Pebra Peterborough Employees Association v. Pebra Peter-borough Inc.
[1987] OLRB Rep. March 421
3128-86-R Pebra Peterborough Employees Association, Applicant v. Pebra Peter-borough Inc., Respondent v. National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (C.A.W. - Canada), Intervener
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members G. O. Shamanski and R. Wilson.
APPEARANCES: Robert R. Reid, Linda Barry-Hollowell, Don McLean, Darlene Van Volkenburg, Heather Hamilton and Sandra Rutherford for the applicant; D. I. Wakely, M. Failes, E. Jiskoot and D. MacDonald for the respondent; L. A. MacLean and Maureen Kirincic for the intervener.
DECISION OF THE BOARD; March 31, 1987
1This application for certification came on for hearing in Toronto on March 6, 1987. At the request of the intervener, the Board made an order excluding witnesses, excepting one adviser of each party. Applicant's counsel indicated that Mr. Don MacLean would be his adviser, respondent's counsel retained Mr. D. MacDonald as his adviser, and Joanne Meed remained in the room as adviser to counsel for the intervener.
2The Board then dealt with, as a preliminary matter, the respondent's assertions that the intervention filed by the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (C.A.W. - Canada) lacked particulars. By letter dated March 3, 1987, counsel for the respondent demanded specified particulars of certain of the allegations contained in Schedule "A" to the intervention. Counsel for the intervener responded in two letters, both dated March 5, 1987, and orally on the morning of the hearing. Counsel for the respondent was not satisfied with these responses and asked that the Board either strike out the allegations or direct that further particulars be provided. We now reiterate the ruling made orally at the hearing.
3Both Rule 72 of the Board's Rules of Procedure and Section 8 of the Statutory Powers Procedure Act require that particulars of allegations of misconduct be given in a timely manner to the party which is alleged to have acted improperly. This requirement is based on both legal and labour relations considerations. The legal consideration is a recognition of the rule of natural justice that a party against whom the allegations of wrongdoing are made must have sufficient notice of them to enable it to know and prepare for the case that it must meet. The labour relations consideration is that there be no prejudicial delay in the proceedings (see Trigiani Contracting Ltd., [1979] OLRB Rep. Feb. 141). Where an allegation made in any document filed with the Board is not sufficiently particularized, the Board may, when requested, either strike out that allegation or direct that further particulars be provided. Further, evidence of facts or circumstances that have not been included or sufficiently particularized in a document filed with the Board may not be adduced at the hearing of the matter to which they relate except with consent of the Board and then only upon such terms as the Board considers appropriate.
4On the other hand, the Board's approach to "pleading" is more lenient than that of the courts. Consequently, the Board will not usually strike out an allegation unless it is so lacking in particulars or so untimely that the party whose conduct is being complained of is so prejudiced that the allegation cannot properly be entertained in light of the legal and labour relations foundation for the requirement of particulars. In the Board's view it was not appropriate to strike out any of the allegations in the intervention or subsequent correspondence. However, we did agree that further particulars were required.
5In considering the sufficiency of allegations, the Board considers whether or not they substantially identify the offences alleged and the acts or omissions complained of; whether the information requested is really required by the party requesting it; the knowledge or availability of knowledge possessed by the parties of the alleged improprieties; whether what is being requested is really evidence rather than particulars (though particulars may reveal evidence or names of witnesses); the apparent purpose for the demand for particulars; and, the general nature and circumstances of the improprieties alleged. Having regard to those considerations, to the material before us, and the representations of the parties, we directed that the intervener provide particulars to Schedule "A" of its intervention as follows:
(a) the name of the employee, if known, and the dates, approximate times, and places of the meetings referred to in paragraphs 10 and 11; and
(b) the date, approximate time, and place of the meeting referred to in paragraph 12; and
(c) with respect to paragraphs 17 and 19, the dates that it is alleged that Mr. MacLean and his three associates (as named in the intervener's response to the demand for particulars) were authorized entry to the respondent's plant at a time during which they were not scheduled to work and the purpose for which it is alleged such entry was granted or gained; and
(d) the date, the approximate time, the place, and the name of the employee to whom it is alleged Mr. MacLean made the comment attributed to him in paragraph 21.
6We further stated that the intervener is free to further particularize its allegations if it sees fit to do so, and that the intervener will be strictly held and limited to those allegations which it properly particularizes. In response to a concern expressed by counsel for the respondent, we stated that we had not ruled either that the intervener could make new allegations of improper conduct or that it could not do so, but that any such issue is properly dealt with by the panel hearing the application.
7The intervener was also directed to deliver to the applicant and the respondent, and to file with the Board, an amended Schedule "A" which incorporates, and indicates by underlining, both the particulars already given and to be given by March 25, 1987.
8The matter was then adjourned and, in consultation with the parties, the Board scheduled the hearing of this application on its merits to commence on April 1, 1987 and to continue on April 2, and 21, 1987 in its Board Room, 6th Floor, 400 University Avenue, Toronto, Ontario, M7A 1V4 at 9:30 a.m.
9This panel is not seized.