Ontario Labour Relations Board
[1986] OLRB Rep. February 247
1969-85-R; 2491-85-U Christian Labour Association of Canada, Applicant, v. Maplehurst Hospital Limited, Respondent, v. Group of Employees, Objectors; Christian Labour Association of Canada, Complainant, v. Maplehurst Hospital Limited, Respondent
BEFORE: S. A. Tacon, Vice-Chairman, and Board Members F. C. Burnet and H. Kobryn.
DECISION OF THE BOARD; February 24, 1986
1This is an interim ruling in the above matters which, on agreement of the parties, are being heard together.
2Firstly, the Board records the following oral ruling with respect to the respondent's objection to the first eleven allegations relied on by the applicant in seeking certification pursuant to section 8 of the Labour Relations Act. It was not disputed that those allegations objected to related to alleged events occurring prior to an earlier withdrawal of a certification request pursuant to section 8 of the Act:
The Board has heard and considered the submissions of the respondent and the employee objectors; the Board does not consider it necessary to hear submissions on this matter from the applicant. Firstly, the Board considers that no compelling reasons have been advanced for going behind the face of the memorandum of settlement, dated November 22, 1985. That settlement states that the section 8 application is "withdrawn". Further, the Board regards the reasoning in Comstock Funeral Homes Ltd., 11981] OLRB Rep. Dec. 1755 as applicable and, again, has heard no compelling reasons for departing from that analysis. Accordingly, the Board will permit the applicant to lead evidence in respect of those eleven allegations for the limited purpose of establishing a pattern of unlawful activity, of anti-union animus. The applicant has acknowledged, in accordance with the reasoning in Comstock, supra, that the evidence in respect of those eleven allegations may not be utilized for the purpose of seeking redress for the alleged unlawful activity cited therein.
3It is appropriate to here set out the following passage from Comstock, supra:
- The Board's approach to this situation can be seen in the case of Crafihine Industries Limited, [1977] OLRB Rep. April 246. There it was the respondent employer who was asking the Board to draw an inference from the fact that several previous complaints against it had been either settled or withdrawn. The Board commented on that submission and as well on the extent to which evidence common to both the prior and current complaints was admissible, at paragraph 5:
The Board is not prepared to find that the complainant has engaged in an abuse of process by virtue of having filed a series of section 79 complaints against the respondent which have either been settled or withdrawn. The practice and procedures of the Board are designed to encourage settlement as an alternative to litigation. The parties are free to settle on whatever basis is mutually acceptable to them and in the circumstances of this case the Board is not prepared to infer that the previous complaints have been frivolous ones solely designed to force concessions at the bargaining table. The Board would point out, however, that the evidence adduced in respect to the prior complaints will be admitted for the limited purpose of establishing a pattern of unlawful activity and not for the purpose of gaining redress for the alleged unlawful activity.
The settlement of a complaint continues to be advantageous to a party for all the reasons one would normally contemplate settlement. But a party is not entitled to think that by the settlement of a particular complaint, it thereby obliterates the past, and can act thereafter with relative impunity. Rather, having avoided the time, expense and risks of litigation by the settling of a complaint, a party must recognize the possibility that future conduct of a controversial kind can force it to litigate its entire pattern of conduct to that point. This is especially so when its subsequent conduct is as predictably inflammatory as in the present case, and occurs within days of the preceding settlement. For the foregoing reasons, the Board ruled orally at the hearing that it would admit evidence of facts pertaining to the prior complaints on the basis set out in Crafihine. The parties then agreed to have the Board simply adopt its transcript of evidence from the prior proceedings.
4Accordingly, the Board hereby confirms its oral ruling.
5The applicant agreed to proceed first on all matters, notwithstanding the procedural impact of the alleged violations of section 89 of the Act. During cross-examination by the respondent of the applicant's first witness, the Board sought clarification of the relevance of the questions asked. With the witness excluded, the respondent indicated that it was the respondent's position that one of the six nurses terminated (B. Cummings) was discharged for cause (i.e. for not fulfilling her duties) and that the other five were terminated because the respondent felt that, given the union activities, the one nurse could not be dismissed without the respondent incurring very serious consequences. Counsel submitted the respondent felt the situation was out of control and something had to be done to protect the patients. Counsel acknowledged that, to the best of his recollection, Cummings had never received a warning regarding her alleged failure to properly perform her duties, although a general memo indicating various concerns had been posted by the hospital administrator, U. Corcoran, in September, 1985. The rehiring of two of the terminated nurses as supervisors, indeed the creation of that classification, was stated to be related to the respondent's desire to correct severe deterioration in the standard of health care. Counsel asserted there were also serious abuses regarding scheduling changes by the nurses which had to be corrected, although counsel denied that management had reduced the scheduled hours of work, at least intentionally. Finally, counsel confirmed that the reference to "layoff" in the letters of termination given the nurses was equivalent to discharge.
6Counsel for the applicant asserted that, as the respondent had never raised that ground for termination of the nurses, the respondent should not be permitted to do so now, especially given the earlier proceeding before another panel of the Board and extensive request for particulars of the applicant's allegations. Counsel also indicated she had asked the previous solicitor for the respondent (another member of the same firm now representing the respondent) about the respondent's position on the dismissals. Counsel stated the reply was that there were particular concerns regarding one instance where Cummings allegedly failed to treat a patient but no further details were provided, even after the applicant fully complied with the respondent's request for particulars.
7Counsel for the respondent asserted there was no prejudice to the applicant if the defence was raised at this time and that he would undertake to provide the applicant with full particulars, including documentation relied on, without delay. Counsel added that it would be unfair for the Board to preclude the respondent from asserting its explanation for the dismissals.
8Given the circumstances, including the time at which the matter arose, the Board reserved its ruling but undertook to provide a written decision as soon as possible so that the hearing could proceed on the dates already scheduled for continuation. In the interest of expedition, the Board has summarized counsel's positions and briefly sets out its ruling.
9A respondent or applicant/complainant against whom "counter" allegations constituting a violation of the Act are made is not required to file a written reply or otherwise state its position with respect to those allegations, except, of course, in response to an express request to do so from the Board, generally in the context of a hearing. Where the alleged violations trigger the "reverse onus" provision in section 89(5), the respondent proceeds first to lead its evidence to establish the reasons for the conduct being impugned. Where, for example, improper dismissal of employees has been alleged, the respondent must establish the reasons for the dismissal and that those reasons were the only reasons, that there was no anti-union animus in the decision to dismiss: see The Barrie Examiner, [1975] OLRB Rep. Oct. 745. In those circumstances, it may well be prudent for the employer to explicitly inform the employees dismissed of the reasons for discharge, and, indeed, to expressly note those reasons on its written reply. Nonetheless, as stated, that is not required so that the failure to do so would preclude the respondent from proferring its explanation for the dismissals at the hearing, through cross-examination and direct evidence of its own witnesses.
10Accordingly, the Board will permit the respondent to adduce evidence with respect to the employer's motivation in dismissing the nurses, in particular, and in response to the other allegations of impropriety, in general. The Board notes the respondent's stated intention to provide, without delay, details and documentation with respect to its position to the applicant. Such exchange should facilitate the conduct of the hearing, particularly given the applicant's agreement to proceed first. With respect to the stage in the proceedings at which the issue arose, the Board considers that the applicant's right of reply with the witness N. Wright is sufficient to cure any prejudice arising from the applicant's agreement to proceed first with its evidence.
11Thus, when the hearing is reconvened, the respondent will be permitted to proceed with its cross-examination of Wright including with respect to elucidating the respondent's reasons for dismissing the nurses.