Howard Buchin v. Toronto Civic Employee's Union Local 43, 1991 CanLII 6135

[1991] OLRB Rep. July 815

3236-90-U Howard Buchin, Complainant v. Toronto Civic Employee's Union Local 43, Respondent v. The Municipality of Metropolitan Toronto, Intervener

BEFORE: Nimal V. Dissanayake, Vice-Chair.

DECISION OF THE BOARD; July 26, 1991

1. This is an application by the complainant for reconsideration of the Board's decision dated April 22, 1991, dismissing his complaint under section 89 of the Act. The Board dismissed the complaint for lack of prosecution because the complainant failed to appear at the hearing scheduled for April 22, 1991.

2. On April 25, 1991, the Board received a letter dated April 23, 1991 from the complain­ant which reads:

"Please accept my letter of apology for my absence (file #3236-90-U) at the board hearing on April 22/91 at 9:30 a.m., in the board room, 400 University Ave., Toronto, Ontario.

I attended a board hearing on April 16/91, which was the previous Tuesday. Somehow I got con­fused and believed that my next board hearing was scheduled for April 23/91 (the following Tuesday). I regret the fact that there may have been any inconvenience on your own or the labour boards part."

3. A second letter dated May 7, 1991 from the complainant addressed to the Board reads:

"I am writing to you a note asking to have my board hearing #3236-90-U from April 22nd/91 reconsidered. As I explained in my previous letter to you, I had a board hearing on the previous Tuesday April 16thi91. Mistakenly I believed the missed hearing was to be on the following Tuesday.

I would appreciate your attention in regards to this matter."

4. The Board treated these two letters as an application for reconsideration of its earlier decision under section 106(1) of the Act which reads:

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.

5. Copies of the two letters were forwarded to the other two parties, both of whom responded in writing. In essence both the employer and the respondent union opposed the applica­tion for reconsideration, pointing out that the complainant had proper and clear notice of the date of hearing. The submission from both counsel was that failure to attend a hearing because a com­plainant made a mistake about the hearing date should not cause the Board to reconsider its deci­sion. The complainant had an opportunity, and did respond, to these submissions, in essence reit­erating that the Board should reconsider its decision dismissing his complaint, because his non-appearance was a result of a mistake on his part.

6. The Board has consistently adhered to a stringent policy where a party that had failed to appear at a hearing seeks to have the Board reconsider or re-open its decision rendered in that party's absence. While at first blush this practice of the Board may appear to be somewhat harsh, the Board has explained the need for such a policy from a labour relations point of view. In M. Sullivan and Son Limited, [1979] OLRB Rep. January 58, the union had filed a complaint under what is now section 89 of the Act. When no one appeared on behalf of the the complainant at the scheduled hearing, just as the Board did in the present case, it waited for a while, and when no one appeared to prosecute the complaint, dismissed it. In that case the union subsequently filed another complaint raising the same allegations. The respondent employer took the position that the Board ought not to hear the subsequent complaint. The Board treated the subsequent com­plaint as including an application to reconsider the initial decision dismissing the complaint. In

refusing to reconsider the earlier decision or to permit the complainant union to proceed with the subsequent complaint which was identical to the first complaint, the Board reasoned as follows:

18. When scheduling hearings for all applications before it, including Section 79 [now Section 89] complaints, the Board is mindful of the fact that in labour relations matters speed is gener­ally of the essence and that delay may cause serious prejudice to one or other of the parties. Because of this, the Board's practice upon receiving an application or complaint is to schedule a hearing in the manner for a fixed time and then to inform the parties of the date set. Variations from this date will generally be allowed only on agreement of the parties or if one party cannot attend on that date due to circumstances beyond its control.

19. In a fairly large number of cases the Board has been asked by respondent employers not to proceed with a hearing into a Section 79 [now Section 89] compliant on the date scheduled but rather to adjourn the hearing to some later date. Unless the Respondent could demonstrate that it could not attend on the dates set for reasons beyond its control, the Board has almost invari­ably refused these requests. If on the date set for hearing the employer failed to appear, or if it appeared it was only to ask without success for an adjournment and then withdrew, the Board has generally proceeded to inquire into the complaint notwithstanding the absence of the employer and, where warranted, issued a decision if favour of the complainant...

20. Doubtless the Board's manner of scheduling hearings and then declining to vary the dates selected except in exceptional circumstances cause some degree of inconvenience to all the par­ties that appear before it. Nevertheless, this procedure has the effect of keeping delays in the commencement of hearings to a minimum. This, we believe, is of great benefit in the adminis­tration of The Labour Relations Act. Not only does it allow the Board to handle all applications in a more orderly and hence in a more expeditious manner, but it also eliminates at least one possible source of delay in Board proceedings. Having regard to the fact that the Board gener­ally deals with situations where delay will cause prejudice, it is our opinion that this matter of proceeding is conducive to the general well-being of sound labour relations in the province.

21. One result of the Board's system of scheduling hearings is that parties must take care both to ensure that the hearing dates are not missed and also that they have properly prepared themselves for the hearing, which includes ensuring the attendance of essential witnesses.

22. Where a complainant has had a Section 79 [now Section 89] complaint dismissed due to its non-attendance at a hearing, or a respondent has had a finding made against it notwithstanding its absence from the hearing, we are of the view that having regard to the considerations set out above the absent party bears the onus of showing grounds where the subject matter of that com­plaint should later be inquired into. This could be done in just about every case by showing that its failure to attend was occassioned [sic] by factors beyond its control. Where this was not the case, however, then a careful weighing of a number of considerations must be undertaken.

23. One such consideration is the reason for the party's non-attendance at the original hearing. In the instant case were are of the view that the most likely cause of the complainant's non-attendance was inadvertence on the pan of its business representative. Inadvertence, however, is not a partic­ularly strong ground for relief Further, although the inadvertence was not the fault of the griev­ors, by having the complainant act as their agent in bringing the initial complaint the grievors did put themselves in a position where their rights might be affected by the negligent acts of the complainant...

24. In the interest of sound industrial relations policy and the orderly administration of the Act, we are of the view that parties must take care to ensure they attend the scheduled Board hearings. We are also of the view that where a complaint is dismissed because of a failure of a complainant to attend at the hearing, or a complaint is upheld in the absence of the respondent, as a general prin­ciple the Board should not permit the subject matter of the complaint to be reopened unless suffi­cient grounds for so doing have been advanced by the absent party..."

[emphasis added]

7. As the Board's first decision notes, a notice of hearing clearly indicating that the hear­ing had been scheduled for April 22, 1991 was sent by the Board to the complainant's home address on March 15, 1991. In the absence of any suggestion to the contrary and in light of section 113(1) of the Act, it can fairly be deemed that the complainant received this notice at least a month in advance of the scheduled hearing date. The complainant does not claim that he did not receive adequate or accurate notice of the hearing.

8. The sole explanation offered for the complainant's non-appearance is that he mistak­enly believed that this hearing was on the Tuesday, April 23rd, because he had had another hear­ing before the Board on the previous Tuesday. While the complainant claims that he was confused about the hearing date, there is no apparent cause for confusion. The notice sent to the complain­ant clearly states that the "hearing will take place... on Monday, the 22nd day of April, 1991 at 9:30 o'clock". If he had read the notice of hearing he would not only have been clearly informed of the proper hearing date, but also of paragraph 4 of the notice, which states in bold letters: "If you do not attend at the hearing, the Board may proceed in your absence and you will not be entitled to any further notice in the proceedings".

9. At the scheduled hearing on April 22, 1991, the union was represented by legal counsel and a union official. Legal counsel and three members of management appeared on behalf of the employer. Obviously these parties had invested considerable time and expense in preparation for and attending at the hearing. They will be greatly prejudiced if this complainant is allowed to re­open this case. The inevitable conclusion to be drawn is that the complainant simply did not bother to read the notice of hearing he received from the Board. Had he done so, there would have been no confusion about the hearing date. In M. Sullivan and Son Limited, (supra) the Board held that non-attendance as a result of inadvertence was not a reason to reconsider its decision. In the present case, the complainant has been negligent and his negligence was the sole reason why he missed the hearing on April 22, 1991. Negligence is even a less persuasive reason to reconsider the Board's prior decision, and the Board declines to do so.

10. Accordingly, the application for reconsideration is dismissed.