[1984] OLRB Rep. August 1117
2594-83-U William Frederick Burrows, Complainant, v. Lloyd McHugh & Son Limited and The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of The United States and Canada and Local 345 of The International Alliance of Theatrical Stage Employees and Moving Picture Machine Operators of The United States and Canada, Respondents
BEFORE: R. O. MacDowell, Acting Alternate Chairman, and Board Members W. H. Wightman and H. Kobryn.
DECISION OF THE BOARD; August 9, 1984
This is a complaint under section 89 of the Labour Relations Act. In a decision dated May 28, 1984, another panel of the Board determined that the respondent employer Lloyd McHugh & Son Limited contravened section 66(a) of the Act by laying-off the complainant before the normal end of the work season because he enlisted the assistance of his trade union. The Board directed the respondent employer to pay to the complainant back wages and interest thereon in the amounts set out in paragraph 11 of that decision.
By letter dated July 17, 1984, counsel for the complainant notified the Board as follows:
This concerns a Section 89 complaint which was originally filed with the Board on or about February 3rd, 1984. The Board heard the matter on May 22nd, 1984 and rendered a decision dated May 28th, 1984.
Paragraph eleven of the Board's decision states: "We direct Lloyd McHugh and Son Limited to pay to the complainant: (a) compensation for three weeks wages in the amount of $300.00 per week; (b) an amount equal to five percent of this wage loss compensation in respect of pension plan contribution; (c) interest on the amount specified in paragraphs (a) and (b) calculated in the manner prescribed in practice number 13, dated September 18th, 1980."
We would like to advise the Board that although a month has elapsed since a copy of the Board's decision was received by this office, absolutely no payment has been received by either Mr. William Frederick Burrows nor by this office on his behalf from Lloyd McHugh & Son Limited. We further advise that we have received no communication from the respondent Lloyd McHugh & Son Limited at any time.
Thank you for your consideration in this matter and look forward to the Board proceeding in this matter.
- The Board provided a copy of the letter to the solicitors for the respondent employer, with the following covering letter from the Registrar of the Board:
I enclose herewith a letter from the solicitor for the complainant which alleges that the respondent, Lloyd McHugh & Son Limited, has failed to comply with the Board's order dated May 28th, 1984, directing the said respondent to pay the complainant compensation as indicated therein.
If you have any representations to make with respect to the said submission of the complainant, you must file them with the Board not later than August 8th, 1984.
If you fail to file any submission on or before that date, or if the Board is satisfied on the submission made to it that there has been non-compliance with the said Board order, the Board will file the said order in the Supreme Court pursuant to section 89 (6) of the Labour Relations Act.
- Section 89(6) of the Labour Relations Act provides:
Where the trade union, council of trade unions, employer, employers' organization, person or employee, has failed to comply with any of the terms of the determination, any trade union, council of trade unions, employer, employers' organization, person or employee, affected by the determination may, after the expiration of fourteen days from the date of the release of the determination or the date provided in the determination for compliance, whichever 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 therefor, if any, in the prescribed form, whereupon the determination shall be entered in the same way as a judgment or order of that court and is enforceable as such.
Although section 89(6) could be read as requiring the Board to file its determination with the Registrar of the Supreme Court upon merely being notified of non-compliance, the Board has generally required a party requesting that the order be filed, to prove the fact of non-compliance if such is disputed. This practice received the approval of the Court in Chairtex Manufacturing, 1971 CanLII 669 (ON CA), [1971] 3 O.R. 154. Typically, the Board would schedule a hearing to deal with this matter even when the fact of non-compliance was not formally disputed. However, the Board has recently introduced a procedure whereby it advises the respondent of the allegation of non-compliance, and permits the respondent to take issue with that submission. (See Apple Bee Shirts Limited, [1983] OLRB Rep. Dec. 1957.) Where the respondent either agrees that there has been a failure to comply with the Board's determination or simply does not respond to the allegation of non-compliance, 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. Neither Chairtex nor the terms of the statute require a hearing and none is necessary where the fact of non-compliance is not put in issue.
In this case the Board notified the solicitors for the respondent employer of the complainant's allegation of non-compliance by letter dated July 25, 1984. By letter dated August 1, 1984, the solicitors for the respondent employer responded as follows:
I acknowledge receipt of yours of July 25th in the above and I have noted its contents.
The Complainant's lawyer is correct, in that my client has not paid the compensation as directed by the Order of the Board, because it has no assets with which to so do. As we pointed out to you earlier, the Theatre has been taken over by the First Mortgage [sic] under power of sale proceedings, the Company has no income and no assets and is virtually in an insolvent position.
If the Company had assets and income and was solvent, it would honour the Board's decision, and, in fact, it would have defended the action.
- On the basis of this response the Board is satisfied that the employer has failed to comply with the Board's order dated May 28, 1984. Counsel for the employer in his letter reproduced above candidly concedes the fact of non-compliance, albeit with an explanation. In the circumstances, the Board hereby files a copy of its determination of May 28, 1984, with the Registrar of the Supreme Court of Ontario, so that the complainant may seek enforcement.