[1982] OLRB Rep. January 47
0842-81-R Labourers' International Union of North America, Local 183, Applicant, v. Fantin Bros. Carpentry Limited, Resondent, v. United Brotherhood of Carpenters and Joiners of America Local 1190, Intervener
BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. J. F. Ade and C. A. Ballentine.
APPEARANCES: C. M. Mitchell, L. Steinberg and C. De Toni for the applicant; no one appearing for the respondent; Harold F. Caley and Ken Weller for the intervener.
DECISION OF THE BOARD; January 29, 1982
At the commencement of the hearing in this matter on January 27, 1982, the Board referred to a letter dated January 26, 1982 to the Registrar from counsel for the respondent. This letter advised the Board that counsel had endeavoured to obtain an adjournment from counsel for the applicant and that this request had been refused. Counsel for the respondent advised the Board that he had been instructed to not attend the hearing on January 27, 1982, and in deference to the Board had written to advise of his instruction. In the course of hearing the representations from counsel for the applicant and the respondent, it appeared to the Board that the instructions of counsel for the respondent were directly related to his inability to secure the consent of the applicant for an adjournment of the hearing on January 27, 1982. It also appeared to the Board that the refusal of counsel for the applicant to consent to the adjournment was directly related to the inability of counsel for the applicant to discover the precise reason for Mauro Angeloni's inability to appear as a witness before the Board on January 27, 1982, in response to a subpoena which had been served on Mr. Angeloni at the instigation of the applicant. The Board notes that the intervener had agreed to the request for an adjournment. At the hearing, counsel for the intervener expressed concern for the existing state of affairs but did not seek an adjournment of this hearing.
Counsel for the respondent did not address any request to the Board for an adjournment and the Board ruled that based upon the representations before it there was no basis for an adjournment and that the Board would proceed with the hearing.
During the hearing, counsel for the applicant sought to have the Board admit certain statements, which had allegedly been made by Mr. Angeloni before the Board on August 14, 1981, in evidence by the Board as constituting admissions against interest with respect to certain employers. This request was opposed by counsel for the intervener.
The Board ruled during the hearing that counsel for the applicant had alleged that certain admissions against interest were made by Mr. Angeloni as a representative or counsel of certain employers. These remarks which were attributed to Mr. Angeloni were made in the context of a request for an adjournment. Counsel for the intervener did not agree with the remarks which were allegedly made by Mr. Angeloni and adopted the position that in any event such alleged admissions against interest were not binding on the intervener. The Board noted that the alleged remarks were made before a differently constituted panel of the Board, were not made under oath and were made in the context of a request for an adjournment. The Board announced that it would assume, for the purposes of argument, that the remarks attributed to Mr. Angeloni were made. In our view, these remarks were not made as admissions against interests. Even if the Board regarded the alleged remarks of Mr. Angeloni as admissions against interest, the fact that such admissions did not bind the intervener meant that the admission of such evidence would have a prejudicial value which would exceed its probative value. The Board informed counsel for the applicant that it was not prepared to permit the applicant to adduce evidence with respect to Mr. Angeloni's alleged remarks.
The applicant produced evidence before the Board that Mauro Angeloni and Primo Fantin had each been served with subpoenas to appear before the Board on January 27, 1982, and give evidence under oath touching the matters in question in these proceedings and to bring certain material with them. The Board finds that Mauro Angeloni and Primo Fantin did not appear before the Board on January 27, 1982.
Counsel for the applicant asked the Board to certify to a judge of the Supreme Court the facts relied on to establish that the presence of Mauro Angeloni and Primo Fantin is required to the ends of justice under section 12(5) of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, in order that a bench warrant might issue under section 12(3) of that Act.
The Board is entitled on its own motion to seek a bench warrant under section 12(3) of the Statutory Powers Procedure Act and to make the necessary certification under section 12(5) of the said Act. As the Board noted in Master Insulation Company Limited, [1979] OLRB Rep. Mar. 237 at 239, the Board is entitled of its own motion to make applications under the relevant provisions of that Act. However, in that case, the Board concluded that it ought not to enter into the arena as a litigant and that the process before the Board would be better served if the applicant took the responsibility for enforcing the subpoena. There is nothing in this application for certification which is before the Board which causes the Board to disagree with its earlier decision. The Board, in all the circumstances, is prepared neither to make applications under the Statutory Powers Procedure Act nor to make the certification referred to in section 12(5) of that Act. Counsel for the applicant informed the Board that in the event that the Board was not prepared to make applications under that Act, the applicant would make the applications.
The Board notes that the sufficiency and extent of the affidavits was not raised before it and the Board therefore expresses no opinion on such matters. The applicant is directed to inform the Registrar at such time when it is ready and able to continue with the hearing of this matter.