Canadian Union of Operating Engineers & General Workers v. Riverside Hospital of Ottawa

[1983] OLRB Rep. September 1562

1078-83-R Canadian Union of Operating Engineers & General Workers, Applicant, v. Riverside Hospital of Ottawa, Respondent, v. Employee, Objector

BEFORE: M. G. Mitchnick, Vice-Chairman, and Board Members W. H. Wightman and B.

L. Armstrong.

APPEARANCES: Russell W Zinn, Melville H. Dell and Cornell Kirko for the applicant; Jo­hanne Larouche and Michael S. Ruddy for the respondent; no one for the objector.

DECISION OF THE BOARD; September 30, 1983

1. This is an application for certification.

[Paragraphs 2-4 omitted]

5. A final issue concerns the apparent late filing by the applicant of seven membership documents upon which it seeks to rely. The documents were sent by registered mail. Section 73(1) of the Board's Rules provides:

73.-(l) Evidence of membership in a trade union ... shall not be ac­cepted by the Board ... unless the evidence

(b) is filed not later than the terminal date for the application.

And section 75(1) provides:

75.-(l) Where a document is required to be filed by these Rules, filing shall be deemed to be made,

(a) at the time it is received by the Board; or

(b) where it is mailed by registered mail addressed to the Board at its office at 400 University Avenue, Toronto, Ontario, M7A 1V4, at the time it is mailed.

The "terminal" date for this application was fixed as August 31, 1983, but the registration stamp on the applicant's envelope bore the date September 1st, 1983.

6. Normally the Board will accept the date on a registration stamp as an accurate in dictation of the date on which a document has been mailed, and this mechanism obviously is one of great convenience for parties who deal(and especially those who deal regularly) with the Board. On the other hand, when the same indicator, being the registration stamp, suggests to the Board that a document was mailed late, there clearly must be some onus on the party proffering the document to satisfy the Board that the error is that of the Post Office.

7. Here the applicant was advised prior to the initial hearing date of September 9th that the registration stamp for seven of its cards indicated that they had been submitted beyond the terminal date. The applicant advised the Board that the documents had in fact been mailed on the terminal date, but did not bring to the hearing in Toronto the individual who had reg­istered the documents at the Post Office. The Board saw fit to re-schedule the matter for hear­ing in Ottawa one week later, for the sole purpose of permitting the applicant full opportunity to adduce its evidence in support of its assertion that an error had been committed by the Post Office.

8. At that hearing the applicant called Mr. Kirko, its Secretary-Treasurer, who testified that he was certain that he registered the material at a Shopping Mall Post Office some time after 3 p.m. on August 31st. He testified that he could not have done so on the subsequent days because he was scheduled to work those days. No work schedule was produced before the Board to confirm Mr. Kirko's recollection. Neither was the applicant's copy of the reg­istration slip produced, because, the applicant explained, it had meant to pick it up on the way to the hearing, but ran short of time. The applicant did, however, produce a photostat from its own registration book, showing a stamp of "September 1st", and did not dispute that the stamp on the registration slip was the same. Mr. Kirko testified that he asked an em­ployee at the Mall Post Office whether they had a practice of turning their registration stamp forward at some point in the day, and he was advised that they did not. Mr. Kirko says the employees, who worked for the Mall, were not very co-operative, and he did not ask them to check their daily ledger to see on what date his registration had been entered. Neither did the applicant make any other inquiries.

9. The Board on the evidence finds that the applicant has failed to satisfy it that an error has been made by the Post Office in this case, and that Mr. Kirko's recollection of the dates is the accurate one. If the applicant wishes to proceed with the present application, therefore, it must do so without the 7 late cards.

10. The matter is referred to the officer.