Ontario Labour Relations Board
[1985] OLRB Rep. May 684
3319-84-U Gary Hopkins, Complainant, v. International Union, United Automobile, Aerospace and Agricultural Implement Workers of America, U.A.W, Local 199, Respondent, v. General Motors of Canada Limited, Intervener
BEFORE: Paula Knopf, Vice-Chairman.
APPEARANCES: Dan Toppari, Gary Hopkins. Alfred Hopkins, Ron Davis, Don Adams and Louis Dudzik for the complainant; L. A. MacLean, G. Michaud, John Washuta for the respondent; J. K. Cameron for the intervener.
DECISION OF THE BOARD; May 27, 1985
This is a complaint under section 89 of the Labour Relations Act in which the complainant alleges that he has been dealt with by the respondent union contrary to section 68 of the Act.
At the commencement of the proceedings, the respondent and the intervener raised the preliminary objection regarding the timeliness of the complaint. The Board was asked to exercise its discretion under section 89 to refrain from enquiring into the merits of the complaint because of the length of time in bringing the complaint before this Board. In light of this submission, the Board entertained evidence and submissions with regard to the question of delay.
The background to the proceedings was outlined in Schedule A to the complaint. Counsel for the respondent and the intervener were prepared to accept the allegations in the complaint as factual solely for the purposes of argument on the issue of delay. These facts reveal the following. In the latter part of 1973, the complainant was suspended from employment. He filed a grievance which was resolved by the Union and the Company with him being reinstated with time lost to be considered as a penalty. In addition, his employment was agreed to be "solely at the discretion of management for a period of one year following his reinstatement. He then returned to work after recovering from a car accident in September of 1974. He objected to the work assigned him upon his return and instructed the union to file a grievance about this. This was followed by a series of absences and re-attendance at work in which he continued to complain about the job which was assigned to him, alleging that he was physically not capable of doing the work.
On or about November 4, 1974, the complainant had a conversation with a Mr. J. Copeland who is the Company's labour relations representative. While there is some factual dispute about what Mr. Copeland told the complainant, it is the complainant's evidence that he was advised to present himself to the Company's doctor the following day for an examination. The complainant denies that he was also told that failure to do so would result in his termination. However, in any event, it appears that the complainant was then seen the next day by his own personal doctor in the absence of the Company doctor when he presented himself. The following day he received a notice of discharge with the reason given that he was an undesirable employee.
A grievance was filed against the discharge on November 7, 1974 by the Union. The Union and the Company held a meeting regarding the grievance on November 13, 1974. The complainant is unable to advise the Board as to what occurred with the grievance other than the fact that the case did not proceed to arbitration and he received no compensation or reinstatement. The complainant alleges that at no time did he indicate to the Union or the Company that he was content or would consent to the grievance being discontinued without redress to him.
It is clear that the complainant did not let the matter drop. He made several contacts with various representatives of the Union between 1974 and 1978. However, by 1978, he was told by the Union that they considered his case as a dead issue and that he was history. Further, it was made clear to him that the grievance would not be carried any further by the Union.
From 1978 onward, the complainant attempted to pursue the issue of his discharge through several lawyers. The first lawyer he contacted did not follow through with his case. In April of 1979 he attempted to obtain another lawyer. This too failed. In the fall of 1979 he contacted a third lawyer who advised him by letter dated March 26, 1980 that he was too busy to act for the complainant. It seems that he saw a number of other lawyers who either did not know how to proceed against the Union or felt that by the time the case had been brought to them too much time had passed for them to be able to bring a successful case. In the complainant's own words no one was too impressed to take up the flag on this issue because of the delay.
In 1982, the complainant was still seeking redress. He approached Mr. John Clout who was at that time the new Chairman of his Local. At the complainant's request, Mr. Clout obtained documentation regarding the original case. He advised the complainant that he could pursue an appeal to the Union's international body and he suggested that the complainant consult a lawyer. He even agreed to set up the appointment with the lawyer for the complainant. The lawyer who was suggested was a lawyer who had done advisory work for the Union in the past. This was Mr. Peter Elliot.
Thus, in late 1982 Mr. Elliot was engaged by the complainant to act against the Union. Mr. Elliot advised the complainant to draw up a summary of his case and to contact both the Union and the Company to obtain details about the case. Mr. Pat Clancy, the Sub-Regional Director of the Union, responded to the complainant's enquiries with copies of statements of the unadjusted grievance but indicated difficulties in finding out further about what had happened to the case because of the delay in time. He promised to forward any further information he could find. No further information was forthcoming from Mr. Clancy.
In any event, by late 1983, Mr. Elliot advised the complainant that the case was ready to be taken to the Labour Relations Board. However, shortly thereafter, the complainant discovered that Mr. Elliot was facing criminal charges and had been disbarred.
The complainant's file in Mr. Elliot's office was taken over by Mr. Garth Roberts who was appointed by the Law Society to wind up Mr. Elliot's law practice. When the complainant attempted to obtain his file, he was advised by Mr. Roberts that the file could not be located. In the next few months, the complainant contacted another three or four lawyers. None of them were prepared to take on the case.
The complainant then retained a lawyer some time in 1984 who indicated he was prepared to take on the case. He asked the complainant to prepare another summary of the situation. This took the complainant a few months. After having the file for approximately eight months, that lawyer advised the complainant that he had realized that one of his partners had previously worked for the Union and therefore was in a position of conflict of interest and could no longer act. That firm referred the complainant to his present solicitors who filed the complaint before this Board on March 12, 1985.
The position of the complainant is that the onus must be on the respondent to show that the delay has in some way prejudiced it from having a fair hearing. It was submitted on behalf of the complainant that that onus had not been met. Further, any delay ought to be attributable to the Union rather than the complainant. It was the complainant's position that because he and his lawyers had difficulty in getting information from the Union, they were unable to file a proper complaint until 1985. It was said that he needed to know where the grievance stopped, who handled the case, why it was dropped and who attended the grievance meetings in order to have sufficient information to draft a proper complaint.
The position of the Union was that the length of time that has passed since the issues in question arose is of such an extreme nature that it will be substantially prejudiced in the defence of the allegations. In particular, counsel for the Union stressed that there will be serious issues of credibility raised by the proceedings that cannot be properly determined because of the fading memories and lost documentation that would have been available had the complaint been made in a timely fashion. The Union argues that at best, the complainant's cause of action would have crystallized in 1978 when he was told by the Union that his case would not be pursued any further. It was submitted that no acceptable explanation has been given for any delay which occurred and that the Union has not been shown to be responsible for any of the delay. Counsel for the Union referred the Board to the following cases: Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 113, Caravelle Foods, [1983] OLRB Rep. June 875, Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417, and Stelco Inc., [1983] OLRB Rep. Dec. 2102.
Counsel for the intervener stressed that severe prejudice would result to the intervener if the case is allowed to proceed. It was pointed out that the relief requested was reinstatement with monetary compensation and that this would involve a potential monetary award involving approximating one quarter of a million dollars. However, the more substantial prejudice that concerned the intervener's counsel was the fact that one of the key players or crucial witnesses for the intervener was now dead. Mr. Copeland, who was the person who had the conversation with the complainant on the day prior to the dismissal and who was an important element in the intervener's case, was therefore unavailable. Even when counsel for the complainant then stated that he would be prepared to accept the intervener's version of the telephone conversation as originally stated by the Employer at the time of the grievance, counsel for the Company pointed out that prejudice would still occur because of the unavailability of Mr. Copeland. In addition, the problem of fading memories and difficulties in obtaining documentation would also prejudice the Company. It was submitted that the complainant's reasons for his delay ought only to be considered as excuses rather than as satisfactory explanations. Finally, counsel for the intervener stressed that the stability of the relationship between the Union and the Company would be seriously harmed if a dispute which was over ten years old could be reopened by the Board. It was submitted that this case does not raise any exceptional issues or matters of public policy which should entice the Board to enter into an enquiry on the merits under the circumstances of this case.
The Decision
When events which form the subject matter of a complaint under section 68 of the Act occur a long time before the complaint is filed, the Board can call upon the complainant to show cause why the Board ought to exercise its discretion under section 89 of the Labour Relations Act to hear the complaint. In such an enquiry, the onus is on the complainant to convince the Board that the complaint ought to be heard (Stelco Inc., supra).
It is true that the Act does not contain a strict limitation period for the filing of complaints under section 89. Surely this is to allow for the necessary flexibility in dealing with individual cases to ensure that justice is done to all parties. However, this Board has developed a clear jurisprudence which deals with the necessity of weighing the legitimate concerns of all members of the labour relations community. The Board's approach and its considerations have been described in The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 as follows:
It is by now almost a truism that time is of the essence in labour relations matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it — including the employees — are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts panics to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C. G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited (1966) 18 L.A.C. 51 (Arthurs)).
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 response 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.
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 year.
In the case at hand, one can be sympathetic with an individual's difficulty in obtaining competent legal advice and with the frustrations which must have resulted from relying upon a lawyer who was subsequently disbarred. The legal profession may not have served the complainant very well. However, this Board has said many times that the respondent cannot be made responsible for any omissions or negligence on the part of the complainant's own agents. See Sheller-Globe of Canada, Ltd., supra and Chrysler Canada Limited, supra.
The situation might have been different if the evidence established that the delay could be attributable to the Union itself. However, the evidence in this case does not establish that. The complainant's evidence was that in 1982 his Local's president, Mr. Clout, had provided him with information and directed him to a lawyer to represent his interests. There is no evidence that any further information was required in order to file the complaint. While counsel for the complainant has suggested that further information was required in order to properly draft the complaint, this cannot be accepted. None of the details which counsel for the complainant listed above in paragraph 13 as necessary are in fact included in the complaint that was ultimately filed in this case. Further, there are no individuals named as respondents in this case so the names of further individuals were not necessary. The evidence also did not indicate that any of the lawyers consulted by the complainant indicated that their difficulty in pursuing his case was based on a lack of information. Instead, they indicated that their difficulty had to do with the delay which faced them as early as 1980. If any information had actually been required, it could have been obtained through the launching of the section 89 proceedings themselves. There are remedies available to any party with respect of absences of particulars in complaints before this Board. However, this cannot and does not prevent a timely application from proceeding when it is properly launched.
The information before this Board indicates that the cause of action against the Union, if any, crystallized, at the latest, in 1978. It was at this time that the complainant admits that he was definitively told by the Union that it did not intend to pursue his discharge grievance any further. It was at this time that he knew that he could expect no further assistance from the Union and it is also clear that he knew that he felt that the Union was failing to represent him properly. But, even if the Board were to accept that it took the complainant until 1982 to obtain the necessary information to realize that he had a proper claim against the Union, the only explanation for the delay since that time is the difficulty he had with lawyers.
Therefore, taken at its best, the complainant's case involves a delay of three years before the complaint was lodged. Taken at a middle ground, there is a delay of seven years from the time that the cause of action crystallized in 1978. In addition, taken at its worst, the complaint dates back to events which occurred as long ago as 1973.
In order to do justice to all the parties concerned, there is no way that the complaint could be heard without enquiring into events which date back to 1973. The Board was advised of the prejudice which would face the intervener as a result of the death of Mr. Clout. Further, the Board was advised by counsel for the Union that the necessary documentation that the Union might have been able to present has now been lost. In addition, it is inevitable that the lengthy delay will create significant difficulties with regard to fading memories. As the Board has stated in the Sheller-Globe Canada, Ltd. case, supra:
[a] delay of the present magnitude [2 years and 7 months] carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence with deteriorate for that reason alone It might be noted parentheticalty that the Labour Board, in administering the Labour Relations Act, is primarily concerned with the ongoing labour relations of a workplace, and such workplaces do not remain static over time. The Board as a result 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 concessions to damages. In circumstances such as the present, the onus shifts to the 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.
No matter whether the Board considers 1982 or 1973 as the date to start the time clock for assessing the delay, the delay can only be considered as extreme. In these circumstances, if the complaint were to be reopened, it is impossible to see how the parties to any collective agreement could consider grievance resolution to be stable if they feared that their mutual resolutions could be reopened as late of ten years later.
In light of the evidence and submissions made and the clear practice and jurisprudence of this Board, it must be concluded that the extreme delay in the filing of the complaint has resulted in the impossibility of having a fair hearing for all the parties and the substantial danger of disrupting the collective bargaining relationship between these parties and the labour relations community. While the Act certainly accords the individual rights to pursue against its union where the individual feels that there has been a breach of section 68, these rights must be asserted in a timely fashion to enable the Board to make a fair and just determination of the real issues raised by the complaint. In this particular case, that is now impossible.
For all these reasons, the complaint is therefore dismissed.