[1987] OLRB Rep. September 1178
1445-85-U United Brotherhood of Carpenters and Joiners of America, Local 27, Complainant v. Labourers' International Union of North America, Local 183, Respondent v. Toronto Housing Labour Bureau and Bramalea Limited, Intervener #1 v. Presidential Group Limited and Presidential Group (Brookshire) Limited, Intervener #2
BEFORE: Thomas S. Kuttner, Vice-Chair, and Board Members W. H. Wightman and W. F. Rutherford.
APPEARANCES: Harold F. Caley, David A. McKee and Tony Ianuzzi for the complainant; C. M. Mitchell for the respondent; G. Grossman and G. Lavis for the Toronto Housing Labour Bureau; M. Patrick Moran and Stephen Hall for Bramalea Limited; Paul Young and Marty Schmerz for intervener #2; Richard J. Charney and Karl Mallette for the Metropolitan Toronto Apartment Builders Association.
DECISION OF THE BOARD; September 14, 1987
Ought the Board to entertain a section 89 complaint, the substance of which is already the subject of complaint proceedings pending before it - and one moreover, arising from facts and circumstances long known to the complainant but concerning which it has chosen not to press for remedy? That is the issue before us for determination. It calls for consideration of principles fundamental in our law, ancient and venerable of lineage: nemo debet bis vexari pro una et eadem causa -"no man ought to be twice troubled or harassed for one and the same cause"; interest reipublicae ut sit finis litium - "it is in the public interest that there be an end to law suits".
The principal matter is comprised of a complaint filed pursuant to section 89 of the Labour Relations Act in which the complainant, United Brotherhood of Carpenters and Joiners of America, Local 27 ("Local 27") alleges breaches of sections 3, 64, 67(2) and 72 of the Act by the respondent, Labourers' International Union of North America, Local 183 ("Local 183"). The issue here dealt with arises by way of preliminary motion first made by Mr. Mitchell on behalf of Local 183, and echoed unanimously by the several interveners, that the Board dismiss this complaint summarily without further proceeding. The parties have earlier been advised by the Registrar that we are of the view that this motion must be sustained, and this for reasons that here follow.
The issue, although a straightforward one, arises out of circumstances of some complexity and in the context of a lengthy series of interrelated applications, complaints, counter-applications and counter-complaints, charges and counter-charges filed over a period of many years by the two principal parties to the instant proceedings and in which recourse to the many remedial provisions of the Act has been had - section 1(4), section 89, section 91 and section 124. Since 1981, the parties have been involved in a bitter dispute, each seeking to assert hegemony over the work of framing carpentry in the residential housing sector of the construction industry. It is a dispute at its root representational in nature as each has sought to gain exclusive bargaining rights for the employees of the many building contractors engaged in residential framing work - a sector largely unorganized prior to this decade. It is a dispute characterized by great acrimony and recrimination. It is a dispute many of the battles of which have been, are in the process of being, or will in the future be, fought in hearing rooms before this Board. It is a dispute characterized by two recurring themes: a relentless attack by Local 183 on bargaining rights earlier asserted by Local 27, or its predecessor United Brotherhood of Carpenters and Joiners of America Local 1190 ("Local 1190"); and a bitter counterattack by Local 27 of the linchpin of Local 183's drive to dominate residential framing - the subcontracting clause it has successfully negotiated with employers, builders, developers and owners, the effect of which has been to squeeze out of framing work those contractors whose employees are represented by Local 27.
The saga begins in the summer of 1981 with the filing of a great number of competing applications for certification by both locals seeking bargaining rights for the employees of a variety of contractors engaged in framing carpentry within the residential sector. These various applications were consolidated and put down to be heard together in a single proceeding which, by convention before us, the parties have referred to as the Montemar certification proceedings. Hearings were extremely drawn out and extended from the summer of 1981 to that of 1983 at which time Local 1190 withdrew, both as applicant in their own applications for certification and as intervener in those filed by Local 183. But much had occurred in the interim. The Montemar certification proceedings were dominated by a host of allegations made by Local 183 of misconduct on the part of both the respondent employers and Local 1190 whether as applicant or as intervener. These reached their apogee with the filing in May 1983 of a section 89 complaint of unfair labour practice filed by Local 183 against Local 1190 and sundry other parties (Board File 0320-83-U) alleging breaches of sections 13, 48 and 64 of the Act, the particulars of which were drawn from evidence adduced in the Montemar certification proceedings. In addition, Local 183 sought the rescission and revocation by the Board of all certificates granted to Local 1190 within the residential sector of the housing industry from June 1981 to that date. Some 70 certificates were so impugned.
Faced with that onslaught, Local 1190 was quick to retaliate, and on June 15, 1983 filed its counter-complaint under section 89 of the Act against Local 183 and the employers and employer associations with which it had a bargaining relationship governing framing carpentry within the residential sector, asserting breach of sections 48, 64, 66, 67 and 70 of the Act (Board File 0554-83-U). Now, although it was there alleged that Local 183 had, in certain circumstances, entered into collective agreements without first establishing as a foundation, bargaining rights for the employees affected as required by the Act, such allegation was desultory at best. (In any event this was an allegation which would have been answered by the Board's holding of the pre-hire agreement as legitimate in Nicolls-Radke and Associates Limited, [1982] OLRB Rep. July 1028 and that line of cases.) The focal point of Local 1190's complaint was something quite different - namely, the subcontracting clause found as a principal feature in each of the collective agreements which Local 183 had entered into with the various employers and employer organizations engaged in carpentry framing work within the residential sector, the effect of which was to limit such work to those contractors having a bargaining relationship with Local 183. The relief sought was that the collective agreements referred to be declared null and void or, alternatively, that the subcontracting clauses therein contained be so declared and so to be of no force and effect. Thus, in response to the attack on the integrity of its bargaining relationships premised on a failure on its part to hold bargaining rights for the employees of those employers with whom it claimed a bargaining relationship, Local 1190 likewise attacked the integrity of the bargaining rights asserted by Local 183, but by impugning the validity of the subcontracting clauses through which it had aggrandized for itself an ever-expanding share of framing carpentry work in the residential sector.
Meanwhile, hearings in the Montemar certificate proceedings were ongoing before a panel chaired by Vice-Chair Furness and these were scheduled for continuation on June 23, 1983. Counsel for Local 183 had sought the consolidation of its section 89 complaint (Board File 0320-84-U) with those proceedings and although the Board has acceded to that request, it was determined on that date to consider the two matters seriatim particularly in light of the fact that the section 89 complaint had only been filed well after the certification proceedings had been underway. A further complication was the ongoing strike called by Local 1190 against the contractors for those employees it held bargaining rights, a strike which Local 183 asserted was called in collusion with those contractors in order to undermine its organizational drive within the sector. In point of fact, the certification proceedings, which it had been thought would extend well into 1984, were unexpectedly brought to a close by the earlier noted withdrawal by Local 1190 in November 1983 of its own applications for certification and its interventions in those of Local 183. That turn of events resulted in the grant of further certificates to Local 183 with respect to a large number of contractors. The Furness panel never did commence hearings in the section 89 complaint filed by Local 183 because of an accommodation reached between it and Local 1190 and to which we now turn.
Hearings in Local 1190's section 89 complaint against Local 183 (Board File 0554-83-U) were scheduled to commence in early June 1983 before a panel of the Board chaired by Vice-Chair Burkett. In a preliminary ruling later reduced to writing (unreported, July 11, 1983) that panel of the Board rejected the preliminary motion made by Local 183 that the complaint be dismissed for failure to make out a prima facie case. That ruling was in the following terms:
Oral Ruling
We are not prepared to dismiss this complaint, which alleges in part that the no employer support provisions of section 48 of the Act have been breached and further, that the entering into of the subcontracting clause at issue was designed to interfere with the organizing, certification and collective bargaining of the complainant trade union, on the grounds that there is no prima facie complaint made out. Where it is alleged, as in this case, that the respondent Labourers' International Union of North America, Local 183, as bargaining agent for a number of residential home builders (who do not directly employ carpenters) has entered into a collective agreement with the builders that provide a preference in the subcontracting of carpentry work to carpenter contractors who are in contractual relations with the Labourers Union, at a time when there is ongoing competition between the Labourers' Union and the Carpenters' Union in respect of the bargaining rights of carpenters and carpenters' apprentices employed in residential home building by these carpenter contractors, we are not prepared to find that there is no prima facie case made out.
This matter will be decided by the Board after the parties have called their evidence and the Board has the benefit of full argument. Having said this we acknowledge that on its face, other than for the fact that the union on whose behalf the subcontracting clause operated in The Metropolitan Toronto Apartment Builders Association, [1978] OLRB Rep. Nov. 1022 case had a craft claim to the work, this complaint is difficult to distinguish from The Metropolitan Toronto Apartment Builders Association case supra and therefore, in the end the Board may be called upon to either reaffirm, modify or overrule it.
We are satisfied that the complainant, as a union with craft jurisdiction over carpentry work, as a union attempting to organize carpenters of carpentry contractors operating in the residential home building sector, and as a union holding bargaining rights in respect of the carpenters employed by a large number of such contractors has status to bring this complaint.
Given the surrounding circumstances we are not prepared to find that the complaint, or any part of it is untimely and, therefore, should not be heard. However, the delay in responding to the events complained of in paragraphs 1, 2 and 3 of Schedule B may affect remedy.
This is a matter in which the complainant will proceed first. The Board will entertain submissions at the conclusion of the case as to where the legal burden falls.
It is worthy of note that among those on whose behalf appearances as named respondents were entered in those proceedings were several of the interveners to the instant proceedings including Bramalea Limited, the Toronto Housing Labour Bureau, and the Metropolitan Toronto Apartment Builders Association (which has since withdrawn here). The proceedings proper commenced with the calling by Local 1190 of its principal witness, Mr. Weller, who testified, inter alia, to the extent of the bargaining rights held by Local 1190 in the residential home building sector. It is to be recalled that Local 183 had earlier in the Montemar certification proceedings and in its own section 89 complaint, already filed but not yet heard, sought to attack the validity of those bargaining rights. In the section 89 complaint proceedings before the Burkett panel, Local 183 continued with that offensive, but now raising the same issue as a defence to the allegations made against it. The Burkett panel ruled that such was a valid defence and could be pursued by way of cross-examination of Mr. Weller. However, Local 183 could do so effectively only on observance by Mr. Weller of the provisions of a subpoena duces tecum which Local 183 had only succeeded in serving on him on the date set for its cross-examination of the witness. Compliance with the ruling of the Board to that effect, reached only after lengthy wrangling between the parties, could only be obtained by the grant of an adjournment, and such was given.
The case was scheduled for further hearing in mid-November, 1983 but those continuation proceedings never took place. It is to be recalled that at that time Local 1190 withdrew from the Montemar certification proceedings, and fast on the heels of that development, the two locals reached an accommodation regarding the respective section 89 proceedings each had filed against the other. By letters dated November 15, 1983 counsel for each advised the Board of their agreement to adjourn Board Files 0320-83-U and 0554-83-U sine die. The Board, in accordance with its normal practice granted the adjournments sought on November 18, 1983 on the following terms:
Having regard to the agreement of the parties, the Board hereby consents to adjourn this complaint sine die, for a period not exceeding one year. Unless within that time, the parties request that the Board proceed with the matter, it will be terminated.
Insofar as File 0554-83-U was concerned, there matters lay dormant for close to a year, when, on November 8,1984 Local 1190 requested, by letter addressed to the Registrar of the Board that there be a resumption of hearings in its section 89 complaint. That request was never acknowledged by the Board, nor did it list the matter for continuation of hearing. We return to that complaint later in this recitation of events.
Now, although there was a moratorium on the section 89 complaint front, no general cease fire had been declared in the war for ascendancy in carpentry framework within the residential sector, and indeed the struggle went on unabated. The terrain however changed, as the parties moved from the simple filing of complaints under section 89 of the Act to a more varied strategy, with Local 183 seeking to enforce its no subcontracting clauses to the exclusion of Local 1190 by the referral to arbitration under section 124 of grievances for alleged breaches thereof. This was often coupled with the simultaneous filing of applications seeking relief under the provisions of section 1(4) of the Act and further complaints under the provisions of section 89. Local 1190 was as active in the pursuit of its objectives seeking recourse in those same provisions of the Act and as well in the self-contained "code" governing the resolution of jurisdictional disputes as contained in section 91 of the Act. The number of applications and counter-applications filed pursuant to these various provisions of the Act over the next several years is quite formidable. Many were settled, withdrawn, or simply not proceeded with. Others were more vigorously prosecuted and these we highlight here. It is important to recognize that underlying all of these proceedings was a common objective and unifying theme - the assault of the integrity of the bargaining relationships each of the protagonists was attempting to maintain and expand. Of particular relevance for our purposes was the continual and unabated assault by Local 1190 on Local 183's principal instrument for solidifying its position within the residential framework sector - the subcontracting clause as found within its collective agreements. Like a recurring refrain, Local 1190 sought in its many applications a declaration that either the underlying collective agreement, or at least the no subcontracting clauses therein contained should be declared invalid, void and of no effect. We turn to the principal applications filed.
In March, 1984 Local 1190 filed two related applications, a section 1(4) against three contractors, Attica Investment Inc., TIA Fairbank Carpentry, and E. & R. Carpentry Inc., (Board File 2984-83-R); and a section 89 complaint against Local 183 (Board File 2985-83-U). The section 1(4) matter was settled to the satisfaction of all parties concerned, and the section 89 complaint withdrawn by Local 1190. Now although Local 1190 there did not directly attack the subcontracting clauses found in the Local 183 collective agreements, both Attica and E. & R. Carpentry filed replies seeking the same declaration of nullity which we have seen in earlier Local 1190 applications. As noted, however, these matters were resolved directly between the parties. This preliminary skirmish was followed by a series of more hotly contested applications commencing in the summer of 1984.
First of these was the filing by Local 183 of a Referral of Grievance to Arbitration under section 124 of the Act alleging breach by a contractor, Lakeview Estates of the no-subcontracting clause to which it was bound as a result of a so-called "pickup" agreement between it and Local 183 whereby the terms of the collective agreement between the Local and the Toronto Housing Labour Bureau became binding upon it (Board File 0985-84-M). Five days subsequent to the filing of that referral, Local 183 filed an application under the provisions of subsection 1(4) of the Act in respect of two contractors which it alleged were carrying on associated or related activities so as to constitute a single employer within the meaning of the statute - Montemar Construction Ltd., and Trimar Carpentry (Board File 1023-84-R). We are familiar with Montemar from the earlier certification proceedings and indeed Local 183 had been certified as bargaining agent for its employees engaged in frame carpentry work by Board certificate dated November 1,1983 (Board File 0746-81-R). Trimar was engaged as the framing carpentry subcontractor on the Lakeview site. (The Lakeview and Trimar matters, although dealt with separately by the Board, were in fact interrelated in the history of the two sets of proceedings.) In October, 1984 Local 183 filed a section 89 complaint against Local 1190, Trimar and Montemar (Board File 1736-84-U). That complaint and the section 1(4) application (Board File 1023-84-R) were consolidated and listed for hearing in January 1985 and at that time the Board directed that it would deal first with the question of the status of Local 1190 to intervene in the section 1(4) proceedings as a preliminary matter and entertained evidence in that regard. Since then (and subsequent to the hearings in the instant case), the Board has varied that direction by decision dated March 24, 1987 and directed that both the section 1(4) application and the section 89 complaint be set down for hearing on the merits.
Hearings in the section 124 grievance proceedings against Lakeview Estates, (Board File 0985-84-M) were adjourned after the Board ruled that Local 1190, which had appeared at the proceedings had established a prima facie case that the grievance involved a dispute over the assignment of work which ought more properly to be dealt with under the jurisdictional dispute provisions under the Act. Local 1190, which claims bargaining rights for the employees of Trimar, subsequently filed a complaint under section 91 of the Act (Board File 1201-84-J) and hearings in that matter were held in the fall of 1984 concurrently with the proceedings in Board Files 1023-84-R and 1736-84-U before panels of the Board differently constituted but both chaired by Vice-Chair Satterfield. Local 183 argued vigorously in the section 91 proceedings as a preliminary matter that the Board ought to refuse to entertain the complaint it being an abuse of its process in light of the identical nature of the allegations made therein and in the section 89 complaint filed by Local 1190 against Local 183 that had been adjourned almost one year earlier (Board File 0554-83-U). The Board reserved on that preliminary motion, finally argued in January 1985, but has since the hearing of the instant case issued a decision declining to exercise its discretion to refuse to entertain the section 91 complaint as sought by Local 183 and directed that the matter be relisted for hearing (decision dated April 13, 1987, Board File 1201-84-JD). The matter has since been set down to be heard by a panel of the Board differently constituted on October 7 and 8, 1987.
Meanwhile, Local 183's defensive actions against what it perceived as intrusions by Local 1190 into the residential framing sector continued unabated. Various other section 124 referrals were filed against Lakeview Estates, the thrust and intent of which was similar to that first filed in Board File 0985-84-M which had prompted the section 91 complaint by Local 1190. In December 1984 those multiple grievance proceedings by Local 183 against Lakeview Estates were settled (Board Files 0985-84-M, 1504-84-M and 2386-84-M). Nor was Local 1190 inactive. In October 1984 it filed a section 89 complaint against Local 183 and two contractors, Karl Thier Construction Ltd. and Penka Carpentry Ltd., (Board File 2006-84-U) and a related section 1(4) application against the two contractors (Board File 2133-84-R). Local 1190 holds bargaining rights for Karl Thier and, in fact, the matter was settled to its satisfaction and the complaint against Local 183 withdrawn. That occurred in early December 1984 at approximately the same time that Local 183 had settled it several section 124 grievance referrals with Lakeview Estates. It is to be recalled that Local 1190 had sought status at those proceedings as well, and indeed at the time of the settling of these matters between the principal parties, Local 1190 advised Local 183 that it intended to file a further section 89 complaint against it on terms substantively identical to those in Board File 0554-83-U. (It is to be recalled that Local 1190 had, in early November 1984, requested of the Board a resumption of hearings in that matter). Now, although no such complaint was ever filed, a draft was in fact given to Local 183 at that time, and a copy has since been filed in evidence in these proceedings. There the complainant seeks the same relied earlier sought, a declaration of nullity of the purported collective agreement between Lakeview and Local 183 or, in the alternative, of the subcontracting clauses contained therein. Of particular note is the admission found in the draft section 89 complaint that the allegations made against Local 183 and the issues raised are identical there and in Board Files 0554-83-U, 0985-84-M, 1201-84-JD, 1504-84-M, and 2386-84-M.
Now this same admission is made here before us, although in adumbrated and perhaps even more pointed form at paragraph 17 of Schedule A to the complaint filed which is on the following terms:
"The same issues raised by this complaint are also raised in a complaint between Local 1190 and Local 183 (Board File #0554-83-U), which Local 1190 has asked the Board to re-list for hearing."
The relief sought here is a declaration that the purported collective agreements between Bramalea and Presidential on the one hand, and Local 183 on the other, are null and void or, alternatively, that the subcontracting clauses contained therein are null and void and have no force and effect. This is but a particularized version of the general relief sought against Local 183 and an enumerated list of employer respondents in Board File 0554-83-U long since adjourned. It is common ground between the parties however that that complaint and the instant one cannot be consolidated. Local 183, supported by the interveners, argues that we ought not to entertain this complaint on several grounds: it constitutes an abuse of process; there has been unconscionable delay in its prosecution; the matter is res judicata.
The latter argument is a convoluted one and rests on our reading as implicit in the Board's direction for the taking of a representation vote in Attica Investment Inc. TIA Fairbank Carpentry and E. & R. Carpentry Inc., (Board File 3304-84-R), a determination of the validity of the subcontracting clauses here attacked. In light of our determination on the question of abuse and delay, we find it unnecessary to canvass in any detail the doctrine of res judicata, although we would note, if pressed, that the cryptic direction relied upon is surely too tenuous a foundation on which to structure such an argument, and indeed the decision of the Supreme Court of Canada in Angle v. Minister of National Revenue (1974), 1974 CanLII 168 (SCC), 47 D.L.R. (3d) 544 would appear to preclude its application in any event. We turn then to consider the issues of abuse and delay, which we see as closely interrelated factors which cannot but lead us to exercise our statutory discretion against the complainant by declining to entertain this application as requested.
A recurrent theme found in the jurisprudence emanating from both the Labour Boards and the Courts is that delay is inimical to the furthering of a healthy collective bargaining relationship. Mr. Justice Pigeon captured the essence of that theme in Komo Construction Inc. et al. v. Commission des Relations de Travail du Quebec, et al. 1967 CanLII 118 (CSC), [1968], S.C.R. 172 when he cautioned:
"II ne faut pas oublier que la Commission exerce sa jurisdiction dans une matiere ou generalement tout retard est susceptible de causer un prejudice grave et irremediable" (at p. 176).
The same theme is echoed in the truism "Labour relations delayed are labour relations defeated and denied" often repeated in decisions of both Boards and Courts. See General Bearing Services Ltd., [1980] OLRB Rep. Aug. 1200 where both Board and Court decision are collected. It is said that this concern is particularly acute in certification proceedings (ibid p. 1202), although it is by no means so limited - It is a concern expressed as well in proceedings such as these where a complaint of unfair labour practice has been filed against a party or parties alleging breach of our labour legislation. Indeed, in several jurisdictions, legislators particularly sensitive to the "prejudice grave et irremediable" which could arise in the failure to prosecute such a complaint timeously have limited severely the time period within which these may be filed. See for example the New Brunswick Industrial Relations Act, RSNB 1973 c. 1-4, s.106(11) - 90 days; the Canada Labour Code, R.S.C. 1970, C.L-1 (as amended), Div. IV, s.187(2) - 90 days and see as well Upper Lakes Shipping Ltd. v. Shehan et al. (1979), 1979 CanLII 203 (SCC), 95 D.L.R. (3d) 25 (S.C.C.). In jurisdictions such as ours, the concern is not the less acute solely because of the absence of such a statutory time bar. Rather, it has been subsumed into and found expression in the Board's jurisprudence with respect to the statutory discretion vested in it by section 89 of the Act to entertain a complaint filed pursuant to its provisions.
The underlying collective bargaining principles which inform the Board's exercise of its discretion, and the relevant factors to consider where it is asked to exercise its discretion against the complainant are best expressed in the Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, where Vice-Chair MacDowell, speaking for the panel, wrote:
It is by now almost a truism that time is of the essence is labour relation 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 parties 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 repose 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 involved 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 years.
See as well Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113, application for judicial review sub. nom.; Re Dhanota and International Union United Automobile, Aerospace & Agrigultural Implement Workers of America (U.A.W.), Local No. 1285; Sheller-Globe of Canada Ltd., (1983) 1983 CanLII 3085 (ON HCJDC), 148 D.L.R. (3d) 569 (H.C.J., Div. Ct.) dismissed.
- In calculating a measurement "in months rather than years", it does not avail the complainant to plead that the particular collective agreements and the contracting clauses which they contain are of a recent provenance. The Toronto Housing Labour Bureau, of which Bramalea Limited is a member, has had a collective agreement on identical terms with Local 183 since 1983; similarly so in the case of the Presidential Group Limited and Presidential Group (Brookshire) Limited. Nor may the complainant assert that its causes of action arises in the attempt by Local 183 to enforce the provisions of the impugned subcontracting clauses against the contractors bound~ either formally as in the case of Presidential (Board File 1324-85-M) or informally as in the case of Bramalea, both of which incidents occurred shortly before the filing of the instant complaint. To do so would be to elevate form over substance in a manner which would make a mockery of the fundamental collective bargaining principles which inform the Board's determinations in the exercise of its section 89(4) discretion in much the same manner that the late Chief Justice Laskin characterized the attempted filing of a complaint of unfair labour practice in the Upper Lakes Shipping case, supra, in the face of a statutory time bar. He wrote there at p. 29:
"I do not disagree with the Federal Court of Appeal that is was appropriate to measure the timeliness of a complaint from March 1, 1973 when the subject matter thereof became a prohibited practice. However, I cannot agree that there can be any number of requests and refusals, relating to the same circumstances, to enable a complainant to found a succession of complaints under section 187(1) so long as he takes care to bring them successively within ninety days of any requested and refusal. That would make a mockery of section 187(2) even if it was applicable irrespective of res judicata, which was not mentioned by the Federal Court of Appeal."
Here, there is no question but that the substance of this complaint long predates the particular agreements and incidents complained of. Indeed, the collective bargaining relationships between Bramalea, Presidential and Local 183 serve merely as a convenient foil for the prosecution of a complaint which Local 27 and its predecessor in title, Local 1190, have had against Local 183 and any and all of the many contractors, developers and builders within the residential housing sector with which it has a bargaining relationship since the commencement of this representational dispute in 1981. This is as much as admitted by the complainant in this very application when it advises that the issues here raised are identical to those raised in its earlier filed complaint - Board File 0554-83-U. Surely, it was with the filing of that complaint in June 1983 that the issue here sought to be litigated crystallized and the incidents here related and complained of could be, at most, subsequently materialized particulars in that original complaint.
On such a reading of the matter it becomes a foregone conclusion that the delay here occasioned must be fatal to the filing of this complaint. Each of the factors enumerated above in the Mississauga case can only be marshalled against the interest of the complainant. The length of the delay is excessive and arises years after it had become aware of the alleged statutory violations; the nature of the remedy claimed would strike at the heart of a pattern of hundreds of bargaining relationships which have developed, flourished and expanded within the residential framing sector of the construction industry since the alleged contravention first arose; there is in addition the existence of factors which would hamper and impede a fair hearing of the issues in the setting of freshly filed section 89 proceedings, including fading recollection, unavailability of witnesses, deterioration of evidence and the disposal of records. From all the foregoing, the Board concludes that, setting aside for a moment the convoluted history of the struggle between these two protagonists, the delay in the prosecution of a '3ection 89 complaint by Local 27 attacking the integrity of the bargaining relationships entered into by Local 183 on the strength of no subcontracting clauses of which Local 27 or its predecessor Local 1190 were aware from their first inception and with respect to which exception has been taken in principle from almost that same moment, would alone suffice for the Board to conclude that it ought to exercise its section 89(4) discretion to refuse to entertain the complaint here filed.
There is, however, a further consideration which impels the Board to this conclusion, and that is the abuse inherent in the very filing of the instant complaint - For our reading of the circumstances of this case make it at once clear to even the most casual observer, that the complainant here has sought to file identical section 89 complaint proceedings arising out of the same cause. Not only that, but the earlier complaint filed stands adjourned, if not at the instance, then at least on the consent of the complainant at the very moment when counsel for Local 183 was on the point of cross-examining the principal witness of the complainant who, whether by way of evasion or innocent happenstance, had avoided service of a subpoena duces tecum issued at the instance of Local 183. In such circumstances, to acquiesce as requested and entertain the instant complaint would be to countenance the most flagrant abuse of the Board's process. It is simply inconceivable that a tribunal judicially charged would permit the suspension of litigation already in process and its refiling and prosecution anew at the instance of the complainant. In circumstances somewhat analogous to these, McRae, J. has characterized the bringing of multiple proceedings arising out of the same circumstances and seeking the same relief as "frivolous and vexatious". See Mascan Corporation v. French (1986) 8. C.P.C. (2d) 187 (H.C.J.). We are of a similar mind and, if so required, would, even in the absence of the delay here present, have exercised our section 89(4) discretion against the complainant as the filing of the instant complaint is an abuse of the Board's process. We do so cognizant of the decision of the Satterfield panel in Board File 120 1-84-JD refusing to exercise a similar discretion when so requested, but note that there separate and distinct section 91 jurisdictional dispute proceedings were in train.
Where then stands the substance of this complaint first asserted in the now long since adjourned 1983 proceedings between these same parties in Board File 0554-83-U? Notwithstanding the already noted protestations made by counsel for both Local 183 and 27 of our lack of jurisdiction to consider that matter, each curiously argued fully its status, the one that it is abandoned and defunct, the other that it remains vibrant and ripe for consideration. Although sorely tempted to "cut the Gordian knot" and seize this occasion to rule on the status of those proceedings, the Board declines to do so, not, however, without noting that surely the decision of the High Court in Re Fisher et al. and Hotels, Clubs, Restaurants, Tavern Employees Union, Local 261 et al. (1980) 1980 CanLII 1882 (ON HCJ), 28 O.R. (2d) 462 (H.C.J.) must silence any argument that Practice Note 14 could dictate in an absolute sense the Board's exercise of its discretion as master of its own practice and procedure under section 102(13) of the Act as to whether to permit that case to proceed. This is particularly so where at issue is the bringing of a matter to trial with some reasonable dispatch. See Romano v. Ciraco et al.,(1986) 4 C.P.C. (2d) 291 (Ont.) (H.C.J.) and the cases there noted. With that caveat the Board hereby directs that the Registrar relist for hearing Board File 0554-83-U for the purpose of determining its status. That panel shall determine whether this sword of Damocles hanging suspended these many years will now plunge down to sever the bargaining relationships there challenged or rather be seized and flung aside saving them harmless. It goes without saying that any delay occasioned by the dilatory conduct of the Board itself will not prejudice the complainant in that determination.
This complaint is dismissed.