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. |
