Ontario Labour Relations Board
File No.: 0861-01-U Date: August 21, 2001
Between: Donna Whitla, Applicant v. Communications, Energy & Paperworkers Union of Canada and its Local 301, Responding Party.
Before: Anthony Brown, Vice-Chair.
DECISION OF THE BOARD
1This is an application pursuant to section 96 of the Labour Relations Act, 1995 alleging violation of section 74.
2Section 74 states:
- A trade union or council of trade unions, so long as it continues to be entitled to represent employees in a bargaining unit, shall not act in a manner that is arbitrary, discriminatory or in bad faith in the representation of any of the employees in the unit, whether or not members of the trade union or of any constituent union of the council of trade unions, as the case may be.
3On July 18, 2001, the Board directed the applicant to file with the responding party and the employer a complete application and all supporting documents within fourteen days of the date of the Board’s decision. The direction was made because the applicant had failed to deliver a form A‑29 (Application) to the parties, and had only filed part of form A-29 with the Board.
4The responding party has written to the Board, by letter dated August 8, 2001, to advise that it has received a copy of the form A-29 but no other forms or documents. It asserts that the applicant has not complied with the Board’s direction. It also asserts that the form A-29 provides no information indicating how the union is alleged to have violated section 74 of the Labour Relations Act, 1995. It submits that the application should be dismissed.
5The applicant filed a form A-29 with the Board on August 1, 2001. No supporting documents were attached. However, the form appears to cross-reference documents originally filed with the first, defective form A-29. These documents pertain to events dating back to 1994 and 1995, with the exception of a letter dated May 22, 1998, from counsel from Manulife Financial urging the applicant to accept a settlement of her claim for Long Term Disability benefits, and a copy of a notice from the Human Rights Commissioner dated May 9, 2001 advising that the Human Rights Commission had decided to uphold its original decision not to hear a complaint filed by the applicant.
6The documents from 1994 and 1995 pertain to the applicant’s medical condition, to her claim for weekly indemnity benefits, to the employer’s efforts to implement a modified work program for the applicant, and to a grievance filed after the applicant’s termination from employment in 1994. There are no pleadings explaining what involvement the responding party had in respect of the applicant, or how the union is alleged to have violated its duty of fair representation.
Decision:
7The Board has discretion under section 96 of the Act as to whether or not to hear a complaint under section 74. The Board may also decline to consider an application that does not comply with the Board’s Rules of Procedure.
8The Board has scrutinized the materials filed by the applicant to determine whether there is any information therein that discloses the nature of the complaint against the union. Form A-29 states simply “sick benefit grievance refusale [sic] to take it to 2nd step. 2nd grievance rufused [sic] arbitration.”
9In the Board’s view, the applicant has failed to plead any facts showing how the responding party is alleged to have violated section 74. There is no explanation of the circumstances of the grievances or how they were processed or not processed. Quite simply, there is no prima facie case disclosed by the materials.
10Moreover, the documentation filed with the Board pertains to events in 1994 and 1995 surrounding the applicant’s termination and her disability claim. The Board has discretion to decline to hear a complaint if there has been undue delay in filing it. Generally speaking the permitted time for filing a complaint is measured in months, not years. A complaint about a grievance relating to events in 1994 and 1995 will not be heard by the Board, as it is inherently prejudicial to the other parties to be expected to respond after such a long period of time. The aforementioned letter from counsel, dated May 22, 1998, refers only to civil litigation initiated by the applicant against Manulife Financial, and in any event, even if this letter were somehow relevant, the period from May 22, 1998 to mid-2001 also constitutes an unacceptable delay in filing the current application.
11Therefore, based on the materials filed by the applicant, the Board declines to hear this matter on the basis of undue delay and failure to plead a prima facie case.
12In view of the Board’s decision to decline to hear the matter on the above grounds, it is not necessary to determine if the application should be dismissed or terminated on the basis of non-compliance with the Board’s direction dated July 18, 2001.
13The application is dismissed.
“Anthony Brown”
for the Board