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SECTION II - CIRB PERFORMANCE (Analysis of Program Activities by Strategic Outcome)

The key strategic outcome of the Board is to contribute to and promote a harmonious industrial relations climate in the federally regulated sector through the impartial, effective and appropriate administration of the rules of conduct that govern labour and management in their representational and bargaining activities.

That being said, it is clear that when the Board receives an application or complaint, it is usually because there is some form of unresolved conflict or problem that the involved parties have been incapable of resolving on their own. By resolving the matter, through mediation or by issuing a decision, the Board effectively and directly contributes to its strategic outcome. It is important in this respect to emphasize that the impact of the work of the CIRB can be both broad-ranging and significant. The Board's decisions and mediation efforts often affect in very tangible ways the working lives of thousands of Canadians, the economic position of leading Canadian corporations, and the general well-being of the Canadian public.

The Board also contributes, in an indirect but no less effective manner, to effective industrial relations in the federal jurisdiction. Each time it issues a decision, the Board adds to its growing and diverse jurisprudence, which is widely disseminated to the industrial relations community. Clear and consistent jurisprudence provides an environment where potential litigants are more likely to resolve matters on their own than to bring the matter before the Board. It is, however, difficult to ascribe a quantitative measure to this.

2.1 Written Decisions

Another factor affecting the CIRB's adjudicative output has been the increased incidence of issuing more detailed written decisions, which require more time and resource to produce. The disposition of more complex cases frequently requires more detailed decisions¹. Although the absolute number of complex matters disposed of by the Board in 2006-07 was lower than in previous years, those matters involved cases of significant importance, which demanded far more effort to adjudicate than what is usually required for complex matters. These cases include notable matters such as those involving VIA Rail, TELUS, NAV CANADA and Aliant Telecom. Also, uncertainties resulting from the new legislative provisions introduced in 1999, and the lack of jurisprudence in applying them have resulted in a situation where parties have been more prone to litigate many contentious matters requiring written decisions.

¹The Board issues detailed Reasons for decision in matters of broader national significance and/or significant precedential importance. In other matters, more concise letter decisions help expedite the decision-making process, thereby providing more timely industrial relations outcomes for parties.

Together, these two factors have led to an increase in the need for the Board to interpret and apply the Code in matters involving provisions that were revised and/or added, which, in turn, is reflected in a significant increase in Board jurisprudence. These decisions serve both to resolve the issues relevant to complex circumstances and to clarify the way the Code, including the new Code provisions, will apply in evolving circumstances. In this respect, the Board strives to provide timely, good and legally sound decisions that are also consistent across similar matters in order to establish strong and clear jurisprudence, which in turn should reduce the likelihood of a demand for reconsideration, as well as reducing the likelihood of applications to the Federal Court of Appeal for judicial review.

The Board's experience of issuing Reasons for decision and letter decisions in the last five fiscal years is reflected in Chart 3. On average, the CIRB has issued more than 40 of the more detailed Reasons for decision each year over the last five years, and 188 letter decisions, for a total of 230 written decisions on average. In 2006-07, the Board produced 184 letter decisions and 30 Reasons for decision. The balance of matters are either withdrawn or disposed of by orders. In the five fiscal years prior to the Code amendments, the Board issued an average of 37 Reasons for decision per year and 128 letter decisions.

See Section 4.1 for examples of illustrative Board decisions.

2.2 Processing Time

The time required by the Board to process a file - the time spent opening, investigating, mediating, hearing, where required, and deciding a case - has dropped significantly in 2006-07, averaging 241 calendar days compared to 263 days in 2005-06 and 259 days in 2004-05 (see Chart 4). This remains higher than the average of 218 days that the Board recorded in its first five years (1999-00 to 2003-04).

There are three key reasons for this increase. First, the CIRB experienced a diminished adjudicative capacity in 2004-05 and 2006-07, and even though vacancies were filled for 2005-06, some time is required before new Vice-Chairpersons and Members become fully operational. While this affected the processing of all matters, it made it particularly difficult to deal with cases that called for both a full panel (Chairperson or Vice-Chairperson and two Members) and hearings. The second key reason is related to the increased incidence of complex matters, which represented 11.4% of matters disposed of in the last three years compared to less than 10% in the 1999-00 period. Since these matters, by their nature, typically take longer to process, the overall average processing time will increase if their proportion rises. And finally, the third reason, which is somewhat related to the first but far more important, is that there have been an inordinate number of long-standing matters that have been settled in the last three fiscal years.

Table 1 shows the distribution of matters disposed of by processing time for the first five years of the CIRB compared to the last three fiscal years. It indicates that whereas cases taking more than two years to dispose of represented 4.4% of matters on average in the period of 1999-00 to 2003-04, this proportion increased considerably in the next three fiscal years. The bulk of these long-standing matters involve unfair labour practice (ULP) complaints, which tend to be deferred in favour of more pressing matters. In fact, almost 57% of matters that took more than one year to dispose of in 2006-07 were ULP complaints.

Table 1 - Distribution of Matters Disposed of by Processing Time

Disposed of in	1999-00 to 2003-04	2004-05	2005-06	2006-07
Less than six months	60.4%	55.0%	59.4%	64.2%
Six months to one year	22.2%	21.1%	18.7%	13.9%
One to two years	13.0%	17.5%	13.0%	15.7%
More than two years	4.4%	6.4%	8.9%	6.2%
	100.0%	100.0%	100.0%	100.0%

On the other hand, Table 1 also indicates that more than 64% of matters were disposed of in less than 6 months in 2006-07, which is a noticeable improvement over the previous two fiscal years as well as an improvement over the 1999-00 to 2003-04 period. This would indicate that the measures that the Board has taken over the last couple of years to reduce processing time are taking effect.

2.3 Decision-making Time

One component of the overall processing time is the length of time required by a Board panel² to prepare and issue a decision, following the completion of the investigation and/or hearing of a matter. A panel may decide a case without a hearing on the basis of written and documentary evidence, such as investigation reports and written submissions, or may defer the decision until further evidence and information is gathered via an oral hearing. Chart 5 presents the decision-making time for both types of decisions³ for the last five fiscal years.

²A panel is composed of the Chairperson or a Vice-Chairperson for single member panels, or the Chairperson or a Vice-Chairperson and two Members in a full panel.

³The Board measures its disposition time for cases decided with a public hearing from the date it reserves its decision (which generally coincides with the last day of the hearing) to the date the decision is issued to the parties. Where cases are decided without an oral hearing, the disposition time is measured from the date the case is deemed to be ready for the Board's consideration to the date the final decision is issued.

Similarly to processing time, and for many of the same reasons, the average decision-making time of matters disposed of has tended to increase since the early 2000s. However, despite the operational difficulties noted previously, average decision-making time fell radically from 120 days in 2005-06 to 77 days in 2006-07, the lowest it has been since 2001-02. This, associated with the moderate decline in 2005-06, again appears to indicate that the measures that the Board has taken over the last couple of years to reduce overall processing time are taking effect.

Perhaps a better way to look at the Board's performance on decision-making time is to use section 14.2(2) of the Code as a benchmark, which requires that a panel must render its decision and give notice of it to the parties no later than ninety days after the day on which it reserved its decision or within any further period that may be determined by the Chairperson. By this criterion, the Board has done quite well in 2006-07 when compared to previous years. Table 2 shows that almost 79% of decisions were rendered in 90 days or less in 2006-07, the highest level in the last five fiscal years.

Table 2 - Distribution of Matters Disposed of by Decision-making Time

Decisions rendered in	2002-03	2003-04	2004-05	2005-06	2006-07
90 days or less	67.8%	69.6%	61.5%	72.6%	78.8%
More than 90 days	32.2%	30.4%	38.5%	27.4%	21.2%

2.4 Judicial Reviews

Another measure of the CIRB's performance, as well as a measure of the quality and soundness of its decisions, is the frequency of applications for the judicial review of Board decisions to the Federal Court, and the percent of decisions upheld by the reviews. In this respect, the CIRB has performed exceptionally well.

Table 3 shows the pattern of judicial reviews over the last five fiscal years, and indicates that 15 judicial reviews were filed in 2006-07, representing 2.3% of all matters disposed of by the Board in that year. This percentage is somewhat lower than typical, notwithstanding annual fluctuations, as judicial reviews have represented 3.3% of matters disposed of on average over this period. With respect to the outcome of the reviews before the Federal Court, the Board's decisions have been upheld in more than 96% of cases in the last five years, even attaining 100% in the last three years.

See Section 4.2 for examples of illustrative judicial reviews in 2006-07.

Table 3 - Applications for Judicial Review

	2002-03	2003-04	2004-05	2005-06	2006-07
Matters disposed by CIRB	860	823	738	808	657
Judicial reviews filed	22	33	32	25	15
Percent reviewed (%)	2.6	4.0	4.3	3.1	2.3
Reviews disposed of	26	27	31	37	14
Reviews granted	1	1	0	0	0
Reviews dismissed	11	12	18	20	8
Reviews withdrawn	14	14	13	17	6
Board success rate (%)	96.2	96.3	100.0	100.0	100.0

2.5 Change Management Performance

In its 2006-07 Report on Plans and Priorities, tabled in Parliament in early spring of 2006, the CIRB identified five main priorities on which it would set its attention. These were the monitoring and fine-tuning of the new certification application process, the monitoring and fine-tuning of the new duty of fair representation complaint process, the accelerated reduction of the number of backlog cases, the reduction of average case disposition time, and the review of the reconsideration application process. The progress on each of these priorities is provided below.

2.5.1 New Procedures for the Processing of Certification Applications

Following consultations with major client groups and stakeholders, the CIRB established a committee in 2004-05 to review its case processing practices with respect to certification applications and to recommend ways in which the Board could expedite the disposition of these matters. New procedures were developed and tested as a pilot project in late 2004-05, and the new procedures were refined and adopted as of April 1, 2005. The main objective of the new procedures is to process and dispose of standard certification applications - those that do not include situations involving complex issues of law or jurisdiction and that do not require a vote - in 50 days or less. This was an ambitious goal even for standard applications, and while the CIRB recognized from the outset that it would not be met for non-standard applications, it nevertheless expected the new procedures to reduce their average processing time.

There were a total of 300 applications for certification received by the Board in 2005-06 and 2006-07. Of these, 249 were disposed of and 51 remained pending at the end of 2006-07. Twenty-seven of these pending applications had been pending for less than 50 days.

With respect to the 249 certification applications that were disposed of, Table 4 shows that their processing time demonstrated a phenomenal improvement over previous years. The processing time for these applications averaged 74 days (67 days without a vote, 129 days with vote) compared to an average processing time of 179 days (165 days without a vote, 301 days with vote) for certification applications in the five fiscal years preceding 2005-06. This represents a reduction in processing time of almost 60%.

In view of these results, it is fair to state that the new certification procedures have met their declared objective.

Table 4 - Processing Time, Certification Applications Received before and after April 1, 2005

	2000-01 to 2004-05		2005-06 and 2006-07
	Applications Disposed of	Processing Time (Days)	Applications Received on or after April 1, 2005
			Applications Disposed of	Processing Time (Days)
Total	779	179	249	74
With vote	81	301	28	129
Without vote	698	165	221	67

2.5.2 New Procedures for the Processing of Duty of Fair Representation Complaints

As was the case for the treatment of certification applications, following consultations with stakeholders, the CIRB established a committee in 2005-06 to review its case processing practices with respect to duty of fair representation complaints (DFR) and to recommend ways in which the Board could expedite their disposition. Although DFRs are not usually the type of matter that require priority attention - they are often deferred in favour of other more important matters - their relative number is significant and they thus have an important impact on the Board's overall processing performance and backlog of cases. Indeed, DFRs represent almost 23% of all applications/complaints received in the last five fiscal years, and since they are more likely to be deferred, they only represent 19% of matters disposed of. As a result, the number of pending DFR complaints has grown from 148 in 2001-02 to 270 at the end of 2005-06, which represents more than 41% of all pending matters.

The new procedures, which were put into place starting on January 1, 2006, contain two new main measures. By far, the most important of these measures is the addition of a new process, whereby the complaint is quickly referred to a panel of the Board to assess whether there are sufficient grounds for the complaint to proceed (a prima facie case). If it is determined by a Vice-Chairperson that there is no prima facie case, a summary decision is issued and the file is closed. If, however, the complaint warrants further consideration, then the process essentially follows the course it would have under the old procedures. The second main measure of the new procedures concerns the response times of the concerned parties at various stages, and the consequences of not meeting them. It should be noted that the main objective of the new DFR process was not to reduce the average processing time of this type of complaint per se, although it was expected to have that effect, but to reduce the Board's effort in dealing with DFR complaints that were either frivolous or did not have sufficient or legal grounds to be considered.

Since the new procedures only came into effect on January 1, 2006, there is not a sufficient number of DFR complaints that have been disposed of under the new regime to properly assess its long-term impact and effectiveness. However, information to date suggests that the new procedures will have the desired effect. Table 5 shows that, in 2006-07, the CIRB disposed of 19 more DFR complaints than were disposed of on average in the previous five years. Moreover, whereas fewer DFR complaints were disposed of in the 2001-02 to 2005-06 period than the number of complaints received, thereby adding to the number of backlog cases, the opposite is true in 2006-07. Table 5 also suggests that the improvement in processing time will be as spectacular as it has been for the certification applications, as the average processing time for DFR complaints processed under the new procedures dropped to 133 days in 2006-07, compared to the average of 298 days in the previous five fiscal years.

Table 5 - Number and Processing Time of Duty of Fair Representation Complaints Received before and on or after January 1, 2006

		Received	Disposed
		Number of Matters	Number of Matters	Processing Time (Days)
Average 2001-02 to 2005-06		176	152	298
2006-07	Total	170	171	338
	Before January 1, 2006	0	86	540
	On or after January 1, 2006	170	85	133

The CIRB will continue to monitor the impact of the new DFR process, but the indication thus far is that it will have a significant effect on the backlog of pending matters in the coming years.

2.5.3 Cumulative Effects of Change Management Initiatives

Since taking office in January of 2004, the CIRB's Chairperson, Mr. Warren Edmondson, has made it a priority to ensure that the Board's mandate be achieved as effectively and efficiently as possible, and to improve the CIRB's performance with respect to processing and decision-making times with a goal of ultimately reducing the number of backlog cases that had persisted over the previous years. Other than the major initiatives mentioned in this report, many other administrative and operational measures were undertaken under his stewardship to reach this goal.

It would therefore be interesting to gauge what cumulative effect, if any, these measures have had on the Board's performance. Table 6 shows the average processing and decision-making times of matters disposed of in the period 1999-00 to 2003-04 compared with the disposition of matters received after January 1, 2004. The difference is striking. The number of days to process matters fell from an average of 220 days in the five fiscal-year period of 1999-00 to 2003-04 to 160 days in the 2004-05 to 2006-07 period, a reduction of 38%. Similarly, average decision-making time dropped from 76 days over the 1999-00 to 2003-04 period to an average of 55 days over the 2004-05 to 2006-07 period, also a 38% reduction. These improvements, as impressive as they are, would probably have been even more important had the Board's judicial team consisted of its full complement in 2004-05 and 2006-07.

Table 6 - Processing and Decision-making Times, Applications Received before and after January 1, 2004

1999-00 to 2003-04			2004-05 and 2006-07
Applications Disposed of	Processing Time (Days)	Decision-making Time (Days)	Applications Received on or after January 1, 2004
			Applications Disposed of	Processing Time (Days)	Decision-making Time (Days)
4,567	220	76	1,755	160	55

2.5.4 Other Identified Change Management Priorities

In its 2006-07 Report on Plans and Priorities, the CIRB also identified the reduction of case processing time as well as the reduction in the number of backlog cases among its priorities. These priorities were more of a high-level objective that were to be attained through more specific means such as changes in the processing of certification applications and duty of fair representation complaints, as well as various administrative and/or operational modifications.

Nevertheless, the Board's statistics indicate that both of these objectives have been met. The new processes and other operational changes, as mentioned in the previous section, are starting to pay off, and, as the stock of older cases (those received before January 2004) diminishes, their effect will be more evident.

As for the reduction of backlog cases, there is no doubt that if the Board had operated with a full adjudicative team in 2004-05 and 2006-07, the number of backlog cases could easily have been lower by at least 100 cases. Nonetheless, the number of backlog cases did drop over the last two years, standing at 625 at the end of March 2007, after having essentially stood still the four previous years at between 702 and 709 cases.

As for the applications for reconsideration process review, the Board's reduced adjudicative capacity made it difficult to progress significantly in 2006-07. However, work in this area will continue.

2.6 Other Results

In support of meeting its strategic outcome, the CIRB has also undertaken and/or achieved the following:

• Following the multi-year migration of its main case management tool - the Case Management System (CMS) - in replacement of its old obsolete system, the CIRB continued with the implementation of enhancements to this extremely complex system. Many of the advantages of these enhancements may be less of a technical nature however, and lie more in the review of business rules and processes that such an exercise necessitates, as well as the thorough audit and examination of information held on the system. The Board also continued to implement enhancements to, or improve, its document management system and integrate it to the CMS; its videoconferencing capabilities; a comprehensive and dynamic CIRB intranet; a secure remote access to CIRB databases for Board members and staff; and an examination of the potential for electronic filing of applications and documents.
• Through its 1-800 information hotline, the CIRB received more than 6,600 various information requests in 2006-07. Approximately 29% of these requests concerned a matter relating to another jurisdiction (either a provincial ministry of labour, a provincial labour relations board or Human Resources and Skills Development Canada) and were easily redirected. This still leaves close to 4,700 inquiries that needed a more involved response from the Board, compared to the 4,300 inquiries received in 2005-06. Requests for information generally pertain to case hearing dates, documents or decisions on file, Board statistics and other various matters.
• The CIRB has continued the development of information circulars and practice notes to provide clear and concise summaries of Board practices to its clients and the general public. In essence, information circulars and practice notes are meant to increase the accessibility and transparency of Board processes by providing common-language instructions respecting the interpretation and application of the Code and Regulations. The information circulars, it is expected, will make the Board's processes easier for clients to understand and manage, and ensure that the substance of matters can be more easily and quickly addressed. They are also expected to allow pre-hearing procedures to continue to reduce the actual time required in the hearing process by ensuring that pre-hearing information disclosure processes are as effective as possible and that preparation for all matters scheduled for hearing is as complete as possible.
• The CIRB continued to revise and update its Web site in order to make more information about the Board - including its decisions - more widely available and accessible to the Canadian public.
• CIRB members and staff have made presentations and addresses at a number of industrial relations conferences and seminars across Canada. This has been directed at improving ongoing contact with and feedback from the Board's stakeholder communities.

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