Ruperto Frilles, Jr. v. Amalgamated Transit Union, Local 113
File No.: 2033-99-U Date: January 7, 2000 Ontario Labour Relations Board
Between: Ruperto Frilles, Jr., Applicant v. Amalgamated Transit Union, Local 113, Responding Party v. Toronto Transit Commission, Intervenor.
Before: Patrick Kelly, Vice-Chair.
Decision of the Board
1By decision dated October 22, 1999, the Board, differently constituted, directed the applicant in this matter to reply to the motion of the responding party to dismiss the application without a hearing or consultation for reasons of delay. The applicant complied with the Board’s direction, and, on November 5, 1999, filed written reasons explaining the three-year delay in making the application.
2The applicant explains the delay as follows. Following the issue, on September 12, 1996, of an arbitrator’s award dismissing the applicant’s grievance regarding his discharge from employment with the intervenor (the “TTC”), the applicant began to make arrangements to bring a wrongful dismissal action against the TTC. He hired a lawyer. He made several attempts to obtain legal aid funding, and was denied. He then appears to have given up on his lawyer, and hired a consultant to assist him. The purpose for hiring this consultant remains unclear, except that it would appear that during the period of the engagement of the consultant, there was no consideration of the section 74 duty of fair representation. In any event, the applicant paid the consultant a substantial retainer, with little in the way of results satisfactory to the applicant.
3In May of 1997, the applicant hired a criminal lawyer. Again the purpose for so doing remains unclear. The applicant fails to explain what, if anything the criminal lawyer did or did not do on his behalf.
4In February of 1998 the applicant approached the Workplace Safety and Insurance Board (“WSIB”), again for reasons not fully explained. For approximately a year after, the applicant appears to have done little more than wait for a result from the WSIB. He claims that in March of 1999, the WSIB denied his claim. Several months passed. He finally consulted his current counsel in this matter in July of 1999. Within two weeks of meeting counsel on July 8, 1999, a judicial review of the September 1996 arbitration award was filed with the court. Within that same period, counsel advised the applicant to file a section 74 complaint against the union. Almost three months later, the applicant filed the current application.
5In summary, the applicant’s explanation of the delay of more than three years in bringing this application appears to involve claims of ignorance of the law with respect to the duty of fair representation, as well as other excuses related to financial difficulties in connection with a wrongful dismissal suit, and the ineffectiveness of his consultant. An entire year of the delay is attributed to the applicant waiting to see what the WSIB would do with his claim.
6As the Board observed in John Craven, [1991] OLRB Rep. Mar. 420, while some latitude must be given to parties unaware of their statutory rights, in the absence of exceptional circumstances or overriding public policy considerations, excusable delay should be measured in months rather than years. Moreover, the Board has repeatedly refused to accept the omissions or mistakes of a complainant’s counsel or agent as justification for delay: see Canadian Union of General Employees, [1975] OLRB Rep. Apr. 320; Sheller-Globe of Canada Ltd., [1982] OLRB Rep. Jan. 113; and United Steelworkers of America, Local 1005, [1997] O.L.R.D. No. 2697. Accordingly, the explanations advanced by the applicant, as well as his lack of an explanation regarding his inactivity during the year-long disposition of his WSIB claim, leave the Board to conclude that he has not advanced satisfactory reasons for a three-year delay in bringing this application. Adopting the approach taken in Salvadore Ingraldi, an unreported decision of the Board dated January 21, 1998 (Board File No. 1876-97-U), I find that the applicant’s failure to discharge the onus of satisfactorily explaining a very lengthy delay in bringing the application is sufficient reason not to inquire further into this matter.
7After reviewing all the materials in this file, the Board is of the view that this matter should be dismissed for reasons of excessive delay.
8The application is dismissed.
"Patrick Kelly"
for the Board