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An odd, but sensible, ruling

|Written By Jennifer Brown

The vice chairman of the Ontario Labour Relations Board will continue to preside over a hearing involving a union group and an employer even though he has resigned to become in-house counsel for the United Brotherhood of Carpenters and Joiners of America.

The decision from OLRB chairman Bernard Fishbein was made Oct. 17 after Islington Nurseries Ltd., objected to Mark Lewis, the former OLRB vice chairman, continuing with the hearing, suggesting “there is a reasonable apprehension of bias.”

Lewis resigned from the board Oct. 7, 2011 to assume the position of counsel with the UBCJA.

The hearing he was presiding over involved an application for certification and an unfair labour practice complaint under s. 96 of the Labour Relations Act in Universal Workers Union, Labourers’ International Union of North America, Local 183 v. Islington Nurseries Ltd., and Labourers’ International Union of North America, Ontario Provincial District Council v. Islington Nurseries Ltd.

In his decision, Fishbein noted that, “These proceedings have been strongly contested and have already consumed nine days of hearing. They are re-scheduled for hearing on Nov. 4, 24, and 25, 2011. Neither party expects that the matters will be completed in those hearing days and that further hearings will be required which will likely take the case well into 2012.

“In view of the lengthy number of days of hearing that have already taken place, I have authorized Mr. Lewis to continue to preside over these cases. Mr. Lewis, notwithstanding the disruption to his personal affairs that will undoubtedly impose following his resignation from the Board, has agreed to do so.”

In fact, s. 110(7) of the act states that: “If a member of the Board resigns or his or her appointment expires, the chair of the Board may authorize the member to complete the duties or responsibilities and exercise the powers of a member in connection with any matter in respect of which there was a proceeding in which he or she participated as a member.”

Fishbein’s decision doesn’t surprise labour lawyers familiar with the OLRB and the system. Due to the length of time the hearing had already taken, and the resources required to start a new one, the decision is a logical one says Paul Broad, a partner with Hicks Morley Hamilton Stewart Storie LLP.

“My initial thought was that something doesn’t seem quite right here,” says Broad. “I can understand why they did what they did — it’s a reasonable decision at the end of the day. I think the overall judgment makes sense; it’s odd, but it makes sense.”

Broad explains that “it’s the nature of what we do” — that while it would be preferable to have definitive camps of employer, union, and a neutral party in the middle, often lawyers who come to the board have come from private practice where they may have represented union groups or employer groups or both at one time, but that they can drop the bias and hear cases.

“That’s what seems a little odd; that you can be neutral and practising at the same time, but having said that, in the circumstances, I can understand because there would be a lot of prejudice given how far they were into what appears to be a very contentious hearing, to then have to stop the whole thing and start it up again,” he says.

The decision should not be considered controversial, says employment and labour lawyer Hendrik Nieuwland of Shields O’Donnell MacKillop LLP.

“It is not unusual for vice chairs to leave the board and return to private practice. It is also not unusual for a vice chair to agree to complete ongoing hearings. The mere fact that a departing vice chair will act as counsel for unions or for management cannot reasonably raise an apprehension of bias.”

Nieuwland added that Fishbein was right to point out that vice chairs are not disqualified from hearing cases involving their former firms or clients (following a “cooling off period”).

“Vice chairs are experienced professionals who do not handcuff themselves to the side they represent as counsel in private practice. They were advocates, not ideologues. My personal view is that vice chairs are only interested in reaching a practical and just decision. Whether that happens to favour a union or management in any given case is not a factor given any weight,” he says.

What is interesting, says Broad, is that before Lewis went to the OLRB, he was general counsel to the Labourers’ International Union of North America — one of the parties involved in the hearing he is presiding over, and prior to that, a member of the law firm that appeared as counsel to the union in the cases, but no one objected to that past affiliation.

“In his previous work he had clear ties to that specific union but nobody seemed to mind,” says Broad.

In his decision, Fishbein also commented on this relationship saying, “This was not the subject of any attack by the employer on the basis of reasonable apprehension of bias basis. Nor could it have been.

“It is difficult to conceive how Mr. Lewis’ prior association with the very applicant and the very law firm involved in this application did not give rise to a reasonable apprehension of bias, but his association with a completely different trade union completely unrelated to this application, would.”

  • RE: An odd, but sensible, ruling

    David Samuel, Q.C.
    Vice Chairman Lewis should have had the good sense to recuse himself from presiding over the hearing from day one based on the appearance of bias based on his past association with one of the parties. In the absence of a note on the record that counsel for the employer was made aware of Mr. Lewis' past association with the Union and despite that knowledge had expressed his consent to his appointment to hear the matter any result that ultimately favors the Union will be tainted.

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