Recent changes affecting matters at the Labour Relations Board due to COVID-19

May 14 update

The Ontario Labour Relations Board published an informational bulletin on May 14 outlining its guidelines for video hearings.

In the Bulletin, the Board recognizes the benefits of conducting hearings by video, including increased accessibility, reduced costs, and a more efficient allocation of resources. It also recognizes that not every case is suitable for a video hearing.

A brief summary of some of the key takeaways from the Bulletin are listed below.

Technology

The Board uses Zoom technology, but also has the capacity to use Skype or Microsoft Teams. If a party seeks to use another platform to host the video hearing, that party should make  submissions to the Board with a detailed explanation about why an alternative platform should be used.

Electronic Filing

The Board’s Rules stipulate the manner and restricted size of e-filing submissions and documents. A party seeking to rely on a significant number of documents or voluminous material may request permission by writing to the Registrar’s office to use a third-party Cloud tool (such as Drop Box, Google Drive, or Microsoft OneDrive) to share with the Vice-Chair and the other parties.

Documents should be labelled in a manner that identifies them clearly for the Vice-Chair so that it is not necessary to open the document to understand what it is.

Books of Authorities

Parties should not file a Book of Authorities with the Board. Instead, parties should simply include hyperlinks to publicly available databases such as www.canlii.org.

Conduct of the Hearing

All participants, other than counsel (or self-represented party) and the witness, are to have their  microphones muted. If the Vice-Chair engages in mediation, only the parties in the hearing will be permitted to participate in the mediation. The Vice-Chair may use virtual break-out rooms to facilitate the private discussions.

Witnesses

All witnesses in the Board’s proceeding must ensure that at any time they are giving evidence:

• They are alone in a room with a closed door;
• They do not have any other electronic device in the room including a cell phone;
• They use any computer or tablet only for the purposes of the video hearing, that all other applications are closed and that they do not use any of the communication functions of the computer (text, email, etc.) at any stage while they are still a witness testifying; and
• They have with them only the exhibits that have been properly introduced in this proceeding and that they look at those exhibits only when asked to do so by counsel.

May 8 update

The Ontario Labour Relations Board announced additional changes on May 8, 2020 cancelling all in-person hearings until June 30, 2020. The Board will review each file scheduled for hearing to determine whether the hearing will proceed by alternate means and will notify parties of the decision.

March 29 update

The Ontario Labour Relations Board announced additional changes on March 29, 2020, which are effective immediately and until further notice:

• The requirements set out in the Board’s notices on the website will supersede any instructions on e-forms, and in particular with respect to the use of email.

• Applications delivered by way email will be acceptable to the Board for:
  • certification applications,
  • termination applications,
  • section 133 grievance referrals, and
  • applications for interim orders.

• A party relying upon delivery by email will need to confirm to the Board that:
  • the employer is continuing to operate and carry on business, and
  • the email used for delivery is one which can be relied upon for effective notice to the responding party and/or other affected party.

• Until the appropriate e-forms are updated, a party relying upon delivery by email may provide this confirmation by writing it in on one of the statement boxes on the applicable form, or by way of separate and attached letter.

• An email or fax number is required for each party to a proceeding or the matter may not be processed further by the Board.

March 25 update

As of March 25, 2020, the Ontario Labour Relations Board is operating remotely and has significantly changed its practices as a result. Accoring to the Board, it will process the highest priority matters first, as it deems necessary and appropriate to determine on an urgent basis. All other applications will be processed to the extent that they can be further processed (e.g. referred to mediation) in view of the more limited capacity of the Board in these extraordinary circumstances. Other significant changes to Board procedures include:

• Matters will be referred to a mediator for mediation by teleconference or email, where possible.
• The Board will also be scheduling, where possible, Case Management Hearings via teleconference or videoconference.
• Parties may continue to make submissions requesting hearings by teleconference or videoconference or any other alternative means.

As of March 23, 2020, the Board is exercising its discretion not to suspend the time periods in which steps must be taken in its proceedings. Certification, termination, and displacement applications are still being accepted electronically and processed by the Board, provided that declarations have been made on the applicable forms to indicate that the Employer is continuing to operate and carrying on business. The Board continues to exercise its discretion to extend timelines at the request of the parties to proceedings as appropriate and where there is a specific and compelling reason to do so.

The Board has also cancelled all in-person hearings scheduled up to and including  May 4, 2020. Parties may make submissions to the Board with respect to rescheduling adjourned hearings to be held instead by telephone or in writing. In addition, all representation votes until May 4, 2020 will be held electronically, although votes will not be held for workplaces closed due to the current pandemic. All in-person mediation meetings scheduled until April 14, 2020 will be cancelled and held instead by teleconference or email.