COURT FILE NO.: 368/04 and 415/04
Toronto
DATE: 20050714
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
Justices Matlow, Jennings and swinton
IN THE MATTER OF THE sTATUTORY POWERS PROCEDURE ACT, r.s.o. 1990, C.s.22, AS AMENDED;
and in the matter of the labour relations act, 1995 s.o. 1995, c.1, Sch. A, as amended;
and in the matter of a decision of the Ontario Labour Relations Board dated June 2, 2004
B E T W E E N:
united brotherhood of carpenters and joiners of america, local 494
Applicant
- and -
BUILD-FORCE CONSTRUCTION LTD., 1404406 ONTARIO LIMITED (c.o.b. as BUILD-FORCE CONSTR. 2000) and UNICOR CONSTRUCTION INC.
Respondents
- and –
ONTARIO LABOUR RELATIONS BOARD
Intervenor
Michael A. Church, for the Applicant
Anwar Halbouni, Agent, with leave, for the Respondent, 1404406 Ontario Limited
Ibrahim Al Halbouni, Agent, with leave, for the Respondent, Unicor Construction Inc.
No one appearing, for the Respondent,
Build-Force Construction Ltd.
Voy Stelmaszynski for the Intervenor, Ontario Labour Relations Board
HEARD: June 1 and 28, 2005
MATLOW J.
[1] At the conclusion of the hearing of this application on June 28, 2005, this Court issued an order finding all three respondents in contempt for failing to comply with an order of the Ontario Labour Relations Board dated April 14, 2004, requiring each of them to produce certain documents specified in the order for inspection by the applicant by May 7, 2004. Each respondent was fined $5,000 and all three of them were required to pay costs, jointly and severally, to the applicant, fixed at $5,000. In order to set out a clear record of what occurred mainly for the assistance of the respondents who were not represented by counsel, we indicated that further reasons for our decision would follow.
What follows are those reasons.
[2] The evidence at the commencement of the hearing before us on June 1, 2005, established that the Board’s order was made on April 14, 2004, during the course of a proceeding before the Board in which all of the respondents were parties, and that there was no compliance whatsoever by any of the respondents by the deadline imposed by the Board, May 7, 2004. On May 26, 2004, when the proceeding before the Board reconvened, none of the respondents appeared.
[3] On June 2, 2004, the Board issued a decision, made at the request of the applicant, stating, in part, that it would take steps to state a case to this Court pursuant to section 13 of the Statutory Powers Procedure Act to enforce the Board’s order of April 14, 2004. Section 13 of the Act reads as follows;
Contempt proceedings
- (1) Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or
(b) being in attendance as a witness at an oral hearing or otherwise participating as a witness at an electronic hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his or her power or control legally required by the tribunal to be produced by him or her or to answer any question to which the tribunal may legally require an answer; or
(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,
the tribunal may, of its own motion or on the motion of a party to the proceeding, state a case to the Divisional Court setting out the facts and that court may inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the court.
[4] On June 1, 2005, the Board’s stated case dated June 30, 2004, and a notice of application seeking an order enforcing the Board’s order came before this Court. At that time the respondent, Unicor Construction Inc, was represented with leave by Ibrahim Al Halbouni, who described himself as the “owner-president” of that corporation and the respondent, 1404406 Ontario Limited, was represented, also with leave, by Anwar Halbouni, who described himself of the “owner-president” of that corporation. Both representatives stated that they did not wish to retain lawyers to represent their respective corporation and were ready to proceed.
[5] Both representatives acknowledged to this Court that there had been no compliance with the Board’s order and that none of the documents ordered to be produced had been produced.
[6] Both counsel and both representatives then agreed to confer during a recess that was granted in an effort to resolve the issue that was before us. When the hearing resumed, all of them informed us that, although their efforts to reach a settlement had failed, the representatives agreed to comply with the production ordered by the Board within a period not exceeding two weeks. They also stated that they did not require an opportunity to present evidence to us.
[7] Accordingly, we advised those present that we were satisfied that a prima facie case of contempt had been made out and that we would adjourn the hearing to June 28, 2005, to give the respondents an opportunity to make the production of documents that their representatives had agreed to make.
[8] Four weeks later, on June 28, 2005, when the hearing resumed, the same representatives of the respondents appeared again with two cartons which they said contained the productions they had been ordered to produce and which they had agreed to produce. Counsel for the applicant and for the Board were then given an opportunity to examine the contents of the cartons after which they reported that, because of the chaotic condition of the contents, they could not determine if there had been any compliance with the Board’s order. That report was then confirmed by the two representatives who acknowledged that the income tax returns ordered to be produced were not contained in the cartons.
[9] Accordingly, after hearing further submissions from both counsel and both representatives, we determined that the respondents were in contempt of the Board’s order as at May 7, 2004, and had not purged their contempt. We therefore proceeded to find all of them in contempt and to impose punishment.
Matlow J.
Jennings J.
Swinton J.
Released: July 13, 2005
COURT FILE NO.: 368/04 and 415/04
Toronto
DATE: 20050714
ONTARIO
SUPERIOR COURT OF JUSTICE
DIVISIONAL COURT
MATLOW, JENNINGS, SWINTON, JJ.
B E T W E E N:
united brotherhood of carpenters and joiners of america, local 494
Applicant
- and -
BUILD-FORCE CONSTRUCTION LTD., 1404406 ONTARIO LIMITED (c.o.b. as BUILD-FORCE CONSTR. 2000) and UNICOR CONSTRUCTION INC.
Respondents
- and –
ONTARIO LABOUR RELATIONS BOARD
Intervenor
REASONS FOR JUDGMENT
MATLOW J.
Released: July 14, 2005