[1993] OLRB Rep. August 717
1167-92-G Labourers' International Union of North America, Local 247, Applicant v. Bellai Brothers Ltd., Responding Party v. Labourers' International Union of North America, Local 527, Intervenor
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members F. B. Reaume and H. Kobryn.
APPEARANCES: Laurence C. Arnold and Victor Claro for the applicant; Gary Burke, Michael S. Ruddy, Daniel Greco and Laird Rasmussen for the responding party; Daniel Randazzo and Berardino Carrozzi for the intervenor.
DECISION OF THE BOARD; August 10, 1993
This is a referral to the Board of a grievance in the construction industry, pursuant to the provisions of section 126 of the Labour Relations Act.
The application was filed with the Board on July 13, 1992. Three separate times, hearing dates were scheduled by the Board and adjourned by the parties prior to the matter coming on for hearing before this panel on July 29, 1993.
The application, which was filed prior to the extensive revisions to the Board's Rules of Procedure effective January 1, 1993, reveals little of what appears to be the real dispute between the parties. It merely attaches a copy of a grievance letter which complains of a "failure to use members of Local 247 to perform work claimed by said Local."
From the response filed by the employer and the intervention filed by Labourers' International Union of North America, Local 527 (~'Local 527"), and the representations of the parties at the July 29, 1993 hearing, it appears that the real dispute concerns the geographic jurisdiction and concomitant right to work under the applicable industrial, commercial and institutional provincial agreement of Locals 247 and 527 of the Labourers' International Union of North America. It appears that the employer employed members of Local 527 to perform certain work on the Waste Water Treatment Plant job site in the town of Kemptville, which work was performed between the first week of June, 1992 and December, 1992. The applicant ("Local 247") complains that the employer should have employed its members for that purpose.
At the hearing, Local 247 alleged that there was a patent or perhaps a latent ambiguity in the provincial agreement in that respect, and that it proposed to call evidence to establish that ambiguity or establish that the ambiguity should be resolved in its favour. Local 247 also made some general allegations concerning the manner in which it asserts the employer was induced to assign the work in question to members of Local 527.
The employer denied that it had violated the provincial agreement and submitted that Kemptville is not in the geographic jurisdiction of Local 247 under the provincial agreement. Local 527 supported the employer but did seem to concede that there is an ambiguity in the provincial agreement. However, it asserted that any such ambiguity should be resolved against Local 247 in this case.
When the Board observed that there was nothing in Local 247's filings which contained any pleadings which raised or referred to any ambiguity in the provincial agreement, counsel reminded the Board that this application was filed prior to January 1, 1993 when the Board's new Rules of Procedure came into effect, and submitted that it had not then been necessary to file pleadings in that respect. In the alternative, counsel indicated that he would request an adjournment in order to permit the appropriate pleadings to be filed, which adjournment he said he wanted in any event because he was involved in the "social contract" negotiations.
The employer and Local 527 both opposed the adjournment. They submitted that the application should either be dismissed or proceed, which they were ready, willing and able to do.
Upon considering the materials filed and the representations of the parties, the Board ruled, orally, that the matter should be adjourned.
It has long been recognized that delay in labour relations matters is not a good thing (see Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild, Local 205, OLRB et al, [1977] 1 ACWS 817 (Ontario Court of Appeal), Re United Headwear and Biltmore-Stetson (Canada) Inc., (1983) 1983 CanLII 1618 (ON HCJ), 40 O.R.(2d) 287). Delay in the resolution of labour relations matters is likely to create problems, and the Board and the Courts have long recognized that the speedy resolution of labour relations disputes is both in the public interest and in the interests of those directly involved or affected. Consequently, labour relations litigation is expected to be pursued diligently and within a reasonable time so that the matters in issue can be dealt with in a manner which is timely and fair to all concerned. This is particularly true in matters, like applications under section section 126, which the Labour Relations Act specifically requires to be heard (or at least begun) in a reasonably expedited manner.
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) 1979 CanLII 1669 (ON HCJ), 24 O.R.(2d)400 (Ontario Div. Court)). In recognition of the need to proceed with labour relations matters expeditiously, the Board's long established practice is not to grant adjournments except on consent of all parties, or when the Board is satisfied that there are extenuating circumstances such that an adjournment is appropriate. No party is entitled to an adjournment as a matter of right or convenience.
In this case, an adjournment was not appropriate merely because the applicant asked for one or because counsel was engaged in other matters. However, it was apparent that there was a real dispute concerning the interpretation and administration of the provincial collective agreement, that there may be an ambiguity in that provincial agreement, and that the Board may be called upon to revisit the issues dealt with in M. Sullivan and Son, [1986] OLRB Rep. Aug. 1110. That being the case, the Board concluded that it would not be appropriate to dismiss the application, even if the Board had the jurisdiction to do so at that point.
However, the Board was not satisfied that the pleadings were sufficient to permit the matter to proceed on July 29, 1993. Although this application was made prior to the Board's present Rules of Procedure coming into force on January 1, 1993, Rule 125 of the present rules provides that:
These Rules apply to all cases before the Board on the date these Rules come into force, unless the Board orders otherwise.
The Board has not declared that the present rules do not apply to this application. Nor does there appear to be any reason why they should not.
The Board's Rules require the parties to file detailed pleadings to provide a proper framework for the litigation of the dispute(s) between them. In this case, part of that framework is missing. Rather than proceeding with the application as pleaded and "letting the chips fall where they may" in the hearing, the Board concluded it would be appropriate to adjourn the matter and require the parties to plead the case properly. In coming to this conclusion, the Board considered the delay which had already occurred, and that on the current pleading that the real issue between the parties might not be appropriately addressed if at all.
The Board therefor adjourned the matter sine die to a date or dates to be set by the Registrar as may be directed by the Board. The Board directed Local 247 and Local 527 each to file and deliver to all their parties a complete and fully particularized statement of the facts upon which they rely in this matter, including the facts upon which they intend to rely with respect to any assertion of any ambiguity in the provincial collective agreement, and how that ambiguity should be resolved, together with complete representations or argument in support of their respective positions. The responding employer may make a written statement or submission in that respect as well. Any statement or submission filed pursuant to this direction must be received by the Board and the other parties by September 15, 1993 (a date agreed to by the parties). All parties will have 15 days from September 15, 1993 or the date all parties have made their initial filings, whichever comes first, to file a written reply.
The parties should understand that the Board may find it appropriate to dispose of this application on the basis of the materials filed with the Board prior to and pursuant to the Board's directions herein without a further hearing or opportunity for them to be heard. Any party which desires a hearing should expressly request one and specify why a hearing is necessary.
Given the nature of the dispute, and the time which had elapsed since it arose, the Board was not satisfied that the matter should necessarily be left at that. Section 126(3) of the Act provides that:
(3) Upon a referral under subsection (1). the Board has exclusive jurisdiction to hear and determine the difference or allegation raised in the grievance referred to it, including any question as to whether the matter is arbitrable, and subsections 45(6), (8), (9), (10), (11) and (12) apply with necessary modifications to the Board and to the enforcement of the decision of the Board.
Section 45(8) of the Act provide that:
45.- (8) An arbitrator or arbitration board shall make a final and conclusive settlement of the differences between the parties and, for that purpose, has the following powers:
To determine the nature of the differences in order to address their real substance.
To determine all questions of fact or law that arise.
To interpret and apply the requirements of human rights and other employment-related statutes, despite any conflict between those requirements and the terms of the collective agreement.
To grant such interim orders, including interim relief, as the arbitrator or arbitration board considers appropriate.
To enforce a written settlement of a grievance.
(emphasis added)
The Board therefor requested the submissions of the parties with respect to whether an interim order might be appropriate in this case.
Local 247 opposed any interim order on the basis that there was no precedent for such an order in a section 126 proceeding, and that such an order was unnecessary in this case. Local 527 and the responding employer agreed that an interim order was appropriate and specifically requested one in the form of the order which the Board suggested might be one possible option.
Upon hearing the representations of the parties, the Board declared that any contractor bound by the provincial collective agreement between the Labour Relations Bureau of the Ontario General Contractors Association; Ontario Masonry Contractors Association; Industrial Contractors Association of Canada; Waterproofing Contractors Association of Ontario; Concrete Floor Contractors Association of Ontario (the Employer Bargaining Agency), and the Labourers International Union of North America and the Labourers International Union of North America, Ontario Provincial Council, on behalf of its affiliate Local Unions 183, 247, 491, 493, 506, 527, 597, 607, 625, 837, 1036, 1059, 1081 and 1089 (that is, the provincial agreement), which has work on a job site at a location which that provincial agreement does not specifically and clearly place in the geographic jurisdiction of either Local 247 or Local 527, may assign the work covered by the provincial agreement to members of either Local 247 or Local 527 in its sole discretion, until such time as this application is finally disposed of or the Board otherwise orders. If this interim order causes any problems, any interested party may apply to the Board, in writing, for directions, or request that the order be varied.
In determining that this interim order was appropriate, the Board considered the delay in this proceeding, the nature of the dispute, the Board's decision in M. Sullivan and Son, supra, and the fact that the hearing did not proceed on July 29, 1993 primarily because of Local 247's apparent failure to plead this matter properly, even according to the Rules of Procedure in effect at the time the application was made.
In that respect also, the responding employer asked the Board to order Local 247 to pay its "costs of the day". Counsel advised the Board that the responding employer had incurred great expense in preparing for the hearing and in bringing himself and three witnesses from Ottawa, and submitted that in the circumstances, including the reasons why the matter was adjourned, a costs order was appropriate. Counsel requested that costs be fixed in the amount of $7500.00.
Local 247 opposed this request as well. Local 247 submitted that such an order would be unprecedented and should not be made where, as here, the other parties had filed their pleadings late in the day and everyone had hoped and expected that the matter would not proceed to hearing. Local 247 submitted that if costs were awarded, Local 527 should pay half.
Local 527 submitted that there was no reason why it should pay any costs.
The Board reserved its decision on the issue of costs.
We note that in the course of the hearing on July 29, 1993, Local 247 received a fax from the Central Canada Sub-Regional Office of the Labourers International Union of North America. This fax was read to but not filed with the Board. It expressed the opinion the job site in issue in this case was in the geographic jurisdiction of Local 247. Local 247 submitted that this fax was dispositive of the matter. Local 527 and the responding employer did not agree. Neither did the Board. This fax is no more than an unilateral expression of opinion by a party which did not take the trouble to formally intervene or participate in the proceeding. The dispute between the parties in this case has been put before the Board for resolution and it is now for the Board to determine it, unless the parties to the proceeding can agree to a disposition. A bald expression by the Labourers International Union of North America of its opinion on the matter is of little assistance.
This panel is seized.