Ontario Labour Relations Board
Parties
0662-00-U Mark Salembier, Applicant v. United Food and Commercial Workers International Union, Local 351 and The Westin, Ottawa, Responding Parties.
BEFORE: Russell Goodfellow, Vice-Chair.
DECISION OF THE BOARD; August 25, 2000
Decision
1This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) alleging a breach of section 74.
2The responding party trade union and the intervenor employer have asked the Board to dismiss the application for delay. The applicant, through its solicitor, has filed a reply to these requests. For the purposes of this decision the Board has drawn the essential “facts” from the applicant’s materials.
3The applicant’s employment was terminated by letter dated November 27, 1997 and a grievance was filed on that day or on the following day. From on or about that date until March 1998 the applicant and a union representative were in contact about the grievance. However, no further contact was initiated by the union thereafter. In the beginning of April 1998 a senior union official did respond to telephone calls from the applicant’s brother who was inquiring about the status of the grievance. The senior official advised the applicant’s brother that the lack of communication from the union representative was unacceptable and that it would be dealt with. However, neither the applicant nor his brother heard anything further from the union representative until the end of August 1998 when the applicant’s brother renewed his efforts at contact. Once again the senior official advised the applicant’s brother that the union representative would contact him. Once again this did not occur. The applicant’s brother then placed three further telephone calls to the senior official in September and October of 1998 but none of those calls were returned. In November 1998 the applicant’s brother wrote to the senior official, advising him that unless he received “a detailed account” as to what actions the union had taken on the applicant’s behalf the applicant would institute a “duty of fair representation complaint” against the union. There was no reply to this letter.
4The applicant pleads that he retained counsel in November 1998 “to pursue recovery in these proceedings”. However, no such proceedings were commenced. In October 1999 (i.e. eleven months later), allegedly after repeated inquiries of counsel as to the status of the matter, the applicant retained new counsel. The applicant’s new counsel then telephoned the union but the call was not returned. Thereafter, no further contact was made by or on behalf of the applicant until March 2000 when the applicant’s new counsel wrote to the union officials requesting specific information as to the status of the grievance. Telephone messages were then exchanged between the applicant’s new counsel and the union representative but there were no conversations. On May 30, 2000, after counsel had been advised by the senior official that he was no longer with the union, the applicant filed this application.
5The upshot of all of this is that the applicant allowed approximately two and one half years to pass between the date of his discharge and the filing of this application. More particularly, almost one year elapsed between the date that the applicant’s brother indicated that counsel would be retained to “institute a duty of fair representation complaint” and any further communication with the union. Then, when that communication came, it appears to have been nothing more than a telephone message from the applicant’s solicitor. That telephone message was then followed by a further four or five months of inactivity before a letter was written. In total, therefore, approximately sixteen months elapsed between the time that the applicant’s brother indicated that a complaint would be made and the taking of any significant steps in that direction.
6In assessing requests for dismissal on the basis of delay the Board starts from the proposition that a party with a legitimate complaint has a right to be heard. If statutory rights are to have meaning, they must be able to be enforced. Balanced against those considerations, however, is the oft-cited importance of expedition in labour relations matters. This is nowhere more fundamental than when dealing with the filing of complaints. Although the statute does not prescribe time limits for the filing of applications, the Board has developed a doctrine akin to laches. The leading case is the Corporation of the City of Mississauga, [1982] OLRB Rep. March 420, where the current Chair of the Board stated:
- … [t]he Board has recognized that some latitude most be given to parties who are unaware of their statutory rights or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there most be some limit, and in my view unless the circumstances are exceptional or there are overriding public policy considerations, that limit should be measured in months rather than years.
7The Board is cognizant of the need to ensure that a party does not benefit from “stonewalling” a prospective complainant in the hope that he or she will go away – an allegation, it should be noted, that the union strenuously disputes in this case (along with many of the facts set out above and any suggestion of misconduct). However, that concern is less significant when the prospective complainant appears to have been fully aware of his statutory rights and is able to offer no satisfactory explanation for having failed to exercise them in a timely way. In this case, it is clear that at least since November 1998 the applicant’s brother and, presumably, the applicant were completely aware of the applicant’s statutory rights and of the need to initiate proceedings to exercise them. However, despite the initial threat of a complaint (itself levelled after several months of inactivity and almost one year after the date of the applicant’s discharge) approximately sixteen months passed before anything noteworthy happened. The applicant attributed the bulk of this delay to his first solicitor’s lack of “familiarity” with this area of the law and a consequent failure on the part of the solicitor to act. Even assuming this statement to be true (i.e. that the applicant “retained” an Ontario solicitor who was unable to file a complaint and, despite repeated inquiries, did nothing for almost a year), it does not explain the complete absence of any other form of contact with the union; nor does it explain why the applicant failed to take steps to rectify the problem sooner. Throughout this period and, perhaps, until the date of the new counsel’s letter of March 2000, neither the union nor the employer would have had any reason to believe that this was a live issue.
8The Board’s case law is clear that a prospective section 74 complainant – especially one armed with the information displayed by the applicant’s brother about the nature of the process – will not be allowed to hide behind the alleged shortcomings of counsel. The applicant remains responsible for the exercise of his statutory rights and for the bringing of a timely complaint. He cannot allow 16 months to pass with no meaningful contact being made with the union. The prejudice that arises in such circumstances is well documented in the Board’s case law and need not be recounted here. If the applicant has a remedy for this unhappy state of affairs, it lies elsewhere – not with the Board.
9Accordingly, the Board exercises its discretion to decline to inquire into this matter. The application is dismissed.
“Russell Goodfellow”
for the Board