National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Venture Industries Canada, Ltd., 1990 CanLII 5744

National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) v. Venture Industries Canada, Ltd.

[1990] OLRB Rep. July 809

0697-90-FCA National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada), Applicant v. Venture Industries Canada, Ltd., Respondent

BEFORE: Ken Petryshen, Vice-Chair, and Board Members R. M. Sloan and E. G. Theobald.

APPEARANCES: Daniel A. Harris, Leo Rustin and Joey Gander for the applicant union; Randy Burke and Frank A. Angeletri for the applicant in Board File No. 2740-89-FC; no one appearing on behalf of the respondent company.

DECISION OF THE BOARD; July 23, 1990

1This is an application filed pursuant to section 40a(4) of the Labour Relations Act arising out of the request of the parties that the Board arbitrate the settlement of the first collective agreement. The hearing was held on June 19 and 20, 1990.

2On March 27, 1990, the Board (differently constituted) issued a decision directing arbitration of the first collective agreement with reasons to follow. When the panel issued the decision, it was unaware that a termination application had been filed with the Board by Randy Burke ("the Burke application"). After obtaining written representations from the parties, a hearing was scheduled to entertain the parties' submissions on how the Board should deal with the Burke application. In a decision dated May 31, 1990 the Board determined under section 40a(22) that it was appropriate in the circumstances to consider the first contract application before the Burke application. Pursuant to section 40a(22), the Board dismissed the Burke application.

3Shortly after receiving the Board's decision of May 31, 1990, counsel for the National Automobile, Aerospace and Agricultural Implement Workers Union of Canada (CAW-Canada) ("CAW") requested that the arbitration be scheduled forthwith. By written notice dated June 12, 1990, the Registrar advised the parties of the hearing dates of June 19 and 20, 1990. Prior to June 19, 1990, counsel for Mr. Burke and counsel for Venture Industries Canada Ltd. ("Venture") requested that the Board adjourn the June hearing dates. The Registrar's office advised the CAW of these requests and the Board shortly thereafter was notified by the CAW that it opposed an adjournment. The position of the CAW was communicated by the Registrar's office to both the law firm representing Mr. Burke and the law firm representing Venture.

4When the Board entered the hearing room on June 19, 1990 at approximately 9:30 a.m., no one had appeared for Venture and counsel for Mr. Burke was not present. Mr. Burke advised the panel that his counsel, Mr. Angeletti, would be a little late. In these circumstances, the Board followed its normal practice and set the matter down for 10:00 a.m. Before 10:00 a.m., Mr. Angeletti advised the Board by fax that he would not be able to appear until between 10:00 a.m. and 10:30 a.m. Mr. Angeletti appeared shortly after 10:00 a.m.

5Mr. Angeletti's letter of June 15, 1990 requesting the adjournment reads as follows:

"As you are aware, the writer is solicitor for Randy Burke, the Applicant in a termination application in Board File Number 31b7-89-R. As you are further aware, the Board has rendered a decision dated May 31, 1990 on that application and also referencing Board File Number 2740-89-FC. The Board, in that decision, dismissed Randy Burke's termination application.

This is to advise that I have now received instructions from Randy Burke, the Applicant, to seek Judicial Review of the Board decision dated May 31, 1990. However, I have also been advised that the Board has now scheduled hearings for Tuesday, June 19, 1990, and Wednesday, June 20, 1990, in Board File Number 0697-90-FCA for the purpose of hearing the evidence and representations of the parties with respect to their request that the Board arbitrate the settlement of the first Collective Agreement between the parties.

In view of that fact, I will also be bringing a stay application seeking an order to stay all procedures and hearings on these matters until the Judicial Review application has been heard.

I am attempting to obtain a date from Divisional Court in this matter with respect to the stay application, however, I will not be able to obtain a date prior to June 19, 1990. In that regard, this letter will constitute a formal request that the hearing scheduled for June 19 and June 20, 1990, be adjourned or stayed for a period of three (3) weeks in order to afford the writer the opportunity to perfect the application for Judicial Review and obtain a hearing date for the stay application. I would ask that this request be brought to the immediate attention of the Vice-Chair scheduled to deal with the hearings on June 19, 1990 and June 20, 1990.

I would appreciate your immediate response".

6At the hearing on June 19, 1990, Mr. Angeletti reiterated his request that the proceedings be adjourned in order to permit Mr. Burke to have his stay application heard by the Court. Mr. Angeletti advised the panel that the date of June 21,1990 had been obtained to at least deal with the stay application. He requested that the Board not proceed with the hearing to settle the first collective agreement until June 21 or until Mr. Burke's stay application could be heard by a Court. Although Mr. Angeletti's request was framed in this way, it was clear from his comments that Mr. Burke's concern, given that he was not a party to this proceeding, was not that the Board proceed with the hearing but that the Board would settle the first collective agreement before his stay application could be heard. The Board notes that it advised the parties at the hearing that even if the hearing was completed in the two scheduled days, the Board would not be in a position to issue a decision for practical reasons before June 22, 1990.

7After entertaining Mr. Angeletti's brief representations and after recessing to consider the matter, the Board ruled orally at the hearing on June 19, 1990 that it would be inappropriate in the circumstances to adjourn the proceeding. In the Board's view, labour relations considerations favoured proceeding with the hearing. The Board notes that one of the factors it considered was that any delay could have caused the Board considerable difficulty in meeting the forty-five day time period in section 40a(4)(b). As the Ontario Court of Appeal articulated in Cedarvale Tree Services Ltd. v. Labourers' International Union of North America, Local 183, (1971) CLLC 14,087, the Board, as master of its own procedure, is entitled to proceed with the hearing of a matter notwithstanding a pending or anticipated application for judicial review. On June 21,1990, McKeown J. of the High Court denied Mr. Burke's request for a stay of Board proceedings.

8After the Board ruled that it would not adjourn the proceeding while Mr. Burke attempts to obtain a stay from the Court, Mr. Angeletti advised the Board that Mr. Burke wished to address the Board and he then left the hearing room. Mr. Burke simply asked the Board to direct the taking of a representation vote. After considering Mr. Burke's request, the Board advised him at the hearing that his termination application was decided by another panel of the Board and that the present panel was unable to grant his request in the context of the application before us.

9As the appearances disclose, no one appeared at the hearing on June 19, 1990 on behalf of Venture. Counsel for Venture sent the following communication by fax to the Registrar dated June 15, 1990:

"We are the solicitors for venture Industries Canada Ltd. with respect to the above-noted matter. The Board hearings herein are scheduled for June 19 and 20 next.

We are writing to you to request that the above hearing dates be adjourned. Neither Mr. Michael Torakis nor Mr. Ted Lowe, our instructors herein, are available on either of the dates set by the Board. Further, our co-counsel, Mr. Stephen Cheifetz is away on business in Poland.

We have contacted Mr. Daniel Harris, solicitor for the C.A.W., by both telephone and by letter advising him of our request for an adjournment. A copy of our letter of even date to Mr. Harris is enclosed herewith. We will advise you forthwith upon receipt of Mr. Harris' reply to our request.

Yours very truly,

PATRICK F. MILLOY

At approximately 10:00 a.m. on June 19, 1990, the Board received the following communication by fax from Mr. Milloy.

This is to confirm that our request for an adjournment as set out in our letter dated June 15, 1990, has been denied and that as such, the hearing scheduled for June 19 and 20, 1990, will proceed.

We have been instructed by our client to advise you that our client remains unable to attend the hearing on the above dates and as such, we will not be in attendance at the Board hearings herein.

Our client reserves its right to seek judicial review of the Board's denial of it's [sic] request for an adjournment herein.

10The following excerpt from Catalyst Technology (Canada) Ltd., [1987] OLRB Rep. June 803 at page 805 comments on the Board's practice when faced with adjournment requests:

The usual practice of the Board is to grant an adjournment only on the consent of all of the parties to a proceeding, or where a request for an adjournment is based on circumstances which are beyond the control of the party making the request and where to proceed would seriously prejudice such party. See, for example, Northwest Merchants Ltd. Canada, [1983] OLRB Rep. July 1138, in which the Board wrote, in part, as follows (at paragraph 7):

.The Board has a discretion to adjourn any hearing, if it considers it advisable in the interests of justice, for such time and to such place and upon such terms as it considers fit (see section 82(1) of the Board's Rules of Procedure; see also section 21 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484). In exercising this discretion, the Board has adopted a policy which recognizes the great importance of expedition to the efficacious administration of the Labour Relations Act. In Labour Relations Bureau of Ontario General Contractors Association, [1979] OLRB Rep. 1036, at paragraph 8, the Board stated:

The usual practice of the Board is to grant adjournments only on the consent of all of the parties to a proceeding. With respect to situations where one party is not prepared to agree to an adjournment, in the Baycrest Centre of Geriatric Care case, [1976] OLRB Rep. 432, the Board stated at page 433:

5. The Board policy with respect to adjournments has been capsulized in the Nick Masney case [1968] OLRB Rep. 823 (upheld in the Ontario Court of Appeal ¶70 CLLC 14,024) wherein the Board stated: ... the Board's decision to deny the respondent's request for an adjournment was based on the Board's practice to grant adjournments only on consent of the parties or where the request is based on circumstances which are completely out of the control of the party making the request and where to proceed would seriously prejudice such party i.e., where it is proven that a witness essential to the party's case is unable to attend because of serious illness..."'

The powers of the Board with respect to adjournments were confirmed by the Ontario Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 OR. (2d) 400, at pages 404 and 405:

Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and of law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.

This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Exp. Nick Masney Hotels Ltd. 1970 CanLII 478 (ON CA), [1970] 3 OR. 461, 13 D.L.R. (3d) 289 (CA.); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of the Statutory Powers Procedure Act 1971 (Ont.) c.47, and afford the parties the opportunity to be present and be represented if they wish by counsel. But a party who has adequate notice of the hearing does not have a right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.

It cannot be suggested that the Board may not in the exercise of is discretion adopt a general policy respecting adjournments of its proceedings: see The King v. Port of London Authority, Ex. p. Kynock, Ltd., [1919] 1 K.B. 176. That policy is obviously necessary to the proper administration of the Board's process..."

11As noted earlier, the CAW opposed the adjournment request made by Venture. When no agreement to adjourn has been reached prior to a hearing, it is necessary for a party who wants an adjournment to appear and make its submissions. Given the failure of these parties to agree to adjourn the hearing, the Board anticipated it would have to deal with an adjournment request from Venture on June 19, 1990. A panel of the Board had not denied Venture's request for an adjournment prior to June 19, 1990. However, Venture elected not to appear on June 19, 1990 to place before the Board the basis upon which it felt an adjournment was warranted. With no appearance on behalf of Venture and with the CAW opposing any adjournment, the Board proceeded to hear the application.

12In correspondence to the Board dated April 3, 1990, Mr. Milloy confirmed the agreement between Venture and the CAW to have the Labour Relations Board act as the Board of Arbitration to settle the first collective agreement. In correspondence dated April 18, 1990 which deals with a number of matters, Venture purports to withdraw this agreement. It does not appear that any further reference is made to the purported withdrawal of the agreement in subsequent correspondence to the Board from Mr. Milloy. Given that no one appeared for Venture at the hearing on June 19, 1990, the Board does not know whether Venture intended to pursue its withdrawal of the agreement with the CAW or the basis upon which it would maintain that it could withdraw from such an agreement. The panel raised the matter of the purported withdrawal with counsel for the CAW at the hearing. Counsel for the CAW was unable to provide the Board with any new information and strenuously argued that the Board should proceed. Given the failure of anyone to appear on behalf of Venture to make submissions as to why it ought to be permitted to withdraw from its agreement that this Board settle the first collective agreement, the Board determined that it had jurisdiction to settle the first collective agreement between Venture and the CAW.

13In settling the first collective agreement in this instance, the Board has before it the materials filed by the CAW and the evidence of two witnesses called by the CAW. Venture did not file materials as required by Practice Note #19. The material filed by the CAW included a collective agreement which it was prepared to execute and it was the position of the CAW that the Board should settle the collective agreement based upon the terms contained in its proposed collective agreement. At the hearing, the panel questioned the CAW witnesses and counsel in order to appreciate the terms of the proposed collective agreement, the present terms of employment of Venture employees and the nature of the material filed by the CAW.

14As a general guideline, the Board has adopted the approach utilized by the British Columbia Labour Relations Board in London Drugs Ltd.,[1974] 1 Canadian LRBR 140. At page 147 of that decision, P. C. Weiler, who was Chairman at that time, commented on the components to be included in a first collective agreement under British Columbia's first contract legislation as follows:

'As regards the language and structure of the collective agreement, the Board does not believe that s. 70 should be used to achieve major breakthroughs in collective bargaining. Instead, we will try to settle on terms which reflect a fairly general consensus of what should be in a collective agreement, as tailored to the requirements of the operation before us. We will leave it to future negotiations between these parties to develop any innovations in that language. However, . . . [w]e intend to see that the collective agreements we settle under s.70 are sufficiently attractive to the employees affected by them that they will think twice before applying to rid themselves of their union representatives and thus forfeiting the agreement...".

This approach was followed by the Board in Burlington Northern Air Freight (Canada) Ltd., [1986] OLRB Rep. Oct. 1327 and Egan Visual Inc.,[1986] OLRB Rep. Dec. 1687.

15Having carefully considered all of the material before us, we have concluded that the attached document marked "Appendix" shall be the first collective agreement between the applicant and the respondent. In accordance with section 40a(17) of the Act, the Board has accepted all of the matters agreed to by the parties in writing, including Articles 2, 3, 4, 5, 6, 10, 11, 22, 23, 24.03, 25, 29, 31, 32, 34 and 36 and Letters of Understanding Nos. 2, 4, 6, 9 and 10. Of the remaining articles set out in the CAW's proposed collective agreement, the Board amended a significant number of them in order to reflect what in our view should reasonably be contained in a first collective agreement. Our sense of what should be contained in this first collective agreement is based on the current collective bargaining climate, the provisions of those collective agreements placed before us by the CAW (all of which were renewal agreements) and the evidence of Mr. Rustin, the CAW representative. In a number of instances, Mr. Rustin candidly acknowledged that it would be uncommon for some of the provisions in the CAW's proposed collective agreement to be included in a first collective agreement. In addition, a number of the terms in the proposed collective agreement were absent or quite different from those in the renewal agreements before us. Since a comparison with the CAW's proposed collective agreement and the Appendix can be easily made, the Board will not set out in any detail the alterations it has made. We note, however, that we have deleted the paid education leave, COLA and the pension plan provisions. Such provisions would not usually be found in a first collective agreement. We have also reduced the wages as contained in the proposed collective agreement. The employees did receive a significant wage increase in June 1989 and the increases we have determined to be appropriate are more reflective of the current bargaining climate.

16We have attempted to provide the parties with a workable first collective agreement. If any of the terms we have arbitrated prove to be unsatisfactory, it is open to the parties to revise them by mutual consent at any time.

[Collective agreement appendix deleted. Editor]