Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 880 v. Russell MacVicar Limited, 1981 CanLII 967

[1981] OLRB Rep. May 568

0837-79-U Teamsters, Chauffeurs, Warehousemen and Helpers, Local Union No. 880, affiliated with the International Brotherhood of Teamsters, Chauffeurs, Warehousemen and Helpers of America, Complainant, v. Russell MacVicar Limited, Respondent.

BEFORE: R.O. MacDowell, Vice-Chairman, and Board Members B. Armstrong and J. A. Ronson.

DECISION OF R.O. MACDO WELL, VICE-CHAIRMAN, AND BOARD MEMBER B. ARMSTRONG; May 15, 1981

1. This is an application for reconsideration of three decisions of the Board dated March 5, 1980 July 7, 1980, and November 3, 1980, in which the Board determined and re­affirmed that the respondent had illegally discharged Robert Martineau, Stan Demmans, and John Impens, and ordered that each of these individuals be compensated for his loss of earnings. Each of these decisions was accompanied by written reasons; however, since this is the second application for reconsideration, it may be useful to review the course of these proceedings in order to clarify the context in which the present application arises.

2. On June 27, 1979, the complainant union applied for certification as the bargaining agent for the respondent's employees. Notices of that application were sent to the respondent and posted on its premises. Following the posting of these notices, Henry Lamotte, the owner of the respondent, assembled the employees in his office and told them that they had a choice: they could either "stick with the company or "stick with the union. If they did the latter, Lamotte warrned that they would be "out". Robert Martineau, and John Impens, were identified by Lamotte as union members and told that, since they had joined the union, they were going to be laid off. Lamotte also warned that other employees would be laid off, unless they revoked their membership in the union. In addition, Lamotte initiated the circulation of a petition which purported to indicate employee opposition to the union.

3. The union was certified following a hearing on July 17, 1979, and by letter dated July 21, 1979, ii notified the respondent of its desire to engage in collective bargaining with a view of concluding a collective agreement. Almost contemporaneously with these events, the employees who are the subject of this application were laid off. This, it will be observed, was consistent with Lamotte's earlier threat, and although Demmans and Martineau continued to report for work, they were told that none was available. Lamotte also made a number of remarks indicating that his refusal to employ them was a reprisal for their trade union activities. An individual who is not a trade union supporter, and another person who had initially supported the union but, following Lamotte's meeting, decided to reject it, were retained in the respondent's employ.

4. In early August 1979, the trade union filed complaints on behalf of Robert Martineau, John Impens, Stan Demmans, and Philip Ridgewell, alleging that they had been discharged or otherwise discriminated against because of their support of the union. A hearing before the Board was scheduled for September 19, 1979, and in the meantime, efforts were made to settle the complaint. In order to facilitate these efforts, the hearing was adjourned and, ultimately, the respondent's solicitors (at the time, the firm of Bartlet and Richardes), and counsel for the union were able to reach what they considered to be an amicable resolution of the matters in dispute. During these discussions, of course, the employees remained without work awaiting a determination of their rights. As it turned out, the solicitors for the respondent were unable to persuade their client to accept the proposed settlement and those solicitors withdrew from the case. Apparently, in addition to rejecting his solicitor's advice, Mr. Lamotte also neglected to settle their account, and this, in turn, gave rise to certain further problems when he sought to retain new counsel.

5. By mid-December, the union concluded that Lamotte was disregarding the rights of his employees, the processes of the Board, and the advice of his own solicitors; and requested the Board to reschedule the matter for a hearing. A new hearing date was fixed for Friday, February 28, 1980. Final settlement efforts prior to that date proved unsuccessful.

6. In early February 1980, Lamotte contacted the firm of Mathews, Dinsdale& Clark with a view to retaining them with respect to these matters. The details of these efforts are set out in the Board's decision of March 5, 1980; and it is unnecessary to review all of them here. It suffices to say that Mr. J. D. Carriere, a member of that firm, was not formally retained but, nevertheless, gave certain advice to Mr. Lamotte, and as a courtesy to him and the Board, appeared on February 29, 1980, to transmit his representations. On Thursday, February 28, 1980, Mr. Carriere was informed by the respondent that his brother had died on February 24, 1980, and that because he was in a state of shock and mourning, he would be unable to proceed with the hearing on February 29. The Board hearing did not conflict with the furneral arrangements. Mr. Carriere advised Lamotte that adjournments were not granted as a matter of course (particularly in circumstances of this case and at such late date), and that he (Lamotte) should be present at the Board hearing in order to speak in support of his request for an adjournment. Despite Mr. Carriere's advice, Lamotte did not appear at the hearing. Mr. Carriere advised the Board what Lamotte had told him and transmitted Lamotte's request for an adjournment but having no instructions, could not take an active part in the hearing.

7. The union opposed the request for an adjournment and led evidence demonstrating that, notwithstanding his brother's death, Mr. Lamotte had continued to carry out his ordinary business activities on the Monday and Tuesday immediately after the death, and on the Thursday following the funeral and immediately preceding the date of the Board Hearing. In the union's submission, Mr. Lamotte's request for an adjournment was without foundation, and his recital of the situation was an attempt to mislead both the Board and his own counsel. In the circumstances, on the basis of the evidence before it, the Board declined to grant an adjournment and proceeded to hear the evidence of anti-union activity and the allegedly unlawful termination of the respondent's employees. The principal features of this evidence are set out in paragraphs 2 and 3 hereof.

8. It was the Board's refusal to grant an adjournment which formed the basis for the first application for reconsideration. For the purpose of that application, the respondent was represented by a new firm of solicitors.

9. The Board scheduled a hearing to entertain the respondent's evidence and represen­tations with respect to the adjournment question, and at that hearing, (held on June 23, 1980) Mr. Lamotte gave viva voce evidence. His evidence was far from satisfactory. He testified that because of his deep sense of loss, he was unable to do any work in the days following his brother's death. He testified that he visited the business premises only once, and then only for the purpose of delivering some documents. He clearly, unequivocally, and repeatedly denied ever driving a truck during the week, or doing any other manual work about the premises. On cross-examination however, he was confronted with an invoice bearing his own signature and indicating that a load of sewage had been delivered by him to a sanitary land-fill site in Essex County on February 25, 1980 — that is, the day immediately following his brother's death and during the period when Lamotte had earlier claimed he was incapable of working. Subsequently, the Board heard credible evidence, from two other witnesses, that Lamotte had in fact carried' on "business as usual" despite his brother's death. Having regard to the demeanor of the witnesses, the manner in which they gave their evidence, and the credibility and consistency of the different versions of events, the Board concluded that Lamotte had not been candid with the Board, had intentionally misrepresented the facts, and that his evidence should be rejected. On the basis of the evidence before it, the Board concluded that Lamotte's bereavement, following his brother's death on February 25th, had not prevented him from carrying on his ordinary business activities, and simply did not support either his original request for art adjournment of the February 29th hearing, or his later request for a reconsideration of the Board's refusal to grant an adjournment. The Board noted that in appropriate circumstances, a death in a party's immediate family might well provide grounds for an adjournment; but the evidence in this case demonstrated that an adjournment was entirely unwarranted.

10. In hi; request for reconsideration, the respondent also submitted, in the alternative, that he had been confused by the advice of his solicitors and had misunderstood the necessity of his appearing at the original hearing to answer the charges of illegal conduct which had been made against him. Lamotte's version of events differed significantly from that of Mr. Carriere who, although not formally retained, did appear before the Board to advance the respondent's position as we I as he could in Lamotte's absence. Carriere told the Board that he had specifically advised Lamotte that an adjournment might not be granted and that he should appear for the hearing in the event that the Board chose to proceed. Lamotte denied that Carriere ever suggested that an adjournment might not be granted and told the Board that he was assured by his solicitors that an adjournment would follow as a matter of course. His failure to attend the February 29th hearing was blamed alternatively on the quality of his solicitors' advice or his own innocent misunderstanding of the situation.

11. The Board was satisfied despite Lamotte's testimony that Carriere had advised him that he should be present, and that Lamotte had simply decided to ignore Carriere's advice (as he had ignored the advice of his previous solicitor) and take a chance that an adjournment would not be granted, of course, even if Lamotte had, bonafide, misunderstood his solicitor's instructions, (and the Board was not satisfied that this was in fact the case) this in itself would not necessarily prompt the Board to rehear the matter. (See paragraph 6 of the Board decision dated July 7, 1980.)

12. On the basis of the evidence and submissions of the parties made at the hearing on June 23, 1980, the Board concluded that there was no basis for granting a new hearing or reconsidering it; earlier decision that the respondent had discharged certain employees contrary to the Act and should reinstate and compensate them for the wages and benefits which they had lost. In accordance with its usual practice, the Board remained seized of the matter that there was any difficulty in calculating the actual amounts owing to the aggrieved employees. In most cases, the wages which an employee would have earned had he not been unlawfully dealt with are easily ascertainable, and the parties are generally able to agree on the question of mitigation without the necessity of a formal hearing. In this case, however, there was no such agreement.

13. On September 11, 1980, the Board held a further hearing to entertain the parties' evidence and representations with respect to the quantum of compensation, and the mitigation issue. There were two principal questions raised during this hearing: had the employees made reasonable efforts to mitigate their losses; and, if they had, what was the extent of those losses. The first question turned out to be somewhat easier than the second.

14. The Board was satisfied that the employees had made every reasonable effort to secure alternative employment. In the case of one of the aggrieved employees, those efforts had been successful and his entitlement to compensation was reduced accordingly. The calculation of the amount of compensation owing however, was somewhat more difficult, since Mr. Lamotte put before the Board certain payroll records which he himself indicated did not show the actual hours worked in any given week, but only the hours for which the employees were paid. Lamotte testified that it was not the policy of the company to pay overtime — even if the employees worked more than the forty-four hours per week beyond which overtime is payable by virtue of The Employment Standards Act. Instead, he testified, the actual hours worked in any given period would be "moved back and forth" and distributed so that the actual overtime hours would not appear on the face of the records. Lamotted admitted that these records would not indicate the actual hours worked in any given week; yet, it was this unsatisfactory material which was submitted as a basis for determining the amount of compensation owing to the grievors. In the circumstances, the Board considered the records unreliable and preferred to accept the viva voce evidence of the employees (which was not seriously contradicted in cross-examination) that they generally worked a forty-seven hour a week. The Board then determined the number of weeks between the unlawful termination and the commencement of a lawful strike against the respondent (on January 2, 1980). This strike was continuing at the time of the first Board decision, and it was accepted by all the parties that it would be the "cut off date" for the compensation award. On that basis, the Board performed the arithmetic calculations upon which its compensation order is based. In determining the sum payable, the Board also included an amount in respect of interest which was calculated on the basis of the formula adopted by Denning L.J. in Jefford v. Gee, [1970] 1 All E. R. 1202, and by this Board, in Hallo well House, [1980] Rep. Jan. 35. In the result, the Board ordered that the respondent forthwith pay to Robert Martineau, the sum of $4,176.83; to Stan Demmans, the sum of $2,115.09; and to John Impens, the sum of $4,970.56. As of the date hereof, the respondent has apparently refused to do so.

15. On December 1, 1980, the Board received a letter from counsel for the complainant which reads as follows:

"In a decision dated November 3rd, 1980, the Board directed the Respondent

forthwith pay the grievors the following amounts:

Robert Martineau $4,176.83 Stan Demmans $2,115.09 John Impens $4,970.56

To date, the Respondent had failed to make the required payments. Therefore, the Complainant respectfully requests the Board to schedule a non-compliance hearing."

By a letter datec December 15, 1980, the Registrar of the Board advised the respondent of the union's letter in the following terms:

"I enclose herewith a letter from the complainant which alleges that the respondent

has if you have any representation to make with respect to the said submission of the

trade union, you must file them with the Board not later than December 29th, 1980.

If you fail to file any submission on or before that date, or if the Board is satisfied on

The submission made to it that there has been non­compliance with the said Board

order, the Board will file the said order in the Supreme Court pursuant to section

79(5) of The Labour elations Act.

Very truly yours,"

This letter was addressed to both the respondent, and the two firms of solicitors (McTague, Clark, and Mathews, Dinsdale & Clark) who had most recently acted for the respondent, although it appears that as of the date hereof neither is acting for the respondent. On January 13, 1981, the respondent, on its own behalf, made the following reply:

"We confirm that we have requested that the Labour Relations Board consider Granting a new hearing of the award previously made in this matter on the following basis:

I. That apparently, the Board seemed to be under the impression that Russet MacVicar Limited was acting in bad faith by not appearing before the Board for the February 29th hearing. This matter seems to have been compounded by both the failure of Mr. Lamotte to personally attend the hearing as well as failing to have been represented by counsel at the hearing. We would refer you to the letter of Messrs. Bartlet & Richardes, Barristers and Solicitors, dated April 23, 1980, in which Mr. Milton H. Grant of that firm clarifies this situation and in fact comments that it had been Mr. Lamotte's desire to appear before the Board repre­sented by counsel but failed to do so due to circumstances clearly set forth in that letter.

2. That prior to reaching its decision on the matter of the award dated November 3, 1980, the employer was not given a reasonable opportunity to present merits in this matter and in fact the decision of the Board is based on a number of errors of fact. These errors of fact, no doubt arose, due to the failure of the Board to consider evidence which the company wished to present in this matter, or which evidence, to the extent it was allowed to be presented, was ignored by the Board.

3. After having been advised of the decision resulting from the February 29th meeting, the President of Russell MacVicar Limited, Mr. Henry Lamotte, attended at the Board offices in Toronto and fully discussed its difficulties in this matter with a Ms. Susan Stewart, who at that time was employed by the Board. Various information was given to her in confidence on the understanding that she was going to attempt to help resolve the difficulties and obtain a proper hearing in this matter for the company. At the November meeting before the Board, Ms. Stewart was no longer with the Board but attended the hearing on behalf of the Union as an employee of the Union.

For the foregoing reasons, we hereby request that a hearing be held at which the Board can fully explore all of the merits of this matter and render a just decision. Accordingly, we would ask that you write to us at the earliest date possible in order to advise us of the date at which such a hearing could be held. We trust that it would be possible to arrange a hearing date for a time other than from January 29th to February 15th as Mr. Lamotte will not be available for a hearing during that period of time.

Your cooperation herein would be appreciated."

This letter in turn was followed by a further letter from the complainant union on behalf of the aggrieved employees:

"I have considered the points raised in the Respondent's letter dated January 13th, 1981.

It is the position of the Complainant that this further request for reconsideration and a hearing should be denied.

I will not recite the entire history of this complaint. Suffice it to say that, this matter was initiated in 1979. Subsequently, there was a hearing on the merits which Mr. Lamotte failed to attend. In addition, there has been a reconsideration hearing as well as a compensation hearing. The Respondent's delaying tactics have deprived the grievors of their remedy.

We are now in 1981, the grievors have not been compensated and the Respondent is again attempting to avoid its responsibilities. In our sub­mission, the Respondent is now clearly abusing the Board's process.

With respect to points one and two in the Respondent's letter, it is sufficient to say that these matters were raised in previous hearings and adjudicated upon by the Board.

Ms. Susan Stewart did represent the Complainant at the compensation hearing. She did not represent the Complainant at any hearing dealing with the merits. In no way was it improper for Ms. Stewart to represent the Complainant at the compensation hearing since this hearing had no relationship to any discussion which took place in the past between Ms. Stewart and Mr. Lamotte. No objection was made at the compensation hearing to her presence. In raising a point such as this, the Respondent is merely revealing the ridiculous lengths it is prepared to go in order to avoid its legal obligations.

With respect, the Complainant requests that this further request for reconsideration and a hearing on the merits be denied and that the Board order be filed forthwith."

16. In its letter of January 13, 1981, the respondent does not dispute the fact that it has failed to comply with the Board's order to compensate the employees discharged in or about 1979. The respondent's position is that, for the reasons stated, the Board should grant a new hearing in the matter. Accordingly, the Board considers the respondent's letter to be both a request for reconsideration, and an explanation for its failure to compensate its employees. Whichever way the matter is viewed, it is necessary to consider the points raised and determine whether they support the respondent's contention that the proceedings should be reopened, de novo. The first two submissions are related to the determination of liability. The third submission is related solely to the hearing in which the Board calculated the amount of compensation payable; but unlike the first two, it raises a more general concern. It will be convenient to deal with each of these matters in turn.

17. The respondent submits that the Board concluded that the company was acting in "bad faith" by failing to appear at the initial hearing. The respondent further submits that in reaching its decision dated November 3, 1980, (i.e. the decision concerning the amount of compensation payable) the respondent was not given a reasonable opportunity to present its evidence or, in the alternative, the Board failed to consider the respondent's evidence. With respect to these first two submissions, the Board can only reiterate its principal findings, based upon the evidence adduced at the February 29th, and June 23rd hearings. These are as follows:

18. the respondent had ample notice of the February 29th hearing;

19. the notice of hearing warned the respondent that if it failed to appear, the Board might proceed in its absence;

20. the respondent was informed by its solicitors that it should appear at that hearing to meet the case which was being made against it;

21. that despite this advice, the respondent chose not to appear;

22. that there was no basis for granting an adjournment of the February 29th hearing, because, notwithstanding the death of Mr. Lamotte's brother five days before, he continued to carry on his ordinary business in the days immediately following his brother's death and there was no reason why he could not have attended the Board hearing;

23. that upon the request for reconsideration, Mr. Lamotte gave evidence which was patently false and intentionally sought to mis­lead the Board as to the facts of the case;

24. that Mr. Lamotte was not in fact, and could not reasonably have been misled by his solicitors as to the necessity of his attendance at the Board hearing dated February 29, 1980.

The Board considered the letter from the firm of Bartlet and Richardes, dated April 23, 1980, but notes that no one from that firm appeared to give evidence with respect to its contents, nor has that firm taken an active part in any of the proceedings. In the circumstances, the Board based its decision upon the submissions of Mr. Carriere, and the testimony of Mr. Lamotte, and the various witnesses who observed him carrying on his ordinary business activities at a time when he alleges he was so bereaved that he was unable to do any work or attend a Board hearing.

18. The November 3, 1980, decision was solely concerned with the qualification of damages and in respect of that matter, the respondent was given a full opportunity to present any evidence which it wished to lead on the issue — as it was, with respect to its request for reconsideration. The Board carefully considered all of the evidence which the respondent sought to lead but, as we have already pointed out, we did not find Mr. Lamotte's evidence credible and, at the compensation hearing, we chose to prefer the viva voce evidence of his employees, over the business records which he himself admitted were inaccurate. The employee evidence respecting mitigation was not seriously challenged, nor was there any doubt about the wages they were making before their termination, or the number of days which had elapsed between that termination and the commencement of a lawful strike on January 2, 1980. The employees testified, and the Board accepted, that prior to their termination, they were working approximately forty-seven hours per week. This was the basis on which the Board performed the calculation of compensation which yielded the amounts mentioned in paragraph 14 above. In our view, there is nothing in the respondent's most recent submission which raises any doubt as to the method of calculation or the factual foundation upon which it was based. Indeed, it is difficult to see how there could be. Having found that the employees had taken reasonable steps to mitigate their losses, it was simply a matter of arithmetic to calculate the amount they would have made, had they not been terminated. The details of that calculation are fully set out in the Board's decision of November 3, 1980.

19. The third submission made by the respondent raises different considerations. This submission involves the appearance at the November (compensation) hearing of Ms. Susan Stewart, who had formerly articled to the Board's solicitor. Mr. Lamotte asserts that following the initial decision of the Board on March 5, 1980, (i.e. the original Board decision establishing the respondent's liability and declining to grant an adjournment) he attended at the offices of the Board and spoke to Ms. Stewart about his problem. At about this time, he also had some contact with Bartlet and Richardes (and perhaps with Mathews, Dinsdale & Clark), and by April 10, 1980, had retained McTague Clark to represent his interests. For the purposes of this decision, the Board will accept Lamotte's submission at face value however, the Board notes that he gives no indication of the nature of the "confidential information" allegedly conveyed, nor how its use was detrimental to him, or how it was even relevant to the question of mitigation or how much his employees would have made, had they not been terminated. None of those questions had even arisen at the time of his discussion with Ms. Stewart.

20. Essentially, (although the respondent does not put it quite this way) it is argued that either the respondent was unfairly prejudiced because of Ms. Stewart's knowledge of its affairs, or alternatively, the Board was biased because of Ms. Stewart's former connection with it. Again, it will be useful to review the facts focusing on those matters which either are not, or cannot now be disputed.

21. Ms. Stewart was articled to the Board's solicitor at the time of its first decision, and Mr. Lamotte apparently consulted her as to what could be done about it. Whether as a result of this discussion or otherwise, Lamotte subsequently retained new counsel, applied for reconsideration, and set in motion the series of hearings to which we have already referred. The request for reconsideration was rejected following a hearing. No mention of this contact with Ms. Stewart was raised at that hearing. Some months later, (and several months after she had completed her articles) Ms. Stewart appeared on behalf of the aggrieved employees at the hearing where the amount of compensation owning to them was determined. No objection was taken to her presence or participation at the hearing. That presence in now the basis for a request for afuli reconsideration of all issues in the case — including those resolved by the two earlier hearings and decisions of the Board.

22. We do not think this matter can be considered in the abstract. In our view, Mr. Lamotte's request for a full hearing de novo must be dealt with in the particular circumstances of this case.

23. The proceeding in the present case has been ongoing before the Board since August 1979. It is almost two years since the grievors have been discharged, and more than a year since the Board found that their discharge was unlawful. The respondent had notice of the original hearing, had advice from at least one, and perhaps two firms of solicitors, and, for the reasons given by the Board in its decision of March 5th, (and summarized above) the Board found that there had been a breach of The Labour Relations Act and ordered that the grievors should be compensated. Mi. Stewart had no involvement in that determination. The respondent refused to compensate its employees and, as was its right, retained new counsel and sought reconsideration. [t was shortly after the initial finding of liability that the alleged meeting with Ms. Stewart took place. Subsequently, the Board scheduled a second hearing where the respondent was represented by counsel and given an opportunity to lead evidence and make submissions as to why the Board should reconsider the case and rehear that matter de novo.Following the dismissal of that application, the respondent still refused to fully compensate the employees and again, as was its right, came back before the Board for a quantification of the amount of compensation owing. That hearing involved an assessment of the grievor's efforts to mitigate their losses, an arithmetic calculation of the amount that they would have earned had they not been illegally terminated, and certain evidence which the respondent led concerning the conduct of its business.

24. At the "compensation hearing", the question of liability was not relitigated, and it is difficult to see what Mr. Lamotte could have told Ms. Stewart some six months previously (and after the initial Board decision) which could possibly prejudice him or affect the outcome of the compensation hearing. The evidence of mitigation was that of the grievors themselves and, bearing the onus on the compensation question, the trade union proceeded first. The evidence on which the Board based its arithmetic calculation was also that of the grievors, since the Board accepted Lamotte's own evidence respecting the inadequacy of his business records. In neither case, did the union's position or the evidence upon which the Board's finding was based involve "confidential business information" of the respondent. The respondent was also given a full opportunity to lead its own evidence — the character of which 15 more fully set out in the Board's decision of November 3rd. In the result, however, the Board did not find that evidence persuasive or supportive of the conclusion (i.e. that the employees were not entitled to any compensation) urged upon us.

25. We cannot see how the respondent could have been prejudiced by Ms. Stewart's presence and any "confidential" information which she may have had, and certainly there was no indication at the hearing that she was in possession of any "insider" knowledge which would not have been known to the employees who worked for the respondent. It was not reflected in the character of the complainant's evidence or in cross-examination. It was Lamotte himself who tendered his payroll records and a portion of his production records. Moreover, if the respondent was concerned about the potential for unfairness, the matter could, and should, have been raised at the hearing itself. The respondent was aware of the meeting with Ms. Stewart and could directly, or through counsel, have brought its concerns to the Board's attention. He did not do so; and surely a party which is aware of an issue such as this, cannot remain silent and allow the hearing to proceed, without risking a finding that it has waived its right to complain.

26. Section 95 of The Labour Relations Act gives the Board the broadest possible discretion to reconsider its own decisions where it considers it just or appropriate to do so. Indeed, it was pursuant to section 95, that the Board scheduled the second hearing in this matter so that Mr. Lamotte would have an opportunity to explain why he had failed to attend the original Board hearing, and why a new hearing should be granted. It was at that first reconsideration hearing that Mr. Lamotte misrepresented the facts and sought to mislead the Board, and, in the circumstances, the Board was not persuaded that there had been any denial of natural justice. Similarly, in all of the circumstances of this case, the Board does not consider it necessary, appropriate, or just to schedule a further hearing in this matter or otherwise reconsider the findings of fact which it has made. There are a number of countervailing considerations, including: Lamotte's failure to raise his latest concern in a timely fashion; his attempt to mislead the Board; the overwhelming likelihood that a further hearing on the matter of compensation would not reach a different result because the facts upon which the finding was based are either undisputed or beyond dispute and, in any case, have nothing to do with Ms. Stewart or any "insider information" she may have had; and, finally the balance of convenience, and the interests of the aggrieved employees, who, as a result of the respondent's initial misconduct were out of work, without income for many months, and still have not been compensated. The Board sees no reason why they should bear the burden of yet another hearing.

27. Since it is not disputed that the respondent had failed to comply with any part of the Board order, and, there being no dispute in this regard, the Board sees no reason why its order should not be filed in Court so that the employees can pursue the enforcement mechanism provided for in the statute. For the foregoing reasons, the Board directs that its order be prepared in the prescribed form, and filed in the Court forthwith 578

DECISION OF BOARD MEMBER JAMES A. RONSON;

I. As set out in the majority decision, the respondent employer was found to have violated the Act. It was ordered to pay certain damages to various employees. It has not paid these damages and the trade union has requested that the Board file its order with the Supreme Court of Ontario so that the order may be enforced.

2. The employer has requested a hearing in order to show cause why it has not complied with the Board's order. It has raised various matters that have been dealt with in an earlier application for rehearing, but has raised a new ground of complaint as follows:

"After having been advised of the decision resulting from the February 29th meeting, the President of Russell MacVicar Limited, Mr. Henry Lamctte, attended at the Board offices in Toronto and fully discussed its difficulties in this matter with a Ms. Susan Stewart, who at that time was employed by the Board. Various information was given to her in confidence on the understanding that she was going to attempt to help resolve the difficulties and obtain a proper hearing in this matter for the company. At the November meeting before the Board, Ms. Stewart was no longer with the Board but attended the hearing on behalf of the union as an employee of the union."

3. In view of the allegation that the employer has been prejudiced in some way before he Board by the actions of Ms. Stewart, it seems to be that natural justice dictates that the Board schedule a hearing and allow the employer to present whatever evidence and make whatever representations it may have with respect to this one particular allegation.