0173-01-U Carol Belleperche, Applicant v. National Automobile, Aerospace, Transportation and General Workers Union of Canada (CAW – Canada), Responding Party v. Ford Motor Company of Canada Limited, Intervenor
BEFORE: Mary Anne McKellar, Vice-Chair
APPEARANCES: No one appearing for the applicant; Frank McAnally, Alex Keeney, Gary Boissonneault and R. R. Fields for the Responding Party
DECISION OF THE BOARD; October 9, 2001
This is an application under section 96 of the Labour Relations Act, 1995 (the Act), alleging that the responding party has contravened section 74 of the Act. The initial application indicated that the application related to the responding party’s decision to drop her grievance, and sought expedited arbitration as a remedy.
By Notice of Consultation dated July 6, 2001, this matter was scheduled for consultation at the Board’s Offices on August 28, 2001, commencing at 9:30 a.m. Paragraph 3 of the Notice of Consultation provided:
IF YOU DO NOT ATTEND THE CONSULTATION, THE BOARD MAY DECIDE THE APPLICATION WITHOUT FURTHER NOTICE TO YOU AND WITHOUT CONSIDERING ANY DOCUMENT FILED BY YOU.
The applicant sent a letter to the Board by facsimile transmission at 9:07 a.m. in which she indicated that she would “not be attending the consultation scheduled for today, August 28, 2001” for reasons that will be addressed later in this decision. She did not request that the consultation be adjourned.
Notwithstanding the applicant’s letter, in accordance with its usual practice, the Board waited until 10:00 a.m. before commencing the consultation. The applicant was not in attendance at that time, and pursuant to the responding party’s request, the Board dismissed the application.
The Board wishes to address briefly the contents of the applicant’s letter dated August 28, 2001. Before doing so, however, some background information respecting this file will be useful.
This application was filed on April 17, 2001, and relates to the intervenor’s discharge of the applicant in October, 2000, and the responding party’s representation of her thereafter.
In accordance with the Board’s usual practice, a Labour Relations Officer was assigned to this matter. By letter dated July 4, 2001, the applicant wrote to the Board with respect to an Officer’s meeting apparently convened that day and not attended by the intervenor. The applicant complained that she had not been informed that the intervenor would not be attending, and she characterized this omission as constituting apparent bias on the part of the Officer.
By letter dated July 12, 2001, the applicant again wrote to the Board, referring to a telephone conversation she had had with the Officer and taking issue with his characterization of the meeting on July 4, 2001 as voluntary. She complained of the Officer’s failure to compel the intervenor’s attendance. This letter included the following paragraphs:
Based on the behaviours of the Intervenor, Respondent, and the Labour Relations Officer, the Board after the August 28, 2001, consultation will dismiss this case. It is quite evident that I am being denied procedural fairness and do not anticipate based on what has transpired to date that I will be given fair and impartial consideration by the Board during the August 28, 2001 consultation.
I would appreciate that the Board have the decency to dismissed [sic] the case now rather than have me waste my time and money travelling to Toronto to appear before a Board that is obviously bias [sic].
By decision dated August 8, 2001, the Board (differently constituted) responded to the applicant’s letter of July 12, 2001. The following paragraphs of this decision are of particular pertinence:
The mediation process is voluntary. There is no obligation on any party to participate in an Officer’s meeting, although the majority of parties do attend. In fact, most cases are resolved at the mediation stage of our process. While it may certainly have been preferable to have the employer/intervenor participate in the mediation process, it is not required that the employer/intervenor do so.
The consultation in the matter is set for August 28, 2001 and will continue unless the Board is advised by the applicant that she intends to withdraw her application or the matter is otherwise resolved by the parties.
The consultation will take place in front of a Vice-Chair of the Board. The Vice-Chair will review the material filed prior to the consultation and conduct the consultation. The decision made by the Vice-Chair will be based solely on the review of the material filed and what occurs at the consultation. The mediation process and what occurred with the Officer will not be in front of the Vice-Chair and will not be relied in [sic], in any way, in making the decision.
The Board is very concerned about procedural fairness and will ensure that this application, and as is the case with all applications that come before the Board, is dealt with in an appropriate and fair manner.
The decision as to whether this application proceeds rests ultimately with the applicant. However, the Board was requested to respond to the letter of July 12, 2001 which is what this decision is intended to accomplish.
By letter dated August 8, 2001, the applicant purported to amend her application to allege that no grievance had been filed on her behalf and to seek the following remedies:
(a) Reinstatement with no loss of seniority or benefits;
(b) Compensation for loss [sic] wages including interests [sic]; and
(c) Any other order that the Board deems fit in the circumstances.
- The applicant filed additional submissions with the Board by letter dated August 10, 2001, in which she sought to have the Board “rule on the material before it pursuant to Rule 77 of the Board’s Rules of Procedure and section 99(1)c of the Act”. These submissions consist largely of a narrative of the applicant’s interpretation of various documents and meetings in connection with the handling of her grievance. They conclude:
In conclusion, it is blatantly obvious after reviewing the evidence, the entire grievance process was a farce, played out by the Respondent, to convince me that they were working hard to fight to get my job back, when they never even started. The Respondent knew before I even attended the October 18, 2000 interview that they were not filing a grievance. For their little sham to work, all I had to do was play my part, you know…. The ignorant factory worker.
I am requesting that the Board find the Respondent, CAW-Canada, in breach of section 74 of the Labour Relations Act, 1995.
By letter dated August 13, 2001, the applicant amended her submissions contained in her letter of August 10, 2001.
By decision dated August 13, 2001, the Board (differently constituted) acknowledged receipt of the applicant’s August 10, 2001 correspondence and further wrote:
Leaving aside the issue of whether the Board has the statutory jurisdiction to do so, the Board does not consider it appropriate to determine this issue solely on the material before it.
The consultation in this matter is scheduled for August 28, 2001 and will continue unless the Board is advised by the applicant that she intends to withdraw her application or the matter is otherwise resolved by the parties.
By letter dated August 15, 2001, the applicant took exception to the Board’s decision. She wrote (all emphases are in the original):
This letter is in response to the Board’s August 15, 2001 decision.
If after reviewing the material before it, and the Board determined that I had not made out a prima facie case, this Board would have found it appropriate, to dismiss my case.
However, it appears that the Board in reviewing the material before it, has determined that at this time, to make a decision based on the material before it, would not benefit the Respondent and/or Intervenor and therefore, it would not be appropriate to rule on the material before it. To do so the Board would have had to find the Respondent in breach of Section 74 of the Act (duty of fair representation).
The sole issue before the Board is whether the Respondent filed the grievance. The Board at this time does not have any evidence indicating a grievance had been filed. However, the Board has evidence that indicates the grievance was not filed. This fact, that there is no evidence that shows that the grievance was filed, is not going to change at the August 28, 2001 consultation.
It would be a breach of natural justice and procedural fairness if this Board allowed the Respondent and/or Intervenor to make representations that were not set out in its submissions.
In addition, it would also be a breach of natural justice and procedural fairness if the Board allowed the Respondent and/or Intervenor to provide documents that were not entered into as evidence and were not referred [sic] in the submissions.
The only way that the Board can justify dismissing this case is if the Respondent and/or Intervenor provides the Board with reasons to dismiss. At this time the Board does not have a reason to dismiss. However, after the August 28, 2001 consultation, the Board would have been provided with reasons by the Respondent and/or Intervenor. The Board will conveniently ignore the material before it and base its decision solely on what occurs at the consultation.
I’m requesting again that this Board pursuant to R. 77 of the Board’s Rules of Procedures and section 99(1) c of the Labour Relations Act, 1995 to rule [sic] on the material before it.
The foregoing correspondence sets the background for the applicant’s letter dated August 28, 2001. In it she asserts, among other things, that the Board member who authored the decisions dated August 8, 2001 and August 13, 2001 in this matter was formerly a partner in a law firm of which the intervenor “is a corporate client . . . [and the board member] its former counsel”. From this assertion (which the Board will assume for the purposes of this decision to be true) she concludes that the Board member “has a personal interests [sic] in the outcome of the proceedings. This appears to explain the refusal of the board to exercise its jurisdiction and rule on the material before it.” On this point she concludes with a question: “Does the Board honestly believe that it is appropriate and fair to have a former counsel for the Intervenor adjudicating my case?” Among the applicant’s enumerated reasons for not attending the consultation are “bias” and “conflict of interest”.
With respect to the allegations of bias and conflict of interest referred to in the preceding paragraph, the Board notes the Divisional Court’s decision in Re Marques et al. and Dylex Ltd. Et al. (1977), 1977 CanLII 1157 (ON HCJ), 18 O.R. (2d) 58. This case involved a judicial review application in respect of a proceeding before the Board in which the panel Vice-Chair had previously been associated with a law firm appearing before the Board in the proceeding, and had in that capacity acted as counsel to the union that was party to the proceeding. It was argued that these factors taken together constituted a reasonable apprehension of bias. The court disagreed, saying:
In looking at the cumulative effect of the factors relied upon by counsel for the employer there are certain other factors which have to be weighed in the balance. They are as follows. The vice-chairman had noting to do with any aspect of the present proceedings, as part of his association with the law firm or otherwise, and neither did the law firm itself during the currency of his association with it. Over a year had elapsed since he had anything to do with the union, or more correctly, one of its predecessors. Almost a year had elapsed since his connection with the law firm terminated.
Further, on a more general plane, the nature and functions of the Board itself have to be regarded. . . . We can take judicial notice, if it is not apparent from the Labour Relations Act itself, that members of the Labour Relations Board and in particular the chairmen of panels will have had experience and expertise in the law and labour relations. The government of Ontario looks to people with such a background in making appointments. Most, if not all of those appointed, are bound to have some prior association with parties coming before the Board. . . . Such people, having taken an oath of office . . and, at least in the case of trained lawyers, being conscious of the necessity of ridding their minds of extraneous matters, it is not unreasonable to assume that they, in exercising their jurisdiction, will act in good faith. . . . Taking all of the foregoing into account, it is my view, that in the circumstances of this case there was not an unreasonable apprehension of bias as that term is understood and has been applied. (page 70-71)
In its April 2000 “Highlights” the Board announced the appointment of the Board member who authored the decisions of August 8 and August 13, 2001. This application was not commenced until a year later, so clearly that Board member could not have had any involvement in those proceedings prior to joining the Board, and in any event, his former law firm did not appear as counsel to the intervenor in this application. Applying the analysis in Marques and Dylex Ltd., the applicant’s suggestions of bias and conflict of interest are without merit. Furthermore, and perhaps most significantly, the applicant was not disadvantaged or prejudiced in any way by the decisions of August 8 and 13, 2001. This matter had been scheduled for consultation prior to the release of those decisions and they did nothing to affect the applicant’s ability to fully present her case at that consultation.
To the extent that the applicant suggests that the Board’s refusal to find a contravention of section 74 on the basis of the material filed was somehow improper or unfair, it appears to the Board that she is perhaps confused with respect to the difference between pleadings and evidence, and with respect to who bears the burden of proof in an application alleging a contravention of section 74 of the Act, and how that fits with the concept of a prima facie case. The following paragraph may assist in clarifying these distinctions, and the Board’s decisions.
The applicant alleges a contravention of section 74. It is therefore up to her to plead facts which, if established in evidence, could ground a claim for the relief requested. Upon review of her application, any other party may argue that even assuming all the facts alleged can be proven, the application could not succeed. Thus, for the sole purpose of determining whether there is a prima facie case which the responding party and intervenor must answer, all factual allegations in the application are assumed to be capable of being proved in evidence. If the application is not dismissed for failure to state a prima facie case and proceeds to a consultation or a hearing, however, those facts are no longer assumed to be true, but must in fact be proven in evidence. Had the applicant attended the consultation, it is entirely possible that she and the responding party might have agreed with respect to certain facts, for example the duration of her employment with the intervenor, and the Board would have accepted that agreement as evidence of the facts agreed to. It is possible that other facts pertinent to the application might have been disputed, and the Board would have had to hear testimony (including examination and cross-examination of witnesses) in respect of those matters. In any event, the point is simply that the application and the subsequent assertions in the applicant’s correspondence with the Board do not constitute evidence, such that a finding of a contravention of the Act could ever have been found based on that material alone. Even had the applicant been the sole party to attend the consultation, or even had there been no response or intervention filed, she would still have been required to provide the Board with evidence to establish her case. Since she did not attend the consultation, there was no evidence led on the basis of which the Board could have found in her favour.
“Mary Anne McKellar”
for the Board