Ontario Labour Relations Board
[1983] OLRB Rep. June 986
0377-83-M; 0378-83-M International Association of Heat and Frost Insulators and Asbestos Workers, Local 95, Applicant, v. Standard Insulation Limited, Respondent
BEFORE: Kevin M. Burkett, Alternate Chairman and Board Members J. Murray and W. F. Rutherford.
APPEARANCES: B. Fishbein, J. Dewit and A. Taggart for the applicant, no one appeared for the respondent.
DECISION OF THE BOARD; June 21, 1983
The Board directs that the above applications be and the same are hereby consolidated.
These are applications under section 124 of the Labour Relations Act in which the applicant union alleges that the respondent employer has failed to comply with the collective agreement to which they are bound.
The Board convened the hearing at its scheduled start time. However, although served with proper notice of the time and place of hearing, no one appeared for the respondent. The applicant advised the Board that it had subpoenaed two of the principals of the respondent company. The Board adjourned for approximately one hour but no one appeared for the respondent. The Board, therefore, proceeded in the absence of the respondent.
The applicant advised the Board that it would require the evidence of the two subpoenaed witnesses who had not appeared to establish its claim. The applicant asked the Board to issue warrants for the arrest of the two witnesses. The Board asked the applicant to satisfy it that these two persons had been properly served, whereupon the applicant produced affidavits signed by the process server. The Board is satisfied on this evidence that both Freddie L. Pilgrim and Paul Mitchell were properly served with summons to appear at the hearing in this matter and were paid the required conduct money.
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 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
See also sections 124(3) and 44(8).
The Board's power to issue a bench warrant pursuant to those sections was discussed in Casabil 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 pages 1278-1279 the Board commented:
In proceedings under section 112a, the Board, by virtue of sections 92(2)(a), 112a(3) and 37(7) of The Labour Relations Act, has the power to h... 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 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. 112a 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 to the issue of summonses or subpoenas and the enforcement therefore, but we are satisfied