[1983] OLRB Rep. December 2123
0191-83-M International Association of Bridge, Structural and Ornamental Iron Workers, Local 700, Applicant, v. Tri-Con Mechanical (Sarnia) Limited, Tri-Con Mechanical Holdings Limited, Respondents
BEFORE: Corinne F. Murray, Vice-Chairman, and Board Members R. J. Swenor and P. V. Grasso.
APPEARANCES: David Starkman and Dick Van Gyzen for the applicant, no one for the respondents.
DECISION OF THE BOARD; December 20, 1983
This is an application pursuant to section 124 of the Labour Relations Act referring to us a grievance dated April 19, 1983, which alleges that the respondents failed to remit certain reports and amounts pursuant to Articles 10, 30 and 31.2 of two collective agreements binding on the applicant and respondents. The collective agreements relied on are the provincial agreements between the Ontario Erectors Association and the International Association of Bridge, Structural and Ornamental Ironworkers and The Ironworkers District Council of Ontario comprised of Local Unions 700, 721, 736, 759, 765 and 786 for May 1, 1982 to April 30, 1984, (hereinafter referred to as the "1982/84 provincial agreement") and for May 1, 1980 to April 30, 1982 (hereinafter referred to as the "1980/82 provincial agreement").
This application was lodged on April 27, 1983. At that time there was no application for relief under either section 1(4) or section 63 of the Act. A hearing in this matter was set for May 11, 1983. On May 10, 1983 the Registrar received a letter from the solicitors for the applicant advising that the applicant “will be making application to the Board pursuant to the provisions of section 1(4)” of the Act. Enclosed with this letter were copies of corporate searches in connection with the respondents. Subsequently, the hearing of May 11th was adjourned. The applicant's solicitors, by letter dated May 18, 1983, confirmed that the May 11th hearing was adjourned because the respondents may not have had time to receive notice of the applicant's intention to rely on section 1(4) in the context of its section 124 application. The applicant also indicated that it would also be relying on section 63 of the Act. No particularization of the basis for this application was made at this time or subsequently. The Registrar forwarded to the respondents copies of both these letters.
In connection with its section 1(4) and section 63 applications, the applicant did not file either of the appropriate Forms for making such applications included in the Board's Regulations, i.e., Form 26 for a section 63 application and Form 31 for a section 1(4) application. Consequently, the Registrar did not create or forward to the respondents either of the Forms giving formal notice to the respondents and their employees of a section 63 application (Forms 27 and 28), and did not create or forward to the respondents either of the Forms giving formal notice to the respondents and their employees of a section 1(4) application (Forms 32 and 33). Forms 27, 28, 32 and 33 could not be sent because the Registrar did not have the information which would have been submitted on Forms 26 and 31. The letters of May 10th and 18th simply indicated an intention to raise section 1(4) and section 63 applications and forwarded copies of corporate searches.
The rescheduled date for hearing in this matter was set for November 14, 1983. Notice of this was duly given to all interested parties by the Registrar by letter dated October 19, 1983. Neither of the respondents appeared at the hearing of November 14, 1983. The applicant submitted two batches of corporate returns, certified by the Controller of Records for the Companies Services Branch of the Ministry of Consumer and Commercial Relations, one batch for each respondent. This was the only evidence led by the applicant to support its section 1(4) and section 63 applications. The applicant argued that this was sufficient for the Board to exercise its discretion under section 1(4). The applicant argued in the alternative that if the evidence was insufficient under either section 1(4) or section 63, this occurred because of the respondents' failure to fulfill their statutory obligation under section 1(5) and section 63(13), both of which impose an obligation on the respondents to adduce all material facts within their knowledge. The applicant ought not to fail because of such non-attendance. Alternatively, if such attendance is necessary in order for the Board to decide, then the Board ought to subpoena the respondents, on its own motion, and pay the conduct money for them together with costs of the day for the applicant.
The Board has determined that both the section 1(4) and section 63 applications ought to be adjourned in order for the appropriate notification to be given to the respondents and their employees. Even assuming the notice the respondents received via the applicant's letters of May 10th and 18th were sufficient to properly indicate to the respondents the nature of the applications and the particulars in support thereof (both of which we doubt), it is clear that the appropriate notice was not given to the employees of either respondent in accordance with the Board's procedures. These procedures were designed to inform all those interested in the applications to receive notice of their right to attend the hearing and make representations. The employees of the respondents are considered in the Board's regulation to be interested in these proceedings and this notification must be given prior to a hearing.
The applicant's counsel argued that the Board has allowed section 1(4) and section 63 applications to be raised by letter and it would be unfair to change this practice without notification. In the alternative, the applicant claimed that appropriate notice has been given to the respondents because the key corporate returns were included in the section 124 application and the May 10, 1983 letter. We disagree that there has been a uniform practice of allowing every section 1(4) and section 63 application raised by letter to be pursued. The Board's Rules of Procedure are quite specific with respect to the making of applications under sections 63 and 1(4). Sections 23 and 27 provide:
An application under section 63 of the Act shall be made in quadruplicate in Form 26.
An application under subsection 1(4) of the Act shall be made in quadruplicate in Form 31.
Obviously, if the letter contains all the information the Registrar needs to process the applications and create the notices to the respondents and their employees, the applications may proceed. However, where the letter in which these applications are raised falls short of this and the appropriate notices cannot be given, the applicant is always at risk of either having its application dismissed or suffering an adjournment for failure to supply particulars. However, if there is no complaint raised by those attending a hearing as to the manner in which the applications were commenced, the particulars provided or the adequacy of the notice, the hearing may proceed. In the instance before us we are concerned, in the absence of the respondents and in view of the way in which the section 1(4) and section 63 applications were raised, as to whether the respondents have received proper notice. We are convinced their employees have not the notice contemplated by the Board's regulations. For all these reasons we hereby adjourn both applications to allow the applicant to properly file its applications in the proper form in order for the Registrar to give the necessary notices in the circumstances.
(Paragraphs 8-12 dealing with the merits of the grievance omitted)
- The applications pursuant to section 1(4) and section 63 are adjourned, pending the applicant providing to the Registrar the required particulars relating to these applications so that the appropriate notices may be given.