[1985] OLRB Rep. July 1153
3335-84-U Russell Overland, Complainant, v. Canadian Union of Public Employees, Local 67, Respondent, v. The Corporation of The City of Sault Ste. Marie, Intervener
BEFORE: S. A. Tacon, Vice-Chairman.
APPEARANCES: No one appearing for the complainant; Ron Moreau, John Sloan, Eric Merisalo and Edmond Schultz for the respondent; C. R. Bernardi and L. A. Bottos for the intervener.
DECISION OF THE BOARD; June 7, 1985
This is a complaint filed pursuant to section 89 of the Labour Relations Act alleging violation of section 68 of the Act.
The complainant did not appear at the time scheduled for commencement of the hearing. Accordingly, the Board waited its usual period before commencing the hearing.
The Board hereby adds to the style of cause "The Corporation of the City of Sault Ste. Marie" as intervener to these proceedings.
The Board made the following oral ruling and hereby confirms that ruling:
In a complaint alleging violation of section 68 of the Act, the complainant bears the onus of leading evidence to substantiate those allegations. Since no evidence has been adduced before the Board, the Board hereby dismisses the complaint.
Counsel for the intervener submitted that the Board should award costs on the ground that the complainant did not even appear at the hearing. Specifically counsel requested that costs be fixed at the discretion of the Board and that those costs be required to be paid before the complainant would be permitted to file a similar complaint in future. The representative of the respondent neither made submissions nor raised objections to the motion.
At the hearing, the Board explained the Board's general policy with respect to the awarding of costs. The Board, however, reserved its ruling on the motion.
The Board has again reviewed its practice of not awarding costs in Board proceedings. It is appropriate to reiterate the rationale for that practice; the following passage from Repac Construction & Materials Ltd., [1976] OLRB Rep. Oct. 610:
The underlying purpose of the Labour Relations Act, as set out in its preamble, is to further harmonious relations between employers and employees through the collective bargaining process. The purpose is not well served by a procedure that usually requires the identification of a winner and loser. The application of such a procedure, moreover, would be time-consuming, distracting the Board from its primary task of facilitating collective bargaining. The awarding of costs, therefore, should not be extended beyond the situation where a party is being compensated for the expenses that would result from an adjournment to convenience another party. To extend this procedure any further would introduce an unnecessarily punitive element into the Board's procedures.
The Board did award costs of proceeding before the Board in Academy of Medicine, [1977] OLRB Rep. Dec. 783, in conjunction with other orders directing compensation to rectify an unfair labour practice. In Radio Shack, [1979] OLRB Rep. Dec. 1220, upheld 80 CLLC 14,017 (Ont. Div. Ct.), however, the Board declined to award legal costs, despite numerous breaches of the Act by the employer and in the context of extensive remedial orders. As the Board stated,
We have decided against awarding the complainants legal costs in this matter. The Board is hesitant to persue this line of compensation because of the possibility that the denial of legal costs to those parties who successfully defend against complaints may be misunderstood and perceived as unfair. This policy may be reviewed by the Board from time to time.
The approach enunciated in Radio Shack, supra, has been preferred in subsequent Board decisions. See also Grey Owen Sound Health Unit, [1980] OLRB Rep. Feb. 223; Comstock Funeral Home Ltd., [1981] OLRB Rep. Dec. 1755; The New Gregory House Inc., [1980] OLRB Rep. June 873; Avon Sportswear, [1981] OLRB Rep. Nov. 1542.
The Board recognizes that parties may well be put to not inconsiderable expense in defending against complaints which are not upheld by the Board. The Board also recognizes that that sense of frustration is increased when the complaint is not just regarded as frivolous by the other parties, but where the complainant failed even to appear at the hearing. The Board agrees that the rationale for not identifying "winners and losers" is less compelling where the complainant fails to attend a scheduled hearing than where the complainant has his "day in court" and loses. However, the Board is not persuaded to depart from the Board practice and declines to award costs or set a figure to be paid before the complainant would be permitted to file a similar complaint. The Board is concerned with the impact of such an award where a complainant either fails to appear for legitimate reasons or seeks subsequently to file what would be considered a meritorious complaint.
In this case, the Board would comment that the respondent and the intervener expressed concern that the complainant would simply seek to relitigate the issue and/or file further frivolous complaints. The Board notes that the substance of the instant complaint dealt with the alleged improper abandonment, in January, 1981, of a grievance filed on behalf of the complainant in July, 1980. Indeed, the intervener had, in its formal intervention, requested dismissal of the complaint on the grounds of delay; that request was not dealt with at the hearing as the complainant did not attend. In declining to award costs in this complaint, the Board is in no way condoning the complainant's failure to appear at the hearing. It is not just the parties who have incurred costs in these proceedings; the Board and the public have also been put to significant expense in convening a hearing in Sault Ste. Marie, where the complainant resides, only to have the complainant not even attend that hearing. The Board, however, considers that the Board's control over its practice and procedure [section 102(13) of the Act] and its authority to dismiss a complaint without a hearing [Rule 711 are sufficient to prevent abuse of the Board's processes should the spectre feared by the respondent and intervener actually arise. (See also: Amalgamated Clothing & Textile Workers Union Local 1414J, [1983] OLRB Rep. Dec. 1947; Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320.)
For the foregoing reasons, then, this complaint is dismissed but without costs.