[1990] OLRB Rep. June 744
0047-89-G; 0170-89-R The Ontario Council of the International Brotherhood of Painters and Allied Trades, Applicant v. W.G. Gallagher Construction Limited, Respondent; Ontario Council of the International Brotherhood of Painters and Allied Trades and International Brotherhood of Painters and Allied Trades, District Council 46, Applicants v. W.G. Gallagher Construction Co. and W.G. Gallagher Construction Limited, Respondents
BEFORE: Louisa M. Davie, Vice-Chair, and Board Members W. N. Eraser and I. Redshaw.
DECISION OF THE BOARD; June 5, 1990
We have received and granted a request to adjourn the hearing in this matter scheduled for May 28, 1990. Although we granted the adjournment, in the circumstances of this case, we consider it appropriate to deliver more than the Board's usual "consent adjournment" decision.
On April 7, 1989, the applicant referred a grievance concerning the interpretation, application, administration or alleged violation of a collective agreement to the Board for final and binding determination pursuant to section 124 of the Labour Relations Act ("the Act"). In its reply to the referral of this grievance the respondent W.G. Gallagher Construction Limited ("Gallagher") denied it was bound to a collective agreement with the Ontario Council of the International Brotherhood of Painters and Allied Trades ("Painters").
On April 19, 1989, counsel for the Painters filed an application pursuant to section 63 and section 1(4) of the Act (Board File 0170-89-R) involving the same parties to this grievance. By letter dated April 19, 1989, counsel requested, inter alia, that Board File 0170-89-R and this matter be consolidated.
In a letter received by the Board on April 20, 1989, counsel for Gallagher wrote:
We are writing to request that the hearing scheduled for April 21, 1989 be adjourned on consent of the parties.
We would like to ask the Board to reschedule this matter on either May 18 or 23 or June 13,
To accommodate the parties the Board scheduled this matter together with Board File
0170-89-R to be heard on May 18, 1989. By the letter delivered to the Board at 5:16 p.m. on May
16, 1989 the parties advised that they had:
agreed to adjourn the hearing on the above matter scheduled for May 18, 1989. We request that the Board reschedule this matter for July 13, 1989.
The Board rescheduled the hearing for July 13, 1989. The hearing proceeded as scheduled. By decision of the Board dated November 2, 1989 the application brought pursuant to section 63 and 1(4) was dismissed.
By letter delivered to the Board on January 10, 1990, counsel for the Painters requested:
that the Board schedule these matters for continuation dates for hearing in order to hear and determine the issues outstanding in these proceedings, including those referred to above in consultation with the parties.
In consultation with the parties a hearing for March 7, 1990 was scheduled. The parties were so advised by letter from the Board dated January 24, 1990.
During the week of February 26th to March 2nd, counsel for the Painters telephoned the Registrar's Assistant to suggest that the parties were not available on March 7, 1990 and requested that the Board provide the parties with other dates that the panel was available. Counsel was provided with alternative dates of May 14, 15 and 28, June 11, 12, 18 and 19, 1990. The request for an adjournment of the March 7,1990 date was ultimately confirmed by fax sent to the Board at 4:27 p.m. on March 6, 1990, when counsel for Gallagher advised:
This will confirm our telephone conversation with your office today wherein we advised that the above-noted matter, which has been scheduled to continue on March 7, 1990, will be adjourned sine die, on consent.
- On March 19, 1990 counsel for the Painters telephoned the Board to request that this
matter be rescheduled. The dates of May 28, 1990, September 19 and 20, 1990 were provided to
counsel.
- On March 20, 1990, in consultation with the parties, the matter was rescheduled for
May 28, 1990. On March 26, 1990, counsel for the Painters wrote:
We request that the Board schedule the above-captioned matter for hearing.
The parties have agreed that this matter could proceed to hearing on May 28, 1990 and we appreciate the co-operation of the Board in scheduling this matter for hearing on that date.
By letter from the Board dated March 28, 1990, the parties were notified that the matter was rescheduled to May 28, 1990.
By letter dated May 23, 1990 but not delivered to the Board until 4:54 p.m. on May 24,
1990, counsel for the Painters wrote:
The parties to the above matter request an adjournment of the hearing scheduled for Monday, May 28, 1990.
By telex to the parties on May 25, 1990, the Board advised that the matter had been adjourned.
This chronology indicates that on at least three separate occasions the parties have agreed to adjourn hearing dates which had been scheduled either at their specific request or in consultation with them. On each occasion counsel provided only minimal notice to the Board of their agreement to adjourn the scheduled date. In light of the lack of reasonable notice the Board was unable to schedule any other case to be heard in place of this matter. Indeed we note that had counsel's last letter actually been delivered on Wednesday, May 23, 1990 rather than very late afternoon the following day the Board would have had an opportunity to take that matter into account in doing its scheduling for the week of May 28, 1990.
The circumstances of this case are such that the Board considers it appropriate to
remind parties appearing before the Board, and their counsel, of the institutional concern of the Board. Unlike a private Board of Arbitration where the party litigants choose the arbitrator and bear the cost of litigation, the Board's mandate is to serve a broad-based community.
In scheduling matters, including grievances in the construction industry, the Board must balance not only the interests of specific litigants in a case to have their matter heard as soon as possible, but also the rights and interests of all the other parties to cases before the Board to have their matters heard and disposed of in an equally expeditious fashion.
In 560742 Ontario Ltd. c.o.b. Canada Framing, [1990] OLRB Rep. May 490 the Board wrote:
We do wish to point out, however, that the Board has limited resources. Naturally, the Board is concerned that these not be squandered. It appears that some counsel (we do not suggest that counsel for the applicant is one of them) and some parties have formed the view that they control the Board's processes. And it has in fact been the Board's general practice to accommodate parties which have agreed to an adjournment. When matters can be adjourned within a reasonable time prior to a scheduled hearing, the Board is often able to schedule another matter in its stead or, in circumstances where a hearing has been scheduled to be held at other than the Board's own premises (for example), to otherwise conserve its resources. Where, however, the Board does not learn of a proposed adjournment within a reasonable time prior to the scheduled date for hearing, it is often not possible to both schedule another matter for that day and give reasonable notice to the parties involved in that other matter. It is, of course, impossible to do so if the adjournment is "requested" the day before or the morning of a scheduled hearing. Last minute adjournments can also cause the Board to incur unnecessary expenses.
Consequently, when adjournments are not requested in a timely manner, the limited resources of the Board, which are financed by the taxpayers of this province, are squandered. That is something which must be avoided, if possible. Consequently, counsel and parties should turn their minds to whether an adjournment will be necessary at the earliest opportunity.
Neither counsel nor parties to proceedings before the Board should delude themselves. They do not control the practices and procedures of the Board. Subject to the provisions of the Labour Relations Act, the rules of natural justice, and the requirements of fairness, the Board is the master of its own practice and procedure. Parties who fail to request an adjournment, either on consent or otherwise, in a timely manner, risk not being granted an adjournment. Certainly, parties and their counsel should not assume that a request of the kind received by the Board in this proceeding (with respect to the April 17, 1990 hearing date) will be granted as a matter of course.
With those comments we concur. We wish to add only that where, as here, the parties fail to provide any reason for their request to adjourn the hearing other that their "agreement", the Board may be left with the impression that the only reason for the adjournment request is to accommodate individual scheduling difficulties of the parties or their counsel. In circumstances where the parties fail to provide any reason in their letter requesting an adjournment i.e. parties are pursuing settlement discussion, a party, counsel or subpoenaed witnessed is ill and therefore unable to attend, etc., there is an increased risk that the adjournment will not be granted.
This proceeding is adjourned sine die for a period not exceeding one year from the date hereof. If no party requests, in writing, that the matter be scheduled for hearing within that one year period and the matters are not otherwise disposed of by the Board, the applications will be dismissed.