[1980] OLRB Rep. September 1278
1028-80-M The Carpenters' Section of the Carpenters' District Council of Toronto and Vicinity, United Brotherhood of Carpenters and Joiners of America, on behalf of Local Union 1190, Applicant, v. Casalbil Contractor Limited, Respondent
BEFORE: D. E. Franks, Vice-Chairman, and Board Members H. J. F. Ade and O. Hodges.
APPEARANCES: Douglas J. Wray and Matt Whelan for the applicant; No one appearing for the respondent; Mauro Angeloni appearing for Toronto & District Carpentry Contractors Association.
DECISION OF THE BOARD; September 17, 1980
This is a referral of a grievance to arbitration by the Board under section 112a of The Labour Relations Act.
The hearing in this matter was scheduled to commence at 9:30 a.m. on the morning of September 16, 1980. No one appeared for the respondent at that time and in particular Mr. Dominic Casalinuovo, a witness summoned by the applicant, was not in attendance, nor was he present when the Board convened the hearing in this matter at 10:25 a.m. At that time, counsel for the applicant requested that the Board enforce a Summons to Witness, issued by the Board under The Labour Relations Act.
In proceedings under section 112a, the Board, by virtue of sections 92(2)(a), I 12a(3) and 37(7) of The Labour Relations Act, has the power "...to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath.. .in the same manner as a court of record in civil cases." The Board is acting as an arbitrator when dealing with matters under section 11 2a of the Act. The enforcement mechanisms contained in sections 12 and 13 of The Statutory Powers Procedure Act are unavailable to the Board in these proceedings because The Statutory Powers Procedure Act does not apply to arbitrators under The Labour Relations Act. (See section 3(2)(d) of The Statutory Powers Procedure Act, and Re: International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, (1979), 1979 CanLII 1622 (ON HCJ), 25 O.R. (2d) 8.) Thus, the enforcement of the Board's process is left entirely to the Board acting under the authority conferred upon it by The Labour Relations Act.
The Court in Re: International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, supra, stated at page 13:
"...the purpose of the proceedings under s. 1 12a was to provide a speedy process for resolving disputes arising out of the interpretation of collective agreements negotiated in the construction industry. It is unnecessary for us to answer the questions raised before us as to the appropriate procedures to be followed by the Board under s. 11 2a with respect to the issue of summonses or subpoenas and the enforcement thereof, but we are satisfied that the Act itself provides a method of enforcing the attendance of witnesses and the production of documents that could be applied with much greater speed in the case of a witness like Bittenbinder than is involved in an application by way of stated case to this Court under s. 13 of the Statutory Powers Procedure Act, 1971."
The Board is given the authority under the Act to enforce the attendance of a witness in the same manner as a court of record in civil cases. In Ontario, a court of record in civil cases has the authority to issue a warrant for the arrest of a person who has been duly served with a summons but has failed to appear. (See 26 C.E.D. (Ont. 3rd) 114-366, paragraph 673; Rule 275, Supreme Court of Ontario Rules of Practice.) The issuing of a warrant directed to the Sheriff to bring a person before the Board is to be distinguished from punishing a person for contempt committed in the face of the Board. The Board, in issuing such a warrant, is not punishing the witness for failing to attend. Indeed, it is our view that we cannot impose punishment for such action. (See Re: Hawkins and Halifax County Residential Tenancies Board, (1974), 1974 CanLII 1372 (NS SC), 47 D.L.R. (3d) 117 (N.S.S.C.).) Rather, it is ensuring that the witness attend before the Board to give evidence pursuant to a summons duly issued and served. However, should a witness refuse to testify after having been brought before the Board and after being directed by the Board to testify, such refusal may well constitute grounds for punishment by way of fine or imprisonment for contempt committed in the face of the Board. (See Re: Diamond and Ontario Municipal Board, 1962 CanLII 132 (ON CA), [1962] O.R. 328; 32 D.L.R. (2d) 103.)
The Board may, therefore, enforce the attendance of a witness duly served with a summons and conduct money by issuing a warrant directing the Sheriff to arrest the witness and bring him before the Board if the party seeking such an order can establish that the witness was properly served with a summons and sufficient conduct money and that the presence of the witness is material to the ends of justice.
The person summoned by the applicant is Mr. Dominic Casalinuovo. The Board heard evidence from Mr. Matt Whelan, a business agent of the Carpenters District Council of Toronto and Vicinity of the United Brotherhood of Carpenters and Joiners of America, who is also a trustee on certain funds established pursuant to collective agreements between the applicant and the Toronto & District Carpentry Contractors Association. The grievance herein is in respect of certain monies payable under that collective agreement with respect to the Welfare Plan, Pension Plan and Vacation Pay plan therein. The evidence is that the respondent has failed to make the filings required by the collective agreement. The Summons To Witness requires that the witness bring certain documents with him to the hearing in this matter. The evidence which the applicant seeks to adduce through Mr. Dominic Casalinuovo relates to the liability of the respondent for violation of the collective agreement and to the actual amount of money owing to various plans. The Board is satisfied that such evidence is relevant and material to the case at hand and that the applicant requires such evidence in order to prove its case.
Mr. Whelan testified that a Summons To Witness, issued by the Board, directed to Mr. Dominic Casalinuovo dated the 2nd day of September, 1980, was personally served on Dominic Casalinuovo by Whelan on the 9th day of September, 1980 at 9:15 a.m. Mr. Casalinuovo was served at a job site on Parravano Court in North York, and in addition to the Summons To Witness, was given the sum of $26 conduct money. Mr. Casalinuovo, having been properly served a Summons To Witness duly issued under The Labour Relations Act, and in reasonable time in advance of the hearing in this matter, failed to appear at the Board's hearing on the 16th of September, 1980.
In view of the foregoing, the Board is satisfied that the presence of Mr. Dominic Casalinuovo is material to the ends ofjustice. Therefore, the Board hereby issues a warrant for the arrest of Dominic Casalinuovo directed to the Sheriff of the Judicial District of York to arrest and bring the said Dominic Casalinuovo before the Board at the continuation of its hearing in this matter at the Board's hearing rooms on the sixth floor of 400 University Avenue, in the City of Toronto, at 9:30 a.m. on the 24th day of September, 1980.
The hearing in this matter is adjourned to September 24, 1980, at 9:30 a.m.