Vazken Kaljian v. Canadian Union of Public Employees, Local 1996

[1984] OLRB Rep. January 129

1550-83-U Vazken Kaljian, Complainant, v. Canadian Union of Public Employees, Local 1996, Respondent, v. Toronto Public Library Board, Intervener

BEFORE: Corinne F. Murray, Vice-Chairman.

APPEARANCES: J. Paul Wearing (Dec. 5/83), Mark Topp (Nov. 8/83) and Vazken Kallian for the complainant; Howard Goldblatt, Jack White and Mary Cook for the respondent; Ed­ward T McDermott, T Town and Margaret Kretan for the intervener.

DECISION OF THE BOARD; January 12, 1984

1. The name of the respondent is amended to read: "Canadian Union of Public Em­ployees, Local 1996".

2. This is a complaint pursuant to section 89 of the Labour Relations Act wherein the complainant alleges that he was dealt with by the executive and members of C.U.P.E. Local 1996 contrary to section 68 of the Act. The complaint is dated September 30, 1983 but was not delivered to the Board until October 11, 1983. The particulars alleged in support of this complaint relate to events from March 30, 1982 up to and including January 16, 1983:

The Complainant was discharged from his employment as librarian with the Toronto Public Library System on November 16, 1982. The com­plainant disputes the reasons given for his dismissal, but has been unable to obtain a grievance hearing to review the dismissal. The Complainant submits that no arbitration procedure was initiated in part because the bargaining unit included supervisors carrying out management functions, whose reports were the sole basis for his dismissal, and such supervisory personnel were present, voted, and unduly influenced other members present at the Union meeting where the decision respecting the grievance was made.

The background to the dismissal and the Union action began on March 30, 1982. At that time the complainant had been employed for five years by the library system, and had always been a satisfactory employee and received positive evaluations (record of which was to subsequently dis­appear from the complainant's personnel file and which the supervisor would refuse to remember existed).

On March 30, the Complainant was told to attend a meeting April 2nd, with Ms. Nancy Heighton, who supervised the administration of several local library branches, Ms. Maureen McPhee, senior union stewardess, and Maria Czerniakowsky (C). C was the Complainant's immediate su­pervisor and was at all times in charge of the Pape-Danforth branch of the library.

Based on a report by C (of which the Complainant had no previous knowledge or indication, and the substance of which the Complainant strongly denies) Ms. Heighton informed the Complainant that manage­ment would be advised to place him on three months probation in order to re-evaluate his performance. The Complainant objected to the report and the reasons given for the probation, and asked Ms. McPhee, whose specific purpose in attending was to protect his rights, what recourses were open to him. He was advised at that time that it was "very dif­ficult", that the Complainant had "no choice" and that "they" (Ms. Heighton and C) "were not doing anything illegal", and that he should keep quiet. The Complainant accepted this advice with the understanding that the Union could only help him in a limited manner.

It is noteworthy that both C, whose report was the sole basis of the ac­tion taken, and Ms. Heighton, who actually requested that he be placed on probation, were both Union members, and members of the same bar­gaining unit as the Complainant and Ms. McPhee. As supervisors, they were in positions of authority and exercised management functions in re­spect to the majority of members of the Union Local.

The terms of the probation placed the Applicant again under the super­vision of C and a few staff members, including non-librarians, at the Pape-Danforth Library, who were openly encouraged to appraise the Complainant's work. Throughout this period, the Complainant alleges that he was endlessly harassed by C and some supporting staff members. Among other incidents, he was suspended by library management (Ms. T. Town) for three days based on a fabricated report of C that he was absent from work without reasonable explanation, although he had a phy­sician's certificate showing his absence was a result of illness. The Com­plainant complained to the Union, but the executive mistrusted him and chose not to pursue the matter thereby tacitly approving C's actions.

On June 14, halfway through the probation period, the Complainant was summoned to a meeting with C and Ms. Heighton to which the Union representative felt it was not necessary to attend. At this meeting, the Complainant was praised by Ms. Heighton for the excellent progress and effort he was making and encouraged to continue. There was no record of this conversation ever having taken place.

At the end of the probation period, the Complainant was advised by Les Fowley (Chief Librarian) that his probation period had been assessed to be unsatisfactory and that he would be transferred to the Bloor-Gladstone branch for further evaluation lasting another three months. Mr. Fowley also voiced the opinion that the Complainant's explanations and criticism were 'mere excuses'. Despite being assured that his work was performed well throughout this additional probation period, at the end of this term, the Complainant was dismissed for alleged 'incompetence'.

The complainant maintains that at all times his work was satisfactory. He maintains that there is no substance to any of the alleged deficiencies con­tained in the original or subsequent reports by C. These reports, together with that of George Levin of the Bloor-Gladstone branch, form the basis for the punitive action and ultimate dismissal taken. The complainant maintains that the reports were motivated by personal animosity by C against the Complainant. Accordingly, the Complainant approached the Union and the President Kathy Viner, personally, to request that a griev­ance be commenced, to enable him to question the basis of his dismissal and have the matter adjudicated.

In early December, the Complainant again approached the Union at a meeting of the executive and asked that the matter be taken to arbitration. The President advised the Complainant to accept the reports as it was deemed that there was insufficient evidence to justify the action and that the membership would be unwilling to openly contradict management and approve arbitration. The Complainant, however, insisted the matter be brought up at the membership meeting. He was advised to attend a meet­ing December 22, 1982, when the question would be considered. The meeting was adjourned at 8:00 p.m. for lack of a quorum, and resched­uled for January 16, 1983.

On January 16, 1983 no quorum was present, but the meeting was held down until approximately 9:00 p.m. At that time, C arrived in a group with seven or eight other persons. The meeting included a substantial number of supervisory personnel. At the meeting, the Executive rec­ommended that C's report be accepted, and no arbitration action be taken. The membership voted in favour of the Executive recommendation.

The Complainant alleges:

(1) The bargaining unit is inappropriate, containing members who ex­ercise direct supervisory and management functions in relation to other members.

(2) The presence of C in the bargaining unit, together with other su­pervisory personnel, was coercive, in that there was a real or ap­parent apprehension of ordinary members that disagreement would lead to retribution.

(3) That given the Complainant's length of satisfactory service, and that the dismissal was primarily based on fabricated reports prepared by one person, intent upon defaming his character, denial of the Com­plainant's request for arbitration is indefensible. The only excuse for so doing was to protect C, another member of the unit, from de­fending her report. The Complainant alleges that insufficient support by the Union on his behalf is to blame.

The Complainant submits that the allegations contained in the reports which led to his dismissal cannot be substantiated on examination and requests an opportunity to have the matter arbitrated impartially.

While the focus of and undoubtedly the precipitating factor behind the complaint is the re­spondent's response to the complainant's discharge, which occurred on November 16, 1982, the conduct and actions by the executive and members of C.U.P.E., Local 1996 complained of began in March of 1982 and appear to be interwoven with the complainant's allegations in connection with his discharge.

3. At the outset of the hearing into the complaint, counsel for the respondent raised three preliminary arguments, namely:

(i) that the Board ought to exercise its discretion under section 89 and refuse to hear the complaint because of the excessive delay in lodging it;

(ii) that the statement of facts in the complaint is so lacking in partic­ularity as to prevent the respondent from adequately preparing its def­ence, and,

(iii) insofar as the complaint deals with and challenges the appropriateness of the bargaining unit for which C.U.P.E. Local 1996 has been cer­tified since 1976, this aspect of the complaint should not be enter­tained.

Counsel for the intervener supported counsel for the respondent insofar as (i) and (iii) are concerned.

4. After hearing argument from all parties, the Board ruled that evidence and argu­ment regarding the consequences of any delay between January, 1983 and October, 1983 would be heard and a decision rendered thereon prior to a consideration of the merits, if necessary. The Board also ruled that the determination of whether the complainant can, through this complaint, challenge the appropriateness of the bargaining unit should be made as a part of the consideration of the merits of the complaint. No ruling was necessary regarding particulars because the complainant's counsel, Mr. Topp, undertook to give additional particulars and revise the complaint forthwith. This was acceptable to counsel for the respondent.

5. The evidence given by Mr. Kaijian in connection with the period specified above may be summarized as follows. Mr. Kaljian was, prior to his discharge, employed by the in­tervener as a librarian since 1977. At all material times he was a member of a bargaining unit for which the respondent had been certified. He was advised of his discharge on No­vember 16, 1982 and filed a grievance regarding this. There was a grievance meeting wherein Mr. Kaljian was represented by officials of the respondent. Following the meeting, which oc­curred some time in December, Mr. Kaljian was advised that the union executive had decided not to take his grievance to arbitration. Mr. Kaljian requested that the membership of Local 1996 consider the matter and a membership meeting was set up for January 16, 1983. It is clear that Mr. Kaljian knew as a result of this meeting that his grievance would not proceed to arbitration.

6. Mr. Kaljian had, sometime in December, consulted a lawyer (not Mr. Topp) to ob­tain advice on his termination. The advice he received was to wait until the union decided whether it would take the grievance to arbitration. This is what Mr. Kaljian did. After January 16, 1983, Mr. Kaljian claimed he called the same lawyer back as quickly as he could and told him what the union had decided.

7. There were numerous changes in Mr. Kaljian' s recollections about what happened between himself and this lawyer after January 16, 1983. In his examiruled that evidence and argument regarding the consequences of any delay between January, 1983 and October, 1983 wout the assessment of the lawyer was that he had a "very good case". Mr. Kaljian claimed, however, that he was not advised of what action he should take at this time. Sometime in April or May he received a letter from the lawyer in which, according to Mr. Kaljian's de­scription, he was "discouraging". The letter did, however, advise him on several courses of action open to him and one of those options was an "appeal" under section 89 of the Labour Relations Act alleging a breach of section 68. Mr. Kaljian testified that this was his first knowledge of the availability of a remedy under section 68 of the Act. Between January and receipt of this letter, Mr. Kaljian claimed that he had had appointments with his lawyer "every week" but all of these had been cancelled either ahead of time or on the appointed day. Under cross-examination, Mr. Kaijian claimed that after he advised his lawyer that the union on Jan­uary 16, 1983 had decided not to process his grievance to arbitration, the lawyer advised him he could take steps against the union. Mr. Kaljian was asked why such steps were not taken by him or his lawyer in January or February. He claimed that his lawyer did not have the time and Mr. KaUian did not have any money. Later on his cross-examination Mr. Kaljian claimed that it was not made clear to him after January 16th who should be proceeded against. Mr. Kaljian claimed that, notwithstanding his lawyer's unavailability and the repeated can­cellation of his appointments between January and April he was reluctant to see another law­yer because he had already paid his lawyer a sizeable sum of money. When asked what this sum, which was paid in December, was intended to cover, Mr. Kaijian testified that it was meant to cover legal work up to the "first hearing". Mr. Kaljian claimed not to know what this meant. His lawyer did not send him a bill setting out an account for the amount paid to him in December until the letter of advice in April, 1983. Mr. Kaljian was questioned in­tensively about what his explanations were in connection with this and the point to which he had paid for legal work. He was very vague in his answers, at first claiming that he had never asked the lawyer what was meant by a first hearing but later acknowledged that it was in his mind in December or January that a hearing would possibly take place against Ms. Czerni­akowsky and her assistants and possibly against the respondent.

8. After receiving the letter from his lawyer sometime in April or May, wherein Mr. Kaljian was notified fully of his rights against the respondent, he consulted Mr. Topp, the lawyer who ultimately represented Mr. Kaljian at the first day of hearing in this matter. Mr. Kaljian denied that he sought Mr. Topp's advice — he was just looking for "an interpretation" of his first lawyer's letter. Mr. Kaljian testified that while Mr. Topp mentioned an application being made against the union he did not give advice about section 68. Along with speaking to Mr. Topp, Mr. Kaljian spoke to "friends and neighbours". He claimed that he made up his mind to come to the Board for a remedy because these people advised him to do so. Mr. Kaljian said he knew about the fact there was a procedure before the Board by which he could go against the union from his lawyer's letter and he did not need Mr. Topp to tell him about it. Mr. Kaljian testified that he came to the Board in July and obtained the necessary forms. He claimed Mr. Kaljian did not file the complaint until October 11th.

9. No evidence was called by the respondent there were "legal terms" he needed to analyze with the aid of a dictionary. In mid-August Mr. Kaljian took the complaint forms to Mr. Topp and Mr. Topp drafted the contents thereof. The completed complaint was given to Mr. Kaljian shortly thereafter. Mr. Kaljian testified that he was not happy with the statement of facts by Mr. Topp and he therefore set about rewriting it with the help of a friend. The rewrite was finished by September 30, 1983 but Mr. Kaljian did not file the complaint until October 11th.

10. No evidence was called by the respondent or the intervener.

11. The respondent and intervener argue on the basis of Sheller-Globe [1982] OLRB Rep. Jan. 113 (application for judicial review dismissed by the Divisional Court, June 23, 1983) and the City of Mississauga [1982] OLRB Rep. March 420 that the Board should ex­ercise its discretion and should not hear the complaint because of extreme delay. They ask the Board to note that the complaint does not simply refer to events in or around the point of discharge. Some of the events occurred more than two years before the complaint was filed. Both parties submitted that the Board must, in view of this time lapse, be given compelling reasons to proceed with the complaint. They submitted Mr. Kaljian has not given any. The applicant, who by the time of argument had retained different counsel, Mr. Wearing, argues that the onus in this situation rests upon the party alleging that delay has been such as to require the dismissal of the complaint to prove that there has been some prejudice actually suffered by that party. In view of the fact that neither the respondent nor the intervener called any evidence, the argument cannot succeed.

12. The Board has summarized its approach to determining whether delay is such that a complaint should not be entertained in the following way in Caravelle Foods [1983] OLRB Rep. June 875:

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 [1977] 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 ... 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, [1982] 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 machanical [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.

In Caravelle Foods, supra, the Board heard the complaint notwithstanding a delay of some eight months because there was no evidence from which it could be concluded that there was severe prejudice to the respondent and intervener's labour relations which could not be ad­justed through a remedial order at the conclusion of the case. In that case the Board had be­fore it a complaint regarding the handling of the complainant's discharge for fighting and the Board was dealing with a set of facts which were confined to the events precipitating discharge and the union's response thereto. The period of time in which that set of facts took place was approximately one month. By contrast, in Sheller-Globe, supra, the Board found the delay, 2-1/2 years after the section 68 complaint was potentially chrystallized. was of such a mag­nitude that the prejudice to the union and employer was "undeniable" and obvious because "memories to present a defence will deteriorate for that reason alone." During the 2-1/2 years the respondent had no awareness that the complainant was going to challenge its conclusions about the merits of her grievance and the passage of 2-1/2 years would hamper the respond­ent' s clear presentation of the basis of these conclusions. It was in those circumstances that the Board in Sheller-Globe, supra, indicated that the onus shifted to the complainant to satisfy the Board that there were "compelling labour relations reasons to cause the Board to exercise its discretion and entertain the complaint under section 89." Similarly, in The Corporation of the City of Mississauga decision, supra, the Board considered the effect of a five-year delay between the date the respondent allegedly failed in its duty under section 68 and the filing of the complaint to be prejudicial to the ongoing labour relations between the parties to the col­lective agreement because if the complainant were successful in obtaining the remedy he sought under section 68, the seniority list which had existed for some years would have been put in issue and undermine actions based thereon retrospectively. It should be noted that the Board quoted with approval the statement made in Sheller-Globe, supra, as to the onus the com­plainant bears in circumstances where there is a delay which carries with it a significant prej­udice to the respondent and intervener.

12. In this complaint there is a challenge made to the very foundation of the collective bargaining relationship which has existed between the respondent and intervener for many years. The challenge is that the complainant's dismissal was founded upon reports and actions by bargaining unit members (going all the way back to 1982) who were in fact exercising managerial authority over him. The ultimate decision to discharge was the culmination of a process which began in 1982 and in which from the beginning there allegedly was improper involvement by bargaining unit members in supervisory or managerial functions. Therefore it is fair to say that the earliest point in time when the section 68 complaint materialized was in March of 1982. Thereafter it was merely a case of new breaches being added until January 16, 1983. Since the complaint is such that its earliest origination took place in March of 1982, arguably, the complainant would have to justify or explain his failure to complain from that point forward. Notwithstanding this, the Board decided to direct the parties' evidence and ar­gument at the complainant's conduct between January 16, 1983 and October 11, 1983 because to extend the preliminary inquiry as far back as March of 1982 would potentially entail the hearing of the whole complaint. This would not have been an acceptable course of action be­cause in the event the matter was unsuccessful, the complaint potentially would have required a hearing ab initio regarding the merits. Therefore it should be clear that this decision relates solely to the prejudicial effect of the time lapse between January and October of 1983 and whether this should cause this Board to decide not to hear any part of the complaint.

13. The question before me is whether a nine-month delay in the circumstances has created such prejudice to the parties as to impose upon the complainant an onus to come for­ward with a compelling labour relations reason for having his complaint heard. For this pur­pose it must be recognized that the extent of the deterioration in the abilities of parties to mount a defence to the complaint or the potential prejudice to their collective bargaining re­lationship as of January, 1983 cannot be considered except to consider whether an additional nine months was the difference between prejudice which could be reflected in a remedial order and extreme prejudice warranting a refusal to hear.

14. The length of delay in this instance is not of such a nature that it must be concluded there is prejudice to the abilities of the respondent to mount an effective defence. In addition there was no positive evidence from the respondent that any part of its defence had become unavailable as a result of the respondent's perception during the relevant nine months that the complainant was not going to be litigating the respondent's actions vis-a-vis his discharge grievance. Any threat posed to or undermining of the collective bargaining relationship be­tween the respondent and the intervener resulting from the success of the allegations regarding the period between March, 1982 and January 16, 1983 have not been proved to be signifi­cantly increased by the additional passage of nine months. While the complainant's expla­nation for his actions following his knowledge of a remedy against the union being available under the Labour Relations Act (which knowledge was present sometime in May) shows he was dilatory, this is not sufficient to cause the Board to refuse to hear the merits of the com­plaint.

15. For all these reasons, the preliminary motion that the complaint not be heard be­cause of extreme delay between January 16, 1983 and October 11, 1983 is rejected. There­fore, the matter is directed to the Registrar for relisting for hearing before a differently constituted panel.