[1986] OLRB Rep. October 1447
3139-85-R; 3188-85-U; 3189-85-U Labourers' International Union of North America, Local 1059, Applicant/Complainant, v. Tonda Construction Limited, Bespondent, v. Group of Employees, Objectors
BEFORE: Harry Freedman, Vice-Chairman, and Board Members J. P. Wilson and H. Kobryn.
DECISION OF THE BOARD; October 8, 1986
The applicant seeks reconsideration of the Board's decision issued orally on May 20, 1986 by which it dismissed a complaint under section 89, an application for consent to prosecute and the application for certification made under section 8 of the Act. The application for certificate on made under section 144 of the Act remains pending. The applications and complaint were dismissed based upon the representations made by counsel for the respondent and the representative of the group of objecting employees at the Board's hearing on May 20, 1986. Neither the applicant or counsel for the applicant appeared on that day of the hearing.
The first day of hearing in this matter was April 25, 1986. The applicant and its counsel were in attendance on that day. Near the end of that day of hearing, the Board, after consultation 'ith all counsel and the Registrar, fixed May 20, 1986 as the date for the continuation of the hearing. All parties and their counsel agreed to that continuation date in the hearing on April 25. By written decision dated April 30, 1986, the Board stated:
"10. This matter is referred to the Registrar to be relisted for hearing before this panel of the Board on May 20, 1986."
The Registrar mailed that decision to the parties by letter dated May 5, 1986. The Registrar did not, in his letter, state that the hearing would continue on May 20, 1986, nor did formal notices of hearing issue with respect to that continuation date.
Counsel for the applicant explains his failure to attend at the Board on May 20, 1986 as mistake, caused in large part by the Board's failure to issue a notice of hearing in respect of May 20, 1986. Counsel submits that notices of hearing for continuation dates are required by both the Statutory Powers Procedure Act and the Board's Rules of Procedure and in any event the Board normally issues notices of hearing when hearings are continued.
In our view, there is no requirement to issue an additional notice of hearing when there has been one day of hearing and the parties present at that hearing have been informed both orally and in a written decision of the date for continuation of the hearing. A notice of hearing is necessary when a hearing is convened. When that hearing extends past one day, it is merely a continuation of that hearing for which formal notice had already been given. So long as the parties who are present at the first day of hearing of a matter are advised when the hearing will continue, it is not necessary for the Board to issue notices of hearing in respect of those continuation dates. Therefore, while counsel for the applicant and the applicant may have expected to have received a formal notice of hearing in addition to the Board's written decision, and did not do so, that unmet expectation does not adequately justify their failure to attend at the continuation of the hearing on May 20, 1986. The length of time that has elapsed in dealing with this matter and the additional expense to the parties might have been avoided had the applicant or its counsel attended at the hearing on May 20, 1986.
[Balance of decision omitted: Editor]