1241-01-U Dan Vernal and the Individuals Listed on Schedule “A” to this Application, Applicants v. Communications, Energy and Paperworkers Union of Canada, Local 290 and 1521, Responding Parties.
BEFORE: Patrick Kelly, Vice-Chair.
DECISION OF THE BOARD; November 8, 2001
By decision dated October 25, 2001 the Board noted the applicants’ failure to provide written submissions (concerning the issue of a delay in filing the application) as directed in a previous decision of the Board (differently constituted) dated September 28, 2001. Accordingly, in its October 25, 2001 decision, the Board directed the applicant to file written submissions as to why, given the applicants’ failure to provide any explanation for the delay in filing the application, the application should not be dismissed without further notice to the parties.
On October 29, 2001 the Board received a letter from counsel for the applicants that purports to explain why the application was delayed. However, that is not what the Board’s decision of October 25, 2001 directed. Moreover, counsel’s letter of October 29, 2001 offered no explanation as to why the applicants failed to comply with the Board’s decision of September 28, 2001.
The application relates to events which occurred between November 1996 and May 1997 in connection with the announced closure and sale of its Thorold facility by Noranda Forest Inc./Fraser Papers Inc. (“Noranda”) to Gallaher Thorold Paper Co. (“Gallaher”). It appears undisputed that the responding parties secured from Gallaher’s bank a letter of credit in favour of the applicants and the responding parties in respect of severance pay in the event of a business failure. The applicants allege that the responding parties assured the applicants from time to time that they would be able to exercise an option to take severance pay pursuant to the letter of credit, notwithstanding the awareness on the part of the responding parties that the letter of credit had expired. According to the applicants, Gallaher was petitioned into bankruptcy in May 1999, and the plant closed. Apparently, efforts were made by the trustee in bankruptcy to find potential purchasers, ultimately to no avail.
By the applicants’ own admission, it became obvious by June 7, 1999 that the severance payments were no longer secured, and it appeared unlikely that the plant would be sold to an interested purchaser or that the applicants would receive any severance pay. However, for the next year, the applicants contend that they were told of ongoing attempts to find a purchaser. Apparently, by June 2000, all hope for a sale of the plant vanished, and one of the applicants began efforts to obtain legal advice concerning severance entitlements. In August 2000, the applicants contend, a national union executive confirmed unequivocally that the severance rights had vanished, and that the responding parties had done nothing wrong, but that if workers felt that some wrong had been done, they could litigate their complaint. The applicants also realized at that time that no grievance would be pursued by the responding parties in connection with the severance payments.
The application was filed on July 25, 2001. It seeks from the responding parties damages in the amount of $1 million plus interest, representing the sum of the severance payments secured by the letter of credit.
In Chrysler Canada Limited, [1999] OLRB Rep. July/August 757 the Board made the following observation concerning delay in advancing claims at paragraph 14:
“…anyone who wishes to complain about an alleged violation of the Act or related legislation under which the Board has jurisdiction must do so within a reasonable time, so that the matter can be dealt with in a fair and timely way. It is well established that delay is one basis upon which the Board can (and will) exercise its discretion to decline to inquire into a complaint.”
The applicants have not provided satisfactory reasons as to why, following the discovery that the letter of credit was no longer secured and that severance payments were unlikely, it took twenty-five months to file the application. Counsel for the applicants contends that the responding parties were unresponsive to the applicants’ requests for information relating to their complaint against the responding parties. It is not clear to the Board that the information sought by the applicants was a necessary pre-condition to the filing of an application. At any rate, knowing what the applicants admit they knew in June 1999, and given the responding parties apparent willingness to be engaged in litigation over the matter (as was made clear in August 2000), the alleged lack of further disclosure by the responding parties cannot be used by the applicants to justify the lengthy delay in stating their case against the responding parties. If anything, the alleged lack of cooperation on the part of the responding parties should have strengthened the resolve of the applicants to commence the litigation as quickly as possible.
Counsel for the applicants contends, as well, that the Board must take into account the applicants’ alleged inexperience and lack of awareness of their legal rights in assessing the delay. As the Board observed in John Craven, [1991] OLRB Rep. Mar. 420, while some latitude must be given to parties unaware of their statutory rights, in the absence of exceptional circumstances or overriding public policy considerations, excusable delay should be measured in months rather than years. The applicants concede that one of them began to make legal inquiries regarding the severance entitlements as early as June 2000, thirteen months prior to the filing of this application.
I find that the applicants’ failure to discharge the onus of satisfactorily explaining a very lengthy delay in bringing the application is, in and of itself, sufficient reason not to inquire further into this matter. Moreover, the applicants failed to comply in a timely manner with the Board’s direction, in its decision of September 28, 2001, to explain the delay, and offered no reason for their failure.
After reviewing all the materials in this file, and considering all the circumstances, the Board is of the view that this matter should be dismissed for reasons of excessive delay.
This application is dismissed.
Having dismissed the application for delay, it is unnecessary to deal with the responding parties’ other preliminary motions.
“Patrick Kelly”
for the Board