United Steelworkers of America v. J.CN.R. Packaging Inc., 1993 CanLII 7924

United Steelworkers of America v. J.CN.R. Packaging Inc.

[1993] OLRB Rep. November 1145

2835-93-M United Steelworkers of America, Applicant v. J.CN.R. Packaging Inc., Responding Party

BEFORE: S. Liang, Vice-Chair.

DECISION OF THE BOARD; November 19, 1993

1. This is an application for interim relief made pursuant to the provisions of section 92.1 of the Labour Relations Act.

2. The parties will be referred to in this decision as "the Steelworkers" or "the union" and "the company".

3. When this matter came before the Board for hearing on November 18,1993, and after hearing the representations of the parties, the Board made certain rulings and directions which I summarize as follows.

4. At the outset, the Board noted that the company was appearing through its owner Roger Joyal, without legal counsel. I explained the role of the Board, which is an adjudicative body like a court. I indicated that parties appearing at the Board had the right to be represented by legal counsel, or not represented by legal counsel as they wished. However, Board proceedings are legal proceedings to which certain legal rules apply. Persons choosing not to have legal counsel bear the consequences of that decision. The role of the Board is not to advise unrepresented par­ties, and the responsibility of presenting cases lies with the parties appearing before the Board.

5. I also spent some time at the hearing summarizing the nature of the case before me, and explaining the difference between my task in making a decision on the request for interim relief, and the task of the Board in deciding the merits of the certification application involving these par­ties (which is also before the Board starting next Monday) and the unfair labour practice com­plaint.

6. I then ruled that the company would be granted an extension of time until 9:30 a.m. on Friday, November 19, 1993 to file its response to this application. Mr. Joyal had a copy of the Board's Rules of Procedure and I directed his attention to Rule 89, which sets out the contents of a response to an application for an interim order, stating:

89.... A completed response must also include:

(a) one or more declarations signed by persons with first-hand knowledge, detailing all of the facts upon which the responding party relies, including what harm, if any, will occur if the interim order is granted. Each signed declaration must include the following statement: "This declaration has been prepared by me or under my instruction and I hereby confirm its accu­racy"; and

(b) complete written representations in support of its position.

7. I explained that the Board does not, in dealing with applications for interim orders, nor­mally hear oral evidence. Instead, the Board reviews the written submissions and statements of facts submitted by the parties. Even where the Board schedules a hearing to receive the oral sub­missions of the parties, this hearing is not an opportunity to provide the Board with additional facts to those contained in its written materials. Thus, a party must, in filing its response, ensure that it has provided the Board with the details, through written declarations, of all of the facts on which it relies.

8. In the present case, because of the extension of time to the company to file a response, it was not feasible to continue with the hearing on November 18. I ruled that I would not re-sche­dule this matter for hearing, but would review the materials before me on November 19 to deter­mine whether I could decide the case on the basis of these materials, as contemplated by Rule 93, to which I also directed the parties:

93. Where the Board is satisfied that a case can be decided on the basis of the material before it, and having regard to the need for expedition in labour relations, the Board may decide an appli­cation under section 92.1 of the Act without an oral hearing.

9. I indicated that since this matter might be decided without a hearing, it was up to the company, in filing its response, to ensure that it had submitted all of the facts and all of the argu­ment that it wished to make to the Board on the issues contained in this application.

10. The Board has now received the response of the company and upon my review of the materials before me including the application and accompanying declarations, I am satisfied that I can decide this request for interim relief without a further hearing.

11. Section 92.1(1) of the Act provides:

92.1-(1) On application in a pending or intended proceeding, the Board may grant such interim orders, including interim relief, as it considers appropriate on such terms as the Board considers appropriate.

12. This is an application made under section 92.1 for certain interim orders (Board File No. 2835-93-M). In another file, Board File No. 2534-93-U, the union has filed a complaint alleg­ing unfair labour practices by the company. It alleges that the company has illegally laid-off some employees, changed the duties or hours of some employees, intimidated employees, and engaged in other anti-union conduct. The complaint of unfair labour practices has been scheduled for hear­ing starting on November 30 1993. This application asks the Board for interim reinstatement of the laid-off employees, and other interim measures, pending the outcome of that hearing into the com­plaint.

13. In the Board's previous cases dealing with interim orders, the Board has discussed the place of interim relief in the context of alleged unfair labour practices: see, for example, 810048 Ontario Limited c.o.b. as Loeb Highland, [1993] OLRB Rep. March 197; Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019. The Board has said that interim relief is warranted where it may serve to "neutralize the potential impact of an alleged unfair labour practice" (see Tate Andale Canada Inc.), preserve the right of the union to a meaningful remedy should the complaint be upheld (see Reynolds-Lemmerz Industries, [1993] OLRB Rep. March 242) or preserve a "status quo in order to provide some stability within which litigation over labour relations disputes may proceed (see New Dominion Stores, a division of the Great Atlantic and Pacific Company of Canada, Limited, [1993] OLRB Rep. Aug. 783).

14. Within this context, the Board's determinations under section 92.1 involve applying a two-step inquiry. Firstly, the Board assesses, on the basis of the materials before it, whether there is