Ontario Labour Relations Board

[1984] OLRB Rep. February 383

2377-83-M International Association of Heat, Frost Insulators and Asbestos Workers, Local 95, Applicant, v. Standard Insulation Limited, Respondent

BEFORE: R. A. Furness, Vice-Chairman, and Board Members H. Kobryn and J. A. Ronson.

APPEARANCES: L. Steinberg and E. Walsh for the applicant; no one appearing for the respondent.

DECISION OF THE BOARD; February 13, 1984

1. The applicant has referred a grievance concerning the interpretation, application or alleged violation of a collective agreement to the Board for final and binding determination.

2. At the hearing in this matter on February 2, 1984, the applicant informed the Board that it had served a subpoena duces tecum together with conduct money of $41.00 on Mr. F. Pilgrim with respect to attendance at the hearing and that Mr. Pilgrim was not in attendance before the Board. The applicant asked the Board to issue a bench warrant so that Mr. Pilgrim could be apprehended and brought to the hearing in order to give evidence. It was the position of the applicant that Mr. Pilgrim's evidence was necessary in order for the applicant to es­tablish its claim before the Board. After hearing evidence and argument the Board ruled that it would not issue a bench warrant. The Board caused this referral to be listed for continuation of hearing on February 16, 1984, and stated that this panel of the Board was not seized with this referral. The Board now sets forth its reasons for not issuing a bench warrant.

3. The hearing in this matter was held on February 2, 1984. Alexander Taggart, the business manager of the applicant, gave evidence regarding the service of the summons on Mr. Pilgrim. Mr. Taggart attempted to serve the summons on Mr. Pilgrim during the evening of January 31, 1984. He visited Mr. Pilgrim's house at about 7:30 p.m. and spoke to Mrs. Pilgrim, who informed him that Mr. Pilgrim had left the house about twenty minutes earlier. She informed Mr. Taggart that she did not know where her husband was going. Mr. Taggart then visited Mr. Pilgrim's office in Hamilton. However, no one was present at Mr. Pilgrim's office. The next morning at about 9:00 a.m. Mr. Taggart again visited Mr. Pilgrim's office and again found no one there. However, Mr. Taggart returned to Mr. Pilgrim's office on the same day between 2:30 and 3:00 p.m., saw him and served him with the summons and $41.00 in conduct money. Mr. Taggart gave Mr. Pilgrim a copy of the summons and told him that he was being summoned to appear before the Board on February 2, 1984. Mr. Pilgrim wanted to know what the summons was about and Mr. Taggart informed him that the summons spoke for itself and that he was to attend at the Board on February 2, 1984. Mr. Pilgrim replied that he had to run the business and told his assistant to telephone the Board and state that he could not attend on February 2, 1984. Mr. Taggart reiterated that Mr. Pilgrim had to attend at the Board. Mr. Pilgrim replied, "We'll see". There was nothing before the panel to in­dicate that Mr. Pilgrim or anyone on his behalf telephoned the Board in connection with the service of a summons.

4. The applicant argued that Mr. Pilgrim had been duly served and that the material in Mr. Pilgrim's possession was relevant and necessary for the presentation of its referral to the Board. The applicant requested a bench warrant for Mr. Pilgrim so that the applicant could have the material in his possession. The applicant argued that even though the summons was served the afternoon before the hearing, Mr. Pilgrim would have received notice of the hear­ing at about the same time as the applicant, namely, January 23, 1984. It was the applicant's position that Mr. Pilgrim had received reasonable notice of the hearing.

5. The Board is aware that this is not the first time that Mr. Pilgrim has failed to appear before the Board when served with a subpoena. See Standard Insulation Limited, [1983] OLRB Rep. June 986. In that decision the Board issued warrants for the arrest of two de­faulting witnesses, including Mr. Pilgrim, where it was satisfied that they were properly served with summonses to appear at the hearing and were paid the required conduct money. There is no indication in that decision of the circumstances of the service of the summons.

6. The authority of the Board to summon and enforce the attendance of witnesses is provided for in section 103(2)(a) of the Labour Relations Act. Sections 44(8) and 124(3) also provide for the power of an arbitrator or the chairman of an arbitration board or the Board to summon and enforce the attendance of witnesses. The instant referral has been made under section 124 of the Labour Relations Act. When the Board is acting as an arbitrator the en­forcement procedures contained in sections 12 and 13 of the Statutory Powers Procedure Act do not apply to arbitrators under the Labour Relations Act. See section 3(2)(d) of the Statutory Powers Procedure Act, Casalbil Contractor Limited, [19801 OLRB Rep. Sept. 1278, and Re International Association of Heat & Frost Insulators & Asbestos Workers Local 95 and Master Insulators Association of Ontario et al. 1979 CanLII 1622 (ON HCJ), 99 D.L.R. (3d) 757; 25 OR. (2d) 8. The power to enforce the attendance of witnesses when the Board is entertaining a referral under section 124 is therefore to be found in the provisions of the Labour Relations Act. Under the pro­visions of section 103 (2)(a), the Board has the power to enforce the attendance of witnesses in the same manner as a court of record in civil cases. This authority includes that power to issue a warrant for the arrest of a person who has failed to appear when duly served with a summons. See Casalbil Contractor Limited, supra, at page 1279. The powers which the Board currently exercises in this regard with respect to proceedings under section 124 were formerly exercised by it with respect to all of its proceedings under the Act before the ap­plication of the Statutory Powers Procedure Act to the Board.

7. Although the Board has the power to issue a bench warrant, such a power ought to be used with caution and fairness. As the Board pointed out in Sentry Department Stores Limited, [19641 OLRB Rep. Feb. 642, the issuance of a warrant for the arrest of a defaulting witness is a most serious step affecting the personal liberty of the individual and should not be considered by the Board unless the circumstances plainly substantiate the necessity for such action. There is a responsibility on a party wishing to produce evidence through a witness to ensure that the witness is available at the hearing before the Board. This responsibility is sat­isfied where a witness has been properly served within a reasonable time prior to the hearing with a summons and the necessary conduct money which would compel his attendance. See North American Plastics Co. Limited, [1967] OLRB Rep. Nov. 764, and Fort Henry Hotel 52 CLLC ¶17,011.

8. In the instant referral Mr. Pilgrim was served with a summons on the afternoon prior to the hearing even though the applicant was aware of the date of the hearing as early as January 23, 1984. Whether a person has been duly served involves not only a consideration of the form of the summons, the information contained therein and the receipt of conduct money; it also involves the question of the reasonableness of the notice given to a person prior to the time and date fixed for the hearing. Mr. Pilgrim apparently operates a business and immediately protested to Mr. Taggart his inability to attend the hearing on February 2, 1984. Even allowing for the fact that Mr. Pilgrim lives close to Toronto, in all the circumstances he was entitled to at least one day's clear notice of a requirement to attend at the Board's hearing in Toronto. Even where one day's notice has been given, a person who has been served with a summons may still have a good and sufficient reason for failing to respond to the summons. The Board is not prepared to find that Mr. Pilgrim was duly served with the summons.

9. The applicant argued that Mr. Pilgrim received notice of the hearing on January 23, 1984. Even assuming that this was true, notice of a hearing is very different from notice of a requirement to attend that same hearing as a witness pursuant to a duly served summons. A respondent is under no obligation to attend a referral under section 124. Indeed, paragraph 6 of Form 105, Notice to Respondent of Referral of Grievance to Arbitration under Section 124 and of Hearing, Construction Industry, states:

If you do not attend at the hearing, the Board may proceed in your ab­sence and you will not be entitled to any further notice in the proceedings.

10. For the foregoing reasons, the Board refused to issue a bench warrant for Mr. Pil­grim on February 2, 1984. The Registrar is directed to list this referral for continuation of hearing on February 16, 1984.