Ontario Labour Relations Board
2171-00-U Scott Chalmers, Applicant v. Canadian Union of Public Employees Local 139, Responding Party.
BEFORE: David A. McKee, Vice-Chair.
DECISION OF THE BOARD; December 13, 2000
This is an application under section 96 of the Labour Relations Act, 1995, S.O. 1995 ch.1 (the "Act") in which the applicant alleges that his bargaining agent has violated the duty of fair representation set out in section 74 of the Act. The responding party Canadian Union of Public Employees Local 139 has asked the Board to dismiss this application without a consultation and without a hearing on two bases: first, that the application does not make out a prima facie case of a violation of the Act, and second, that the application should be dismissed on the basis of delay.
The Board refuses to dismiss the application on the basis of a failure to plead a prima facie case. In determining a motion under Rule 46, the Board must assume for the purposes of such a motion that all of the facts in the application are true and provable. There are obviously major and significant differences of fact between the parties, but the Board will not address them at this stage. Looking at the applicant’s pleadings alone, there are sufficient facts pleaded to make out a prima facie case. The Board will not dismiss the application on that basis.
However, the Board is concerned about the length of time from the applicant’s discharge to the date on which this application has been filed. The Board’s concern about delay is set out in the following oft-cited passage from the City of Mississauga, [1982] OLRB Rep. Mar. 420:
It is by now almost a truism that time is of the essence in labour relations 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 crystallized, 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 satisfactorily 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 mechanical 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 liability 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 rights 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.
On its face, the discharge of the applicant occurred two years before the application was filed. There are obviously some facts pleaded which would explain why the applicant did not pursue a complaint at that time. However, the period of time is long enough, and the facts pleaded are sufficiently unparticularized to cause the Board some concern. The applicant is directed to file with the Board and deliver to the other parties a statement of why he filed the application on the date that he did. Specifically, the Board expects to receive from the applicant particulars of the six conversations the applicant alleges he had with Mr. Shank (and the dates or approximate dates of such conversations), and an explanation of why he did not file the application shortly after May 5, 2000 when he received Mr. Shank’s last information. Any other facts explaining the length of time between the discharge and the filing of this complaint should be included in these submissions.
The applicant’s submissions are to be delivered and filed on or before January 9, 2001. The responding parties are directed to deliver and to file their submissions in response, if any, on or before January 23, 2001. The applicant may make final submissions on or before January 30, 2001. The Board will consider this second preliminary issue on the basis of these submissions.
I remain seized of this application for the purposes of determining this preliminary issue only.
“David A. McKee”
for the Board