United Steelworkers of America v. John T. Hepburn, Limited, 1984 CanLII 953

[1984] OLRB Rep. January 39

1352-83-U United Steelworkers of America, Complainant, v. John T. Hepburn, Limited, Respondent

BEFORE: Owen V. Gray, Vice-Chairman, and Board Members J. Wilson and C. A. Bal­lentine.

APPEARANCES: Brian Shell, George Teal and Carlos Infusino for the applicant; Stewart D. Saxe, John F Hepburn and William Hutchison for the respondent.

DECISION OF THE BOARD; January 27, 1984

1. This is a complaint under section 89 of the Labour Relations Act. The complainant trade union alleges that the respondent violated sections 3, 15, 64 and 66 of the Labour Re­lations Act when it terminated the employment of Roderick Smith on June 11, 1982, following a picket line incident in which Mr. Smith was involved, and then in subsequent collective bargaining steadfastly rejected any proposal that a new collective agreement expressly provide for arbitration of Smith's discharge.

2. It is common ground that the last collective agreement between these parties expired May 18, 1982, and that the complainant's strike commenced on that day. The strike continued until November 18, 1982, when the parties appear to have settled on the terms of a new col­lective agreement which made no express provision for the arbitration of the "justness" of Smith's termination.

3. The complainant nevertheless filed a grievance on Smith's behalf on November 23, 1982. The respondent's immediate response was that there was no collective agreement in ef­fect as of the time of the termination, and that the termination could not, therefore, be the subject of collective agreement arbitration. The complainant persisted. It advised the respond­ent it had appointed a nominee to an arbitration board. That nominee then sought from the respondent the name of its nominee. The respondent refused to appoint a nominee. The com­plainant then asked the Minister of Labour to make the appropriate appointments pursuant to section 44(4) of the Act. Correspondence was exchanged between counsel for the Ministry, the complainant and the respondent concerning the Minister's power to make the requested appointments. On March 22, 1983, the Director, Legal Services, Ministry of Labour advised counsel for the complainant that he would be advising the Minister of Labour that he had no power to appoint an arbitrator under subsection 44(4) of the Act, having regard to the un­disputed fact that the discharge took place when no collective agreement was in operation.

4. There were no further developments until after the release by the Board of its Au­gust 5, 1983 decision in International Wallcoverings, [1983] OLRB Rep. Aug. 1316. In late August or early September, counsel for the complainant met with the Director, Legal Services, Ministry of Labour, and ultimately obtained from him a letter which confirmed that the Min­ister had accepted the advice that counsel had earlier been told would be given to the Minister on the question of power to appoint an arbitrator under section 44(4). This complaint was then filed September 19, 1983, fifteen months after Smith's termination.

5. The respondent raised the complainant's delay in filing this complaint as a prelim­inary objection to the Board's proceeding to hear the complaint on its merits. A number of the Board's decisions were cited, including: Chrysler Canada Ltd., [1983] OLRB Rep. Apr. 490; The Corporation of the City' of Mississauga, [1982] OLRB Rep. Mar. 420; Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113 (judicial review denied at 1983 CanLII 1655 (ON HCJ), 42 O.R (2d) 73 (Div. Ct.)); Irving Posluns Sportswear, [1979] OLRB Rep. Oct. 986; Concrete Construction Sup­plies, [1979] OLRB Rep. Aug. 739 and [1982] OLRB Rep. Oct. 1446; Inco Metals, [1982] OLRB Rep. May 681; Nelson Quarry Operation of Genstar Stone Products Inc., [1983] OLRB Rep. Sept. 1531; Donato Marinaro et al, [1983] OLRB Rep. Oct. 1699; Sonic Transport Sys­tems Limited, [1981] OLRB Rep. Oct. 1483; and, Decor Wood Specialties Limited, [1974] OLRB Rep. Mar. 136. Counsel argued that these decisions reflect the Board's concern for expedition in the filing of unfair labour practice complaints and establish a time limit well short of 15 months within which complaints are to be filed. Counsel argued that the same concern is reflected in the various statutory time limits of 6 months or less found in the Can­ada Labour Code and in labour legislation in the provinces of Quebec, Nova Scotia and Man­itoba. With reference to the facts of this case, counsel argued that the delay could not be explained by a lack of awareness on the complainant's part of the existence of rights and rem­rgued there would be an impact on the re­lationship between the parties if we were to entertain the complaint, because the Smith grievance had been dealt with extensively in bargaining and was, he argued, settled as part of the November 1982 settlement of the strike. Counsel said there had been major changes in the relationship of the parties as a result. Counsel also argued that delay leads to changed circumstances, dimming of memory and other adverse effects on the ability of any respondent to defend an unfair labour practice complaint.

6. Counsel for the complainant took issue with the suggestion that it had agreed in the November, 1982 settlement that Smith's discharge would not be the subject of litigation there­after. Counsel for both parties provided us with copies of the last correspondence exchanged before the memorandum was signed. In his letter of November 12, 1982, the respondent's spokesman wrote:

In order to clarify any confusion still existing between the parties we ex­pect the Union's assurances that in signing the Memorandum they have withdrawn any and all proposals

(a) relating to the disposition of Mr. Rod Smith's discharge and

(b) relating to "laid-off" employees,

and that neither of these issues are or will be the subject of further dis­cussions or negotiations between the parties.

On November 13, 1982, the complainant's spokesman replied by telegram:

FURTHER TO YOUR LETTER DATED NOVEMBER 12, 1982 'TO ME, PLEASE BE ASSURED BY THE UNION THAT IN SIGNING THE MEMORANDUM OF SETTLEMENT THE UNION HAS WITH­DRAWN PROPOSALS RELATING TO THE DISPOSITION OF ROD SMITH'S DISCHARGE AND RELATING TO THE "LAID OFF" EM­PLOYEES. WE NOTE THAT THE MEMORANDUM DOES NOT IN­CLUDE ANY RIGHT FOR RODERICK SMITH TO

RETURN TO WORK AND THAT THE COMPANY RESERVES THE RIGHT TO OB­JECT TO THE ARBITRABILITY OF ANY GRIEVANCE WHICH MAY BE FILED IN RESPECT OF THE DiSCHARGE OF RODERICK SMITH.

(emphasis added)

This falls far short of constituting a complete release of any claim Smith might have. Indeed, it is not even an undertaking to forbear filing a grievance. It merely acknowledged the re­spondent's right to object to the arbitrability of a grievance, which would be unnecessary if the filing of a grievance were no longer a possibility.

7. Counsel for the complainant submitted that the Board has been concerned, in its decisions on delay, with the prejudice caused by delay and the abuse of process inherent in the rekindling of something that has been dead. He noted that the "victim" of the incident which led to Smith's dismissal was present in the hearing room, which suggested that the re­spondent had no difficulty securing evidence with respect to that incident. The complainant's intention to litigate the propriety of that discharge was made apparent to the respondent within days after the completion of the November 1982 settlement. Counsel sought to explain the delay following March 31, 1983 as resulting from a belief that the issues raised with the Min­istry up to that point were still under consideration by the Minister. Counsel for the com­plainant took issue with the assertion that there had been major changes in the parties' relationship as a result of the supposed resolution of the Smith issue. He suggested there had been no such changes.

8. Counsel for the complainant acknowledged that delay might go to remedy and re­sult, for example, in denial of compensation for the period of delay. He observed that if Smith had not been terminated, he would be on layoff. Accordingly, the appropriate remedy in this case, he said, might only involve reinstatement of the grievor to the appropriate position on the layoff list. Counsel for the respondent acknowledged that employees senior to Smith were currently on layoff.

9. The Labour Relations Act does not prescribe a period within which unfair labour practice complaints must be filed in order to warrant the attention of the Board. Instead, the Board is given a broad discretion to determine whether or not it will inquire into any par­ticular complaint. The cases cited by counsel deal with the influence of delay in the filing of a complaint on the exercise of the Board's jurisdiction to inquire into the complaint. What emerges clearly from a review of that jurisprudence is this: each case is decided on its own particular facts, and the length of the delay is only one of several factors taken into account in the exercise of the Board's discretion.

10. The Board generally does not refuse to entertain a complaint under section 89 un­less there has been "extreme" delay. Delay which is unreasonable but not extreme is nor­mally taken into account when considering the extent of compensation or other relief to be given if the complaint succeeds on its merits: CCH Canadian Limited, [1977] OLRB Rep. June 351 at ¶3; Concrete Construction Supplies, [1979] OLRB Rep. Aug. 739 at ¶5. For ex­ample, the prejudice caused by delay in filing an improper discharge complaint may lie pri­marily in the respondent's increased exposure to compensation. Denial of compensation for the period of excess delay will ordinarily redress that prejudice adequately: Decor Wood Spe­cialties Limited, [1974] OLRB Rep. Mar. 136; Sonic Transport Systems Limited, [1981] OLRB Rep. Oct. 1483; Donato Marinaro et al, supra at ¶13, 14 and 15. Where the relief which should be denied in the exercise of this discretion is the only relief to which the complainant might have been entitled but for his delay, the Board will not engage further in what would then be an academic inquiry: Donato Marinaro et al, supra at ¶16.

11. The prejudice to the party or parties innocent of the delay may be of a sort which cannot be ameliorated by limiting the relief to be granted if the complaint is successful. Delay may prejudice the defense of a complaint. With the passage of time recollections fade, wit­nesses may move away or die, and documents may be lost or destroyed in the ordinary course of business. The potential for prejudice of this kind obviously depends in large part on the extent to which the observations or documents relevant to the complaint were noteworthy at the time they were made, or became so within a reasonable time thereafter. The ability to defend action such as a firing, which is inherently controversial at the time it takes place, is less likely to suffer from the passage of time than the ability to defend, for example, the day-to-day referral decisions of a trade union official running a hiring hall. Conduct which is not by its nature remarkable or memorable at the time it occurs is difficult to defend after a long delay unless some early challenge or threat of litigation alerted the potential respondent to the possibility of later contention and thereby afforded an early opportunity to reflect, record and preserve evidence. The weight to be given to actual or potential defense prejudice depends on the particular circumstances of the case. The relative ability of a complainant to recall the events of which he complains in enough detail to adequately particularize them in his com­plaint or evidence in chief is one measure of the prejudice which delay may have caused to the defense of the complaint (see Irving Posluns Sportswear, supra). Defense prejudice will be apparent, and the weight to be given it substantial, if witnesses have died and documents have been destroyed: Chrysler Canada Ltd., supra.

12. The Board has recognized another sort of prejudice which can be caused by delay in filing employee complaints of unfair representation in violation of section 68 of the Act:

the prejudice to the collective bargaining relationship of employer and trade union which can result from the delayed litigation and attempted enforcement of collective agreement rights. This special concern was described in Caravelle Foods, [1983] OLRB Rep. June 875 at par­agraph 9 in the following terms:

... 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 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.

In Caravelle Foods the Board decided to hear a section 68 complaint notwithstanding a delay of some eight months in filing it, because the Board concluded there was no evidence of de­fense or labour relations prejudice which could not be adjusted adequately in the framing of any remedial order.

13. The length of the delay is sometimes not easily measured. In many cases, the con­duct complained of will constitute an unfair labour practice only if it is shown to be im­properly motivated. The motivation may not be immediately apparent; indeed, it will often be carefully concealed. It will ordinarily be the course of the wrongdoer's conduct over a period of time from which the complainant and, later, the Board infer an underlying motivation. At what point does the "delay" clock begin to run in such cases? Surely only when the com­plainant knew or ought reasonably to have known of the basis for the complaint. What of a complaint alleging that a series of incidents occurring over time, each minor when considered in isolation from its context, together represent the result of an improper scheme? At what point in the furtherance of such a scheme will the victim's continued patience be later turned against him? The line is not easily drawn. This does not mean that the Board will always permit unrestrained exploration of the entire history of a collective bargaining or employment relationship in the guise of setting the scene for or exposing the origins of the respondent's alleged scheme or motivation. The Board may limit the inquiry's reach back into time if it appears the major object is to resurrect in a new guise old complaints and grievances which had earlier been formulated and waived or abandoned short of settlement or adjudication: Nel­son Quarry Operation of Genstar Stone Products Inc., supra.

14. The Board's approach to delay has been compared to the doctrine of laches de­veloped by Courts of equity and adopted by boards of arbitration: The Corporation of the City of Mississauga, supra, at ¶20; Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446 at ¶28. The features of this doctrine were explained in Re Parking Authority of Toronto, (1974) 1974 CanLII 445 (ON HCJDC), 5 L.A.C. (2d) 150 (Adell) (judicial review denied (1974) 4 O.R. (2d) 45 (Ont. Div. Ct.)), in the following terms at pp. 156-157:

The employer's final .point may be stated as follows: even if the use of part-timers" has been in breach of the collective agreement, and even if the continuing nature of that breach means that the time limit provi­sions of the agreement do not prohibit the board from considering this grievance, the union's long delay in enforcing its rights and the detriment which the employer has suffered from that delay are sufficient to preclude the bringing of the grievance. The employer is thus invoking the equi­table doctrine of laches, which has been stated in these terms (14 Hals., 3rd ed., p. 641):

... In determining whether there has been such delay as to amount to laches the chief points to be considered are (1) acquiescence on the plaintiff's part, and (2) any change of position that has occurred on the defendant's part. Acquiescence in this sense does not mean standing by while the violation of a right is in progress, but assent after the violation has been completed and the plaintiff has become aware of it. It is unjust to give the plaintiff a remedy where he has by his conduct done that which might fairly be regarded as equivalent to a waiver of it; or where by his conduct and neglect he has, though not waiving the remedy, put the other party in a position in which it would not be reasonable to place him if the remedy were after­wards to be asserted. In such cases lapse of time and delay are most material. Upon these considerations rests the doctrine of laches.

Laches is a doctrine of equity rather than of the common law. This does not mean that it enables a tribunal to refuse to give effect to legal rights in any case where the circumstances make the tribunal feel that it would be unfair or, in the commonly used sense of the term, "inequitable" to give effect to them. What it does mean is that if certain quite specific prerequisites developed by Courts of equity are present in the particular case, the party with the legal right may be barred from enforcing it. The tribunal's sense of justice is permitted to come into play only after those specific prerequisites are found to be satisfied, and not before. The spirit in which equitable defences such as laches are to be used, once the pre­requisites are established, is made clear by the English equity scholar, Professor H. G. Hanbury. (Hanbury, Essays in Equity, Oxford, 1934, p.65):

... equity will, on grounds of conscience and fair dealing, system­atically deprive this or that individual, in certain given circumstan­ces, of the enjoyment of his legal rights, not for a moment disputing the validity of the legal rights in general, but isolating the individual from them in order to avoid injustice to another to whom it will ex­tend its protection.

Similarly, in Re Civic Employees Union, Local 43, and City of Toronto (1967), 1967 CanLII 1066 (ON LA), 18 L.A.C. 273 (Arthurs), at p. 280, an arbitration board, in con­sidering the applicability of other equitable defences (waiver and estop­Pd), pointed out that the "essence" of those doctrines was "the prevention of unfairness". What we must do, then, in deciding whether to give effect to the employer's plea of laches, is to ask first whether the specific requirements of the doctrine of laches have been made out here, and if so, whether the application of that doctrine is needed to avoid in­justice or unfairness.

The two principal prerequisites for the applicability of laches are, as is made clear in the above passage from Halsbury, acquiescence on the part of the party charged with the delay and some detriment ("change of po­sition") on the part of the other party.

In the exercise of its discretion under section 89(4) of the Act, the Board is not limited to application of the courts' formulation of the doctrine of laches. The doctrine is a useful guide to the exercise of that discretion, however, and the explanation set out in the passage just quoted highlights the type of balancing of interests in which the Board must also engage in exercising its discretion.

15. As on a motion to dismiss for failure to set up a prima facie case for relief, we must assume the truth of the complainant's factual allegations. The respondent did not argue that those allegations, if proved, would not establish a breach of the Act. In determining whether the delay in filing this presumptively meritorious claim makes it unfair for us to en­tertain it, we should not weigh in our balance the plausibility of the complainant's assertions. What is in question is whether an inquiry into this complaint would be unfair to the respond­ent by reason of the delay in asserting it; any supposed unfairness in subjecting a respondent to the defense of a complaint which alleges a prima facie case but appears unlikely to succeed is no more relevant in this context than it would be if there had been no delay.

16. Turning now to the facts of this case, we note that the delay of which the respond­ent complains has three phases. The first is the period from the Smith termination in June 1982 to the settlement of the strike. It was not unreasonable for the complainant to concentrate its efforts during that period on trying to achieve in bargaining a resolution or procedure for resolving Smith's "grievance". That phase of the "delay", therefore, was not unreasonable. The material before us does not establish that the Smith grievance was settled at that point. The next phase begins with the filing of a grievance purportedly under the new non-retroactive collective agreement. Whatever else may be said about the complainant's attempts during this second phase to make Smith's termination the subject of an arbitration, nothing in that conduct up to the end of March, 1983, could have led the respondent to believe that the complainant no longer wished to challenge that termination. With respect to the period after March, 1983 on the other hand, we do not accept as reasonable the complainant's explanation that it thought the matter was still under consideration by the Minister of Labour. There was nothing in the last correspondence from the Minister's legal advisor to suggest that the matter was going to be considered further. While in retrospect we know the complainant had lapsed into inactivity at the end of March, 1983, this would not have been instantly obvious to the respondent. From its point of view the appearance of inactivity would have coalesced gradually with the passage of time and absence of correspondence. From this point of view, the second phase fades after March rather than ending abruptly. The following third phase ends when the com­plaint is filed. The second and third phases both constitute unreasonable delay. We do not accept the argument that arbitration offered a more comprehensive remedy than a section 89 complaint at that point, when there was serious doubt that a grievance was arbitrable. Even if arbitration was the avenue of redress with the greatest potential, lack of success in another litigious forum will not justify an otherwise unacceptable delay in filing a complaint: Sheller-Globe of Canada Ltd., supra.

17. In the result, we have an unreasonable delay totalling about eleven months. The prejudice to the respondent is slight at best in the first half of this period, while the com­plainant was trying to contest roughly the same issues against the same respondent but in an­other forum. Only in the last five or six months before the complaint was filed did inactivity create any potential for prejudice and adverse reliance. There is no allegation, however, that any of the respondent's witnesses or documents were lost in that period or, indeed, at any relevant point. There is nothing in the material before us to suggest that the respondent relied on the complainant's subsequent inactivity in any way which would make it unfair for the complainant to now press a meritorious complaint before this Board.

18. In short, we are not persuaded that the complainant's delay in filing this complaint justifies a refusal to hear it on its merits. The respondent's request for dismissal is, therefore, denied. That will not, however, be our last consideration of the complainant's delay. If the complaint is successful on the merits, the delay will be considered in assessing what relief to award, if any.

19. While the disposition of the respondent's motion brings to an end the assumption that the complainant's allegations of wrongdoing are true, it does not bring to an end the po­tential influence of the complainant's delay on the disposition of this complaint. The case the complainant wishes to establish is that termination was so extreme a response to the actual incident in which Smith had been involved as to lead us to conclude that the respondent had seized upon that incident as an opportunity to rid itself of a militant trade union leader. During argument, counsel for both parties emphasized the bitterness which had characterized their clients' relationship during the strike. As we understand it from counsel's answers to the Board's questions, at no time prior to the filing of this complaint did anyone on behalf of the trade union directly accuse the respondent employer of anti-union motivation in its termination of Smith or put it on notice that there would be resort to this Board if arbitration were un­available. It might be argued that the absence of such an accusation in an otherwise bitter relationship suggests that it had not occurred to anyone on behalf of the trade union that the Smith termination was motivated by anti-union animus. The trade union's delay in charac­terizing the respondent's behaviour as an unfair labour practice may be some measure of the accuracy of the charge. The doubt cast on the merits of the complaint by the delay in filing it must, of course, be weighed together with all the evidence the parties have to present on the merits.