[1992] OLRB Rep. June 665
0209-92-OH Leonard Perry, Complainant v. Ab Cox Pontiac Buick GMC Ltd., Respondent
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and K. Davies.
APPEARANCES: Albert Cox and Heather McKay for the respondent; no one appeared at the hearing on behalf of the complainant.
DECISION OF THE BOARD; June 11, 1992
In this complaint, under what is now section 50 (formerly section 24) of the Occupational Health and Safety Act, the complainant asserts that he was treated in a manner contrary to subsection 50(1) of that Act. It was dismissed (orally) by the Board at a hearing convened on May 28, 1992.
The complaint, which is dated April 16, 1992 and was filed with the Board on April 21, 1992, was scheduled to be heard on May 28, 1992. By letter from counsel (addressed to the Labour Relations Office assigned to the matter) dated and delivered May 27, 1992, the complainant sought an adjournment of that hearing as follows:
I confirm our conversation of today's date in which 1 advised you that, despite our requests for disclosure of information regarding the breaches of safety standards, which have been the subject of Ministry of Labour inspections and reprimands, we have not been provided with that information to date. As a consequence we are not in a position to proceed with Mr. Perry's complaint before the Board. I enclose copies of our letters requesting disclosure, faxed on May 4, 1992.
I have requested that the defendant corporation, in particular Mr. Cox himself, consent to an adjournment of the hearing of this matter in order to permit us to be properly informed and to be able to advise the board of the extent of the breaches. Clearly it is not in their interest to do so. However, Mr. Perry's position is being seriously prejudiced by the failure of the Ministry to respond and his ability to present his case is seriously curtailed.
As indicated in the second attached letter, we also requested disclosure of any documentation which the Board may have received from the defendant regarding this matter. We have not received a response to date.
We would ask the board to grant an adjournment on the basis that Mr. Perry's position with regards to presentation of evidence is curtailed, not by his own actions or inaction. As the key to the issue before this hearing is the employer's failure to provide safe equipment and instruction resulting in the subsequent accident, we would ask the board to grant us an adjournment, despite the objections of the employer/defendant in this matter.
We would ask for confirmation of your receipt of this request and confirmation of the adjournment, if it is granted. As Mr. Perry is a man of modest means, it is not our intention to attend, thus incurring further expense to Mr. Perry at this time.
The respondent opposed the complainant's request.
Neither the complainant nor anyone on his behalf appeared at the May 28, 1992 hearing. The respondent appeared and maintained its objection to any adjournment. The respondent advised the Board that it was ready to proceed and had expended considerable time and effort to become prepared to do so.
Upon considering the material before the Board and representations of the respondent, the Board denied the complainant's request for an adjournment.
Matters which come before the Board under the Occupational Health and Safety Act are labour relations matters. It is well understood that labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa et al v. Ontario Newspaper Guild, Local 205, OLRB et al, [1977] 1 ACWS 817 (Ontario Court of Appeal)) and that delay works unfairness and hardship in labour relations matters (Re: United Headwear and Biltmore/Stetson (Canada) inc., (1983) 1983 CanLII 1852 (ON HCJ), 41 O.R. (2d) 287). In recognition of the need to proceed with labour relations matters expeditiously, it is the Board's well-established practice not to grant adjournments except on consent of all parties, or where the Board is satisfied that there are extenuating circumstances such that an adjournment is appropriate.
Subsection 50(1) of the Occupational Health and Safety Act provides that:
5O.-(1) No employer or person acting on behalf of an employer shall,
(a) dismiss or threaten to dismiss a worker;
(b) discipline or suspend or threaten to discipline or suspend a worker;
(c) impose any penalty upon a worker; or
(d) intimidate or coerce a worker,
because the worker has acted in compliance with this Act or the regulations or an order made thereunder, has sought the enforcement of this Act or the regulations or has given evidence in a proceeding in respect of the enforcement of this Act or the regulations or in an inquest under the Coroners Act.
This complaint refers to no other legislative provision. It contains ten allegations which include allegations that the complainant was discharged and otherwise treated improperly by the respondent because he sought enforcement of the Occupational Health and Safety Act.
The complainant's adjournment request was based on the assertion that he was not prepared to proceed. However, the complainant, and his counsel, felt sufficiently well informed of the factual and legal basis for the complaint to file it, some three months after the alleged improper discharge. Counsel also felt sufficiently well prepared to advise the Labour Relations Officer assigned to the complaint, by letter dated May 4,1992 (over three weeks before the scheduled hearing), that the complainant and counsel would be attending before the Board on May 28, 1992 and expected "... to present viva voce and documentary evidence at that time."
In the same letter, counsel asked what disclosure, presumably from the respondent, "may" be appropriate, and whether the Board's rules require disclosure of documentary evidence by the complainant to the respondent. In addition, by letter also dated May 4, 1992, counsel wrote to the Ontario Ministry of Labour's Freedom of Information Privacy Protection Office confirming a receipt of a report "in respect of an inspection which was done of the subject employer on January 31, 1992" (i.e. subsequent to the discharge complained of) and seeking production of documents indicating whether or not "modifications" were made in response to that report and what fines where imposed as a result of any failure to make required modifications.
There is nothing before the Board which indicated that the complainant, or counsel, had done anything to follow up either letter, or to otherwise obtain and ensure the presence of witnesses or evidence they considered necessary at the May 28. 1992 hearing. More specifically, there was no indication that there was any inquiry made directly of the Occupational Health and Safety Branch of the Ministry of Labour, or that any attempt was made to communicate directly with the respondent for either information or other purposes. Nor was there any indication that there was any specific evidence or witness(es) of which the complainant was aware but which he had been unable to obtain for the hearing.
The Ontario Labour Relations Board is a quasi-judicial administrative tribunal responsible for adjudicating disputes which are brought before it pursuant to various pieces of legislation, including the Occupational Health and Safety Act. Although the Board does employ Labour Relations Officers whose functions include attempting to assist parties to settlement, it is not part of the Board's function to investigate complaints or to otherwise advise or assist a party to a proceeding. It is the responsibility of every party involved in a proceeding before the Board to inform itself of the relevant legislation and the Board's Rules and Procedures in that respect. It is also the responsibility of every party to prepare its case by conducting the appropriate investigations and research, and to marshal and present to the Board the evidence and argument it wishes the Board to consider.
In this case, we considered that subsection 50(5) of the Occupational Health and Safety Act provides that, in a complaint like this one, the respondent bears the onus of proving that it did not act in a manner contrary to subsection 50(1). Further, the complainant's own material indicates that it was in possession of viva voce and documentary evidence, and that he was, until the day before the hearing, prepared to attend the May 28, 1992 hearing to present that evidence. On the other hand, there was nothing before the Board which indicated that there was cogent evidence which the complainant had been unable to obtain despite having made reasonable efforts to do so. Nor was there any indication that there had been insufficient time for the complainant to properly investigate and prepare his complaint for hearing. Finally, the adjournment was not requested in a timely manner. In the result, the Board was not satisfied that an adjournment was justified, and the complainant's request for one was therefore denied.
Upon hearing the Board's ruling in that respect, the respondent asked that the complaint be dismissed. There appeared to be no reason to not do as the respondent requested and the Board therefore dismissed the complaint.