[1987] OLRB Rep. October 1246
1258-87-U George Hinkson, Complainant v. Canadian Conference of Teamsters, Chemical, Energy & Allied Workers Division, Local 2177, Respondent v. BASF Inmont Canada Inc., Intervener
BEFORE: Robert D. Howe, Vice-Chair.
APPEARANCES: Stanley C. Ehrlich for the applicant; Rudolph Singh and W. H. Mutimer for the respondent; Daniel J. Shields, Tim J. Murphy and Stanley Russel for the intervener.
DECISION OF THE BOARD; October 29, 1987
"BASF Inmont Canada Inc." is added as an intervener, and the name of the respondent is amended to read: "Canadian Conference of Teamsters, Chemical, Energy & Allied Workers Division, Local 2177".
On October 26, 1987, the Board, after hearing (and recessing to consider) evidence and argument respecting the intervener's request that this complaint under section 89 of the Labour Relations Act be dismissed, without a hearing on the merits, on the basis of extreme delay, the Board made the following oral ruling with respect to that matter:
The complainant was discharged by the intervener in September of 1984. A discharge grievance was filed, taken through the grievance procedure, and referred to arbitration. The arbitration hearing was scheduled for April 22, 1985. However, the hearing did not take place because the grievance was withdrawn by the respondent on or about April 16, 1985, and the arbitration hearing was cancelled. The complainant was advised of this on or about April 19, 1985. He subsequently telephoned Harry Kopyto, a lawyer whom he had known for a number of years, to request his advice. Mr. Kopyto told him that he could not do anything for him until he obtained a legal aid certificate. Accordingly, the complainant applied for a certificate under the Ontario Legal Aid Plan (referred to in this decision as "legal aid", for ease of exposition). On August 14, 1985, a legal aid certificate was issued for the following purpose:
To negotiate settlement of client's claim for wrongful dismissal and, failing settlement, for an opinion to the Area Director as to recommended procedures.
Mr. Kopyto sent a letter of opinion to the Area Director on or about 24, 1985. John A. Stockwell, a legal aid solicitor, responded to that letter as follows, in a letter dated October 16, 1985, to Mr. Kopyto:
Further to your letter of September 24th, 1985, recommending that an action be commenced in the Supreme Court of Ontario for conspiracy to commit injurious falsehood, I would advise that Legal Aid in those proceedings is prohibited by Section 15 of the Legal Aid Act and, in particular, Section 15(a). It appears to me that injurious falsehood is something of another way of saying "defamation", see Blacks Law dictionary, page 924, where "injurious words" were considered to mean "slander, or libelous words". In my view the fact that there was conspiracy to commit defamation brings the action within the prohibition containing Section 15(a), that is, "proceedings wholly or partly in respect of defamation...
It appears to me that the only proceeding that is available to Mr. Hinkson is to apply to the Labour Relation Board for an order directing the Union to represent him in respect to this grievance for wrongful termination of his employment or, failing the Boards [sic] order, an action against the Union for breach of its duty to represent Mr. Hinkson.
I have, therefore, enclosed an amendment to the certificate authorizing an application to the Ontario Labour Relations Board for an order directing the Union to represent Mr. Hinkson with respect to his grievance for wrongful termination of his employment.
I have put this file away until April 14th, 1986, at which time, if I have not heard from in the interim, I will contact you with a view to obtaining a report on the status of this matter at that time.
On January 20, 1986, Mr. Stockwell sent to the complainant and to Mr. Kopyto a notice of cancellation of the aforementioned legal aid certificate issued on August 14, 1985. The complainant did not receive that notice because he had moved in late 1985 or early 1986, and had not provided the post office with a change of address notification because he understood that it cost $10 to do so. He also did not notify Mr. Kopyto or legal aid of his new address.
The complainant contacted Mr. Kopyto a month or two after he moved, and was advised by Mr. Kopyto that the legal aid certificate had been cancelled because the legal aid office wanted some additional information from him
(the complainant) and had been unable to contact him. It was also the complainant's evidence that "sometime in 1986" he contacted Angie Codina, another lawyer, to seek advice. He was unable to recall when in 1986 that contact was made. On February 20, 1987, another legal aid certificate was issued, entitling the complainant to legal aid "for rep. on application to Ontario Labour Relations Board for order directing union to represent client with respect to grievance for wrongful termination". That certificate was acknowledged by Ms. Codina on March 9,1987. However, the complainant did not have as much confidence in Ms. Codina as he had in Mr. Kopyto. Thus, he decided to return to Mr. Kopyto for representation. Subsequent efforts to resolve the matter through informal contacts with the respondent did not meet with success. The instant complaint was filed with the Board on August 10, 1987.
Counsel for the intervener submits that this complaint should be dismissed by the Board without a hearing on the merits, on the basis of extreme delay. Counsel for the complainant concedes that there has been some delay, but submits that it is not sufficient to warrant dismissal. Counsel for the respondent takes no position regarding this preliminary issue.
The Board has had occasion to consider the effect of delay in filing a section 89 complaint in a number of cases. In The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, the Board wrote, in part, as follows:
It is by now almost a truism that time is of the essence in 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 crystalized, 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 re-emerge 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.., and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims....
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 contradiction; 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.
In Sheller-Globe Canada Limited, the Divisional Court, in a unanimous judgment dated June 28, 1983, dismissed an application for judicial review of a Board decision (reported in [19821 OLRB Rep. Jan. 113) in which the Board, after entertaining evidence and submissions with respect to delay in filing a section 89 complaint alleging a breach of section 68 of the Labour Relations Act, declined to inquire into the merits of the complaint in the exercise of its discretion under section 89 of the Act and, accordingly, dismissed the complaint. (See also John T. Hepburn Limited, [1984] OLRB Rep. Jan. 39; Waterloo Metal Stampings Inc., [1984] OLRB Rep. Jan. 156; Stelco Inc., [1983] OLRB Rep. Dec. 2102; Caravelle Foods, [1983] OLRB Rep. June 875; Chrysler Canada Limited, [1983] OLRB Rep. Apr. 490; Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417; Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446; and CCH Canadian Limited, [1977] OLRB Rep. June 351.)
The instant case falls close to the line. There has been some delay by the complainant, and also some delay by the counsel who were representing him from time to time. By mid October of 1985, legal aid had authorized Mr. Kopyto to apply to the Board for an order directing the respondent to represent the complainant in respect of his grievance. Mr. Kopyto's failure to file the complaint during the two and a half month period preceding the cancellation of the complainant's legal aid certificate involved some unexplained delay, but was certainly not so extreme as to warrant the dismissal of this complaint. With the cancellation of the legal aid certificate, Mr. Kopyto no longer had authorization from legal aid to file a complaint on behalf of the complainant. The complainant's failure to provide Mr. Kopyto and legal aid with his new address delayed his becoming aware of that cancellation. His decision to seek advice from another solicitor and then to return to Mr. Kopyto further postponed the filing of this complaint. There was also a delay of approximately five and a half months between the time that the Ferbruary 20, 1987 legal aid certificate was issued and the time when this complaint was filed with the Board.
The complainant's lack of sophistication regarding labour law matters, and his need to obtain legal aid, complicated by his change of address and change of solicitors, account for some of the time which elapsed between the withdrawal of his grievance and the filing of this complaint. However, there are several months of delay which have not been adequately explained. On the other hand, the respondent against which this complaint is directed does not seek to have it dismissed without a hearing on the merits. That position is asserted only by the intervener, which did not establish any specific prejudice, such as destruction of pertinent evidence, or death of a key witness. The loss of memory which generally accompanies the effluxion of time is, of course, a factor to be taken into account, as is the nature of the remedies sought by the complainant, namely, reinstatement by the intervener with compensation from the respondent and from the intervener for lost earnings.
Having regard to all of the circumstances, I have concluded that although there has been some unwarranted delay in filing this complaint, the delay is not so extreme, and has not given rise to sufficiently substantial prejudice, to warrant the dismissal of this complaint without a hearing on the merits. However, the delay may well be a factor to be taken into account in respect of the remedy to be awarded in the event that a statutory violation is established.
Accordingly, the Board declines to dismiss this complaint without a hearing on the merits.
- The Registrar is directed to list this matter for hearing before the writer on January 12, 14, and 27, 1988. The purpose of that hearing will be to hear the evidence and representations of the parties with respect to all unresolved matters arising out of and incidental to this complaint, including the merits of the complaint.