Ontario Labour Relations Board

[1992] OLRB Rep. November 1193

0456-92-U John Huntley, Peggy Ng, Rod Potter, Majella Power-O'Connor, Lance Rankin, Eriks Rugelis, Jamie Spence, Veronica Timm, Carlos M. Marques, John G. Currell, Tony D'Agostino and Davie Collier-Brown, Complainants v. The York University Staff Association, Respondent

BEFORE: G. T. Surdykowski, Vice-Chair.

APPEARANCES: William A. Harrison, John Currell, Eric Rugelis, Lance Ran kin, John Huntley and Rod Potter for the complainants; Elizabeth Shilton, Jane Grant, Irena Singleton, Nancy Sper­ling and Bertha Kovacs for the respondent; Shelagh Young for York University.

DECISION OF THE BOARD; November 27, 1992

1. As originally filed, this complaint alleged violations of sections 54(1) and 69 of the Labour Relations Act. Subsequently, the complainants advised the Board that they wished to pro­ceed only with their complaint that they have been treated by the respondent in a manner contrary to section 69 of the Act.

2. The complaint came on for hearing on November 5, 1992. At that time two motions were made to the Board. First, the complainants moved that the hearing of the complaint be adjourned pending the disposition of a related court proceeding. Second, the respondent trade union moved that the complaint be dismissed because no prima facie case has been pleaded.

3. In support of the complainants' motion to adjourn, counsel advised that although he had previously had an indication that he would be retained in this matter, he had not been formally retained until some three days prior to the hearing and that he was not available for the November 17, 1992 hearing date. Counsel stated that he wanted a chance to frame the complaint properly and then get on with what he predicted would be a lengthy proceeding if it was necessary to do so.

4. In that latter respect, counsel submitted that the hearing of this complaint should not proceed at all until an application by Majella Power-O'Connor and John Currell (two of the com­plainants herein), in their personal capacities and on behalf of "the members of the bargaining unit of York University Staff Association known as Computer Series and Technical Series Employees” to the Ontario Court (General Division) was disposed of. "Jane Grant, President of York Univer­sity Staff Association acting in her personal capacity and on behalf of the members of the bargain­ing unit of York University Staff Association, York University Staff Association and York Univer­sity" have been named as the respondents to the court application. In the court proceeding the applicants (complainants herein) seek the following relief:

(a) An order that Jane Grant, President of York University Staff Association, be autho­rized to defend the proceeding herein on behalf of the members of York University Staff Association.

(b) A Declaration that York University Staff Association violated the provisions of its constitution and acted without authority in permitting the Pay Equity Negotiating Committee instead of its Bargaining Committee to negotiate the Collective Agreement between York University Staff Association and York University for the period of September 1, 1992 to August 31, 1992.

(c) A declaration that York University Staff Association through its Executive Board exceeded its constitutional authority and jurisdiction and acted without authority in authorizing and permitting the the [sic] Pay Equity Negotiating Committee to negoti­ate the afore described Collective Agreement with York University and enter into a Memorandum of Agreement dated April 7, 1992 purporting to bind York University and the York University Staff Association to the afore described Collective Agree­ment.

(d) A Declaration that by exceeding its Constitutional authority and jurisdiction and act­ing without authority the execution of and entering into the Memorandum of Agree­ment dated April 7, 1992 by the members of the Pay Equity negotiating Committee is null and void and without force and effect.

(e) A Declaration that the ratification of the afore described Memorandum of Agreement on April 30, 1992 by the members of the York University Staff Association is a nullity and has no force and effect.

(f) A Declaration that the aforementioned Collective Agreement be and is hereby set aside and is not binding upon the members of York University Staff Association or York University.

(g) Costs of the Application.

Counsel submitted that if the court application succeeds, the proceedings herein would probably be unnecessary.

5. Counsel advised that the court application had been scheduled to be heard on October 17, 1992, but was adjourned on consent at the respondent trade union's request and is now sched­uled to be heard on January 29, 1993.

6. The respondent opposed an adjournment and submitted that the complaint should be dismissed. Counsel conceded that there is some overlap between the court application and this complaint but submitted that there is no reason to defer consideration of this complaint pending the disposition of the court application. Counsel submitted that the delay inherent in the kind of adjournment requested by the complainants is inimical to labour relations and that it is not just and reasonable to put off dealing with the complaint, particularly if, as the respondent argued was the case, there is no prima facie case pleaded in the complaint.

7. The respondent submitted that the essence of this complaint is a challenge to the Pay Equity Plan which it has negotiated with York University, on the basis that this Plan fails to recog­nize the value which some of the technical and computing employees have placed on themselves. Counsel briefly reviewed the effects of the Pay Equity Plan and conceded that the computing and technical classifications have lost their previous wage advantage over the female job classifications in the bargaining unit as a result of that Plan. Counsel submitted that, in essence, the complainants are employees who are dissatisfied with the Pay Equity Plan which the respondent has negotiated and that this is not a section 69 (duty of fair representation) problem. Counsel further submitted that the Board has no jurisdiction to set aside the Pay Equity Plan, if that is what the complainant seeks.

8. Finally, the respondent submitted that if the Board was not prepared to dismiss the complaint, the matter should proceed immediately.

9. In response to the respondent's motion to dismiss, the complainants submitted that they have pleaded a prima facie case, namely that their interests were not fairly considered or repre­sented by the respondent in the Pay Equity process.

10. A representative of York University attended at the November 5, 1992 hearing. How­ever she made no submissions to the Board and subsequently advised that York University would not be participating in the proceeding before the Board.

11. Upon considering the representations of the parties with respect to the two motions, I dismissed them both in a brief oral ruling.

12. As far as I am aware, there has been no previous application or complaint arising out of the workings of the Pay Equity Act which has been determined by the Board. In my view, the Board should exercise its discretion to dismiss a complaint for failing to disclose a prima facie with caution and only in the clearest of cases, particularly where, as here, the case is one of first impres­sion (see, Elizabeth Balanyk, [1987] OLRB Rep. Sept. 1121; J. Pavia Foods Limited, [1985] OLRB Rep. May 690).

13. The complaint in this case is both complex and novel. It also raises potentially difficult questions of evidence, law and policy. As pleaded, the complaint alleges that the process which led to the Pay Equity Plan was unfair and biased against the complainants. Though implicit, it is never­theless clear that the complainants allege that the respondent has represented them in a manner which is arbitrary, discriminatory or in bad faith, contrary to section 69 of the Labour Relations Act. I was satisfied that the allegations in that respect, if proved, are sufficiently capable of argu­ably supporting a conclusion that the respondent has breached its duty to the complainants under section 69 of the Act and that the complaint should not be dismissed without a hearing on the mer­its. Further, there appeared to be no cogent reason why the Board could not or should not enter­tain the complaint.

14. With respect to the complainants' request for an adjournment, it is well understood that labour relations delayed are labour relations defeated and denied (Re Journal Publishing Co. of Ottawa Ltd. et. al. v. Ottawa Newspaper Guild, Local 205, OLRB et. al. [1977] 1 ACWS 817 Ontario Court of Appeal)) and that delay in labour relations matters often works unfairness and hardship (Re United Headwear and Biltmore/Stetson (Canada) Inc., (1983) 41 O.R. 2d (287)). Sub­ject to the rules of natural justice and fairness, the Board enjoys a broad discretion to determine whether and in what circumstances proceedings before it should be adjourned (Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879, 1979 CanLII 1669 (ON HCJ), 24 O.R. 2nd 400 (Ontario Div. Court)). 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.

15. Where a party seeks to have a matter before the Board adjourned pending the disposi­tion of a related juridical proceeding, whether that is an application for judicial review or some other proceeding, the Board determines whether the interest of justice and the balance of conve­nience in the particular proceeding before the Board favour such an adjournment (see, for exam­ple, Four B Manufacturing Ltd., [1978] OLRB Rep. Sept. 829; Cable Tech Wire Company Limited, [1978] OLRB Rep. Oct. 895; Ellis-Don Limited, [1992] OLRB Rep. Sept. 999).

16. This complaint was filed on May 2, 1992. A Labour Relations Officer was assigned to the complaint to meet with the parties to try to settle the matter. The Officer convened meetings on May 26 and June 15, 1992. After the Officer advised the Registrar that the complaint had not been settled, the Registrar scheduled the matter to be heard on November 5 and 17, 1992. The parties were advised of this by Notice of Hearing dated September 15, 1992. The court proceeding initiated by the complainants was begun on October 8, 1992 - some five months after they filed this complaint and after they knew of the hearing dates scheduled for it. Counsel for the complainants is also counsel for them in the court proceeding. Not only did the complainants not specifically retain Mr. Harrison with respect to this proceeding in a timely manner, but at the time they did so and counsel accepted the retainer, they all knew of the hearing dates which had been scheduled. Notwithstanding that and their position in their motion to adjourn herein, the complainants con­sented to the adjournment of the court proceeding and sought instead to have this complaint adjourned. These are not circumstances which suggest that it is appropriate to grant a request for an adjournment by the complainants.

17. Further, although there does appear to be some overlap between this complaint and the court application, it is far from obvious that they are congruent. Indeed, it seemed to me unlikely that the disposition of the court application would be determinative of this complaint, whatever the result in that application. This Board has the exclusive jurisdiction to deal with "fair representa­tion" complaints under the Labour Relations Act, and in my view is the appropriate forum for resolving what appears to be the dispute between the parties. In the result, I was not satisfied that it was appropriate to adjourn the matters requested by the complainants. On the contrary, this dis­pute has already festered long enough and should be the resolved as soon as possible.

18. For the foregoing reasons, the complainants' motion to adjourn and the respondent's motion to dismiss were both dismissed.

19. I then set further dates for the hearing of this complaint in consultation with the parties as follows: December 3, 10, 14, 15, 21 and 23, 1992 and February 3, 4, 8 and 9 and 10, 1993, com­mencing 9:30 a.m. in the "Board Room" 6th Floor, 400 University Avenue, Toronto, Ontario. Having regard to these available dates, I cancelled the November 17, 1992 hearing date (without objection from the respondent).

20. The complainants then again requested an adjournment to permit the parties to discuss and delineate the issues between themselves. The respondent again opposed this request and asked that the hearing proceed.

21. I dismissed this request for an adjournment as well. The complainants are proceeding first and can frame their case and the issues as they wish (within the limits of their complaint as pleaded). In no way is what they do in their case chief defence driven. In the absence of consent from the respondent, I saw no reason to adjourn the hearing.

22. The respondent then asked that the complainants be directed to specify the remedies they are seeking herein and which they have not done in their complaint. The complainant sug­gested no reason why they could not do so prior to December 3, 1992 (the next scheduled hearing day) and indeed counsel said that the complainants would do so. I therefore directed the complain­ants to specify the remedies they seek herein, in writing, at least seven days before December 3, 1992.

23. The hearing will continue as scheduled.