1905-99-U International Union of Bricklayers and Allied Craftsmen, Local 7 and Dan Plunkett, Applicants v. Brick and Allied Craft Union of Canada, Jerry Coelho, Tom Oldham, Kerry Wilson, John Haggis and Luigi Scodellaro, Responding Parties.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; October 18, 2000
Counsel for the responding parties has written to the Board requesting an explanation of the scheduling of this application. Generally, inquiries about scheduling are addressed, on a more informal level, to the Registrar, who is the person who does the actual scheduling. However, since this application is one of a number of cases involving the same parties, the Board will endeavour to explain to counsel the sequence of events.
On November 24, 1999 the Board issued a decision in Board File Nos. 1904-99-U and 2784-98-R. In that decision the Board set out the issues which would next be dealt with in those files. The Board also had before it a number of other applications dealing with similar or related issues arising out of the same facts as the ones underlying Board File Nos. 1904-99-U and 2784‑98-R. As the Board said in a decision of November 25, 1999 in those two files:
There are many files before this Board in which some aspect of this dispute arises. The one issue which underlies, or is an essential component of these applications is the status of the BACU. Some files approach the issue as the central one to the application. Other files appear to be applications made where the facts giving rise to the application appear to be little more than a platform on which to litigate the issue. As well, the status issue arises in certification applications, grievances and jurisdictional disputes which are not directly related to this dispute at all. Extensive efforts by officers and Vice-Chairs of the Board and by others outside the Board have failed to assist the parties in resolving the dispute. It is apparent at this stage, at least, that the matter cannot be resolved short of litigation.
In this application, as well as a number of other applications, the Board examined the files to determine the most efficient use of the time and resources of the Board and the parties. In this application, as in a number of others at the same time, the Board issued the following decision:
For the reasons set out in a decision in Board Files 2784-99-R and 1904‑99-U dated November 25, 1999, this application is adjourned sine die. It is expected that the decision in those applications will determine at least one of the fundamental issues in this application, and one which would need to be determined before this application could be disposed of in any event. I will remain seized of this application for the purposes of scheduling only, following the conclusion of the “status” issue in Board Files 2784-99-R and 1904-99-U or any (at the moment unanticipated) request that the Board do something prior to that date.
This was not a decision made at the request of any of the parties. It was made on the Board’s own motion as a way of maximizing the efficiency of the Board’s time and resources and those of the parties. Normally a party which files an application will expect that the Board will process it in the normal course. When the Board determines not to do so, the applicant is entitled to an explanation as to the reasons for doing so.
In fact, the applicants in another file that was adjourned in a manner similar to this one requested that the other application proceed notwithstanding the Board’s decision. The Board in fact did schedule a hearing in Board File No. 1715-99-U. No such request was received in this file and so the matter remained adjourned on the basis set out in the decision.
The Board released its decision in Board File Nos. 2784-98-R and 1904-99-U on September 15, 2000. That decision resolved the issues (or most of them) set out in the November 24, 1999 decision. This application, along with a number of other applications which had been adjourned on the same basis, was put before the same panel of the Board which had adjourned them in the first place, in accordance with the last sentence of that decision. This was done because the Board employs a “tickler” system, similar to that used in any law office to “bring forward” a file that the Board has decided not to act on until the occurrence of a certain event.
The Board did this because it was the Board’s own decision not to proceed with the application in the normal course. When the parties themselves have agreed to adjourn a proceeding the Board generally waits for them to ask the Board to reschedule the matter before doing anything. That is because the basis of the adjournment was the decision of the parties. The Board leaves it up to them to decide what is appropriate in terms of how and whether to advance the claims set out in an application. It involves no time and very few resources to leave a file sitting on a shelf. On other occasions, the Board will specifically ask for the submissions of the parties where it is not clear whether and how to proceed. In the September 15, 2000 decision, for instance, the Board directed the parties to advise the Registrar how they wished to proceed, although the Board determined that the two files would proceed separately. Counsel for the applicant in Board File No. 2784-98-R requested that the matter be relisted. The application has been relisted by the Registrar for hearing on November 9, 2000. No such request was received in respect of Board File No. 1904-99-U, and it has not been relisted.
In this application, the September 15, 2000 decision had resolved the issue which was the basis of the Board’s original decision to depart from its normal practice. It was therefore appropriate to review the file at that time. There was no reason at that point to depart from the Board’s normal practice to schedule matters in the normal course. No party had written to the Board suggesting that any other course of action was appropriate. The file was returned to the Registrar with instructions to list the matter for hearing in whatever manner he saw fit. That is the Registrar’s job. This panel was not and is not seized of this application. If counsel has any questions about the scheduling of this matter, such inquiries should be directed to the Registrar, who will no doubt be of assistance to counsel, as is his invariable practice.
Should any party have any other views on the scheduling of this application, they should feel free to address them to the Board. If the parties reach an agreement with respect to
scheduling, it is likely that the Board will accommodate them if possible. Otherwise, this application will proceed on the dates scheduled by the Registrar.
“David A. McKee”
for the Board