The Coalition of Laid-off Workers, Ontario, Canada v. The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada, 1990 CanLII 5711

[1990] OLRB Rep. October 1019

2895-88-U The Coalition of Laid-off Workers, Ontario, Canada. Hereinafter known as the C.L.W., Complainant v. The National Automobile, Aerospace and Agricultural Implement Workers Union of Canada. Hereinafter known as the C.A.W., Locals 439 and 458 of the C.A.W., Respondents v. Varity Corporation, Intervener

BEFORE: Robert Herman, Vice-Chair, and Board Members R. W. Pirrie and D. A. Patterson.

APPEARANCES: Karl Ellison and David Jack for the applicant; Len Maclean, Jack Tubman, Mike Merone and Dan Webster Jr. for the respondent; C. G. Riggs and E. D. Ludlow for the intervener.

DECISION OF THE BOARD; October 5,1990

1. The named complainant, the Coalition of Laid-off Workers ("the C.L.W."), is an organization that was formed to represent approximately 125 former employees of Massey-Ferguson who were terminated or permanently laid off when several plants were closed by that company. The intervener, Varity Corporation, was, prior to June, 1986, Massey-Ferguson Limited. At the time the plants were closed, the U.A.W. was the employees' bargaining agent. The respondent C.A.W. is the successor to the U.A.W.

2. In a prior decision, dated February 28, 1990, the Board confirmed and expanded upon several rulings made orally at the hearing held on January 30, 1990. The Board dismissed the complaint insofar as it sought to rely upon the provisions of section 50 and 52(5) of the Labour Relations Act. The Board ruled that the complaint under section 68 would proceed. It ruled that the proper complainants are the individual complainants represented by the nominally named complainant, the C.L.W. The Board also directed, confirming the decision it had made at the hearing on January 30th, that further particulars be provided by the complainants. The decision of February 28, 1990 set out in detail the requirement with respect to the filing of further particulars, and the consequences of failure to do so.

3. In a subsequent decision, dated March 28, 1990, the Board granted the request of the complainants that the deadline for the filing of further particulars be extended.

4. The complainants then asked for a further extension. In a decision dated April 18, 1990, the Board declined to further extend that deadline. The Board also declined to issue 115 Summonses to Witnesses which Mr. Ellison, the President of the C.L.W. and the representative of the complainants, had requested so that he could have each complainant provide the particulars through testifying. The particulars were not filed by the required deadline. In a decision dated June 1, 1990, the Board confirmed its prior decisions that materials filed beyond the deadline would not be considered and that the case would proceed solely on the basis of the particulars already filed.

5. The hearing resumed on August 14, 1990. In correspondence since the last hearing day Mr. Ellison wrote that the C.L.W. no longer represented certain complainants. At the hearing, none of the following complainants were present and Mr. Ellison advised the Board that they were no longer represented by the C.L.W. (or Mr. Ellison):

Victor Antonio

Roland Brito

Rene Dellosa

Berris Dunkley

Dave Farrington

Lutchmi Gajadhar

James Graham

Nikola Kralj

Lloyd Lasley

Mohesh Patel

Winston Mills

Jack Mitchell

Ray Porter

Henry Poirier

Teddy Radhay

Batic Radomir

Lurio Senador

Pedro Silot

Ram Singh

George Stayman

Wayne Tyler

George Williams

6. There was no indication that any of these individuals wished to continue with their complaint. They were no longer represented by the C.L.W., they did not appear at the hearing although duly notified, and they had not contacted the Board to indicate they wished to continue with their complaints. Accordingly, the Board dismissed the complaint with respect to the above-named complainants. The remaining complainants are those listed in Appendix "A" to this decision.

7. Mr. Ellison then asked that the Board disqualify itself, on the grounds of bias. He filed lengthy written material in support of this motion, which he read verbatim to the Board as his submissions. At the conclusion of his submissions, and after a short recess, the Board ruled it would not disqualify itself. Having read Mr. Ellison's material and considered his submissions, in the Board's view there was nothing in either the materials or the submissions which would lead the Board to disqualify itself. There was no impropriety committed by the Board in its conduct of the hearing or in reaching its earlier decision, nor any reasonable apprehension of bias which would lead the Board to disqualify itself. Accordingly, the Board ruled that the hearing would proceed.

8. The respondent CAW submitted that this section 68 complaint should be dismissed, on the ground that there was no prima facie case or, in the alternative, that there was such extreme delay in filing the instant complaint that the Board ought to exercise its discretion under section 89 of the Act and dismiss the proceeding. The parties agreed that the particulars filed by Mr. Ellison could be accepted as the facts for the purposes of considering both objections, and the Board accordingly did so. The Board also had before it numerous exhibits. Some of these were filed on agreement of the parties. Others were offered by Mr. Ellison and, over the other parties' objections, accepted by the Board.

9. Of the numerous materials, we set out some of the important ones. In the complaint form filed with the Board on February 22, 1989, (Form 58), the complainants state that:

4. …

On or about MARCH 04, 1986 the grievor(s) was (were) dealt with by Mr. Basil Hargrove Assistant to the Director of the C.A.w. Canada of the respondent contrary to the provisions of section(s) Sec. 50, Sec. 52 s.s. 5 & Sec. 68 of the Labour Relations Act in that he did on his own behalf or on behalf of the respondent: (A) Accepted a monetary settlement on the behalf of the General Membership of Loc. 439, C.A.W., with prior knowledge that, it was a sub standard offer as compared to the provisions of the Collective Agreement existing between the company and the union. (B) Revised the Collective Agreement that existed between the company and the union without the consent or approval of the General Membership of Loc. 439 C.A.W. (C) Accepted a monetary settlement on the behalf of the General Membership of Loc. 439 C.A.w., knowing full well that it discriminated against the General Membership of Loc. 439 C.A.W., insofar as, the acceptance of the settlement did in fact, violate the Rights of the General Membership of Loc. 439 C.A.w., from seeking further redress from the company as set out in the Employment Standards Act, R.S.O. 1980, chapter 137 & Regulation 286, R.R.O. 1980, regarding the provisions pertaining to Termination and Severance payments.

5. The following steps have been taken on behalf of the grievor(s) for the adjustment of the matters giving rise to the complaint (if none has been taken state the reason why): No steps have been taken. The President of the C.L.W. by form of a letter dated, March 23, 1983, requested to meet with the Executive Board of Loc. 439 C.A.W. The request was denied. Further, the President of the C.L.W. by form of a letter dated, April 19, 1983, asked the same Executive Board for a meeting. There was no reply from Loc. 439. Again the Special Advisor from the C.L.W. by form of a letter dated, April 17, 1985, requested to meet with the Executive Board of Loc. 439 C.A.W. It was again denied.

6. The person, trade union, council of trade unions or employers' organization set out above in paragraph 3(a) is affected by the complaint for the following reason(s): Massey-Ferguson Ltd. failed to comply with, as well, the C.A.W. Local & National Officer did not protect our Rights under the Employment Standards Act, R.S.O. 1980, chapter 137, Sec. 40, s.s.l, par(A),(B),(C) & (D). Also Sec. 40, s.s.2. Also Sec. 40, s.s.7, par (A), (B) & (C). Also Sec. 40a, s.s.2, par(E), (F) & (G). Further under Regulation 286, Sec. 4, par (A), (B) & (C). Also any other applicable sections of the Employment Standards Act and or any parts of Regulation 286.

7. Other relevant statements: On the day of February 19, 1987, a decision was issued by a Referee appointed by the Ontario Labour Relations Board, regarding the Claims of Five individuals pertaining to the same Claims listed here by the Grievor and from the same Local Union, National Union and Company as the Grievor. The Award issued to the Five individuals far exceeded those people that received amounts in accordance with the Memorandum of Agreement, dated March 04, 1986. The Respondents were very much aware of the existence of the Five Claimants and were also invited to participate with the Five Claimants. The National & Local union by form of a letter refused the offer. whereby, they were willing to knowingly settle for much less than the Ontario Labour Laws provided. Copies of the Memorandum of Agreement and the Memorandum of Settlement are presently on file with the Ontario Labour Relations Board.

10. In a letter dated August 5,1989, Mr. Ellison wrote to counsel for the respondents setting out further particulars, as follows:

In regards to the complaints filed by the C.L.W. on Form 58 and in particular Section 50 of the Ontario Labour Relations Act. The C.L.W. alleges that, the Officers of the Master Bargaining Unit of Loc. 439 CAW. and the assigned Officers of the National C.A.W. that participated in negotiations with the company of Massey-Ferguson Ind. Ltd., Toronto, involving the matters of Termination and or Severance Pays for the Employees, did so, without proper or legal authority from the Employees. Further, said Officers accepted a settlement which in fact prohibited further actions being taken against the Company by the Employees.

Furthermore, in accepting the said agreement, known now as the "Memorandum of Agreement", 1986, the C.A.W. Local and National level Reps did not work in compliance with the existing "Separation Agreement" which is listed in the Local Union Benefit Agreement. Nor was the 2.9. million dollars calculated in accordance with the minimum standards of the provisions that govern Termination and or Severance Pays under the Ontario Employment Standards Act and also Regulation 286.

Therefore, those responsible for the acceptance of the "Memorandum of Agreement" 1986, are, in our eyes, guilty of changing an existing Collective Agreement without the consent of the General Membership of Local 439 C.A.W.

Since you are a Lawyer, you must realize by now, that, unless otherwise stated, Two parties of an Agreement, can not change an Agreement in part or whole, unless all parties to that said agreement authorize such changes. We, the C.L.W. allege that, the General Membership of Local 439 CAW. did not provide such authorization or consent, either written or verbal to those responsible for the signed negotiated settlement now known as the "Memorandum of Agreement".

Section 50 of the Ontario Labour Relations Act clearly states and I quote, "a Collective Agreement is, subject to and for the purpose of this Act, binding upon the Employer and upon the Trade Union" etc. etc. Of course the essential word is BINDING.

Therefore, on Form 58 as filed by the C.L.W., the C.L.W. applies that Section 50 of the Ontario Labour Relations Act was in fact, violated by the team of Officers from the Local and the National levels of the C.A.W. that did in fact participate in the negotiations that resulted in the birth of the "Memorandum of Agreement", 1986. The C.L.W. nor its' Officers are required to furnish said Council for the Respondent Union as to specific Names, Dates or Places and Times in reference to the Officers referred to in the previous paragraphs of this letter.

However, the C.L.W. is prepared to introduce Physical and verbal Evidence to support their claims, but, only when we meet before the Ontario Labour Relations Board for our Hearing.

Part Two of our Complaint under Section 89 of the Ontario Labour Relations Act deals directly with Section 52, Sub Section 5 of the Ontario Labour Relations Act. Insofar as the C.L.W. alleges that the Officers of Local 439 C.A.W. and in particular certain C.A.W. National level Officers advised any and all of the General Membership of Local 439 CAW. that, the negotiation taking place at the time, dealt solely with the argument of "Improper Layoffs". Not on the matters of Termination and or Severance Payments. Furthermore, any signed authorization forms from the Local Union provided, did not set out in detail or otherwise what, in fact, the General Member was signing authorization to be represented for by the Local Union against the Company.

You and I both realize that, "improper layoffs" are a matter for arbitration when, there exists a Collective Agreement which, includes provisions of that nature. Then and only then it becomes a matter for arbitration when in fact, the grievance procedure has been exhausted. That is, provided the Collective Agreement outlines a grievance procedure. Those actions do not require the consent or authority of the General Membership. They are, in fact, matters that, begin at the third step of a Grievance Procedure due to the fact that they are matters that deal in the areas of Policy grievances.

In any event, they do not apply to our current complaints against the Respondent Union.

Again we, the C.L.W. will provide Physical and verbal evidence at the hearing to support our claim that, the Respondent Union violated Section 52, Sub Section 5 of the Ontario Labour Relations Act.

Part Three of our complaint as listed on Form 58, under Section 89 of the Ontario Labour Relations Act, deals directly with Section 68 of the Act.

The C.L.W. alleges that, representatives of the Respondent Union at the National and Local levels did not have the authorization or consent of the General Membership to represent them on matters such as Severance and or Termination payments. Furthermore, the Respondent Union deliberately mislead and misinformed each member that did sign any authorization forms provided by the Respondent Union Reps. With our evidence to be introduced at the Hearing, we intend to prove specifically how, when and where the Respondent Union acted on our behalf in Bad faith by deliberately misleading its' Membership.

Furthermore, the Respondent Union accepted a settlement on the behalf of its' Membership which Prohibited any of its Membership from taking further actions against the Company in regards to any of the areas covered by the settlement. whereby, the acceptance of the settlement actually and in full, Discriminated against any and all Members from exercising their Rights to proceed any further against the company of Massey-Ferguson Ind. Ltd., Toronto, on any matters pertaining to Severance and or Termination payments.

With regards to the question of the Respondent Union allegedly acting in an Arbitrary manner. The C.L.W. alleges that, the Respondent Union did not provide us with options to proceed as outlined in the Employment Standards Act. In particular, any and all provisions which govern the areas of Severance and or Termination Pay. Including Regulation 286. But, in fact, even though the Respondent Union Reps. had prior knowledge of the Employment Standards Act and Regulation 286, they proceeded to negotiate and to accept a Sub Standard settlement which was in fact, well below the minimum standards of the Employment standards Act and Regulation 286.

My own personal evidence will provide without any doubt, that, the Respondent Union was in access and possession of the Employment Standards Act, Regulation 286 and the Ontario Labour Relations Act. Further that, the Respondent Union did, in fact, have prior knowledge of the provisions of said Acts and Regulations, but, made no attempt to apply any or part or all of the Sections and Articles pertaining to the issues at hand.

However, the Respondent Union elected to proceed on their terms and conditional provisions. Regardless of their knowledge of greater monetary provisions as outlined in the Employment Standards Act and Regulation 286.

In short, the Respondent Union Reps. deliberately did not do their best to represent their Members on these matters. They did what they wanted to do without due concern for the Rights of the many people that Trusted them to give them proper representation.

11. The Board also had before it a copy of the settlement between five former employees of Massey-Ferguson (including the complainants Ellison and Hinds) with respect to their termination pay and other amounts pursuant to the Employment Standards Act (Exhibit 2), and the decision of the Referee appointed under the Employment Standards Act, in which the Referee approved the settlement (Exhibit 3). The decision of the Referee explains some of the background of the instant proceeding. It reads, in part, as follows:

DECISION

The employees of the Respondent in both Toronto and Brantford were, at all material times, represented for collective bargaining purposes by locals of the United Automobile, Aerospace and Agricultural Implement workers of America (the U.A.W.) which has since become the Canadian Auto Workers. It is common ground that the U.A.W. obtained the written authorization of employees in respect of the right to negotiate on their behalf with the Respondent, in conjunction with officials of the Employment Standards Branch of the Ministry of Labour, respecting their claims to termination pay and severance pay under the Employment Standards Act arising out of the whole or partial discontinuance of operations at the Respondent's plants in Toronto and Brantford.

On March 4, 1986, the Respondent and the U.A.W. executed a memorandum of agreement in full settlement of the claims of all employees on whose behalf the Union was authorized to negotiate a settlement. I am satisfied that the compromise so reached is permissible under the Act and is indeed contemplated by the terms of section 47(1)(b) of the Act which provides:

47(1) Where an employment standards officer finds that an employee is entitled to any wages from an employer, he may,

(b) receive from the employer on behalf of the employee any wages to be paid to the employee as the result of a compromise or settlement;

The evidence and representations before the referee establish that the rights under the Act of all employees save the five remaining claimants in this reference are finally determined and settled for all purposes by the terms of the memorandum of settlement of March 6, 1986 concluded between the Union and the Respondent. As the U.A.W. proceeded to negotiate with the authorization and knowledge of the employees concerned, I find and determine that the rights of any employee who did not revoke his or her express or implied authorization to the Union by filing a separate claim under the Employment Standards Act on his or her own behalf prior to the date of the settlement are settled and determined for all purposes of the Act. The right of those employees is to share in the proceeds of the settlement, as concluded and implemented by their Union in accordance with the terms of the memorandum of agreement.

Only five claims remain outstanding. I am satisfied that each of the five claimants remaining in this reference either refused to authorize the U.A.W. to represent them in respect of their rights under the Employment Standards Act or, if they initially signed an authorization form, clearly and unequivocally revoked it by subsequently filing a separate individual claim with the Employment Standards Branch under the Act prior to March 6, 1986, the date of the memorandum of agreement between the Union and the Respondent. These are, in other words, the only outstanding claims in respect of which the Respondent or its successor, the Massey Combines Corporation, may be liable under the Act.

During the course of the hearing, and after a substantial amount of evidence had been adduced, the Respondent, through its successor the Massey Combines Corporation and the Claimants reached terms of settlement which were incorporated in a memorandum of agreement dated January 20, 1987. The agreement reached is expressly described as being without prejudice to the parties' positions. The memorandum provides for its ratification by the Respondent which I am now advised by counsel was done on February 4, 1987. A copy of the memorandum, now signed by both parties has been filed with the referee.

In accordance with the agreement of the parties, therefore, and being duly notified of their consent to this Decision I hereby order that the Respondent pay to the respective claimants within 30 days of the date of this Decision, the following amounts, subject to appropriate deductions for Unemployment Insurance and income tax purposes:

D. Aitchison $7,537.44 w. Archer $5,246.40 K. Ellison $6,403.20

R. Hinds $4,655.04

W. Lucente $9,468.80

Dated at Toronto this 19th day of February, 1987.

12. Attached to the decision of the Referee is a copy of the Memorandum of Agreement, dated March 4, 1986, between the intervener and the respondent, in which those parties settled the termination and severance pay claims with respect to the former employees who had authorized the union to represent them in this matter. This settlement apparently covered all of the complainants, except for Hinds and Ellison, who were covered by the settlement set out immediately above. This Memorandum of Agreement reads as follows:

MEMORANDUM OF AGREEMENT

The Union has initiated an action pursuant to the Employment Standards Act on behalf of certain employees who were terminated or laid off in the Massey-Ferguson operations since 1981.

The Union, on behalf of all present and former employees in the Bargaining Unit who authorized the Union to represent them in this action, releases the Company with respect to all claims involving layoffs or terminations from January, 1981, to date. While the parties recognize former or present employees who have not authorized the Union to represent them may have a claim and if so, they intend this agreement to embody those individuals and will invite and encourage them to participate in this settlement. Such individuals can do so by demonstrating a claim and authorizing the Union to represent them and releasing the Company from further liability.

While in no way admitting liability, the Company shall accrue based on future operations at the rate of $100,000 per month starting February 1, 1986, to provide monies available to the eligible individuals in settlement of the claims heretofore mentioned. The total amount of the settlement shall be $2.9 million. In order to facilitate access to the monies, the Company agrees to advance the following sums on the dates specified:

April 1, 1986 - $900,000.00 February 1, 1987 - $1 million February 1, 1988 - $1 million

The 1986 and 1987 advances may be combined by agreement whereby the 1986 advance is sufficiently delayed to warrant the moving up of the 1987 advance (i.e. rather than $900,000.00 on April 1, 1986 and $1 million on February 1, 1987 it would be $1.9 million on December 1,1986).

Disbursement of the monies shall be as negotiated by the parties in contemplation of the intent of this memorandum, and governed by the validity of the claims.

The Union further agrees that neither it nor any of its officers or representatives shall support any group or individual action or claim rising out of any termination or layoff as contemplated in the terms of this Memorandum of Agreement.

The parties agree to inform the Employment Standards Branch of the Ministry of Labour of Ontario of this settlement through their respective attorneys who will move that the hearings scheduled on the matter be cancelled and the claims considered closed.

The Company and the Union agree that any dispute between the parties concerning the interpretation, application or alleged breach of this Memorandum of Agreement, including failure by the parties to negotiate the disposition of the monies as described above, may be referred by either party without reference to the grievance procedure of the collective agreement immediately to a single arbitrator appointed under the Labour Relations Act.

13. Other exhibits included various pieces of correspondence filed by Mr. Ellison. In a letter dated March 23, 1983 (Exhibit 6), from Mr. Ellison to John Duff, President of Local 439 at the time, Mr. Ellison writes, in part, as follows:

As an organized group of laid-off workers and in fact, many of us are no longer, members-in-good-standing with Local 439's membership, we realize that you have no legal or constitutional obligations to meet with us. But, most of our members are of the opinion that you will meet with us. They feel this way because simply, they feel that you must be just as concerned as we are about the present situation at Massey-Ferguson, Toronto plants.

…we are looking forward to a meeting with you…

14. And in the letter dated May 14, 1985 from John Duff to Tom Vardy (the Special Advisor to the C.L.W.) Mr. Duff wrote, in part, as follows:

In response to your letter dated April 17, 1985 I wish to advise you that the matter of Termination Pay for laid off employees of the Massey Ferguson Corporation and members of Locals 439 and 458 UAW is in the hands of the attorneys at law for our union in Canada and their intention is to prosecute this matter to a successful conclusion on behalf of all the members who have signed the authorization requesting us to act for them.

15. In a letter dated July 10, 1985, from Basil Hargrove, the Administrative Assistant to the U.A.W. Director for Canada to Mr. T. Vardy (Exhibit 12), Mr. Hargrove wrote, in part, as follows:

As I am sure you are aware, under the Employment Standards Act of the province of Ontario, individual workers must make a claim for severance or termination pay themselves. Their bargaining agent or anyone else can only represent them if they are authorized in writing to do so.

16. We turn first to whether the complaint ought to be dismissed as disclosing no prima facie case. We must assess whether the complainants have set out sufficient facts such that there is an arguable case to be heard. This assessment must be made in context. The complaint (and subsequent correspondence) was deficient in particulars. Rather than dismissing the complaint, the Board provided an opportunity to the complainants to set out the relevant material facts, and it directed that further particulars be provided. We do not propose to recite the text of our earlier decisions on this point, but we did consider the legal requirement for particulars, and that fairness demanded they be provided (see in this regard, the prior decision of February 28, 1990). The Board indicated that failure to provide the particulars would result in the complaint proceeding solely on the basis of the particulars already filed and that the complainants would not be able to lead evidence of any material fact or matter which had not been so particularized. It also indicated that failure to file the particulars might lead to dismissal of the complaint without inquiring into the merits. No further particulars were properly filed. Since the parties have agreed that the facts can be taken as found in the materials that were properly before us, for purposes of the two preliminary objections, the Board in effect has before it all the evidence in the proceeding.

17. There is no doubt that the complainants have alleged certain matters which, if proven, might arguably constitute breaches of section 68 of the Act. For example, when the complainants allege that the respondent union "deliberately mislead [sic] and misinformed each member that did sign any authorization forms provided by the respondent union reps" (see paragraph 9, supra) they make an allegation which might arguably constitute a breach of section 68, provided material facts in support of that allegation were proven. What material facts have been alleged we accept as true. But there are not sufficient material facts to support this allegation. The complainants were directed to indicate, for example, the names of any individuals who are alleged to have made misrepresentations, the statements that were made, and the circumstances under which they were made. They failed to file those particulars. What we are left with is a mere assertion that the complainants were misled or misinformed. These are not material facts on which we can conclude that an arguable breach of section 68 has been pleaded. And insofar as Mr. Ellison and Mr. Hinds are concerned, since they negotiated their own settlements, there are not even assertions of how the union might not have represented them fairly.

18. Other assertions by the complainants might also constitute breaches if there were sufficient material facts to support them. But it does not appear that any of those allegations would arguably constitute breaches of section 68 on the facts as pleaded. To take another example, in numerous places the complainants assert that the C.A.W. did not obtain the proper authorizations from employees to negotiate on their behalf. But the complainants do not identify a single person for whom the CAW is alleged to have negotiated without proper authorization. Nor have they indicated any other material fact about the individual former employee, such as whether s/he accepted any settlement monies that the CAW obtained. The only facts we have relevant to the claim of misrepresentation contradict the allegation of misrepresentation. The documents filed by Mr. Ellison are inconsistent with the complainants' assertion that they did not understand that they were authorizing the CAW to negotiate termination and severance pay on their behalf. In correspondence between officers of the CAW and members of the C.L.W. (the complainants), the CAW advised the C.L.W. that the CAW would negotiate the termination and severance pay if specifically authorized by an employee to do so. The C.L.W. was therefore accurately advised of the nature of the authorizations employees could sign.

19. There is one submission we would specifically address. Mr. Ellison argued that there was a prima facie case because the Board Officer, who had met with the parties in an effort to settle the matter, must have already determined that a prima facie case existed, since the matter was subsequently scheduled for hearing. With respect, Mr. Ellison has misunderstood the role of a Board Officer in Board proceedings such as the instant complaint. The Officer's role is to assist the parties, to try to narrow the issues in dispute through discussion and mediation, and to attempt to settle the matter. An Officer is not authorized to, nor does s/he, rule upon whether a prima facie case exists, or whether the Board should exercise its discretion to allow a full hearing on the merits. That is a matter for the Board to determine.

20. The Board should only dismiss a complaint at this preliminary stage where there is no reasonable likelihood that a complaint can succeed on the facts as alleged. For example, in J. Paiva Foods Ltd., [1985] OLRB Rep. May 690, the Board wrote:

The Board's discretion to dismiss a complaint on the grounds that it does not disclose a prima facie case should only be exercised in the clearest of cases, that is, when the Board is satisfied that there is no reasonable likelihood that a violation of the Act can be established on the facts as alleged. This approach has been set out in the International Association of Bridge, Structural and Ornamental Ironworkers, [1982] OLRB Rep. Feb. 233 at page 234:

Although counsel for the respondents contended that the Board has a duty to dismiss a complaint which does not make out a prima facie case, section 71(1) clearly provides the Board with a discretion. In some circumstances it is eminently appropriate for the Board to exercise its discretion under that provision to dismiss a complaint where it is apparent that no useful purpose would be served in listing the complaint for hearing since the facts as alleged could not support an argument that a violation of the Act had occurred (see, for example, Heist Industrial Services, 63 CLLC 16,263; Patternmakers Association of Hamilton and Vicinity, [1970] OLRB Rep. Sept. 688; Ernest D'Andrea, [1075] OLRB Rep. Aug. 646; Local 1285 United Automobile Aerospace & Agricultural Workers Union of America, [1975] OLRB Rep. Apr. 387; Masonry Contractors' Association (Toronto-Incorporated) [1970] OLRB Rep. Dec. 1124; and Woodatl Construction Company Limited, [1979] OLRB Rep. June 597).

See also Caravelte Foods, [1983] OLRB Rep. June 875 at page 881 where the Board stated:

The words 'prima facie' in section 71 are meant to allow the dismissal of a case without a hearing where the allegations are insufficient to render reasonable or arguable a conclusion that the Act has been breached.

See also Shaw v. McLeod, (1982), 1982 CanLII 2140 (ON HCJ), 35 OR. (2d) 641. And see Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121.

21. Given the bald assertions in the materials, but the lack of material facts essential to support them, we are satisfied that there is no reasonable likelihood that the complainants can establish a breach of section 68 by the respondent union. Accordingly, the complaint is dismissed on this basis.

22. We also dismiss the complaint on the grounds of delay. In the decision of February 28, 1990, we wrote as follows:

24. We note that the respondents have indicated they will argue that the Board ought to decline to inquire into this matter on the grounds of delay; that is, the events alleged to have breached section 68 occurred so long before the instant complaint was filed, the complaint ought to be dismissed without deciding whether section 68 was breached. The particulars therefore should also set out the material facts upon which the complainants intend to rely with respect to what occurred between the events said to have breached the Act (which appear to have occurred before or leading up to March, 1986) and the date that the complaint was filed, February 22, 1989.

23. The facts particularly relevant to the delay issue are fairly straightforward. When Massey-Ferguson closed down several plants, a great number of employees were permanently laid off. These closures occurred, as the decision of the Referee discloses, between July 1981 and June, 1985. The Reference to the Referee, dealing with the rights of the employees under the Employment Standards Act, was made in June, 1985. On March 4, 1986, a settlement was reached between the CAW and the employer on behalf of all those employees whom the CAW was authorized to represent with respect to claims for termination and severance pay. The rights of those employees (which includes all of the complainants in this proceeding save for Mr. Ellison and Mr. Hinds) were finally determined by that settlement. In January, 1987, a Memorandum of Settlement was reached between five employees for whom the CAW had not been authorized to negotiate, including the two remaining complainants in this proceeding, Mr. Ellison and Mr. Hinds. It was ratified on February 4, 1987. A decision (dated February 19, 1987) of the Referee appointed pursuant to the Employment Standards Act endorsed both those settlements. Nothing further occurred until the instant complaint was filed on February 22, 1989. No explanation has been provided for any part of this lengthy delay. (As noted, no further particulars were filed.) The complainants (save Mr. Ellison and Mr. Hinds) are seeking to set aside their settlement and be awarded what they assert are the proper amounts of termination and severance pay under the provisions of the Employment Standards Act.

24. The Board's consideration of delay in the exercise of its discretion has been commented upon in a number of decisions. In The Corporation of City of Mississauga [1982] OLRB Rep. Mar. 420 the Board wrote as follows:

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 latches 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.

22. A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory rights or, who, through inexperience takes 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.

25. And in Sheller-Globe of Canada, Ltd. [1982] OLRB Rep. Jan. 113:

13. A delay of the present magnitude carries with it an element of prejudice which is undeniable. Memories fade, and a party's ability to present a defence will deteriorate for that reason alone. This is particularly true when a party is not on notice that an action against it, requiring the litigation of certain events, remains pending. Here the respondent was justifiably under the impression that the grievance route, or any further demands against the union, had been abandoned in favour of other actions against the company. The lingering discussions which the complainant's husband had with Mr. Pattison and the stewards were clearly of an amicable nature; they provided no indication that action would subsequently be directed against the trade union itself, so that notes or other forms of evidence could be more actively maintained. The defence of the employer is not the defence of the trade union in these proceedings. The Board would be concerned not with the matter of cause for discharge, but rather the steps which the respondent's officials went through in concluding in their own minds that no grounds for a grievance existed. That defence would turn upon the recollections and credibility of the respondent's own officials. It might be noted parenthetically that the Labour Board, in administering the Labour Relations Act, is primarily concerned with the ongoing labour relations of a workplace, and such workplaces do not remain static over time. The Board as a result has always been conscious of the need for expedition in its practices and procedures. The delay in the present case raises concerns over an appropriate remedy, if the Board were to permit this complaint to now proceed, which are not fully answered by the complainant's concession as to damages. In circumstances such as the present, the onus shifts to a complainant to satisfy the Board that there are compelling labour relations reasons to cause the Board to exercise its discretion and entertain the complaint under section 89.

14. The Board in CCH Canadian Limited, [1977] OLRB Rep. June 351, stated:

3. The Board as a general rule will not refuse to entertain a complaint under section 79 only because of a delay in lodging the complaint, where unreasonable delay has occurred, the Board in most cases will simply take this factor into account in assessing any compensation which might be awarded. In the instant case, however, we are of the view that because of the extreme delay in the filing of the complaint and, in the circumstance the lack of any mitigating factors which might justify or excuse such a delay, the Board should exercise its discretion under section 79 of the Act and refrain from inquiring into the complaint.

In a similar vein, see Concrete Construction Supplies, [1979] OLRB Rep. Aug. 739. In Irving Posluns Sportswear, [1979] OLRB Rep. Oct. 986, the Board found an almost three-year delay in filing a section 68 application with respect to the non-payment of certain monies to be 'extreme"~ and refused to entertain that portion of the complaint.

15. In the present case, the delay has indeed been "extreme", and the factors put forward by the complainant are insufficient to deliver her from the consequences of that delay. Certainly the Board has no quarrel with the notion of an aggrieved individual investigating other avenues of redress prior to launching a section 68 application with the Board. But a point is reached, after a reasonable period of time; when the individual must decide whether it is going to go against the trade union or not, and if so, then overt steps must be taken in that direction. The individual cannot rely indefinitely on the efforts being taken on his or her behalf in other directions, and then come back against the trade union when those efforts prove fruitless. The important point to note here is that the other forms of action being pursued by the complainant were directed solely against the employer. Not a word was said to the trade union during that period to indicate that its conduct was being viewed as unlawful, or that its own position might still be placed in jeopardy. The complainant will not now be permitted, at this late date, to use section 68 against the trade union as a last resort to reach the employer.

(upheld on judicial review, at 1983 CanLII 1655 (ON HCJ), 42 OR. (2d) 73)

26. All the complainants but Hinds and Ellison were covered by the settlement reached on March 4, 1986. That settlement finally determined and settled their rights under the Employment Standards Act. These complainants now seek to set aside that settlement and they ask that the Board award them the amounts of termination and severance pay they claim they would have received had the respondent union properly represented them. These complainants were not the only former employees who were covered by that settlement. The rights of many others were also finally determined by the settlement, and benefits were paid out and received under the settlement terms. Approximately three years have passed between the signing of the settlement and the filing of this complaint. The Board is generally reluctant to allow litigation of alleged unfair labour practices long after the events complained of have arisen. The Board is even more reluctant to permit such litigation when the matter complained of involves a settlement which has been executed and honoured and when the remedial relief sought is to nullify or rewrite the settlement. It would be extremely prejudicial and unfair to the union and the company, the parties to the settlement of March 4, 1986, to now adjudicate the question of whether the respondent union breached section 68 in its representation of the complainants with respect to that settlement. It would also be extremely prejudicial to the many former employees who benefited from that settlement who are not seeking to set it aside. It was incumbent upon the complainants, if they wished to complain about the conduct of the union in this respect, to move expeditiously to do so. As noted in paragraph 23, no explanation has been provided for the delay. Given the delay of three years and the prejudice it would cause to now proceed, we exercise our discretion under section 89 of the Act and we decline to inquire further into this complaint. The complaint is accordingly also dismissed on this ground, with respect to all the complainants save for Mr. Ellison and Mr. Hinds.

27. Mr. Ellison and Mr. Hinds were not part of the settlement entered into March 4,1986, as they had not authorized the CAW to negotiate on their behalf. They, along with three others, negotiated their own settlement of their rights under the Employment Standards Act. That settlement was signed on January 20, 1987, and was endorsed by the Referee on February 19, 1987. There is no explanation as to why they delayed approximately two years between the time that they reached a settlement and the time they filed the instant complaint. The comments expressed above about delay and prejudice apply to these circumstances as well. Where the conduct complained of concerns activity leading to a settlement, which has been executed and honoured, and by which the complainants and others have benefited, a delay of two years before a complaint is filed is too long. Accordingly, the complaints of Mr. Ellison and Mr. Hinds are also dismissed on the grounds of delay.

[Appendix "A" List of complainants omitted - Editor]