[1988] OLRB Rep. June 599
1969-87-U Roland Fillion, Complainant v. Joseph Brant Memorial Hospital, VS Services Ltd., and Canadian Union of Public Employees, Local 1065, Respondents
BEFORE: R. A. Furness, Vice-Chair, and Board Members D. Patterson and J. A. Ronson.
APPEARANCES: C. J. Abbass and Roland Fillion for the complainant; Susan A. Lewis for Joseph Brant Memorial Hospital; James G. Knight, Ron Moumblow and Judith Martin for VS Services Ltd; Brian Sheehan, Joanne Lloyd and Tim Shalhan for the Canadian Union of Public Employees, Local 1065.
DECISION OF THE BOARD; June 14, 1988
1The name of one of the respondents appearing in the style of cause is amended to read "Canadian Union of Public Employees, Local 1065".
2The complainant has filed a complaint under section 89 of the Labour Relations Act. A panel of the Board (differently constituted, in part) entertained a request for an adjournment by the complainant on February 3, 1988. The Board ruled orally and subsequently reduced its decision to writing on February 4, 1988. In that decision the Board stated, in part, as follows:
The request for an adjournment based upon the desire to be represented by counsel is rejected by the Board. The complainant has had a reasonable opportunity to retain counsel and has not availed himself of this opportunity. The request for an adjournment was also based upon a belief and an assertion by the complainant that a proceeding before the Workers' Compensation Board may have a bearing on the issues in the instant complaint. The complainant has not satisfied the Board that the other proceeding will have a bearing on the instant complaint. Accordingly, the Board is not prepared to grant an adjournment of this hearing on this ground.
At the commencement of this hearing Local 1065 filed its reply and requested particulars of the complaint. This reply was not a pro forma reply as was the case in Baycrest Centre of Geriatric Care, [19761 OLRB Aug. 432. In these circumstances, while the complainant is required to provide particulars of its complaint, the Board is of the view that this request ought to have been made on an earlier date. The complainant is entitled to a reasonable opportunity to provide these particulars.
In these circumstances, the Board grants an adjournment of this hearing in order to give the complainant an opportunity to file its particulars. The Board directs the complainant to provide the particulars requested by Local 1065 to the parties and to file such particulars with the Board on or before February 18, 1988.
3The complainant filed additional material which was received by the Board on February 17, 1988. In addition, counsel for the complainant filed particulars with the Board. Although counsel's letter was dated March 7, 1988, his letter was not received by the Board until April 5, 1988.
4At the hearing on April 12, 1988, the Board entertained a number of motions with respect to this complaint under section 89 of the Act.
5It was the position of Joseph Brant Memorial Hospital (the "Hospital") that this complaint ought to be dismissed as against the Hospital. It was the position of the Hospital that it did not have an employer-employee relationship with the complainant and that it was not properly a party to the complaint. At the hearing before the Board, counsel for the complainant conceded that the Hospital was never the employer of the complainant. Counsel for the complainant also agreed that the complainant was employed by VS Services Ltd. ("VS"). In addition, counsel for VS stipulated that it had been the employer of the complainant at all material times. Counsel for the Canadian Union of Public Employees, Local 1065 ("Local 1065") also agreed that VS and not the Hospital was formerly the employer of the complainant.
6Having regard to the material before it and to the representations of the parties, the Board finds that the complainant has not stated in its complaint a violation of any provision of the Act by the Hospital. In these circumstances, the Board dismissed this complaint in so far as it relates to the Hospital.
7The Board entertained a motion with respect to the particulars filed by counsel for the complainant. It was the position of VS and Local 1065 that the Board ought not to permit counsel to file particulars which were not filed within the time provided for by the Board in its ruling of February 3, 1988. The ruling of the Board which directed the complainant to file particulars also directed that such particulars be filed with the Board on or before February 18, 1988. Both the complainant and his counsel were aware of the direction. The complainant complied with the direction. Counsel for the complainant did not offer any extenuating circumstances for not complying with the terms of the Board's direction of February 3, 1988. In these circumstances, and in accordance with the provisions of section 72 of the Board's Rules of Procedure, the Board strikes from the complaint the matters to which counsel's particulars allegedly relate.
8The complainant in his complaint has alleged violations of sections 63, 66(c), 67, 68, 89, 91(18) and 95 of the Act. Section 63 is not an unfair practices section and the Board finds that none of the allegations raise any issue under section 63. This complaint is dismissed in so far as it relates to section 63. Section 89 is a procedural section which does not in itself confer rights and is the section under which this complaint has been filed. Section 91(18) refers to a situation which there is a conflict between two or more collective agreements with respect to the description of bargaining units and permits an application to be made by an employer or a trade union. The allegations do not give rise to any application of section 91(18) and the complainant, in any event, has no standing to invoke the provisions of section 91(18). This complaint is dismissed in so far as it relates to section 91(18). Section 95 refers to notice of a claim for damages after an unlawful strike or unlawful lockout where no collective agreement is in operation. Section 95 has no application on the alleged facts of this complaint and this complaint is dismissed in so far as it relates to section 95. The complainant has also raised in a peripheral manner the Hospital Labour Disputes Act and sections 137 to 151 of the Labour Relations Act. Nothing in the allegations in the complaint relate to the Hospital Labour Disputes Act or sections 137 to 151 of the Labour Relations Act and the complaint with respect to such Act and sections is accordingly dismissed.
9VS requested the Board to dismiss this complaint in its entirety on the grounds that the complaint as particularized disclosed no prima facie case against it. The Board is not prepared to dismiss this complaint as requested by VS with respect to the complainant's allegations with respect to sections 66(c), 67 and 68 of the Act.
10The Registrar is directed to list this matter for continuation of hearing.