Nelligan O’Brien Payne gratefully acknowledges the assistance of Jill Lewis, Student-at-Law, in writing this blog post.
There is a hackneyed phrase loved by lawyers: “justice delayed is justice denied”. For lawyers (like me) who like to show off Latin tags: lex dilationes semper exhorret.1
This sentiment is particularly true in labour law. Backlogs and long delays result in the erosion of remedies for violations of labour rights, increased back pay liability for employers, ineffective or unenforceable orders, and a general decline of public respect and confidence in labour boards.
I asked one of our articling students to find out the length of time it takes various labour boards to render decisions. Some of this data is available in public reports; for other labour boards, she contacted them directly to find out their current service standard. Here, in summary form, is what we found. The data below is for all cases before the labour boards: some labour boards break down their caseload by type, but the chart below is all matters concerning the respective labour relations statutes (in other words, excluding employment standards, workplace safety issues, etc.).
|Labour Board||Average Time to Completion|
|Quebec (Code de travail only)||163 days (2014-2015 year)
The Quebec Board reports on delays by parties and delays by the Board, and also sub-divides heavily by topic. The delays by parties are 58.6 days, and delays by the Board are 104.1 days.
|Manitoba||79.5 days (2012/2013)|
|British Columbia (excluding reviews of arbitration awards, s. 139 references, and reconsideration applications)||64.375 days (2014)
Interestingly, if we remove certification applications, the average delay increases to 83.5 days (certification applications are dealt with, on average, within 43 days).
Further, the median number of days for a certification application is 23. Overall, the median length of time to resolve a case in B.C. is much lower than the average time – certain lengthy cases are skewing the average.
|Ontario||The OLRB does not publish raw average case times; instead, they publish time-bands (8-14 days, 15-21 days, etc.) and the percentage of cases decided within those time bands.
From this publication, the median time to completion is between 57-63 days. However, 26.8% of cases take longer than 168 days to complete.
|Alberta||81.31 average days (2014/2015)|
|Newfoundland||104 days (2014)|
|Canada Industrial Relations Board (CIRB)||167 days|
Some other points of note:
- Many of the Boards tracked the time they took to process different types of files. In all cases, except for the CIRB, the time taken to complete certification applications was less than the time elapsed for other types of cases. Saskatchewan only published the time it took to complete certification cases (and not other cases), and that time was an average of 47 days.
- As part of my Canadian inferiority complex, I have to compare this data to the United States. On this topic, that comparison actually makes sense since both Canada and the United States use the Wagner Act model of labour relations. The U.S. National Labor Relations Board was notorious for huge backlogs and delays. In a paper written by John Truesdale while he was the chairman of the NLRB, he reported that an internal audit showed that there were 74 certification cases over two years old, and 72 unfair labour practices cases over three years old.2 A more optimistic press release by the NLRB in 2012 stated that the median age of pending cases was 108 days. This is still much worse than the time taken by Canadian labour boards – remember, the figures above (except for Ontario) are averages, not median time. The median time for labour boards across Canada is, generally, better than 108 days.
- The data from Ontario shows that most cases are dealt with fairly expeditiously, but there are a significant number of cases that take a long time to resolve. Those long cases skew the average to make it seem as if it takes longer to resolve the normal case. The B.C. board data, as discussed above, shows the same result. I suspect that other labour boards have the same experience: many cases are dealt with quickly, but the long cases take a really long time.
- I do not know how Quebec measures the delays that are the responsibility of the parties and the delays that are the responsibility of the Board. For example, if one party consents to an extension of time requested by the other party – but only because they know the Board would grant the extension anyway – is that delay really the fault of the parties? Similarly, if the parties make prolix and convoluted submissions, is the delay in issuing a decision really the fault of the Board?
The data provided by labour boards shows that they are deciding cases relatively expeditiously. While all tribunals can do better and decide cases faster, it is useful to keep in mind that labour boards are – on average – issuing decisions before parties in a court would have even finished filing their pleadings. In short, there is no need for the floggings to continue: labour boards are, generally speaking, doing their jobs.
Want to learn more about labour boards? Read Chris Rootham’s previous blog about the Public Service Labour Relations and Employment Board (PSLREB).
1You can look this up using Google translate. Go ahead, I’ll wait.
2J. Truesdale, “Battling Case Backlogs at the NLRB: The Continuing Problem of Delays in Decision Making and the Clinton Board’s Response” (2000), 16 The Labor Lawyer 1.