Ontario Labour Relations Board
[1987] OLRB Rep. May 645
2369-84-U Michael Baranowski, Complainant v. Teamsters Union Local 938, and TNT Canada Inc. carrying on business as TNT Railfast, Respondents
BEFORE: Judith McCormack, Vice-Chair.
APPEARANCES: A. W. Klymko and Michael Baranowski for the complainant; Eric del Junco for the respondent.
DECISION OF THE BOARD; May 11, 1987
The Board issued the following oral decision at a hearing scheduled in this matter on May 11, 1987:
This matter is a complaint under section 89 of the Labour Relations Act alleging a violation of section 68. The events which are the subject of this complaint took place in April and May of 1983, and the complaint was filed in November of 1984, some eighteen months later. When the matter came up for hearing, the respondent union requested that the complaint be dismissed on the basis that it was untimely. The Board, in a decision which described the complainant's case as "border line" in terms of the jurisprudence on dismissal for delay, dismissed the union's timeliness objection on January 29, 1985. A request for reconsideration was received and rejected by the Board on March 6, 1985.
The complainant then sought to add the employer as a respondent in March of 1985. By a decision dated May 13, 1985, the Board dismissed the complainant's motion citing extreme delay on the complainant's part. That decision also recites the fact that the parties agreed to adjourn the matter at that time.
Nothing more was heard from the parties for almost two years until the complainant wrote a somewhat ambiguous letter to the Board on February 26, 1987. As a result, a hearing was scheduled for the purpose of hearing the parties' representations as to why the Board should now entertain the complaint. The hearing date was adjourned twice at the request of the parties.
The respondent union asked us to dismiss the complaint on three grounds. Firstly, counsel argued that the decision of the Board of January 29, 1985, dismissing the union's timeliness objection and the decision of the Board of May 13, 1985, dismissing the complainant's motion to add the employer as a respondent were inconsistent and presented new grounds for a further reconsideration of the January 29, 1985 decision. Secondly, counsel suggested that Practice Note 14 applied to these circumstances so as to deem the complaint withdrawn at the expiry of one year from the date of the adjournment. Finally, the Board was asked to exercise its discretion to refuse to entertain the complaint as a result of the further delay which occurred since the Board's decision of May 13, 1985.
I do not find the first ground raised by the respondent union persuasive. One request for reconsideration has already been rejected, and in any event, requests for reconsideration are more properly directed toward the panel making the original decision. In these circumstances, it would be inappropriate for the Board to engage in what would in essence be an appeal from the Board's decision of March 6, 1985 rejecting the initial request for reconsideration.
Neither am I convinced that Practice Note 14 applies to the circumstances before me. That note contains certain conditions which must be met before a case will attract the consequences set out therein, and I am not persuaded that those conditions have been satisfied here.
However, I find the third argument advanced by the respondent union has considerable merit. The Board expects complaints of this nature to be pursued expeditiously and with some dispatch. As a result of the complainant's failure to bring the matter back on for a hearing, almost two years have elapsed from a point in time which the Board had already characterized as representing extreme delay. Now almost four years have elapsed since the events which form the subject of the complaint.
Counsel for the complainant argued that he believed that the Registrar would be setting a date in this matter and was therefore awaiting of notice of hearing during the period in question. While I might be receptive to that argument in other circumstances, I find it simply incomprehensible that counsel would allow almost two years to elapse without making any inquiry whatsoever in this regard. This is particularly so in circumstances where, as a result of the Board's previous proceedings, counsel knew or ought to have known of the Board's serious concerns about the delay which had already taken place.
On the basis of the delay resulting from the complainant's failure to pursue this matter without a satisfactory explanation between May of 1985 and February of 1987, the Board declines to entertain this complaint. These proceedings are now at an end.