0172-01-M International Brotherhood of Electrical Workers, Local 586, Applicant v. K2 Contracting Inc., Kantec Corp. Inc., Kantec Builders Inc., Cranham Holdings Limited, Boldt Electrical Co. 1991 Ltd., James Davies, Carling Electric Inc., Responding Parties.
BEFORE: R. O. MacDowell, Chair.
DECISION OF THE CHAIR: August 23, 2001
I
- This is an application under section 115.1 of the Labour Relations Act, 1995 (as amended). Section 115.1 reads as follows:
115.1 (1) This section applies if the Board has commenced a hearing in a proceeding, six months or more have passed since the last day of hearing and a decision, order, direction, declaration or ruling of the Board has not been made.
(2) On the application of a party in the proceeding, the chair may terminate the proceeding.
(3) If a proceeding is terminated according to subsection (2), the chair shall re-institute the proceeding upon such terms and conditions as the chair considers appropriate, subject to subsection (4).
(4) Despite subsections 110(9), (14) and (14.1), the re-instituted proceeding shall be heard by a member or members of the Board, as the case may be, who are different than those who heard the proceeding before its re-institution.
For completeness, I should also record sections 114(1) and 116 which read this way:
(1) The Board has exclusive jurisdiction to exercise the powers conferred upon it by or under this Act and to determine all questions of fact or law that arise in any matter before it, and the action or decision of the Board thereon is final and conclusive for all purposes, but nevertheless the Board may at any time, if it considers it advisable to do so, reconsider any decision, order, direction, declaration or ruling made by it and vary or revoke any such decision, order, direction, declaration or ruling.
No decision, order, direction, declaration or ruling of the Board shall be questioned or reviewed in any court, and no order shall be made or process entered, or proceedings taken in any court, whether by way of injunction, declaratory judgment, certiorari, mandamus, prohibition, quo warranto, or otherwise, to question, review, prohibit or restrain the Board or any of its proceedings.
As will be seen, section 115.1 gives the Chair of the Board a discretion to terminate an outstanding proceeding and "start the case over again" with a new panel, where the original panel of the Board has not issued a decision within six months of the last day of hearing. Section 115.1 underlines the importance of timely adjudication, and puts adjudicators on notice that they should render a decision as soon as practicable after the case is completed. It also gives the Chair of the Board some remedial tools which, absent statutory authority, might not be available once a particular panel of the Board has become "seized" with a case. And unlike many Board powers, this one is given specifically to "the Chair", rather than to "the Board", as an institution.
However, I do not think that it is useful to explore the potential ambit of the Chair's discretion, or to speculate upon what factors might be relevant to the exercise of that discretion. It suffices to say that section 115.1 gives the Chair a rather extraordinary power, which should only be exercised in very clear cases: where a decision has been outstanding for more than six months and is unlikely to be forthcoming within some reasonable period of time after the request under section 115.1 has been made. For, as is perhaps obvious: starting the case all over again with a new panel is not a very satisfactory option, and does not, in itself, resolve the parties' dispute. It merely sets in motion a further round of litigation, which will inevitably involve even further delay, as well as additional costs for the parties and the public. Accordingly, it is not a step that should be taken lightly.
II
Section 115.1 was added to the statute on December 30, 2000 - which is to say, about 8 months ago. However, there are no statutory guidelines as to how the discretion of the Chair should be exercised. Nor are there any rules or forms or established practice pertaining to section 115.1 - which is why the Registrar’s staff circulated the union's correspondence, for comments, and initially indicated that the matter would be set down for a hearing. The Chair is left to make an informed labour relations judgment, that is faithful to both the scheme of the Act and the particular context under review.
On the other hand, where an application is made to the Board, the applicant is expected to set out the facts upon which it relies to support the relief requested. The Board need not, and does not, hold a hearing in every case. But whether or not a hearing is held, the applicant is expected to set out the facts said to be relevant to the proceeding being commenced. In this regard, section 115.1 is no different from any other proceeding before the Board, in which an applicant is seeking particular remedies.
III
This particular request under section 115.1 pertains to three related applications, filed under sections 1(4), 69, 96 and 133 of the Labour Relations Act (Board Files: 0007-96-R, 0006-96-U and 0008-96-G). I need not dwell on the nature of that proceeding here. It suffices to say that in accordance with its usual practice in cases of this kind, the Board scheduled a hearing to receive the parties' evidence and representations. That hearing consumed a number of days, spread over a number of months, between July 1996 and September 1998.
There is no dispute that at the time that the request under section 115.1 was made (April 17, 2001), a decision in these files was still outstanding. The hearing panel (Vice-Chair Stamp, sitting alone) had not made a determination within six months following the completion of the hearing. Accordingly, it was open to the union to make an application under the new section 115.1.
However, on May 1, 2001, (i.e. about two weeks after the section 115.1 request was received by the Board), Vice-Chair Stamp did issue a decision, with reasons - a decision which is ostensibly "final and binding", pursuant to sections 114 and 116 of the Act (see above).
In other words, while the union's request under section 115.1 was pending, but before the Chair had made any determination with respect to that request, the panel seized with the "overdue case" issued a decision, disposing of the matters before it.
In a short endorsement dated July 10, 2001, I indicated that, in the circumstances, I saw no reason to exercise my discretion under section 115.1 to direct a new hearing by a different panel.
12 Since the decision in the "overdue case" had already issued, it was not at all clear that such decision could be vacated under section 115.1 of the Act (again see sections 114 and 116 of the Act reproduced above). However, even if the section 115.1 discretion were still available, there was nothing in the material before me to support such an extraordinary result. Nor did it seem sensible to burden the parties with a new hearing, rehashing facts and arguments that had already been put before the Board for consideration - especially where, as here, the original hearing had consumed a number of days, spread over many months, beginning in 1996.
Simply put: since the hearing panel had issued the "overdue decision" that the union was concerned about, there was no obvious reason to start the case all over again.
Nevertheless, in a decision dated July 27, 2001, I extended the union a further opportunity to set out why the Chair should order a rehearing under section 115.1, despite the release of the overdue decision - which is to say, why I should come to a different conclusion from that recorded in my endorsement of July 10. Since the union had expressed concern that it did not have sufficient opportunity to explain its position to the Chair, the union was invited to articulate whatever "policy considerations" or factual assertions or additional arguments it wished to make with respect to its section 115.1 request. Paragraphs 2 and 3 of the decision of July 27 read as follows:
A timely request for reconsideration of that decision was received by the Board on July 19, 2001. The union asserts that it had no opportunity to make representations to the Board on the merits of its application or “on the effect a subsequently rendered decision should have on the determination” of the application. The union further submits that it has had no opportunity to “raise important policy considerations” or to “adduce evidence”. And the union points out that it received a letter from the Board’s Deputy Registrar advising that “no submissions were required before the hearing”.
In view of the above, the union is directed to file complete representations in support of its application under section 115.1 of the Act. It should address the matters in paragraphs 3(iii), 3(iv) and 3(v) of its Request for Reconsideration as well as any other matter it regards as appropriate. In addition, the union is directed to set out all of the material facts and all of the evidence upon which it relies. The union’s representation should be filed with the Board and delivered to the other parties by August 10, 2001.
As of the date hereof, the Board has received some further representations from counsel for the union, including a request to extend the deadline for making submissions; and I have considered whatever representations the union has chosen to make up to the date of this decision. However, I see no reason to extend the deadline mentioned in my decision of July 27. In my view, the union has had ample opportunity to set out the foundation for its application under section 115.1; and the fact that it has requested an extension of time for making submissions, does not relieve it of the obligation to comply, as best it can, with the directions found in the decision of July 27. The request for "more time" does not operate as a "stay" until that request is responded to in some formal way. Moreover, given my own departure from the Board in early September, it is desirable to bring some "closure" to this matter.
Finally, since the discretionary power under section 115.1 is given specifically to the Chair, and the initial decision was made by the Chair, I do not see why it should not be the Chair who considers any further representations which the union chooses to make in support of its request for "reconsideration". The purpose of my decision of July 27 was to give the union the opportunity to make such submissions - hence paragraphs 2 and 3 of the decision, reproduced above. It seems to me that those paragraphs are quite clear.
I have no information respecting what Vice-Chair Stamp may have known about the union's request under section 115.1. However, I do observe that counsel has had an opportunity to make whatever factual assertions he wishes in that regard, based upon whatever assumptions he considers potentially relevant - including any assertions/assumptions in respect of the adjudicator's knowledge of the union's application under section 115.1, and the effect that such knowledge might have on the exercise of the Chair's discretion under section 115.1.
Be that as it may, I do not think that the state of the adjudicator's knowledge of a section 115.1 request, is an important element in my disposition of such section 115.1 request. In fact, I decline to speculate on what the adjudicator may have known or done (i.e. whether the adjudicator was aware of the section 115.1 request, or, as a result of the request, may have given added priority to the case in question, or took steps to get the decision out, etc.). In my view, the more important fact is that the "overdue decision" of which the adjudicator was seized did issue within a couple of weeks of the union making an application under section 115.1, and before I had made any determination under section 115.1.
Now, no doubt, the union is disappointed by the result in the case. However, in my view, that is not a reason for vacating the decision (even assuming that I had jurisdiction to do so). Nor is section 115.1 a substitute for the reconsideration power found in section 114 of the Act. And, given the release of the hearing panel's decision, there is no obvious need to recommence what would almost certainly be another multi-day hearing.
IV
I have considered the material before me, including whatever facts, or assumptions, or policy submissions counsel has chosen to make.
Assuming, without finding, that the section 115.1 discretion is still available to the Chair after the overdue decision has been issued, I see no reason to invoke section 115.1 in the circumstances of this case.
In my view, it would make no sense to start the case over again.
The decision of July 10, 2001 is therefore confirmed and the application under section 115.1 is dismissed.
“R. O. MacDowell”
Chair