[1982] OLRB Rep. July 1057
0359-82-M Drywall, Acoustic, Lathing and Insulation, Local 675 of the United Brotherhood of Carpenters and Joiners of America, Applicant, v. Readywall Ltd., Respondent.
BEFORE: R.O. MacDowell, Vice-Chairman, and Board Members W.G. Donnelly and H. Simon.
APPEARANCES: M. Zigler and H. K. Weller for the applicant; no one appeared for the respondent.
DECISION OF THE BOARD; July 9, 1982
This is an application under section 124 of the Labour Relations Act. The applicant union contends that the respondent company has failed to comply with certain collective agreements by which it is bound. In particular, the union alleges that the company has failed to remit certain payments in respect of welfare, pension, supplementary unemployment insurance benefit, vacation pay, statutory holiday pay, and "industry" funds, these payments are calculated with reference to the number of hours worked by the company's employees.
When this matter came on for a hearing on June 2, 1982, counsel for the union advised the Board that he had attempted to subpoena Stefan Dulk, a principal of the respondent company, to give evidence and produce documents which were necessary for the union's case. Without Mr. Dulk's testimony and the company's employment records, the applicant indicated that it might have some difficulty establishing the precise quantum of damages flowing from the company's breach of the collective agreement. There is no doubt that this evidence is relevant, material, and perhaps necessary for the applicant to fully substantiate its claim. However, counsel contended that Mr. Dulk was evading service of the subpoena, and requested the Board to make an Order for substitutional service, or otherwise fashion a Direction which would facilitate a resolution of the matters in dispute. Counsel pointed out that the purpose of section 124 was to provide speedy relief (the Board must hold a hearing within 14 days), and argued that it would subvert the entire process if the principal of a respondent employer, by evading service, could prevent necessary evidence coming before the Board. The Board heard the viva voce evidence of Leonard Rubenstein, a process servor retained by the applicant, and we have no doubt that Mr. Dulk is in fact evading service.
The power of the Board to require the attendance of witnesses has recently been reviewed in Casalbil Contracting Ltd. [1980] OLRB Rep. Sept. 1278, where the Board observed:
"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 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), 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 is 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 us as to the appropriate procedures to be followed by the Board under s. 1 12a with respect to the issue of summonses or subpoenas and the enforcement therof, 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 Procedures 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. 3d) 114-336, 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 Hal Wax 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] OR. 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."
But, in Casalbil, the Board was dealing with an individual who had been personally served, but who had failed to appear as required by the subpoena. So far, as we are aware, the Board has never previously had to address the question posed by the applicant in this case: whether substitutional service of a subpoena can be ordered, or whether there is some other mechanism by which a witness can be compelled to attend before the Board, on pain of punishment, which does not, in itself, involve personal service upon the recalcitrant individual.
A subpoena, does not fit easily within the meaning of the words "notice or communication" found in section 113(1) of the Act dealing with mailed notices, nor do the Board's rules respecting service of documents by mail (Rules 74-78) apply to subpoenas. This is not surprising, of course, for section 12 of the Statutory Powers Procedure Act clearly requires personal service of a subpoena, and until the court held otherwise in Re International Association of Heat etc. Workers et al. supra, it was thought that the S.P.P.A. applied to all proceedings under section 124 (formerly section 1 12a), we do not think that the Court was proceedings under section 124 (formerly section 1 12a), we do not think that the Court was suggesting that subpoenas need not be personally served, or that there was another more convenient but equally enforceable vehicle which does not require personal service. Indeed, upon a perusal of the Rules of Practice of the Supreme Court of Ontario, it is by no means clear that even that tribunal can order substitutional service of a subpoena.
We have carefully considered the applicant's submissions and are not unaware of the dilemma which it faces. However, we do not think that we are empowered to issue substitutional service of a subpoena or to issue a Direction to appear in the nature of a "benchwarrant" which carries with it penal consequences but does not itself have to be served personally. In our view, the situation here is distinguishable from that before the Board in Casalbil, supra, or considered by the Court in International Assoc. of Heat etc. Workers et al. supra. Where, as here, the applicant is faced with a situation in which a necessary witness is evading service, it appears to us that the applicant has two options available to it:
(a) it can seek an adjournment in order to effect service on Mr. Dulk or some officer or director of the respondent who has access, or the right of access to the required documents or information, and may be punished if such material is not produced; or
(b) it can proceed to the hearing on the merits, tendering such evidence (which in the circumstances will be uncontradicted) as is available to prove its case, and establish the damages flowing from such contractual breach.
Of course, if the applicant adopts the second alternative, the Board will have to make a decision on the basis of the evidence before it. If a breach is established, the Board will have to determine the sum which the respondent will be required to pay to the union as agent for the respondent's employees, and will also have to consider such other relief by way of affirmative direction or otherwise as may be requisite to effect of binding resolution of the parties' dispute. (See: Re Samuel Cooper & Co. Ltd. et al 1973 CanLII 461 (ON HCJDC), [1973] 2 O.R. 841, 35 DLR (3d) 501). Such orders, if given, would be enforceable against the respondent in the Supreme Court of Ontario in the same manner as a judgment or Order of that Court. (See section 44(11) of the Act). And having notice of the hearing but declining to participate as well as evading service of a subpoena which would have resulted in a more complete evidentiary picture, Mr. Dulk will hardly be in a position to complain of such result.
- For the foregoing reasons, the Board directs the Registrar to relist this matter for a hearing, and to serve the parties in accordance with the Board's own Rules of Practice with both the usual notice of hearing and a copy of this decision.