Ontario Labour Relations Board
[1985] OLRB Rep. December 1802
0186-84-JD Spruce Falls Power and Paper Company Limited, and Kimberly-Clark of Canada Limited, Complainants, v. International Brotherhood of Electrical Workers, Local 1149 and Local 89, Canadian Paperworkers Union, Respondents
BEFORE: N. B. Satterfield, Vice-Chairman, and Board Members C. A. Ballentine and R. J. Gallivan.
APPEARANCES: D. K. Gray and J. Mon geon for the complainants; S.B.D. Wahl, G. Ryan, and Win. Moore for International Brotherhood of Electrical Workers, Local 1149; W Dubinsky, Peter Pellow and Louis Hachey for Local 89, Canadian Paperworkers Union.
DECISION OF THE BOARD; December 4, 1985
The name: "Canadian Paperworkers Union, Local 89" appearing in the style of cause as the name of one of the respondents is amended to read "Local 89, Canadian Paperworkers Union".
This complaint was filed on April 18, 1984 and hearings were first held on July 11th, 12th and 13th, 1984. 16 days of hearings have been held to date before a different panel of the Board than herein, with the sixth witness in these proceedings currently being examined. A further six days of hearings had been set when the proceedings last were adjourned. 59 exhibits have been filed.
During the adjournment the employer member of the Board hearing the complaint has become too ill to continue sitting. Thus, the Board and the parties are faced with the problem of whether these proceedings can be continued in circumstances where one of the Board panel is unavailable.
The parties attempted unsuccessfully to resolve either the procedural issue or the merits of the complaint. There was no consensus for the Board to substitute another member for the incapacitated member. On October 22, 1985 the parties made able and comprehensive submissions to the Board herein on the options available for dealing with the dilemma. The Board intends only to summarize the parties' submissions to show their main thrust, but it has reviewed and considered carefully their full submissions.
The complainants were prepared to consent to the Board substituting another member for the incapacitated member and continue the proceedings from the point at which they were adjourned. That consent was premised on the complainants' understanding that the Board itself believed that it did not have jurisdiction to substitute in that manner without consent of the parties. The respondent International Brotherhood of Electrical Workers, Local 1149 ("the IBEW") also agreed to replacement of the one panel member by another Board member and continuation of the proceedings. The respondent Local 89, Canadian Paperworkers Union, ("the CPU") would agree to substitution and continuation only if substitution was made for the employee representative as well so not to "imbalance" the panel.
Complainants' counsel takes the position that the Board should not substitute, absent consent of the parties, unless it is secure enough in its jurisdiction to do so that it would not be at risk of being overturned on judicial review. Counsel argues that the Labour Relations Act does not give the Board clear power to substitute one member for another where a panel is seized with the proceedings before the panel. Therefore, were the Board to attempt to do so, it would be violating the principle of he who hears must decide. The current law in that respect, counsel submits, is Re Consolidated-Bathurst Packaging Ltd. and International Woodworkers of America, Local 2-69 and O.L.R.B. 85 CLLC 14,031. The CPU adopts the complainants' position and expands upon it by arguing that the Board should not substitute for one Board member of a panel without substituting for the other. IBEW counsel argues that the Board's mandate under the Act must be carried out in the spirit of the principle that labour relations delayed is labour relations denied and the Act must be interpreted in the same spirit. Accordingly, when section 102(13) is read in that context together with section 102(7) and subsections 1 and 11 of section 102, it is reasonable to construe the Board's discretion under section 102(13) to decide its own practice and procedure, as being broad enough to allow it to substitute a member of a panel in the present circumstances. IBEW counsel also argues that it would be a denial of natural justice for the Board either to substitute both the employer and employee representatives on the panel when only the employer representative is unable to continue, or to begin the case again after 16 days of hearings because of the attendant expense, delay and inconvenience which would be inflicted on the parties.
The Labour Relations Act, unlike provisions contained in the Courts of Justice Act,1984, S.O. 1984, c. 11 and the Canada Labour Code, does not contain any provision which would enable the Board to replace a member of a panel who is unable to complete his or her duties because of illness or, for that matter, death. The only subsection directly on point in the Labour Relations Act is section 102(7) which on its clear wording only deals with those situations where a Board member resigns but is still capable of sitting. The subsection authorizes that member to continue to sit and to fulfill any outstanding duties or responsibilities, but that provision cannot be construed as giving the Board the power to deal with the situation confronting it herein. The Board is quite clear that, absent consent of the parties, it has no jurisdiction to make the substitutions proposed by the complainants and the IBEW or the CPU.
In the Board's view, the lack of such a provision in the Labour Relations Act must mean that the Board has no jurisdiction either to substitute for the incapacitated member of the panel in the midst of the proceedings, or to continue and complete the proceedings with the two remaining members. Therefore, the Board directs the Registrar to list this complaint for hearing de novo before a new panel of the Board.