We have all been told at least once, “Sorry, you’re too late”. What if it was your turn to say it? It is well known that in the context of grievance arbitration, both unions and employers must conduct their files with diligence in order to avoid causing prejudice to the other party. Failure to do so has consequences, such as the loss of their right of action. The defense of laches can be used against the other party where there was unjustified delay in exercising its rights, though no definite prescription period is applicable.
In order to successfully use the defense of laches, two elements must be present. First, the grievor must have caused an unjustified and unreasonably long delay. Second, this delay must have caused prejudice to the other party. In other words, a plaintiff who waits too long to exercise its rights is presumed to be negligent and to have abandoned its grievance. Hence, the plaintiff will have to demonstrate that there was an acceptable reason for the elapsed time. Even if a reasonable explanation is provided, the right of action may still be lost, based on the fact that the other party has suffered irreparable prejudice.
For example, in a recent Quebeccase, the union submitted six grievances to arbitration more than two and a half years after submitting them to the employer. In his ruling, the arbitrator clearly stated that the delay must be calculated from the time when the grievance was submitted to the employer. In this case, the employer received six grievances in October and November 2007, but the union decided to submit them to arbitration only on May 27, 2010. Since no acceptable justification was given by the union, the delay was considered unreasonable and rendered the grievance non-arbitrable because it caused a great prejudice to the employer.
The doctrine of laches is applicable on a case-by-case basis and all relevant circumstances should be taken into account. Therefore, there is no clearly defined delay after which this doctrine automatically applies. Note that a 13 month delay was ruled unreasonably long. As to acceptable justifications, it is clear that delays resulting from circumstances which the griever had no control over may put the defendant’s objection to rest, or when both parties are responsible for the delay. Where no justification is provided by grievor, the defense of laches has been applied to dismiss a grievance where indemnities or compensation payable by the employer would greatly increase because of an unreasonable delay caused by the union, as well as in cases where a party’s right to a fair hearing was impaired.This could occur, for example, where records have been destroyed or where key witness are absent or have only a vague memory of important facts.