Ontario Labour Relations Board
0152-99-U Caressant Care Nursing and Retirement Homes Limited, Applicant v. Service Employees International Union, Local 220, Responding Party.
BEFORE: M. A. Nairn, Vice-Chair, and Board Members J. A. Ronson and D. A. Patterson.
APPEARANCES: P. Straszynski and Wayne Hulme appearing on behalf of the applicant; Micheil Russell and Mark Priest appearing on behalf of the responding party.
DECISION OF THE BOARD; December 18, 2000
1This is an application brought by the employer pursuant to section 96 of the Labour Relations Act, 1995, (the “Act”) alleging a violation of sections 17 and 76 of the Act.
2By decision dated May 5, 2000 the Board (differently constituted) set this matter down for hearing of what was characterized as a preliminary jurisdictional issue. The applicant had requested an amendment to its application, seeking to add a claim for damages.
3The Board then noted that the “apparent reason for the requested amendment is a court decision, appearing to find that the Board has the power to apply common lay principles for a tort, such as defamation”. Whether the Board could grant such additional relief was described as a jurisdictional issue.
4On the day set for hearing the parties initially met with a Labour Relations Officer. Counsel advised us that the parties had engaged in discussions concerning the negotiation of the one outstanding collective agreement. Counsel then prepared an agreed statement of fact. The issue was therein described as whether the Board has “the jurisdiction to award damages in the nature of common law damages for “defamation”. That may or may not be a somewhat different formulation of the issue.
5Board proceedings were then interrupted by a fire drill requiring the evacuation of all persons in the building. It was almost 3:30 p.m. by the time the panel convened and it seemed apparent that the parties would be unable to conclude their argument within the time remaining in the hearing day.
6The panel advised the parties that the matter would not proceed that day. Should the panel become seized with the matter it would become more difficult to set further hearing dates. The panel commented that the Board is primarily concerned with the labour relations issues requiring attention between the parties and that the negotiation of the remaining collective agreement was, or ought to be, in our view, a priority for the parties.
7We also observed to counsel that this panel was of the view that the issue they sought to place before us in a preliminary way would be better addressed in the light of the full facts underlying the conduct complained of. In light of seeming confusion in the law in this area at this time, questions of what constitutes a jurisdictional issue, or if jurisdictional, whether it be exclusive, concurrent or lacking are best considered in context. We noted that while the court decision for example, describes the Board as having exclusive jurisdiction, it stays rather than dismisses the defamation action before it.
8In the result we adjourned the hearing. The parties were directed to be prepared to deal with any and all outstanding issues when this matter reconvened. The panel hearing the case will determine the appropriate method of proceeding.
9This matter is hereby referred to the Registrar to schedule four days of hearing for the purpose of hearing the parties’ evidence and representations with respect to any and all issues remaining in dispute. This panel is not seized.
“M. A. Nairn”
for the Board