[1985] OLRB Rep. November 1648
1465-85-R; 1466-85-R; 1467-85-U United Steelworkers of America, Applicant/Complainant, v. Plaza Fiberglas Manufacturing Limited and Plaza Electro-Plating Limited, Respondents
BEFORE: Owen V. Gray, Vice-Chairman and Board Members F. C. Burnet and W. F. Rutherford.
DECISION OF THE BOARD; November 12, 1985
- By letter dated November 6, 1985, the applicant/complainant asks that we state a case to the Divisional Court under section 13 of the Statutory Powers Procedures Act, R.S.O. 1980, c. 484. which provides:
Where any person without lawful excuse,
(a) on being duly summoned under section 12 as a witness at a hearing makes default in attending at the hearing; or
(b) being in attendance as a witness at a hearing, refuses to take an oath or to make an affirmation legally required by the tribunal to be taken or made, or to produce any document or thing in his power or control legally required by the tribunal to be produced by him or to answer any question to which the tribunal may legally require an answer; or
(c) does any other thing that would, if the tribunal had been a court of law having power to commit for contempt, have been contempt of that court,
the tribunal may, of its own motion or on application of a party to the proceedings, state a case to the Divisional Court setting out the facts and Ehat court may, on application on behalf of and in the name of the tribunal or by such party, inquire into the matter and, after hearing any witnesses who may be produced against or on behalf of that person and after hearing any statement that may be offered in defence, punish or take steps for the punishment of that person in like manner as if he had been guilty of contempt of the court.
The proceedings in which this request is made are: an application for certification as exclusive bargaining agent for a bargaining unit of employees of the respondents in the Municipality of Metropolitan Toronto, an application for a declaration under subsection 1(4) of the Labour Relations Act that the respondents be treated as one employer for the purposes of that Act, and a complaint under section 89 of that Act alleging that members of the managements of the respondents reacted to the applicant/complainant's organizing campaign by interrogating and intimidating employees about union activities, engaging in surveillance of the site of a union meeting to which certain of their employees had been invited, and terminating a number of employees because of their suspected involvement in union activity.
When these two applications and complaint came before us on October 4 and 10, 1985, the respondents argued that the Ontario Labour Relations Board had lost jurisdiction in these matters because the Board's officials had entered the respondents' premises without their permission to post notices to their employees of the two applications. Their counsel led evidence that the respondents had refused to comply with the Board's usual directions to post the Board's notices and, further, had refused access to their premises by a Labour Relations Officer duly authorized by the Board to enter those premises to post the required notices. The Board's officer eventually gained entry with the assistance of a sheriff's officer, and certain of the Board's notices were then posted. The arguments constructed on this foundation by the respondents' counsel are set out and dealt with in our decision of October 22, 1985, and need not be reviewed here. We found no merit in any of the respondents' challenges to the jurisdiction of the Board and this panel. We concluded that an officer authorized by the Board to enter premises and post notices therein does not require the occupant's permission to do so. We also concluded that it was within the Board's power to require posting of the notices in question, and rejected the respondents' arguments that the notices had been inherently defective in form or content.
For reasons set out in our decision of October 22nd, we found it necessary to give further notice of these proceedings to the respondents' employees. We extended the terminal date in both applications to November 5th, directed the Registrar to prepare new notices and forward copies thereof to the respondents with our decision, and gave the following directions:
We further direct that the respondents post the notices which accompany this decision immediately upon their receipt and keep them posted upon their respective premises at 4420 and 4440 Chesswood Drive and 70 Vanley Crescent, in conspicuous places where they are most likely to come to the attention of all employees who may be affected by the applications referred to therein, until the expiration of the terminal date for the applications.
Stuart Netherton and James Bowman, Labour Relations Officers, are each hereby severally authorized to enter the respondents' said premises from time to time during the normal business hours to view all documents posted therein and interrogate any person found in the premises to determine whether the Board's aforesaid notices have been and remain posted, and, if those notices have not been or do not remain posted, to post further copies thereof, and to continue to do as authorized hereby until the expiration of the terminal date in the applications to which the notices relate, and to report to the Board on the results of their attendances. The authority of either of the two aforesaid persons to do as he has been hereby authorized does not require that he be accompanied by the other of the two.
We further direct that the respondents complete and file by the aforesaid terminal date the Schedules to the Form 4 Notices they received September 18, 1985, and the specimen signatures required by Form 4.
The respondents have not applied to us for reconsideration, nor to the court for judicial review, of our decision of October 22nd.
Labour Relations Officer Stuart Netherton has filed written reports on two attendances at the respondents' premises. In his report on his attendance on Friday, November 1, 1985, he indicates that Mr. Chelminsky, the respondents' general manager, then acknowledged having read the Board's decision of October 22nd, refused to say whether the Board's notices had been posted and obstructed Mr. Netherton's then unsuccessful attempt to gain access to the respondents' premises for the purposes contemplated by our authorization. In his report on his attendance the following Monday, November 4th, this time accompanied by sheriff's officers, Mr. Netherton indicates that despite Mr. Chelminsky ' s having then continued to behave as he had on November 1st, he managed to enter all three subject locations, determined that the Board's notices were not posted therein, and posted further copies of the notices.
As of the date hereof, the respondents have not filed the material we directed them to file in paragraph 50 of our decision of October 22nd.
In a letter dated November 5, 1985, counsel for the applicant/complainant refers to an inquiry he made to the Registrar by telephone concerning the status of the Board's efforts to give notice to the respondents' employees, to which the Registrar appears to have responded (quite properly, in our view) by advising counsel of the essential details of Mr. Netherton's reports. In that letter counsel submits that the Board should further extend the terminal date in the applications, direct further posting of notices to employees and extend the authorization in paragraph 49 of our decision of October 22nd. That letter has been circulated to the respondents with a direction that they file their submissions thereon, if any, by November 15th.
In his letter of November 6th requesting that the Board state a case to the Divisional Court under section 13 of the Statutory Powers Procedures Act, counsel for the applicant/complainant says:
The applicant asks that the Board set out the facts as contained in the decision dated October 22, 1985 and further facts as outlined above which have occurred since the Board's decision dated October 22, 1985 with respect to the further necessity to seek assistance from the Sheriff's Office to enable the Board Officer to post the Notices as directed in the Board's decision dated October 22, 1985.
As a result of the failure by the respondents to post the Notices in accordance with the Board's order, Notices were not posted sufficiently in advance of the new extended terminal date ordered in the Board's decision of October 22, 1985 to give the employees in the affected bargaining unit sufficient notice of the applications pending. As a result, by letter dated November 5, 1985 the applicant felt compelled to ask the Board to extend the terminal date again. This is the fourth extension of the terminal date in this matter. The applicant further asked the Board to authorize its Officers to attend at the premises of the respondents in order to verify that the Notices were and remained posted and to do a check on a daily basis until the expiry of the requested extended terminal date.
The conduct of the respondents, it is submitted with respect, makes a mockery of the Ontario Labour Relations Board and of the Rule of Law. It is our respectful submission that the conduct of the respondents is a proper subject upon which the Board should state a case as requested herein so that the court may inquire into the matter and take any action which the court deems appropriate in the circumstances.
Section 13 of the Statutory Powers Procedures Act provides that the Board "may" state a case on application of a party to proceedings before it. The first question we face is whether it is necessary to hold a hearing or otherwise involve the respondents in our decision on the exercise of that discretion. The necessity of so doing turns on the nature of the process contemplated by section 13. In another context, the stating of a case is something a judicial decision-maker does in connection with a summary process of appeal from his decision. The case stated includes the decision-maker's findings of fact made after hearing the parties' evidence and argument; the appeal court to which the case is stated does not retry those facts. The stating of a case of that sort is necessarily preceded by a hearing into the facts set out in the case stated. When one reaches the words "state a case" in section 13, that sort of process may come to mind. On reading the balance of section 13, however, it is apparent that the process it contemplates is quite different from the stated case procedure with which the criminal bar is familiar.
Under section 13 of the Statutory Powers Procedures Act the Divisional Court deals with the alleged contempt as a trial court; it is that court, and not the tribunal stating the case, which has the sole jurisdiction to determine whether there has been a contempt and what punishment will be imposed on the contemnor. The substantially identical provisions of section 8 of the Public Inquiries Act, R.S.O. 1980, c. 411, were considered by the Ontario Court of Appeal in Re Yanover and Kiroff and The Queen, (1975), 1974 CanLII 812 (ON CA), 6 O.R. (2d) 478, where at page 483 Mr. Justice Estey observed that the tribunal's stated case is akin to "an information but one which constitutes prima facie but not conclusive evidence of the impropriety alleged an information on which the person affected is to be tried by the Divisional Court and if found guilty to have imposed upon him punishment." Accordingly, a decision to state a case does not involve a conclusive adjudication of the respondents' rights or of the facts on which its liability may depend. While the respondents will bear the burden of adducing evidence to explain or contradict any facts alleged in the stated case, they are not precluded from contradicting any of those allegations in the evidence they lead before the Divisional Court. Having regard to the principles discussed in Minister of National Revenue v. Coopers and Lybrand (1979), 1978 CanLII 13 (SCC), 92 D.L.R. (3d) 1 (S.C.C.), it does not appear to us that it is necessary to hold a hearing or otherwise involve the respondents in our decision on the exercise of our discretion to state a case at the applicant/complainant's request. We consent to the Board's stating a case to the Divisional Court under section 13 of the Statutory Powers Procedures Act.
The final question to be dealt with is the content of the case to be stated by the Board. There can be no doubt that it should include the relevant facts recited in our decision of October 22, 1985. It should also recite the directions given in that decision, the fact that those directions were communicated to the respondents and the fact that the respondents have not complied with the direction in paragraph 50 of our decision of October 22, 1985.
Should the stated case also set out the relevant contents of the Labour Relations Officer's reports on his attendances of November 1 and 4, 1985? When he attended at the respondents' premises, the Labour Relations Officer was exercising a power conferred on the Board by subparagraph 103(2)(e) of the Labour Relations Act. Pursuant to subparagraph 103(2)(g) of that Act, the Board can and did authorize the officer to exercise the Board's powers under subparagraph 103(2)(d) "and to report to the Board thereon." That provision of the Act would be of little use unless the Board could receive and, in appropriate circumstances, act on such reports. The Board is not called upon to make any binding determination of fact. It is only called upon to select the allegations of fact which the respondents should be required by the Divisional Court to answer. In this case, the allegations put before the court by this Board should include the allegations in the reports of its officer, Mr. Netherton, on his attendances at the respondents' premises on November 1 and 4, 1985.
Accordingly, the Board will state a case to the Divisional Court under section 13 of the Statutory Powers and Procedures Act in the terms contemplated by this decision.