Ontario Labour Relations Board
[1986] OLRB Rep. October 1358
0911-86-U; 0998-86-U; 0868-86-U The Metropolitan Plumbing and Heating Contractors Association, a division of the Mechanical Contractors Association Toronto, Frank Michelucci, Derwent Lewis, and Jack McCarron, Complainants, v. Sean O'Ryan; The United Association of Journeymen and Apprentices of the Plumbing & Pipe Fitting Industry of the United States & Canada, Local 46; Metropolitan Plumbing Contractors Association; Urban Mechanical Contractors Limited; Zentil Plumbing and Heating Co. Ltd.; Lou Pupolin Plumbing & Heating Co. Ltd.; Brady & Seidner Ltd.; DiMarco Plumbing & Heating Co. Ltd.; Keele Plumbing & Heating Ltd.; Municipal Plumbing & Heating Ltd.; Cesan Mechanical Systems Ltd.; D. Zentil Mechanical Ltd., Respondents; Metropolitan Plumbing and Heating Contractors Association, a division of the Mechanical Contractors Association Toronto, Applicant, v. Sean O'Ryan; The United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46; Urban Mechanical Contractors Limited; Zentil Plumbing and Heating Co. Ltd.; Lou Pupolin Plumbing & Heating Co. Ltd.; Brady & Seidner Ltd.; DiMarco Plumbing & Heating Co. Ltd.; Keele Plumbing and Heating Ltd.; Municipal Plumbing & Heating Ltd., Respondents
BEFORE: Harry Freedman, Vice-Chairman, and Board Members D. A. MacDonald and N. Wilson.
APPEARANCES: G. Grossman, W. J. McCarron and D. Lewis on behalf of the complainants/applicant; M. E. Geiger, Howard Roher, Edward J. Winter and Martin Rosenbaum on behalf of Metropolitan Plumbing Contractors Association, Urban Mechanical Contractors Limited, Zentil Plumbing and Heating Co. Ltd., Lou Pupolin Plumbing and Heating Ltd., Keele Plumbing and Heating Ltd., DiMarco Plumbing and Heating Co. Ltd., Municipal Plumbing and Heating Ltd., Cesan Mechanical Systems Ltd., D. Zentil Mechanical Ltd.; L. C. Arnold and V. McNeil on behalf of Sean O'Ryan and the United Association of Journeymen and Apprentices of the Plumbing and Pipe Fitting Industry of the United States and Canada, Local 46; no one appeared on behalf of Brady & Seidner Ltd.
DECISION OF THE BOARD; October 10, 1986
- When the hearing in this matter resumed on September 26, 1986, Mr. Grossman and Mr. Geiger made submissions with respect to the production of certain documents referred to in summonses to witness that had been issued with respect to members of the Board of Governors of the Mechanical Contractors Association Toronto. Following the submissions of counsel, the Board recessed to consider those submissions and then returned and issued the following oral ruling:
The Board has received submissions this morning with respect to the production of certain documents, some of which were specifically referred to in an endorsement in a summons to witness directed to the members of the Mechanical Contractors Association Toronto Board of Governors, and other documents that might be considered as being caught by what counsel for the corporate respondents refers to as the "basket clause" in that endorsement to the summons.
Additionally, counsel for the corporate respondents sought production of additional documents in two broad categories, one being documents relating to the Metropolitan Plumbing and Heating Contractors Association and the other being documents relating to the attempt by a group of low-rise residential contractors to join the Mechanical Contractors Association Toronto. Counsel for Local 46 and Sean O'Ryan supported that request.
Counsel for the complainants/applicant resists the production of those documents because they are not relevant, and counsel have simply waited too long to make the request. Furthermore, counsel stated categorically that he and his clients have reviewed the records of the Metropolitan Plumbing and Heating Contractors Association, division of Mechanical Contractors Association Toronto and have produced all documents relating to the Metropolitan Plumbing and Heating Contractors Association.
With respect to the documents relating to the Metropolitan Plumbing and Heating Contractors Association, we have no reason to doubt the word of counsel. Therefore, we are not making any direction with respect to such documents, if any, notwithstanding the suspicions of both counsel for the respondents.
As for the other documents, we are satisfied that they are, at the very least, arguably relevant to the case. We are not persuaded that the failure of counsel to ask for them earlier precludes them from seeking production of the documents now.
This is a complex case. No formal discovery procedure exists at the Board. In effect, counsel are in the position of both discovering the other side as well as dealing with the case as it is being presented. Therefore, we believe that counsel, upon becoming aware of the existence of certain documents that were not produced earlier, are entitled to have them produced since they are at least arguably relevant.
Therefore, we direct that the documents relating to the attempt by a group of residential low-rise contractors to join the Mechanical Contractors Association Toronto be produced. We also direct the production of the documents explicitly listed in the summons to witness, but only relating to the time period from June 17, 1986 to the date of the filing of the latest complaint in this matter. However, no minutes of meetings that relate to the Mechanical Contractors Association Toronto conduct of this litigation, whether counsel was present or not, is to be produced. Of course, any privileged documents need not be produced.
Production is to be made by not later than 4:00 p.m. on October 14, 1986, which is one week before the next scheduled hearing in this matter.
- Counsel for the corporate respondents sought reconsideration of the Board's decision given orally at its hearing on September 9, 1986 that was issued in writing on September 18, 1986. After hearing the submissions of Mr. Geiger, the Board recessed, considered those submissions and returned and gave the following oral ruling:
It is not necessary to hear counsel for the complainants/applicant.
Counsel for the corporate respondents seeks reconsideration of the Board's decision made at its hearing on September 9, 1986 which was reduced to writing and issued on September 18, 1986. Counsel for Local 46 and Sean O'Ryan takes no position on Mr. Geiger's request.
Mr. Geiger submitted that the Board appeared to have misapprehended the argument made by him. He submitted that the Board must determine, as a matter of fact and law in this proceeding whether the Board's certificate of accreditation was valid or was a nullity. That determination is necessary in order to decide whether section 131 or section 132 of the Act have been violated.
We are satisfied that we understood precisely what counsel argued before us then and what he argued again before us today. Counsel submitted that the validity of the accreditation certificate is an issue raised by counsel's client in defence to the complaint and application for consent to prosecute made by the complainants/applicant, and therefore, the Board must decide in this case whether the Board acted within its jurisdiction when it issued the accreditation certificate.
Counsel referred to several authorities which stood for the principle that a tribunal errs if it does not determine what is necessary to be determined in a proceeding before it. See: Rex v. Judge Pugh, ex parte Graham, [1951] 2 All E.R. 307 (K.B.D.); Regina v. Saskatchewan Labour Relations Board et al., ex parte Smith-Roles Ltd. (1969), 1969 CanLII 898 (SK QB), 10 D.L.R. (3d) 273 (Sask. Q.B.); Re MacKay Construction Ltd. and Local 721 C, International Union of Operating Engineers (1971), 1971 CanLII 1130 (PE SCTD), 21 D.L.R. (3d) 485 (P.E.I.S.C.); Re Civil Service Association of Ontario (Inc.) and Ontario Council of Regents for Colleges of Applied Arts & Technology (1974), 50 D.L.R. (3d) 506 (Ont. Div. Ct.).
Counsel submitted that he is entitled to raise the validity of the certificate of accreditation as an issue and relies principally on the decision of the House of Lords in Director of Public Prosecutions v. Head, [1958] 1 All E.R. 679.
As we indicated in our previous decision, we are satisfied that the Board's certificate of accreditation is, by reason of section 106(1) of the Labour Relations Act, final and conclusive for all purposes, unless it is subsequently revoked or reconsidered by the Board or quashed by a court of competent jurisdiction.
That certificate created bargaining rights. We do not believe it is necessary or appropriate, for the reasons expressed in our previous decision, to determine in this proceeding whether another panel of the Board made a jurisdictional error when it issued that certificate. That certificate was issued by the Board in a proceeding before it. Whether issued correctly or not is not a concern of ours in this proceeding by reason of section 106(1) of the Labour Relations Act.
As for the decision of the House of Lords in Director of Public Prosecutions v. Head, supra, it appears to us that the House of Lords treated a certificate issued under the Mental Deficiency Act, 1913 as merely establishing a rebuttable presumption of mental deficiency. Lord Tucker wrote at page 686 of the report:
"In my view, on proof that a girl is detained as an inmate in one of the specified institutions and is under care or treatment therein as a defective or is shown by the production of the licence to be out on licence from one of those places to which the system of licences under the Act is applicable~ that is prima facie proof that she is a defective lawfully under care or treatment as such, and I think the Attorney-General - if I correctly understood him as previously stated - was assuming an unnecessary burden if he meant that it is incumbent on the prosecution in all cases under s. 56 to satisfy a jury by medical evidence that the girl in question comes within one or other of the categories specified in s. 1. I think this is to be presumed. But the foundation for the presumption, in the case of a person under detention or on licence, is the legality of the detention and the necessity for a licence to justify the patient's absence, and, if it is shown and admitted, as in the present case, that, on the face of the documents produced and received in evidence without objection, the detention was illegal, the whole basis of the sub-section and the presumption of defectiveness goes and the prosecution must fail. I do not think anything more than what I have stated above is required to establish a prima facie case, but it is right and proper that the prosecution should have in court, and make available for inspection by defending counsel, the relevant orders or other documents on which the detention is based, so that, in a proper case, and subject to questions of admissibility in evidence, the presumption of legality
may be rebutted."
[emphasis added]
However, in the absence of any reference to a section in the Mental Deficiency Act, 1913 comparable to section 106 of the Labour Relations Act, the reasoning in that case is, in our respectful opinion, distinguishable. In our view, a certificate of accreditation does not merely raise a rebuttable presumption of bargaining rights. Rather, section 106(1) of the Act explicitly states that such a decision is final and conclusive for all purposes. Therefore, if the certificate of accreditation is conclusive for all purposes, no question of whether it validly created bargaining rights can be raised as an issue in another proceeding before the Board.
The application for reconsideration is hereby dismissed.
It became apparent during the course of the hearing that insufficient days had been scheduled for the continuation of this matter. Therefore, at the end of the hearing on September 26th, the Board fixed additional hearing dates.
This matter is referred to the Registrar to be re-listed for hearing before this panel of the Board, in addition to the dates already listed for hearing set out in paragraph 7 of the Board's decision of August 5, 1986, on January 26, 27, 28, 29, February 2, 3, March 2, 3, 4, 5, 9, 10, 11 and 12, 1987.