Franklin v. Local 873 [2004] O.L.R.D. No. 3342 (Ontario Labour Relations Board)

First of two decisions.  Duty of fair representation complaint.  The member (Franklin) complained that the local had breached its duty by refusing to file a grievance with respect to the termination of his employment by T&J Films Inc.  The member waited six months before filing his complaint.  The local argued that the complaint should be dismissed because of excessive and prejudicial delay and as failing to demonstrate a prima facie case.  The Board examined the jurisprudence and the factors for determining whether a delay is excusable, namely: the length of the delay and the reason for it, the time when the complainant became aware of the alleged statutory violation, the nature of the remedy claimed and whether the delay would be prejudicial to the parties because of unavailability of witnesses, fading recollections and other deterioration of evidence necessary to a full defence.  The Board found no prejudice that would arrant the Board refusing to inquire into the member’s complaint and also refused to dismiss the complaint as failing to disclose a prima face case.  In particular, the complaint alleged procedural shortcomings that could be arguably relevant to a duty of fair representation complaint.

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