Ontario Labour Relations Board
1467-99-U Troy Campbell, Applicant v. National Automobile, Aerospace, Transportation & General Workers Union of Canada (CAW-Canada) and its Local 204, Responding Party v. Jutras Division of Meridian Operations Inc., Intervenor.
BEFORE: Anthony Brown, Vice-Chair.
APPEARANCES: Ron Palleschi for the applicant; Mike Reuter, John Ali and Elmo Rosales for the responding party; Daniel L. Leone, Wanda Kahale and Brent Bonner for the intervenor.
DECISION OF THE BOARD; September 18, 2000
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 (the "Act") alleging violation of section 74.
2The responding party and intervenor assert in their submissions that the application should be dismissed without a consultation on the ground of undue delay and for failure to make out a prima facie case. By decision dated June 26, 2000, the Board indicated that it would not dispose of these issues without a consultation and determined that the parties could raise the issue of delay at the outset of the consultation.
3A consultation was held on August 11, 2000. At the outset, the responding party and intervenor made preliminary submissions that the application should be dismissed on the ground of delay.
4Counsel for the intervenor argued that the delay of 42 months from the termination of the applicant’s employment to the date of application is excessive and is inherently prejudicial to the responding party and intervenor because one would expect memories of witnesses to fade over that period.
5Counsel for the applicant stated that, although the Board’s policy in respect of delay establishes a “rule of thumb” limit of one year, the Board can permit a longer period in which to file an application under section 74. Counsel stated that when the applicant was terminated in December, 1995, he went to the Board’s offices and was told that he had to consult his union about his termination. He consulted the responding party and was allegedly told that he was out of time to file a grievance. During 1996, the applicant suffered a period of emotional trauma. He was having marital difficulties in 1996 and 1997, and spent some time in jail in 1996. He was under treatment for depression. In 1997, the applicant enrolled in school. By letter dated December 11,1997, John Ali, President CAW Local 124, wrote to the applicant to summarize what the union had done for the applicant to that point in respect of his discharge. The letter informed the applicant why the union could not proceed with his grievance, namely that it was not filed within five days of the discharge. The applicant states that he is still taking prescribed anti-depression medication but that he was not hospitalized for depression.
6The intervenor argues that if the applicant was able to go to school in 1997 and to file a complaint with the Human Rights Commission (ultimately denied), he had the opportunity to file an application with the Board. The intervenor referred the Board to Peggy Joe Gasiorek [1990] OLRB Rep. December 1272, Robert Ross [1994] O.L.R.D. No. 2916 and Canadian Auto Workers Union, Local 707 [1999] O.L.R.D. No. 3103
Decision
7At the consultation, the Board issued an oral ruling dismissing the application on the ground of delay. These are the reasons for the Board’s decision.
8Under section 96 of the Act, the Board possesses a discretionary power to determine whether it is appropriate to inquire into an application, and, in particular, whether it should decline to hold a hearing because of undue delay in bringing the matter before the Board. The Board has stated in the past on numerous occasions that the time for commencing an application alleging contravention of section 74 should be measured in months, rather than years. (See City of Mississauga [1982] OLRB Rep. Mar. 420 and Canadian Auto Workers Union Local 707 at paragraph 9). However, as the Board stated in Robert Ross (supra), at paragraph 15, “there is no tariff in this respect, and the Board will consider the circumstances of each case to determine whether the delay is undue. Thus, in many cases, a delay of considerably longer than one year will not cause the Board to exercise its discretion to dismiss the application, provided that there are sound reasons for the delay and that the interests of the other parties are not disproportionately harmed by the delay.”
9The Board is not satisfied that the applicant has a reasonable explanation for the very long delay in filing the instant application. I shall recap the relevant events as follows. The applicant was terminated on December 4, 1995. According to the intervenor, the applicant made his first “appeal” of his termination on February 21, 1996, which the intervenor denied. The applicant was informed by his union in December, 1997 that it had done all it could for him. The applicant filed a Human Rights complaint on February 19, 1998, in respect of his termination. The human rights complaint was denied on June 18, 1998. On August 9, 1999, the applicant filed his section 74 complaint, roughly three and a half years after his termination.
10The Board recognizes that, during some of the delay period, the applicant’s ability to file a complaint was impeded by his marital difficulties, depression and time in jail. (The Board was not informed how many months the applicant spent in jail.) However, in 1997, the applicant was able to attend school. He was able to file a complaint with the Human Rights Commission in 1998. The applicant has been unable to show the Board that his medical depression or other personal circumstances were so debilitating or incapacitating that he was unable to take the necessary steps to file his section 74 application long before August, 1999. There has been an extraordinary period of delay. I am satisfied that it would be unreasonable to require the responding party to respond on the merits when the key events transpired in 1995 and early 1996.
11For the reasons stated above, the Board dismissed the application at the consultation.
“Anthony Brown”
for the Board