Ontario Labour Relations Board
[1983] OLRB Rep. June 882
9277-83-U Erich Pest, Complainant, v. Ontario Public Service Employees Union, Respondent, v. Conestoga College of Applied Arts & Technology, Intervener
BEFORE: R. D. Howe, Vice-Chairman.
APPEARANCES: Leroy A. Crosse, Erich Pest and Earl Brewster for the complainant, Israel Freedman for the respondent; Michael Hines and John Podmore for the intervener.
DECISION OF THE BOARD; June 10, 1983
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 respondent contrary to section 68 of the Act.
At the hearing of this matter on June 7, 1983, the Board gave the following oral decision, which is hereby confirmed: -
"Having carefully considered the submissions of the parties, I am of the view that this is an appropriate case for the Board to exercise its discretion under section 89 of the Labour Relations Act to decline to inquire into the complaint. The events which gave rise to the complaint occurred in 1980. Following the complainant's discharge by the intervener in April of 1979, the respondent filed a grievance which was processed to arbitration in accordance with the collective agreement. The arbitration came on before a board of arbitration chaired by Howard D. Brown on January 23, 1980 with continuations of hearing on May 7, September 3 and September 10, 1980. The respondent and the complainant were represented before the arbitration board by Michael Pratt, an experienced full-time grievance officer in the employ of the respondent. In a detailed award dated February 26, 1981, from which the union nominee dissented, a majority of the arbitration board dismissed the grievance. Thereafter, the respondent sought legal advice from a law firm experienced in labour relations, and instructed that firm to seek judicial review of the arbitration award. The application for judicial review came before the Divisional Court on February 9, 1982, at which time the Court, in an oral judgment, dismissed the application. Mr. Pratt formally advised the complainant of the Court's disposition of the matter by letter dated March 29, 1982. Thereafter, the complainant met with Mr. Sean O'Flynn, the President of the respondent, in an unsuccessful attempt to obtain a resolution of his continuing dissatisfaction with his discharge. In the fall of 1982 the complainant contacted a lawyer (other than his present counsel) but no complaint was filed with the Board until May 5, 1983, when the complainant, without legal assistance, filed the present unparticularized complaint.
In his oral submissions, counsel for the complainant advised the Board and the other parties that his client alleges that the respondent breached section 68 of the Act by acting in a manner that was 'arbitrary' in the representation of the complainant at the aforementioned arbitration hearing. The 'arbitrariness' allegedly consists of the respondent's failure to retain counsel to present the complainant's case before the arbitration board, Mr. Pratt's failure to adduce at that hearing certain evidence which the complainant considered to be relevant (including a petition in support of the complainant), and Mr. Pratt's alleged failure to object to the introduction of certain evidence.
In the Corporation of the City of Mississauga, [1982] 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 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—is 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 9-6 72 and Dow Chemical of Canada Limited 11966] 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 (Re Kazimir Cigan), Board File No. 1530-82-U, decision dated April 18, 1983, to be reported in [1983] OLRB Rep. April; Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417; Concrete Construction Supplies, 11982] OLRB Rep. Oct. 1446; and Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113.
Having regard to those principles, the Board finds that this is an appropriate case in which to exercise its discretion under section 89 of the Labour Relations Act to decline to inquire into the complaint. The events upon which the complainant relies occurred approximately three years ago. While it may have been reasonable for the complainant to await the issuance of the arbitration award, and perhaps even the Divisional Court decision, before raising a complaint about the manner in which he was represented by Mr. Pratt in January of 1980 (and thereafter), there is a substantial period for which the complainant has failed to provide an adequate explanation for his failure to file a complaint about the matters which he now seeks to raise before the Board. The remedy which the complainant seeks is payment by the respondent of the pension contributions which would have been made to the intervener's pension plan had the complainant not been discharged. He also seeks to have the respondent attempt to persuade the intervener to revoke his discharge and permit him to resign from the employment of the intervener with vested pension rights.
Having regard to all the circumstances, I find that there has been substantial undue delay on the part of the complainant which, if this matter were permitted to proceed, would operate to the prejudice of the respondent in view of the nature of the claim asserted by the complainant, and the basis of that claim. Moreover, I am also of the view that this complaint should be dismissed without a hearing on the merits since the complaint, as orally particularized by counsel for the complainant, does not make out a prima facie case for any relief under the Act. It is clear from the undisputed facts stipulated before me that the complainant was represented by an experienced grievance officer at an arbitration hearing which continued for four days in respect of his discharge by the intervener. Thereafter, the respondent retained experienced counsel and sought to have the arbitration award quashed. The complainant does not allege that he was treated any differently than any other persons represented by the respondent, nor that Mr. Pratt dealt with him in bad faith. It is apparent from the arbitration award (which was filed with the Board by the respondent on the consent of the parties) that evidence similar to that which the complainant alleges should have been introduced was in fact introduced but found not to be persuasive. It is also evident (from page 20 of the award) that the arbitration board took into account the fact that a petition in support of the complainant had been circulated and signed by certain faculty members. The award also indicates that Mr. Pratt did object to the introduction of the evidence which the complainant alleges should not have been permitted to be introduced, but that his objection was overruled by the majority of the arbitration board and, ultimately, by the Divisional Court. It is not the function of this Board in a section 89 complaint based upon section 68, to second 'guess' an experienced union official in the presentation of an arbitration case on behalf of a complainant, nor is it the Board's function to impose a duty upon a trade union to retain a lawyer to represent it before an arbitration board where, in accordance with its normal practice, it assigns the case to a member of its staff experienced in presenting such cases.
For the foregoing reasons, this complaint is hereby dismissed".