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

The mandate 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 Board 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 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 Reasons for Decision

The 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.

Another factor affecting the CIRB’s adjudicative output, particularly in 2007–08, has been the increased emphasis on issuing detailed written decisions, which require more time and resources to produce. In order to carry out their responsibilities for judicial review, the Courts have been demanding more fulsome reasons for decision. The disposition of complex cases also requires more detailed reasons for decision. As mentioned earlier, the absolute number of complex matters disposed of by the Board in 2007–08 was higher than in the previous four fiscal years, and many of those matters involved cases of significant importance, which demanded far more effort to adjudicate than that usually required. Also, uncertainties resulting from the new legislative provisions introduced in 1999, and the lack of jurisprudence in applying them, resulted in a situation where parties were more prone to litigate matters, with a resulting requirement for written decisions.

These written Reasons for decision serve both to resolve the issues arising in complex circumstances and to clarify the way the Code is to be interpreted and applied. In this respect, the Board strives to provide timely, clear, consistent and legally sound decisions in order to establish strong jurisprudence to guide the parties and reduce the number of applications and complaints.

The Board’s experience with issuing Reasons for decision and letter decisions in the last five fiscal years is reflected in Chart 3. On average, the Board has issued 37 of the more detailed Reasons for decision each year over the last five years, and 193 letter decisions, for a total of 230 written decisions on average. In 2007–08, the Board produced 215 letter decisions and 24 Reasons for decision. The balance of matters are either withdrawn or disposed of by orders.

See Section 4.1 for examples of illustrative Board decisions.

2.2 Processing Time

The time required to process a file—the time spent opening, investigating, mediating, hearing, and deciding a case—increased significantly in 2007 08, averaging 298 calendar days compared to 242 days in 2006–07 and 263 days in 2005–06 (see Chart 4). In the first five years of the CIRB’s existence (1999–00 to 2003–04), processing time averaged 219 days.

There are two main reasons for the increase in processing time experienced in 2007–08. The first reason is related to the increased incidence of complex matters, which, as indicated earlier, represented 16% of matters disposed of in 2007–08 compared to 11% in the previous four fiscal years. Since these matters, by their nature, typically take longer to process, the overall average processing time can be expected to increase if their proportion rises.

The second and far more important reason for the increase in processing time experienced in 2007–08 is related to DFR complaints. As mentioned in previous reports, in the past DFR complaints have often been set aside for more urgent matters. As a result, the CIRB had accumulated a significant backlog of DFR complaints, and their proportion of all pending matters grew from 25.6% in 2002–03 to almost 43% at the end of 2006–07. The CIRB decided to seriously address this DFR backlog in 2007–08. Consequently, DFR complaints represent more than 28% of disposed matters in 2007–08 compared to an average of 19% in the five previous fiscal years. An unfortunate consequence of this decision is that the Board had to accept that it would adversely affect its processing time statistics, given that many of the complaints were long-standing.

Table 2 illustrates the impact of DFR complaints, and to a lesser extent complex matters, on average processing times. Whereas the average processing time of DFR complaints increased by almost 200 calendar days over the five fiscal years from 2003–04 to 2007–08 (from 294 to 489 days), it dropped for cases that did not involve a DFR complaint or a complex matter, to 175 days from levels of 200 or more days in earlier years. In fact, more than three-quarters of cases that did not involve a DFR complaint or complex matter took less than six months to render a decision in 2007–08 compared to two-thirds of cases in the previous five fiscal year period.

Table 2–Processing Time by Type of Matter (Calendar Days)

Decisions rendered in	2003–04	2004–05	2005–06	2006–07	2007–08
Complex matters	260	347	332	374	390
DFR	294	392	342	338	489
Other	201	210	235	184	175
Total	225	259	263	242	298

2.3 Decision-making Time

One component of the overall processing time is the length of time required by a Board panel¹ 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 processes² for the last five fiscal years.

¹A panel is composed of the Chairperson or a Vice-Chairperson for single member panels and the Chairperson or a Vice-Chairperson and two Members in a full panel

²The 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.

Similar to processing time, and for many of the same reasons, the average decision-making time of matters disposed of has increased in 2007–08 to an average of 91 calendar days from 77 days in 2006–07. However, this level is nevertheless lower or equivalent to levels experienced in the 2002–03 to 2005–06 period. Also, Chart 5 shows that there exists a considerable difference between cases with and without an oral hearing. Whereas the decision-making time of cases involving an oral hearing declined substantially, quite the opposite happened with cases that did not involve an oral hearing. The reason for the latter is directly the result of the higher incidence of DFR complaints in 2007–08, which are typically decided on the basis of written submissions. Excluding DFR complaints, the decision-making time would have stood at 42 calendar days for cases with a hearing in 2007–08 and 40 days for cases without a hearing, which represents a marked improvement over the recent past.

Another 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 2007–08 when compared to previous years. Table 3 shows that more than three quarters of decisions were rendered in 90 days or less in 2007–08 which, except for 2006–07, is the highest level in the last five fiscal years, in spite of the impact of DFR complaints.

Table 3–Distribution of Disposed Matters by Decision-making Time

Decisions rendered in	2003–04	2004–05	2005–06	2006–07	2007–08
90 days or less	69.6%	61.5%	72.6%	78.9%	75.3%
More than 90 days	30.4%	38.5%	27.4%	21.1%	24.7%

2.4 Judicial Reviews

Another measure of the Board’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 Board has performed exceptionally well.

Table 4 shows the pattern of judicial reviews over the last five fiscal years, and indicates that 12 judicial reviews were filed in 2007–08, representing 1.8% of all matters disposed of by the Board in that year³. This percentage is somewhat lower than typical, notwithstanding annual fluctuations, as judicial reviews have represented 3.1% of matters disposed of on average over the previous five fiscal years. With respect to the outcome of the reviews before the Court, the Board’s decisions have been upheld in all cases except one in the last five fiscal years.

³The increase in processing time is statistically normal, given that the numbers since 2005–06 only include applications received since April 1, 2005. Obviously, some applications will take much longer to process and are thus not a factor in the early years of the new process.

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

Table 4–Applications for Judicial Review

	2003–04	2004–05	2005–06	2006–07	2007–08
Matters disposed of by CIRB	823	738	808	658	675
Judicial reviews filed	32	31	23	14	12
Percent reviewed (%)	3.9	4.2	2.8	2.1	1.8
Reviews disposed	27	32	35	14	9
Reviews granted	1	0	0	0	0
Reviews dismissed	12	19	19	8	5
Reviews withdrawn	14	13	16	6	4
Board success rate (%)	96.3	100.0	100.0	100.0	100.0

2.5 Change Management Performance

In its 2007–08 Report on Plans and Priorities, tabled in Parliament in early spring of 2007, the CIRB identified six main priorities for immediate attention. These were to accelerate reduction in the number of backlog cases, to reduce average case disposition time, to monitor and fine tuning the certification application process, to monitor and fine-tuning the DFR complaint process, to review the reconsideration process, and to continue Stakeholder consultations. The progress on each of these priorities is provided below.

Progress on reducing the backlog of pending cases and improving average case disposition time is heavily dependent upon initiatives that were introduced to improve the handling of certification and duty of fair representation cases.

2.5.1 Monitoring and Fine-tuning the Certification Application Process

Following consultations with major client groups and stakeholders, in 2004–05 the CIRB established a committee to review its certification application processing practices and to recommend ways in which it 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 straight forward applications—(those that do not involve complex issues of law or jurisdiction and that do not require a vote or a hearing)—in 50 days or less. The CIRB recognized from the outset that this target would not be met for complex applications, but expected the new procedures to reduce the average processing time for certification applications overall.

There were a total of 126 applications for certification that were disposed of under the revised procedures in 2007–08 and, although the average processing time has increased somewhat in the last three fiscal years³. Table 5 shows that the processing time demonstrated a phenomenal improvement when compared with the five fiscal years that preceded the new procedures. The processing time for certification applications averaged 92 days in 2007–08 compared to an average processing time of 179 days in the five fiscal years preceding 2005–06. This represents a reduction in processing time of almost 50%. An even greater improvement can be seen for applications that do not require a vote or a hearing, as their average processing time dropped to 62 days from 134 in the five fiscal years preceding 2005–06.

³The increase in processing time is statistically normal, given that the numbers since 2005–06 only include applications received sing April 1, 2005. Obviously, some applications will take much longer to process and are thus not a factor in the early years of the new process.

In view of these results, it is fair to state that the new certification procedures have met their intended objective. Nevertheless, the CIRB continues to monitor the situation and to make adjustments in order to reduce processing time even further.

Table 5–Processing Time*, Applications for Certification Received before and on or after April 1, 2005

	2000–01 to 2004–05		2005–06		2006–07		2007–08
	Applications Disposed of	Processing Time (Days)	Applications Received on or after April 1, 2005		Applications Received on or after April 1, 2006		Applications Received on or after April 1, 2007
			Applications Disposed of	Processing Time (Days)	Applications Disposed of	Processing Time (Days)	Applications Disposed of	Processing Time (Days)
Total	779	179	11	61	138	79	126	92
With Vote or Hearing	137	392	21	107	27	160	32	182
Without Vote or Hearing	642	134	90	50	111	59	94	62

* For the purposes of applications for certification, processing time is established as the time in days from receipt to the date a certification order or decision is issued.

2.5.2 Monitoring and Fine-tuning the DFR Complaint Processs

Following consultation with stakeholders, the CIRB established a committee in 2005–06 to review its case processing practices with respect to DFR complaints and to recommend ways in which it 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. DFRs represent 23% of all applications/complaints received in the five fiscal years preceding 2007–08, and since they are more likely to be deferred, they represent only 19% of matters that were disposed of over the same period. As a result, the number of pending DFR complaints has grown from 180 in 2002 03 to 270 at the end of 2006–07, which represents almost 43% of all pending matters.

The new procedures were put into place on January 1, 2006, and although they have had some success—DFR complaints resolved under the new procedures in 2006–07 and 2007–08 took an average 195 days to process compared to 298 days in the five fiscal years preceding the change—the improvements did not appear to be lasting or practical from a legal perspective, and the Board felt that other changes needed to be made. As a result, the Board made further refinements to the treatment of DFR complaints on February 1, 2008. Unfortunately, since the new procedures only came into effect on February 1, 2008, there is an insufficient number of DFR complaints disposed of under the new regime to properly assess the impact and effectiveness of the new process. However, the little information available suggests that the improvement in processing time will be significant. If this is the case, the new DFR procedures should have a significant effect on the backlog of pending matters as well as on the average processing time in the near future.

2.5.3 Other Identified Change Management Priorities

The new certification and DFR processes and other operational changes appear to be having a positive effect and, as the stock of older cases (particularly DFR complaints) diminishes, the improvements in case processing times and backlog reduction should be more evident.

Due to other priorities, work on the review of the reconsideration process did not begin until late in the fiscal year, and will be reported on in the 2008–09 Departmental Performance Report. Stakeholder consultations continued during FY 2007–08 and valuable input was received with respect to the review of the Board’s regulations. Work on this initiative was continuing at year end.

2.6 Other Results

The CIRB has also undertaken and/or achieved the following results in meeting its strategic outcome:

• Following the multi-year migration of its main case management tool—the Case Management System (CMS)—to replace an obsolete system, the CIRB continued with the implementation of enhancements to this extremely complex information system. Continuing review of business rules and processes, as well as the thorough audit and examination of information held on the system mean that enhancement and amendments to the programming will be an on-going challenge. The Board also continued to implement improvements in its document management system and to integrate it to the CMS. Other technological initiatives include enhancing the Board’s videoconferencing capabilities; maintaining a comprehensive and dynamic CIRB intranet; ensuring 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 almost 7,900 information requests in 2007–08. Approximately 48% 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 Social Development Canada) and were easily redirected. Close to 4,100 inquiries needed a more involved response from the Board, compared to the 4,700 inquiries received in 2006–07. 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 to provide clear and concise summaries of its practices to its clients and the general public. Information circulars are meant to increase the accessibility and transparency of Board processes by providing plain-language instructions respecting the interpretation and application of the Code and Regulations. It is expected that the information circulars 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 proceed efficiently thereby reducing the time required for the hearing process, ensuring that pre-hearing information disclosure processes are as effective as possible and that preparation for matters scheduled for hearing is as complete as possible.
• The CIRB continued to revise and update its Web site in order to make more departmental 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. These initiatives have been directed at improving ongoing contact with and feedback from the Board’s stakeholder communities.

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