Former labour board vice-chair to continue presiding over hearing after complaint

Labour Relations Act states that resigned members can complete cases

A former Ontario Labour Board vice-chair has been deemed suitable to preside over an ongoing proceeding after the responding party complained that the vice-chair recently resigned from the board to pursue employment with a union.

Labour Board vice-chair Mark Lewis had already presided over nine days of an unfair labour practice complaint when he resigned from the labour board to pursue employment with the United Brotherhood of Carpenters and Joiners of America. Under Section 110(7) of the Labour Relations Act, however, the chair of the board may authorize the member to continue to hear a case after he or she resigns.

“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,” wrote labour board chair Bernard Fishbein. “Mr. Lewis… has agreed to do so.”

The responding party, Islington Nurseries Limited, argued that it would be unfair for Lewis to preside over the hearing because his role with the union will foster the appearance of bias.

“[W]hile he may not be closely tied to the specific issues in dispute in this particular case, it is not unexpected that he will be closely tied with the trade union perspective,” the nursery wrote in its complaint.

Fishbein dismissed the argument, though, saying that “no right-minded person” can apprehend bias solely because of involvement in the labour law field, either previous to his or her appointment to the labour board or because he will return to the practice subsequent to the appointment. He added that before his appointment as chair of the board, he himself practiced as a union labour lawyer and often represented the union.

Fishbein said that Section 110(7) exists for situations “exactly like this” to prevent cases from being left unresolved and becoming a “consequential waste of time and resources.”

“If the argument of the Employer is correct, it would lead to section 110(7) being available only when the resigning Vice-Chair were retiring from all employment or being employed in an area completely unrelated to labour law – the very area where the Vice-Chair had earned his/her livelihood and developed considerable expertise for some considerable time beforehand,” Fishbein wrote in his decision. “In my view, not only is such an interpretation or application of section 110(7) unwarranted and unreasonable, but it is not, in the words of the Supreme Court of Canada, ‘viewing the matter realistically and practically’.”

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