4017-98-U Susan Bisson, Deborah Nephin, Mary Drewitt, Elizabeth Ann Miller, and Galea Jean Lunn, Applicants v. Service Employees International Union, Local 220, Responding Party v. Kettle Creek Gardens, Intervenor.
BEFORE: Gail Misra, Vice-Chair
DECISION OF THE BOARD; April 11, 2000
1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (the “Act”), claiming breaches of sections 74 and 76 of the Act.
2By a decision dated March 27, 2000 the applicants were asked to file submissions explaining why this application had been filed in an untimely manner. The applicants made their submission to the Board by a letter dated March 31, 2000, which was received by the Board on April 10, 2000. They claim that it took so long to file a complaint because they were pursuing other avenues.
3The responding party (the “union”) has requested that the application be dismissed for want of a prima facie case, and because the allegations made are untimely having been made four years after they first arose. This decision addresses these requests.
4The application addresses concerns that arose between March 1995 and February 1998. This application was not filed until February 25, 1999, more than one year after the last allegation, and four years after the first allegation. The application alleges that between March 1995 and February 1998 the applicants requested that the union file 13, largely unspecified, grievances on their behalf but the union failed to do so. Further, it is alleged that in 1996 the union representative assigned to this bargaining unit advised Ms. Lunn that the union would not spend any further money on the Kettle Creek Gardens bargaining unit. There are many allegations about the applicants’ dissatisfaction with their union representative, about their complaints to the President of the Local, and their umbrage at the comments of the union’s solicitor and the Director of the Local.
5It is noteworthy that the application claims a number of remedies that are not available to the applicants at the Board, even if the Board was to find in the applicants’ favour. In particular, the applicants are seeking compensation for all financial losses sustained as a result of the alleged failure of the union to represent them, interest on the damages, and costs of the application on a solicitor and client basis.
6Pursuant to section 96(4) of the Act the Board has the discretion to decide not to inquire into any particular application. It is also well established that the Board will not generally inquire into an application that is brought after a considerable period of time has elapsed since the events complained of. In The Corporation of the City of Mississauga, [1982] OLRB Rep. Mar. 420, the Board made the following observations regarding delay:
It is by now almost a truism that time is of the essence in labour relation matters. It is universally recognized that the speedy resolution of outstanding disputes is of real importance in maintaining an amicable labour-management relationship. In this context, it is difficult to accept that the Legislature ever envisaged that an unfair labour practice, once chrystallized, [sic] could exist indefinitely in a state of suspended animation and be revived to become a basis for litigation years later. A collective bargaining relationship is an ongoing one, and all of the parties to it – including the employees – are entitled to expect that claims which are not asserted within a reasonable time, or involve matters which have, to all outward appearances, been statisfactorily [sic] settled, will not reemerge later. That expectation is a reasonable one from both a common sense and industrial relations perspective. It is precisely this concern which prompts parties to negotiate time limits for the filing of grievances (as the union and the employer in this case have done) and arbitrators to construct a principle analogous to the doctrine of laches to prevent prosecution of untimely claims. (See Re C.G.E. 3 L.A.C. 980 (Laskin); and Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada Limited [1966] 18 L.A.C. 51 (Arthurs)).
In recognition of the fact that it is dealing with statutory rights, the Board has not, heretofore, adopted any rigid practice with respect to the matter of delay – holding, in most cases, that it will simply take this matter into account in determining the remedy if a statutory violation is established. However, whatever the merits of this approach, the Board must also keep in mind the potentially corrosive effect which litigation can have upon the parties’ current collective bargaining relationship – quite apart from the outcome. Adversarial relationships are pervasive enough in our industrial relations system without the resurrection of ghosts from the past. In the Board’s view, the orderly conduct of an ongoing collective bargaining relationship and the necessity of according a respondent a fair hearing both require that unions, employers and employees recognize a principle of repose with respect to claims that have not been asserted in a timely fashion. If such claims are not launched within a reasonable time, the Board may exercise its discretion pursuant to section 89 and decline to entertain them.
A perusal of the Board cases reveals that there has not been a machanical [sic] response to the problems arising from delay. In each case, the Board has considered such factors as: The length of the delay and the reasons for it; when the complainant first became aware of the alleged statutory violation; the nature of the remedy claimed and whether it involves retrospective financial libility [sic] or could impact upon the pattern of relationships which has developed since the alleged contravention; and whether the claim is of such nature that fading recollection, the unavailability of witnesses, the deterioration of evidence, or the disposal of records, would hamper a fair hearing of the issues in dispute. Moreover, the Board has recognized that some latitude must be given to parties who are unaware of their statutory right or, who, through inexperience take some time to properly focus their concerns and file a complaint. But there must 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.
7In cases of extreme delay the Board is prepared to presume that the other parties to the application have been prejudiced by the passage of time (see John Kohut, [1991] OLRB Rep. Dec. 1367). In deciding whether an application should be dismissed on the ground of delay, the Board will consider the length of the delay, the explanation for the delay, the relief sought, and the relative prejudice to the parties should the application be permitted to proceed, or be dismissed. The longer the delay and the greater the prejudice to the parties, the more persuasive will need to be the explanation for the delay.
8As has been noted above, the allegations in this application span a period of four years, with the last allegation arising more than one year before the complaint was made to the Board. Without going into the specifics of that most recent allegation of February 1998, the Board notes that it is one which would have caused the Board the least concern as the bargaining unit members, including the applicants, would have had the option of voting down the proposed collective agreement. Given the breadth of this complaint, the delay in bringing the application is considerable, and in the case of some of the allegations, is extreme.
9The explanation proffered by the applicants that they were trying other avenues is unsatisfactory. The issues they have raised with the Board are labour related matters, so it is unclear why they went to the Ombudsman’s office, to their Member of Parliament, or to the Ministry of Health. In any event, it appears that while the applicants were very active in their pursuit of their complaints, they failed to file a timely application with the Labour Relations Board. Choosing the wrong venues repeatedly is not a persuasive reason for the Board to dismiss the delay problem this application faces.
10In this case both the union and the employer will be severely prejudiced by the applicants’ delay in raising the complained of issues at this juncture. One aspect of the complaint is that the applicants are claiming that the union failed to file 13 grievances that the applicants wanted filed years ago. If the Board found that the union had breached its duty of fair representation and was to award any remedy, it would be that the grievances be filed, that the time limits be waived, and that those grievances be dealt with in the normal course. However, the prejudice to the workplace parties of such a remedy is obvious and substantial as they have no idea what the applicants are alleging took place years ago, memories will have faded, individuals involved and relevant documents may no longer be available, and there may be financial consequences flowing from the grievances.
11Having considered all of the circumstances of this case the Board has determined that the length of time that has passed significantly prejudices the union and the intervenor employer, and that there is no satisfactory explanation given by the applicants for the passage of time. In the exercise of the Board’s discretion pursuant to section 96 of the Act the Board has determined not to inquire further into this application. The application is therefore dismissed.
“Gail Misra”
for the Board