Tony Hoosain v. District Council United Brotherhood of Carpenters & Joiners of America, 1987 CanLII 3163

[1987] OLRB Rep. December 1513

1169-87-M; 1170-87-M Tony Hoosain, Complainant v. District Council United Brotherhood of Carpenters & Joiners of America, Respondent; Tony Hoosain, Complainant v. Local 27 United Brotherhood of Carpenters and Joiners of Amer­ica, Respondent

BEFORE: R. O. MacDowell, Alternate Chair, and Board Members J. A. Rundle and J. Sarra.

DECISION OF THE BOARD; December 14, 1987

I

1. These are two applications made pursuant to section 85 of the Labour Relations Act. They were settled in accordance with a settlement document executed by the complainant on Octo­ber 6, 1987. In a decision of the same date, the Board noted that the applications were withdrawn. The complainant now seeks to revive them.

2. In order to put the complainant's request in context, it may be useful to set out the pro­visions of section 85 of the Act, and also sketch in some background. Section 85 provides:

85.-(1) Every trade union shall upon the request of any member furnish him, without charge, with a copy of the audited financial statement of its affairs to the end of its last fiscal year cer­tified by its treasurer or other officer responsible for the handling and administration of its funds to be a true copy, and, upon the complaint of any member that the trade union has failed to fur­nish such a statement to him, the Board may direct the trade union to file with the Registrar of the Board, within such time as the Board may determine, a copy of the audited financial statement of its affairs to the end of its last fiscal year verified by the affidavit of its treasurer or other officer responsible for the handling and administration of its funds and to furnish a copy of such statement to such members of the trade union as the Board in its discretion may direct, and the trade union shall comply with such direction according to its terms.

(2) Where a member of a trade union complains that an audited financial statement is inade­quate, the Board may inquire into the complaint and the Board may order the trade union to prepare another audited financial statement in a form and containing such particulars as the Board considers appropriate and the Board may further order that the audited financial state­ment, as rectified, be certified by a person licensed under the Public Accountancy Act or a firm whose partners are licensed under that Act.

II

3. The complainant, Tony Hoosain, is a member of Local 27 of the United Brotherhood of Carpenters and Joiners of America ("Local 27"). Local 27 is one of several local unions which together make up the District Council.

4. In the summer of 1987 Mr. Hoosain became concerned about the financial relationship between Local 27 and the District Council. He was particularly concerned about the advances of certain mortgage monies which, in his view, were contrary to the terms of the union constitution. On July 28, 1987 he filed the present complaints. He demanded a financial statement from both the District Council and Local 27. Following receipt of Mr. Hoosain's complaints, the Board scheduled a hearing.

5. A letter from Mr. Hoosain directed to the Registrar of the Board was received on Sep­tember 2, 1987. It reads:

I am in receipt of your letter of August 19th, 1987 and have read the enclosures which appear to be at odds with the facts in this matter.

The statements prepared by Edmunds & Galgoczi C.G.A. that I received on July 30th not June 20th as stated were neither audited nor certified. As you are aware a C.G.A. is not licenced to provide an audit. I am enclosing copies of two letters that I received.

One dated July 20th for John Carruthers offering me the opportunity to view but not receive the statements. The other dated July 29th advises me that statements are to be provided to me. At no time as you can see was I informed that notice must be given. Perusal of the statements reveal several deficiencies. In any event the obligation of Local 27 under the act (to provide audited and certified statements) has not been fulfilled.

It is apparent that at least by the time he wrote that letter, the complainant's concerns included the fact that the individual preparing Local 27's financial statement was a certified general accountant (CGA) not a chartered accountant (CA), and in the complainant's opinion a CGA was not entitled to audit the union's books.

6. This matter was scheduled for hearing before the Board, in Toronto, on October 6, 1987. As we have already noted, on that day the parties entered into what purports to be a settlement of the matters in dispute between them. That settlement was reduced to writing and reads as follows:

MINUTES OF SETIILEMENT

BETWEEN:

Tony Hoosain

(hereinafter the "Complainant")

• and -

The Carpenters' District Council of Toronto and Vicinity

(hereinafter the "District Council")

• and -

Local 27, United Brotherhood of Carpenters and Joiners of America

(hereinafter "Local 27")

Whereas the Complainant filed a complaint dated July 27, 1987 against the District Council under Section 85 of the Act. (Bd. File No: 1169-87-M)

AND WHEREAS the Complainant filed a Complaint dated July 27, 1987 against Local 27 under Section 85 of the Act. (Bd. File No. I 170-87-M)

AND WHEREAS the Complainant, the District Council and Local 27 are desirous of resolving the aforementioned Complaint.

NOW THEREFORE the Complainant, Local 27 and the District Council agree as follows:

1. The Complainant acknowledges receipt of all audited financial statements of the Dis­trict Council and Local 27 for the fiscal year ending June 30, 1987.

2. The Complainant acknowledges that said statements are privileged and confidential to Local 27 and the District Council.

3. The Complainant agrees that the tendering of the financial statement of the District Council is without prejudice to the District Council's position that the Complainant is not entitled to the statement inasmuch as he is not a member of the District Council and accordingly, the Complainant shall not rely upon receipt of the statement from the District Council in connection with any Complaint which the Complainant may file in the future in regard to his right to the financial statements of the District Coun­cil in ensuing fiscal years.

4. The Complainant agrees to withdraw the aforementioned Complaints.

5. The Complainant agrees that the statements tendered to him in all respects comply fully with the provisions of the Labour Relations Act and accordingly, agrees not to file any further Complainants in connection with either the provision of financial statements or the adequacy thereof under any Section of the Act in connection with the fiscal year ending June 30, 1987 or any prior fiscal years.

6. The Respondents agree that they have provided the Complainant with all audited financial statements prepared for and on their behalf under Section 85 of the Act for the fiscal year ending June 30, 1987.

DATED at Toronto this 6th day of October, 1987.

[emphasis added]

The file was closed.

6. By letter dated November 11, 1987 the complainant wrote the Board as follows:

Please be advised that it would appear necessary to re-open the above captioned complaints based on the information I have received subsequent to the filing of minutes of settlement in this matter. I am enclosing a copy of a letter received from the Public Accountants Council for the Province of Ontario that presents a totally different picture than previously was apparent.

As the financial statements received under the minutes of settlement filed in this matter were produced by this unlicensed individual, they would not appear to be sufficient to fulfill the requirement as set out in the Labour Relations Act.

Please review this matter and advise me of your thoughts in this regard.

In reply, counsel for the union wrote:

We are in receipt of your letter of November 16, 1987 enclosing a copy of Mr. Hoosain's letter.

As the Board is aware, Mr. Hoosain withdrew the instant complaints. He did so on the basis of Minutes of Settlement, filed with the Board, which were entered into with the assistance of a Labour Relations Officer. He now seeks to "re-open" his case on the grounds that the person who proposed the statements is not licenced under the Public Accountancy Act.

This fact was one well known to Mr. Hoosain when he signed the Minutes of Settlement. He had been provided with uncertified copies of certain statements in July 1987. He wrote to the Board in a letter, undated but stamped received on September 2, 1987, alleging they were inad­equate as they were prepared by John Edmunds who is a C.G.A., rather than a C.A. The state­ments provided to Mr. Hoosain on October 5, 1987, clearly indicate they have been prepared by Mr. Edmunds. Hence, he cannot claim that he now intends to adduce evidence which was not previously available to him through the exercise of due diligence (K-Mart Canada Ltd., [1981] O.L.R.B.R. February 185 at paragraph 4).

Further, as the Board is well aware, an audit required by Section 85(1) need not be performed by a C.A. or by a person with any formal accountancy qualifications: Murray Strong, [1981] O.L.R.B.R. July 901. Hence, even without Mr. Hoosain's agreement, such statements meet the requirements of Section 85(1).

We therefore submit it is not open to Mr. Hoosain to ask the Board to "re-open" a complaint he has withdrawn. He is not now alleging a fact (as opposed to a dubious legal opinion from the Public Accounts Council) unknown to him before the hearing. In any event, in the interests of finality, we submit the Board ought not to permit a party to resile from Minutes of Settlement freely entered into with the assistance of a Labour Relations Officer. Indeed, Section 89(7) pro­vides that the settlement is binding on the parties, and the Board shall entertain only complaints of non-compliance with the agreement. The only party who appears not to be complying with these Minutes is Mr. Hoosain.

We therefore request the Board to deny Mr. Hoosain's request to "re-open" his complaint.

8. The issue before the Board, then, is whether, in all the circumstances, the Board should reopen the matters purportedly settled on October 6, 1987. Whether cast as a request for reconsid­eration or considered as an exercise of the Board's discretion under section 89 of the Act, the gen­eral principles are the same.

III

9. The purpose of section 89 of the Labour Relations Act is to secure a prompt, final, and binding resolution of unfair labour practice complaints; but, by the same token, the Act expressly recognizes and encourages the settlement of such complaints without a formal Board hearing or decision. Where the matter complained of in a section 89 complaint has been settled, and the terms of the settlement have been put in writing and signed by the parties or their representatives, the settlement is binding. Indeed, section 89(7) makes non-compliance with a written settlement a breach of the Act.

10. Each year, trade unions, employees, or employers file hundreds of applications or com­plaints before the Board. A great majority of them are settled. Sometimes the settlement favours a trade union or the employer. Sometimes it may favour an employee. Usually the settlement repre­sents a compromise under which the parties neither achieve as much nor risk as much as they would by proceeding to a hearing before the Board. The parties generally arrive at a settlement in order to avoid the cost and uncertainties of litigation. Both the orderly resolution of Board pro­ceedings and the efficacy of the settlement process would be gravely prejudiced if, having signed minutes of settlement, a party could afterwards repudiate that settlement and revive the original proceedings because s/he later had second thoughts about the settlement terms.

11. A comparison of the language used in sections 85(1), 85(2) and 86(2) of the Act indi­cates that the "audited financial statement" contemplated by section 85(1) need not be prepared or certified by a person licensed under the Public Accountancy Act unless the Board so directs. In the absence of such direction, the financial statements which a trade union prepares for its own use (and must be provided to its members upon request pursuant to section 85(1)) may, therefore, be prepared by a CGA; moreover, since the complainant was obviously aware that a CGA was pre­paring the statement prior to executing the settlement, it is a little difficult to understand the basis for his present complaint. More important, however, is paragraph 4 of the settlement in which the complainant accepts the adequacy of the material provided to him, and undertakes not to file any further complaint. Yet that is precisely what his latest letter represents.

12. Under section 89 of the Labour Relations Act the Board has a discretion to enquire into any complaint of a breach of the Act. Under section 106, the Board has a discretion to reconsider any decision or ruling previously made by it. Whichever way one considers Mr. Hoosain's most recent request, it is our view that it should be rejected. Having reviewed the history of this pro­ceeding and the parties' submissions, we see no reason to reopen, reconsider, or otherwise proceed with these complaints. The complaints were settled on October 6, 1987 and there is no basis for further enquiry.