[1987] OLRB Rep. May 673

0999-86-U Ghiansaroop Persaud, Complainant v. Consumers Distributing Company Limited, Teamsters Local Union 419 and Sean Floyd, Respondents

BEFORE: Patricia Hughes, Vice-Chair, and Board Members J. A. Rundle and D. A. Patterson.

APPEARANCES: James Hayes and Richard Blair for the complainant; M. E. Geiger, Cliff St. Pierre and Mike Gietka for Consumers Distributing; J. James Nyman, J. David Watson, Frank Grimaldi and Don Swait for Teamsters Local 419.

DECISION OF PATRICIA HUGHES, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; May 29, 1987

1The style of cause is hereby amended to remove The Toronto Star as intervener.

2The complainant, Ghiansaroop Persaud, alleges that the respondent Consumers Distributing Company Limited ("the company") has breached sections 64, 66 and 70 of the Labour Relations Act ("the Act"); he further alleges that the respondent Teamsters Local Union 419 ("the union" or "Local 419") has breached sections 64, 66, 68 and 70 of the Act; and further, that the individual respondent Sean Floyd has contravened sections 64, 66 and 70 of the Act.

3The hearing into these matters began on January 9, 1987, and continued on February 12, March 24 and March 25, 1987. During that period, the Board was required to rule on several procedural issues. In a decision dated February 11, 1987, the Board ruled that it would be inappropriate for the Board to contact the Divisional Court with respect to a decision of that Court then pending which dealt with the issue involved in this complaint "to make whatever request of the Court the Board felt appropriate", as suggested by counsel for the Company. In a second decision dated February 17, 1987, the Board issued a subpoena requiring Mr. Gary Dassy to attend at a hearing for the purpose of producing an affidavit sworn by him which had formed the basis of an article published in the Sunday Star on June 22, 1986, upon which, in turn, certain allegations made by the complainant were founded.

4This decision records one of the oral rulings made by the Board during the hearing on March 25, 1987, the reasons for the majority's decision on the company's objection to our hearing the case because of delay (the majority's decision and the dissent, without reasons, are recorded in a decision dated May 8, 1987); and the Board's reasons for its decision that subsection 89(5) applies in this case (the rulings on these matters, without reasons, appear in decision dated May 20, 1987).

5After dealing with several matters raised by counsel, the Board commenced hearing evidence relating to the delay between the date of the complainant's dismissal (May 29, 1984) and his bringing this complaint (June 22, 1986). That evidence is considered more fully below. It became apparent during cross-examination of the complainant by the company's counsel that there was some dispute about the Board's earlier ruling which had limited the scope of inquiry during this portion of the hearing to the narrow question of delay. We had ruled that counsel for the company could not ask questions about the complainant's alleged participation in an illegal strike and other issues which might be related to the Board's broad discretion to hear the complaint under section 89 of the Act at this time. Counsel for the union and counsel for the complainant both expressed their view that the Board's earlier oral ruling was that the issue to be addressed at this time was that of delay only and that the Board had not precluded counsel for the company from raising other matters relating to the Board's broader discretion at a later time (that is, during the hearing on the merits, should the Board not dismiss on delay). After the Board's confirmation that this was an accurate reflection of its earlier ruling, counsel for the company ceased questioning the complainant and requested that submissions on delay be adjourned until the next morning in order to permit him to separate his argument on delay from other issues upon which he had anticipated making argument. We agreed to this request, although counsel for the complainant was prepared to proceed. However, at the beginning of the following day's hearing, counsel for the company, instead of making submissions on delay, once again raised the Board's ruling on the scope of this initial or preliminary inquiry.

6Believing that it would be in the interests of an expeditious hearing to clarify the procedure to be followed, a goal desired by all parties, we made the following oral ruling at this point in the proceeding:

At the outset of the hearing into this matter, counsel for the respondent company raised several concerns directed to whether the Board should hear this case and other preliminary matters. These cited issues were: lack of particulars, production of the affidavit referred to in the complaint, delay, abuse of process, potential conflict in decisions between various bodies hearing related matters, the effect of a settlement entered into by all the parties, settlement discussion privilege, res judicata, the pending related Divisional Court decision, and the effect of the Windsor Western Hospital case.

The Board ordered the complainant to provide particulars in proper form. The complainant did so. The Board also issued a subpoena to Gary Dassy, author of the affidavit, directing him to produce the affidavit. The affidavit was produced at a hearing convened for that purpose.

Having considered the parties' interest in having the Divisional Court decision prior to proceeding in this matter and in our dealing with this complaint expeditiously, the Board determined that of the various matters raised by counsel for the respondent company, the issues of delay and of the binding nature of the settlement could be dealt with as discrete preliminary issues. The Board made an oral ruling to that effect on February 12, 1987. The Board did not rule that the other matters raised by counsel for the respondent company would not be relevant to the Board's discretion in dealing with this matter. It did not specify how they would be dealt with but implicit in the Board's specifying that the delay and settlement issues were to be addressed during the next days scheduled for this matter, was the view that the other matters would be dealt with should the Board go on to hear the merits. The Board understood and intended that the legal effect of the ratification provisions and so forth in the settlement would be addressed by the parties during these days set aside for delay and the settlement.

At the continuation of the hearing on March 24, 1987, counsel for the respondent company sought a broad interpretation of the matters to be addressed on the delay issue and indicated his understanding that the Board's ruling on February 12, 1987 was intended to include all matters going to the Board's discretion to hear this case under section 89 of the Labour Relations Act.

The Board confirmed its original ruling that delay only was to be addressed, not all matters going to the Board's discretion. The Board specifically indicated that counsel for the respondent company would not be precluded from addressing the other issues should we hear the case on the merits. It clarified that the aspect of the settlement to be addressed was the condition precedent since arguments based on misrepresentation and unconscionability which counsel for the complainant indicated he would be making were too bound up with the merits to deal with separately.

Evidence was adduced by counsel for the complainant with respect to when the complainant learned the "facts" alleged in the complaint. This was the focus of the delay issue; no evidence was adduced to explain any delay which the Board might find occurred [that is to say, the evidence adduced went only to when Mr. Persaud learned about the alleged conspiracy]. Counsel for the respondent cross-examined the complainant. The Board ruled that he could not ask questions relating to matters going to other discretionary issues during cross-examination on delay - specifically the Board ruled he could not cross-examine on the matter of fraudulent misrepresentation at this time. Counsel then asked no further questions.

The Board reaffirmed its earlier ruling on the matters to be addressed at this stage of the proceedings. On agreement of the parties, the Board ruled that all settlement issues would be addressed on the merits, rather than separating those issues. Counsel for the respondent then raised the question of when the Board would deal with the Windsor Western Hospital case. The Board confirmed that it could be addressed at the end of the merits.

Counsel then indicated he would be bringing no evidence on the delay issue and requested that submissions be made today.

At the outset of the hearing today, counsel for the respondent again questioned the Board's ruling and asked for reconsideration of yesterday's ruling. Alternatively, he asked that he be able to raise delay again at the end of the case as a factor going to the Board's discretion. He cited three areas of concern (delay, abuse of process, including the conduct of the complainant, and the settlement) which could have been dealt with as preliminary matters. He again set out his arguments in relation to each of his concerns. He alleged that the Board had precluded his asking the complainant questions on his legal obligations and his suspicions and on his state of mind.

The Board confirms its earlier ruling and its clarification of that ruling, made for the benefit of counsel for the respondent.

The Board has not at any time precluded counsel for the respondent from raising the issues going to the Board's discretion, and does not do so now. His forceful arguments made it very clear that these matters were so interrelated that the Board was of the view that they could be dealt with adequately only when the Board had all the evidence before it.

The relevance of delay at the end of the case will depend on the Board's decision on that issue after we have heard submissions on the issue. The only matter before the Board is whether there was delay - what the complainant knew and when: effectively, was there any delay. Clearly the Board needs to hear submissions on that issue before any further determination can be made. Should it go on to hear the merits, the relevance of the delay issue will have to be addressed in the appropriate context.

Counsel for the respondent company has requested he make submissions on delay first. The Board considers that appropriate.

7We turn now to the issue of delay. According to the complainant, he had first heard that Gary Dassy had said that the company and Sean Floyd had plotted to dismiss him on June 16, 1986 when John Deverell, a reporter for the Toronto Star, called him to tell him that he (Mr. Deverell) had a written statement from Mr. Dassy. He first heard there was a meeting between Mr. Dassy, Mr. St. Pierre and Mr. Floyd on June 22 when he read about it in the Sunday Star. That was also the first time he heard that the company and the union viewed him "as an obstacle". He filed his complaint on July 10, 1986. With respect to subsequent allegations filed on October 22, 1986, relating to an alleged breakfast meeting between Mr. St. Pierre and Mr. Floyd, the complainant testified that that information first came to his attention in August 1986.

8Counsel for the company produced in evidence several newspaper articles dated June and July 1985 containing comments which he contended were in substance the same as the allegations now before the Board.

9Certain reported statements concerned the following paragraph in the complaint as originally worded:

4. Between 1979 and 1982. Consumers' Distributing made secret payments in the amount of approximately $250,000 to Sean Floyd.

Counsel for the complainant had stated that this statement was not intended as an allegation and, indeed, it was struck from the complaint to avoid confusion and in response to company counsel's concern.

10Of more significance are statements in the newspaper articles which refer, in various ways, to a "purported" deal between the company and the union to dismiss the complainant.

11An article in the Toronto Star, dated June 22, 1985, (Ex. 3 in these proceedings) states that "Wildcat strikers at Consumers Distributing say they will stay out until the company rehires a union steward who, they charge, was 'sold down the river' in a deal between company management and Teamsters Local 419". Mr. Persaud agreed that he was the union steward referred to, that he knew about the allegations made by the workers and that he was making them himself. An article published in the Globe & Mail on July 5,1985 (Ex. 4 herein) stated that "John Persaud sees himself as an unwitting victim of a secret deal between his former employer and his own union". Mr. Persaud is quoted as saying "It's obvious they wanted to get rid of me because I stood in the way of their cosy deal". (It appears that "their cosy deal" refers to the payments made by the company to Mr. Floyd to maintain labour peace.) (A July 11, 1985 column in the Toronto Star says that Mr. Persaud "says Floyd was as happy to be rid of him as was the company". Mr. Persaud agrees he made the statement. However, such a statement does not allege a conspiracy between Mr. Floyd and the company to be rid of Mr. Persaud but merely indicates that Mr. Persaud thought they had the same reaction to the event.)

12In this regard, we also considered carefully the inclusion of the following paragraphs in the complaint filed by Mr. Persaud under the Ontario Human Rights Code on October 15, 1984:

11. ... [On May 25, 1984 Gary] Dassy was heard telling employees that he would give a statement which would get me fired.

12. On May 28, 1984, when I went to work this statement was all over the plant. I brought this to the attention of the Manager, Mr. Baylis, Brien [sic], the supervisor and Mr. Melnychuk; Industrial Relations Manager; but no action was taken. Nothing further was said by management that day.

13. On or about May 29, 1984 ... I was terminated for intimidating Garry [sic] Dassy and telling him to slow down. I denied that I had done any such thing, pointing out that Dassy was an employee with whom I had little in common and seldom spoke to.

Mr. Persaud obviously was of the view in October, 1984 that Mr. Dassy was involved in his (Mr. Persaud's) dismissal. He knew, then, if the above statements are true, that he was told that he was being dismissed because of the way he had allegedly acted towards Mr. Dassy. After careful consideration, we conclude that the statements cited above do not allege a conspiracy between the union and the company.

13The kind of factors the Board takes into account in determining whether it should dismiss a complaint on the basis of delay are set out in The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 at paragraph 20. Among those factors is the time at which the complainant became aware of the violation or, when, with reasonable diligence, he ought to have become aware.

14Counsel for the company argues that the newspaper articles show the complainant was aware or believed that the union and the company had acted in conjunction ("conspired" or "made a deal") to "get rid of him". The articles do show that Mr. Persaud (and others) were voicing opinions as long ago as June or July 1985 that the company and the union "conspired" to remove Mr. Persaud from his employment. Counsel for the company says that Mr. Persaud should have filed his complaint and then obtained his evidence. He pointed to Rule 72 of the Board's Rules of Procedure which reads:

72.-(1) Where a person intends to allege, at the hearing of an application or complaint, improper or irregular conduct by any person, he shall,

(a) include in the application or complaint; or (b) file a notice of intention that shall contain,

a concise statement of the material facts, actions and omissions upon which he intends to rely as constituting such improper or irregular conduct, including the time when and the place where the actions or omissions complained of occurred and the names of the persons who engaged in or committed them, but not the evidence by which the material facts, actions or omissions are to be proved, and, where he alleges that the improper or irregular conduct constitutes a violation of any provision of the Act, he shall include a reference to the section or sections of the Act containing such provision.

Counsel argues that this Rule means that when Mr. Persaud thought that the company and the union had made a deal to get rid of him, he should have filed the complaint, even though he did not have evidence to sustain such a complaint. Despite the initial attractiveness of counsel's analysis of Rule 72, we are of the view that Rule 72 is not intended to encourage 'in the air' complaints but is intended to ensure only that the opposing party has sufficient knowledge of the case to meet it. Indeed, had Mr. Persaud filed his suspicious as a complaint under section 89, there is little doubt that he would have been faced with a request for particulars under Rule 72, a request he would have been hard put to satisfy.

15The Board has indicated previously that it is not desirable for complainants to file suspicions. In Luciano D'Alessandro, [1983] OLRB Rep. Oct. 1699, the Board dealt with a complaint that the union's hiring hall procedures contravened section 69 of the Act: "However, although he had heard rumours about improper referrals, he 'couldn't prove anything' because the respondents would not permit him to examine the hiring hall records". The Board continued at paragraph 9:

Mr. Minsky also contended that Mr. Marinaro should have filed a section 89 complaint based upon his suspicions and used such complaint to gain access to the hiring hall records. However, the Board does not find that contention to be meritorious. The use of the Board's processes as a means of discovery in respect of allegations based upon mere suspicion is not something which the Board would desire to encourage (although it may be necessary in some circumstances, such as in some cases to which the section 89(5) 'reverse onus' applies).

In that case, the complainant had suspicions he felt incapable of proving because the union had denied him access to the information he required. In this case, the complainant had suspicions he felt incapable of proving until individuals were prepared to make public a conspiracy between the union and the company. Mr. Persaud did not choose to use "the Board's processes as a means of discovery" at that time, as the Board indicated in Luciano D'Alessandro, supra, might in some instances be necessary, although not necessarily desirable. The allegations in this case are not that Mr. Persaud was dismissed but that the union and the company conspired together to carry out his dismissal. Only when individuals concerned made public their involvement in this alleged conspiracy did Mr. Persaud have more than a suspicion. Then he had the information necessary to satisfy the particulars required by Rule 72.

16Alternatively, says counsel, if Mr. Persaud did not "know" that a deal had been made, he should not have been making accusations in the paper - in effect, public accusations of wrongdoing by the union and the company - when all he had were suspicions. Whether Mr. Persaud should have been making public accusations which he now says he could not have substantiated at that time is not for this Board to decide. The question the Board does have to decide is whether Mr. Persaud should have filed his "suspicions" and then tried to obtain the evidence. On the basis of the evidence, we are satisfied that Mr. Persaud had strong suspicions that the union and the company had in some way concocted to fire him. But we are not satisfied that it was unreasonable for him to file his allegations only when Mr. Dassy and Mr. Floyd made their "participation" (direct or otherwise) in the alleged conspiracy public. Counsel argues that Mr. Persaud could have obtained the evidence he required with diligence. This complaint involves allegations of secret deals; the very conduct complained of was intended to be secret.

17In addition, counsel says that the principle of res judicata prevents Mr. Persaud from enjoying a hearing into this complaint. He maintains that Mr. Persaud should have joined his allegations with a section 89 complaint brought by other employees which was settled by the parties (see Board File No. 1379-85-U), and that a failure to do so is a factor going to delay. (The settlement is not before us.) The requirements of the principle of res judicata (or issue estoppel) are set out in Angle v. Minister of National Revenue, 1974 CanLII 168 (SCC), [1975] 2 S.C.R. 248. Those requirements are the same question has been decided in a final decision involving the same parties or their privies. Furthermore, the determination of the issue in dispute must be fundamental to the original decision or directly in issue. In Preston Spring Gardens Retirement Home, [1985] OLRB Rep. March 463, the Board dealt in some detail with the application of res judicata or issue estoppel to its proceedings, saying in part that "the Board must be cautious not to apply the principle too broadly. In our view, res judicata only arises when a party attempts to re-litigate the same issues arising out of the same transaction or conduct that have been finally determined elsewhere in a proceeding involving that party or a privy to that party".

18The allegations before us were not in issue in File No. 1379-85-U. That complaint alleges a conspiracy between the union, the company and officials of the company and union to frustrate collective bargaining and makes specific reference to the payments by the company to Sean Floyd for the purpose of ensuring "labour peace", a reference to which is also made in Ex. 4 in these proceedings, referred to in paragraph 11 above. There is also specific reference to another Teamsters official "actively assist[ing] in covering up the conspiracy when individual union members attempted to investigate and expose the illegal actions of the company and the union". No specific reference was made to Mr. Persaud and he was not a complainant in File No. 1379-85-U. Nor is Mr. Persaud a privy to the parties in that complaint. He could not stand in the stead of any of the employees who brought the complaint. It is not sufficient that he might have benefited from the requested relief which included the reinstatement of all employees discharged "between 1979 and the date of the complaint" or alternatively, arbitration of grievances during that period.

19More broadly, the principle of res judicata extends "to every point which properly belonged to the subject of litigation, and which the parties, exercising reasonable diligence, might have brought forward at the time": Hall v. Hall (1958), 15 O.R. (2d) 638, citing Henderson v. Henderson (1843), 67 E.R. 313. Counsel argues that principle encompasses Mr. Persaud's allegations. Even if we were of the view that Mr. Persaud could have brought his allegations at that time, we are not convinced that he was required to include his allegations in that complaint. He is not forced to join his complaints with the complaints of other employees, particularly in light of the fact that that complaint does not specifically allege that the company and the union conspired to remove Mr. Persaud, nor does it allege that Sean Floyd and Mr. St. Pierre discussed payments of money to Mr. Floyd by the company if Mr. Floyd would remove the complainant. In our view, the principle of res judicata does not apply in this case.

20We have also considered the prejudice counsel contends the company will suffer if we hear the merits of this complaint; however, we are not satisfied that the respondents will be prejudiced by our hearing the complaint. Although counsel for the company argued that there would be a corrosive effect on the newly-developing collective bargaining relationship between the company and the union, he adduced no evidence on that point and conceded, indeed, that it may have been "inappropriate" for him to have raised that issue. He maintains that the company and the union had the right to assume these matters would not be dealt with again because they had been dealt with in Board File No. 1379-85-U; we have found, however, that the matters raised in that complaint did not include the allegations before us. The company, he says, will be the subject of further press reports. He says further that there is prejudice in the cost and duplication of proceedings (there are a human rights complaint, an arbitration and court proceedings extant). He argues further that the grievor has available other remedies which he has taken (the human rights complaint and arbitration) and that these allegations would be more appropriate before an arbitrator than this Board. In our view, the fact that the complainant has access to other forums is not necessarily a reason for this Board to decline to exercise its jurisdiction to hear these matters. Nor is this an instance in which we believe deferral of these proceedings would be appropriate. We do believe that these allegations are very much in the nature of the matters within this Board's jurisdiction: allegations of union/company conspiracy go to the heart of the system of labour relations endorsed by the Legislature of this province through the Labour Relations Act.

21Having regard to when the complainant became aware of the exact circumstances underlying the allegations in this complaint, the nature of the complaint and the lack of evidence relating to any prejudice to the company, or the union, we are not satisfied that we should dismiss this complaint on the basis of delay alone. The Board is reluctant to dismiss a complaint on the basis of a preliminary objection unless it is certain that the objection has been established and the complaint should not be entertained on the merits.

22Our refusal to dismiss the complaint at this stage is not intended as a direction one way or the other with respect to counsel for the company raising the delay issue again at the end of the case. Whether and how that issue is raised is left to counsel to determine as the course of the case unfolds, subject to our ruling on any objections at the relevant time.

23Counsel for the company questioned the application of subsection 89(5) of the Labour Relations Act to the circumstances of this case. Subsection 89(5) is the so-called "reverse onus" provision and reads as follows:

On an inquiry by the Board into a complaint under subsection (4) that a person has been refused employment, discharged, discriminated against, threatened, coerced, intimidated or otherwise dealt with contrary to this Act as to his employment, opportunity for employment or conditions of employment, the burden of proof that any employer or employers' organization did not act contrary to this Act lies upon the employer or employers' organization.

24We directed that counsel for the company make written submissions on this issue by March 31, 1987. He filed submissions on other matters (upon which no direction had been made and which impinge on matters upon which the Board has already ruled) but with respect to the application of subsection 89(5) submitted only that it was inappropriate to make submissions at this time. His submissions addressed the question of order of proceedings, rather than whether the reverse onus should apply. Given our direction to the parties, we are ruling on the issue of reverse onus as well as order of proceeding.

25The significance and impact of subsection 89(5) were considered thoroughly by the Board in I.C.B. Warehousing Division of Alar-Anson, [1976] OLRB Rep. Oct. 621. There the Board held that subsection 89(5) imposes a single legal burden on an employer; in short, subsection 89(5) places a reverse onus on an employer under the circumstances set out in the subsection. While usually the party having the legal burden of proof adduces evidence and makes submissions first (on the advantages of this scheme, see I.C.B. Warehousing, supra, para. 39), the two matters (legal burden or onus of proof and order of proceeding, or, as termed in Fielding Lumber Company Limited, [1975] OLRB Rep. Sept. 665, "the ultimate burden of proof' and the "burden of going forward" or "evidential burden") are distinct and it may be that in some cases, the party having the onus of proof will not proceed first, often (and perhaps usually) where the parties have agreed to depart from the usual order.

26This case involves a discharge; however, the essence of the question before the Board is whether there was a "conspiracy" or "secret deal" between the union and the company which resulted in Mr. Persaud's discharge, rather than the discharge itself, which in turn had the consequence of preventing Mr. Persaud from engaging in union activity. That is why there is not the overlap in proceedings between this Board and the arbitration concerned about the discharge upon which counsel for the company has placed considerable emphasis during his oral and written submissions to date. (Similarly, the issue before the Ontario Human Rights Commission is whether Mr. Persaud was the subject of discrimination on the basis of race or national origin; no such allegation forms part of the complaint before this Board.) Although we indicated in our oral rulings that we were prepared to address deferral to arbitration proceedings and the effect of Windsor-Western Hospital Centre Inc. and Mordowanec et al (1987), 1986 CanLII 2635 (ON HCJ), 56 O.R. (2d) 297 during the hearing on the merits, we make the following two observations on those issues which counsel for the company raised in his written submissions. We merely refer to the following comments from Valdi Inc., [1980] OLRB Rep. Aug. 1254:

4. [The] responsibility [of the Board under the Labour Relations Act] is a public duty and a policy of deferral to a more private process where the adjudicators are paid and selected by the parties to a collective bargaining agreement must find its justification within the four corners of The Labour Relations Act to be consistent with that public interest....

5. ... [The] arguments for and against a policy of deferral to grievance arbitration rely upon significant but conflicting values and this conflict in values, unsurprisingly - has established a 'discretionary balance" on deferral questions. The Board will defer but deferral, either before or after arbitration is in no way automatic.

We note that the nature of the allegations in the instant case impinges directly on the scheme of labour relations which the Legislature has determined is appropriate in this province: while a healthy union-employer co-operation ("harmonious relations") is encouraged, that "co-operation" is not to take the form of secret deals. On the contrary, the legislation envisions an arm's-length relationship between the employer and the union. Furthermore, it is of major import that the union and employer are both alleged to have participated in a deal leading to Mr. Persaud's dismissal. That particular aspect of the case distinguishes it from the usual discharge case before an arbitrator and brings the case into the public rather than the private realm. With respect to the Windsor-Western Hospital case, supra, we simply note that the arbitration in that case had been completed. That is not yet the case here. (We are not to be taken to mean by that comment that that exhausts our consideration of that case or its relevance to the case before us.)

27If subsection 89(5) is to apply, we must determine whether this allegation is encompassed by the open-ended list set out therein. This is a complaint under sections 64, 66 and 70 of the Act. Leaving aside the status of the complainant to bring a complaint under section 64, the essence of the complaint is that the alleged conspiracy, because it led to the discharge, prevented Mr. Persaud from participating in union activity: the conduct of the employer (and the union) has been contrary to the Act with respect to Mr. Persaud's employment, the type of conduct encompassed by subsection 89(5). We note, in response to company counsel's submission that this case differs from most cases in which subsection 89(5) has been applied because it is not concerned with unionization (here counsel is referring to order of proceeding only), that the initial period of unionization is not the only time during which an employer may engage in conduct described in subsection 89(5). In this case, the allegation relates to a period of collective bargaining between the union and the company; any attempt to reduce the union's effectiveness during that process by affecting an employee's employment would constitute anti-union animus just as it would during the union's organizing campaign. Accordingly, the employer has the legal burden in this case.

28Of course, the Board only turns to the onus to resolve a complaint in which each party has made out an equal case. Thus it is tempting to wait until the end of the case to rule on where the legal burden is placed, as counsel for the company has urged us to do. However, because of the course of these proceedings to date, an early ruling on this matter seems preferable; furthermore, we must decide the order of proceeding which, as already indicated, is closely, although not automatically, tied to the question of onus of proof.

29The Board indicated at the hearing that it would likely accede to any order of proceeding to which the parties have agreed. In the absence of such agreement, the Board agrees with counsel for the union and for the complainant that the appropriate order is as follows: the employer presents its evidence first, followed by the complainant and finally by the union. The employer, of course, has "the last word" (as does the complainant with respect to his case against the union).

30In reaching this conclusion with respect to order of proceeding, we have considered the parties' written submissions, in particular those of counsel for the company relating to the state of knowledge now enjoyed by Mr. Persaud compared to that when he was discharged or made the public comments referred to above in our decision on delay and to his point that if neither of the meetings referred to in the allegations took place, "the jurisdiction of this Board is ended". With respect to the first submission, as we note in our decision on delay, the difference between the comments made by Mr. Persaud as reported in the newspapers and this complaint is the difference between suspicion and sufficient knowledge to avoid having the complaint dismissed for lack of a prima facie case or lack of particulars. With respect to the second point, the employer may respond to the allegations by showing the meetings did not take place; alternatively, it may show that Mr. Persaud's dismissal was not motivated by anti-union animus. Whether the employer takes either or both of these approaches is the employer's choice: both require explanations which the employer is in the best position to provide.

31In summary, the majority is not prepared to dismiss this complaint on the basis of delay; the Board unanimously rules that the "reverse onus" provision applies to the respondent company and that the company shall proceed first, the complainant second and the union last.

DECISION OF BOARD MEMBER JUDITH A. RUNDLE;

1. I dissent from the decision of the majority. I would have exercised the discretion pursuant to section 89 and declined to entertain this complaint on the basis of delay.

2. The Board's policy relating to delay and the rationale for such policy is set out in the following passages of its decision in The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420:

20. 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 chrystallized, 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)).

21. 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.

[emphasis added]

At paragraph 22 the Board went on to state:

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.

[emphasis added]

3. In the present case the complainant, Mr. Persaud, could not by any standard be seen as inexperienced or as being unaware of his statutory rights. It is beyond doubt that as a former union steward, he had significant experience in labour relations matters and was fully aware of his rights. Yet he waited approximately two years and two months from the date of his dismissal before filing this complaint.

4. Mr. Persaud agreed that he had made the statement reported in the Globe & Mail of July 5, 1985 that he "sees himself as an unwitting victim of a secret deal between his former employer and his union". Since this alleged "secret deal" is the crux of this complaint (as opposed to the discharge itself) it is clear by his own admission that at least as early as July 1985, Mr. Persaud was aware of the violation now alleged. Furthermore, in his complaint to the Human Rights Commission dated October 15, 1984, Mr. Persaud states at paragraph 11 that "Dassy was heard telling employees that he would give a statement which would get me fired".

5. When considering these facts in light of the Board policy as set out in City of Mississauga (supra), and followed in numerous subsequent cases, it becomes clear that there has been extreme and unjustified delay in the filing of this complaint. The complainant is experienced in labour relations. He was publicly alleging the very substance of this complaint as early as October of 1984. There is no doubt that if he had acted diligently, he could have informed himself more fully to have filed this complaint much earlier than he did.

6. A major consideration in my decision is the adverse impact of this delayed litigation on the collective bargaining relationship between Consumers and the union. In the City of Mississauga case, at paragraph 21, the Board referred to "the potentially corrosive effect which litigation can have on the parties' current collective bargaining relationship" and also stated that "adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past". These concerns are directly applicable here. The employer and the union here have had an extremely disruptive and unpleasant relationship during the past few years. Through the legal system those responsible have been brought to justice. The company and the union have brought in new personnel in the hope of creating a new relationship. In my view, the Board is not facilitating or promoting harmonious labour relations by allowing the complainant at this point to resurrect "ghosts from the past". On the contrary it will have a corrosive effect on the bargaining relationship which has been mended after some turbulent years.

7. In summary, Mr. Persaud did not learn anything from the Toronto Star article that he did not know or that he could not have known with due diligence. The delay is extreme and unjustified. Good labour relations policy dictates that this litigation should not be permitted at this late point of time.

8. For all of these reasons, and also considering the absence of overriding circumstances or public policy reasons requiring the Board to ignore this lengthy delay, I would have declined to entertain this complaint.

9. I concur with the majority decision with respect to the onus issue and order of proceeding.