Ontario Labour Relations Board
1973-99-ES Danilo Suarez, Applicant v. Terry Kelly and Ministry of Labour, Responding Parties.
1987-99-ES Orestes Alphonso, Applicant v. Terry Kelly and Ministry of Labour, Responding Parties.
1988-99-ES Rourvaldo Galvez, Applicant v. Terry Kelly and Ministry of Labour, Responding Parties.
BEFORE: John Morgan Lewis, Vice-Chair.
DECISION OF THE BOARD; February 15, 2000
These are applications under section 67 of the Employment Standards Act, R.S.O. 1990, c.E-14, as amended (the "Act").
The Board is in receipt of correspondence from counsel for the applicants requesting that the hearing in this matter set for March 28, 2000 be adjourned as counsel will not be able to attend. Counsel advises the Board that the responding party, Terry Kelly, has not agreed to the adjournment request.
The extend of the Board's jurisdiction to determine whether or not to grant an adjournment is set out in the following passage from the Divisional Court in Re Flamboro Downs Holdings Ltd. and Teamsters Local 1879 (1979), 1979 CanLII 1669 (ON HCJ), 24 O.R. (2d) 400 (Ont. Div. Ct.):
Clearly, an administrative tribunal such as the Labour Relations Board is entitled to determine its own practices and procedures. Whether in a given case an adjournment should or should not be granted is a matter to be determined by the Board charged as it is with the responsibility of administering a comprehensive statute regulating labour relations. In the administration of that statute the Board is required to make many determinations of both fact and law and to exercise its discretion in a variety of situations. In the case of a request for adjournment, it is manifestly in the best position to decide whether, having regard to the nature of the substantive application before it, the adjournment should be granted or whether the interests of the employer, the employees or the union who, as the case may be, oppose the adjournment should prevail over the party seeking it. As a matter of jurisdiction, it is for the Board to decide whether it should adjourn proceedings before it and in what circumstances.
This is not to say that there cannot be situations in which a refusal to grant an adjournment might amount to a denial of natural justice. There are circumstances in which that might be so: see, for example, R. v. Ontario Labour Relations Board, Ex p. Nick Masney Hotels Ltd., 1970 CanLII 478 (ON CA), [1970] 3 O.R. 461, 13 D.L.R. (3d) 289 (CA); Re Gill Lumber Chipman (1973) Ltd. and United Brotherhood of Carpenters & Joiners of America, Local Union 2142 (1973), 1973 CanLII 1231 (NB CA), 42 D.L.R. (3d) 271, 7 N.B.R. (2d) 41. It is necessary to examine the facts of each case to determine if the tribunal acted, as it must, in a fair and reasonable way. It must, of course, comply with the provisions of The Statutory Powers Procedures Act, 1971 [R.S.O. 1980, c. 484] and afford the parties the opportunity to be present and be represented, if they wish, by counsel. But a party who has adequate notice of the hearing does not have right to an adjournment and is not entitled to insist on one for his convenience or the convenience of his representative. It is for the Board to determine whether to adjourn on the basis of the obvious desirability of speedy and expeditious proceedings in labour relations matters, the background of the particular case, the issues involved, the reason for the request and other like factors.
Once a hearing has been fixed, the Board is reluctant to adjourn the matter (in the absence of consent) to accommodate a party's convenience or counsel's calendar. Nor prior to the commencement of a hearing has the Board been inclined to give much weight to the submission that (for various reasons) a particular solicitor is the only one uniquely qualified or available to handle a client's case. Having considered the applicants' request for an adjournment, and the stated reasons therefor, the Board is not persuaded that the request should be granted nor is the Board persuaded that a telephone conference should be held prior to the hearing. Such request may, of course, be renewed at the commencement of the hearing on March 28, 2000, at which time the applicant will have an opportunity to respond, and the hearing panel may make such order, on terms or otherwise, as it considers appropriate in the circumstances then before it.
This panel of the Board is not seized with this matter.
"John Morgan Lewis"
for the Board