[1983] OLRB Rep. December 1957
0019-82-R; 0052-82-U International Ladies Garment Workers' Union, Applicant, v. Apple Bee Shirts Limited, Respondent, v. Group of Employees, Objectors
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members W. H. Wightman and B. L. Armstrong.
DECISION OF THE BOARD; December 9, 1983
1The Board by decision dated September 26th, 1983, ordered the respondent to pay certain amounts to certain of its employees as set out in paragraph 2 of that decision.
2The solicitors for the complainant wrote the following letter to the Board dated October 17th, 1983:
"We are in receipt of the Board's decision in the within matter dated September 26, 1983, whereby certain amounts were to be paid for wages and vacation pay to certain former employees of Apple Bee Shirts.
By letter dated October 5, 1983, we wrote to the receiver of Apple Bee Shirts demanding payment of the amount. By letter dated October 12, 1983, a copy of which we enclose, the receiver responded, indicating that the company is insolvent and no funds are available to pay the unsecured claim.
Pursuant to the provisions of Section 89(6) of The Labour Relations Act, we request, on behalf of our clients, that the Board file in the Office of the Registrar of the Supreme Court, a copy of its decision dated September 26, 1983 in the prescribed form, whereupon the determination can become a Judgment of that court and is enforceable as such."
3The Board provided a copy of the letter it had received from the solicitors for the complainant to the respondent and advised the respondent that unless the order had been complied with, the Board would be filing its order with the Supreme Court of Ontario.
4Section 89(6) of the Labour Relations Act provides in part:
"Where a trade union ... employer, ... person or employee has failed to comply with any of terms of the determination, any trade union, person or employee, affected by this determination, may, after the expiration of fourteen days from the date of the release to the determination, or the date provided in the determination for compliance, which ever is later, notify the Board in writing of such failure, and thereupon the Board shall file in the office of the Registrar of the Supreme Court a copy of the determination, exclusive of the reasons therefore, if any, in the prescribed form, whereupon the determination shall be entered in the same way as a judgment order of that Court and is enforceable as such."
5Although section 89(6) appears to suggest that the Board must file its determination with the Registrar of the Supreme Court upon being notified of a failure to comply with that order, the Board, with the approval of the Court (see Chairtex Manufacturing 1971 CanLII 669 (ON CA), [1971] 3 O.R. 154) has required a party requesting that an order be filed under section 89 prove the fact of non-compliance. While it has been the Board's practice to schedule a hearing to deal with non-compliance, the Board has recently introduced a procedure whereby it advises the respondent of the allegation of the failure to comply, and permits the respondent to take issue with that allegation. However, where a respondent either agrees that there has been a failure to comply with the Board’s determination or simply does not respond to the allegation that there has been a failure to comply with the Board order, the Board will file its determination with the Court pursuant to section 89(6) of the Act, because in the absence of any response, it will normally be satisfied that there has been a failure to comply.
6In this case, subsequent to the Board notifying the respondent of the complaint's allegation that it had failed to comply with the Board’s order of September 26th, 1983, no response was received from the respondent to this date. Under these circumstances, the Board is satisfied that the respondent has failed to comply with the determination of September 26th, 1983, and hereby files a copy of its determination with the Registrar of the Supreme Court of Ontario.