Ontario Labour Relations Board

[1990] OLRB Rep. April 481

0368-89-U; 0369-89-U; 0857-89-U Anna Wilson, Complainant v. Ontario Public Service Employees Union and Ontario Public Service Employees Union, Local 110, Respondents v. Fanshawe College, Intervener #1 v. Ontario Council of Regents for the Colleges of Applied Arts and Technology, Intervener #2; Anna Wilson, Complainant v. Ontario Public Service Employees Union and Ontario Public Service Employees Union, Local 110, Respondents v. Eanshawe College, Intervener #1 v. Ontario Council of Regents for the Colleges of Applied Arts and Technology, Intervener #2; Anna Wilson, Complainant v. Ontario Public Service Employees Union, Respondent v. Fanshawe College, Intervener #1 v. Ontario Council of Regents for the Colleges of Applied Arts and Technology, Intervener #2

BEFORE: Judith McCormack, Vice-Chair, and Board Members R. M. Sloan and B. L. Armstrong.

APPEARANCES: Joseph Hoffer and Anna Wilson for the complainants; James Hayes, Stephen T. Goudge, R. Ross Wells, Paddy Missson, Gary Fordyce and Tom Geldard for the respondents; Brenda Bowlby and Guy Giorno for interveners #1 and #2.

DECISION OF THE BOARD; April 26, 1990

1. On the agreement of the parties, the names of the respondents in Files 0368-89-U and 0369-89-U are amended to read: "Ontario Public Service Employees Union and Ontario Public Service Employees Union, Local 110", and the name of the respondent in File 0857-89-U is amended to read: "Ontario Public Service Employees Union".

2. These cases are three complaints which were scheduled to be heard together, all alleging that the union respondents have violated section 68 of the Labour Relations Act. Although there is only one complainant, she is joined by a number of grievors listed in the complaint, whom we will also refer to as "the complainants" for the purpose of this decision.

3. At the commencement of the hearing, counsel for the complainants made a motion to have the Board remove James Hayes from his position as counsel for the respondents on the basis that a conflict of interest existed with respect to his representation of the respondents. More specilically, Mr. Hoffer claimed that Mr. Hayes and other members of his firm, Cavalluzzo, Hayes & Lennon, had acted on behalf of the complainants on a variety of grievances and one court application between 1982 and the present, and that they had received confidential information from the complainants in that capacity. It is not clear whether or to what extent that information relates to the grievances which form part of the subject matter of these complaints. Having allegedly received this confidential information, the complainants assert that Mr. Hayes and members of his law firm should not now take a position where they might be tempted, or might appear to be tempted, to use such information against the complainants.

4. Counsel for the parties advised us that they intended to call a total of six or seven witnesses between them to give evidence on the motion, which would consume a number of the days set aside for the hearing of the merits of the complaint. As a result, we asked the parties to first address whether the Board had the jurisdiction to entertain the subject matter of the motion at all and, if we had the jurisdiction, whether in the exercise of our discretion, it was appropriate for us to deal with the matter. The Board also directed the complainants to provide further particulars of the conflict alleged. Subsequently, we issued the following decision:

The complainants' motion is dismissed. Our reasons will follow.

5. After our ruling, Mr. Hayes concluded on the basis of further investigation of the particulars filed that there might indeed be a conflict of interest in relation to a matter handled by a former member of his firm. As a result, Mr. Hayes stepped down as counsel for the respondents. On the next day of hearing, Steven Goudge from the firm of Gowling, Strathy and Henderson appeared on behalf of the respondents. Counsel for the complainants then made a similar motion, alleging that Mr. Goudge and members of his law firm had represented the complainants in the past on a variety of grievances, and received confidential information in that capacity. As a result, he argued, representing the union in these complaints placed Mr. Goudge and his firm in a conffict of interest position. Once again particulars were requested, which counsel for the complainants agreed to provide. Mr. Hoffer also advised the Board and Mr. Goudge that he intended to file a complaint with the Law Society of Upper Canada, the professional regulatory body for lawyers in Ontario. Mr. Goudge then requested an adjournment for the purpose of receiving and reviewing the particulars referred to above, and obtaining an advisory opinion from the Law Society. Although we granted the adjournment, we also set eighteen more hearing days and the respondents were advised that if they changed counsel for any reason, they would have to obtain counsel prepared to proceed on those days. The respondents were also directed to notify the Board and the other parties by December 31, 1989 whether Mr. Goudge would be continuing to represent the union. If he was, the Board would then rule on the second motion. Subsequently, Mr. Goudge notified the parties and the Board that he had received an advisory opinion from the Law Society, and that he would be continuing to represent the respondents. The Board then dismissed the second motion. We now provide our reasons for the dismissal of both motions.

6. In support of its position that the Board had the jurisdiction to compel a party to change counsel and should proceed to hear the motion on its merits, the complainants argued that the Board had an inherent and implied jurisdiction to remove a solicitor of record in much the same manner as a court, that the Board had an inherent jurisdiction to control its own processes, and that sections 102(13) and 106 of the Labour Relations Act provided those powers as well. Counsel referred to the Law Society of Upper Canada's Rules of Professional Conduct and the Canadian Bar Association's Code of Professional Conduct, and suggested that the Board should apply those rules in a manner analogous to the application of the Canadian Charter of Rights and Freedoms in a case before the Board. In his view, the right of parties to choose their own counsel must be balanced against the public's confidence in the administration of justice. While he acknowledged that his motions involved an arguable, rather than a clear cut case of conflict, he asserted that this was the only forum which provided the specific relief he sought. In the alternative, he asked that the Board simply issue a declaration of conflict of interest, rather than removing Mr. Hayes, and subsequently Mr. Goudge, as the respondents' counsel in this matter.

7. With respect to the first motion Mr. Hayes argued that it was designed to disadvantage the respondents by denying them the use of counsel experienced in labour relations and knowledgeable about their affairs, that the motion itself had no merit since the respondents were the clients in all the previous matters described by the complainant and not the complainant and the grievors, and that the one instance of a court application was unrelated to the matters before us. In his view, the duties between a solicitor and client pertained to the relationship between Cavalluzzo, Hayes and Lennon and the respondents, rather than between Cavalluzzo, Hayes and Lennon and the complainants. However, if the Board had jurisdiction to deal with the matter, the respondents were content to have the Board decide the merits of the motion, given its legal and labour relations expertise. With respect to the second motion, Mr. Goudge adopted Mr. Hayes' arguments.

8. Turning first to the question of whether the Board has the jurisdiction to entertain this motion, we have serious doubts about our ability in this regard. Unlike a superior court which has an inherent supervisory jurisdiction over lawyers, the Ontario Labour Relations Board is an administrative tribunal, and its jurisdiction is founded in the Labour Relations Act and other statutes which refer matters to the Board for determination. For the Board to have jurisdiction over the subject matter of the motion, there must be some statutory foundation for it. The complainants referred us to Minto Construction Ltd. v. Regional Assessment Commissioner (1989), 1989 CanLII 4252 (ON HCJ), 68 O.R. 350 (H.C.), a case involving the application of the Canadian Charter of Rights and Freedoms to proceedings before the Ontario Municipal Board. We do not find this case particularly helpful for two reasons. Firstly, there is an obvious distinction between the Charter, which is described as part of the supreme law of Canada by virtue of section 52(1) of the Constitution Act, 1982, and the Rules of Professional Conduct which, while authorized by section 62 of the Law Society Act, do not even appear to be provincial regulations. Secondly, we note that the Ontario Municipal Board is granted all the powers of a court of record by virtue of section 33 of the Ontario Municipal Board Act, R.S.O. 1970 c. 323, unlike the Ontario Labour Relations Board. In other words, the case does not stand for the proposition that an administrative tribunal in itself has any inherent jurisdiction, and we do not find the application of the Charter in Board cases to be analogous to the issue before us.

9. Counsel for the complainants also cites sections 102(13) and 106(1) of the Labour Relations Act as the basis for his motions, which provide as follows:

(13) The Board shall determine its own practice and procedure but shall give full opportunity to the parties to any proceedings to present their evidence and to make their submissions, and the Board may, subject to the approval of the Lieutenant Governor in Council, make rules governing its practice and procedure and the exercise of its powers and prescribing such forms as are considered advisable.

106.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

10. At first glance, both sections appear broad enough to encompass the motions at hand. However, in our view both sections must be read together with the Statutory Powers Procedure Act, R.S.O. 1980 c. 484 ("the S.P.P.A.") which applies to the Board as a tribunal exercising a statutory power of decision within the meaning of section 3 of that Act (see Rexwood Products Limited, [1986] OLRB Rep. Aug. 1139). The S.P.P.A. provides in part as follows:

11. A party to proceedings may at a hearing,

(a) be represented by counsel or an agent;

23.-(1) A tribunal may make such orders or give such directions in proceedings before it as it considers proper to prevent abuse of its processes.

(3) A tribunal may exclude from a hearing anyone, other than a barrister and solicitor qualified to practise in Ontario, appearing as an agent on behalf of a party or as an adviser to a witness if it finds that such person is not competent properly to represent or to advise the party or witness or does not understand and comply at the hearing with the duties and responsibilities of an advocate or adviser.

11. Section 10 codifies a basic and traditional legal right with which we would be loathe to interfere. While we do not view that right as absolute, its strength and historical resonance in the Canadian legal tradition is such that we are reluctant to read into section 106 and 102(13) the authority to curtail it in the circumstances of this case. We also note that section 23(3) provides that a tribunal cannot exclude a barrister and solicitor from a hearing for the reasons stated therein. When this section was brought to the attention of the complainants, counsel argued that it should be interpreted so that it was only with regard to matters of competence that a tribunal could not exclude a barrister and solicitor. We agree that that is one possible interpretation of the section; however, it does seem to be worded more broadly than that, referring as it does to "understand[ing] and comply[ing] with the duties and responsibilities of an advocate and an advisor". Certainly the subject of these motions could be considered a question of understanding and complying with the duties and responsibilities of an advocate, in this case, the professional responsibilities of a lawyer. Indeed, it makes some sense to us that a tribunal may have the power to limit the appearances of agents who are not presently governed by any other authority, but that the competence and conduct of barristers and solicitors is presumed, since that is regulated by an existing body with a comprehensive structure of rules and procedures. In our opinion, it would be an odd result to find that the Legislature had removed the competence of lawyers from the ambit of tribunals governed by the S.P.P.A., but left their professional conduct or responsibilities within their jurisdiction.

12. It is true that section 23(3) does not specifically pre-empt our ability to make a declaration of conflict of interest, the complainants' alternative request. However, if the underlying purpose of section 23(3) is to remove the professional conduct of banisters and solicitors from the scrutiny of the Board, it would be inconsistent to enter into an investigation of that conduct for the purpose of providing declaratory relief, particularly when that relief is available from a more appropriate forum, such as the Law Society of Upper Canada or, perhaps, a superior court.

13. Ultimately, we do not find it necessary to resolve our doubts about our jurisdiction because we are also of the view that we should decline to entertain this motion on discretionary grounds. We have little difficulty in concluding we have such a discretion. Assuming, without finding, that section 106 is drafted broadly enough to include this motion within its parameters, we do not read it as requiring us to determine every question of fact and law which arises, but only enabling us to do so. Certainly the Board is presented frequently with evidence and arguments upon which it is not necessary for it to rule, because other evidence or arguments may dispose of the application before it. Often arguments are expressly advanced as alternative positions. As a routine matter then, the Board decides only those questions which it deems necessary to determine the application or complaint before it. If the Board were required to determine every single question of fact and law arising before it, the Board's proceedings would rapidly come to a standstill.

14. Similarly, section 102(13) only authorizes the Board to determine its own practice and procedure. It leaves open the possibility that our determination may be to refuse to entertain any particular motion. And even if one could characterize the issue here as one involving abuse of process, a proposition which is far from self-evident, section 23(1) of the S.P.P.A only allows the Board to make orders and directions; it does not require us to do so.

15. With that in mind, we must consider whether it is necessary for us to determine the merits of this motion as a concomitant of our responsibilities towards these complaints as a whole. The issue before us in these complaints is whether the union violated its duty to represent the complainants in a manner which is not arbitrary, discriminatory or involving bad faith. The allegations before us cite a sequence of events relating to the settlement of compensation with respect to a number of workload grievances, an agreement on a consent arbitration award, and subsequent amendments to a collective agreement. It is not alleged in these complaints that the representation of the respondents by either Mr. Hayes or Mr. Goudge is in itself a violation of section 68. Rather, the conflict of interest question relates to a matter separate and apart from the respondents' duties towards the complainants under the Labour Relations Act. We can certainly determine whether there has been a violation of section 68 without deciding whether the professional responsibilities of the respondents' lawyers prevent them from representing the respondents in these complaints. That issue is entirely superfluous to the merits of these complaints.

16. If we are not required to decide this motion, in our view it would be unwise to do so. In the first place, there is a real likelihood of conflicting decisions were we to determine the merits of this kind of issue. There is no question that the Law Society of Upper Canada is charged with the jurisdiction to determine matters relating to the professional conduct of lawyers in Ontario. Indeed, the Rules of Professional Conduct the complainants wish us to apply in this case are a creation of the Law Society in pursuance of its powers to supervise the legal profession. In addition, it may also be that the inherent jurisdiction of the courts extends even to the conduct of counsel not currently before them in an action. It is possible that if the Board decided, for example, that there was no conflict of interest in this case, the Law Society or a court might decide otherwise, resulting in obvious difficulties.

17. We are also concerned that entertaining this kind of motion might well have the affect of tying up a significant portion of the Board's time and resources. The Board was originally designed as an adjudicative body which would resolve labour relations matters in an informal and expeditious manner. We must be constantly vigilant that our processes do not evolve into something more cumbersome, time-consuming and expensive than the court proceedings they were intended to replace. There is no doubt that parties are now more commonly represented by legal counsel, and as a result, the Board has had to consider a number of related issues which are essential to decisions on contested issues before it. One typical example is deciding whether certain evidence relating to conversations between a lawyer and a client is "privileged", in the course of determining its admissibility. But the Board has only extended itself into this area to the extent necessary to facilitate its hearings and the disposition of the various kinds of applications and referrals contemplated by the Labour Relations Act. What we are asked to do here is to go one step further, and decide a matter of professional conduct which is essentially unrelated to the primary issue involved in the complaints. In our view such an excursion would be at best, gratuitous, and at worst, foolhardy. It was indicated by counsel for the complainants that he had at least five witnesses to call on the merits of the conflict of interest motion. The respondents indicated that they would have one or two witnesses. With three parties entitled to cross-examination, this was likely to add a significant number of days to the already extended hearing schedule for these cases. It appears to us that entertaining motions relating to counsel's conduct or the propriety of their representation could occupy the Board's scarce resources in lengthy disputes unrelated to its mandate under the Labour Relations Act, that is, not only to resolve labour relations conflicts, but to resolve them in an expeditious manner. Our conclusion in this regard is reinforced by the possibility of other forums where these issues can be canvassed.

18. Naturally, we are not unmoved by the respondents' view that our particular labour relations expertise is important in determining the conflict of interest motion. There is no doubt that the issue of the identity of the client when a lawyer is counsel on a grievance under a collective agreement is one which may be coloured by the traditional background and specific culture of labour relations and labour law. However, it is also clear that other bodies such as the Law Society and the courts have their own specific expertise in matters such as the professional conduct of lawyers, and that it is possible for counsel to acquaint them with the climate and circumstances of the labour relations community. In any event, this alone would not persuade us to entertain matters which have a significant potential for interfering with the expeditious resolution of our cases.

19. For these reasons, if we have the jurisdiction to entertain this kind of motion, we decided that we had the discretion not to do so, and we exercised it accordingly.