Ontario Labour Relations Board
[1985] OLRB Rep. May 760
2360-84-U Michael Baranowski, Complainant, v. Teamsters Union Local 938, and TNT Canada Inc. carrying on business as TNT Railfast, Respondents
BEFORE: Harry Freedman, Vice-Chairman.
APPEARANCES: A. W Klvmko and Michael Baranowski for the complainant; L. Bertuzzi, R. Wilson, C. Roberts for the respondent TNT Railfast; Ken Petryshen and Jim White for the respondent Teamsters Union Local 938.
DECISION OF THE BOARD; May 13, 1985
- The Board issued the following oral decision at its hearing on May 7, 1985:
This is a complaint under section 89 of the Labour Relations Act, alleging a violation of section 68 of that Act.
The complainant has added TNT Canada Inc. carrying on business as TNT Railfast as a party respondent. TNT Canada Inc. purchased Interline Forwarders in October of 1983. The complainant was dismissed from his employment with Interline Forwarders in April of 1983. The respondent union advised the complainant in May and June of 1983 that it was not going to pursue the issue of his discharge through to arbitration. This complaint was filed with the Board on November 27, 1984 and named only the union as a respondent. The respondent TNT was not added as a party to this proceeding and did not receive notice of this proceeding until March of 1985.
The first hearing in this matter, which came before another Vice-Chairman of the Board, dealt with the union's preliminary submission that the Board should exercise its discretion to refuse to entertain the complaint because of the extreme delay from the time the complainant's cause of action arose to the time the complaint was filed with the Board. The Board dismissed the union's preliminary motion for reasons set out in its decision dated January 29, 1985.
When this matter came before me, the respondent TNT submitted that the complaint, insofar as it seeks a remedy against TNT, ought to be dismissed because of the unreasonable delay of the complainant in seeking a remedy against it. TNT was not ever the employer of the complainant. It purchased Interline Forwarders, the former employer of the complainant, in October of 1983, some five to six months after the complainant was dismissed from his employment. The two management people who were employed by Interline at the terminal where the complainant had worked prior to his dismissal left their employment, one in the summer of 1983, and the other left the employ of TNT in June of 1984. The respondent TNT claims it is prejudiced by the length of time that has passed in this matter.
The complainant's explanation for the delay is that he went to see a lawyer in July of 1983 who did nothing for him. He left that lawyer in December 1983. He took no active steps to pursue the matter of his discharge from Interline with either the respondent union or the respondent TNT until some time in the summer of 1984, when he came to the Ministry of Labour, received some information about the collective agreements between the Teamsters and Interline and some information about the Labour Relations Act. He also went to legal aid and then subsequently retained his present legal counsel.
It is clear to me that the delay in proceeding against the respondent TNT is approximately 21 months. That delay is extreme.
The Board in Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan. 113 held that a delay of some 30 months was extreme. In my view, so is 21 months. In that case the Board said at page 116-7:
A delay of the present magnitude carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending.
In this case, neither Interline nor the respondent TNT had notice that the complainant was seeking any relief against it until it was added as a respondent in March of 1985.
In the earlier decision in this matter, the Board stated at paragraph 15:
In determining whether there has been excessive delay in filing complaints under this section, Boards [sic] have considered the complainant's reasons and any potential prejudice to the respondent. Prejudice is viewed in terms of adverse effects on the respondent's defence or on its bargaining relationship. Where significant prejudice to the respondent could result, the onus shifts to the complainant to produce compelling labour relations reasons for the delay: Sheller-Globe of Canada Limited, [1982] OLRB Rep. Jan. 113.
[emphasis added]
I am satisfied that there is a significant degree of prejudice to TNT, who may be called on to explain the actions taken by persons who were not its employees at the time of the incident in question and who are no longer its employees now. I am persuaded that those factors, together with the undeniable prejudice described by the Board in the Sheller-Globe case requires the complainant to come forward with compelling labour relations reasons for the delay in seeking relief against the respondent TNT.
The complainant has not done so. The complainant retained counsel, who was not counsel before me, shortly after he was dismissed from his employment with Interline. At that point, some legal process against his former employer could have been explored. No steps were taken by his counsel, because the complainant was not able to pay him. Almost a year passed after he had terminated his relationship with his first counsel before this complaint was filed with the Board, and another three to four months had passed before TNT was added as a respondent. The complainant's attempts to secure legal advice do not, in my view, provide compelling labour relations reasons for the delay in naming TNT as a respondent. My decision in this matter would have been the same had TNT been named as a respondent in November of 1984, since whether the delay was 18 or 21 months, it was extreme.
For these reasons, the claim for relief against the respondent TNT is dismissed.
The Board will, of course, in determining the appropriate remedy, if any, consider the submissions of the parties as to the nature and degree of the remedy in light of the complainant's delay in instituting this complaint against the respondent union and this ruling in dismissing the complaint as against the respondent TNT.
Following the Board's ruling in this matter, the parties agreed that this matter should be adjourned. Accordingly, having regard to the agreement of the parties, this matter is adjourned to a date to be fixed by the Registrar.
This panel of the Board is not seized with this matter.