Jeff Scott v. The Ottawa-Carleton Public Employees’ Union Local 503, 2001 CanLII 2355

Ontario Labour Relations Board

1628-01-U Jeff Scott, Applicant v. The Ottawa-Carleton Public Employees’ Union Local 503, Responding Party and The City of Ottawa, Intervenor

BEFORE: Mary Anne McKellar, Vice-Chair

DECISION OF THE BOARD: October 22, 2001

1This is an application filed pursuant to section 96 of the Labour Relations Act, 1995 (“the Act”), alleging that the responding party trade union (the “Union”) has violated section 74 of the Act.

2The application was filed with the Board on August 31, 2001. It relates to the Union’s resolution on July 6, 1999 of the applicant’s 1997 grievance respecting events that allegedly occurred in 1994.

3The Union submits that the applications should be dismissed for delay and characterizes the application as “meritless”. The Union has not specifically requested that the Board dismiss the application without a hearing or consultation.

4The intervenor (the “Employer”) asks that the application be dismissed without a hearing for failure to state a prima facie case, and because there has been undue delay in filing the application which has resulted in prejudice to the intervenor due to the unavailability of records and witnesses relating to the application and “the extreme prejudice which the City of Ottawa would face if the Minutes of Settlement were struck down and a new grievance permitted to go forward”. The Board notes that at the time of the incidents complained of in the grievance, the filing of the grievance and its resolution, the applicant was in the employ of the Regional Municipality of Ottawa-Carleton (“RMOC”), the predecessor to the intervenor. The Board also notes that none of the parties have filed a copy of the grievance with the Board.

5On the basis of the materials filed, it appears that there is no dispute among the parties with respect to the following facts:

• The applicant complained to the Union of sexual and personal harassment in 1994;
• His complaints were investigated by the RMOC’s Manager of Human Rights and Workplace Equity;
• The applicant was dissatisfied with the results of that investigation and filed a complaint with the Ontario Human Rights Commission (the “OHRC”);
• The OHRC dismissed the applicant’s complaint in 1997, whereupon the applicant again contacted the Union and a grievance was filed on his behalf;
• At a mediation convened by Mediator Sheppard on July 6, 1999, the Union and the Employer entered into written Terms of Settlement with respect to the grievance; and
• The applicant has remained in the employ of the Employer or its predecessor at all times, but is currently on a long-term disability leave.

6The Terms of Settlement provide as follows:

1. This settlement is made without prejudice and will not create a precedent for the settlement of future grievances.

2. The Union will have a period of 90 calendar days to inform the Region that they are proceeding to arbitration with this grievance. If the Union fails to notify the Region, the grievance will be considered as settled.

7Essentially, the application alleges that the Union breached its obligations to him under section 74 of the Act by failing to:

• conduct an independent investigation of the alleged incidents constituting sexual and personal harassment;
• inform the applicant of the mediation meeting;
• obtain the applicant’s consent prior to entering into minutes of settlement; and
• advise him of the settlement until January 25, 2001, and then only in response to his query respecting when the matter might proceed to arbitration.

8The remedies requested in the application are the following:

1. The applicant seeks a declaration from the Ontario Labour Relations Board stating that the mediated settlement reached July 6, 1999 between the union and the employer be deemed to have no force and effect or in the alternative this settlement be set aside for lack of consent.

2. The applicant further seeks an order that grievance #97-0020 proceed to arbitration forthwith. If the parties cannot agree on an arbitrator within fifteen days then the Board should appoint one.

3. The applicant further seeks an order that he be represented through the arbitration process by the law firm of Lewis Langevin at the expense of the respondent union. That said services include an investigation into the allegations raised by the applicant so that a proper case can be prepared on his behalf.

4. The applicant further seeks an order that the respondent union be responsible for all costs incurred by the applicant in bringing this application.

9In its response, the Union appears to dispute the applicant’s assertion that he was not informed of the mediation meeting, as well as his assertion that he did not find out about the settlement until January 25, 2001. The Union also takes the position that it is entitled to settle a grievance without first obtaining the consent of the grievor, and that it gave full consideration to the applicant’s circumstances in entering into the Terms of Settlement on July 6, 1999. Finally, with respect to the allegation that the Union failed to properly investigate the subject matter of the grievance, the Union states:

15. Mr. Scott was given ample opportunity for input into resolving the issue. The Union and its counsel made every reasonable effort to find some basis for proceeding with the grievance other than Mr. Scott’s allegations standing alone, especially in the face of an investigation which concluded that none of the other witnesses could substantiate his claims. To the extent the Union has been unable to carry out an independent investigation of the allegations, that failure is in very large measure a function of Mr. Scott’s failure to assist the Union.

In particular, the Union states that its representative telephoned the applicant on several occasions following the execution of the Terms of Settlement in an attempt to ascertain whether there were other witnesses to corroborate his claim, but that the applicant either failed to return many of these calls and failed to provide the requested information.

10The Board will deal first with the allegations respecting the failure of the application set out a prima facie case, and will treat the Employer’s request to dismiss the matter without a hearing as falling within the rubric of Rule 46 of the Board’s Rules of Procedure. Rule 46 provides:

46. Where the Board considers that an application does not make out a case for the orders or remedies requested, even if all of the facts stated in the application are assumed to be true, the Board may dismiss the application without a hearing or consultation. In its decision, the Board will set out its reasons.

11The standard of review applied by the Board in determining whether a prima facie case has been made was set out as follows in Textron Automotive Interiors, [1999] O.L.R.D. No. 2961.

4. In determining whether an application discloses a prima facie case for the relief requested, the Board must have regard only to the allegations made in the application and accept those allegations as fact. The Board cannot rely on the explanation of the facts provided in the responses or the facts contained in the responses which may contradict the allegations made by the applicant when determining whether there is a prima facie case.

12The Board in Textron Automotive Interiors, supra, went on to find that the allegations contained in that application had enough substance to preclude the Board from finding that the applicant had failed to make out a prima facie case for the relief requested in his application. The Board noted, however, that the union in that case had provided a detailed response setting out exactly what steps it had taken in its representation of the applicant, and commented on the likelihood that the application would ultimately succeed if the facts in the response were accepted:

8. It appears to the Board that the applicant may well have difficulties in establishing that either the Union or Textron violated the Act in respect of his termination of employment, particularly in light of the detailed submissions made by the Union in its response. At this stage, when the Board is asked to dismiss a case for failing to show a prima facie case, it cannot do so if there is something in the applicant’s material that might give rise to a finding of a violation of the Act. Simply because the applicant will be faced with a reasonable and plausible explanation for the Union’s conduct which would provide a complete defence to the allegation that the Union violated the Act is not sufficient to permit the Board to dismiss the complaint at the request of a responding party on the grounds that it does not disclose a prima facie case.

13As was the case in Textron Automotive Interiors, supra, while there is enough substance to the allegations continued in the within application to preclude the Board from finding that it fails to make out a prima facie case, it appears to the Board that the applicant may have difficulty in establishing that the Union violated the Act in respect of the handling of his grievance if the Union’s assertions in its response that the applicant failed to respond to the Union’s requests for further information are ultimately accepted. The Board draws the parties’ attention to its decision in Covington Clarke, [1994] O.L.R.B. Rep. June 649, which also dealt with a complaint that a trade union breached the statutory duty of fair representation in its failure to proceed to arbitration on the grievor’s harassment grievance. The application was dismissed on the following basis:

32. Faced with the lack of detail or substance to the grievance, and Mr. Clarke’s inability to provide any of that detail, there was little more the union could have done. The union chose not to process the matter to arbitration. In the Board’s view, this was a reasonable decision. Indeed, because of its obligation to all members in the bargaining unit, it would have been imprudent had it done otherwise.

14Therefore, the Board dismisses the request to dismiss these applications without a hearing for failure to state a prima facie case.

15Turning now to the request to dismiss this application for delay, the Board notes that the incidents alleged in the grievance occurred seven years ago, the grievance itself was filed four years ago, the impugned settlement was reached two years ago, and this application was filed just over seven months after the applicant states that he first became aware that the grievance had been settled. Before determining whether to dismiss in these circumstances, the Board would like to have the submissions of the applicant, but would also like to provide some context so that the applicant can provide focussed submissions. At this juncture, it may be helpful to refer briefly to some decisions setting out the Board’s jurisprudence respecting delay.

16Section 96(4) of the Act confers on the Board the discretion to dismiss an application under section 96 of the Act without inquiring into it. It is well established that the Board will not generally inquire into an application brought after a reasonable period of time has elapsed subsequent to the events complained of in the application. As the Board observed in The Corporation of the City of Mississauga, [1982] O.L.R.B. Rep. Mar. 420:

20. 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 even envisaged that an unfair labour practice, once crystallized, could exist indefinitely in a state of suspended animation and be revived to become 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)).

21. 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 [now 96] and decline to entertain them.

22. 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.

17In Robert Ross, [1994] O.LR.D. No. 2916, the Board reiterated that the length of the delay is not considered in isolation from the impact it may have on important labour relations interests (see paragraph 15 of that decision). In John Kohut, [1991] O.L.R.B. Rep. Dec. 1367, the Board dismissed an application alleging a breach of the duty of fair representation where it was filed nine and one-half months after the incident complained of, which related to the union’s conduct at the grievance arbitration. In that case, the workplace incident that gave rise to the grievance occurred in 1986, a grievance was filed immediately, the arbitration award issued in mid-September 1989, and the application to the Board was filed in mid-June 1990. At paragraph 5 of its decision in Coca-Cola Bottling Ltd., [1998] O.L.R.D. No. 2537, the Board enumerated the factors it considers in deciding whether to dismiss an application for delay:

In deciding whether an application should be dismissed on the ground of delay, the Board will consider the length of the delay, the explanation for the delay, the relief sought, and the relative prejudice to the parties should the application be permitted to proceed, or be dismissed.

18Having regard to the foregoing, the applicant is directed to deliver and file submissions in response to the timeliness objection, and indicating any disagreements with the facts as pleaded by the Union and Employer. Any facts set out in the Union’s and Employer’s responses that are not specifically disputed will be deemed to be accepted. Such submissions are to be delivered and filed no later than ten (10) days from the date of this decision. The Union and the Employer may deliver and file submissions in reply no later than five (5) days following delivery of the applicant’s submissions.

19Upon reviewing the materials directed to be filed in the preceding paragraph, the Board will determine whether to dismiss the application for delay on the basis of those materials, or whether this application should be scheduled for consultation. In the event the applicant fails to file the materials directed in paragraph 18 above, the Board will determine whether to dismiss the application on the basis of the materials currently contained in the Board file.

20I am seized of this proceeding for the purpose of determining the above-noted preliminary issue.

“Mary Anne McKellar”

for the Board