0829-01-U George Naidos, Applicant v. Amalgamated Transit Union, Local 113, Responding Party v. Toronto Transit Commission, Intervenor.
BEFORE: Laura Trachuk, Vice-Chair.
APPEARANCES: Margaret Best and George Naidos appeared on behalf of the applicant; Brendan J. Morgan, Paul Prosser and Bob Bloxam appeared on behalf of the responding party; Michael Kennedy, Dan Haffey and Tom MacPherson appeared on behalf of the intervenor.
DECISION OF THE BOARD; October 12, 2001
This is an application under section 96 of the Labour Relations Act, 1995 (the “Act”) in which the applicant alleges that the responding party (referred to as the “union”) violated section 74.
At the consultation held with respect to this matter on September 28, 2001, the Board exercised its discretion not to proceed with the application because of the extensive delay between the date upon which the alleged violation occurred and the date upon which the application was filed. These are the reasons for that oral decision.
The applicant was an employee of the intervenor. In October 1998 he was the subject of serious allegations with respect to his conduct while performing his duties. He was moved to a different position in the intervenor’s organization. The police investigated the matter but decided not to press any charges. The intervenor also conducted an investigation as it is entitled and probably, given the allegations, required, to do. At some point in the spring of 1999 other employment related concerns were raised with the applicant. On July 21, 1999 the intervenor met with the applicant and the union and gave the applicant the choice of being terminated or resigning. The applicant chose to resign. He tried to rescind the resignation the next day but the intervenor would not permit it. The applicant claims that the union encouraged him to resign and thereby violated the Act. The union denies encouraging him to resign. The applicant also says that he was depressed at the time and on medication and that the union was aware of those facts. The union denies that it knew of the applicant’s depression.
The applicant did not file this application until June 14, 2001, almost two years after his resignation. He asked that the delay be excused as he was neither mentally nor financially ready to proceed with this application until then. However, he had sought the advice of a lawyer by the autumn of 1999.
The Board dismissed this application because of the extensive delay between the date of the relevant events and the date the application was filed. It would only be in the most extraordinary circumstances that the Board would allow an application to proceed when it was filed almost two years after the date the violation was alleged to have occurred. Such a delay is extremely prejudicial to the union and the employer. They have an ongoing relationship which has continued since the resignation with the understanding that there is no outstanding issue vis a vis the applicant. Witnesses have disappeared or memories have faded. As well, in this case, the investigation interviews, the tapes of the interviews with the applicant no longer exist. In The Corporation of the City of Mississauga [1982] OLRB Rep. March 420, the Board stated as follows:
It is by now almost a truism that time is of the essence in labour relation 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 ever envisaged that an unfair labour practice, once chrystallized [sic], could exist indefinitely in a state of suspended animation and be revived to become a 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)).
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 and decline to entertain them.
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 reason 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 the 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.
In this case the delay was a matter of years not months. The applicant says he was depressed and under the care of a doctor. However, that may justify a delay of some months but not a delay of almost two years. The particulars filed would not support a finding that the applicant was not mentally capable of filing an application throughout that period. He did consult a lawyer within months of his resignation. Financial constraints are not a justification for failing to file an application in a timely way. There is no fee associated with filing an application of this nature with the Board. Furthermore, while the applicant chose to be represented by a lawyer, it is not necessary to incur that expense and many applicants who assert a violation of section 74 do not. The Board therefore determined that it would exercise its discretion not to proceed with the application and it was dismissed.
“Laura Trachuk”
for the Board