Norman Thomas v. Retail Wholesale Canada Canadian Service Sector, 1997 CanLII 15539

[1997] OLRB REP. JANUARY/FEBRUARY 5

3599-95-R Norman Thomas, Applicant v. Retail Wholesale Canada Canadian Service Sector, Division of the Untied Steelworkers of America Local 1688 The Ontario Taxi Union, Responding Party v. Call-A-Cab Limited, Intervenor

BEFORE: Pamela Chapman, Vice-Chair, and Board Members R. M. Sloan and D. A. Patterson.

APPEARANCES: Donald White and Norm Thomas for the applicant; Brian Shell, Marie Kelly, Dan Garvey and Gary Cummings for the responding party; Mike Donnelly for the intervenor.

DECISION OF PAMELA CHAPMAN, VICE-CHAIR, AND BOARD MEMBER D. A. PATTERSON; February 5, 1997

1. The applicant has applied to the Board under section 63 of the Labour Relations Act, 1995 (the "Act") for a declaration that the responding party no longer represents the employees in the bargaining unit for which it is the bargaining agent.

2. In a decision dated February 1, 1996, the Board outlined two challenges made by the responding party to the Board's jurisdiction to order a vote in this matter, and directed that an oral hearing be held to hear argument concerning these objections.

3. At the hearing in this matter on February 13, 1996, a majority of the panel dismissed the application with reasons to follow. The following are our reasons for that decision.

THE FACTS

4. The facts in this matter were not generally in dispute, and were set out in the decision of February 1, 1996 as follows:

(a) the collective agreement between the union and employer was effective from January 8,1994 to January 7, 1996;

(b) on November 1, 1996. a Conciliation Officer was appointed;

(c) on January 3, 1996, the applicant sent to the Board by registered mail an application to terminate bargaining rights on Form 17. This application was not delivered by the applicant to the other parties;

(d) the collective agreement expired on January 7, 1996;

(e) the Board received the application on Form 17 on January 9, 1996;

(f) on January 10, 1996, the Board issued an endorsement directing the applicant to file its application on Form TA-6 and to deliver it to the other parties within four days after receipt of the decision;

(g) on January 17, 1996, the applicant attempted to deliver the application on Form TA-6 to the other parties by facsimile transfer. The employer does not dispute having received a copy of the application on that date. The union, however, has produced a copy of the facsimile transmission which it received, which does not include a copy of the application. The applicant has produced a copy of the facsimile confirmation sheets which were produced after they completed two separate transmissions to the union on January 17, 1996. One is an error report, which suggests that the first transmission of seven pages was not successfully completed. The second report appears to indicate that 14 pages were subsequently transmitted. At the hearing of this matter, counsel for the applicant acknowledged that the facsimile transmission was not complete;

(h) on January 23, 1996, the Board delivered to the union, by facsimile transfer, a copy of the application originally filed on Form 17. This material was sent pursuant to a request by the union for a copy of the application; through inadvertence the application as originally filed was sent to the union rather than the application filed on Form TA-6 on January 9, 1996;

(i) on January 24, 1996, the union and the employer filed responses with the Board.

5. At the hearing, counsel for the applicant was invited to provide an explanation for the failure by the applicant to comply with the Act and with the Board's Interim Certification and Termination Rules by delivering a copy of the application to terminate bargaining rights to the responding party and the intervenor employer prior to filing it with the Board. No explanation was provided other than inadvertence.

THE ISSUES

6. As noted above, the responding party raised two challenges to the Board's jurisdiction to order a vote. First, the responding party asserted that the application was not delivered to it as required by section 63(3) of the Act and/or by Rule 43bb of the Board's Interim Certification and Termination Rules. In this regard, it raised two concerns: (I) that the application was not delivered prior to filing with the Board; and, (2) the attempt by the applicant to deliver a copy of the application by facsimile transmission to the responding party after filing with the Board was unsuccessful, with the result that the responding party did not receive a copy of the application until January 26, 1996, pursuant to a direction by the Board on the previous day. The responding party took the position that these deficiencies should result in a dismissal of the application, or at least call into question the application date assigned to the application by the Board.

7. Secondly, the responding party asserted that the application was not timely pursuant to sections 63(1) and 67(2) of the Act, as it was not filed prior to January 7, 1996, the date on which the collective agreement expired.

8. In response to these objections, the applicant asked the Board to apply Rule 22 to relieve against the failure to comply with Rules 43bb and 43o of the Interim Certification and Termination Rules. The applicant noted that the Board had already granted leave to deliver the application subsequent to filing with the Board through the endorsement dated January 10, 1996, and that the applicant's failure to effect this delivery was an error made despite a bona fide attempt to do so. With respect to the timing of the application, the applicant asked that the Board treat the application as having been filed on the date on which it was sent by registered mail, January 3, 1996, as would have been permitted pursuant to the Board's Rules of Procedure prior to the promulgation of the interim rules on November 16, 1995. Rule 43o of the interim rules provides that documents are treated as filed on the date on which they are received by the Board.

THE DECISION

9. It was not disputed that, in order to be a timely application for termination, the application in this matter had to have been filed with the Board by January 7, 1996. It was in fact received by the Board on January 9, 1996, although the union argues that it was not properly filed as it had not yet been delivered to the other parties as required by the Act and the Rules. Leaving aside the issues concerning delivery, however, the application was not filed in a timely fashion unless we accept the applicant's argument that the application should be treated as having been filed on the date on which it was sent by registered mail.

10. Rule 43o of the Interim Certification and Termination Rules provides as follows:

43o The date of filing is the date that a document is received by the Board. However, in the construction industry, if an application is sent by Priority Courier, the date of filing is the date on which the application is sent (as verified by the Post Office).

11. The previous Rule dealing with the date of filing was Rule 8, which provides as follows:

12. The date of filing is the date a document is received by the Board or, if it is mailed by registered mail addressed to the Board at its office at Toronto, the date on which it is mailed, as verified in writing by the Post Office. However. the date of filing in cases brought under sections 11.1. 41, 73.l, 732, 92.1, 92.2, 93, 94, 95, 126 and 137 of the Act is the date the document is received by the Board.

13. This Rule was clearly superseded with respect to applications for certification and termination by the Interim Certification and Termination Rules promulgated on November 16, 1995. Rule 43i of the interim rules provides as follows:

43i These Rules amend the Board's Rules of Procedure, which continue to apply, except to the extent that they conflict with these interim Rules. These Rules apply only to applications for certification and to applications for termination of bargaining rights filed on or after the day on which these Rules come into effect and Rules 43 to 56 do not apply to those applications.

13. The rationale for Rule 43o is apparent from a reading of the other Rules relating to certification and termination applications, and from a reading of Bill 7, which brought into effect the Labour Relations Act, 1995. The Act, and the new rules which were put into place to implement the changes it contained, creates an entirely new regime for certification and termination applications, where representation rights are to be determined by the speedy holding of votes in virtually all cases. As a result, the interim rules reflect the need to quickly process certification and termination applications in order to meet in most cases the legislative mandate of fifth-day votes. As well, the legislation provides (in section 63(3) of the Act with respect to termination applications) for the delivery of applications to responding parties before filing with the Board, unless the Board establishes rules to relieve of this requirement (as the Board has done with respect to applications in the construction industry). In this context, the use of registered mail to deliver applications to the Board is quite simply unworkable, as is the assigning of application dates to any date other than the date material is received at the Board. If the latter were permitted, the Board would in many cases not even be aware of the existence of applications filed in this manner within five days after the date of filing, which is the date on which votes are to be held unless the Board directs otherwise.

14. Rule 43o also makes sense in light of the final sentence of the previous Rule 8, which already prohibited the fixing of application dates by registered mail filing in various types of time-sensitive matters. The effect of Rule 43o is essentially to add certification and termination applications in non-construction matters to this list of expedited proceedings.

15. The applicant asks that we relieve in these circumstances from the strict application of Rule 43o, but offers no reason for this request, other than the obvious fact that the application is untimely unless it is treated as having been filed on an earlier date. This is not a case where the applicant can reasonably plead ignorance of the changes in the Board's rules as an excuse for non-compliance. The applicant was represented in its filing by competent counsel who had an obligation to inform himself of the law and of any rules governing such applications to the Board. A review of Bill 7, which was proclaimed in effect on November 10, 1995, almost two months prior to the filing, would inevitably have led to the conclusion that the rules governing termination applications must have been changed, if only because of the wording of section 63(3). The Board's Interim Certification and Termination Rules were available at the Board's offices beginning on November 16, 1995, were mailed to those on the Board's mailing list that same day, and were announced in the November 1995 issue of Highlights. In these circumstances, there is little excuse for the manner in which the applicant commenced the application at the beginning of January 1996.

16. For all of these reasons, the majority of the panel concluded, Board Member Sloan reserving his decision, that it was not appropriate to treat the application as having been filed on January 3, 1996, the date on which is was sent by registered mail. As January 9, 1996 is the earliest date on which it can be considered to have been filed, in which case it would still be untimely, it is not necessary for us to determine whether or not the receipt of the application on that date was adequate to constitute filing, given the deficiencies in delivery to the other parties, and we thus decline to consider the other arguments made by the union.

17. As the application was not filed in a timely fashion pursuant to sections 63(2) and 67(2) of the Act, it was dismissed.

DECISION OF BOARD MEMBER R. M. SLOAN: February 5, 1997

1. I dissent from the majority decision.

2. For the Board to deny the employees their legitimate rights under the Act on a mere technicality is not only unfair but in my view unjust.

3. How can the majority take such a narrow view of "filing" dates when at the very period in which the instant application was filed, the Board was still in the process of formulating its new rules and there was much indecision within the Board itself, let alone in the outside communities.

4. To penalize a group of employees on a minor technicality under the circumstances of this case cannot but diminish their view of the Board with respect to applying the rules in an even-handed manner.

5. I would have, without hesitation, ordered a termination vote.