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     January 2004

Notice to the Community

RE: TRAVEL

     As many of you will know: the Board has absorbed an unprecedented volume of legislative and organizational change over the last decade or so, which has completely transformed both what we do and how we do it.  Moreover, most of these changes were introduced during a period of economic restraint - times when we had to “do more with less”. And in this regard nothing much has changed.  To this day the Board still faces significant program pressures to reduce costs and find ways to deliver services in the most economical and resource efficient manner as possible.

     Of course, one of the early results of these pressures was reduced Board travel for adjudication purposes. I have emphasized the words “for adjudication purposes”, because, in fact, the Board now travels more than it ever did.  However, for operational reasons, most of the travel funds are devoted to either local mediation (which resolves more than 80% of our cases), or administrative processes (e.g. compulsory representation votes) that can only be done locally.  There is little left over for out-of-town hearings. So, in the result, Board Officers travel more than ever before, but adjudicators travel less.   Indeed, since 1996, for most case types, the first couple of hearing days have been automatically scheduled in Toronto – where cases can be “stacked”, where labour relations officers are readily available, and where hearing panels can undertake other duties, if (as often happens) the case does not start immediately, or is settled or adjourned on the day of the hearing.  This is the most efficient use of our adjudicators, and promotes the most effective disposition of our overall caseload – most of which arises within 250 km of Toronto.  In other words, the Board has had to balance access to local adjudication with the most efficient, expeditious and cost-effective way of resolving the bulk of its cases.

      We recognize, of course, that the Board’s travel policy can sometimes pose difficulties for parties in particular geographic areas or particular economic circumstances – especially in longer cases which might require more than one block of hearing days and thus more than one trip. There is, and will continue to be, a service impact.  But, as the last few years have proved, we continue to try to address some of these concerns by scheduling more out-of-town hearings, on request, in all longer cases – but still, as noted below, not necessarily for all case types.

     Cases arising within 250 km of Toronto (driving distance) will still be scheduled to be heard in their entirety in Toronto.  However, for cases beyond 250 km, the Board will continue to travel after the first two days to the following regional centres (Ottawa, Thunder Bay, Sudbury, North Bay, Sault Ste. Marie, Timmins, Windsor/Sarnia), automatically on request, provided that the Board’s other objectives and obligations are not compromised. For example, section 133 applications, strike/lockout cases, and “first contract” applications, will still be heard in Toronto, in their entirety.  These are case types where there are scheduling regimens prescribed by statute; and we can rightly be held accountable to meet them. Similarly, 1st contract cases must be HEARD and DECIDED in 30 days (or so the statute says) and there are also cases that have no statutory time line (strikes and lockouts), but we try to get on within 24/48 hours, because of the nature of the damages that flow if we do not. Nevertheless, having said all of this, we will continue to travel more broadly for other case types that go beyond two days.

      Most regional counsel have been reasonably good about alerting the Registrar as early as possible to any “longer cases” in which they will be proposing a change of venue for any necessary continuation of the hearing.  Moreover, most such cases settle just like cases arising closer to Toronto.  But if they don’t, the Registrar needs as much notice as possible about potential out-of-town continuations. If we are to continue to travel more or less automatically for all longer cases, we will need the information to make such travel plans.  Furthermore, in order to manage the cost impact of more adjudicative travel, we will depend upon the cooperation of counsel:

     It is essential that all settlement efforts be exhausted before the day fixed for hearing.  Prior to 1995, as many as 25% of out-of-town cases were settled on the day of hearing; and, as you will appreciate, that is a waste of Board resources both in terms of the hearing day itself, and the travel time and costs.  In addition, a panel committed to an out-of-town case cannot be readily rescheduled, or used for something else – which impacts on the scheduling and disposition of other matters.  It is essential that pre-hearing discovery and document exchange be completed prior to the commencement of the hearing, so as to avoid wasting hearing time.  It is important for the Board to have an accurate estimate of the total number of hearing days that may be required, so as to minimize the need for a return trip to complete the case.   Without the continued cooperation of counsel on these issues, the Board may be unable to contain the costs associated with this shift of policy.  Accordingly, in order to assist counsel to address these issues, as well as give the Board a better sense of our ongoing out-of-town travel needs, we are asking counsel to continue to flag any out-of-town matter that may extend beyond two days.  We are also asking counsel to help minimize unnecessary witness travel by flagging any preliminary issues which have to be dealt with as early as possible.

      For certification cases, this is already done (usually) in the context of the “regional certification” meetings with Board officers.  But for other case types, the Board will initiate, on request, a pre-hearing conference, by conference call, with a view to identifying and potentially resolving any issues with respect to: preliminary objections; requests to intervene (and conditions, as appropriate); production and disclosure of documents; production and filing of exhibits or other statements as evidence (to avoid calling witnesses); non-disclosure orders; the number, identity and sequence of witnesses; issues respecting summonses, expert witnesses or reports; the  possibility of agreed statements of fact; the filing of authorities to be relied upon; any questions regarding interpreters, transcripts or recording; questions concerning hearing length or venue; mediation services; and so on.

      Our experience to date indicates that this process allows the parties and the Board to have a better sense of the dimensions of the case, and make the best use of the initial two days scheduled. It also has minimized the likelihood of “wasted” hearing time, and “wasted” witnesses, who have to be on standby but are not reached during the first two days because panel time is taken up with “preliminary” issues.  This is irritating for the witnesses and costly for out-of-town parties.

      Experience suggests that this system, while in some cases may be adding an extra step for the parties and the Board, has been successful in reducing the “front end costs” for counsel and witnesses, who have to travel to Toronto for the first couple of hearing days. It has also contributed to the Board being better able to respond to the ongoing pressures I referred to earlier.

      Finally, the community should continue to understand that in order to travel more frequently, there would have to be other scheduling adjustments for both in-town and out-of-town cases, so as to match current case requirements with adjudicator availability.  In particular, the Board cannot guarantee that out-of-town hearing continuation dates will always be set only on the consent of counsel; nor will such dates, once fixed, be adjourned (even on consent) unless there is a compelling reason to do so, and the request is made in a timely way. And as you will appreciate:  the Board still has to respond to the particular mix of cases, operational and fiscal pressures, and priorities, and adjudicator availability that are present at any given time and that combined or in isolation may, from time to time, require the most stringent use of the Board’s resources.

     Tim R. Parker
     Director and Registrar