Ontario Labour Relations Board
[1991] OLRB Rep. December 1367
0768-90-U John Kohut, Complainant v. The National Automobile, Aerospace and Agricultural Implement Workers' Union of Canada (C.A.W.-Canada) and its Local 303, Respondent v. General Motors of Canada Limited, Intervener
BEFORE: Susan Tacon, Vice-Chair.
APPEARANCES: Harry Kopyto and John Kohut for the complainant; L. N. Gottheil, Robert E. Tindale, Robert J. Ryan, Pat Clancy and Richard Fleming for the respondent; E. T. McDermott, Dave Demartile and Margaret Szilassy for the intervener.
DECISION OF THE BOARD; December 9, 1991
1In this complaint alleging violation of section 68 of the Labour Relations Act, the Board has issued two interim decisions. The first, reported at [1990] OLRB Rep. Oct. 1043, dismissed the preliminary motions of the complainant's representative other than to permit the complainant's representative (and any other party, if so desired) to make a tape recording of the proceedings on the basis stated in that decision. The second, reported at [1991] OLRB Rep. Jan. 35, dismissed the complaint for failure to disclose a prima facie case except with respect to the allegations, as pleaded, concerning the union's handling of the complainant's grievance prior to arbitration and the union's agreement to admit the transcript of the complainant's trial as evidence at the arbitration hearing. What remained of the complaint was the context for the preliminary motion dealing with delay which is the subject of this decision.
2With respect to the remaining preliminary motion, the company and the union called no evidence, relying on the record as pleaded to demonstrate, in their view, undue delay. The complainant's representative called several witnesses, including the complainant and his counsel at the time of the arbitration hearing, to explain why the complaint was not filed until June 15, 1990. While the issue before the Board at this juncture is delay rather than the merits, the testimony, particularly during examination in chief, tended to spill over into the merits. The Board indicated that that testimony would be applied to the merits if the Board ultimately dealt with the substance of the complaint but restricted the company and the union to cross-examination only on the delay aspect. It was agreed that those witnesses would be recalled should the Board hear the complaint on the merits.
3In reaching its factual findings, the Board has weighed and assessed the testimony according to the usual factors going to credibility in the context of the documentary material filed with the Board and in the context of what is reasonably probable in the circumstances. It is useful at this point to comment briefly on the credibility of the witnesses, although further comments on that issue are addressed as appropriate throughout the decision.
4Several of the complainant's friends and former co-workers testified. The Board does not regard their testimony as of assistance. The thrust of their evidence was the ostensible impact on the complainant's health and personality of the arbitration award issued in mid-September 1989 upholding the complainant's discharge in order to explain the delay between that point and June 15, 1990 when the complaint was filed. In the Board's view, their statements were couched in repetitive catch-phrases and are not to be believed in the circumstances. There was no evidence from qualified medical practitioners, psychiatrists or psychologists.
5The complainant himself was entirely without credibility. His testimony was not only self-serving in the extreme but contradictory and evasive during cross-examination. The complainant exhibited a penchant for fabricating new explanations for events when pressed in cross-examination on the implausibility or inconsistencies in his earlier testimony. It should be noted that, when pressed on his inconsistent testimony, the complainant frequently stated that the passage of time made it difficult to recall some facts quickly or accurately but that, as cross-examination went on, he recalled further details. In the Board's view, what happened was that, as cross-examination went on, the complainant tried to patch up or modify his story to respond to what he perceived as weaknesses in his explanation for the delay.
6Ben Fedunchak, complainant's counsel at the arbitration hearing, also testified on behalf of the complainant. Where the complainant tended to create explanations as needed, Fedunchak, with respect, could best be described as forgetful. He could not recall significant events such as when he was retained and the bulk of his testimony took the form of vague generalities as to his representation of the complainant. He could not recall with any certainty dates of meetings with the complainant, subjects discussed or advice given, to list but a few examples.
7In the above context, the Board makes its findings of fact. While the preliminary motion deals solely with the delay issue and that is the focus of the factual findings, additional factual context is sketched as appropriate.
8The complainant was employed at the company's plant in Oshawa for approximately eleven years prior to his termination on March 31, 1986 for the alleged theft of a car radio. The union filed a grievance on the same day challenging the dismissal. The grievance proceeded through the requisite steps in the grievance procedure. The matter was not resolved between the company and the union and the grievance was referred to arbitration following the fourth step meeting. In cross-examination, the complainant indicated he had concerns with respect to the quality of his representation by the union during the internal grievance process but conceded there were no allegations relevant to this period in the complaint filed with the Board.
9The complainant was also charged with theft and appeared in court on several occasions from April 1986 to August 1987 when he was convicted. The complainant was represented by counsel (G. Ecclestone) at his criminal trial. An appeal of that conviction was launched immediately. The complainant was represented on appeal by different counsel (Prendonville). The appeal was heard in December 1988; the conviction was overturned and an acquittal directed.
10The complainant acknowledged that the union was in no way responsible for the various delays in the court proceedings. While he asserted that he queried the delay between June 1986 and August 1987 in setting an arbitration date, the complainant conceded that the instant complaint did not refer to that delay as an alleged contravention of section 68. In any event, the arbitration hearing was initially scheduled for June 16, 1988. At this point, the complainant wanted the arbitration delayed until after his appeal was heard; indeed, the complainant insisted on an adjournment. The complainant admitted that the union informed him that the company was only prepared to consent to the adjournment if its liability did not run past June 1988 should the complainant ultimately be reinstated. The complainant testified that, although he was making more money at that point than he earned at the company (and therefore there would be no financial loss in agreeing to limit liability as the company insisted), he did not agree to the condition for the adjournment notwithstanding his insistence on that adjournment. The matter was, in fact, adjourned. The "conditional" basis for the adjournment in June 1988 constitutes one of the alleged violations of section 68.
11The complainant testified that he reviewed the matter with Prendonville, his counsel with respect to the appeal of his conviction, who advised him not to take any action against the union until after the appeal hearing in December 1988. In chief, the complainant placed the first contact with the Board in November or December 1988 where, in a telephone conversation, he was told nothing could be done until the arbitration was completed. In cross-examination, at one point the complainant testified that, in May or June 1988, he came to 400 University Avenue to the Board and to the Human Rights Commission to find out what his "rights" were vis-a-vis the "police, the courts, the company and the union". The complainant testified that "someone on the first floor" told him that the Board had no jurisdiction, could not help him until the entire grievance was resolved and that the Board would not do anything until the arbitration was over. Later in cross-examination the complainant stated this incident occurred in late 1988 following his acquittal of the criminal charge on appeal on December 15, 1988. Still later in cross-examination, the complainant stated that he visited the Board's 4th floor reception area seeking advice following his acquittal in December 15, 1998 and was told to wait until the arbitration hearing was over. These various and conflicting explanations illustrate the complainant's willingness to alter his testimony to respond to probing cross-examination. The Board does not accept this testimony.
12The complainant gave contradictory testimony, as well, regarding his contact with union officials prior to April 1989. The complainant indicated he informed the union of his acquittal at some point between December 1988 and April 1989. He also testified in cross-examination but not in chief that he met with the union regarding his grievance sometime between June 1988 and December 1988 although he couldn't recall when.
13In April 1989, the complainant was told the arbitration was scheduled for April 26 and then, when an earlier date became available, the hearing was moved to April 12, a change to which he agreed. The union officials (including R. Tindale and R. Ryan) met with the complainant on April 6 to prepare for the hearing. Much of that discussion more properly related to the substance of the section 68 complaint, and, in that regard, the Board heard only from the complainant, not the union's witnesses. The complainant acknowledged that the discussions included reference to credibility being a key issue at arbitration, the complainant's apparently different versions of the events leading to his possession of the radio, the reference to those matters in the transcript of the trial proceedings and the admissibility of the transcript at the arbitration hearing. The complainant's account of the April 1989 meeting was that he took the position that the transcript was "illegal" given the appeal court's decision and could not be admitted. What is relevant to the issue of delay, is that the complainant again insisted on an adjournment and wished to consult a lawyer about his case. The union agreed to obtain a further adjournment so the complainant could seek legal advice.
14With respect to the period between the April 1989 meeting with the union and June 1989, the complainant's account of his actions is again contradictory. In examination in chief, he testified that he visited the Board's offices on the 3rd or 4th floor in April or May 1989 regarding his grievance and was again told to wait for the outcome of the arbitration. At one point in cross-examination, he stated that it was difficult to recall whether he attended at the Board at all between December 1988 and the August 1989 arbitration but he thought perhaps he was there in March 1989. At yet another point in cross-examination, the complainant stated he only telephoned the Board in May 1989. As well, the complainant testified at various points in cross-examination that: he phoned "all kinds of lawyers" in this April to May period, at least two or three and maybe five or six; he saw a couple of lawyers; he called Prendonville again about his grievance; he met with one lawyer (S. Menzies) who referred him to a labour lawyer whose name the complainant couldn't recall; he met with a lawyer in the Warden and Lawrence area whose name he couldn't recall. Then, through a friend, the complainant was referred to B. Fedunchak, a lawyer whom he retained in early May 1989. In the face of such conflicts, the Board is not persuaded that the complainant actively pursued the matter during this period other than to contact Fedunchak whose name he learned through a friend.
15The company agreed to adjourn the April 1989 arbitration provided that the hearing was re-scheduled for either of two specified dates. The complainant informed the company by letter dated May 8,1989 that he would be represented by counsel, B. Fedunchak, at the arbitration and that August 30, 1989 was selected as the hearing date.
16The complainant waived solicitor-client privilege with respect to his discussions with his lawyer, Fedunchak. The Board first recounts the complainant's various versions of what was discussed in May 1989. In cross-examination, the complainant initially stated they (the complainant and Fedunchak) discussed the possibility of filing a complaint at the Board against the union but decided not to pursue that option until after the arbitration. The complainant's concerns about the 1988 adjournment on conditions limiting his financial compensation should the grievance ultimately succeed and about the union's negative attitude of the prospects for success at arbitration were discussed as well in May 1989, as was the complainant's view that the union should have demanded his reinstatement following the court of appeal decision. The complainant, however, at a later point in his testimony, stated that he and Fedunchak were not speaking of a complaint against the union at all except to comment that neither could figure out why the grievance couldn't be resolved at the fourth stage.
17Fedunchak gave a different account of those discussions. He could not recall when he first spoke with the complainant or was actually retained. According to Fedunchak, the complainant expressed his unhappiness with his representation by the union. He (the complainant) felt the union was missing some issues and was not putting forward the case properly. Fedunchak did not discuss specifics with the complainant at that point. Fedunchak also stated he repeatedly advised the complainant to rethink his relationship with the union and use its counsel for the arbitration or retain a labour lawyer. According to Fedunchak, the complainant said he had tried unsuccessfully to retain a number of lawyers but at least some of those asserted a conflict of interest in representing the complainant because of their relationship to the company or the union. Fedunchak also recommended some lawyers to the complainant but could not recall their names. In Fedunchak's opinion, he agreed to represent the complainant rather than let him appear unrepresented at the arbitration hearing. Fedunchak could not recall seeing exhibit number 3, the May 8, 1989 letter from the complainant to the company confirming that Fedunchak had been retained for the arbitration, and this document, when shown to him, did not refresh Fedunchak's memory as to when he was retained.
18Although the testimony about the discussions between Fedunchak and the complainant in May 1989 and thereafter to the point of the arbitration hearing on August 30, 1989 is somewhat contradictory, the Board is satisfied that it is more probable than not that the complainant discussed any concerns he had about the union with his counsel.
19In any event, Fedunchak acknowledged that he did prepare for the arbitration hearing scheduled for August 30, 1989. Fedunchak contacted the company representative, J. Shantz, requesting a consent adjournment of the arbitration hearing shortly before the day scheduled but that request was refused; he did not contact the union about that matter. Fedunchak testified that his reason for seeking an adjournment was primarily so that he could initiate an action for replevin. In Fedunchak's view, following the complainant's acquittal on appeal, the radio in question was therefore the complainant's property and, if the complainant could recover that property through an action for replevin, the company would be unable to produce the radio at the arbitration hearing and the arbitration would be decided in the complainant's favour.
20At the arbitration hearing, the complainant was represented by Fedunchak; the union officials (Ryan and Tindale) were also present and communicated with Fedunchak during the hearing. The company sought to have the transcript of the trial proceedings admitted to prove prior inconsistent statements by the complainant. Fedunchak stated he was "shocked" at this development. Fedunchak opposed that motion and made submissions. According to the complainant, Fedunchak said something to the effect "we should pack our bags and leave" if the transcript was admitted. The arbitrator did admit the document. The allegation before the Board is that the transcript was admitted because of the union's agreement (without the complainant's consent) to admit the document.
21Following the arbitration, the complainant testified he telephoned Fedunchak twice inquiring as to whether the arbitration decision had been released. That decision was dated September 12, 1989 and was forwarded to Fedunchak under a cover letter dated September 13, 1989. Fedunchak could not recall when he received the award or how soon thereafter he contacted the complainant. The complainant testified the two met near the end of September. Fedunchak stated that he met with the complainant approximately six times following the arbitration award, although he was retained only to represent the complainant at the arbitration hearing. At these meetings, his advice was that the complainant should "follow up" the matter by challenging the arbitration award on judicial review for error of law and by pursuing a complaint against the union before the Board. The complainant testified that he already knew he could file a complaint with the Board from his contacts in 1989. Fedunchak said he advised the complainant to retain a labour lawyer as his (Fedunchak's) expertise was in criminal law and, in Fedunchak's view, different counsel should be retained for any appeal proceeding. As well, Fedunchak stated he had never before filed a complaint with the Board or appealed an arbitration decision. The complainant testified that he was satisfied with Fedunchak's services and that Fedunchak told him in September he would help him file a complaint but labour law was not his best subject and the complainant should retain a labour law specialist. The complainant further testified that he tried unsuccessfully to contact a number of lawyers but those possibilities fell through for reasons including conflicts of interest and fees. Again, Fedunchak suggested several names but the most specific he could be was that one of the persons was female. Fedunchak testified that he recalled seeing a list of over twenty lawyers' names in the complainant's possession but could not be more specific as to whether this was before or after the arbitration; Fedunchak thought that the list represented lawyers whom the complainant had contacted or tried to contract. No such document was filed with the Board. The complainant testified that he used the Law Society's referral service and the yellow pages in his efforts to retain counsel. He stated he saw at least five or six lawyers but did not retain any.
22In addition to his meetings with Fedunchak following the issuance of the arbitration decision, the complainant testified that he telephoned the Board in early October "unofficially" (in the complainant's view) and "officially" in the second week of November seeking to file a complaint. In the "unofficial" call, the complainant stated that he did not request that the Board mail any information as he was debating whether the complaint should be filed by himself, Fedunchak or another lawyer. The material from the Board, including the forms, the Guide to the Labour Relations Act and an information sheet arrived within two or three days of the November telephone call.
23In November 1989, the complainant again met with Fedunchak. According to the complainant, they reviewed the Board materials and Fedunchak reiterated his view that the complainant should retain a specialist. The complainant stated he was seeking "advice" generally from Fedunchak rather than assistance in formally filing a compliant. Nonetheless, Fedunchak did partially complete a complaint form, in his words, to "show the complainant how to fill out a complaint" "as a precedent". Fedunchak could not recall whether he gave any specific advice regarding time limits for appealing the arbitration award or filing a complaint with the Board. He believes he told the complainant to set out the chronology of events in a letter to be attached to the complaint. Fedunchak stated it was unlikely he drafted such a letter as he did not wish to be involved in the appeal, although he could not recall whether he did or not. The form (exhibit 10) which Fedunchak states he reviewed with the complainant, was filed in evidence with the Board and indicates the time period in which the alleged contravention of section 68 occurred was "March 28, 1986 to April 10, 1989". Fedunchak was evasive in cross-examination when asked why the time period did not include August 30, 1989 (the date of the arbitration hearing when the alleged union agreement to admit the transcript occurred) if that incident was as "shocking" and improper as Fedunchak testified. Fedunchak finally replied that exhibit 10 was merely a precedent for the complainant to follow in completing the complaint. Fedunchak recalled the complainant had additional material from the Board but could not remember whether that was reviewed with the complainant.
24During the winter of 1989-90, the complainant testified he continued his fruitless search for counsel, including phoning legal aid. He stated he became worried whether he was taking too long to file the complaint and, in January of February 1990, went to the Board's 3rd or 4th floor reception area where he testified he was told there was "lots of time", there was "no time limit" and he should "take his time to get advice because, if there was an error, the complaint could be thrown out". Finally, in April or May, the complainant contacted his current representative. Several meetings ensued during which the complainant testified he reviewed the events of the last four or five years, including a considerable volume of paperwork. The complaint was filed June 15, 1990 and amended in an undated letter received by the Board on July 20, 1990.
25In paragraphs 21 to 24, the Board has set out the testimony of the complainant and Fedunchak with respect to the complainant's efforts to pursue his complaint against the union. The Board is not persuaded by this testimony that the complainant actively pursued his concerns beyond obtaining the Board forms and preparing a "draft" complaint with Fedunchak prior to the point he contacted his current representative.
26There was considerable testimony about the complainant's state of mind during the period prior to the filing of the complaint. S. Blanchard testified that, following the arbitration, the complainant was indecisive, withdrawn, short-tempered rather than easy going as in the past, suffered from insomnia, "ate like a chicken" and had lost confidence in himself. Indeed, at the April 19, 1989 meeting with the union where the complainant insisted on an adjournment to prepare for the case (a meeting which Blanchard attended), Blanchard stated the complainant was so anxious he (the complainant) said he would obtain a doctor's note to force an adjournment of the proceedings if necessary. J. Santino testified that, following the arbitration, the complainant was despondent, moody, had difficulty making clear-cut decisions, had a complete personality change, and showed a lack of initiative. Indeed, at any point from the date of his termination, whenever formal proceedings neared, Santino stated the complainant became anxious and stopped taking care of himself. Fedunchak repeatedly testified that, following the arbitration, the complainant became sad, lethargic, moody and lacked his usual "spunk". The complainant testified that he had been upset since he was fired because he had not been treated fairly. Following the arbitration, he stated he was physically and emotionally drained, found it difficult to concentrate, needed rest and was depressed about his low financial resources. No medical or psychological evidence was presented to the Board to corroborate the descriptions of the complainant's state of mind. Without such evidence, the Board does not accept this testimony given its view of the credibility of the various witnesses, as noted.
ARGUMENT
27The Board next sets out the submissions of the parties in highly abbreviated form.
28Company counsel argued that the sequence of events constituted undue delay on a prima facie basis and the onus fell on the complainant to establish a satisfactory explanation for that delay. In reviewing the complainant's "excuses" for the delay involved, counsel submitted the Board must determine whether those excuses, if believed, constituted a compelling explanation for the delay despite the Board jurisprudence and the policy considerations therein requiring prompt filing of complaints and, further, whether those excuses were believable at all or merely a pretext brought forward at this point to persuade the Board to hear the merits of the complaint. Counsel submitted that credibility was central to this determination and the complainant was not a credible witness. Counsel noted that the Board had the discretion in section 89(4) of the Act as to whether or not the Board should inquire into the merits of a complaint. Counsel reviewed the testimony in considerable detail dividing the events into three stages: up to June 1988 when the internal grievance process essentially ended; the April 1989 events; the period from the retaining of Fedunchak by the applicant in May 1989 through the arbitration hearing on August 30, 1989 to the filing of the complaint on June 15, 1990. It was contended that the explanations given for the delay involved throughout were neither genuine nor a compelling basis on which to proceed to hear the merits of the complaint which alleged misconduct by the union reaching as far back as 1986 through to the arbitration hearing on August 30, 1989. Counsel also stressed that the complainant had had "his day in court" at the arbitration hearing where his 1986 dismissal as an employee was litigated and the complainant, represented by his own counsel, had lost. It was submitted that the complainant's real goal was relitigating that dismissal using the section 68 complaint as a pretext towards that end. In reply, counsel disputed the limitation periods in other jurisdictions as stipulated to by the complainant's representative. Counsel submitted the "clock began ticking" at the arbitration hearing where the union's misconduct was alleged to have occurred; that there were no labour relations policy reasons permitting a party to wait until the potential injury was actualized. In the alternative, if the Board took, as a starting point, the juncture at which the issues crystallized, it was argued that point on the evidence was: the date in 1988 when the union obtained an adjournment on the basis that compensation would be limited; in April 1989 when Tindale allegedly refused to thereafter to represent the complaint; and on August 30, 1989 when the alleged "deal" to introduce the transcript was executed. Counsel contended that each of those points was too far back in time to warrant a hearing on the merits now. Those cases referred to by the complainant's representative were commented upon at some length. Case cited by counsel for the company included: The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420; Sheller-Globe of Canada, Ltd., [1982] OLRB Rep. Jan. 113, application for judicial review dismissed at 83 CLLC ¶12,275 (Ont. Div. Ct.); Chrysler Canada Limited, [1982] OLRB Rep. Oct. 1417; Chrysler Canada Ltd. [Board File 2200-83-U], unreported, Oct. 15, 1984] (hereafter referred to as the Narayan case); Re City of Toronto and Canadian Union of Public Employees, Local 79 (1982), 1982 CanLII 2229 (ON CA), 133 D.L.R.(3d) 94(O.C.A.).
29The union's representative noted that it was the company which initially raised the preliminary motion with respect to delay, but, given the evidence heard, the union supported the company's position. Some specific aspects of the testimony were reviewed in support of the contention that the question of credibility was crucial in this case and that the complainant was not a credible witness. The union's representative also argued that the complainant's real concern was to relitigate his discharge and the section 68 allegation's were an attempt to achieve that goal. In reply, it was acknowledged that there were no specific time limits for filing a complaint with the Board but it was asserted the Board jurisprudence emphasized *prompt filing of complaints. Even in the complainant's best case scenario, the union's representative contended that the delay was excessive and, given the complainant's lack of credibility, unexplained.
30The complainant's representative asserted that the onus lay on the company and the union to establish that the delay was undue and the Board cases indicating that the onus shifted to the complainant to explain the delay were wrong. It was agreed that the Board had the discretion in section 89(4) of the Act to refuse to hear a complaint because of undue delay but it was contended that such discretion should be exercised reasonably. In the absence of a statutory limitation period, the complainant's representative submitted that what constituted unreasonable delay should be determined in the context of each case and any reasonable doubt should be resolved in the complainant's favour so as to give effect to the remedial import of the legislation. The statutory limitation periods in other jurisdictions were noted as guides to the Board in the exercise of its discretion. The complainant's representative argued that the jurisprudence framed the test as "months not years" but accepted considerable periods of delay in fact. It was submitted that the time started "running" when all the facts needed to establish the complaint had crystallized and the ultimate consequences of the alleged violation were suffered. In the instant case, that was not until the complainant learned of the arbitrator's decision in late September 1989, even with respect to allegations dealing with events much earlier during the grievance process. The complainant's representative argued that the company and the union, in calling no witnesses, had not established actual prejudice to hearing the merits of the complaint. It was asserted that the issue of credibility was irrelevant to the question of delay in the context of a preliminary motion and, in any event, the complainant was a credible witness whose testimony was corroborated by all the witnesses. The complainant's representative portrayed his client as an unsophisticated but truthful witness; the inconsistencies in his testimony were characterized as minor and related to peripheral matters. It was contended that, even if the delay was undue, the Board could deal with that aspect in determining the appropriate remedy should the complaint be upheld. The evidence was reviewed in support of the submission that the complainant had, by and large, accounted for the period from late September 1989 to June 1990. That period, it was submitted, was reasonable in the circumstances and less than those instances in the caselaw where the Board had exercised its discretion not to inquire into the merits of a complaint. The complainant's representative argued that the union ought to have been aware in April 1989 when the complainant sought out his own counsel that the complainant was less then enthusiastic about his representation by the union. In short, the delay was reasonable and adequately explained so that the Board should hear the merits of the complaint. The complainant's representative reviewed a number of Board decisions and sought to distinguish those cited by company counsel. Cases referred to by the complainant's representative included: Concrete Construction Supplies, [1982] OLRB Rep. Oct. 1446; Inco Metals Company, [1982] Rep. May 681; Cameron Douglas Wonch, [1984] OLRB Rep. Nov. 1659; Douglas G. Poole, [1984] OLRB Rep. June 856; Central Stampings Limited, [1984] OLRB Rep. Feb. 215; Catherine Whittaker, [1985] OLRB Rep. Apr. 621; Tecumseh Products of Canada, Limited, [1985] OLRB Rep. Jan. 123; Toronto Housing Labour Bureau, [1987] OLRB Rep. Sept. 1178; Gary Hopkins, [1985] OLRB Rep. May 684; George Hinkson, [1987] OLRB Rep. Oct. 1246; Calorific Construction, [1988] OLRB Rep. Feb. 115.
DECISION
31The Board's discretion to decline to hear a complaint on the merits is grounded in section 89(4) of the Act and was not disputed. Over the years, the Board has developed a considerable body of jurisprudence dealing with the exercise of that discretion. The Board regards that caselaw as an appropriate framework in which to consider the preliminary motion in the instant complaint and does not consider the statutory limitation periods in other jurisdictions (whether or not stated accurately by the complainant's representative) as helpful. It is also useful to note here that the preliminary motion to dismiss the complaint because of the delay in filing was raised by the company as intervener but supported by the respondent trade union, unlike the circumstances in George Hinkson, supra, where the Board emphasized there that the "the respondent against which the complaint is directed does not seek to have it dismissed without a hearing on the merits", in reaching its decision to proceed to a determination on the merits.
32The following passage from The Corporation of the City of Mississauga, supra, is regarded as a seminal exposition of the Board's approach to the issue of timeliness in the duty of fair representation cases:
It is by now almost a truism that time is of the essence in labour relation matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once chrystallized [sic], could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it - including the employees - are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been satisfactorily settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C. G. E.3 L.A. C. 980 (Laskin) and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 L.A.C.51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay- holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties' current collective bargaining relationship - quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board's view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reason for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to the parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
33The complainant's representative pointed to a number of decisions wherein the Board declined to hear the complaint because of delay but which involved periods of delay well in excess of that in the instant case: for example, Sheller-Globe, supra, (2½ years); The Corporation of the City of Mississauga, supra, (5 years); Douglas G. Poole, supra, (3½ years); Catherine Whittaker, supra, (19 months); Gary Hopkins, supra, (at least 3 years); Concrete Construction Supplies, supra, (3 years). The Board regards those cases as consonant with the principles enunciated above; the cases do not stand for the proposition that the Board would have held a merits hearing had the delay been somewhat less. Only two cases were cited wherein the Board proceeded to hear the substance of the complaint: George Hinkson, supra and Central Stampings, supra. In George Hinkson, the Board refused to dismiss the complaint notwithstanding a delay of two years although the Board cautioned that the delay might well be considered with respect to any remedy should a contravention of the statute be found. The Board therein pointed to the complainant's lack of sophistication regarding labour law matters, his need to obtain legal aid complicated by his change of address and change of solicitors, the fact that the preliminary motion was supported solely by the intervener (as noted earlier) and the lack of any specific prejudice. The Board has already commented on the distinction between the instant case and George Hinkson in paragraph 31. In Central Stampings, the Board considered the 15 month delay in filing a complaint as insufficient to warrant its dismissal without a hearing on the merits because both the intervener company and the respondent trade union were adequately put on notice within some six to nine months of potential legal proceedings arising from the discharge grievance. With respect to Central Stampings, supra, the Board does not find the circumstances apposite given that, in the instant case, the company and the trade union had no notice prior to the date the complaint was filed with the Board on June 20, 1990 of an impending section 68 complaint in which the complainant would seek to have a re-litigation of his discharge. The complainant's representative argued that the union would have been put on notice of the complainant's displeasure with the quality of his representation by the union in April 1989 when the complainant wanted independent legal advice. The Board does not agree. The Board need not here repeat the facts found at paragraphs 12 and 13 above. What is relevant is that the complainant, in April 1989, insisted on a further adjournment of his arbitration and independent legal advice, and the union complied with those requests. The complainant obtained an adjournment to August 30, 1989 (the date selected by the complainant from two dates offered by the company) and retained his own counsel, Fedunchak, in May 1989. Counsel prepared for and conducted the arbitration hearing, which the union officials attended and during which (on the evidence of the complainant's witnesses) they communicated with Fedunchak. There is nothing in this sequence of events which would reasonably have alerted the union (or the company) that a section 68 complaint was lurking in the wings before its filing in June 1990. (The Board does not regard it as necessary to deal with Chrysler Canada Limited, supra, as the issue of delay therein was determined prior to Sheller-Globe, supra and The Corporation of the City of Mississauga, supra, as noted in the reported decision itself at paragraph 61. Nor is Inco Metals Company, supra, helpful as the issue therein dealt with the delay in the context of the election doctrine in Occupational Health and Safety complaints and bears no real resemblance to the instant circumstances).
34The delay in a number of cases in which the Board has declined to hear the complaint has approximated one year: for example, Narayan, supra; Tecumseh Products, supra, Cameron Douglas Wonch, supra; Calorific Construction, supra. In this regard, it is necessary to review the assertion of the complainant's representative that the delay in the instant case should be measured from the date the complainant learned of the arbitration decision in late 1989 to the date the complaint was filed, a period of 81/2 months. The complainant's representative submitted that the "clock did not start ticking" until this point - where the grievance and arbitration process finally ended and his termination was confirmed - even through some of the alleged violations of section 68 occurred much earlier. In the Board's view, such an approach would negate the labour relations considerations outlined in the City of Mississauga, supra, and which permeate the Board's jurisprudence in this area. To do as the complainant's representative seeks, would require the union to defend its conduct against allegations dating back to June 1988 (when the internal grievance process essentially ended) or April 1989 (when the complainant sought independent legal advice) without notice that their conduct in those periods allegedly fell short of the duty of fair representation standard. The Board will not permit a complainant to lull another party into believing its conduct is acceptable only to have that conduct attacked years later. The jurisprudence has stressed that the passage of time is inherently prejudicial; where the delay is excessive, the opposing parties need not establish specific prejudice. The Board affirms that reasoning herein. Those allegations '.' dealing with the period prior to the arbitration hearing in August 1989 are dismissed as too far back in time to be fairly litigated now given the absence of adequate notice to the union that its conduct was alleged to have contravened its duty of fair representations and given the absence of a credible and reasonable explanation for the delay. The factors outlined in more detail below have been considered by the Board in reaching its determination in this paragraph as well, but need not be elucidated further in the circumstances in determining that the allegations dealing with matters prior to the arbitration hearing should not be considered on their merits.
35The remaining allegation concerning the admission of the transcript at the August 30, 1989 arbitration is more problematic and requires further consideration. The arbitration hearing was held on August 30, 1989. According to the complainant's witnesses, the admission of the transcript of the trial on the alleged agreement of the union was "shocking" and highly prejudicial to the complainant's defence. The thrust of the testimony of the complainant and Fedunchak was that the case was lost once the transcript was admitted. The Board regards that date as the point from which the delay must be measured. The complainant need not necessarily have filed this complaint immediately thereafter; the complainant could have otherwise put the union on adequate notice that its conduct at the arbitration hearing was impugned. But a complainant who awaits the final outcome in one forum before initiating proceedings before this Board and does not put a respondent on notice of such potential litigation in the interim, risks the exercise of the Board's discretion to decline to hear a complaint because of the effect of such a delay.
36Thus, with respect to the remaining allegation of impropriety by the union at the arbitration hearing, the delay in filing the instant complaint is 91/2 months. Standing alone, that delay may not be regarded as so excessive so as to deprive a complainant of an adjudication on the merits. However, in the instant context, the Board does consider it appropriate to decline to entertain the complaint on the merits for the following reasons.
37It is useful to revisit the passage in The Corporation of the City of Mississauga, supra, which outlines, although not exhaustively, various factors that are generally considered by the Board with respect to the issue of delay:
- A perusal of the Board cases reveals that there has not been a mechanical response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reason for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial liability or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to the parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
[emphasis added]
The Board next considers each of those factors in the context of the instant case.
38As noted above, standing alone, a delay of 9'/2 months is not generally considered to be so excessive as to warrant dismissal without a hearing on the merits. However, critical to the Board's determination is an assessment of the reasons offered by a complainant for any delay involved in bringing the complaint. Critical to an assessment of the reasons is the credibility of the complainant and any witnesses called on the complainant's behalf. Whenever evidence is led through viva voce testimony, the Board is called upon to consider issues of credibility, regardless of whether such testimony occurs in the context of a preliminary motion or an adjudication on the merits. The Board is not here dealing with a preliminary motion to dismiss a complaint as not making out a prima facie case where the material facts pleaded are assumed true and could be proved at a hearing. Rather, in the instant case, the complainant's representative called witnesses to establish that the reasons for the delay were compelling; those witnesses were subject to cross-examination. Thus, an assessment of credibility is inevitable and necessary to the proper exercise of the Board's discretion. Furthermore, the Board's jurisprudence has clearly placed on the complainant the onus of providing candid and compelling reasons to account for the delay and the Board rejects the bald assertion of the complainant's representative that those cases are wrong.
39The Board need not repeat its earlier comments about the complainant's lack of credibility. The Board has set out some of the testimony of the complainant and Fedunchak to give the flavour of the inconsistencies and implausibilities in that testimony. The testimony as to the complainant's impaired physical and emotional condition following the arbitration award is in the form of vague generalities and uncorroborated by medical evidence. Moreover, even if that evidence could be given some credence, it would not establish that the complainant's state was such as to render him unable to file the complaint promptly: Douglas G. Poole, supra. Throughout the relevant period, the complainant sought out new counsel, met on several occasions with Fedunchak, and contacted the Board - he simply did not file a complaint. The complainant also attempted to explain his delay by testifying that the Board had given him advice on several occasions prior to the arbitration hearing to the effect that the Board had no jurisdiction to hear the complaint until the arbitration was concluded and, following the arbitration hearing, that there were no time limits and that he should take his time to have the complaint completed properly or it could be dismissed. The Board does not accept this testimony. The number and timing of the alleged contacts with the Board reflected the complainant's sense at that point in cross-examination of the obvious weaknesses in his explanation for his inaction. Moreover, the information sheet and the Guide to the Labour Relations Act which the complainant acknowledges he received and reviewed in November 1989 both expressly note that the Board cannot give legal advice as to the appropriate steps to take in any particular circumstances.
40Thus, in the instant case, the Board has no credible and reasonable explanation for the delay involved in the period between the arbitration hearing and the filing of the complaint.
41Further, the complainant was aware of the alleged improper conduct - the allegation that the union agreed with the company to admit the transcript - at the arbitration hearing itself. Fedunchak opposed the company motion to admit the transcript and made representations to the arbitrator regarding the transcript's admissibility. The complainant and Fedunchak discussed the matter at the arbitration hearing and in the weeks following the hearing. The complainant was aware that he could file a complaint at the Board alleging the union's conduct constituted a contravention of section 68 of the Act. The Board must also weigh the delay in filing a complaint in light of the Board's recognition that prompt notice to the other parties is essential to a fair hearing, as codified in Rule 72 of Regulation 546 enacted under the Labour Relations Act. The underlying rationale for Rule 72, and the Board's power therein to preclude a party from adducing evidence at a hearing of those matters where there has not been prompt notice of alleged improper conduct, would be undermined if the Board were to sanction significant delay in filing the complaint itself except where the complainant provides a credible and reasonable explanation for the delay. This factor, as well, does not assist the complainant.
42The next factor refers to the nature of the remedy claimed. The relief sought by the complainant may well involve retrospective financial liability and, to use the phraseology of The City of Mississauga, supra, could significantly impact upon the pattern of relationships which has developed since the alleged contravention.
43With respect to the factor dealing with fading recollection and the prejudice to the other parties, it is evident that, by the time the complaint was filed, many months had passed since the arbitration hearing in August 1989. Thus, there would likely have been some diminution in recollection by that time. However, in the absence of specific evidence of prejudice or the passage of such a lengthy period that no such evidence of specific prejudice would be necessary, this factor is of relatively limited assistance in the circumstances of this case.
44The Board, as stated in the excerpt above, has generally given "some latitude" to "parties who are unaware of their statutory rights or who~ through inexperience take some time to properly form their concerns and file a complaint". However, no such latitude is warranted in the instant case because the complainant already had counsel at the relevant time. Whether a complainant was represented by counsel during the relevant period is a material fact which can properly be taken into account in the exercise of the Board's discretion: The Corporation of the City of Mississauga, supra; Catherine Whittaker, supra; Tecumseh Products, supra; Gary Hopkins, sup ra. In the instant case, the complainant had counsel throughout his court proceedings and, on his own evidence, spoke with Prendonville (who handled the complainant's appeal from his criminal conviction) about his discharge grievance in the spring of 1989. More critically, from a point over one year prior to the complaint's filing, from May 1989 through the arbitration to some point in November 1989, the complainant was represented by or at least actively consulting Fedunchak. The chronology of events from the complainant's dismissal onwards was reviewed and the issue of the union's representation discussed. Fedunchak was retained to represent the complainant at the arbitration hearing. Indeed, Fedunchak assisted the complainant in completing a "draft" complaint in November 1989. Fedunchak testified that he urged the complainant, both before and after the arbitration hearing, to retain counsel with expertise in labour relations, implicitly acknowledging that his advice may not have been the best. Whether Fedunchak served the complainant well need not be determined by this Board; any risks of inappropriate or incorrect advice are to be borne by the complainant not the respondent or intervener: Tecumseh Products, supra; Gary Hopkins, supra. Although, this factor alone is not determinative, it is highly relevant and certainly does not weigh in the complainant's favour in the instant case.
45The factors outlined in The City of Mississauga, supra have not been accorded any defined weight or ranking relative to one another. Rather, the weight and importance of the various factors will depend upon the circumstances in each case. In the instant case, the Board is satisfied that all but one of the factors militate against hearing the complaint with respect to the alleged agreement by the union to admit the transcript on the merits.
46Accordingly, for the foregoing reasons, the Board exercises its statutory discretion under section 89 of the Labour Relations Act to decline to entertain further the complaint, as that complaint was confined by the Board's decision reported at [1991] OLRB Rep. Jan. 35 (i.e., to the allegations, as pleaded, concerning the union's handling of the complainant's grievance prior to arbitration and the union's agreement to admit the transcript at evidence at the arbitration hearing). Thus, the preliminary motion of the intervener, joined in by the respondent, is upheld and the complaint is hereby dismissed.