[1992] OLRB Rep. August 940
2893-91-R Labourers' International Union of North America, Applicant v. Hurley Corporation, Respondent v. Group of Employees, Objectors
BEFORE: Robert Herman, Vice-Chair, and Board Members W. H. Wightman and D. A. Patterson.
DECISION OF THE BOARD; August 4, 1992
This is an application for certification.
In an earlier decision, dated May 13, 1992, the Board directed that a certificate issue forthwith to the applicant. That decision also considered the motion for non-suit brought by the union, with respect to the voluntariness of the petition. In that respect, the Board wrote, in part, as follows:
Over five further hearing days, the Board heard the evidence of the employee objectors with respect to the voluntariness of the petition they had filed. At the conclusion of their evidence, the employer indicated it had no evidence to call, at that stage, on the issue of the voluntariness of the petition. At that point, the applicant union in effect made a motion for a non-suit, arguing that the petitioners, based on all their evidence, had failed to establish a prima facie case for the voluntariness of the petition, and that the petition ought to be found to be involuntary without the case proceeding further. The applicant submitted that it not be put to its election before being able to make the non-suit motion; specifically, it argued that it not be required to indicate to the Board whether it intended to call any evidence, should its motion be unsuccessful, prior to being allowed to argue the motion on its merits. After hearing the submissions of the parties on this issue, the Board ruled that the applicant would not be required to make an election as to whether it wished to call any evidence, should the hearing proceed, and that it could proceed to make its motion for non-suit without so electing. Our reasons for this ruling will issue at a later date.
We now provide our reasons for not requiring the union to elect whether it wished to call evidence.
When parties bring motions for non-suits in civil proceedings in the Province of Ontario, there is a general practice, although not inviolate, that parties bringing such motions be put to their election prior to the court entertaining the motion. See, in this respect, Bank of Montreal v. Horan et. al. (1986), 1986 CanLII 2554 (ON HCJ), 54 O.R. (2d) 757; The Ontario Public Service Employees Union et. al. (1990) 37, O.A.C. 218 (Div. Ct.). But proceedings before the Board are not identical to proceedings before the civil courts. Rules or practices that may well make sense in a civil court context do not necessarily attend in proceedings before this Board.
Administrative tribunals which adjudicate matters often conduct proceedings in a less formalized, less adversarial fashion than a court would. Provided it acts in a manner that is fair, and in accordance with the principles of natural justice, the courts have generally declined to insist that the tribunal follow the court models exactly. Recently, the Divisional Court in Metropolitan Toronto v. The Joint Board et. al. (unreported), November 19, 1991, per O'Brien J., commented on the distinction between courts and administrative tribunals in certain respects. As the court observed:
In my view the Board dealt correctly with this argument. It considered the way non-suit is normally dealt with in civil proceedings. It then noted the proceedings before it were quite different than those of a civil proceeding and that Vaughan's motion was more accurately described as a motion of early dismissal. The Board also noted that when it was satisfied (as it must have been) that the application could not possibly succeed, no matter what evidence might come forward, it could provide relief from costs of lengthy and costly proceedings.
In conclusion, I see no error in the approach or conclusions reached by the Board nor in the manner in which the Board exercised its discretion in the control of the proceedings before it.
See, in contrast, Ontario Public Service Employees et. al. (supra), at paragraphs 40 and 41.
The Board is satisfied that it has a discretion to decide whether or not to put a party making a motion for non-suit to its election, prior to entertaining the motion itself. Provided its discretion is exercised in a fair manner, consistent with natural justice, the Board is entitled, in given circumstances, to decline to put a party to its election. In this regard, the Board will no doubt consider all of the circumstances, including the need for fair, efficient, and expeditious proceedings before the Board. In our view, fairness and natural justice do not demand that, in every case, the moving party must make its election. To so conclude would be to fetter our discretion, in an area where the Legislature has not indicated that the civil court rules or practices ought to apply. It would be inconsistent as well with the Board's general authority, in section 104(13) of the Act, to "determine its own practice and procedure" provided it gives full opportunity to the parties to any proceedings to present their evidence and to make their submissions.
Returning to the facts of the instant case, the only issue being litigated before the Board was the voluntariness of the petition filed by the petitioners in opposition to the certification application. The petitioners proceeded first with their evidence, to be followed by the company, and then the union. After the evidence of the petitioners had been led, and after the company indicated it did not have any evidence to call, the union made a motion for non-suit, arguing that the petition ought to be dismissed as it was clearly involuntary. Thus, the petitioners, who had the onus of establishing the voluntariness of their petition, had proceeded first, they had led all their evidence, and the employer had been given an opportunity to lead any evidence it wanted.
When the union brought its motion, it asked that it not be put to its election prior to being allowed to argue the merits of the motion for non-suit. The company supported the union's request that it not have to elect. The petitioners did not take a position on the requirement of an election. They did not suggest that the election had to be made. In short, no party was asking that the union be put to its election.
In these circumstances, where it might significantly delay the resolution of matters, to the detriment of sound labour relations in the workplace, and given that the other parties did not request that the election be made, the Board decided not to require the union to elect whether it wished to call evidence before hearing its motion.
Our decision was context specific, based on the the circumstances and facts before us. In response to the union's request, and given the parties' positions, it appeared both fair and sensible to allow the union an opportunity to argue in essence that there was no case for it to meet, before requiring all the parties to engage in further, extensive litigation.
The Board might well on its own initiative adopt such an approach. (see O'Brien, J. comments in Metropolitan Toronto, supra, p.5). All parties must, of course, be treated fairly and have full opportunity to lead their evidence and make submissions. Consistent with this, however, there will be proceedings where there is no useful purpose served by requiring a party opposite in interest to lead its evidence when the evidence of the party having the onus is clearly insufficient to meet that onus. The Board might call upon the parties to make submissions or otherwise conduct the balance of the proceedings in a manner that will not unduly delay the resolution of the labour relations dispute. In such circumstances, to force all the parties to incur additional expense and delay, when there is no reasonable likelihood of success in the issue, may not be consistent with sound labour relations principles or with sound administrative tribunal practice.
For the above reasons, the Board did not require an election of the union when it brought its motion for non-suit.