Ontario Labour Relations Board
[1991] OLRB Rep. October 1204
1754-90-M Graham Smith, Allen Ouellette & Charles Wilburn, Complainants v. Fred Marr, Financial Secretary, Treasurer, Business Manager, Local 700, International Association of Bridge, Structural and Ornamental IronWorkers, Respondent
BEFORE: Judith McCormack, Vice-Chair, and Board Members W. H. Wightman and C. McDonald.
APPEARANCES: Graham E. Smith, Allen Ouellette and Charles Wilburn for the complainants; S.B.D. Wahl and F. Marr for the respondent.
DECISION OF THE BOARD; October 24, 1991
1This is a complaint under subsection 85(2) of the Labour Relations Act alleging that a financial statement furnished by the respondent is inadequate.
2At the commencement of the hearing, the respondent asserted that the complaint had been settled and that the Board should not hear the merits of the case. After receiving the parties' evidence and submissions with respect to this issue, the Board concluded that the matter had indeed been settled, and exercised its discretion under section 85(2) to decline to inquire further into the matter. We advised the parties our reasons would follow. These are those reasons.
3The evidence indicates that the complainants retained the law firm of Paroian, Raphael, Courey, Cohen & Houston some months ago to represent them in this matter. On Thursday, September 26th, the complainants were scheduled to meet with Brian Nolan, a member of that firm, for the purpose of preparing for these hearings which were to continue on October 1st. On Wednesday, September 25th, Steven Wahl, counsel for the respondent, contacted Mr. Nolan and made a proposal to him for settling the matter. Mr. Nolan indicated to Mr. Wahl that he would be meeting with his clients the following day and would discuss the proposal with them at that time. Mr. Nolan and Mr. Wahl also had a telephone conversation on Thursday, September 26th, shortly before Mr. Nolan's 4:00 p.m. appointment with the complainants in which Mr. Nolan agreed that he would call Mr. Wahl at 5:00 o'clock that day to confirm whether there had been a settlement or not.
4The initial proposal put to Mr. Nolan by Mr. Wahl was that the complaint would be settled on the basis that the respondent would supply audited financial statements for both the respondent and the Ironworkers, Local 700 Office and Training Centre Corporation. Two of the complainants, Graham Smith and Charles Wilburn attended at the appointment with Mr. Nolan, and they discussed this proposal with him. Peter Hrastovec, one of Mr. Nolan's colleagues, was also present. As a result of their discussions, Mr. Smith and Mr. Wilburn were ushered into an area where they could smoke, and Mr. Nolan called Mr. Wahl and indicated more specifically which financial statements the complainants wished to have. These were the audited financial statements for the respondent for the fiscal period 1987-1988, and the financial statements for the Ironworkers, Local 700 Office and Training Centre Corporation for the fiscal periods 1989-1990 and 1990-1991. In return, the complainants were prepared to withdraw their complaint without prejudice to their right to file a fresh complaint in the event the financial statements supplied were inadequate within the terms of section 85(2).
5When Mr. Nolan put these terms to Mr. Wahl, Mr. Wahl agreed to them, and Mr. Nolan indicated that since his secretarial staff had left for the day, he would confirm the agreement in writing the following day. Mr. Nolan then went back and confirmed with Mr. Smith and Mr. Wilburn, who were awaiting the results of the telephone call, that Mr. Wahl had agreed to their terms. After a brief discussion, Mr. Smith and Mr. Wilburn left Mr. Nolan's office.
6Shortly thereafter, Mr. Nolan began to draft a letter to Mr. Wahl setting out the terms of the agreement. That evening, however, Mr. Smith and Mr. Wilburn discussed the matter with their wives and with Mr. Ouellette who had not been present at the appointment. It appears at that point that they began to have second thoughts about the settlement, particularly since the proceedings to date had been costly and the settlement did not address those costs. They were concerned, as Mr. Smith testified, that they had left the impression with Mr. Nolan that they had agreed to the settlement, and according to Mr. Wilburn, "it kind of was like maybe we were". As a result, they attempted to contact Mr. Nolan. However, at this point it was approximately 7:30 p.m. and no one was in the office. Mr. Smith then tried to contact the law firm the following morning and left a message with a secretary to the effect that the complainants did not agree to the deal. Mr. Nolan, when advised of this, was of the view that an agreement had been reached the night before, and that he could not resile from it and continue to act on behalf of the complainants. He instructed Mr. Hrastovec to call the complainants, communicate this to them, and tell them that unless he had instructions to send the confirming letter he had drafted by noon, the law firm could not continue to act for them and they could pick up their file. Subsequently, Mr. Nolan withdrew as the complainants' counsel.
7The Board has in its jurisprudence attempted to encourage settlement by ensuring that settlements will be reliable and final endings to the applications or complaints before it. In Tony Hoosain, [1987] OLRB Rep. Dec. 1513 the Board had this to say on the subject:
Each year, trade unions, employees, or employers file hundreds of applications or complaints before the Board. A great majority of them are settled. Sometimes the settlement favours a trade union or the employer. Sometimes it may favour an employee. Usually the settlement represents a compromise under which the parties neither achieve as much nor risk as much as they would by proceeding to a hearing before the Board. The parties generally arrive at a settlement in order to avoid the cost and uncertainties of litigation. Both the orderly resolution of Board proceedings and the efficacy of the settlement process would be gravely prejudiced if, having signed minutes of settlement, a party could afterwards repudiate that settlement and revive the original proceedings because s/he later had second thoughts about the settlement terms.
8In that case, the settlement was in writing. However, the Board has made it clear that even an oral settlement may result in it declining to inquire further into a complaint. For example, in Madeleine Cloutier, [1988] OLRB Rep. Apr. 375, the Board said as follows:
One of the distinguishing features of labour relations is that it operates in the context of continuing relationships. For that reason, among others, settlements are particularly desirable and the Board has accorded considerable priority to efforts towards this end. It is also essential that the Board's jurisprudence provide a legal climate which encourages and reinforces this goal. If parties to labour litigation cannot rely on their agreements, the Board's settlement processes may be rendered almost worthless. With respect to section 89 complaints, the Board has noted in the past that it has a discretion with respect to its inquiry. It has also declined to proceed further with a complaint in the exercise of that discretion where the parties have reached a settlement. (See, for example, C. E. Jamieson & Co. (Dominion) Limited, [1985] OLRB Rep. March 375).
9The basis of the Board's discretion under section 89 is the permissive wording contained in section 89(4) to the effect that "the Board may inquire into the complaint" (emphasis added). Section 85(2) contains identical wording, and we conclude that we have a similar discretion with respect to complaints filed under that section. There is no question as well that the Board's policy considerations with respect to encouraging settlement and promoting orderly and final resolutions of cases are as compelling in these circumstances as in cases brought under section 89.
10In this case, Mr. Nolan proposed specific settlement terms to Mr. Wahl on behalf of the complainants and Mr. Wahl accepted them on behalf of the respondent. There was no dispute as to those terms, and both Mr. Nolan and Mr. Wahl were of the understanding that a settlement had been reached at 5:00 p.m. on September 26th. Some of the complainants' confusion stemmed from the fact that Mr. Nolan was to confirm the settlement in writing the following day. However, it was apparent from the evidence that the settlement was in fact complete on September 26, 1991. The purpose of the confirming letter was merely to recite the settlement terms, a standard precaution in the circumstances. There may well be occasions in which the settlement process unfolds in a manner where written confirmation of some kind represents the last step to reaching agreement. However, in this case confirmation involved merely the post-agreement paperwork. In these circumstances, we found that the settlement was concluded on September 26th. The fact that Mr. Nolan's confirming letter was not sent does not suggest otherwise, given the subsequent dispute between the complainants and their counsel.
11There was some argument on the part of the complainants to the effect that Mr. Nolan was not authorized to enter into the settlement. There is no doubt that Mr. Nolan was retained by the complainants at the time he entered into the settlement and held himself out to Mr. Wahl as having that ostensible authority. However, we also wish to make it clear that we find that the complainants did agree to the settlement, and only started having second thoughts several hours later. There was no suggestion that Mr. Smith and Mr. Wilburn did not have authority to agree to the settlement on behalf of Mr. Ouellette, and in fact, the evidence points to the contrary.
12As a result of our findings in this regard, we were not prepared to inquire further into the complaint, and the complaint was dismissed.