0037-89:NepeanPublic LibraryBoard, Applicant v. CanadianUnionofPublic Employees, Local 2504; The Corporation of the City of Nepean, Respondents
Before : Patricia Hughes, Alternate Chair; Sharon Laing and Susan Genge, Members
Cite As: Nepean Public Library Board (No. 2) (1991), 2 P.E.R. 18
Practice and Procedure - Adjournments
In Nepean Public Library Board (No. 1) (1991), 2 P.E.R 7, the Tribunal adjourned the hearing of this application sine die, but advised the parties that it proposed to terminate the matter at the expiry of one yearfrom that date unless one of them broughtthematterbackonforhearingwithinthattime. The parties wereinvitedtomakesubmissionsonthisproposal. The City and the Library objected to the proposed limit onthe sine die adjournment. It is not unusual for adjudicative bodies to establish procedures to manage their caseload since such procedures assist them in distributing their resources to the benefit of all parties which appear before them. Subsection 29(1)(b) of the Act permits the Tribunal to establish such procedural rules. In this case, the parties haveagreedtoaconditionwhichmightrunafoulofthe one year expiry. The condition does not impose a bar to the parties' proceeding with their case: they are free to amend their agreement or they may request the Tribunal to extend the adjournment beyond one year.
Pratique et procedure - Ajournements
Dans Nepean Public Library Board (No. 1) (1991), 2 P.E. R. 7, le Tribunal a adjourné indéfiniment 1'audition de la requête mais informé les parties qu' ilseproposait de mettre fin à l'affaire un an plus tard, jour pour jour, sauf sil’uned'entreelleslesaisissaitànouveaude1'affaireaucoursde ce délai. Il a invité les parties à lui présenter des observations sur cette proposition. La ville et la bibliothéque se sont opposéesaudélaidepéremptionproposé. Il est courant pour les organes judiciaires d'élaborer des règles de procédure afin de gérer leur charge de travail. L'alinéa 29(1)b) de la Loi autorise le Tribunal à adopter de telles règles de procédure. Dans le cas présent, les parties ont convenu d'une condition qui peut être en contradiction avec le délai de péremption d'une année. Toutefois, cette condition n'empêche pas les parties de donner suite à l'affaire: elles sont libres de modifier leur ententeoude demanderauTribunal de proroger 1'ajournement au-delà du délai d'un an.
DECISION OF THE TRIBUNAL, APRIL 20, 1990
- By decision dated February 20, 1990, the Tribunal adjourned this matter sine die on agreement of the parties. In addition, the Tribunaladvisedtheparties that it proposed to add the following sentence to the adjournment:
Should neither [sic] ofthe partiesrequestthatthe matterbe brought on for hearing before the expiry of a year from the date hereof, it will be terminated by the Tribunal.
The Tribunaladvisedthe parties that they had 21 days to make submissions on the proposed disposition. The Nepean Public Library Board ("the Library") and the Corporation of the City of Nepean ("the City") took advantage of the opportunity to make timely and thorough submissions. The Canadian Union of Public Employees and its Local 2504 did not file any submissions in response to the Tribunal's invitation.
1The parties had agreed that none of them would bring the matter back on for hearing until "after the date of release of the Ontario Court of Appeal's decision in the Pay Equity case before it in the matter between the Ontario Nurses' Association and The Regional Municipality of Haldimand-Norfolk and others". (See Haldimand-Norfolk and Ontario Nurses' Association (1990), 1 P.E.R. 188 (Div. Ct.); leave to appeal granted, April 17, 1990 (C.A.)). Theyplacednotimerestriction on themselves in regard totheperiodfollowingthereleaseoftheCourtofAppeal'sdecision. It is not clear whether the agreement's reference is only to the application for leave to appeal or, should leave be granted (as it since has been), to the disposition on the merits. For the purposes of explaining this decision, we have assumed the latter since it encompasses all possible outcomes.
- The City and the Library candidly conceded that they could not fault the actual proposal of the Tribunal. Counsel for the City, for example, stated that:
Inviewofthe fact that the leave to appeal applicationwithrespectto Haldimand-Norfolk is to be heard on or about the 17th of April, I suppose that one can have no serious disagreement with the Decision of the Tribunal, fixing a limitation period of (I think) February 20, 1991.
2Counsel for the Library referred to the fact that " [t]he Tribunal's rules clearly leave to the Tribunal the discretion to accept or reject a request for an adjournment which gives it the right to impose terms if such a request is granted. One cannot therefore take exception to the imposition of terms by this particular Order". Counsel also observed that "[a]part from the rather serious concerns about the meaning of the word ‘terminated' [we deal with this point below] the effect of the Order may not be legally prejudicial to the parties".
3Nevertheless, both counsel objected rather strenuously to the decision and its proposed limit on the sine die adjournment. The City's concern was that it did not have an opportunity to make submissions before being advised of the Tribunal's intention to impose the limitonthe durationof the adjournment and apparently will not have the right to make submissions before the matter is actually terminated. Counsel also questioned "why the 'normal' Rules of Procedure havetobere-inventedbyeveryTribunal", referring to Rules 48.14 and 61.12 (2) and (3) ofthe Rules of Civil Procedure. The Library resented what it sees as interference in the parties' private agreement; in addition, the Library is not sure whether a decision terminating this matter after the expiry of ayearmeans thatonlythis particularapplicationis terminated or whether (in counsel's words) "the parties would lose their right to have any adjudication whatsoever".
- In this case, for their own reasons, the parties reached an agreement about how they would proceed at least until the Court of Appeal has issued its decision in Haldimand-Norfolk, supra. The agreement is,almostentirely, aprivateagreement amongthe parties;itscontents,withone exception, neitherseek nor warrant the Tribunal's involvement. The one exception is that the parties wish to retain the possibility of the Tribunal's involvement and in that sense, the agreement is no longer "private", because it contemplates
use of the Tribunal's resources and requires the Tribunal's agreement; it is in that respect, and that respect only, that the Tribunal has proposed to affect the agreement by imposing a year's limitation on the adjournment sine die.
4It is not unusual for adjudicative bodies to establish procedures to manage their caseload, as was recognizedbycounselfortheCity. Such "case management" assists the courts and administrative tribunals indistributing their resources tothebenefitofallpartieswhichappearbeforethem. For example, by virtue of Rule 48.14 of the Rules ofCivilProcedure, oncea statement ofdefencehasbeenfiled, the parties shall be required to show cause why an action should not be dismissed for delay when two years has passed and the action has not been placed on the trial list or terminated. With respect to appeals, there are analogous provisions,althoughthesedo notnecessitatea hearingbeforedismissalas isthe case underRule
48.14. The Ontario Labour Relations Board has issued Practice Note No. 14 which advises the parties that where the Board adjourns a matter sine die,
[it] will deem the application or complaint withdrawn at the expiry of one year from the date upon which the adjournment sine die was granted and the Board's record will be endorsed accordingly without further notice to the parties, provided that within that period of time a party has not requested that the Board schedule the matter for further hearing.
A Board decision adjourning a matter sine die will usually bring that consequence to the attention of the parties in the particular case.
1 The Tribunal's proposal reflects the model adopted by the Labour Relations Board. Authority for the proposal is found in Rule 11.02 of the Tribunal's Rules of Practice which provides that "Once a date has beensetfor a hearing,anadjournmentwillnotbepermittedexceptwithleaveoftheTribunal". In addition, subsection29(1)(b) of the Pay Equity Act, 1987 permits the Tribunal to "make rules for the conduct and management of its affairs and for the practice and procedure to be observed in matters before it".
2 The decision contemplated bythe Tribunalwould constitute one year's notice ofthe termination. As for the consequences of the matter's being "terminated", the Tribunal's decision on its face deals only with the application before it. There is nothing to suggest a party would not be able to file another application in relation to the same issues, should this particular application be terminated; should it do so, however, it would be required to go through the procedures contemplated by the legislation.
3 In the normal course, where the parties are aware thatthemattermaybeterminatedasof a certain date, a party may request the matter come backonforhearingatanytime duringthatone yearperiodand the hearing would proceed or the parties could request a further adjournment sine die. Inthe latterevent, the Tribunalwould have the discretion to grant the adjournment request, with or without terms,or denyit.
- In this case, however, the parties have agreed to a condition which might run afoul of a one year expiry, sinceitisnotbeyondcontemplation, thatthe CourtofAppeal'sdecisioninthe Haldimand-Norfolk case, supra, might not issue until after a year has passed. (The condition does not necessarily have that result, of course, since the Court of Appeal might not have granted leave or might issue a decision on the
meritspriortotheexpiry of a year.) Should theCourtofAppealtakelongerthanayear,apartycouldnot request the matter come back on for hearingbeforethe expiryofa yearwithout breaching the agreement.
4 It might appear, therefore, that we should not impose the condition at all in this case, in light of the specific condition in the agreement (although neither the City nor the Library based its objection on this ground). This might be so if the Tribunal's condition imposed a bar to the parties' proceeding with their case. It does not, however. The parties are quite free to amend their own agreement to permit one or more of them to come back to the Tribunalinthe event thatthe Courtof Appeal's decision has not issued within the one year period. Alternatively, any party would be free to request the Tribunal to extend the period for the sine die adjournment beyond a year. By the one year limitation, the Tribunal is able to respond to the need to manage its caseload without prejudicing the parties. Furthermore, any problem arising from the specific condition in the parties' agreement will not arise until the expiry of the one year period approaches, and to consider the matter now would be premature.
5Since the release our February 20th decision, the Tribunal has issued Volume 1 of the Pay Equity Reports which contains a Practice Note ("Practice Note No. 1") similar to the one issued by the Labour Relations Board to which we referred earlier. Practice Note No. 1 does not, of course, apply to this matter, since it appeared after the parties' request and our first decision. Rather, the parties herein had specificandparticularnoticeoftheTribunal'sintention toimposethecondition. Nevertheless, we take this opportunity to comment on the use of Practice Notes. They are intended to advise people about the approach normally followed by the Tribunal in "standard" matters. Parties may argue that the general practice is not appropriate for their circumstances and if the Tribunal agrees, it will not follow its usual practiceas setout inthe PracticeNote or will accommodate it to the special circumstances of the parties. Practice Note No. 1 advises the parties what the Tribunal will normally do when a sine die adjournment is requested and granted. Any general policy established by the Tribunal must be flexible and subject to the particular circumstances of the individual case.
6We have considered the submissions of the parties. We have taken into account that the parties restricted their own action before they were aware that the Tribunal might impose a limit on the adjournment. We have made it clear that the Tribunal would, of course, deal with submissions from the parties should the restrictive clause in the parties' agreement prevent a party's bringing the matter back on for hearing within the period of a year, as the Tribunal's condition would allow and require to prevent the termination of the matter.
7Having regard to the above, we are now giving one year's notice to the parties that should no party to this application attempt to bring the application before the Tribunal by the expiry of one year from the date of this decision, the matter will be terminated.