[1989] OLRB Rep. February 227
1369-88-R London and District Service Workers' Union, Local 220, S.E.I.U., A.F.L., C.I.O., C.L.C., Applicant v. Woodstock & District Association for the Mentally Retarded, Respondent v. Group of Employees, Objectors
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members D. G. Wozniak and H. Peacock.
DECISION OF THE BOARD; February 10, 1989
This is the continuation of an application for certification. In its decision dated November 24, 1988, the Board ordered a representation vote, after finding that the petition filed by objecting employees was voluntary. The ballot box was ordered to be sealed because of the submissions of the applicant that it had not received Notice of the Hearing on the voluntariness of the petition.
Notice of the November 3, 1988 hearing on the issue of the voluntariness of the petition was sent by priority post to all parties to the certification application. This date was set after the first appearance of the parties on September 30, 1988, at which time the parties adjourned on consent and asked for a hearing in two weeks time in Woodstock or London. On November 3, the union did not appear. The Board waited half an hour, during which it tried unsuccessfully to reach the applicant, proceeded to hear evidence on the voluntariness of the petition, and gave an oral ruling ordering a representation vote at the end of the day.
On November 15, 1988, the Board received a letter dated November 9, 1988 from the union in which it claimed it had not received notice of the November 3, 1988 hearing and asked for a hearing date to present its evidence on the voluntariness of the petition. In its decision dated November 24, 1988, the Board directed the applicant to set out the material facts and submissions relied upon to establish its right to a further hearing, allowed the other parties time to respond, and said that we would then decide whether or not a further hearing would be scheduled. The union relies on the following facts, set out in its letter of December 7, 1988, to support its request for a reconvened hearing on the issue of the voluntariness of the petition:
On Wednesday, October 26, 1988 at 10:00 a.m. a strike by Union Representatives commenced at the Local 220 Union Office on 228 Clarence Street.
At this time the union Office building was closed until further notice. A notice to this effect was put on the door after the strike commenced.
A picket line was set up at the Union Office on the same day. No one crossed the picket line. The picket line continued until the strike was resolved (Thursday, November 17, 1988).
After the strike commenced the Union rented a post office box to which all mail was directed and received.
On Wednesday, November 9, 1988, M. Morn (Secretary-Treasurer) attended at the Union Office at 228 Clarence Street in the evening after the picket line was taken down. As he was entering the building he noticed that an envelope from the Ontario Labour Relations Board was lying on the floor inside the building and under the mail slot in the door. He then took the unopened letter into the temporary office the following day where it was stamped. Enclosed is a copy of the Notice of Hearing date stamped November 10, 1988.
Enclosed is a copy of the envelope. As can be seen there is a reference to "on strike".
The union maintains that the facts establish that they did not receive notice until one week after the hearing and that therefore the presumption in section 113(1) of the Act is thereby displaced, relying on Kraft Food, [1966] OLRB Rep. Dec. 729. The objecting employees take the position that the facts set out by the union confirm that the letter was correctly addressed and correctly delivered. In their view, notice was in fact received but not read, which distinguishes this situation from the one in Kraft Food, supra. They point to the applicant's application for certification which set out the address for service, at which it was served. They say that this, coupled with the fact that the union did nothing from October 26, 1988, the date on which the staff struck, until November 9, 1988 when the union representative picked up the mail, constitutes receipt of notice as contemplated by section 113. They argue that the union made no effort to acknowledge receipt at that time but that this cannot change the fact of receipt.
Kraft Food, supra relied upon by the union, is a case in which the trade union sent the employer a letter by ordinary mail seeking negotiations to renew the collective agreement. The evidence disclosed that the letter was not received by the employer and therefore the Board held that the Act's presumption of receipt (now section 113) did not apply. Unfortunately the report of the decision does not indicate what the circumstances of the non-receipt were. It is therefore impossible to tell whether the situation is analogous. If notice is not received, the Board will reschedule a new hearing. See, among others, Catalyst Technology (Canada) Limited, [1987] OLRB Rep. Sept. 1131. The question remains whether delivery at the address given for service amounts to receipt of notice. We have considered the matter on the assumption that the facts as set out in the union's submission are true.
There are a variety of cases in the Board's jurisprudence which have discussed issues relevant to our consideration of this matter. These relate to various allegations of failure to give or receive notice, reconsideration applications and adjournment requests.
In Swiss Chalet, [1972] OLRB Rep. Feb. 162, there was apparently no evidence of what had happened to the notice of hearing. The evidence disclosed only the normal process of receipt of mail. In refusing to re-open and reconsider, the Board said at page 164:
It would lead to chaos if the Board would go behind the fact of service in accordance with the Act and the Rules of Procedures so as to permit parties to seek relief on the grounds of internal difficulties arising subsequent to the proper service.
In M. Sullivan & Son Ltd., [1979] OLRB Rep. Jan. 58, the Board dealt with a situation where a section 79 complaint had been dismissed following non-appearance of the complainant. The complainant later brought a new complaint, essentially the same, which the Board refused to entertain. The union maintained that the Notice of Hearing had been held up in the mail between Toronto and Thunder Bay for a period of three weeks, and that the Notice of Hearing was not received at its Thunder Bay office until the hearing date. The business representative had seen the secretary open the mail on the day of hearing, but there was no evidence that the notice had in fact not been received at the office prior to that date. The Board took into account that the complainant did not follow up on its own complaint. The union failed to inquire of the Board why it had received no Notice of Hearing in the weeks following its application. Even when a Board officer met with the complainant's business representative it did not appear to have voiced any concern about not having received a notice of hearing. The business representative acknowledged that the officer might have mentioned the hearing date. The Board held on the above evidence that it was not satisfied that the complainant had proved that it did not receive the Notice of Hearing in the ordinary course of the mails, and found that the complainant likely did receive the Notice of Hearing and that it was through carelessness or inadvertence that it failed to attend the hearing into the original complaint. The Board held that the absent party bears the onus of showing why the matter should be inquired into again and that where factors beyond the control of the party are not shown a careful weighing of a number of considerations must be undertaken. The Board took into account the reasons for nonattendance (inadvertence) and the nature of the complaint (involving the construction industry where employment relationships tended not to be permanent). Citing the importance of avoiding delay to a sound industrial relations policy and the orderly administration of the Act, the Board found the facts did not warrant reopening the matter.
In a section 68 complaint, Amalgamated Clothing and Textile Workers' Union, [1983] OLRB Dec. 1947, where the union failed to appear at a hearing because it had not read the Board's notice because it believed the matter was settled, the Board declined to reopen the case. The Board found that there was no reasonable excuse for the union to have concluded that there had been a settlement and that the failure to read the notice was not a bona fide mistake. The Board said that if the circumstances of the case were grounds for a hearing de novo, no proceedings before the Board would ever be final and the expeditious resolution of applications and complaints would be substantially undermined. Therefore a request for reconsideration and rehearing was dismissed.
In Norben Ontario Design Ltd., [1984] OLRB Rep. June 851, the Board declined to reopen a case in which the respondent, who operated in both Ontario and Quebec, did not check its Post Office Box in Ontario in time to receive the Notice of Hearing. The Board, citing Johnson Painting Co. Ltd., [1983] OLRB Rep. June 919, held that the Board and the public were entitled to rely upon the business address provided by the company in Ontario. The fact that the partners of the respondent emptied the mail box only once every two weeks did not establish that the respondent had not received notice of the application. The Board said:
Under the circumstances where a business address is provided for the public, the party which provided that ignores and fails to advise itself of correspondence does so at its peril. The respondent is not able to hide behind a Post Office Box for the purpose of denying a service of documents upon it. On the evidence before it, the Board is satisfied that the respondent in fact had notice of this application and could have filed a timely reply.
See also Daugulis Company Limited, [1969] OLRB Rep. April 128.
In Ferano Construction, [1985] OLRB Rep. Jan. 73, the respondent had not filed a reply to a certification application because the registered mail containing the request for the information was not accepted by the company on the date of its delivery, due to the absence of its controller. Referring to Norben Ontario Design, supra, the Board reaffirmed that where a business address is provided for the public the party which has provided it fails to advise itself of correspondence at its own peril and declined to reopen the matter. The Board underlined the need for finality in Board proceedings and said that it was not open to a party to raise matters later that could have been raised at the time the matter was initially considered by the Board.
In Coldmatic - Refrigeration of Canada Ltd., [1985] OLRB Rep. July 1009, the respondent failed to attend a hearing because it "had no knowledge of any basis on which the applicant could claim to be a party to a collective agreement." After the Board's decision, the respondent asked for reconsideration. The Board reaffirmed its policy and practice on reconsideration applications, i.e. the Board will not grant reconsideration unless a party shows that it can adduce new evidence which was not previously obtainable by reasonable diligence and that evidence would, if adduced, be practically conclusive. Further, the party must satisfy the Board that it had no opportunity to raise representations or objections previously. The Board rejected the application for reconsideration on the basis that the respondent had simply chosen not to come to the hearing.
In Waterloo Glass and Mirror Ltd., [1984] OLRB Rep. June 883, the Board was faced with a request for an adjournment because the Notice of Hearing, although received at the applicant's offices nine days before the scheduled date for hearing, had not been brought to the attention of the business agent until two days before the hearing. Additionally, the representative was required to attend on the same day before another panel of the Board with respect to a different matter. The Board denied the adjournment, holding that late receipt by a party of a Notice of Hearing may be appropriate grounds for an adjournment but that in the facts of the case the applicant had received the notice of the hearing in plenty of time.
In Soo Dairies Ltd., [1968] OLRB Rep. April 115, objecting employees failed to appear at a hearing due to a mistake of their solicitor; the Board declined to re-open the matter. Similarly, in Russell Mac Vicar Ltd., [1980] OLRB Rep. July 1049, the Board reaffirmed that a mistake of the party or its counsel which results in a failure to attend the Board hearing is not a ground requiring reconsideration of the Board's decision or a rehearing of the original matter. At paragraph 6 it said as follows:
One of the principal purposes of an administrative agency is to process the matters that come before it with expedition and economy. This value can only be achieved if there is finality to the Board's decision in the vast majority of cases. To rehear cases because one party made a mistake and neglected to attend a hearing would substantially impair this end.
See also Corporation of the City of Sault Ste. Marie, [1987] OLRB Rep. Oct. 1319 where a request to reopen a matter because of a solicitor's error and failure to meet a hearing date was denied.
In summary, cases where notice reached the address given for service, but was not read because of administrative difficulties, mistake, or failure to inquire on behalf of the addressee, have not been considered cases where notice has not been received and matters have not been reopened. Receipt of notice has not been held to mean reading of the notice by the addressee. Rather, it has sufficed if the notice was available to be read at the address given by the party concerned. Implicit in the cases is the question of whether failure to receive notice was beyond the control of the party claiming to have not been notified.
Was the failure to read the notice until after the hearing beyond the control of the union? The facts set out by the union indicate that it could have read the notice earlier. It was not submitted that the union could not have picked up the mail until after the picket line was discontinued after November 17, 1988. The Secretary/Treasurer picked up the notice when he attended the office to which the notice had been addressed in the evening after the picket line was down before that date, on November 9, 1988. Further, the union did not advise the Board of any change of address for service.
We are of the view in the circumstances of this case that the union did receive notice; it was available for reading by them at the address it had given to the Board for service. We do not find that the facts as set out displace the presumption of receipt in section 113(1) of the Act. Therefore, we will not re-open our decision of November 24, 1988. We confirm that decision and order that the ballots from the vote be counted.