[1992] OLRB Rep. May 642
3252-91-FC; 3253-91-FC The Ontario Public Service Employees Union, Applicant v. Surex Community Services, Respondent
BEFORE: K. G. O'Neil, Vice-Chair, and Board Members J. A. Ronson and C. McDonald.
APPEARANCES: Chris G. Paliare, Lily Harmer and Leon Farley for the applicant; D. Churchill-Smith, J. A. Roffey and C. Hamilton for the respondent.
DECISION OF THE BOARD; May 25, 1992
These are two related applications for direction of settlement of a first collective agreement by arbitration. The applications were made on January 14, 1992 and were first scheduled for hearing on January 27, 29 and February 7, 1992. On consent of the parties those dates were adjourned, the time limits in section 41(2) were waived, and an extension agreed to under section 41(19) of the Act. The matter was rescheduled for April 24, 28 and June 17, 1992 to allow the parties to engage in mediation which was unsuccessful. When the matter came back on for hearing on April 24, 1992, the Board was advised that the applicant union had applied under the Hospital Labour Disputes Arbitration Act ("HLDAA") for arbitration of their dispute, asserting that the respondent is a hospital within the terms of that legislation. The employer takes the position that it is not a hospital and says that because of the HLDAA application, we should not entertain the first contract application at all and certainly not at this time. The Board consulted the Registrar for dates and ascertained that there were dates that would make it possible for the matter to be completed in the vicinity of the June 17 date which had previously been scheduled and adjourned the matter to June 12, 17, 30, July 6, 7, and 8. Our reasons for so doing follow.
The respondent is a non-profit, charitable corporation which provides residential, educational and developmental services for the developmentally handicapped. The applicant union was certified to represent the full-time and part-time employees of the respondent on March 25, 1991. Notice to bargain was served on May 13, 1991. Collective bargaining commenced in June and six or seven meetings were held. On October 21, 1991 a conciliation application was filed by the union. A conciliation meeting was held on December 19, 1991 and on December 31, 1991 a "noboard" report was issued by the Minister. On January 14, 1992 this application was made.
The legislative scheme relating to hospitals is different than that of the Labour Relations Act in regards to the settlement of disputes over the contents of the collective agreement, known as interest disputes. Under the Labour Relations Act, if a conciliation officer is unable to effect a collective agreement, the Minister either appoints a conciliation board or issues a notice in writing that he does not consider it advisable to do so, commonly known as a "no-board" report. The date of report of the conciliation board or, more commonly, of the "no-board" report then starts the time running for the timeliness of an application such as this one, for direction of settlement of a first collective agreement by arbitration, as for other matters under the Act, such as a legal strike or lock-out, certification and termination applications. By contrast under the Hospital Labour Disputes Arbitration Act, where a conciliation officer is unable to effect a collective agreement (whether a first collective agreement or a subsequent one), the Minister informs the parties in writing and the matters in dispute between the parties are then decided by interest arbitration. (See section 3 and 4 of the HLDAA.) Strikes and lock-outs are not permitted. In sum, these are parallel, mutually exclusive, schemes for settling the first collective agreement between these parties.
The respondent takes the position that the union has now elected to go to the Minister of Labour under the HLDAA and should be obliged to follow that course of action. Counsel states that the union's attempt to follow a double route is an abuse of process and that because of the intolerable position this puts the employer in, we should dismiss the application. However, in the alternative, the employer submits we should defer to the HLDAA application. He observes that pursuing the two arbitration routes could well result in inconsistent results and the waste of many taxpayers' dollars. Counsel submits that if the respondent is not a hospital, the parties should go back to collective bargaining and that if it is a hospital, the dispute must go to arbitration under the HLDAA.
For the union, counsel argued that the respondent ought to be estopped from objecting because of the lateness of the request and referred to Regency Towers, 1973 CanLII 2034 (ON LA), 4 LAC (2d) 440. Further, counsel says nothing precludes the union from pursuing two courses of action. He asserts that there is nothing to prohibit the Board from continuing and that policy reasons do not indicate that it ought to stop this proceeding.
In reply, employer counsel rejected the suggestion that it is estopped and asserted that his point is a jurisdictional point. He observed that whatever the Board would do in this matter would have no finality and referred to the case of Nel-Gor Castle Rest Home and London and District Service Workers, Local 220 (1985), 85 CLLC 12,029. In that case, the Court was hearing an application for an order staying an arbitration under the HLDAA pending an application for judicial review of a Minister's decision that the respondent was a hospital. As it was the first collective agreement between the parties that was in issue, the Court found that the balance of convenience was in favour of determining whether the applicant was a hospital before the arbitration proceeded so that the parties could know what statutes governed their relationship.
Whether or not to defer to the process under the HLDAA at this stage of the proceedings is a matter in the Board's discretion. We are not currently without jurisdiction to proceed as there has been no determination that the respondent is a hospital. We are not of the view that the union's application under HLDAA warrants the dismissal of this application for abuse of process. Rather, we decided the interests of both sides could best be served by adjourning the matter and did so on April 24, 1992. Given the original estimate that it would take three days to complete the matter, the overwhelming balance of convenience favoured the adjournment to the dates that were available around the previously set June date. This is because the matter could be finished in approximately the same time frame and the possibility existed that the Minister's decision would be available prior to the next scheduled date. The question remaining however, is whether the matter should proceed on June 11 in the event that the Minister has not yet released its decision. If the Minister has released a decision that the respondent is not a hospital it is clear that the matter should proceed on June 11. If the decision is that the respondent is a hospital, the June 11 hearing should not proceed. The union has undertaken to withdrawn the application in that event.
We have considered the union's argument that the employer has waived its right to object or is estopped from so doing. We do not agree that the facts support such a conclusion. There was no evidence that the employer had made any representation as a basis for the estoppel. Even if there were, it is doubtful that the detrimental reliance necessary to support an estoppel is present here. Although it is true that some arrangement might have been possible had the employer raised the matter earlier, this is not a detriment akin to those in the cases on waiver or estoppel, including Regency Towers, supra. It is not the loss of an opportunity to satisfy a legal requirement, the loss of a right, or even the loss of an opportunity to raise something in collective bargaining that is at issue here. Nor is it akin to waiver of a defect in a grievance by treating it on its merits subsequent to the defect for example, by making submissions to the Minister on the HLDAA application. It is at most a postponement of the union's right to pursue its rights under the Labour Relations Act or the HLDAA.
We are not aware of any decision of the Board directly on point in this unusual set of circumstances. Normally, an application under section 41 is handled in the most expeditious manner possible because of the legislative intention for speed that is expressed in the time limits in that section. However, and obviously, in the absence of good reason, it is not advisable to embark upon a proceeding, especially a lengthy one as this may be, which could well be a nullity. In considering this matter, we note that it is the applicant that is the author of the current situation. It waited almost 11 months after certification to have the matter of the respondent's status under the HLDAA determined. Where it is the applicant who has changed its view of the appropriate governing legislation after having filed the section 41 application, we do not think the factor of expedition in hearing the section 41 application should weigh as heavily as it otherwise would.
This matter was originally estimated to take three days to hear. At the hearing of this matter in April, employer counsel was of the view that it could take considerably longer than that. Several days of hearings represent a considerable investment of public and private resources in themselves, beyond what has already been spent in preparation of this matter. Adversarial proceedings of any kind are not necessarily helpful to a collective bargaining relationship, even the most mature one, especially if they turn out to have been for nought. In the circumstances of this case, we do not see sufficient reason to embark on a hearing that may be a nullity. Different considerations might well apply if the Board had started the hearings, or there were other countervailing factors not present here.
We are not aware of when the decision by the Minister on the status of the respondent as a hospital will be made or released but the parties' submissions to the Minister on this question had been finished on April 17, 1992, a week before the hearing convened before this panel. The union expressed optimism that the decision would be available before June 17, 1992, the date then set to finish the matter.
For the above reasons the matter is adjourned until June 12, contingent upon the Minister's decision being released by that date, unless the application is withdrawn by the union before then. If the Minister's decision is not released by that date, but is released prior to any of the other dates, the matter will commence on the first of those additional dates not yet passed (June 17, 30, July 6, 7 and 8) and continue on whatever other of those dates remain.