No. 04–Board Hearings
The following is an information circular prepared by the administrative staff of the CIRB. The circulars are designed to provide employees, trade unions and employers with general information and a clearer understanding of Board processes. This information circular is an informal tool and is not binding on the Board.
Board hearings are normally conducted by a panel of one or three members of the Board. The Board is not required to hold an oral hearing in every case. Section 16.1 of the Canada Labour Code (Part I–Industrial Relations) (the Code) makes it clear that the Board may decide any matter before it without holding an oral hearing. The Board makes the decision as to whether to hold an oral hearing on the basis of the documents on file and the written representations of the parties. It is therefore in the best interest of the parties to file full, accurate and detailed submissions in support of their respective positions. A party requesting that a hearing be held in a matter must include detailed reasons why they think a hearing is required.
If the Board determines that an oral hearing is necessary, the case is scheduled on the basis of priority; for example, applications seeking a declaration of unlawful strike or lockout are given the utmost priority. These applications are usually scheduled within a day or two, unless they are settled quickly with the assistance of a Board-appointed industrial relations officer. Complaints of unfair labour practice resulting from loss of employment will also be scheduled quickly. Other types of cases are scheduled as the circumstances of each case dictate.
The Board can, at any time, order pre-hearing procedures such as case management conferences, to inquire into any matter that may promote the timely resolution of the issues. These preliminary proceedings are considered an integral part of the hearing process and the Board may make rulings in the course of these proceedings that are binding on the parties.
ADVISING THE PARTIES
The Board Regulations provide that:
- Parties must be notified of an oral hearing at least fifteen (15) days in advance of the hearing date;
- Where the expedited process applies (i.e., matters identified in section 14 of the Regulations), the application itself constitutes notice that a hearing may be held at any time.
The Board also has the general power to abridge these time limits. In most cases, the Board attempts to provide as much prior notice as possible.
The parties are given written notice of a hearing or pre-hearing procedures. In some urgent cases, the parties may be advised by telephone. The notice usually contains the date, location and starting time of the Board proceeding, although the specific location is sometimes communicated to the parties at a later date.
REQUEST FOR ADJOURNMENT OR POSTPONEMENT
The logistical difficulties caused by the Board's heavy caseload and its geographically widespread and bilingual community render it very difficult to reschedule dates in an orderly and timely fashion. The Board is therefore very reluctant to accede to requests for postponement of its proceedings. In Frayling, 2010 CIRB 506, the Board discusses its policy regarding requests for postponement.
The Board will not consider a request for postponement unless the party making the request has communicated beforehand with the other parties and attempted to obtain their consent to the postponement. All requests for postponement must be made in writing to the Board, with copies to the other parties at the same time, and must include the reasons for the request for postponement, the positions of the other parties to the request, and a list of alternative dates to which all parties agree and from which the Board may choose, to the extent that this may be possible. Parties should realize, however, that in those instances where a postponement is granted, they may have to wait several months before the Board can reschedule a hearing.
Upon receipt of the request for postponement, the Board will take the parties' positions under consideration. Consideration of a request for postponement does not mean that postponement will automatically be granted, even where all parties give their consent. The decision to grant a postponement rests with the panel that has been scheduled to hear the case after considering the merits of such request. Parties who do not consent to the postponement should make their views known to the Board, as soon as the party seeking the postponement has contacted them.
There may be situations of last minute urgency where it is impossible for the parties to consult one another. In such cases, the Board will only grant the request for postponement in very exceptional cases. Also, in some instances, because of circumstances beyond its control or for reasons totally unrelated to the parties, the Board may unilaterally determine that a postponement is necessary.
Requests for adjournment sine die follow a similar process, although parties are not required to identify alternative dates. The parties will be asked to provide regular updates to the Board and to keep it informed of developments that may impact the status of the matter before the Board.
It must be noted however that if the matter remains dormant for more than twelve (12) months, the Board may send notice to the parties requiring them to show cause. If the parties do not respond within the time frames established by the Board, the matter will be deemed to have been withdrawn (see section 29.1 of the Regulations).
The Board's practice and policy is not to record hearings or to prepare transcripts of its hearings. The Board members presiding over a hearing will take notes of the evidence and submissions, but these notes are not made available to the parties or to the general public.
In exceptional circumstances, recording of a hearing will be permitted upon written request to the Board. If the Board grants the request, it will be the responsibility of the party requesting the recording to make arrangements for such, at his or her own expense. It will also be the responsibility of the party requesting the recording to provide the Board and the other parties with a copy of the transcription.
Simultaneous interpretation in the other official language is available and is provided free of charge. It is the responsibility of the parties to advise the Board of the need for this service in advance of the hearing. A party requiring interpretation in a language other than English or French is responsible for advising the Board of this requirement and for making appropriate arrangements at his or her own expense.
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