Covington Clarke v. Local 400 F.W.D. et al., 1994 CanLII 9941

Citation: [1994] OLRB Rep. June 649 File No.: 0974-93-U Date: June 28, 1994

Before: Robert Herman, Vice-Chair.

Appearances: F. Moti-Trille and Covington Clarke for the applicant; Douglas Wray and Chris Grogan for Local 400 F.W.D.; P. Rusak and J. Spier for La-Z-Boy Canada Limited.

DECISION OF THE BOARD

When initially filed, this complaint pursuant to section 91 of the Act alleged breaches by the union and the company of a number of provisions of the Act.
In a decision dated March 2, 1994, the Board (differently constituted) dismissed the application, except insofar as it relied upon the provisions of section 69 of the Act, and directed that the applicant file particulars of all allegations made as part of the section 69 complaint.
The applicant, through counsel, filed those further particulars, and the matter was relisted before me for hearing.
Those particulars, in their entirety, read as follows:

The Applicant put in the grievance on the 23rd day of February, 1993. The Applicant was laid off on the 1st day of March, 1993, despite the doctor's note and certificate for light duty. The Applicant was not given his option of choosing or selecting a job despite his seniority right. The grievance meeting took place on the 8th day of March, 1993. Mark Smith was present at which point he told the Applicant to keep quiet. The meeting was adjourned. On the 10th day of March, 1993, the Applicant asked Chris Grogan and Mark Smith about the reply and the Applicant was then advised that they did not have to reply until five days, at which time the Applicant pointed out that the contract called for a period of two days. The Applicant received a letter on the 10th day of March, 1993 dated the 11th day of March, 1993 and if this is correct, then there is another violation of step one that was not pursued in the Applicant's grievance. Clause 15:08 provides for two days and the time interval was from the 8th to the 11th of March, 1993.

Step two should have been on the 11th day of March, 1993 and not the 15th day of March, 1993. Clause 15:08 would be violated.

In step two, Mark Smith, the Applicant's union steward, was not present which would be a violation of Section 15:04. The Applicant alleges that he was pressured to give an answer without having the assistance of his shop steward. The Applicant alleges that the meeting scheduled for the 15th day of March, 1993 should have been a pre-arbitration meeting, but it was taken as step two.

The Applicant alleges that his shop steward, Mark Smith, was not present at the meeting of the 15th day of March, 1993.

The Applicant alleges that the breaches of the contract made such proceedings invalid and requests remedial relief and the Applicant alleges that the union failed to represent him properly and even when it did represent him, it did so negligently and the Applicant requests restitution for the losses incurred.

The complainant proceeded first. The only evidence presented was the complainant's own testimony. He called no more witnesses. After his evidence was completed, but before hearing the evidence of the union, the Board advised the parties that it wished to hear their submissions. Following are the Board's reasons for this direction.
The Ontario Labour Relations Board is not a court. It has neither the jurisdiction of nor the processes of the civil court system in the province, and proceedings before the Board are not characterized by many of the technical requirements of court process. The Board is an administrative tribunal, charged with the task of resolving disputes amongst parties opposite in interest, and doing so within a context of regulating labour relations within the province. While the Board fulfils its mandate by adjudicating disputes in quasi-judicial settings and fashion, the Board's primary aim remains that of promoting sound labour relations within the province.
Given the Board's purpose, structure and statutory underpinnings, processes or procedures appropriate in the adversarial system typical of the civil court system may not be appropriate to particular proceedings, or in particular contexts, before the Board. Thus, the Board has held that a party making a non-suit motion will not necessarily be required to elect whether it wishes to call evidence. In Hurley Corporation, [1992] OLRB Rep. Aug. 940, the Board wrote as follows:

When parties bring motions for non-suits in civil proceedings in the Province of Ontario, there is a general practice, although not inviolate, that parties bringing such motions be put to their election prior to the court entertaining the motion. See, in this respect, Bank of Montreal v. Horan et. al. (1986), 1986 CanLII 2554 (ON HCJ), 54 OR. (2d) 757; The Ontario Public Service Employees Union et. al. (1990) 37, O.A.C. 218 (Div. Cl.). But proceedings before the Board are not identical to proceedings before the civil courts. Rules or practices that may well make sense in a civil court context do not necessarily attend in proceedings before this Board.

Administrative tribunals which adjudicate matters often conduct proceedings in a less formalized, less adversarial fashion than a court would. Provided it acts in a manner that is fair, and in accordance with the principles of natural justice, the courts have generally declined to insist that the tribunal follow the court models exactly. Recently, the Divisional Court in Metropolitan Toronto v. The Joint Board et. al. (unreported), November 19, 1991, per O'Brien J., commented on the distinction between courts and administrative tribunals in certain respects. As the court observed:

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

See, in contrast, Ontario Public Service Employees et. al. (supra), at paragraphs 40 and 41.

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 no 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 these circumstances, where it might significantly delay the resolution of matters, to the detriment of sound labour relations in the workplace, and given that the other parties did not request that the election be made, the Board decided not to require the union to elect whether it wished to call evidence before hearing its motion.

Our decision was context specific, based on the the circumstances and facts before us. In response to the union's request, and given the parties' positions, it appeared both fair and sensible to allow the union an opportunity to argue in essence that there was no case for it to meet, before requiring all the parties to engage in further, extensive litigation.

The Board might well on its own initiative adopt such an approach. (see O'Brien, J. comments in Metropolitan Toronto, supra, p.5). All parties must, of course, be treated fairly and have full opportunity to lead their evidence and make submissions. Consistent with this, however, there will be proceedings where there is no useful purpose served by requiring a party opposite in interest to lead its evidence when the evidence of the party having the onus is clearly insufficient to meet that onus. The Board might call upon the parties to make submissions or otherwise conduct the balance of the proceedings in a manner that will not unduly delay the resolution of the labour relations dispute. In such circumstances, to force all the parties to incur additional expense and delay, when there is no reasonable likelihood of success in the issue, may not be consistent with sound labour relations principles or with sound administrative tribunal practice.

And see Kenneth Edward Homer, [1993] OLRB Rep. May 433.

A party must have full and fair opportunity to make its case. This includes a reasonable opportunity to outline the facts it asserts and to make submissions. But a full opportunity does not demand that a court-like hearing be held in every case. The Statutory Powers Procedure Act, applicable to most types of Board proceedings, does not require that every proceeding be conducted with the full formality and requirements of a typical court trial. Neither does any principle of natural justice.
Here, there were a number of reasons for the Board's intervention and direction that the parties proceed to submissions forthwith. Mr. Clarke had finished testifying, and had no further witnesses he wished to call on his behalf. His evidence had been preceded by written particulars, filed in response to a direction of the Board, and those particulars set out the relevant issues and material facts of the case. Mr. Clarke's evidence was not credible in a number of areas, and it appeared extremely unlikely, from his own testimony, that the union had breached section 69 of the Act. The union indicated that it had a significant number of witnesses it would have to call, to challenge testimony given by Mr. Clarke. The proceeding would likely therefore have taken at least one more hearing day. Finally, the complainant had the onus of establishing that the union had breached the Act.
It was questionable whether any purpose could be served by extending the hearing further. The evidence led by Mr. Clarke appeared so wanting, that it made sense to hear submissions first, before calling on the other parties to lead their evidence, with the attendant delay, expense, and disruption. For these reasons, the Board called upon the parties to move forthwith to submissions.
Mr. Clarke appeared to be a sincere individual. I do not suggest that he intended to mislead the Board. However, it was apparent from his testimony that his recollections were often vague, at best. In many cases, those recollections and his evidence changed during the course of cross-examination.
Until the events in question, Mr. Clarke last worked for the company in late September, 1992. At that point there was an incident at work, where remarks which he felt were derogatory and harassing were made to him. He broke down as a result, and was very distraught. He was referred to a family doctor, and later sought psychiatric assistance. It was determined he was suffering from an adjustment disorder and depressive mood (the terms Mr. Clarke used in his evidence).
In November, 1992, while still off work, he filed a complaint with the Ontario Human Rights Commission, alleging harassment at work. He did not advise the union that he had filed this complaint.
He was scheduled to return to work in mid-January, 1993, but when he attended at the plant, the nurse felt that he was not yet medically ready to return. He was advised by the nurse to see to his physician again. While in the plant, he spoke to a union officer, telling him that he wanted to file a grievance. He did not however, tell the union the nature of his complaint.
As suggested by the company nurse, he saw his physician again, who recommended that he stay off work until the beginning of March, 1993, and Mr. Clarke followed this advise.
On February 23, 1993 he again came to the plant, and this time filed a grievance, with the assistance of the union, asserting a breach of the Article dealing with discrimination and harassment. Under "Statement of Grievance" on the grievance form is written the single word "harassment", and under "Relief Requested" is written the phrase "full redress". No other relevant information is set out in the grievance. Again, as in January when he spoke with a union official, Mr. Clarke did not advise the union of the nature of his complaint. Mr. Clarke testified that the union official did not ask, and Mr. Clarke did not tell him, as he wanted to see what the union would do with it, in light of the fact that Mr. Clarke had filed quite a few grievances before.
On March 1, 1993 Mr. Clarke returned to work, but was laid off a few days later.
On March 8, 1993, the first-step grievance meeting was held. Both officials of the union and the company were present. It does not appear as if either the employer or union were then aware of the details of his grievance. Mr. Clarke testified that no details of the "harassment" were discussed. He also acknowledged that both the company and the union asked him what he was complaining about, and he replied only "harassment" and that he sought "full redress". Mr. Clarke testified that he felt that this information was sufficient and that he left it to their discretion to come up with an appropriate remedy. Mr. Clarke also testified that one of the union officials at the meeting had advised him to keep quiet. In the result, Mr. Clarke did not advise either the union or the company of the details of the nature of his complaint.
On or about March 10, 1993, the second step of the grievance procedure was held, again with officials of both the company and the union present. The union asked Mr. Clarke what he meant by "full redress". Mr. Clarke got upset at the question, had to leave the grievance meeting, and went to the nurse's office. As his blood pressure was quite high, he ended up leaving the plant and seeking further medical attention.
Sometime after the grievance meeting, the company officially responded to the union, indicating it was prepared to fund the cost of an educational program for all employees, hoping to create a change in the attitude of employees with respect to harassment of fellow employees. The company did not acknowledge that any harassment of Mr. Clarke had occurred, but they were prepared to embark upon such an educational program if the grievance was withdrawn.
Several days later, on March 15, 1993, another meeting was held, again with both company and union officials present. Mr. Clarke was again asked by both the union and the company what he wanted. Mr. Clarke was still shaken up at that point, so he kept quiet. At one stage during this meeting, Mr. Clarke and the union officials went outside the office, so that they could discuss matters without the company officials present. Mr. Clarke was asked by the union to indicate whatever it was he wanted, and if he wanted anything was advised that now was the time to ask for it. Mr. Clarke did not ask for anything. In Mr. Clarke's view, the meetings had not been held in conformity with the requirements of the collective agreement, particularly Articles 15.04 and 15.08, and therefore everything that was taking place was invalid.
The meeting reconvened. It was suggested that Mr. Clarke might better be able to write out the details of the nature of his complaint. He was given five days to do so, and to advise the company and the union by then of the nature of his complaint. The meeting ended. Mr. Clarke did not respond in writing, or otherwise, within five days. He testified that he did not do so because he was still in a mentally distressed state. Further, he wanted to give the union and the company the necessary leeway to make him a reasonable offer of compensation and redress.
No further meeting was held with the union after March 15, 1993. Mr. Clarke was advised that there would be a union meeting to vote on whether his grievance should go to arbitration, but he did not attend. He was also advised, after the meeting, that the union had decided that his grievance not go to arbitration.
Mr. Clarke has not worked since September, 1993, again because of his emotional state. His health remains shaky, and he is still seeking regular medical attention. At the time of the hearing, he was still not medically able to return to work.
Counsel for Mr. Clarke asserted a number of breaches of the Act. First, there had never been a genuine attempt by the union to assist Mr. Clarke with his complaint or grievance. Second, the provisions of the collective agreement (Article 15.04) sets the composition of the Grievance Committee, and subsequent articles require the presence of the Grievance Committee at certain steps of the grievance procedure. The union did not comply in all respects with these requirements.
Third, the union was required to give extra assistance to Mr. Clarke, as it was fully aware that he was suffering from stress related symptoms, and therefore needed more help than the average person. It was incumbent upon the union to explain procedures even more accurately and with more patience to Mr. Clarke.
Fourth, as part of this requirement, the union should have presented Mr. Clarke with options, rather than treating his grievance in the ordinary and customary fashion.
Fifth, there were no reasons given in the decision that the grievance not go to arbitration, and the union was required to do so.
Section 69 of the Act reads as follows:

A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.

The union did not breach section 69 in respect of any of its actions. The union processed Mr. Clarke's grievance when he filed it, and assisted him with the filing of that grievance. Union officials attended with and represented Mr. Clarke throughout the steps of the grievance procedure. The grievance which he had filed was deficient in particulars, simply indicating that he complained because of "harassment". Mr. Clarke was repeatedly asked to explain the nature of his complaint and given alternative ways of communicating. There is no evidence to suggest that anything in the manner in which he was asked was in any way harassing, intimidating, or untoward in any respect. In the face of those repeated requests by both company and union, Mr. Clarke did not respond.
The union did go out of its way to try to assist Mr. Clarke. When requests of Mr. Clarke to provide details orally were not successful, both the union and company agreed that Mr. Clarke should have a five-day period to write any of the details of his complaint down. He was able to do this without either union or company officials being present, and was free to obtain the assistance of anyone he chose to assist him in writing out the details. He did not respond to this offer. In essence, he did not meaningfully respond at any stage to requests for relevant information.
Faced with the lack of detail or substance to the grievance, and Mr. Clarke's inability to provide any of that detail, there was little more the union could have done. The union chose not to process the matter to arbitration. In the Board's view, this was a reasonable decision. Indeed, because of its obligation to all the members in the bargaining unit, it would have been imprudent had it done otherwise.
Mr. Clarke also argues that the provisions of the collective agreement dealing with the grievance procedure were not followed, and this failure constituted a breach of section 69. While the evidence is not clear in this respect, it may be that one of the stewards was not present for a particular step of the grievance procedure, and it may be that his/her presence is required by the collective agreement. However, the company did not rely in any way on this absence as a basis for denying the grievance. And the union still fully assisted Mr. Clarke with his grievance. Even if the collective agreement was not followed in this respect, there is nothing whatsoever to indicate that it made any difference to the complainant's grievance, or its processing by the union. To the contrary, the subsequent steps of the grievance procedure and the union's involvement in them ensured that all of Mr. Clarke's interests were fully and properly protected by the union.
Finally, although the particulars (paragraph 4, supra) note additional concerns, such as events surrounding his layoff, there was no evidence in support thereof, nor did counsel raise this concern in submissions.
In summary, the Board is satisfied that the union did not breach section 69 in this complaint, and it is dismissed.