[1982] OLRB Rep. July 1025
0482-82-M International Brotherhood of Painters and Allied Trades, Local 1891, Applicant, v. Mar-ot Painting Contractors Limited and Ionview Construction Limited, Respondents
BEFORE: R.O. MacDowell, Vice-Chairman and Board Members L. Hemsworth and M.J. Fenwick.
APPEARANCES: B. Fishbein and S. Pantorotto for the applicant; no one appeared for the respondents.
DECISION OF THE BOARD; July 22, 1982
This is an application under section 124 of the Labour Relations Act in which the applicant union alleges that the respondents have failed to comply with the collective agreement by which they are bound. This is one of two related applications between these parties currently before the Board. The other application (Board File 0390-82-R) involves the corporate relationship between the two respondents, and the union's allegation that either section 63 or section 1(4) of the Act applies. For the purpose of this interim decision, it is unnecessary to consider the details of either of these two applications.
The section 63 / 1(4) application was made on May 25, 1982, and a hearing date fixed for June 23, 1982. The instant application under section 124 was made on June 9, 1982, and since the parties were the same and the issues arguably related, the hearing date was fixed for June 23, 1982. In accordance with its usual practice under section 124, the Board appointed an officer to meet with the parties to endeavour to effect a settlement of the matters in dispute between them. The Board Officer notified the parties of a meeting to be convened at the Board's offices in Toronto at 10:00 a.m. on June 17, 1982. The respondents did not appear at this meeting.
Pursuant to its application under section 63/1(4), the union served subpoenas on Ottavio Rizzo and Maria Rizzo to give evidence in respect of these matters returnable on the hearing date June 23, 1982. The Board is satisfied on the basis of the evidence before it that the Risso's were properly served. Neither Ottavio Rizzo nor Maria Rizzo appeared to give evidence as required by the subpoena. The hearing of both applications was adjourned to July 19, 1982. Meanwhile, the applicant union sought to serve the Rizzo's with a second subpoena. This was accomplished on June 24, 1982, and as before the Board is satisfied on the basis of the evidence before it that they were properly served and required to appear before the hearing of this section 124 application. As before, both the section 63/1(4) and the section 124 application (i.e. the instant case) were scheduled for hearing on the same day. Once again, neither Maria Rizzo nor Ottavio Rizzo appeared.
The union requests that the Board issue a bench warrant to ensure that these witnesses and their evidence are available.
The authority of the Board to issue the relief which the applicant union requests is based upon section 103(2)(a) of the Labour Relations Act (formerly section 92(2)(a)) which reads as follows:
(2) Without limiting the generality of subsection (1), the Board has the power,
(a) to summon and enforce the attendance of witnesses and compel them to give oral or written evidence on oath, and to produce such documents and things as the Board considers requisite to the full investigation and consideration of matters within its jurisdiction in the same manner as a court of record in civil cases.
The Board's power to issue a bench warrant pursuant to that section was recently discussed in Casalbil Contractor Limited, [1980] OLRB Rep. Sept. 1278 which, as in the present case involved an application under section 124 (then section 112(a)) of the Act. At page 1278-1279 the Board commented:
"3. In proceedings under section 1 12a, the Board, by virtue of sections 92(2)(a), I 12a(3) and 37(7) of The Labour Relations Act, has the power to ". . . 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 1 12a 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), 25 0. 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. I 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 question raised before us as to the appropriate procedures to be followed by the Board under s. 1 12a with respect issue of summonses or subpoenas and the enforcement therefore, 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 Munic4,al Board, [1962] 0. R. 328; 1962 CanLII 132 (ON CA), 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 Board is satisfied that Ottavio and Maria Rizzo have twice been duly served with a subpoena and conduct money requiring their attendance at a hearing before the Board, and have twice failed to appear. In the second instance, the subpoena was issued pursuant to an application under section 124 of the Act and the Board is satisfied that the procedure outlined in Casalbil Contractor Limited, supra, is the appropriate one to be followed. The Board is further satisfied that the presence of Maria and Ottavio Rizzo is material to the ends of justice. Therefore, the Board hereby issues a warrant for the arrest of Maria and Ottavio Rizzo directed to the sherrifs and other peace officers in the Province of Ontario to arrest and bring the said Maria and Ottavio Rizzo before the Board at the continuation of its hearing in this matter at the Board's hearing rooms on the 6th floor of 400 University Avenue in the City of Toronto on the 31st day of August, 1982.