[1983] OLRB Rep. April 547
2459-82-M Ontario Provincial Conference of the International Union of Bricklayers and Allied Craftsmen, Applicant, v. Joe Arban Contractor Limited, Respondent
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members F. W. Murray and H. Kobryn.
APPEARANCES: B. Fishbein, D. Demonte and A. Vervaeke for the applicant, Joseph Arban for the respondent.
DECISION OF THE BOARD; April 13, 1983
This is a referral of a grievance to arbitration pursuant to section 124 of the Labour Relations Act.
This matter came on for hearing on March 29, 1983. The applicant was not able to proceed because of Joseph Arban's failure to produce the documents listed in the summons, properly served on him March 23, 1983.
Counsel for the applicant requested the Board to direct Mr. Arban to reappear at a date to be fixed and produce the documents set out in the summons. The Board granted this request and orally directed Mr. Arban to attend at a hearing, at a date to be fixed, and produce all the documents, papers and other material set out in the summons served upon him on March 23, 1983.
Counsel for the applicant also requested that the Board assess the "costs of the day" against Mr. Arban. The Board reserved on this request.
The Board has only granted costs in essentially two instances:
(a) as compensation for the expenses of one party that would result from an adjournment to convenience the other party (see Metropolitan Toronto Apartment Builders Association, [1970] OLRB Rep. Nov. 846; Repac Construction Ltd., [1976] OLRB Rep. Oct. 610, at paragraph 10 for analysis); and
(b) as a part of a "make whole" order or as damages flowing from a violation of the Act (Academy of Medicine, 11977] OLRB Rep. Dec. 783; Suzanne Hebert-Vaillant, [1981] OLRB Rep. June 623).
The Board will not, as a regular part of the exercise of its remedial powers in response to a finding that the Act has been violated, grant the successful party its costs. There must be sufficient overriding policy considerations or extraordinary circumstances (Radio Shack, [19791 OLRB Rep. Dec. 1220; Comstock Funeral Home, [1981] OLRB Rep. Dec. 1755). Similarly, a party who has failed to prove a complaint will not in the normal course be required to pay the opposite party's costs (Albert Shiwinski, [1981] OLRB Rep. Nov. 1542; Montgomery Elevator Co., [1978] OLRB Rep. Jan. 83).
It has also been exceptional that adjournments have been granted on condition that the party seeking it pay the other's costs for the day "wasted". Even where a party has received an adjournment without costs upon certain conditions being fulfilled and these conditions were not fulfilled, the Board has not granted costs (see New Gregory House, [1980] OLRB Rep. June 873). Indeed the Board has in Repac, supra, and the cases cited therein expressed doubt as to the extent of the jurisdiction to award costs when this is not part of its general remedial power.
The common thread running through all of these cases is that costs ought not to be awarded as a punishment. In exceptional circumstances costs must be granted to compensate for results of violations of the Act or for adjournment expenditures. Since adjournments to which all parties have consented are exceptional, costs are the price, in some instances, of succeeding in obtaining a unilaterally requested adjournment.
There has been only one reported case where the Board has dealt with the matter of costs in a section 124 proceeding. The Board in Master Insulation Ltd., [1979] OLRB Rep. Mar. 237 rejected a request for costs of a day during which a summons witness refused, on the advice of his counsel, to be sworn and give evidence. The Board on that occasion expressed doubt as to its jurisdiction to grant costs. In a subsequent application to the Divisional Court by way of stated case pursuant to section 13 of the Statutory Powers Procedure Act, R.S.O. 1980, c. 484, the Court found that the Board when exercising its power under section 124 did so as an arbitrator (see International Union of Heat and Frost Insulators (1980), 5 O.R. (2d) 8). Section 124(3) gives the Board the powers and jurisdiction of an arbitration board under section 44. Other boards of arbitration exercising powers under section 44 have refused generally to grant costs because the Act does not grant them such powers and the longstanding practice (often stated in collective agreements) that the parties to the arbitration share the cost of the arbitrators (see Canron Ltd. (1973) 1973 CanLII 2033 (ON LA), 2 L.A.C. (2d) 273, affiliated 1974 CanLII 2362 (ON HCJDC), 10 L.A.C. (2d) 336n (Ont. Div. Ct.. The Board sitting as an arbitrator pursuant to section 124 also has not been granted the power to assess costs and section 124(4) specifically provides for the equal sharing of expense of the proceedings, as fixed by regulation. Therefore the Board affirms the doubts expressed by the panel in Master Insulation Ltd., supra, and since the case before us does not fall within the exceptions noted in paragraph 5, we decline to award costs.
The matter of the continuation of the hearing on the merits will be referred to the Registrar.