2448-99-U Shirley Magnus, Applicant v. Ontario Nurses’ Association, Local 96, Responding Party v. St. Michael’s Hospital, Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD; February 22, 2000
This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74. The applicant alleges that the responding party acted in an “arbitrary, discriminatory and bad faith manner” in its representation of the applicant in arbitration proceedings. The applicant also alleges that the responding party violated section 74 by refusing to seek judicial review of an arbitrator’s award.
Section 74 states:
“74. 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 responding party (also referred to as “the union”) submits that the Board should exercise its discretion not to hear this application because of undue delay in filing the application. The responding party argues that it is prejudiced by the delay because some of the key events in this matter occurred in late 1992, 1993 and 1994. It submits that its ability to respond is diminished because “memories grow dim and notes are not necessarily at hand.” It states that some union officials that had dealings with the applicant are no longer employed by the union and some officials are now in different positions.
The material facts are straightforward, at least in terms of the timing of events. The union represented the applicant in no less than four arbitration hearings between December, 1992 and February, 1997. The most recent arbitration award, upholding the applicant’s termination from her employment at St. Michael’s Hospital, was issued on February 24, 1997. In April, 1997, the applicant requested that the union seek judicial review of the arbitrator’s decision, and the union informed her that it would consider her request. At this point, the applicant had retained her own legal counsel, Mr. Peter Clyne. On November 12, 1997, the union wrote to the applicant and informed her that “there are no further steps that it [the union] can take on your behalf pursuant to Mr. Thorne’s arbitration award of February 24, 1997.”
On February 24, 1998, several officials and representatives of the union met with the applicant to discuss her concerns about the union’s representation of her interests. At this meeting, the applicant was told that the union would not be taking further action and was informed about her recourse under section 74 of the Act. By letter dated June 2, 1998, the responding party again informed the applicant that it would take no further action on her behalf.
The applicant’s submissions are notable for their brevity. They are mostly a collection of bald assertions unsupported by details of material facts. The applicant claims that the union violated section 74 by misleading both her and the arbitrator about the nature of the amalgamation of St. Michael’s hospital with other hospitals; by failing or refusing to enforce the applicant’s right to be reinstated or transferred to a new position in the hospital’s new psychiatric facility; by compromising the applicant’s rights; by orchestrating the arbitration hearing with the employer so as to ensure that the applicant would not be reinstated; by concealing the fact that the work in the unit where the applicant was to work “had not changed at all”; by refusing to seek judicial review of the arbitration decision and by never considering the propriety of a judicial review application. The applicant seeks a Board order reinstating her with full compensation. In her reply to the responding party’s submissions, she does not explain her delay in filing the application, nor does she refute the majority of the union’s assertions of fact.
The Board’s decision in National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada) and National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW-Canada), Local 1459 (Board File No. 0221-97-U unreported decision dated August 7, 1997) is one of many decisions setting out the basis used by the Board in considering whether or not an application should be dismissed for undue delay. The Board stated at paragraphs 12 to 14:
“12. Excessive unexplained delay in filing or proceeding with an application is one basis upon which the Board may decline to inquire into an application in the exercise of its discretion under section 96 (the Ontario Divisional Court has confirmed the Board's jurisdiction in that respect in Re. Dhanota and UAW Local 1285, (1983) 42 OR (2d) 72, an application for judicial review of the Board's decision in Sheller‑Globe of Canada Limited, [1992] OLRB Rep. Jan. 113). It has long been accepted that delay is inimical to labour relations. To put it in another way, labour relations delayed are labour relations defeated and denied (Journal Publishing Co. of Ottawa Ltd., [1977] 1 ACWS 817 (Ont. Court of Appeal)), and delay in labour relations matters often works unfairness and hardship (Re. United Headwear and Biltmore ‑ Stetson (Canada) Inc., 1983 CanLII 1852 (ON HCJ), 41 OR (2d) 287; and see also Dayco (Canada) Ltd. v. National Automobile, Aerospace and Agricultural Implement Workers Unions of Canada (CAW‑Canada) et al., 1993 CanLII 144 (SCC), [1993] 2 SCR 230 (Supreme Court of Canada)). Whenever the resolution of a labour relations dispute is delayed, some prejudice is likely to exist. The Board and the courts have long recognized that the speedy resolution of a labour relations dispute is both in the public interest and of importance to those directly involved. Consequently, there is an expectation that allegations that the Labour Relations Act or related legislation has been contravened will be made and pursued within a reasonable time, which time is generally measured in months rather in years, so that the allegations can be dealt with in a timely manner which is fair to all concerned.
However, the fact that delays in resolving labour relations disputes can create tension and interfere in the proper functioning of a collective bargaining relationship, and that delay is presumptively prejudicial, is not necessary determinative of a motion for dismissal because of delay. The rights of affected individuals, such as section 74 applicants, must also be considered. Accordingly, the Board's response to motions seeking dismissal of applications under section 96 of the Act on the basis of delay is not a mechanical one. It is neither possible nor appropriate to draw up an exhaustive list of factors which the Board will consider when dealing with the motion to dismiss on the basis of delay. Each situation must be examined and determined according to the merits of a particular case, although the onus is on an applicant to explain what appears to be inordinate delay in making or pursuing a particular complaint (see The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420; Sheller‑Globe of Canada Limited, supra, Central Stampings Limited, [1984] OLRB Rep. Feb. 215; George Hinkson, [1987] OLRB Rep. Oct. 1246; John Kohut, [1991] OLRB. Dec. 1367).
But speed is not the only objective, and justice and fairness require that someone who may be aggrieved have a reasonable opportunity to recognize this, to formulate a position and plan of action, seek legal advice or representation, and to actually plead and file a complaint. While there is no fixed rule, in cases which involve a loss of employment (particularly in an economy in which jobs are hard to come by), the rule of thumb developed by the Board is that it will generally not dismiss a complaint which makes out a prima facie case on the basis of delay which is less than one year long, except where a responding party demonstrates actual prejudice and there is no satisfactory explanation for the delay. As a general matter, where the delay asserted is less than one year, the onus is on the responding party to demonstrate actual prejudice (or perhaps some other good reason) sufficient to justify dismissing a complaint without a hearing on its merits. But where the delay is more than one year, the onus is on the applicant to provide a satisfactory explanation for it. At that point it becomes incumbent upon an applicant to provide a good reason for the Board to exercise its discretion in favour of entertaining the application or complaint.”
Decision
The Board has decided that there has been undue delay by the applicant in filing this application.
This application was filed on November 16, 1999, approximately two years and eight months after the arbitration award upholding her termination (February 24, 1997). The filing date is two years after the union informed the applicant that it would not be seeking judicial review (November 12, 1997). At this point, the applicant had a lawyer and was therefore not without the means of discovering her legal rights. The application was filed approximately one year and eight months after the union met with the applicant (on February 24, 1998) to discuss its representation of her, at which time the union told her that it would be taking no further action and informed her about section 74 of the Act. The filing date is approximately one and a half years after the responding party reiterated to the applicant that it would not be taking further action on her behalf, on June 2, 1998.
Even the most generous interpretation of these facts points to a delay of approximately one and a half years, well beyond the normal delay period permitted by the Board. As noted above, the applicant has not provided any explanation for this delay. She appears to have continued to press the union to seek judicial review of the arbitrator’s award, long after having been informed that the union considered the matter closed. She also appears to be under the impression that the union has a legal obligation to seek judicial review, which in these circumstances it clearly does not.
It is clear from the union’s detailed submissions that a great number of actions have been taken by the union on behalf of the applicant since late 1992, including four arbitration hearings. Although the union filed a comprehensive chronology of events since late 1992, often supported by letters and other documents filed with the Board, it would likely be seriously prejudiced if it were required, in the course of a consultation or hearing before the Board, to provide viva voce evidence about events that transpired between late 1992 and 1994, and since then. Therefore, the Board is of the view that there has been delay which is seriously prejudicial toward the union.
The application is dismissed.
“Anthony Brown”
for the Board