Retail, Wholesale and Department Store Union, Local 414 v. The Great Atlantic & Pacific Company of Canada, Limited, 1994 CanLII 9868

[1994] OLRB Rep. August 1127

1248-93-R; 1346-93-U Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Local 414, Applicant v. The Great Atlantic & Pacific Company of Canada, Limited, Responding Party v. Retail, Wholesale and Department Store Union, AFL-CIO-CLC and its local affiliates Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414, 429, 545, 579, 582, 915 and 991, Intervenor; Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steel­workers of America, Locals 414, 422, 440, 461, 1000, Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steel­workers of America, and the United Steelworkers of America, Applicants v. Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Responding Party

BEFORE: Judith McCormack, Chair.

DECISION OF THE BOARD; August 10, 1994

1. Board File 1248-93-R is an application for reconsideration with respect to a decision of the Board issued on September 23rd. 1993, in which the Retail, Wholesale and Department Store Union, Canadian Service Sector Division of the United Steelworkers of America, Local 414 ("Steelworkers") was found to be a successor union to the Retail, Wholesale and Department Store Union, AFL-CIO-CLC, Local 414. The successor declaration under section 63 of the Labour Relations Act applied to a bargaining unit of employees who work at sixty-nine stores in Ontario operated by the Great Atlantic and Pacific Company of Canada, Limited ("A & P"). The appli­cants, fifteen employees in the bargaining unit, were joined in their request for reconsideration by the Retail, Wholesale and Department Store Union District Council of the United Food and Com­mercial Workers Union ("UFCW"). Board File 1346-93-U is an unfair labour practices complaint filed by the Steelworkers against UFCW on which hearings were held but a decision has not yet issued.

2. The background to this dispute is set out in detail in the Board's decision of September

23rd, 1993 [now reported at [1993] OLRB Rep. Sept. 885], and in an interim order issued by the Board in other proceedings dated December 17, 1993 [now reported at [1993] OLRB Rep. Dec. 1353]. To sketch a very simple outline, in the spring of 1993, the American parent of Retail, Wholesale and Department Store Union decided to merge with the United Food and Commercial Workers. The merger was opposed by the majority of locals in Canada, who purported to disaffili­ate from the parent union, establish a separate organization, and merge with the United Steel­workers of America. A small number of Canadian locals joined in the merger with the United Food and Commercial Workers. The Steelworkers and UFCW then engaged in a massive conflict reflected in part by a profusion of legal proceedings before the Board.

3. The original proceedings in these files commenced in August of 1993. At that time the parties included the Steelworkers, UFCW and A & P. They advised the Board that while there were a large number of bargaining units involved, they considered the one before the Board to be a "test case", and they expected that it would result in settlements for the other units. The Board therefore heard these matters on an expedited basis in the hope of bringing this widespread dispute to an early conclusion. In the hearing, which continued for several weeks, A & P took a neutral role while UFCW vigorously contested both the Steelworkers' application for a successor declara­tion and the unfair labour practices complaint.

4. In the meantime, the Steelworkers filed an application for an interim order requesting various kinds of relief. That application was the subject of a decision by another panel of the Board dated August 12th, 1993. A second application for an interim order resulted in a decision by yet another panel of the Board on September 2nd, 1993. Then on September 23rd, the Board found that the Steelworkers were a successor union entitled to represent a bargaining unit of some 10,000 A & P employees. No decision was issued on the unfair labour practices complaint as it appeared that the successor rights declaration might resolve the matter.

5. The successor declaration did not, however, result in settlements for the other bargain­ing units. Rather, UFCW changed lawyers and the Steelworkers filed applications for declarations of successor rights for some two hundred remaining bargaining units. Both UFCW and the Steel­workers then applied for interim orders with respect to those proceedings. Another panel of the Board issued its decision in this regard on December 17, 1993.

6. The application for reconsideration of the September 23rd successor rights declaration recites a number of assertions and arguments. Most importantly, however, the applicants also allege that they did not receive notice of the original proceedings. At the same time, the Steel­workers assert that the applicants are merely proxies for UFCW, which, it is not disputed, did receive notice and participated in those proceedings. Since those facts might be significant with respect to an application for reconsideration, and since they were contested, this case was listed for hearing so that the parties could adduce evidence in this regard. At the end of the applicants' evi­dence, A & P made a motion for early dismissal of the reconsideration application, supported by the Steelworkers. The motion was opposed by the applicants and UFCW. Counsel for UFCW had previously advised the Board that it did not intend to call any evidence.

7. The hearing was adjourned to allow the Board to rule on the motion. Before such a rul­ing could issue, the Board was advised that UFCW and the Steelworkers had entered into a global settlement of their differences. In light of that settlement, the Board directed that if any party wished to pursue either the application for reconsideration as the unfair labour practices complaint further, it had to advise the Registrar accordingly by July 22nd, 1994.

8. Since the Steelworkers have not so advised the Registrar in regard to Board File 1346-

93-U, I conclude they are not pursuing the unfair labour practices complaint further, and those proceedings are terminated.

9. In regard to Board File 1248-93-R, the Steelworkers and UFCW have indicated that the only outstanding issue as far as they are concerned is an amendment to the scope of the successor rights declaration reflecting one aspect of their settlement. However, counsel for the applicants for reconsideration has written to the Board indicating that he has been unable to contact nine of his clients. In the absence of a change of instructions, he advises that he cannot agree to the requested amendment and asserts that the Board must complete the reconsideration proceedings.

10. There are several possible options in this situation. However, in light of all the circumstances, I have decided to issue my ruling on the procedural issue before me and reconvene the hearing. Notices of the hearing will be sent to the individual applicants indicating that if they do not attend at the hearing, the Board may dispose of the application for reconsideration in their absence.

11. Accordingly, I now turn to the motion for early dismissal. One of the issues in dispute before me was whether the Board should require A & P or the Steelworkers to elect not to call evi­dence before it would entertain the motion. Counsel for A & P took the position that the nature of the motion was one of early dismissal, rather than non-suit, and as a result, he was not required to make such an election at this point. He reviewed a number of cases in both British Columbia and Ontario to support the proposition that there is a distinction between a case where there is no evi­dence, and a case where there is insufficient evidence. In the former, at least in British Columbia there is authority to the effect that an election is not necessary; in the latter, a party has been put to its election. Counsel was of the view that the applicants had not established any evidence that should lead to reconsideration by the Board. In any event, counsel argued, the Board has indicated that it has discretion as to whether a party should be put to its election, even in circumstances where there is insufficient evidence, and this was a case where such discretion should be exercised against requiring such an election. In support of his arguments with respect to the matter of elec­tion, counsel cited Re Unitel Communications Inc. and Canadian Association of Communications and Allied Workers (1991), 1991 CanLII 13411 (CA LA), 18 L.A.C. (4th) 367, Sun Parlour Greenhouse Growers' Co-operative Limited, [1971] OLRB Rep. Nov. 743, Belkin Toronto Paperboard Mill, [1985] OLRB Rep. Dec. 1698, Goldcrest Furniture Ltd., [1989] OLRB Rep. Sept. 967, Paul Balkos, [1989] OLRB Rep. Sept. 932, Russell H. Stewart Construction Company Limited, [1990] OLRB Rep. April 464, Municipality of Metropolitan Toronto v. Joint Board et al. (1991), 1991 CanLII 7272 (ON CTGD), 6 O.R. (3d) 88, Hurley Corporation, [1992] OLRB Rep. Aug. 940, Kenneth Edward Homer, [1993] OLRB Rep. May 433, Re General Tire Inc., Barrie and United Rubber Workers, Local 536 (1991), 1991 CanLII 13334 (ON LA), 24 L.A.C. (4th) 234, Canadian Broadcasting Corporation (1991), 1991 CanLII 13478 (CA LA), 24 L.A.C. (4th) 250, and Re Christie Brown & Co. (Division of Nabisco Brands Canada Ltd.) and Bakery, confectionery & Tobacco Workers, Local 426 (1992), 1992 CanLII 14468 (ON LA), 26 L.A.C. (4th) 447. Counsel for Steelworkers adopted A & P's arguments in this regard.

12. Counsel for UFCW argued that the motion was in essence a non-suit motion, and that the Board should not entertain it unless both A & P and Steelworkers elected not to call any evi­dence. He noted that the distinction between early dismissal and non-suit has not been drawn in Ontario, unlike British Columbia, Alberta, and in federal labour jurisprudence. In counsel's view, the Board's normal practice aside from Hurley, supra and Homer, supra, was to put a party to its election, and there is no reason to depart from that in this case. He argued that A & P and the Steelworkers were attempting to "test the waters" and should not be successful in this regard. In support of his views, he cited Canada Post Corporation (1993), 1993 CanLII 16743 (CA LA), 34 L.A.C. (4th) 36, Western Versa­tile Construction Corporation (1988), 1 CLRBR (2d) 58, Majorcsak et al v. Na-Churs Plant Food Co. (Canada) Ltd. and Lammens (1964) 1964 CanLII 193 (ON HCJ), 2 OR. 38, The Board of Education for the City of Windsor, [1984] OLRB Rep. Aug. 1145, Ontario v. Ontario Public Service Employees Union et al, (1990), 37 O.A.C. 218, and John Sopinka and Sidney Lederman, The Law of Evidence in Canada, Toronto: Butterworths, 1992, in addition to some of the cases referred to by the other counsel.

13. Counsel for the applicants made a number of the same arguments as counsel for UFCW. Among other things, he was also of the view that the motion had been put purely to solicit an evaluation of the case from the Board, and that the requirement for election was essential to prevent one party from obtaining a strategic benefit in this regard. He argued as well that if there was no requirement to elect, employees would unfairly treated and the appearance of justice would be impaired. Counsel then reviewed in detail a number of the cases set out above, in addition to Representatives Association of Ontario; Local 414 of the Retail, Wholesale and Department Store Union, AFL-CIO-CLC Board File No. 1810-89-U, April 2, 1991 (unreported), Bank of Montreal v. Horan et al (1986), 1986 CanLII 2554 (ON HCJ), 54 O.R. (2d) 757, Corporation of the City of Toronto (1984), 1984 CanLII 5222 (ON LA), 17 L.A.C. (3d) 273, Corporation of the City of York (1989), 1989 CanLII 9340 (ON LA), 6 L.A.C. (4th) 347, Ottawa Board of Education (1992), 1992 CanLII 14546 (ON LA), 26 L.A.C. (4th) 219, Jeffrey Sack and Michael Mitchell, Ontario Labour Relations Board Law and Practice Toronto: Butterworths, 1985, Allan M. Rock, "The Principles of Non-suit In Ontario" in Studies in Civil Procedure, Eric Gertner ed. Toronto: Butterworths, 1979, and Donald J. M. Brown and David M. Beatty, Canadian Labour Arbitration, Aurora, Ontario: Canada Law Book Inc., 1993.

14. The parties were in agreement that the Board has discretion as to whether to require a party to make an election in motions of this nature. Sections 108(1) and 103(13) provide as follows:

108.-(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nev­ertheless the Board may at any time, if it considers it advisable to do so, reconsider any deci­sion, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.

104.-(13) The Board shall determine its own practice and procedure but shall give full opportu­nity to the parties to any proceeding to present their evidence and to make their submissions.

15. However, counsel for UFCW relied heavily on Ontario Public Service Employees Union, supra, for the proposition that the courts had indicated clearly how the Board should exer­cise its discretion. In that case, the Divisional Court quashed a decision of the Ontario Crown Employees Grievance Settlement Board granting a non-suit motion. In commenting on the deci­sion, the Court was of the view that the wrong standard of proof had been applied in determining the outcome of the motion, and that a motion for a non-suit before an administrative tribunal should conform to the law that governs the courts:

Over the years there has been some variation in the practice on non-suits turning on the ques­tion whether the mover must concurrently elect to call no evidence. That has now been resolved. A motion will not be entertained without an election to call no evidence: see Bank of Montreal v. Horan et al. (1986), 1986 CanLII 2554 (ON HCJ), 54 OR. (2d) 757.

There is no reason to think that a motion for a non-suit before an administrative tribunal should not confirm with the law that governs the courts. The Board applied the wrong standard of proof, but beyond that, it was apparently unaware of its duty to lean in favour of a respondent to a non-suit motion and of its discretion to permit evidence omitted through inadvertence to be adduced.

16. In counterpoint to this decision, however, counsel for A & P and counsel for the Steel­workers rely on the subsequent decision of Municipality of Metropolitan Toronto, supra, where the Divisional Court addressed a decision of a joint board under the Consolidated Hearings Act, 1981 in which the board had granted a motion for early dismissal. In the course of concluding that the board was entitled to control the process of the hearing, the Court refers to Flamboro Downs Holdings Ltd. V. Teamsters Local 879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400, a case involving this Board, where the Court said "[c]learly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures . . . [i] is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way." The Court goes on to comment on the joint board's handling of the motion in the following manner:

17. Motion for non-suit

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 reach by the Board nor in the man­ner in which the Board exercised its discretion in the control of the proceedings before it.

17. In addition to being a more recent expression of the Court's views, it appears from the references to the Flamboro Downs case that the Court in Municipality of Metropolitan Toronto is addressing the jurisdiction of a board which is more similar to that of this Board. That case is also consistent with our jurisprudence such as Hurley, supra, in which the Board made these observa­tions in the course of deciding not to put a party to its election:

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 not 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.

In Homer, supra, the Board adopts these reasons in deciding to grant a non-suit motion without election as well.

18. Although it is clear that the Board has discretion in this regard, earlier cases of the Board reflect a general practice to put a party moving for a non-suit to its election. Hurley and Homer suggest a more recent trend to consider the merits of such motions even in cases in which such a requirement might be not be appropriate. There are a number of good reasons for some flexibility in this regard.

19. A review of the case law submitted reflects a lively and continuing debate in the area of labour relations with respect to the value of of requiring an election on the part of a non-suit mover. That debate is reflected in Re General Tire Canada Inc., supra, and the following cases cited therein: Re Gilbarco Canada and Canadian Union of Golden Triangle Workers (1973), 1973 CanLII 2072 (ON LA), 1 L.A.C. (2nd) 348, Re Toronto Public Library Board and C. U.P.E. (unreported, July 24, 1984), Re City of Toronto and C. U.P.E., Loc. 79 (1984), 1984 CanLII 5222 (ON LA), 17 L.A.C. (3d) 273, The Crown in Right of Ontario (Ministry of Correctional Services (unreported, February 27,1990), and Re Canadian Broadcasting Corporation and C. U.P.E. supra. Roughly put, those who would require such election argue that allowing a party to make a motion of this nature without a downside could result in a party obtain­ing an assessment of its case from the Board with attendant strategic benefits. This is unfair to the other party, and the motion itself might delay proceedings or cause unnecessary expense.

20. In response, those who would not require election argue that since the time the election requirement emerged in law, legal proceedings have greatly increased in length and expense. If, as counsel for A & P put it, "this dog won't hunt", it is of benefit to all parties to know this at the ear­liest opportunity. Any procedural disequilibrium can be alleviated by not providing reasons for a motion which is dismissed, with the effect that an attempt to test the waters will not yield much information.

21. The arbitrator in Re General Tire, supra, sets out this useful analysis of the cases and factors in this area in concluding that no election should be required in the case before him:

In a decision of the Ontario Crown Employees Grievance Settlement Board (decision No. 218/89), a panel composed of B. B. Fisher, vice-chairperson and E. Seymour and H. Roberts, members, unanimously concluded that it would not put the union to its election upon bringing a non-suit motion in a dismissal case. In doing so, it considered at length the arbitral jurispru­dence surrounding this issue.

In Re Gilbarco Canada and Canadian Union of Golden Triangle Workers (1973), 1973 CanLII 2072 (ON LA), 1 L.A.C. (2d) 348 (Carter), the arbitrator considered the cost implications of the practice of requiring an elec­tion as follows (p. 352):

In the case of most arbitrations, it is possible to hear all evidence and argument in one day of hearings. If, in a case where a decision had been reserved on a motion for non-suit, the board were required to give the mover of the non-suit motion the opportu­nity of introducing further evidence after the motion for non-suit has been decided, an additional hearing day would have to be scheduled. This expense could be saved if the parties were required to complete their case at the time of the motion for non-suit.

Admittedly, forcing a party to elect may discourage non-suit motions. It might be argued that this result will put a party to the additional expense of introducing evi­dence where there is no case to meet. But, in the case of arbitration proceedings, the parties are usually prepared to conduct their business in one day of hearings and all witnesses are normally present on that day. Thus, it is difficult to see how encourag­ing the parties to complete their cases in that one day would create additional expense.

In the case at hand, as well as in the case before the Grievance Settlement Board in decision No. 218/89, the comments of arbitrator Carter to the effect that parties are usually prepared to com­plete the case in one day of hearing have no application. Indeed, as vice-chairperson Fisher noted in decision No. 218/89, Gilbarco was decided in 1973, when one-day cases seem to have been the norm. Whatever may have been the case in 1973, in 1991 it is rare for a discharge case to be concluded in a single day. Thus, the "cost-effectiveness" of putting a party to its election will vary depending upon the circumstances of the case. It will sometimes be the case that per­mitting a party to bring a non-suit motion while reserving their right to call evidence should the notion fail has the potential to shorten a hearing, resulting in reduced costs for both parties. this potential cost saving was alluded to in Toronto Public Library Board and C. U. P. E. (unreported decision of arbitrator Beatty, dated July 24, 1984), where the arbitrator permitted the employer to bring a non-suit motion without being put to its election.

However, arbitrators have also expressed concerns about possible unfairness inherent in permit­ting a party to "test the waters" by moving for non-suit while retaining the option of calling evi­dence if the motion fails. It has been considered to compromise the impartiality of the arbitrator if he or she expresses an opinion on the evidence of one side without hearing all the evidence: see, for example, Re City of Toronto and C.U.P.E., Loc. 79 (1984), 1984 CanLII 5222 (ON LA), 17 LAC. (3d) 273 (Kates).

I agree that for an arbitrator to express an opinion about the evidence led up to a certain point in a proceeding may create an impression of unfairness. However, whether or not it will depends on the nature of the evidence led thus far and the manner in which the decision is com­municated. One concern is that, by expressing an opinion about the state of the evidence thus far, the arbitrator will be providing the party bringing the motion with insight into his or her view of the case as it has developed. That could permit a party to tailor its evidence in order to cater to the arbitrator's view of the case. Of course, the party which had to present its evidence first would not have the benefit of such a preview of the arbitrator's thinking. Further, as arbitrator Kates points out in City of Toronto, supra, the moving party is the only party which bene­fits procedurally from being permitted to argue its motion while reserving the right to call evi­dence should the notion fail. According to arbitrator Kates, "... the arbitrator in any event is duty-bound to avoid situations where he or she is placed in the invidious dilemma of favouring one party who can only stand to benefit from the expression of that opinion" (p. 282).

The extent to which a moving party obtains any real procedural benefit from being permitted to move a non-suit without making an election will vary depending on the circumstances. The con­cern that such a procedure will permit the moving party to plan its strategy based upon what the arbitrator reveals about his or her thinking is a real one. In decision No. 218/89, vice-chairperson Fisher concisely articulated the potential problem, and at the same time set out a solution (pp. 7-8):

……it seems inappropriate for a board such as the Grievance Settlement Board, which is constantly determining disputes between the same parties, to express full reasons as to why one party has failed to prove a prima fade case. This would be the equivalent of an "arbitral time-out" in which the opposing party has the opportunity to find out what the board is thinking, and then plan its strategy for the rest of the case. In a situ­ation like this, one would expect a motion for non-suit in every case, as it would pro­vide a useful advantage in every case to the moving party, whether or not they had any chance of winning a motion of that sort.

However, these fears can be eliminated if the board gives no oral or written reasons in the event the motion is dismissed. Of course, if the motion is upheld, full and proper reasons would be provided, as then the motion would end the case. A mere indication by the board that the motion was dismissed would not give a tactical advantage to either party. This was the procedure adopted by chairperson Ratushny (who is also a vice-chairperson of the Grievance Settlement Board) in Ontario Human Rights Com­mission and Abany v. North York Branson Hospital and Hill, 9 C.H.R.R. D14975.

(Emphasis added.) The board then went on to find that it was appropriate, looking at the inter­ests of expedition and fairness, to rule that it was proper for the union to be able to present its motion for non-suit without being put to its election.

22. Re Canadian Broadcasting Corporation, supra, represents a similarly thoughtful review in which an arbitrator comes to the opposite conclusion.

23. Common to both points of view, however, is an overwhelming concern with procedural fairness. This appears to be a more useful focus for analysis than a distinction between motions for early dismissal and non-suits, or a differentiation between no evidence and insufficient evidence. In the first place, it does not seem that such distinctions have dominated in Ontario. Secondly, the cases in this respect appear for the most part to represent ways in which various adjudicators have wrestled with some of the competing values canvassed above, and their arrival at different points of balance in this regard. In some cases, these distinctions are also used to support an exception to formal rules of civil litigation which the Board is not bound by in any event. This suggests that the way in which the Board exercises its discretion in this area should be related more to the underly­ing issues of fairness than to such fine and possibly fragile distinctions.

24. It is also clear that the various labour adjudicators referred to above recognize that in an area of law where it has long been the axiom that "labour relations delayed are labour relations denied", fairness does not simply involve an opportunity to be heard in a narrow sense. Rather, such an adjudicative environment requires a multi-dimensional concept of fairness which recog­nizes the importance both of being heard, and of being heard in a timely and accessible fashion. Such a comprehensive view of fairness is particularly critical for this Board, which has as its man­date providing speedy, informal dispute resolution in a context of labour relations expertise, and which handles cases that are often extraordinarily time-sensitive.

25. This means that the Board must facilitate swift, balanced hearings which combine both expedition and a full opportunity to be heard. In pursuit of this mandate in what is now a highly sophisticated legal milieu, the Board does not always have the luxury of relying on well-established procedural doctrine. This is because such formulas can interfere with both the expedition and informality of hearings. As a result, the Board's practice has been to obtain the benefit of such doctrines where possible, and modify or dispense with them where necessary. In addition, the Board has developed or adopted practices tailored to the needs of labour relations litigation. Some of these are reflected in its Rules of Procedure; others involve the informal application of hearing management skills. A number are directed at providing the parties with various kinds of guidance during the course of the hearing.

26. For example, the Board's rules allow it to dismiss an application without a hearing in certain circumstances:

Rule 24. Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing. In its decision, the Board will set out its reasons. The application may within twelve (12) days after being sent that decision request that the Board review its decision.

27. Similarly, once the hearing is under way, the Board may in the course of its evidentiary rulings indicate to the parties not only what is admissible, but what is likely to have significant pro­bative value. It may focus the hearing so that it does not mushroom, or spin out of control on col­lateral issues, and it may ask the parties to address particular points in argument. Efforts may be made to narrow the scope of the proceedings, or the Board may advise a party in appropriate cir­cumstances that it is not necessary to address a particular issue in argument. On occasion, where the evidence has taken a definitive turn, it may ask the parties whether the assistance of one of the Board's mediators might be helpful.

28. These are only a few examples of the kind of practical ways in which the Board may facilitate the hearing of cases by providing parties with some indication of its views as the hearing progresses. There is no doubt that these methods must be employed with great care and skill; yet they are as critical to the running of a fair hearing in the comprehensive sense as more formal pro­cedural rules may be. Of course, they are not unique. Indeed, some are simply borrowed or modi­fied versions of good hearing practices in other forums. In an administrative setting, however, where more established doctrines have a lower profile, these informal tools take on greater promi­nence.

29. Some flexibility in addressing non-suit or similar kinds of motions is part of the spec­trum of ways in which the Board can facilitate fair hearings. In other words, there are times when a party's ability to "test the waters" is of benefit to all parties in bringing to an end lengthy and expensive hearings which are headed nowhere. It is true as well that the strategic benefit to the mover may be minimized by the absence or brevity of reasons for an unsuccessful motion. Upon reflection, moreover, one aspect of strategic advantage may not loom as large as at first glance. In fact, it is accurate to say that legal proceedings are riddled with fluctuating strategic advantages and disadvantages, brought about by a wide variety of factors including access to information, choice of counsel, ability to fund legal proceedings, the application of various legal onuses and evi­dentiary rules, and so forth. The latter are not whimsical; all have rationales, some more weighty than others. This means, however, that the issue is not simply whether there is a strategic advan­tage or not, but whether it is in aid of another more important purpose. Thus the unfairness of a strategic benefit to one party must be balanced against the unfairness to both parties of allowing a futile hearing to continue, with the attendant cost and uncertainty to them. It seems especially unconscionable to allow the cost of losing to escalate when the outcome is clear. If the Board is to maintain effective control over the fairness of its proceedings, there are times when it must be able to bring an ill-fated case to a merciful conclusion.

30. Having said that, however, there is considerable merit in the concerns of those requir­ing election. It does a disservice even to a comprehensive view of fairness to allow the expedition of a case to be compromised by frequent or lengthy motions. In addition, opportunities for pre­hearing discovery are limited in the Board's procedures, with the effect that there will be some degree of discovery at the hearing. There are many matters in which a party will often have little choice but to attempt to make its case through cross-examination of an opposing parties' witnesses, simply because it will not have the kind of information available to otherwise prosecute its case. In some of those situations, a reverse legal onus provides parties with assistance; in others, the onus is on the applicant. Of course, this information deficit does not at the present time prevent a non-suit motion where the mover elects not to call evidence; however, it represents another reason for some hesitation in making such motions easier. Moreover, in a forum where hearings are con­ducted along less formal lines, it is still essential to protect the values which have given rise to a number of more established doctrines, even where the doctrines themselves may be too rigid. It may well be that having regard to the interplay of the many ingredients that make up a fair hearing in any given case, allowing a non-suit motion without an election will be handled with caution, at least until the Board can assess and evaluate its practical experience in this regard.

31. With this in mind, I now turn to the motion before me. At the outset, it is worth noting that this is an application for reconsideration, not an original hearing. The grounds on which the Board will reconsider a decision are quite limited. In K-Mart Canada Limited (Peterborough), [1981] OLRB Rep. Feb. 185, the Board made these comments with respect to its powers of recon­sideration:

To avoid abuse of the reconsideration provision and bring some finality to its decisions, the Board has adopted principles not unlike those of the courts. The Board will not normally accede to a request to reconsider unless the party requesting reconsideration intends to adduce new evi­dence which was not previously available to them by the exercise of due diligence, and then only where such additional evidence, if proved, would be likely to make a substantial difference to the out come of the cases. Reconsideration is therefore generally restricted to allowing a party to adduce evidence or make representations which it did not have a previous opportunity to raise. The Board may also consider such factors as the motives for the request for reconsidera­tion in light of a party's conduct, and the resulting prejudice to another party if the case is reopened.

32. Normally, the Board does not hold hearings on an application for reconsideration. This is why Rule 83 of the Board's Rules of Procedure requires an applicant to submit complete written representations in support of its request. In many cases when the Board receives a request for reconsideration, it determines that it does not require opposing submissions because the appli­cant's submissions have not been persuasive. This is why Rule 84 describes what should be included in a response "[w]here a party is directed to file a response". In other words, responses are only filed upon the direction of the Board, in contrast to original proceedings where responses are to be filed automatically. In many cases, the responding party to an application for reconsider­ation is not directed to file a response at all. In a rare case such as the present one, the Board will hold a hearing because there is some factual dispute which may be significant to the disposition of the application for reconsideration. In general, however, it is fair to say that the Board's proce­dures for applications for reconsideration contemplate that they may be dealt with briskly, and without calling upon a party to meet an unpersuasive case. And of course, no election is required in circumstances where the Board determines that it can dispose of an application without a response.

33. In these circumstances, some of the concerns which lie at the root of the election requirement are less compelling. If the Board normally determines whether to call upon a party for a response to an application for reconsideration without requiring an election, an election require­ment on a motion such as this in the same kind of case seems a little incongruous.

34. This is given added emphasis by the fact that there is no requirement for a party who requests the application of Rule 24 to make an election with respect to evidence. Of course, some of the concerns in regard to soliciting evaluations of the evidence will not be present at the begin­ning of a case. However, it is clear that a party may obtain an assessment of its legal arguments in this manner, and the Board will often provide reasons when such a motion is dismissed. Moreover, it may well be that in some cases involving reconsiderations, soliciting an assessment of a case may have less strategic value in a situation where there have already been proceedings culminating in a Board decision in the first instance. Presumably both parties may have already had an opportunity to sample the Board's thinking on at least some aspects of the case in those circumstances.

35. In this case, expedition was essential at the time of the motion. The matter before me represented the tip of an iceberg with respect to a massive, high stakes dispute between two large unions. The volatile and uncertain conditions in which this application was filed had already given rise to two applications for interim orders in this particular matter, and two other applications cov­ering the approximately 200 outstanding successor rights applications. In other words, the longer the proceedings took, the more collateral litigation they spawned. In addition, while the Board's various interim orders provided at least some measure of stability, they shifted the burden of urgency from the Steelworkers to UFCW. As the Board recognized in its decisions on the interim orders, stabilizing this situation on an interim basis had the unavoidable effect of providing the Steelworkers with a practical advantage in this extensive inter-union battle. While such orders were critical in light of the widespread disruption to labour relations, there is no doubt that the longer these proceedings continued, the greater the impact of orders which were intended to be interim only.

36. At this point, the settlement has eliminated many of these concerns. However, it is still important to crystallize the situation and address it in a cost-sensitive manner given the global set­tlement and the consequential reluctance of the two main protagonists to engage in the litigation.

37. Counsel for A & P and the Steelworkers respectively advised that they had a number of other witnesses they might call if the motion was unsuccessful, and that there is an unresolved dis­pute with respect to documents which promises to take some time as well. Discovery in the sense described above is not as significant an issue, since counsel for A & P already disclosed the gist of his evidence to the other parties. Having regard to the circumstances before me as a whole, and in light of the considerations set out above, I am not prepared to require either A & P or the Steel­workers to make an election as to whether to call evidence or not.

38. Turning to the merits of the motion, however, in my view it cannot succeed. Given my comments above, I am prepared to give very brief reasons for my conclusion which do not address the specific arguments made by counsel on the motion. This provides the parties with some guid­ance while minimizing any strategic benefit.

39. Both counsel for A & P and the Steelworkers couched their arguments in terms of there being no evidence, or insufficient evidence for the Board to reconsider the decision of September 23rd. The latter is a narrowly defined term in the jurisprudence before me, and both exclude con­sideration of the credibility of witnesses. In fact, their arguments do not fit easily into the more definitive analytical framework of either of these categories. It would be more accurate to charac­terize these submissions as simply assertions that the applicants have a weak case or even a very weak case. This calls for the kind of nuanced evaluation of the both the law and the evidence that normally takes place at the conclusion of a case, and which is not available on this kind of motion. As a result, the motion is dismissed.

40. However, it is critical that the parties understand what my decision in this regard does not address. My dismissal of the motion does not relate to the sufficiency of the evidence before me in the usual sense, but only to the narrowness of the test developed on this kind of motion. Counsel making the motion have expressed emphatic views with respect to the strength of the applicants' case in the course of their argument. It would not be surprising if those views influ­enced their approach to their respective cases should it be necessary to proceed further at the hear­ing.

41. My decision to dismiss the motion makes it unnecessary to address the other arguments in regard to whether the motion should be entertained at all.