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Holden v. OPSEU, Local 706,2006 CanLII 19376 (ON L.R.B.)
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This document: 2006 CanLll19376 (ON L.R.B.)
Citation: Holden v. OPSEU, Local 106, 2006 CanLll19316 (ON L.R.B.)
Date: 2006-06.09
Docket: 3381..05.U
[NQtE;llP]
3381-0S-U Terralyn Holden, Applicant v. OPSEU, Local 706, Responding Party.
BEFORE: Peter F. Chauvin, Vice-Chair.
DECISION OF THE BOARD; June 9, 2006
1. This is an Application under Section 74 of the Labour Relations Act, 1995, S.O. 1995, c.1, as
amended (the "Act").
2. Both the Ontario Public Service Employees Union ("OPSEU") and the Crown in Right of
Ontario (Ministry of Transportation) ("the Ministry") request that this mater be dismissed without a
hearing or consultation due to delay in the filing of the Application.
3. The facts relevant to the delay issue that are asserted by all of the parties that are as follows.
On October 5, 2004 Ms. Holden signed a Memorandum of Settlement in settlement of her grievance
regarding her discharge from the Ministry. Ms. Holden filed this Application 15 months later, on January
6, 2006.
4. Ms. Holden gives a detailed explanation for her delay in filing her Application. She alleges
that:
(a) On October 6,2004 she wrote to OPSEU and the Ministry stating that she
wanted to "withdraw her agreement re the Memorandum of Settlement"
because she entered into it under "false pretences and duress".
(b) In October 2004 she retained Mr. Wally Dubinsky, Labour Consultant, to
prepare and file this Application. In January and March 2005 Mr.
Dubinsky informed OPSEU that Ms. Holden would be filing this
Application and requested production of documents.
(c) In January 2005 Ms. Holden became involved in a dispute with Human
Resources Development Canada ("HRDC") regarding Employment
Insurance ("EI") overpayments. In March 2005 Mr. Dubinsky requested
production of documents from HRDC because the Minutes of Settlement
filed with HRDC varied substantially from the original Minutes of
Settlement that Ms. Holden signed on October 5, 2004.
http://www .canlii.org/on/cas/onlrb/2006/2006onlrb 127 62.html
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Holden v. OPSEU, Local 706, 2006 CanLlI19376 (ON L.R.B.)
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(d) In April 2005 Ms. Holden received from OPSEU a copy of the Minutes of
Settlement, but has never received any other documents from OPSEU,
including the letter and the Memorandum of Settlement that OPSEU sent
to HRDC. Nor has Ms. Holden received any documents from HRDC.
(e) Subsequent to April 2005 Ms. Holden did not hear from Mr. Dubinsky.
Ms. Holden came to understand that Mr. Dubinsky was ill and unable to
carry out his duties, and was formally notified of that in the autumn of
2005.
(f) Ms. Holden experienced difficulties in attempting to find counsel in the
Nestor Falls or Thunder Bay areas who were willing to take on her case.
Ms. Holden ultimately retained Mr. Bennett who has prepared and filed
this Application.
5. Ms. Holden submits that, in view of those circumstances, the delay is understandable and
there is no prejudice to the other parties.
6. OPSEU submits that Ms. Holden's explanation for the delay is not valid and should be
dismissed because the delay is in excess of one year. OPSEU states that none of he delay is attributable
to OPSEU and that OPSEU will be prejudiced if it has to address this Application.
7. The Ministry submits that the delay is excessive, that Ms. Holden must provide a compelling
explanation for the delay and that OPSEU and the Ministry are presumed to be prejudiced by the delay.
The Ministry submits that some of the delay can be attributed back to events that took place in 2003 and
that the requests for the HRDC and the OPSEU files are irrelevant to this matter because Ms. Holden
could have, and should have, filed the Application even in the absence of receiving said files. Finally, the
Ministry submits that Ms. Holden's statements regarding her difficulty in finding legal counsel are
unsubstantiated and should not be accepted.
8. Having carefully considered the submissions of OPSEU and the Ministry, the Board is not
prepared to dismiss this Application without a Hearing or a Consultation due to delay, for the following
reasons.
9. In most Decisions in which an Application is dismissed for delay, this issue is examined
during a Hearing on the merits. In this case, OPSEU and the Ministry are requesting that this ruling be
made in the absence of a Hearing. Ms. Holden has provided a factual explanation and submissions
regarding the delay. OPSEU and the Ministry have rebutted most of these facts and submissions.
However, in this case, the Board finds that without a Hearing or Consultation the Board is not able to
fairly assess the allegations and submissions of the parties so as to make rulings to resolve the facts
alleged regarding the delay issue. These factual discrepancies must be resolved to determine, among
other things, whether Ms. Holden's explanation for the delay is reasonable and whether OPSEU and/or
the Ministry have been prejudicial by the delay.
10. Accordingly, the Application will be scheduled for a consultation. At the consultation one or
more of the parties may request that the delay be dealt with prior to the merits. The Board will determine
at the time whether such a request, if any, should be granted.
11. I am not seized.
http://www .canlii.org/onlcas/onlrb/2006/2006onlrb 127 62.html
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Holden v. OPSEU, Local 706, 2006 CanLII 19376 (ON L.R.B.)
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"Peter F. Chauvin"
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http://www.canlii.org/on/cas/onlrb/2006/20060nlrb 12762.html
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