[1987] OLRB Rep. July 1049
0128-87-G; 0129-87-G International Brotherhood of Painters and Allied Trades, Local 1795, Applicant v. Walpat Glass & Aluminum Products Ltd. and M & I Aluminum Ltd., Respondents; International Brotherhood of Painters and Allied Trades, Local 1819, Applicant v. Walpat Glass & Aluminum Products Ltd. and M & I Aluminum Ltd., Respondents
BEFORE: R. O. MacDowell, Alternate Chair, and Board Members I. Wilson and H. Kobryn.
APPEARANCES: Stanley Simpson, G. McMenemy and J. Kemp for the applicant; no one for the respondents.
DECISION OF THE BOARD; July 22, 1987
These are two applications made pursuant to section 124 of the Labour Relations Act. In each case, the applicant union contends that the respondents have failed to abide by the terms of a collective agreement by which they are bound. A hearing in these matters was scheduled to take place, and did take place, in Toronto on July 13, 1987. In order to put the issue before us in context, it is probably useful to sketch in some background. Some of this background has already been set out in an earlier Board decision involving the same parties; however, it does no harm to repeat it here.
On March 21, 1986, the applicant "Local 1819" was certified to represent the employees of the respondent "Walpat" in the ICI sector and the non-ICI sectors of the construction industry, for Board Area No. 8 (see Board File No. 2572-85-R). Subsequently, the principals of Walpat, Isaac Walter and Moti Patel formed a new company, M & I Aluminum Ltd., which continued to carry on a similar business. In effect, Walpat ceased operating and became a largely dormant company.
In response to this situation the union(s) applied to the Board for a declaration either that "M & I" was a related employer under section 1(4) of the Labour Relations Act, or that the "business" of Walpat had been transferred to M & I. In due course those applications came on for a hearing before the Board (differently constituted). For reasons, and based on factual findings more particularly set out in the Board's decision of June 5,1987, the Board declared that Walpat Glass & Aluminum Products Limited and M & I Aluminum Ltd. were one employer for the purposes of the Labour Relations Act. The Board further declared that M & I Aluminum Ltd. was bound to the collective agreement between Walpat and the union. The Board then noted that the section 124 grievance referrals (the present proceedings) had been held in abeyance pending a decision on the successor rights/related employer issue, and that they could now be listed for hearing. They were; and, as noted, came on before us on July 13, 1987.
Notice of hearing was served on the respondents in accordance with the Board's Rules. There is no doubt that the respondents were aware of the hearing. By letter dated July 2nd, 1987, Mr. Patel and Mr. Walter wrote the Board as follows:
This will serve to advise that we would ask that the hearing scheduled for July 13th, 1987, be cancelled as the outcome of our appeal of the board's decision, outlined in our letter dated June 29th, 1987, is pending. Consequently, the hearing is inappropriate.
The reference to an "appeal" is, properly speaking, a request for reconsideration of the earlier Board decision. Attached to the letter of July 2nd, 1987, requesting a cancellation of the scheduled hearing, are two true copies of a Summons To Witness issued to both Mr. Walter and Mr. Patel over the signature of a Board Vice-Chair. The text of the Summons To Witness or "subpoena", in each case, reads as follows:
You are hereby summoned and required to attend before the Ontario Labour Relations Board at a hearing to be held at the Board Room, 400 University Avenue, Toronto, Ontario on Monday, the 13th day of July 1987, at the hour of 9:30 o'clock in the forenoon, (local time) and so from day to day until the hearing is concluded or the tribunal otherwise orders, to give evidence on oath touching the matters in question in the proceedings and to bring with you and produce at such time and place all documents, papers, writings relating to any matters in issue which are or have been in your possession, custody or power and especially all payroll records of both M & I Aluminum Ltd. and Walpat Glass & Aluminum Products Ltd. up to and including the present date especially all jobs done or bid by M & I Aluminum Ltd. and/or Walpat Glass & Aluminum Products Ltd. from on or about March 21st, 1986 up to and including the present date.
- Although given notice of the hearing and properly subpoenaed to appear, neither Mr. Walter nor Mr. Patel did so. Accordingly, the union urges the Board to issue a Sheriff's warrant for their arrest so that the Board can insure and direct compliance with its summons. The Board's authority to do so is provided in the Labour Relations Act itself and has been affirmed in Re International Association of Heat and Frost Insulators and Asbestos Workers, Local 95 and Master Insulators Association of Ontario, et al, (1979) 25 O.R. (2d) 9, at page 13. It was furher discussed in Casalbil Contractor Limited, [1980] OLRB Rep. Sept. 1278:
4.... The Board is given the authority under the Act to enforce the attendance of a witness in the same manner as a court of record in civil cases. In Ontario, a court of record in civil cases has the authority to issue a warrant for the arrest of a person who has been duly served with a summons but has failed to appear. (See 26 C.E.D. (Ont. 3rd) 114-366, paragraph 673; Rule 275, Supreme Court of Ontario Rules of Practice.) The issuing of a warrant directed to the Sheriff to bring a person before the Board is to be distinguished from punishing a person for contempt committed in the face of the Board. The Board, in issuing such a warrant, is not punishing the witness for failing to attend. Indeed, it is our view that we cannot impose punishment for such action. (See Re: Hawkins and Halifax County Residential Tenancies Board, (1974), 1974 CanLII 1372 (NS SC), 47 D.L.R. (3d) 117 (N.S.S.C.).) Rather, it is ensuring that the witness attend before the Board to give evidence pursuant to a summons duly issued and served. However, should a witness refuse to testify after having been brought before the Board and after being directed by the Board to testify, such refusal may well constitute grounds for punishment by way of fine or imprisonment for contempt committed in the face of the Board. (See Re: Diamond and Ontario Municipal Board, 1962 CanLII 132 (ON CA), [1962] O.R. 328; 32 D.L.R. (2d) 103.)
- The Board may, therefore, enforce the attendance of a witness duly served with a summons and conduct money by issuing a warrant directing the Sheriff to arrest the witness and bring him before the Board if the party seeking such an order can establish that the witness was properly served with a summons and sufficient conduct money and that the presence of the witness is material to the ends of justice.
To the same effect is the decision of the Board in Rino Zanette (1981) Ltd., [1986] OLRB Rep.
Nov. 1572 - a case in which an employer refused to provide information required of him by a summons. There the Board said this:
- 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;
- At common law, an inferior Court of Record could commit to prison or fine when confronted with contempt in the face of the Court. (See, Re Diamond and The Ontario Municipal Board, 1962 CanLII 132 (ON CA), [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, JA., in Re Diamond and the Ontario Municipal Board, supra, were made in relation to the 0MB, 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."
When faced with the ultimate prospect of fine or imprisonment, the witness in Zanette ultimately opted to provide the information required of him, so no such sanctions were necessary.
- In the instant case, on the basis of the evidence before us, we are satisfied that Isaac Walter and Moti Patel were duly summoned to appear and give evidence at the hearing before the Ontario Labour Relations Board on July 13, 1987 and to produce the documents more particularly specified in the text of the summons. We are further satisfied that the presence of these two witnesses is material to the ends of justice, and that both of them have failed to attend in accordance with the requirements of the summons. We are persuaded therefore to issue a warrant to the Sheriffs and other Peace Officers in the Province of Ontario for the arrest of both defaulting witnesses.
A copy of those arrest warrants are attached as Appendix A to this decision.
We do not wish to leave this matter without making some concluding observations.
We note that in the earlier proceeding before the Board, the respondents were not represented. They chose to appear in a legal forum, to address legal issues, without being represented by legally-trained counsel - let alone counsel experienced in contentious labour law matters. In the instant case, although duly summoned to appear, they have chosen not to do so. It is difficult to resist the conclusion that the principals of the respondents do not fully appreciate the potential consequences of their acts or the potential liability which they might face if the Board should determine that their legal position should not be sustained. The Board's proceedings are often less formal and technical than those of a Court - particularly if one or both parties are unrepresented by counsel; however, parties appearing before the Board should not doubt its legal authority or the binding force of its decisions. Any questions in that regard were dispelled by the decision of the Divisional Court in Master Insulators Association of Ontario, et al, supra, where the Board doubted its own authority to punish a witness who refused to answer questions, and the Court emphatically disagreed. Similarly, it must be remembered that any decision issued pursuant to section 124 of the Act will ultimately be enforceable as if it were a judgement of the Supreme Court of Ontario. Accordingly, we respectfully suggest that, if they have not already done so, the principals of the respondents take the advice of a solicitor who understands the legal context and process in which they are now involved.
Having regard to the foregoing, the Board will issue an arrest warrant in the usual form (see the attached Appendix) requiring the presence of the summoned witnesses on August 31st and September 1st, the dates which we hereby fix for continuation of this matter.
This particular panel is not seized of the merits of this case. [Appendix omitted: Editor]