Laborers International Union of North America, Local 607 v. Rino Zanette (1981) Ltd., 1986 CanLII 1467

Ontario Labour Relations Board

[1986] OLRB Rep. November 1572

2058-85-M Laborers International Union of North America, Local 607, Applicant, v. Rino Zanette (1981) Ltd., Respondent

BEFORE: Ken Petryshen, Vice-Chairman, and Board Members I. M. Stamp and H. Kobryn.

APPEARANCES: S. B. D. Wahl and P. Little for the applicant; Rino Zanette for the respondent.

DECISION OF THE BOARD; November 19, 1986

Decision

1. This is a referral of a grievance to arbitration under section 124 of the Labour Relations Act. In a decision of the Board (differently constituted) dated January 27, 1986, the Board found that the respondent contravened the collective agreement binding upon the respondent and the applicant and accordingly found that the grievance in this matter must succeed. The panel of the Board hearing the grievance on its merits directed representatives of the applicant and respondent to meet and attempt to settle the amount of damages owing to the applicant and indicated that the Board would remain seized of the matter of damages in the event the parties were unable to resolve that issue.

2. The Board was notified that the parties were unable to agree on the question of damages and a hearing to deal with the matter was initially scheduled for June 30,1986. This hearing was adjourned on the agreement of the parties, at the request of and for the convenience of Mr. Zanette, President of the respondent. The applicant agreed to adjourn the hearing when counsel for the respondent agreed to the following conditions:

(1) Rino Zanette will personally undertake to appear at any future hearings, together with the company records;

(2) The conduct money sent to him will be returned; and

(3) The decertification hearing scheduled for July 7, 1986 will be adjourned and not rescheduled for hearing until seven days after a hearing has been held with respect to the section 124 referral (Board File No. 2058-85-M).

3. The present panel was scheduled to hear the damages issue on October 27, 1986. Mr. Zanette appeared at that time on behalf of the respondent and, at the outset, he requested that the proceeding be adjourned. In order to appreciate the basis for the adjournment request, it is necessary to briefly review some background to the relationship between the respondent and the applicant.

4. In a decision dated January 27, 1984 (Board File No. 1659-83-M), the Board found Rino Zanette Limited and Rino Zanette (1981) Ltd. to be related employers under section 1(4) of the Labour Relations Act. No one appeared for the respondents at the hearing of that matter which took place on January 23, 1984. The hearing on the merits of the present section 124 referral was held on December 18, 1985. Just prior to December 18, 1985, the respondent filed an application for judicial review seeking to review the Board's decision dated January 27, 1984 (Board File No. 1659-83-M). Counsel appearing for the respondent at the hearing on December 18, 1985 requested that the hearing on the merits be adjourned pending the outcome of the judicial review proceedings. The Board denied the request for an adjournment and in doing so, made the following comments:

5.... The decision being judicially reviewed arises out of an entirely different proceeding, and that decision was issued by a differently constituted panel of the Board on January 27, 1984. The respondent waited approximately one year and seven months from the issuance of that decision until filing an application for judicial review. It is worth noting that the respondent did not participate in the proceeding which it only belatedly seeks to challenge by way of judicial review, nor will the respondent be participating in the Board proceeding should it continue today.

6. Counsel for the respondent did not indicate any reason for the long delay in seeking judicial review, nor was any reason provided as to why no notice of the request for adjournment had been provided to the applicant. Nor did the respondent explain why this proceeding had been adjourned on a prior date at its request.

7. For the above reasons the Board indicated that it would not grant the adjournment and would be proceeding forthwith with the hearing. To grant an adjournment in such circumstances would be to allow unconscionable delay in labour relations proceedings where expediency is often critical. The respondent did not participate in the earlier proceeding, has indicated that it will not be participating in this proceeding, provided no notice of the request for adjournment, provided no reason for an almost two year delay in launching its judicial review, and in any event seeks judicial review of a different proceeding, which at least from a reading of the decision in that proceeding does not involve issues concerning the Board today.

5. In requesting the Board to adjourn the hearing on October 27, 1986, Mr. Zanette indicated that the respondent should have the opportunity to defend itself on the related employer issue. We understood this to mean that Mr. Zanette wanted the still outstanding judicial review application to be decided before the Board proceeds with the hearing into the question of damages. In other words, Mr. Zanette was requesting an adjournment on the same basis as his counsel requested an adjournment of the hearing into the merits of the section 124 referral. In addition, Mr. Zanette requested that the Board proceed with the termination application prior to dealing with the issue of damages in the section 124 application. Mr. Zanette made a point of indicating he was not served with a Summons to Witness for the October 27th, 1986 hearing.

6. Counsel for the applicant opposed the adjournment. Counsel advised the Board of the history of this proceeding and argued that there was no valid basis for granting an adjournment. Counsel indicated there had been no prior indication that a request would be made for an adjournment. We were advised that Mr. Zanette failed to comply with the Board's direction in its decision of January 27, 1986 to meet with a representative of the applicant in order to attempt to settle the amount of the damages claim. Counsel advised us that Mr. Zanette had not complied with a condition of the adjournment, namely the returning of $425.00 in conduct money to the applicant. Counsel indicated that the application for judicial review had not yet been perfected.

7. After considering the submissions of the parties on the request for an adjournment, and after recessing to consider the matter, the Board advised the parties orally at the hearing that it denied the adjournment request. The resolution of the outstanding issue of damages had been delayed for over seven months and the delay was solely attributable to the respondent. We were not provided with any reason why the application for judicial review had not been perfected, nor was any reason provided as to why no notice of the request for an adjournment had been provided to the applicant. The respondent did not take issue with the previous Board decision denying the adjournment or in allowing the grievance until Mr. Zanette appeared before us on October 27th. The termination application is not before us and we note that an agreement was reached previously between the parties with respect to its scheduling as a condition of the June 30th adjournment. The legislature clearly intended that section 124 referrals be dealt with expeditiously. To grant an adjournment in these circumstances would only result in further unnecessary delay. We hereby confirm our oral ruling.

8. After advising the parties of our oral ruling on Mr. Zanette's adjournment request, we suggested that the parties may want to spend some time with a Board Officer to assist them in determining the quantum of damages. Mr. Zanette was not prepared to meet with a Board Officer for this purpose. The Board asked the applicant to present its evidence and it began by calling Mr. Zanette as a witness.

9. This case was not completed on October 27, 1986. It was not completed essentially because Mr. Zanette refused to answer some questions put to him by counsel for the applicant and which he was directed to answer by the Board. In order to appreciate what occurred while Mr. Zanette was testifying, it is necessary to relate the nature of the grievance which succeeded on its merits.

10. The applicant alleged that the respondent failed to use members of the applicant with respect to construction work performed by the respondent at six different construction sites. After hearing the applicant's evidence and its counsel's submissions, the Board (differently constituted) in a decision dated January 27, 1986, held that the respondent breached the terms of the relevant collective agreement. The Board found that the respondent was involved in construction work on six construction sites which should have been performed by members of the applicant. Those six construction sites are listed below:

11. CNR Hostel, Atikokan, near 109 White Street.

12. Commercial building across the street from Marostica Motors, 10th Avenue, Thunder Bay.

13. Arnone Transport Limited Garage, 235 Queen Street, Thunder Bay.

14. Halfway Motors Limited, Memorial Avenue, Thunder Bay.

15. Commercial Building, 1313 Brown Street, Thunder Bay.

16. Near the Valencia Restaurant, 105 Main Street West, Atikokan.

17. While Mr. Zanette was on the witness stand, counsel for the applicant began asking him a number of questions concerning the CNR Hostel job. Counsel asked Mr. Zanette to describe the work performed on the job and how many drillers were on the job. Mr. Zanette refused to answer these questions. He indicated that he was the supervisor on the job but that the work was not performed by the respondent's employees. Counsel for the applicant asked us to direct Mr. Zanette to answer the question. We declined to make such a direction at that point in time. Instead, we advised Mr. Zanette we would ask counsel for the union to move on to questions concerning the other job sites. We explained to Mr. Zanette that the union will probably wish to return to the CNR Hostel job at some point and that we may, assuming we decided the questions were relevant, direct him to answer the questions. The Board advised Mr. Zanette that if it directed him to answer a question and he refused to answer, it was possible that he would be found to be in contempt in the face of the Board. The Board also advised Mr. Zanette that if he was found to be in contempt in the face of the Board, the Board, after hearing submissions, could impose a penalty ranging from a fine to imprisonment. The Board suggested Mr. Zanette should think about these matters and, if possible, consult with counsel during the lunch recess. Counsel for the union then proceeded to ask Mr. Zanette questions concerning the other jobs covered by the grievance.

18. After the lunch recess, counsel for the union asked Mr. Zanette more questions relating to the construction jobs in issue. At one point, Mr. Zanette was asked the name of the person who he alleged was employed by the respondent as a bricklayer. Mr. Zanette refused to answer the question since, in his view, it had nothing to do with labourers. Counsel for the applicant requested the Board to direct Mr. Zanette to answer the question. The Board first heard the parties' submissions with respect to the relevancy of the question and decided the question was relevant. It appeared to us that the applicant was entitled to ask questions to test Mr. Zanette's assertion that the individual he claimed was a bricklayer was, in fact, a bricklayer and not a person performing labourers' duties. To this end, counsel for the applicant was entitled to ask the name of the individual who Mr. Zanette claimed was a bricklayer. The Board then directed Mr. Zanette to answer the question. The question was repeated and Mr. Zanette refused to answer it. The Board explained once again to Mr. Zanette that he could be found in contempt in the face of the Board and what the consequences might be. The Board asked Mr. Zanette if he wanted a few minutes to consider his position. Mr. Zanette indicated to the Board that he did not need any time to consider his position and that he would not answer the question. Mr. Zanette was in breach of an order of the Board.

19. The Board asked Mr. Zanette if he consulted with counsel over the lunch hour. Mr. Zanette indicated that he did consult with counsel about the questions concerning the CNR Hostel job. Counsel for the applicant then proceeded to ask Mr. Zanette some questions about the CNR Hostel job. He was asked the names of the persons who worked on this job. Mr. Zanette refused to answer and indicated he was advised by counsel that he did not have to answer questions about the CNR Hostel job. Mr. Zanette took the position that the work was performed by employees of another company and that he did not have to answer any questions relating to another company. At no time did Mr. Zanette indicate he did not know the answer to the question. The Board entertained submissions with respect to the relevancy of the question and concluded that the question was relevant. In our view, the applicant was entitled to ask Mr. Zanette this question in order to test his assertion that the employees who performed the labourers' work on the CNR Hostel job were not the respondent's employees. The Board directed Mr. Zanette to answer the question. When the question was again put to Mr. Zanette he refused to answer it. Mr. Zanette made it quite clear that he would not answer any questions about the CNR Hostel job or any questions relating to the other jobs which dealt with work performed by persons who Mr. Zanette did not classify as labourers. The Board explained to Mr. Zanette that this was a serious matter and again directed him to answer the specific question put to him by counsel for the applicant. The question was again put to him and Mr. Zanette again refused to answer the question. In refusing to answer the question, Mr. Zanette breached another order of the Board.

20. The Board advised Mr. Zanette that his refusal to comply with the Board's directions to answer specific questions raised the issue of whether he was in contempt in the face of the Board. The Board requested submissions from the parties as to whether the Board should find Mr. Zanette in contempt in the face of the tribunal. Counsel for the applicant argued that Mr. Zanette was clearly in contempt in the face of the tribunal and that the Board should impose a penalty of incarceration. While Mr. Zanette was making his submissions, the Vice-Chairman asked him if he would like the opportunity to consult with counsel prior to the Board deciding the contempt issue. Mr. Zanette advised the Board that he would like to consult with counsel.

21. After recessing to consider the matter, the Board advised the parties that it would adjourn the proceedings in order to give Mr. Zanette the opportunity to consult with counsel. It appeared to us that the power the Board has to punish for contempt should be used cautiously. Since a possible penalty for contempt in the face of the Board is a jail term, the Board was of the view that it would be appropriate to give Mr. Zanette the opportunity to consult with counsel.

22. At the hearing the Board directed that this matter will continue on December 15, 1986 in Thunder Bay at a location and time to be determined. At that time, the Board will hear further submissions from the parties on the issue of whether or not the Board should find Mr. Zanette in contempt in the face of the Board and, if so found, what penalty it will impose on Mr. Zanette. The Board directed Mr. Zanette to appear at the hearing on December 15, 1986. Of course, Mr. Zanette will be entitled to representation by counsel if he so desires. At the hearing on December 15, 1986, the Board will deal first with the contempt matter and, depending on the determination of that issue, the Board would continue with the evidence relating to the damage claim. The Board explained to the parties at the completion of the hearing day on October 27, 1986, that it intended to follow the above procedure. Before concluding the hearing, the Board explained to Mr. Zanette that it was treating this matter very seriously and that he should do likewise, considering that the possible penalties for contempt in the face of the Board could range from a fine to imprisonment. The Board hereby confirms the directions referred to in this paragraph.

23. In approaching the contempt issue in the manner set out above, we had in mind the powers conveyed to the Board by the Labour Relations Act when it acts as an arbitration board. In proceedings before the Board under provisions other than section 124 of the Labour Relations Act, where a witness refuses to answer a question to which the Board may legally require an answer, a case may be stated to the Divisional Court, pursuant to section 13 of the Statutory Powers Procedure Act (the "S.P.P.A.") and that Court may inquire into the matter and punish or take steps for the punishment of that person in like manner as if he or she had been guilty of contempt of the Court. However, section 3(2)(d) of the S.P.P.A. provides that Part I of the S.P.P.A. (which consists of sections 2 to 25 of that legislation) does not apply to proceedings before an arbitrator to which the Labour Relations Act applies. Since the Board is acting as an arbitrator when dealing with matters under section 124 of the Act, the enforcement mechanisms contained in Part I of the S.P.P.A. are inapplicable: Casabil Contractor Limited, [1980] OLRB Rep. Sept. 1278, and Re International Association of Heat and Frost Insulator and Asbestos Workers, Local 95 (1979), 1979 CanLII 1622 (ON HCJ), 25 O.R. (2d) 8. However, subsection 124(3) of the Act provides that the Board has the powers set out in subsection 44(8) of the Act when it deals with a referral of a grievance to the Board. Subsection 44(8)(a) provides as follows:

44(8) An arbitrator or the chairman of an arbitration board, as the case may be, has power,

(a) to summon and enforce the attendance of witnesses and to compel them to give oral or written evidence on oath in the same manner as a court of record in civil cases;

18. At common law, an inferior Court of Record could commit to prison or fine when confronted with contempt in face of the Court. (See, Re Diamond and The Ontario Municipal Board, [1962] O.R. 328). A necessary implication of the powers given to the Board by subsection 44(8)(a) is the power to punish for disobedience of its orders. When the legislature gave the Board the powers of a court of record in civil cases, it conveyed to the Board the authority to fine or commit to prison, or both, for contempt committed in the face of the tribunal. The contempt the Board can address is civil in nature. While the power to punish for contempt is necessary for the proper administration of justice, the Board exercises the power cautiously. Without the power to punish for contempt in the face of the Board, the Board would have considerable difficulty in discharging its functions. Although the following comments of Schroeder, J.A., in Re Diamond and the Ontario Municipal Board, supra, were made in relation to the OMB, they apply with equal validity to the Labour Relations Board.

"It is necessary in many cases for the Board, in discharging its functions, to ascertain the facts with which it has to deal, and in the conduct of its enquiries it is essential that it possess incidental powers commonly associated with a Court of justice. If it were not invested with the power to punish a witness who refuses to be sworn or to affirm (as the case may be) or who, having been sworn or having affirmed, refuses to answer a question when directed to do so, the administrative machinery of the Board would soon grind to a halt, for the most effective direct sanction commonly available to compel obedience to such an order or direction is the power to hold a recalcitrant witness in contempt and, as a means of coercion, to commit him to prison."

19. This matter is referred to the Registrar.