HomeMy WebLinkAbout2386-04-U - Quintyn 05-03-11
Quintyn v. Ontario Public Service Employees Union, 2005 CanLIT 6920 (ON L.R.B.)
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This document: 2005 CanU! 6920 (ON loR-B.)
Citation: Quinlyn v Ontario Public Service Employees Union, 2005 CanLl! 6920 (ON L RB )
Date: 20050311
Docket 238604U
2386-04-U Esrick Quintyn, Applicant v. Ontario Public Service Employees Union,
Responding Party, v. The Crown in Right of Ontario as represented by Management Board of
Cabinet, Intervenor.
BEFORE: Ian Anderson, Vice-Chair.
DECISION OF THE BOARD; March II, 2005
1. This is an application under section 74 of the Labour Relations Act, 1995, S.O. 1995, c. I, as
amended (the "Act"). The responding union, the Ontario Public Service Employees Union (OPSEU), has
requested that the application be dismissed for delay or in the alternative for failure to plead a prima facie
case. The employer has intervened and filed a response. It requests that the application be dismissed for
failure to plead a prima facie case.
2. The application was filed with the Board on October 14, 2004. It appears to relate to Mr.
Quintyn's layoff from the public service in 1996, sevcral grievances which he filed around that time, his
application to be re-hired into the public service in 2001 and the union's response to his request that it
assist him with respect to the employer's failure to re-hire him at that time.
3. Subsection 99(3) of the Act provides that the Board is not required to hold a hcaring with
rcspect to a complaint under section 74 ofthe Act. Rules 46, 76 and 77 of the Board's Rules of Procedure
provide as follows:
46. Where the Board considers that an application does not make out a case for the
orders or remedies requested, even if all of the facts stated in the application are
assumed to be true, the Board may dismiss the application without a hearing or
consultation. In its decision, the Board will set out its reasons.
76. In order to expedite proceedings, the Board may, on such terms as it
considers advisable, consult with the parties, conduct a pre-hearing conference, issue
any practice direction, shorten or lengthen any time period, change any filing or
delivery requirement, schedule a hearing, if any, on short notice, or cancel such
hearing, make or cause to be made such examination of records or other inquiries as
it considers necessary in the circumstances, or limit the patties' opportunities to
present their evidence or to make their submissions.
77. Where the Board is satisfied that a case can be decided on the basis of
the material before it, and having regard to the need for expedition in labour relations
matters, the Board may decide an application under ... [section] 99... of the Labour
Relations Act, without an oral hearing.
http://www.canlii.org/on/cas/onlrbI200512005onlrbl1516.html
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Quintyn v. Ontario Public Service Employees Union, 2005 CanLU 6920 (ON L.R.B.)
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4.
Section 74 ofthe Act provides:
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 ernpjoyee;;jn 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.
[EnJIlhasis supplied.]
Since it appears that Mr. Quintyn was not an employee in the unit when he applied for a position in 200 I,
it is far from clear that OPSEU owed him any duty of fair representation at that time. Be that as it may,
the entire application appears to be untimely.
5. The seminal case with respect to the Board's approach to issues of timeliness in duty of fair
representation cases is The Corporation of the City of Miss issa uga [1982] OLRB rep. March 420. At
paragraphs 20 to 22 the Board stated as follows:
20. 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 chrystalIized [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 CGE 3 L.A.C 980 (Laskin) and
Re Oil Chemical and Atomic Workers, Local 9-672 and Dow Chemical of Canada
Limited [1966] 18 LAC. 51 (Arthurs)).
21. 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.
22. 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
http://www.canlii.org/on/cas/onlrb/2005/2005onlrb 11516.html
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Quintyn v. Ontario Public Service Employees Union, 2005 CanLII 6920 (ON L.R.B.)
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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
6. In William Gordon Switzer [1997] OLRD 2605, the Board stated that where the delay is in
excess of one year, the onus is on the applicant to provide a satisfactory explanation for the delay [at para
14] :
As a general matter, where the delay asserted is less than one year, the onus is on the
responding party to demonstrate actual prejudice (or perhaps some other good reason)
sufficient to justify dismissing a complaint without a hearing on its merits.. But where
the delay is more than one year, the onus is on the applicant to provide a satisfactOlY
explanation for it. At that point it becomes incumbent upon an applicant to provide a
good reason for the Board to exercise its discretion in favour of entertaining the
application or complaint
7. Mr. Quintyn shall have until March 29, 2005, to file any submissions he may have as to why
this application should not be dismissed for delay. He must deliver a copy of any such submissions to the
other parties on or before the date he files them with the Board. The other parties are not required to file
any fmiher submissions with the Board unless and until directed to do so. Unless Mr. Quintyn provides a
satisfactory explanation for the delay, his application will be dismissed.
8. In the event that I do not dismiss the application in its entirety, I will address the request by
the employer and the union that the appl ication be dismissed for failure to plead a primafacie case.
9.
I remain seized for the purposes of the issues raised by this decision.
"Ian Anderson"
the
Board
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9/30/2005
Quintyn v. Ontario Public Service Employees Union, 2005 CanLII 8213 (ON L.R.B.)
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>>
This document: 2:005 CanU! 82:13 (OI\! LRB.)
Citation: Quintyn v. Ontario Public Service Employees Union, 2005 CanLlI 82.13 LR
Date: 200503.24
Docket: 2386.04.1)
2386-04-U Esrick Quintyn, Applicant v. Ontario Public Service Employees Union,
Responding Party, v. The Crown in Right of Ontario as represented by Management Board of
Cabinet, Intervenor.
BEFORE: Ian Anderson, Vice-Chair.
DECISION OF THE BOARD; March 24, 2005
1. The Board is in receipt of a letter dated March 22, 2005, from Mr. Quintyn which states:
"Due to some family emergencies I am requesting an extension until April 5,2005."
2. There is no indication that a copy of the letter was sent by Mr. Quintyn to the other parties.
Rule 33 of the Board's Rules of Procedure provides that any document filed with the Board must also be
delivered to the other parties. Any such document filed with the Board must also be accompanied by a
statement that a copy has been provided to the other parties. Mr. Quintyn is directed to comply with this
obligation in the future.
3. Having regard to Mr. Quintyn's letter of March 22, 2005, the deadline imposed on him by
paragraph 7 of the Board's decision of March 11, 2005, for filing submissions is hereby extended to April
5, 2005.
"Ian Anderson"
....for the
Board
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Quintyn v. Ontario Public Service Employees Union, 2005 CanLII 8213 (ON L.R.B.)
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tr~li. Le,..,xUM ror HiS FedcratiC-'fl of la'l<v Socie4ins of Cana,da
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http://www.canlii.org/on/cas/onlrb/2005/20050nlrb 11536.html 9130/2005
Quintyn v. Ontario Public Service Employees Union, 2005 CanLTI 11503 (ON L.R.B.)
Page 1 01'2
Ontario >> Ontario Labour Relations Board >>
This document:
Citation: Quintyn v
Date: 20050408
Doc!HJt 2386.04-U
Union, 2005 CanLU 11503 (ON LR
2386-04-U Esrick Quintyn, Applicant v. Ontario Public Service Employees Union,
Responding Party, v. The Crown in Right of Ontario as represented by Management Board of
Cabinet, Intervenor.
BEFORE: Tan Anderson, Vice-Chair.
DECISION OF THE BOARD; April 8,2005
I. Mr. Quintyn has filed a letter dated AprilS, 2005, in response to the Hoard's decision dated
March II, 2005, inviting him to file submissions as to why his application should not be dismissed for
delay.
2. In his submissions, Mr. Quintyn asserts that the union and the employer must show cause as
to why his application should not be heard by the Board.
3. As stated by the Board in its decision dated March II, 2005, where the delay is more than
one year there is a practical onus on the applicant to provide good reason why the Board should exercise
its discretion to hear the application. In this case, the delay is three years with respect to one set of events
complained of and eight years with respect to the other. In these circumstances the Board does not accept
that the union and the employer have an initial onus to show cause why the complaint should not be
dismissed.
4. Tn his submissions, Mr. Quintyn provides no explanation for his delay in filing the
application. Rather he argues that it would be a travesty of justice for the Board not to hear his
application.
5. What ever the merits of Mr. Quintyn's application, there are compelling and cogent labour
relations reasons not to enquire into complaints of long past events, which were set out in the Board's
decision of March I I, 2005.
6. For these reasons, and the reasons stated in the Board's decision of March I I, 2005, this
application is dismissed.
"Ian Anderson"
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9/30/2005
Quintyn v. Ontario Public Service Employees Union, 2005 CanLII 11503 (ON L.R.B.)
Board
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9/30/2005