged February 16, 1982 arising out of an incident of alleged fighting which occurred on February 12, 1982. A steward (Shasha Prudham) and a business agent (Charles Bonello) of the respondent became involved on February 16, 1982 in trying to reverse the intervener's decision. About two weeks later a meeting was held between the respondent and the intervener regarding the complainants' termination. The complainants attended. Mr. Bonello was unsuccessful in getting the intervener to retract the discharges. On or about March 12, 1982, Mr. Bonello met with the complainants and told them the respondent union's lawyer said that their grievance seeking reinstatement would have no chance of succeeding in arbitration. Mr. Bonello advised them that the respondent therefore would not pay for arbitration but if they wished to hire their own lawyer, they could. He attempted to solicit from the complainants what their decision was. The complainants did not make any decision at this time. Instead, Mr. Nkrumah testified that he called Mr. Bonello three days later to get the name and number of an official of the parent union at its " head office" and a telephone number for Local 287's President. Except for this call neither Mr. Nkrumah nor Mr. Bhanga spoke with or tried to speak with Mr. Bonello after March 12th.

4. It is clear that the meeting between Mr. Bonello and the complainants on March 12, 1982, ended amicably with all three shaking hands. The outstanding issue was whether the complainants were going to hire their own lawyer to go to arbitration.

5. The complainants gave different evidence as to what delayed their complaint to the Board arising out of these events. While Mr. Nkrumah did not summarize his reasons for delay in this way, his evidence indicates that between March and June he was trying "to find a lawyer to help him or to do it on his own". During this period he saw two different lawyers, made applications for legal aid and was refused. He claimed there was delay entailed in waiting for his and Mr. Bhanga's application for legal aid. Time was also consumed with making calls to the respondent's "head office". He also claimed to be suffering "financial difficulties" throughout this period. Mr. Bhanga said the delay was caused by lack of money, largely on Mr. Nkrumah's part, to pay for a lawyer to lodge a complaint to this Board.

6. It is not particularly useful to set out in great detail all of the complainants' evidence on these points. Suffice it to say that the complainants did not present a clear or cogent picture of why their complaint was delayed. After a considerable period of testimony, it ultimately became clear that the complainants either would not or could not pay for the arbitration of their dismissals. Shortly after March 12th, Mr. Nkrumah contacted a lawyer (a Mr. Jonas) whose advice was that he call the "headquarters of the union". The complainants later sought legal advice from another lawyer and, as a result, applied for legal aid. They were subsequently refused. The complainants said that their applications for legal aid were in May. Counsel for the respondent produced evidence, objected to by the complainants' counsel, which indicates that the applications and refusals for both Messrs. Nkrumah and Bhanga occurred between April 5th and May 6th. The evidence relied on by the respondent was a copy of Notices of Refusal Certificates (Form 3 under the Legal Aid Act, R.S.O. 1980, c. 234) originally issued by the Area Director of York. The complainants argued that these certificates were privileged because under section 25 of the Legal Aid Act, all "communication" between the Area Director and the applicants for legal aid are privileged. I do not find any merit in these submissions by the complainants and agree with the respondent's arguments that the meaning of "communications" in section 25 of the Legal Aid Act, would not catch the dates of applications and refusals. In any event, the complainants rested their explanation of delay, in part, on the waiting necessary for Legal Aid's processes. Once having taken this ground, the complainants cannot block the respondent's efforts to show that this ground is erroneous or incredible. If the dates on the Notices themselves are privileged, which I have found they are not, then the complainants have waived their privilege because no objection was made to the revelation of the dates of the complainants' applications and refusals in the original questions put to either complainant. Therefore I find that on the basis of the evidence produced by the respondent, application for legal aid was made early in April and Mr. Nkrumah's was refused April 6th while Mr. Bhanga's was refused on May 6th.

7. It is clear from the evidence that neither complainant tried to complain to this Board, which does not require a lawyer, between May 1982 and August 1982. In August 1982 they apparently decided that they would pay the second lawyer they had contacted (the current counsel) to draw up the complaint. Mr. Nkrumah claimed he phoned the regional office of the union and spoke with a Mr. Park on no less than 8 occasions between March 19, 1982 and June 30, 1982. The respondent union called as its witness on this point Kevin Park, Research & Education Staff Officer for Region 18 of the United Food & Commercial Workers Union. He testified that he only received one call from Mr. Nkrumah and he placed the time of the call in August of 1982. As a result of this call, Mr. Park called Mr. Bonello to advise him that Mr. Nkrumah was concerned about his grievance not being referred to arbitration. This was Mr. Park's sole involvement. Mr. Park's evidence was highly credible, whereas Mr. Nkrumah's, on this and other aspects, was not. Therefore, I accept that it was not until August that Mr. Nkrumah made contact with the respondent's Thead office" (in fact the regional office) and spoke on one occasion to Kevin Park. No mention was made in that call about suing the union. Mr. Nkrumah also testified that he phoned the President of the Local (employed by a different company) sometime in March after his last meeting with Mr. Bonello. The testimony of the President, which was highly credible, was that he received only one call in February and he directed Mr. Nkrumah to deal with Mr. Bonello. I find that the complaint was signed some months prior to its being filed. Mr. Bhanga apparently left all of the contacting of lawyers and calls to the union in Mr. Nkrumah's hands. Mr. Bhanga explained his delay as being attributable generally to a lack of payment of funds and particularly the full $750.00 fee required by the lawyers. The latter did not stand up under cross-examination because Mr. Bhanga admitted that $300.00 had been paid as of the date the complaint was signed and the balance was not paid until one week prior to the original day's hearing (February 7, 1983). Therefore, I have received no explanation for the delay between September 20, 1982 and November 4, 1982.

8. The result of this evidence is that so far as the respondent and its officers are concerned they had no knowledge that the complainants were intending to bring action against the respondent for its treatment of them until the instant complaint was lodged.

9. The Board has in previous cases described delay as being either ~extreme" or "unreasonable". Extreme delay warrants a dismissal on preliminary motion. However, unreasonable delay impacts on the remedy but does not deny the complainants the opportunity to prove the violation of the Act. (See CCH Canadian Limited [19771 OLRB Rep. June 351.) Section 89(4) of the Act gives the Board discretion to decide whether it will inquire into an unresolved complaint. Section 72 of the Board's Rules of Procedure (fully set out below) requires that a complainant file allegations of wrongdoing "promptly" upon discovery of the wrongdoing. If, in the opinion of the Board, the allegations and particulars thereof have not been filed promptly, the Board may refuse to allow the evidence to be adduced or, alternatively, may only permit the evidence to be adduced upon specified terms or conditions. The Board has been, by and large, more willing to hear complaints than to refuse, using its remedial powers, to reduce the prejudicial effect of the complainants' delay on the respondent. The nature of delay is assessed not only on the basis of time elapsed but the effect on labour relations or a collective-bargaining relationship if the complaint is entertained when there is no remedy to be given or the remedy would be deleterious to the relationship. In Sheller-Globe, [19821 OLRB Rep. Jan. 113, the Board summarized the test in a section 68 complaint as follows, at paragraph 13:

... The Board 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 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.

The thread running through all the section 68 cases dealing with delay is a concern as to the effect of the process and/or the remedy on the collective-bargaining relationship. This is because the remedy sought has usually been a demand for arbitration or restoration of lost rights, not only for monetary compensation. These remedies require the parties to the collective-bargaining agreement to do battle over an individual's rights which they have both considered no longer an issue in their relationship because of an elapse of time. The Board's general approach is summarized in The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, (also a section 68 complaint) at paragraphs 21 and 22 as follows:

21. 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.

22. A perusal of the Board cases reveals that there has not been a mechanical [sic] 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 [sic] 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.

10. On the facts before the Board in this case the delay has not been "extreme" (i.e., warranting an outright dismissal). While the complainants did not impress me with their candor, this is not a ground upon which a complaint ought to be dismissed without hearing the merits. Their conduct in pursuing this matter may have been less than aggressive but I am unable to conclude that this was sufficient to refuse to hear their complaint. Although not made clear, the complainants' evidence reveals they both thought that retaining counsel to prepare their complaint was necessary and the cost of doing so was a significant hurdle that they had to cross. It appears that a large amount of time was allowed to pass while the complainants decided how and whether they would pay the necessary price. The respondent and the intervener did not present evidence of prejudice which has been caused by the delay of 8 months and the extent of delay has not been so lengthy as to cause me to conclude without such evidence that there was or is severe prejudice to their labour relations should the remedy requested (reinstatement with back pay) be granted which could not be adjusted in the remedy itself. The assessment of the conduct in bringing a complaint forward must necessarily take into consideration the nature of the complaint. On this basis, the case before me is distinguishable from the facts before the Board in CCH Canadian Limited, supra, which was a complaint by a union, on behalf of a grievor, against an employer which was not brought for approximately a year. In that case the Board could find no explanation for the delay on the union's part where it had knowledge of other employees being hired after the discharge. A union, wise to the remedies of this Board, should have acted sooner. Messrs. Nkrumah and Bhanga should not be expected to act with the same alacrity as a union whose day-to-day business is dealing with individual employee's rights. The facts are also materially different from those in the Shell-Globe (supra) and City of Mississauga (supra) decisions both of which entailed lengthier delays. Therefore, the respondent has failed to show there was "extreme" delay in bringing this complaint. The question of unreasonable delay remains open to argument.

11. I will now deal with the remaining preliminary points regarding the form of the complaint and the insufficiency of particulars. The respondent argues that the complaint does not disclose a prima facie case and that I should dismiss the complaint without hearing, pursuant to Regulation 546/80, s.71. The respondent cited three decisions in support of its position: Local 1285 UA. W, [1975] OLRB Rep. Apr. 387; Thomas Products Co. Ltd., 11980] OLRB Rep. July 1095 and Corporation of the City of Toronto, 11980] OLRB Rep. Sept. 1288. Alternatively, the respondent argues that the complaint fails to disclose particulars and should be dismissed pursuant to section 72 of Regulation 546. The respondent argues that the response to its demand for particulars ought not to be considered in determining whether the complainants have made out a prima facie case because the respondent ought not, by making such demand, to facilitate the creation of an "opportunity for the complainants to buttress their case".

12. [Sections 71 and 72 of the Board's Rules of Procedure omitted]

13. Section 89 of the Act only permits the Board to remedy breaches of the Act. Section 71 of the Board's Rules of Procedure is a means by which the Board can avoid unnecessary expense and time, Involved in hearing a complaint which is without substance in the sense that no breach of the Act is alleged. In times past a "screening" panel of the Board determined whether a complaint disclosed a prima facie case and should be listed for hearing (see Ford Motor Co., [1972] OLRB Rep. Sept. 828). The screening panel was distinct from the inquiry panel, and could rely on not only the complaint itself but the contents of a Labour Relations Officer's report (see Thomas Products Co. Ltd., supra). The inquiry panel could not do so because the contents of such a report could deny a party fair hearing before the inquiry panel. Section 71 is not a means by which a party who has submitted a poorly-drafted or inarticulate complaint but who may have a provable case against a union or an employer can be denied a hearing. The words prima facie case on section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached. Section 72 is directed toward a different goal. It allows the Board to refuse to hear evidence of facts not alleged promptly in support of a complaint or to regulate when, how and under what conditions they may be adduced. Section 72, in contrast with section 71, does not state that the Board may dismiss the total case because it is insufficiently particularized. While it may be that a case deficient in particulars will also not make out a prima facie case (see Corporation of City of Toronto, supra), this is not always the case. It is also possible that a fully particularized complaint will not make out a prima facie case. (For example, see Local 1285 UA. W, supra.) Therefore, while the completeness of particularization could have an effect on the decision of whether there is a primafacie case made out, it is not of itself determinative.

14. The respondent argued that the Board has established in Thomas Products, supra, that the mere assertion that the union has not referred a grievance to arbitration does not constitute a prima facie case and asks the Board to dismiss the complaint on that basis. A close perusal of that decision reveals this is not the effect of that decision. What the screening panel of the Board found was, having regard to the material in the Labour Relations Officer's report, a case establishing that there was anything arbitrary, discriminatory or done in bad faith in connection with the non-referral had not and could not have been made out. While the instant complaint (Form 58) contains little particularization of why the complainants feel the non-referral of their grievance was arbitrary, discriminatory, and in bad faith, they nevertheless assert that it was done in this fashion. This makes the Thomas Products case distinguishable.

15. While it may be necessary in another case to consider subsequent particularization, in this instance I have determined that it is not necessary to consider the particulars the complainants supplied on February 4, 1983. On the face of the complaint, the remedy requested is reinstatement with pay. While it is possible to construe the words "remedy requested" in section 71 so narrowly as to allow only a literal reading of the complaint itself and thus ignore the general remedial power of the Board, a more expansive interpretation should be taken so that at least the remedy of a declaration can be considered in weighing whether there is a prima facie case made out. I have concluded that if the complainants can prove that Mr. Bnello's non-referral was arbitrary, discriminatory or motivated by bad faith, a violation of section 68 could be made out. The Board has in the past found no prima facie case to exist where no violation of the Act is provable (see Thomas Products, supra; Corporation of City of Toronto, supra; Ford Motor Co., supra) [1972] OLRB Rep. Sept. 828) or where the matters raised are res ludicata (Concrete Construction Supplies, [1979] OLRB Rep. Dec. 1152) or where the facts alleged could not support an argument that a violation of the Act had occurred (see cases cited in International Association of Bridge, Structural and Ornamental Iron workers, [1982] OLRB Rep. Feb. 233). None of those situations exist on the facts before me. While the respondent may have wanted the complainants to be more explicit in explaining why they thought Mr. Bonello was acting in an arbitrary and discriminatory fashion in dealing with their grievances, this is a different matter from not making out a prima facie case under section 71 of the Rules of Procedure.

16. The respondent argued that the original complaint was insufficient in particularity and the particulars supplied do not correct this deficiency. I agree that the complainants' original complaint does not fulfill the requirements of section 72 and the subsequent particularization does not materially change this situation. Therefore, the Board directs that further and additional particulars be given to the respondent to allow it to prepare its defense.

17. Therefore, for all these reasons this matter is directed to the Registrar for listing for hearing before me.