The Scheduling and Adjournment of Expedited Applications

    Introduction

The purpose of this Practice Guideline is to outline the general approach taken by the Labour Relations Board to the scheduling and adjournment of expedited applications.  As with all Practice Guidelines formulated under Section 132 of the Labour Relations Code, this document is issued for the guidance of the labour relations community; it is not binding on panels of the Board hearing particular applications.

  Practice

The Board is required under the Labour Relations Code and the Labour Relations Board Rules to schedule and hear a variety of applications on an expedited basis.  These matters most commonly include applications for certification, unfair labour practice complaints, and complaints regarding conduct regulated by Part 5 of the Code.  Other matters may also be scheduled on an expedited basis, having regard to the issues raised by the application.

 A party who has an expedited application may telephone the Registrar at (604) 660-1300 to discuss the processing of the application.  On the weekends and statutory holidays, a Vice-Chair of the Board may be reached by calling the Board's after-hours telephone: (604) 644-3033.

 The Board is particularly careful to ensure that an expedited application or complaint complies substantially with all applicable filing requirements before scheduling the matter.  This is necessary in order for the respondent to fairly know the nature of the proceeding and prepare for the hearing.  The Registrar has a discretion to direct compliance with the Code or the Rules, and/or to require further information, before an application or complaint is accepted.  In accordance with Rule 2(5), a proceeding is not commenced until all requirements under the Code and the Rules are fulfilled. 

 Where a respondent believes that a proceeding has not been properly commenced, the alleged deficiencies should immediately be brought to the Registrar's attention.  This includes advising the Board of additional persons who may be affected by the application, and should be therefore given notice of the proceeding.

 A common feature of the expedited process is the scheduling of hearing dates by the Board without advance consideration of the calendars of the parties or their counsel.  Indeed, in some cases, the hearing date is statutorily driven (see Section 5(2) of the Code).  The nature of this practice was the subject of comment in Bhandal Drywall Ltd., BCLRB No. 42/86 (reconsidering BCLRB No. 315/85):

A feature of most of the Board's expedited procedures is the unilateral fixing of dates for meetings and hearings by the Board without taking into account the calendars of the parties or their counsel.  In order to achieve the desired policy of expedition, it is necessary to take this approach for two reasons.  First, the resources of the Board are not unlimited and the availability of adjudicative panels of the Board is limited by the availability of the Chair and the Vice-Chairs.  Great difficulty is often encountered in having the necessary adjudicators available to meet the time frames contained in the various expedited procedures.  Second, and particularly having in mind the limited resources of the Board, the Board's experience in setting down expedited dates on a consensual basis has not been positive.  Rather than face these consequences and in order to meet the policy objective of expedition, the Board has opted to fix dates unilaterally and, as a general rule, to change those dates only where a consent of all parties is obtained.  The latter rule is not a hard and fast one, as it must in the interest of natural justice, be tempered by considerations beyond the control of the parties such as the unavailability of a crucial witness or the sudden illness of counsel.  Faced with such exigencies the Board in deciding on the appropriateness of an adjournment must balance the competing interests and even where an adjournment is considered appropriate, it may impose certain terms or conditions on the granting of the adjournment to minimize the prejudice suffered by the opposing party.  (p. 9)

 The panel in the Bhandal Drywall case justified this practice, in part, by relying on what are now Sections 2(1)(d) and 126 of the Code. The practice was affirmed in North Shore Taxi (1966) Ltd., BCLRB No. B8/93.

 In scheduling expedited applications which must be heard within a specific time period, the Board applies provisions of the Labour Relations Code in accordance with the Interpretation Act.  An example is a hearing into an unfair labour practice complaint which must be commenced within three days; where the third day falls on a Sunday, the time for commencement will normally be extended to the Monday (see Section 25(2) of the Interpretation Act).  Nonetheless, there will be occasions where it is necessary for the Board to conduct hearings on weekends and statutory holidays. 

Once an expedited application has been scheduled for hearing, an adjournment will rarely be granted in the absence of agreement between all parties.  Some of the limited exceptions were canvassed in the Bhandal Drywall case.  After a hearing has been commenced, an adjournment will only be granted at the discretion of the panel for valid reasons.

Adjournment requests frequently arise in the course of the certification process -- either from the employer, or from the trade union where the employer opposes the application on some unexpected basis.  Disclosure of IRO reports to the parties should minimize the situations in which unanticipated issues arise.  However, they will not always be available in advance and this alone does not provide sufficient reason for adjournment.  Unless parties are genuinely "caught by surprise" in circumstances which could have been avoided by the other party, a hearing will proceed as scheduled.  Respondents to any application are expected to advise the applicant of objections which may be raised at the earliest possible opportunity.  Finally, all adjournments (including those proposed by agreement) are granted at the Board's discretion, and may be subject to imposed terms or conditions.

 


    Effective: 03/01/93
    Revised: 08/2001


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