Canada Industrial Relations Board Regulations, 2012

Canada Industrial Relations Board Regulations, 2012 The Canada Industrial Relations Board, pursuant to section 15a of the Canada Labour Code hereby makes the annexed Canada Industrial Relations Board Regulations, 2001. L.C. 1998, c. 26, s. 3 November 23, 2001 The following definitions apply in these Regulations. affidavit means a written statement confirmed by oath or a solemn declaration. (affidavit) application includes any application, complaint, question or dispute as defined in section 3 of the Code made or referred to the Board in writing under the Code. (demande) Code means the Canada Labour Code. (Code) complaint includes any complaint filed in writing with the Board under subsection 97(1), 110(3) or 133(1) of the Code. (plainte) day means a calendar day. (jour) intervenor means a person whose request to intervene made under section 12.1 has been granted. (intervenant) party means any applicant, respondent and intervenor. (partie) person includes an employer, an employers’ organization, a trade union, a council of trade unions, an employee or a group of employees. (personne) Registrar means an employee of the Administrative Tribunals Support Service of Canada whom the Board has authorized in writing to act on its behalf. (greffier) reply means the document by which the applicant replies in writing to a response and that is the final step in the application process. (réplique) response means the document by which a respondent responds in writing to an application. (réponse) Returning Officer means an individual appointed by the Board to conduct a representation vote. (directeur du scrutin) Only the Chairperson, a Vice-Chairperson, or another member of the Board may sign an order or a decision of the Board, although a Registrar is authorized to sign the decisions referred to in section 3. [Repealed, SOR/2011-109, s. 2] In addition to processing any matters on behalf of the Board, a Registrar may make binding decisions on uncontested applications on behalf of the Board in respect of amendments to certification orders made pursuant to section 18 of the Code, incidental to a change of a party’s name; applications for certification pursuant to section 24 of the Code; successor rights, privileges and duties under section 43 of the Code; change of the name incidental to successor employer applications pursuant to sections 44 to 46 of the Code; and withdrawal of any complaint or application prior to its referral by the Chairperson to a panel. A proceeding before the Board is initiated by filing a document in writing in accordance with these Regulations. In any proceeding before the Board, the use of the forms provided by the Board is encouraged but not essential. An application, response, reply or request to intervene filed with the Board shall be signed as follows: if it is filed by a trade union, a council of trade unions or an employers’ organization, it shall be signed by the president or secretary or two other officers or by any individual authorized by the trade union, the council of trade unions or employers’ organization; if it is filed by an employer, it shall be signed by the employer or by the general manager or chief executive officer or by any individual authorized by the employer; and if it is filed by an employee, it shall be signed by the employee or by any individual authorized by the employee. For the purpose of subsection (1), the Board may require that an authorization be given in writing and filed with the Board. If an application, response, reply, request to intervene or other document is required to be filed with the Board or served on any person, it must be filed or served on the person, the person’s legal counsel or the person’s representative by delivery by hand; by mail at the address for service, as defined in subsection (2); by fax that provides a proof of receipt of the document; or by any other means authorized by the Board. For the purpose of subsection (1), address for service means in the case of the Board, the address of an office of the Administrative Tribunals Support Service of Canada that is identified as a Board office; and in the case of any other person, the person’s address as it appears in any notice issued by the Board in that proceeding, or if no address appears, the latest known address of the person. A document that is transmitted by fax must include the following information: the name, address, telephone and fax numbers of the person transmitting the document; the name, address, telephone and fax numbers of the person to whom the document is being transmitted; the date and time of transmission; and the total number of pages being transmitted. The date of filing of an application, response, reply, request to intervene or any other document with the Board is if the document is sent by registered mail, the date it is mailed; and in any other case, the date the document is received by the Board. If the time limit for the completion of any task or the filing of any document expires or falls on a Saturday or a holiday, as defined in subsection 35(1) of the Interpretation Act, it is extended to the next day after that. An application filed with the Board, other than an application to which any of sections 12.1, 33, 34, 36, 37, 40 to 43 and 45 apply, must include the following information: the name, postal and email addresses and telephone and fax numbers of the applicant and of their legal counsel or representative, if applicable; the name, postal and email addresses and telephone and fax numbers of the respondent; reference to the provision of the Code under which the application is being made; full particulars of the facts, of relevant dates and of grounds for the application; a copy of supporting documents; the date and description of any order or decision of the Board relating to the application; whether a hearing is being requested, and if so, the reasons for the request; and a description of the order or decision sought. Subject to subsection (2), the Board shall, on receipt of an application and to the extent possible, give notice of the application in writing to a person whose rights may be directly affected by the application. If the rights of employees could be affected by an application, the Board may, in writing, require an employer or a trade union to do one or both of the following: immediately post any notices of the application that are provided by the Board, for the reasonable period that it prescribes, in places where those notices are most likely to come to the attention of the employees who may be affected by the application; and notify the employees who may be affected by the application by any other means set by the Board that ensures that they receive effective notice of the application. An employer or a trade union, as the case may be, must provide written confirmation to the Board that it has complied with any requirement prescribed in subsection (2). The date on which the employees are deemed to have received notice of the application is the earliest of the day on which the employees are given notice by the Board of the application under subsection (1); the day on which the notice is posted under paragraph (2)(a); and the day on which the employees are notified of the application under paragraph (2)(b). Any person who makes a response or reply must include the following information in the response or reply: the name, postal and email addresses and telephone and fax numbers of the respondent and of their legal counsel or representative, if applicable; the Board’s file number for the relevant application; full particulars of the facts, relevant dates and grounds for the response or reply; a copy of supporting documents for the response or reply; the person’s position relating to the order or decision sought by the applicant or respondent, as the case may be; an indication as to whether a hearing is being requested and, if so, the reasons for the request; and A response must be filed in the case of an application for certification, within 10 days of the receipt of notice of the application; and in the case of any other application, within 15 days of the receipt of notice of the application. A reply must be filed within 10 days of the filing of the response. A request for an extension of time to file a response or reply must be made in writing to the Board and set out the grounds for the request. Any person who wishes to apply for intervenor status must make a request to intervene in writing that includes the name, postal and email addresses and telephone and fax numbers of the person and of their legal counsel or representative; a description of the person’s interest in the matter including, an explanation of any prejudice that the person would suffer if the intervention were denied and an explanation as to whether their interest is different from that of any other party; and an indication as to how the intervention will assist the Board in furthering the objectives of the Code. A request to intervene must be filed A response to a request to intervene must be filed within 10 days of the receipt of the request. A reply must be filed within 5 days of the filing of the response. If the request to intervene is granted, the intervenor must file with the Board written submissions on the merits of the case within 10 days of the receipt of notice that the request to intervene has been granted, including full particulars of the facts, relevant dates and grounds for the submissions; a copy of supporting documents for the submissions; the intervenor’s position relating to any order or decision sought; A response to the intervenor’s submissions on the merits of the case must be filed within 10 days of the filing of the submissions. [Repealed, SOR/2014-243, s. 3] A request for any extension of time for filing a document under this section must be made in writing to the Board and set out the grounds for the requested extension. [Repealed, SOR/2012-305, s. 7] An expedited process applies to the following matters: applications for interim orders made under section 19.1 of the Code; applications to file a decision or order of the Board in the Federal Court or in the superior court of a province, made under sections 23 and 23.1 of the Code; referrals to the Board directed by the Minister under section 80, subsection 87.4(5) or section 107 of the Code; applications for declaration of an invalid strike or lockout vote made under subsections 87.3(4) and (5) of the Code; applications for declaration of unlawful strike or lockout made under sections 91 and 92 of the Code; unfair labour practice complaints respecting dismissals for union activities referred to in subsection 94(3) of the Code and prohibited uses of services referred to in subsections 94(4) and (6) of the Code; and complaints respecting a dismissal made under section 133 of the Code. An application to which the expedited process applies must be served on the respondent at the same time that it is filed with the Board. The application served on a respondent in accordance with subsection (1) constitutes notice to the respondents that a hearing may be held forthwith, at a time and a place to be communicated by the Board. A person who wishes to respond, reply to or intervene in an application to which the expedited process applies must do so no later than five days after receiving notice of the application or the response, as the case may be. [Repealed, SOR/2012-305, s. 9] Subject to subsection (2), an application for an interim order under 19.1 of the Code must include an affidavit by an individual having personal knowledge of the alleged facts. If an individual does not have personal knowledge of the alleged facts, the individual must state the source of information or belief and the basis for relying on the information received from that source. The Board may specify terms of any cross-examination and reply of the deponent. Unless the Board specifies otherwise, any interim order is in effect until the matter is finally disposed of by the Board. The Board may at any time require a person who has filed an application, response, reply, request to intervene or other document with the Board to verify by affidavit the contents of that document within the reasonable time specified by the Board. The Board may order, in respect of two or more proceedings, that they be consolidated, heard together or heard consecutively. A party that seeks disclosure of relevant documents must request in writing the disclosure directly from the other parties before applying to the Board for an order requiring disclosure. [Repealed, SOR/2012-305, s. 10] If parties enter into an agreement respecting the disclosure of documents, the Board may order that they file a copy of the agreement with the Board. [Repealed, SOR/2011-109, s. 12] Subject to subsection (2), the Board must place a document on the public record if the document is relevant to the proceeding. The Board, on its own initiative or at the request of a party, may declare that a document is confidential. In determining whether a document is confidential, the Board must consider whether disclosure would cause specific direct harm to a person and whether the specific direct harm would outweigh the public interest in disclosure. If the Board declares that a document is confidential, the Board may order that the document or any part of it not be placed on the public record; order that a version or any part of the document from which the confidential information has been removed be placed on the public record; order that any portion of a hearing, including argument, examination or cross-examination, which deals with the confidential document, be conducted in private; order that the document or any part of it be provided to the parties, or only to their legal counsel or representative, and that the document not be placed on the public record; or make any other order that it considers appropriate. Subject to sections 15, 22 and 34, a person who files a document with the Board in respect of a proceeding must, forthwith, serve a copy of that document on all parties and any other person named in any notice that the person has received and inform the Board of the time and manner of service. Any individual who has been authorized by the Board under paragraph 16(k) of the Code may, in relation to a proceeding before the Board, issue a summons requiring an individual to appear, give evidence under oath and produce documents and things. With the exception of a matter to which the expedited process applies, or with the consent of the Board, the summons referred to in subsection (1) must be served no later than five days before the hearing. [Repealed, SOR/2012-305, s. 14] [Repealed, SOR/2011-109, s. 15] A party that intends to present evidence must file with the Board six copies or such other number as the Board may specify of the following: all documents on which the party intends to rely as evidence, including any documents filed with the application, response or reply, as the case may be, in one or more tabbed books; and a list of witnesses expected to be called that includes their names and occupations, along with a summary of the information that is expected to be provided on issues raised in the application, response or reply. The documents referred to in subsection (1) must be filed no later than ten days before the scheduled date of the hearing, in the case of the applicant; or no later than eight days before that date, in the case of the respondent and the intervenor. The documents and information referred to in subsection (1) must be served on all other parties in the applicable time limit as set out in subsection (2). If a party does not comply with subsection (1), (2) or (3), the Board may refuse to consider any document or hear any witness tendered by the party at the hearing. The Board may require that the party submit to the Board the written authorities and submissions on which the party intends to rely in advance of the hearing. Subject to the provisions of subsection 15(2) respecting an expedited process, the Board must give not less than 15 days notice of a hearing to the parties, unless the parties consent to a shorter notice. In addition to adjourning or postponing a hearing under paragraph 16(l) of the Code, the Board may cancel a hearing. If a proceeding has been adjourned without the fixing of a day for a further hearing, the Board shall give notice to the parties upon expiry of six months from the date of adjournment, that the proceedings will be deemed to be withdrawn at the expiry of 15 days after receipt of the notice. A party may request that a proceeding be resumed by providing written reasons to the Board for the request within 15 days after receipt of the notice. If a matter has been dormant for more than 12 months, the Board may send a notice to all of the parties requiring them to show cause why the matter should not be deemed to be withdrawn and, if there is no response within the period determined by the Board, deem the matter withdrawn. In any application relating to the certification of a bargaining agent the membership of an employee in a trade union is evidence that the employee wishes to be represented by the trade union as that employee’s bargaining agent; and the membership in a trade union of a majority of employees in a unit appropriate for collective bargaining is evidence that the majority of the employees in the bargaining unit wish to be represented by the trade union as their bargaining agent. In any application relating to bargaining rights, the Board may accept as evidence of membership in a trade union evidence that a person has signed an application for membership in the trade union; and has paid at least five dollars to the trade union for or within the six-month period immediately before the date on which the application was filed. In an application relating to paragraph 44(3)(c) of the Code, the Board may accept as membership in a trade union the same evidence as required by the laws or regulations of the province where the application originated. If the Board orders a representation vote to be taken, the Board shall appoint a Returning Officer to conduct the vote. The Returning Officer may give directions to ensure the proper conduct of the vote and shall report the results of the vote to the Board. The Returning Officer may appoint one or more employees of the Administrative Tribunals Support Service of Canada to assist in the conduct of the vote. An application respecting bargaining rights must include the following information: a description of the general nature of the employer’s business; the address of the employer’s establishments affected by the application; a reference to the provision of the Code under which the application is being made; full particulars of the facts, relevant dates and grounds for the application; a copy of supporting documents for the application; a description of any existing bargaining units that may be affected by the application and the details of any certification order; the name, postal and email addresses and telephone and fax numbers of any trade union or council of trade unions that is the bargaining agent for such units or is otherwise affected by the application; if applicable, the effective date and expiry date of any collective agreements in force or expired covering the employees in the existing bargaining unit; a description of the proposed bargaining unit; the number of employees in the existing or proposed bargaining unit; In addition to the information required for an application made under section 33, an application for certification must include a separate and confidential statement of the number of employees in the proposed bargaining unit that the applicant claims to represent as members of a trade union or of a council of trade unions. The Board, or an employee of the Administrative Tribunals Support Service of Canada who is authorized to act on behalf of the Board, must not disclose evidence that could reveal membership in a trade union, opposition to the certification of a trade union or the wish of any employee to be represented, or not to be represented, by a trade union, unless the disclosure would further the objectives of the Code. In addition to the information required for an application made under section 33, an application made by an employee under section 38 of the Code must include a separate and confidential statement, signed by each employee whom the applicant claims to represent, stating that they do not wish to be represented by the bargaining agent and authorizing the applicant to act on their behalf. The statement described in subsection (1) shall show the printed name, the date on which each employee signed the statement, and that date shall be not more than six months before the date on which the application is filed. An application made under subsection 40(1) of the Code must include the name, postal and email address and telephone and fax numbers of the applicant and of their legal counsel or representative, if applicable; the name, postal and email address and telephone and fax numbers of any employer or trade union that may be affected by the application; an indication as to whether a hearing is being requested and, if so, the reasons for the request; a description of the order or decision sought; and full particulars of the acts constituting the alleged fraud, including when and how those acts became known to the applicant. A trade union or council of trade unions shall not file a new application for certification in respect of the same or substantially the same bargaining unit until six months have elapsed from the date on which its previous application was rejected. Any employee shall not file a new application for revocation of certification in respect of the same bargaining unit until six months have elapsed from the date on which a previous application was rejected. A complaint must include the name, postal and email addresses and telephone and fax numbers of the complainant and of their legal counsel or representative, if applicable; the name, postal and email addresses and telephone and fax numbers of any person who may be affected by the complaint; a reference to the provision of the Code under which the complaint is being made; full particulars of the facts, relevant dates and grounds for the complaint; a copy of supporting documents for the complaint; the date and description of any order or decision of the Board relating to the complaint; a description of the order or decision sought; the date on which the complainant knew of the action or circumstances giving rise to the complaint; and particulars of the measures taken, if any, to have the complaint referred to arbitration under a collective agreement or the reasons why the arbitration did not take place. A complaint in which a violation of paragraph 95(f) or (g) of the Code is alleged must describe the manner in which the conditions set out in subsection 97(4) of the Code have been met. An application for the declaration of an invalid strike or lockout vote made under subsection 87.3(4) or (5) of the Code must include full particulars of the alleged irregularities in the conduct of the vote that affected the outcome of the vote; the date on which the results of the vote were announced; an indication as to whether a hearing is being requested and if so, the reasons for the request; and An application made under section 87.4 of the Code must include the name, postal and email addresses and telephone and fax numbers of the applicant and of their legal counsel or representative; the address of the employer’s establishments that are affected by the application; full particulars of the facts, relevant dates and the efforts made by the parties to resolve the issue, if any; a copy of the notice to bargain; a copy of the notice of dispute, if any; a copy of the last agreement or order relating to essential services involving the parties, if any; the effective date and expiry date of any collective agreement that is in force or expired covering the employees in the bargaining unit affected by the application; the number of employees in the bargaining unit; the name, postal and email addresses and telephone and fax numbers of any trade union or council of trade unions that is the bargaining agent for other bargaining units that could be affected by the application; a description of the services the applicant alleges are required and the immediate and serious danger to the safety or health of the public that the applicant alleges would occur if the Board does not allow the application; An application made by an employer for a declaration of an unlawful strike under section 91 of the Code must include the name, postal and email addresses and telephone and fax numbers of any trade union and, if applicable, any employee against whom an order is specifically sought, to be referred to as the respondents; the effective date and expiry date of any collective agreements in force or expired covering the employees in the existing bargaining unit; the number of employees in the existing bargaining unit; Service on the bargaining agent or one of its officers of notice of an application referred to in subsection (1) or notice of a hearing in respect of the application constitutes service of the notice on the employees in the bargaining unit except those against whom an order is specifically sought in the application. An application made by a trade union for a declaration of an unlawful lockout under section 92 of the Code must include the name, postal and email addresses and telephone and fax numbers of the employer of the employees being locked out and, if applicable, of any person acting on the employer’s behalf against whom an order is specifically sought, to be referred to as the respondents; [Repealed, SOR/2012-305, s. 22] An application for reconsideration of a decision or order of the Board must include the name, postal and email address, telephone and fax numbers of any employer or trade union that may be affected by the application; the order or decision of the Board that is the subject of the reconsideration application; The application must be filed within 30 days after the date the written reasons of the decision or order being reconsidered are issued. The application and the relevant documents must be served on all persons who were parties to the decision or order being reconsidered. The Board may vary or exempt a person from complying with any rule of procedure under these Regulations — including any time limits imposed under them or any requirement relating to the expedited process — where the variation or exemption is necessary to ensure the proper administration of the Code. If a party fails to comply with a rule of procedure under these Regulations, after being allowed an opportunity for compliance by the Board, it may summarily refuse to hear or dismiss the application, if the non-complying party is the applicant; or decide the application without further notice, if the non-complying party is the respondent. If a party does not attend a pre-hearing proceeding or a hearing after having been given notice, the Board may decide the matter in the party’s absence. If the Board determines that an oral hearing is necessary, it may give notice of the hearing by any available means, including telephone, fax, publication in a daily newspaper or the posting of notices. [Repeal] These Regulations apply in respect of all proceedings before the Board that are pending on the day these Regulations come into force. Any proceeding initiated or document filed in accordance with the Canada Industrial Relations Board Regulations, 1992 before the coming into force of these Regulations is not invalidated merely because that proceeding or document does not conform to these Regulations. These Regulations come into force on the day on which they are registered.