Ontario Labour Relations Board
0988-99-U Chun C. Chen, Applicant v. Cinram International Inc., Responding Party.
BEFORE: Patrick Kelly, Vice-Chair.
APPEARANCES: Chun C. Chen and Warren Nelson for the applicant; Kirsten Watson and Cheryl Givelas for the responding party.
DECISION OF THE BOARD; February 8, 2000
Decision
The style of cause is hereby amended to reflect the correct name of the responding party: “Cinram International Inc.”.
This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”) alleging violations of sections 70, 72 and 77 of the Act.
For convenience, I have set out below the statutory provisions of the Act alleged by the applicant to have been violated:
No employer or employers' organization and no person acting on behalf of an employer or an employers' organization shall participate in or interfere with the formation, selection or administration of a trade union or the representation of employees by a trade union or contribute financial or other support to a trade union, but nothing in this section shall be deemed to deprive an employer of the employer's freedom to express views so long as the employer does not use coercion, intimidation, threats, promises or undue influence.
No employer, employers' organization or person acting on behalf of an employer or an employers' organization,
(a) shall refuse to employ or to continue to employ a person, or discriminate against a person in regard to employment or any term or condition of employment because the person was or is a member of a trade union or was or is exercising any other rights under this Act;
(b) shall impose any condition in a contract of employment or propose the imposition of any condition in a contract of employment that seeks to restrain an employee or a person seeking employment from becoming a member of a trade union or exercising any other rights under this Act; or
(c) shall seek by threat of dismissal, or by any other kind of threat, or by the imposition of a pecuniary or other penalty, or by any other means to compel an employee to become or refrain from becoming or to continue to be or to cease to be a member or officer or representative of a trade union or to cease to exercise any other rights under this Act.
Nothing in this Act authorizes any person to attempt at the place at which an employee works to persuade the employee during the employee's working hours to become or refrain from becoming or continuing to be a member of a trade union.
At the outset of the hearing on February 2, 2000, I indicated that in reviewing the file in this matter, I had come across a letter dated August 11, 1999 from counsel for the responding party (“Cinram”) to the Board in which a concern was raised regarding an August 9, 1999 letter authored by the applicant. Counsel’s concern was with respect to alleged disclosures in the applicant’s letter of settlement discussion between the parties prior to the hearing, which counsel suggested should not be included in the file. I indicated further to the parties that I located two copies of the applicant’s letter in the file, and without reading them, placed them in a sealed envelope, and returned the envelope to the file. Counsel for Cinram was satisfied that I should remain seized with this matter.
Counsel for Cinram then indicated that she wished to make three preliminary motions requesting the dismissal of the application on the basis of excessive delay on the part of the applicant, an alleged failure to make out a case, and an abuse of process.
Following the submissions of the parties concerning delay, I issued an oral ruling as follows:
Clearly, much of the complaint relates to events that happened, from a labour relations perspective, very long ago. The events that occurred in 1995 and 1996, a particularly long time ago, appear to relate to the section 70 and section 77 allegations. I am satisfied that the applicant has failed to provide the Board with any satisfactory reason for the excessive delay in bringing those allegations forward, and I am satisfied that there is an inevitable prejudice to Cinram to have to respond to those allegations. Therefore, I decline to inquire into the allegations of a violation of section 70 and section 77 of the Act.
With respect to the question as to whether there has also been excessive delay in pursuing the section 72 matter, which appears to relate to Mr. Chen’s cessation of employment, I wish to reserve my decision on that point.
Following the issue of the above order, I entertained the remaining motions of counsel for Cinram. I then adjourned the hearing, and indicated to the parties that I would reserve my decision on the remaining preliminary motions, and, in the event that I ruled in favour of the appicant, set the matter down for the purpose of hearing the evidence and submissions of the parties on the merits of the remaining portions of the application.
I now turn to a consideration of the issue of delay in respect of the allegation of a violation of section 72. As I noted above, the applicant appears to rely upon the facts relating to his cessation of employment, including two temporary layoffs preceding the final layoff that eventually became permanent. He attributes those layoffs to retribution on the part of Cinram for his having engaged in union activities relative to two unsuccessful organizing drives at Cinram by the United Steelworkers of America in 1995 and 1996.
The application in this matter was filed on June 30, 1999. As it turns out, the applicant also filed an application some sixteen days later under section 50 of the Occupational Health and Safety Act, R.S.O. 1990, c. 0-1 (the “OHSA”), alleging that his layoffs amounted to a reprisal by Cinram for his attempts to enforce his rights under the OHSA: Board File 1171-99-OH (the “OHSA application”) . Again, Cinram raised the same preliminary motions as have been raised in this case. The Board, differently constituted, issued a decision dated September 8, 1999, that dealt solely with the delay issue. The Board set out the facts it relied upon in dismissing the application on the basis of excessive delay - facts which are similar, if not identical, to the present case – as follows:
There are many events of considerable importance to the applicant and Cinram, but the significant ones for the purposes of this decision are as follows. The applicant was first employed September 7, 1993 by Cinram. He suffered a workplace injury which led to a claim under the Workplace Safety and Insurance Act ("WSIA") on December 8, 1994. He was laid off or discharged (depending on each party's perspective) three times. The three layoffs which the applicant alleges were retaliatory in nature were November 25, 1996, March 8, 1997, and January 7, 1998. The applicant filed a claim with the Employment Standards Branch seeking termination and severance pay on September 30, 1998, and applied to this Board for a review of that decision on December 6, 1998. That application was withdrawn pursuant to Minutes of Settlement dated March 10, 1999. The applicant also complained to the Workplace Safety and Insurance Board that his layoff constituted a failure to re-employ or to accommodate an employee as required by the WSIA. This claim was denied repeatedly by the Workplace Safety and Insurance Board, notably on March 4, 1998 and August 13, 1998. There is nothing in the application or the applicant's extensive reply which indicates any appeal was taken from any of these decisions.
This application was filed on July 16, 1999, eighteen months after the date of the final layoff/discharge and two years and eight months after the first layoff. Further, while the applicant has pursued other forms of redress against the company, he has not raised an issue of retaliation for enforcement of his rights under the Act. In other words, no responsible official of the company has been required to turn his or her mind to the issues raised in this application for that entire period. The responding party alleges it is prejudiced in various ways by the resurrection of the applicant's complaint in a new form at this date. The applicant's analogy to exhuming a corpse for the purposes of forensic pathology, or reviewing payroll records for the purposes of determining the accurate amount that should have been on a pay cheque are not apt. In both of these cases, the object of the exercise is to examine physical evidence to determine what facts may be discerned from that evidence. The issue in a section 50 application is the motive of an employer. The applicant's allegations are disputed by Cinram and therefore, if a hearing were held, it would be necessary to deduce the facts from evidence which is primarily, if not exclusively, oral testimony based on the memory of witnesses as to events stretching back for up to three years. There is an inevitable prejudice to a party which must meet this kind of allegation. Memories decay, particularly when the events were not significant or were not described in terms of the possible application of the Act until long after the events occurred. Witnesses become unavailable. Two of the four persons identified by the applicant as acting on behalf of the employer, John Ferguson and Steven Smith, are no longer employed by Cinram. I have no idea whether they are still locatable or whether they are within the province in order to secure their attendance. There may be other witnesses to events and conversations who cannot now be located or who are unable to remember anything about them at the present time.
The application in the present case relies upon substantially the same facts set out above in the OHSA application. Cinram raised exactly the same concerns raised in the OHSA application regarding the prejudice it would face as a result of delay in this case. There, as here, the applicant alleged an improper and unlawful motive on the part of Cinram, which motive manifested itself in Cinram’s layoff of the applicant on three occasions. There, as here, the application was filed 18 months after the third layoff.
As indicated, the Board dismissed the OHSA application because of the delay, but the applicant filed a reconsideration request (the “OHSA reconsideration”). In it, the applicant raised four additional points, which the same panel that considered the OHSA application dealt with as follows:
There are four matters about which further comment is necessary. First, the applicant states that, although he filed the application on July 14, 1999, he had in fact contacted the Board’s offices on May 21, 1997 and April 16, 1998. He states that he spoke to two employees at the reception desk of the Ontario Labour Relations Board. Staff of the Board do their best to be helpful to members of the public, but an informal discussion with one or more members of the Board staff (particularly those at reception) does not constitute the commencement of a proceeding. In its adjudicative role, the Board does not have before it any information from any of the staff of the Board. The Vice-Chair will base his or her decision only on information which is in possession of all parties. More importantly, the responding party will not be aware of the applicant’s plans until it actually receives the application. It is, after all, prejudice to the responding party that concerns the Board in issues of delay. The length of time between the initial contact with the Board and the filing of the application only serves to reinforce my original decision with respect to delay. The applicant knew of his remedies and chose not to pursue them for a period of two years prior to the application date.
Second, the applicant states that he had difficulty in understanding what the responding party was doing, and that he was never sure whether he was fired or to be rehired at any point in time. This “uncertainty” did not prevent him from pursuing other avenues of redress, under the Employment Standards Act and the Workplace Safety and Insurance Act and indeed from considering an application to the Ontario Labour Relations Board for the entire two and a half year period of time. The applicant states that, in some fashion not fully explained, the payment of termination pay on March 10, 1999 was the “last load to break a camel’s back”. Even assuming that to be so, the applicant still waited four months before filing this application. One would expect that if this event suddenly made clear to the applicant what the responding party’s position was, given the history of litigation and the applicant’s previous consideration of an application to this Board, one would expect the applicant to file the application almost immediately after receiving the cheque. He did not.
Third, the applicant suggests that if two of the four witnesses required by the employer are really unobtainable, events which are relevant to those two persons should be deleted from his application. However, the applicant has not pleaded the manner in which he suggests this could be done, i.e. which facts could be eliminated from his lengthy application, nor is it apparent how this could be done. There is at least some overlap in events among the four witnesses, and the responding party would be extremely prejudiced by being forced to try to reconstruct events which one of two or more persons were involved in.
Fourth, the applicant points out that the Ontario Human Rights Commission is considering a claim he filed under the Human Rights Code. From the documents he has filed, it is not apparent that the Commission has done more than seek to put together all of the documentation available in order to consider his application. However, regardless of what stage that application now stands before the Human Rights Commission, the considerations of the Ontario Human Rights Commission in administering its statute are not germane to a decision of this Board with respect to the conduct of an application under section 96 of the Act alleging a violation of section 50 of the Occupational Health & Safety Act. The Board has developed its own jurisprudence with respect to the issues raised having regard to the needs of the statutes it administers. The fact that a different tribunal considering a different kind of complaint may reach a different conclusion about the appropriate manner in which to deal with that application under a different statute, is of no weight in determining how to deal with this application.
In the present case, the applicant raised two of the four points cited above, either in the context of his pleadings or in response to the motions brought by Cinram. He claimed, as he did in the OHSA reconsideration, that he was never sure whether he was fired or to be rehired by Cinram at any point in time. He also advised the Board in the present case of his Human Rights complaint.
Having considered the pleadings and submissions in this case, as well as the reasoning in both the OHSA application (which outlines the Board’s approach to delay as articulated in The Corporation of the City of Mississauga, [1982] OLRB Rep. March 420 and the more recent unreported decision, William Holden Switzer, (August 7, 1997)) and the OHSA reconsideration cited above, the Board is of the view that the application is excessively delayed, that Cinram is prejudiced by that excessive delay, and that there is no compelling justification for the delay put forth by the applicant. Accordingly, I decline to inquire into this matter. It is therefore unnecessary to deal with the motions concerning an alleged failure to make out a case and abuse of process.
The application is dismissed.
“Patrick Kelly”
for the Board