[1994] OLRB Rep. June 775
9940-94-M Royalguard Vinyl Co., A Division of Royplast Limited, Applicant v. United Steelworkers of America, Responding Party
BEFORE: Judith McCormack, Chair, and Board Members W. A. Correll and B. L. Armstrong.
APPEARANCES: Joseph Liberman, Douglas N. Dunsmuir and Alan Dias for the applicant; Mark J. Lewis, B. Paris and H. Desai for the responding party.
DECISION OF THE BOARD; June 30, 1994
This case involves an application under section 92.1 of the Labour Relations Act brought by the company for an interim order relating to an application for reconsideration. The application for reconsideration itself was filed in connection with a decision of another panel of the Board certifying the union as the bargaining agent for certain employees.
To understand the company's current request, some background information is necessary. The original certification proceedings involved lengthy and contentious hearings which commenced in April of 1993. It is fair to say that the company strenuously resisted the certification application, making a number of allegations about the conduct of union supporters which required over forty days of hearing and evidence from some thirty witnesses. The hearings concluded in February of this year, and the panel of the Board hearing the case advised the parties that it would attempt to issue a "bottom line" decision as soon as possible. The company acknowledges that no objection was taken at that time to the matter of a bottom line decision. On June 6th, a decision in such a format was issued. That decision includes the following relevant passages:
In the circumstances of this case, the majority of the Board finds it appropriate to render a "bottom line" decision at this time. Fuller reasons for the decision will be issued at a later date.
In response to the application for certification, the responding party and the intervenor alleged that a number of union organizers had attempted to obtain membership evidence through coercion.
After having carefully considered the evidence and arguments submitted by the parties, the majority concludes (Board member Rundle dissenting) that the responding party's and intervenor's allegations have not been substantiated.
The company then filed an application for reconsideration of that decision and brought this application for an interim order. By way of interim relief, the company asks the Board to direct the issuance of detailed reasons for the certification decision, to stay the effect of that decision pending the issuance of those reasons, and to advise it when the reasons will issue.
Section 92.1 provides as follows:
92.1-(l) 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.
(2) A party to an interim order may file it, excluding the reasons, in the prescribed form in the Ontario Court (General Division) and it shall be entered in the same way as an order of that court and is enforceable as such.
The language of section 92.1(1) makes it clear that the Board has a large measure of discretion in determining applications for interim relief. In exercising that discretion, the Board has now developed a considerable body of jurisprudence. Generally speaking, the Board looks at both whether the applicant has an arguable case for the remedy requested in the main application, and at the balance of harm between the parties (Loeb Highland, [1993] OLRB Rep. March 197).
With this basic framework in mind, the Board has also considered such factors as delay, and whether the harm is purely economic (Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358, Price Club Canada Inc., [1993] OLRB Rep. July 635, Blue Line Taxi Company Limited, [1993] OLRB Rep. Aug. 793 and section cat holique du Conseil scolaire de langue francaise d'Ottawa-Carleton, [1993] OLRB Rep. Sept. 844), the preferred labour relations circumstances to be preserved or created on an interim basis (Morrison Meat, supra) , the preservation of a meaningful remedy on the main application (Reynolds-Lemmerz Industries, [1993] OLRB Rep. Mar. 242), the effect on the process of collective bargaining or the collective bargaining relationship (The Hydro-Electric Commission of the City of Ottawa, [1993] OLRB Rep. Nov. 1231, Metropolitan Toronto Apartment Builders Association [1993] OLRB Rep. Mar. 219, The Bay-Kingston, et al; [1993] OLRB Rep. Dec. 1350, and Fort Erie Duty Free Shoppe Inc., [1993] OLRB Rep. Dec. 1307), the scheme of the Act (Tate Andale Canada Inc., [1993] OLRB Rep. Oct. 1019 and The Bay-Kingston, supra), and broader public or labour relations policy considerations (The Bay-Kingston, supra, Fort Erie, supra, and section catholique, supra). The Board's assessment takes place in the context of its specialized expertise in labour relations and the administration of the statutes it applies. (Loeb Highland, supra, Morrison Meats, supra, and Tate Andale, supra).
The case before us presents the Board with the first occasion on which the Board has addressed a request to stay a final decision. In these circumstances, another ingredient in the Board's consideration must be the importance of finality and certainty in the litigation process. More specifically, while we agree with the company that the general framework of the Board's approach remains the same in the sense that it will look to whether there is an arguable case on the main application and the relative harm to the parties, the application of that approach may have a different effect in this context. For example, in considering whether there is an arguable case, the Board must make some rough measurement of the applicant's materials against the elements necessary for success on the main application. Where the main application is one of reconsideration, the fact that grounds for success are quite limited in this area will necessarily shape the Board's assessment to some degree.
As well, the Board's interim order jurisprudence is predicated at least in part on the proposition that "the imposition of relief before an adjudication on the merits is inherently problematic to some extent" (Loeb Highland, supra). Where the interim relief a party is seeking is to stay the effect of an adjudication on the merits of a case, other considerations with respect to the finality and certainty of the Board's decisions may apply.
In the matter before us, we turn first to the company's request for detailed reasons with respect to the June 6,1994 certification decision. Since the Board in that decision indicated that fuller reasons would follow, there is no need for us to make any direction in this regard. Indeed, there is simply no issue with respect to whether more detailed reasons should or will be provided. As a result, even assuming that it would be possible for one panel of the Board to make a direction to another panel of the Board, such an order would be redundant. This effectively disposes of that aspect of the interim order application.
Turning next to the request for a stay of the decision pending the issuance of reasons, we find it useful to address the question of the relative harm to the parties first. It is not disputed that as a result of the certification decision, certain statutory obligations are triggered. Counsel for the company argues that the harm to the company warranting the granting of interim relief consists of requiring it to commence collective agreement negotiations without knowing the detailed reasons for the Board's conclusions in the certification case. These include the reasons for two procedural rulings and the Board's assessment of the relative credibility of various witnesses. Counsel asserts that the company should not be required to incur the costs of negotiations without being able to assess its position with respect to the viability of judicial review of the certification decision. He acknowledges that the Board has a long standing policy of declining to stay its decisions pending judicial review applications, but distinguishes this situation on the basis that the stay requested would be only for a brief period until the Board's detailed reasons issued, and not for the six to twelve months a judicial review application might take.
It is not apparent, however, that there is any connection between the details of the Board's reasoning in the certification case and the company's position in negotiations. We were not referred to any specific link, and the company's argument rested largely, if not entirely, on the proposition that the company should have an opportunity to assess its position with respect to judicial review before commencing bargaining.
As the parties acknowledge, however, it is extremely rare for the Board to stay its proceedings while matters are before a court or in the face of a pending application. (See, for example, C.P. Fisheries Ltd., [1986] OLRB Rep. Nov. 1503, Fotomat Canada Limited, [1980] OLRB Rep. Nov. 1643, Windsor Airline Limousine Services, [1980] OLRB Rep. Feb. 272.) In EKT Industries Inc., [1987] OLRB Rep. May 696, the Board indicated in a similar context that if the Board has the power to stay its own decisions, it should only be exercised in truly exceptional circumstances. Where the power it is to be exercised by a different panel of the Board than the one making the original decision, the Board noted that the circumstances must be even more extraordinary.
There are a number of compelling reasons for this approach. Chief among these, however, is the fact that stays are usually granted in an attempt to preserve the status quo. In the area of labour relations, this is often not possible because the delay attendant on a stay will itself result in a significant deterioration in the position of one or more of the parties.
The company's arguments in this case are somewhat difficult to distinguish from the Board's jurisprudence in this regard. If the Board does not stay its proceedings pending judicial review applications, it is not at all obvious why it should stay its proceedings so that parties can have the opportunity to assess whether they wish to proceed to judicial review.
The company cited to us the case of Wells Fargo Armcar, Inc. v. Ontario Labour Relations Board (1981), 1981 CanLII 1887 (ON HCJ), 34 O.R. (2d) 99 where the Court addressed an application for leave to apply to a judge of the High Court for judicial review rather than an application to Divisional Court. In determining whether the case was one of urgency and whether the delay required for a Divisional Court application was likely to involve a failure of justice, the court considered whether final decisions in negotiations from the parties would be required before such an application would be heard. Osler, J found that such final decisions would be unlikely in the three and one-half month period an application to Divisional Court would probably take at that time. The court then went on to decline to stay the Board's decision as well.
Counsel refers to this case as indicating that we should also consider whether final decisions would have to be made in negotiations pending the issuance of detailed reasons. However, we observe that such a consideration would militate against a stay on the facts before us as well, given the even shorter period of time for which the stay is requested.
The costs the company might incur in commencing collective bargaining did not appear particularly compelling. In the first place, they were not quantified, and consequently we have no sense of whether they would be significant or minimal. The union also argued that in any event, the Board has held that pure financial harm is not likely to result in an interim order, relying on Morrison Meat Packers Ltd., [1993] OLRB Rep. April 358 in this regard. We do think Morrison Meat Packers and the other cases in this line are distinguishable from the situation before us in the sense that they are based on circumstances where such financial harm can be adequately compensated by appropriate remedies in the final decision on the main application. This is not such a case. On the other hand, the costs issue is difficult to separate from the Board's jurisprudence referred to above where the possibility of similar costs to a party has not deterred the Board from continuing with hearings or enforcing its decisions.
In contrast, the harm to the union of staying the Board's certification is considerable. As the Board observed in Loeb Highland, both the Board and the Courts have recognized the corrosive effects of delay in labour relations:
Moreover, both the Board and the Courts have long recognized that delay poses special problems in labour relations matters. In Consolidated-Bathursr Packaging Ltd. v. 1. W. C., Local 2-69 (1984) 2 O.A.C. 277, the Court noted:
……there is a fundamental principle of labour law that injustice and detriment to the labour relations of an employer and employee will result if the process is delayed. In my opinion, it is fair to say that the thrust of jurisprudence not only in the Board but in the courts may be summarized by saying:
In the law which has grown up around labour relations in this province and indeed elsewhere where the common law is pursued, the overriding principal invariably applied is that labour relations delayed are labour relations defeated and denied: The Journal Publishing Company of Ottawa Ltd. v. The Ottawa Newspaper Guild, Ont. C.A. released May 17/77 (unreported) [since reported [1977] 1 A.C.W.S. 817 (Ont. C.A.)].
Similarly, in Re United Headwear and Biltmore/Stetson (Canada) Inc. (1983), 1983 CanLII 1852 (ON HCJ), 41 OR. (2d) 287, the Court commented that delay in labour relations matters often works unfairness and hardship. To some extent then, the Board must ensure that delay does not in itself decide a case.
This is particularly so in certification cases. In Bemar Construction (Ontario) Inc., [1992] OLRB Rep. May 565 the Board made these comments:
It is now well established that "time is of the essence" in certification matters - especially in the construction industry where commercial activity and employment opportunities are transitory. In the words of Estey, C.J.O. (as he then was), the "overriding principle invariably applied, is that labour relations delayed are labour relations defeated and denied" (see Journal Publishing Company of Ottawa Limited v. Ottawa Newspaper Guild, et al, [unreported March 31, 1977, Ontario Court of Appeal]. In Hotel and Restaurant Employees et al v. Nick Masney Hotels Limited, (1970) 70 CLLC ¶14020, Laskin, J.A. put it this way:
"The Ontario Labour Relations Board deals in certification matters with fluent situations which cannot be judged by the more leisurely standards that operate in the prosecution of a claim for damages for a tort or for a breach of contract, where the situation is fairly well frozen when the tort or the breach of contract has occurred. Expedition is important to the union, to the employees, and to an employer, and certification is merely the first step of a laborious collective bargaining process".
This proceeding involves a certification application, as well as an application under section 126 of the Act; moreover, the Legislature has itself indicated the need for expedition in section 126 proceedings by prescribing that the Board must hold a hearing within fourteen days of the filing of such applications.
(See also Hawk Security Systems Ltd., [1993] OLRB Rep. Aug. 751, Pinkerton's of Canada Ltd., [1989] OLRB July 783 and Canada Dry Bottling Company (Kingston) Ltd., [1978] OLRB Rep. Nov. 976.)
The Board has recognized that the economic dependency of employees on their employer makes a union organizing drive a relatively fragile enterprise. Employees who perceive their employer as hostile or resistant to unionization may be apprehensive about taking steps which may alienate the source of their livelihood or those who control their working conditions. In this context, delays in the certification process can erode employee support for collective bargaining by suggesting to them that it represents a risk without benefits. They may also prolong a period of uncertainty involving considerable tension in the workplace. As the Board noted in A & L Canada Laboratories East, Inc., [1992] OLRB Rep. Sept. 983, delay in certification cases is measured in days rather than weeks or months because of its potential to undermine the appetite of employees for collective bargaining. For this reason section 6(2) of the Labour Relations Act specifically provides an interim certification power in certain cases pending the conclusion of the certification litigation. The Board has also developed sophisticated pre-hearing procedures in certification applications to provide for their expedition, together with a fast track for hearing them, along with other time-sensitive cases. There is little doubt that this is an area where the Board must be constantly vigilant that cases are determined on their merits, rather than by delay.
In the case before us, the vulnerability of employees is further highlighted by the fact that the Board found that the company violated the Labour Relations Act by certain conduct during the period of the certification litigation. The parties are also involved in the litigation of other unfair labour practice complaints as well. The declaration filed by the responding union asserts that the delay and uncertainty of the previous certification litigation has contributed to an undermining of support for the union and the willingness of employees to engage in effective collective bargaining. In these circumstances, the harm caused by further delay is likely to be significant.
The company argues that there has been such substantial delay already in this matter as a result of the lengthy litigation that more will not make a material difference. We do not find this a particularly compelling proposition. The integrity of the Board's processes requires that we minimize delay in these circumstances to the extent possible. There is nothing in the declarations of either the company or the union to indicate that the situation is such that it could not deteriorate further. Moreover, certification often represents an opportunity for a greater degree of stability after the tension and insecurity of the pre-certification campaign, albeit in the new paradigm of a collective bargaining regime. (See, for example, Cooper Industries (Canada) Inc., [1994] OLRB Rep. March 225.) Staying a certification decision does not merely represent additional delay; it also has the effect of thrusting the parties back into the more volatile and uncertain environment preceding certification.
A further consideration with respect to harm is the fact that a stay would eliminate the value of a bottom line decision. The Board's practice of issuing such decisions with fuller reasons following at a later date represents a careful balance between two important and competing elements.
The first involves the importance of reasons for quasi-judicial decisions generally. The fundamental nature of reasons in the scheme of administrative justice is reflected in the requirement for reasons in section 17 of the Statutory Powers Procedure Act. This is given added emphasis in the field of labour relations which often involves two or more constituencies engaged in fundamental or perennial economic conflict, or aggressive litigation on flashpoint issues. In this highly charged atmosphere the Board's decisions are often monitored closely, and providing a stable and authoritative forum for dispute resolution is a challenging task. Detailed reasons can play a valuable role in explaining the Board's decisions on complex matters to a frequently divided, vocal and sensitive community, as well as assisting an unsuccessful party in reconciling itself to what it perceives as a difficult or unpalatable result. The importance of reasons is highlighted in cases involving new areas of law or controversial legislation. The Board's considerable reputation and authority is based in no small measure on the jurisprudence it has developed over the last fifty years.
Of course, many of the Board's cases require only brief reasons, and the parties are often content to have these delivered orally. It is not surprising however, that in a case involving contentious issues and over forty days of hearing, the Board might wish to issue detailed written reasons.
At the same time, detailed written reasons can entail considerable delay, and as we have noted previously, expedition is critical to the integrity of the Board's processes. In certification cases, delay alone can extinguish any meaningful opportunity to exercise the various rights set out in the Labour Relations Act. In other cases such as unlawful strikes and lockouts, delay can have a major economic impact. The Board is also faced with an increasing number of statutory deadlines for hearing or determining cases. Examples are contained in section 126, 41 and 92.2 of the Labour Relations Act. Perhaps the most stringent time lines are set out in section 92.2, which provides that the Board must commencing hearing certain cases within fifteen days, hear them on consecutive days from Mondays to Thursdays, and render its decision within two days after the hearings are completed.
In balancing the importance of reasons with the need for expedition, the Board has developed the practice over the last decade of issuing bottom line decisions with reasons to follow. In this manner, parties are provided with a faster result, but receive the benefit of written reasons subsequently. Indeed, even between these two parties a number of bottom line decisions have been issued by the Board without objection from either party at the time.
Of course, the value of this solution is not confined to the Board. As the Ontario Court of Appeal said in Crocker et al v. Sipus (1992), 1992 CanLII 7466 (ON CA), 95 D.L.R. (4th) 360:
Careful deliberation, expeditious disposition, and the giving of comprehensive reasons, are often competing goals of justice in busy trial courts. The preparation of reasons, whether to be delivered orally or in writing, is an important part of the deliberation process which leads to the disposition of the issues. The entire process may sometimes be condensed into the delivery of brief reasons immediately after the hearing. Such is not, however, invariably the case. The needs of justice in a given case may be better served by an announcement of the disposition of the matter as soon as the deliberation process is completed but before full written reasons can be made available to the parties.
In this case, the majority of the panel determined that it was appropriate to issue a bottom line decision. An interim order staying the effect of that decision until fuller reasons issue would effectively nullify that determination. This tends to underscore the inappropriateness of an interim order in the circumstances before us.
The applicant's written submissions appear to focus in part on the fact that the June 6th decision was not unanimous, either on the merits of the case or with respect to the determination to issue a bottom line decision. In a tripartite system of administrative justice where one member
of a panel is representative of employers and one representative of employees by virtue of section 104(9) of the Labour Relations Act, disagreements are not uncommon. This is particularly so in the complex and delicate area of assessing the relative credibility of witnesses, which both parties agreed was the crux of the certification decision. Section 104(11) stipulates that the decision of the majority, or where there is no majority, the Chair or Vice-Chair, governs. We do not find the fact that there was disagreement either with respect to the merits or the format of the decision to have significance with respect to the matter of an interim order.
We therefore conclude that the harm likely to result from the interim relief requested outweighs any harm to the applicant if such relief is not granted. As a result of our conclusions in this regard, it is not necessary for us to consider the matter of whether the applicant has an arguable case on the merits of the main application. We would merely draw the parties' attention to the Board's jurisprudence setting out the quite limited circumstances in which the Board will reconsider its decisions.
Finally, the applicant requested that we advise it when the further reasons for the June
6, 1994 decision will issue. This is really a request for information from the Board, rather than an application for a remedy coming within the ambit of interim relief. Moreover, the timing of the issuance of those reasons is a matter entirely up to the panel which heard the case. We note in passing however, that only ten days elapsed between the bottom line decision and the company's request in this application.
- The application for interim relief is dismissed. As a result, the Board's decision of June
6, 1994 continues in full force and effect. We wish to express our appreciation to counsel for their
arguments which were both lean and cogent.