International Union of Operating Engineers, Local 793 v. Ontario Paving Construction Limited
International Union of Operating Engineers, Local 793, Applicant v. Ontario Paving Construction Limited, Responding Party; International Union of Operating Engineers, Local 793, Applicant v. Ontario Paving Company Limited, Responding Party; International Union of Operating Engineers Local 793, Applicant v. Giuseppe Alfano and Sons Ltd., Responding Party; International Union of Operating Engineers Local 793, Applicant v. Pavex Canada Ltd. and Abco Holdings Inc., Responding Parties; International Union of Operating Engineers, Local 793, Applicant v. Giuseppe Alfano & Sons Ltd. and Pavex Canada Ltd. and Abco Holdings Inc. and Ontario Paving Company Limited and Ontario Paving Inc., Responding Parties v. Metropolitan Toronto Sewer and Watermain Contractors Association, Intervenor; Teamsters Local Union No. 230, Ready Mix, Building Supply, Hydro and Construction Drivers, Warehousemen and Helpers, Applicant v. Ontario Paving Company Limited, Responding Party; Teamsters Union Local 230, Ready Mix, Building Supplies, Hydro and Construction Drivers, Warehouse-men and Helpers, Applicant v. Ontario Paving Company Limited and Ontario Paving Inc., Responding Parties
BEFORE: G. T. Surdykowski, Vice-Chair, and Board Members W. H. Wightman and H. Peacock.
APPEARANCES: N. L. Jesin, J. Burt and F. Maranno for Teamsters Local 230; N. L. Jesin and Carol Oster for Operating Engineers, Local 793; Carmine Alfano for Ontario Paving Construction Limited, Ontario Paving Company Limited, Giuseppe Alfano and Sons Ltd., Pavex Canada Ltd., and Abco Holdings Inc.; no one appeared at the hearing on behalf of Ontario Paving Inc.
DECISION OF THE BOARD; July 13, 1993
1These matters came on for hearing on July 13, 1993. At 6:56 a.m. on July 13, 1993, a fax was sent to the Board (and is stamped received at 8:44 a.m.) by Joseph Alfano as follows:
"With reference to the above, I attach a doctor's note with reference to Joseph Alfano. As such, he is unable to attend the hearing with reference to the above, and would kindly ask that it be adjourned, as per his doctor's note.
Thank you."
The "Doctor's note" referred to reads as follows:
Dr. Evelyn Doobay
2100 Finch Avenue West, Suite 209, Downsview, Ontario, M3N 1N2 665-8086 [sic]
DISABILITY CERTIFICATE
Date July 12/93
NAME J. Alfano
ADDRESS
EMPLOYER
To Whom It May Concern:
This is to certify that the above patient was under my professional care on July 12/93 inclusive and was totally incapacitated during this time.
This is to further certify that the above patient may be able to return to light regular work duties on July 19/93
Restrictions:
Dr. "Evelyn Doobay"
2The applicants opposed the adjournment.
3Subject 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 OR. (2d) 400 (Ontario Div. Court)). In recognition of the need to proceed with labour relations matters expeditiously, the Board's well established practice is 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. No party is entitled to an adjournment as a matter of convenience.
4It has long been accepted that the effect of delay in labour relations matters is generally a negative one. To put it another way, labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa Ltd. v. Ottawa Newspaper Guild, Local 205, OLRB et al [1977] 1 ACWS 817 (Ontario Court of Appeal)), and delay in labour relations matters often works unfairness and hardship (Re United Headwear and Biltmore-Stetson (Canada) Inc. (1983) 1983 CanLII 1618 (ON HCJ), 40 O.R. (2d) 287). Delay in the resolution of any dispute is likely to create prejudice but this is particularly so in labour relations matters. 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. Consequently, labour relations litigation is expected to be pursued diligently and completed within a reasonable time (which time is generally measured in months rather than years) so that the matters in issue can be dealt with in a manner which is timely and fair to all concerned. Indeed, the recent amendments to the Labour Relations Act and the changes in the Board's procedures underline both the Legislatures and the Board's sensitivity to the need to resolve labour relations disputes quickly.
5Neither Joseph Alfano, nor anyone on his behalf or on behalf of Ontario Paving Inc. gave either the applicants or the Board any indication that Ontario Paving Inc. would be requesting an adjournment of the July 13, 1993 hearing prior to the morning of that hearing. Nor did anyone attend before the Board on behalf of Ontario Paving Inc. on the day of the hearing to make the request or to speak to it.
6This is not the way to make an adjournment request which has not been consented to by all parties. Where a party seeks an adjournment at the last moment and without prior notice to the other parties or the Board, it must ordinarily make that request through a properly informed and instructed representative at the hearing, both as a matter of courtesy and to ensure that the adjournment request is dealt with appropriately. If a party does not send a representative to make such a request, it runs a very real risk that its request for an adjournment may be denied, or that it may be granted on terms or to a date which may cause it some concern.
7Further, the kind of "fill in the blanks" medical note presented in support of the adjournment request in this case is not very satisfactory. It offers no diagnosis or prognosis. Nor does it otherwise indicate the nature of the disability. Indeed, there is very little in it to inspire confidence in the assessment it purports to reflect.
8Nevertheless, given the history of these proceedings (which we find it unnecessary to recount herein), the fact that throughout these proceedings Joseph Alfano has represented Ontario Paving Inc., and that the effect of the delay of 6 days to July 19, 1993 is negligible in the context of the history of these proceedings, the Board reluctantly ruled, orally, that the hearing should be adjourned to July 19, 1993, commencing at 9:30 a.m. in the "Board Room", 6th Floor, 400 University Avenue, Toronto, Ontario, and to continue, if necessary, on July 28, 1993.
9The Board further ruled that the July 13 and 28, 1993 hearing dates are peremptory to all responding parties. Except on consent of the applicants, they will not be adjournable or postponeable by the responding parties for any reason. If Joseph Alfano was unable to attend on behalf of Ontario Paving Inc., Ontario Paving Inc. must insure that a properly informed and instructed representative does so.
10The applicants asked for their "costs of the day" as a term of any adjournment. Certainly, this adjournment is no fault of the applicants who were ready, willing and able to proceed on July 13, 1993, and they undoubtedly incurred some significant expense in attending the hearing. One of the expenses they have incurred is the one specified by section 126(4) of the Labour Relations Act, the amount of which is currently set by Regulation at $500.00. In granting the adjournment, the Board found it appropriate in the circumstances to direct Ontario Paving Inc. to reimburse the applicants for their share of the section 126(4) expenses incurred with respect to the July 13, 1993 hearing.
11Further, the applicants submitted that the Board could and should dispose of some or all of the applications herein on the basis of the materials and pleadings presently filed. In that respect, the applicants pointed to the June 24, 1993 decision of the Board (differently constituted) in these proceedings in which the Board directed that the responding parties file "a detailed statement of all material facts on which the responding parties rely" in opposing the applications, prior to the July 13, 1993 hearing. Nothing has been filed by any responding party in that respect.
12The Board declined to rule on the applicants' request at the July 13, 1993 hearing. However, subject to the representations the parties may wish to make in that respect, the Board may dispose of these applications, or some of them, at the hearing on July 19, 1993 on the basis of the materials and pleadings presently before the Board.