Labourers' International Union of North America, Local 1036 v. The Corporation of the City of Sault Ste. Marie, 1987 CanLII 3093

[1987] OLRB Rep. October 1319

0877-87-R Labourers' International Union of North America, Local 1036, Applicant v. The Corporation of the City of Sault Ste. Marie, Respondent v. R.E. Morcan, CUPE National Representative on behalf of Local 3, Canadian Union of Public Employees, Intervener #1 v. United Brotherhood of Carpenters and Joiners of America, Local 446, Intervener #2

BEFORE: R. A. Furness, Vice-Chair, and Board Members H. Peacock and W. H. Wightman.

DECISION OF THE BOARD; October 9, 1987

1. In a decision dated August 7, 1987, the Board issued certificates to the applicant and intervener #2. The Board certified the applicant with respect to a bargaining unit described as follows:

all construction labourers in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all construction labourers in the employ of the respondent in all other sectors in that portion of the District of Algoma south of the 49th parallel of latitude, save and except non-working foremen and persons above the rank of non-working foreman.

For the purpose of clarity, the Board noted the agreement of the parties "that this bargaining unit does not cover any of the non-construction activities (and specifically the maintenance activities) covered by the respondent's collective agreement with Local 3, Canadian Union of Public Employees". The Board also certified intervener #2 with respect to a bargaining unit described as follows:

all carpenters and carpenters' apprentices in the employ of the respondent in the industrial, commercial and institutional sector of the construction industry in the Province of Ontario and all carpenters and carpenters' apprentices in the employ of the respondent in all other sectors in that portion of the District of Algoma south of the 49th parallel of latitude, save and except non-working foremen and persons above the rank of non-working foreman.

2. This application was filed on June 25, 1987, and the application for certification by intervener #2 was received by the Board on July 7, 1987. The hearing in this matter was held on August 6, 1987. The Notice of Hearing, Construction Industry, Form 79, which was sent to the applicant, the respondent, intervener #1 and intervener #2, is dated July 23, 1987. In addition, copies of the Notice of Hearing, Construction Industry, Form 79, were sent to counsel for the applicant, respondent and intervener #2. The Notice of Hearing, Construction Industry, Form 79, stated as follows:

3. TAKE NOTICE that the Board has directed a hearing of the application for certification of

the applicant.

2. AND FURTHER TAKE NOTICE that the hearing will take place at the Board Room, 400 University Ave., Toronto, Ontario, M7A 1V4, on Thursday, the 6th day of August, 1987 at 9:30 o’clock in the forenoon (E.D.T.) and continuing on Friday, the 7th day of August, 1987 at 9:30 o’clock in the forenoon (E.D.T.)

3. The purpose of this hearing is to hear the evidence and representations of the parties with respect to all matters arising out of and incidental to this application and, without limiting the generality of the foregoing, specifically with respect to: (a) the bargaining unit description; (b) the list of employees and composition of the bargaining unit; (c) the matters raised in the respondent's reply; (d) the intervener's application for certification.

4. IF YOU DO NOT ATTEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS.

DATED this 23rd day of July, 1987.

3. The panel of the Board which was scheduled to hear this case convened the hearing at the time, date and place set forth in the Notice of Hearing, Construction Industry, Form 79. Representatives and counsel for the applicant, intervener #1 and intervener #2 were in attendance before the panel. It was apparent that the respondent was not represented when the hearing was convened at 9:30 a.m. In accordance with its usual practice, the Board adjourned the hearing and inquired of the Registrar of the Board whether there had been any communication from either the representatives or counsel of the respondent regarding the hearing. The panel was advised that there had not been any communication of anticipated lateness or inability to attend the hearing from or on behalf of the respondent. The Board then waited until after 10:00 a.m. before commencing the scheduled hearing. The Board proceeded to entertain the representations before it and, as stated earlier, issued its decision on August 7, 1987.

4. On August 11, 1987, the Board received the following letter dated August 10, 1987:

I have been absent from the City of Sault Ste. Marie since late afternoon on August 4th last on business and returned to my office today. Upon my return, I was advised that a hearing in the captionally-noted matter was held on August 6th last and that the Labourers' and Carpenters' Unions have been certified pursuant to their applications.

I was unaware that the hearing was proceeding on August 6th as was my client, and I am herein applying to have the matter reopened and the hearing rescheduled.

The following is the sequence of events which occurred:

1. On July 24th two letters were received from the Ontario Labour Relations Board dated July 20th enclosing a copy of the Board's decision in the application by the Labourers' Union, Local 1036 and the application from the United Brotherhood of Carpenters, Local 446, stating that a hearing was to be directed.

2. As of that date, I had not received nor been aware of an application for certification by the Carpenters' Union.

3. It appears that the Board had rendered a decision in the Carpenters' matter prior to the application being sent to me or my client.

4. On July 29th I received under cover of July 23rd from the Ontario Labour Relations Board a letter acknowledging our reply to the certification by the Labourers' Union and enclosing amongst other things an application for certification filed on behalf of the Carpenters' Union, Local 446. Also, enclosed as Item No. C under cover July 23rd was a Formal Notice of Hearing, Construction Industry.

5. I turned my attention to the application for certification by the Carpenters' Union and noticed that my reply had to be in by July 31st. Because of the time element and the fact that my instructing principal from the City was away until August, I called Mr. Aynsley and requested time to file the Carpenters' Union reply until Friday, August 7,1987. Mr. Aynsley advised that that would be satisfactory. I wrote to Mr. Aynsley under cover of July 29th formally confirming that I would file the Carpenters' Union reply by Friday, August 7th. At that time, no mention was made of a hearing on August 6.

6. In view of the above, I did not concern myself with reviewing the Notice of Hearing upon the erroneous assumption that there would not be a hearing until subsequent to the filing of our reply by August 7th.

7. On the same date, July 29th, I wrote a further letter setting out further objections to the Labourers' application.

8. On Tuesday, August 4th, I reviewed the Carpenters' Union application with my instructing

principal who had returned from holiday. On August 6th by puroletter our reply to the Carpenters' Union application was sent to the Ontario Labour Relations Board.

9. Friday, August 7th, my office was advised that the City had received a call from the Union stating that a hearing had been conducted on August 6th and no one appeared on behalf of the City and that the Unions have been certified. Needless to say, our clients are quite upset.

In reviewing this matter today, I have noticed that I had received on July 29th a formal Notice of Hearing for the Carpenters' Union application. As explained above, I did not review the Notice of Hearing at that time in view of the fact that arrangements had been made to file my reply to the Carpenters' Union application on August 7 and therefore erroneously assumed that there would be no hearing before then.

It would appear that at the time of your bearing on August 6th, the Board did not have in its hands the reply to the Carpenters' Union application. The Board made its decision without the benefit of even having our reply, notwithstanding that we had until August 7 to file our reply.

In view of the fact that the Board should have been aware that we would be filing our reply by August 7th which was confirmed in writing, it would seem to me that some enquiry of my office should have been made on August 6th prior to conducting the hearing.

I apologize for any inconvenience I may have caused, but I would submit with respect that the result in this matter is not fair to my client. As set out in our replies, there is a serious dispute to the applications and I submit that our client should have the benefit of a hearing before being certified.

I would be pleased to hear from you as soon as possible so that I can properly advise my clients.

5. On August 19, 1987, the Board received the following letter dated August 19, 1987,

from counsel for intervener #2. The letter states as follows:

We are in receipt of the Board's letter of August 13, 1987, enclosing letters from counsel for the Respondent.

We can, of course, make no comment on counsel's understanding of his telephone conversation with the Registrar. We note his confirming letter is dated July 29, 1987 and stamped as received by the Board on August 10,1987. We can only express some surprise that counsel's earlier letter amending the list in the Labourers' application (also dated July 29, 1987), should have reached the Board in time for distribution to the parties on the morning of the hearing.

Nonetheless, counsel's letter quite candidly acknowledges his oversight, in not reviewing the Notice of Hearing in the application by the Carpenters' Union. Presumably he also had notice that the Labourers' application was scheduled for August 6, 1987. As well, I presume the Board served the Respondent with both Notices of Hearing.

The Board's Notice of Hearing is quite clear that parties failing to appear at a hearing do so at their own peril. We dispute counsel's assertion that the process is "not fair" to his clients. Once a date for trial or a hearing is set virtually every court and tribunal in the Province will proceed if one party tails to appear.

The assumption drawn by counsel from his alleged conversation with the Registrar were not, we submit, reasonable. He had notice of both hearings. Even if he failed to take notice of the Carpenters' application, he did have a notice of hearing in the Labourers' application and the Board's decision consolidating the two. He does not suggest he made any request for an adjournment or discussed the hearing dates with the Registrar. The extension to August 7th of the time to file the necessary reply ought not to have led him to conclude no hearing was or would be set. Although it is not good practice, respondents do occasionally file a reply and schedules of employees at a hearing.

We would refer the Board to a decision involving an application for certification by another Local of the United Brotherhood of Carpenters and Joiners of America, Monte Carlo Carpentry, [1982] June p. 914. In that case one of two competing unions was not advised of a hearing or indeed of the certificate issued to the other union due to an "administrative error" on part of the Board. When it later inquired of the Board as to what had happened, it was advised of the facts and sought to have the Board reconsider its decision. This request was denied, partly because of prejudice to the other union, partly because of a responsibility of a party to diligently pursue its application, even in the face of an admitted administrative error. We submit the same responsibility rests on the Respondent in this case.

There is also substantial prejudice to the Carpenters' Union in permitting the Respondent to prolong the process at this point. We took certain positions with respect to the list of employees in the bargaining unit at the hearing on August 6th based on the information available at that time. As the Board is aware, as a result of the manner in which the case developed during the hearing, we withdrew the companion application for certification in Board File 0952-87-R. Had different facts emerged we might well have taken a different position with respect to that application and the Board's decision of July 17, 1987. Since we have taken positive steps in these proceedings it can only be to our prejudice to permit the Respondent to recommence the hearings at this time.

We respectfully request the Board to deny the Respondent's application.

6. On August 24, 1987, the Board received the following letter dated August 21, 1987, from counsel for the respondent. The letter states as follows:

We acknowledge receipt of the following:

1. under cover dated August 19, 1987, a copy of the Board's Decision in the above matter, together with a copy of the Certificates issued by the Board;

2. your letter of August 19, 1987, acknowledging receipt of our August 6th letter; and

3. a copy of a letter from Messrs. Caley & Wray to Ms. Virginia Robeson, dated August 19, 1987.

I wish to make reply to some of the comments made by Mr. McKee of the Caley & Wray firm.

Mr. McKee states that we also had notice of the Labourers' application date of hearing. The Board ordered that the Labourers' and Carpenters' applications herein be heard together, and I therefore assumed that both matters would be set for hearing together after we had filed our Carpenters' application reply by August 7th as directed by Mr. Aynsley.

Mr. McKee states that my assumptions that the hearings would not proceed was [sic] not reasonable, without giving any reasons why that assumption would not be reasonable. tt is not only reasonable but necessary for the Board to have the filing of the reply to an application for certification prior to the commencing of the hearing. If the reply, with consent of the Board is not being filed until August 7th, the only logical consequence that follows is that the hearing will proceed subsequent to August 7th.

Mr. McKee states that occasionally respondents file a reply at a hearing. We were given until August 7th to file our reply wherein the hearing proceeded on August 6th. That statement therefore does not advance his cause in any way.

The Monte Carlo Carpentry case that Mr. McKee refers to has a totally different set of facts. First of all, the complaining party was not the party being certified. Secondly, and more importantly, the complaining party was not put in the position by the Registrar leading to the mistaken assumption that no hearing was being proceeded with prior to the filing of the necessary reply. Thirdly, in this case, the Board would not and did not have even the benefit of the City's reply before it at the time of the hearing, because of the direction that the reply could be filed on August 7th.

Mr. McKee further states that there would be prejudice to the Carpenters' Union. I do not understand what happened in regards to that application. I am in the possession of an order certifying the Carpenters, dated August 7th and another order dated the same date granting the Carpenters permission to withdraw their application.

The City is taking the position that the employees listed in both the Labourers' application and the Carpenters' application were doing carpentry work and not labourers' work. The reply to the Carpenters' application sets out these facts.

In my discussions with Mr. Aynsley, I advised that we wished to amend our reply to the Labourers' application. Mr. Aynsley advised that there would be no problem and simply to write a letter to the Board with our amendments. These letters were sent on July 29th at the same time of our letter confirming that we would be filing our Carpenters' reply by August 7th.

I have since been advised by you that my letters did not reach the Board until sometime after August 10th.

In view of my conversations with Mr. Aynsley, I do not see why my client should suffer the consequences of the delay in material reaching the Board when the Registrar was aware that these letters were on the way.

I presume that Mr. Aynsley did not advise the new Registrar or make any notes in the file because he believed my letters would be there prior to August 6, which they should have been.

I am quite surprised that Mr. McKee would be taking the position they are when it seems to me that simple fairness in all the circumstances requires a hearing.

7. On August 25, 1987, the Board received the following letter dated August 24, 1987, from intervener #1. The letter states as follows:

I acknowledge, with thanks, receipt of your letter regarding the above-noted Applications for Certification.

t would like to point out to the Board that your letter is the first knowledge of confusion regarding a request for a postponement made by the Respondent that the Intervener is aware of.

As the Intervener in this case, at no time was I made aware that such a request had been made, nor was I contacted for permission to agree to a change of date. In the past, it has always been the practise of the Board to contact all parties involved when a change of hearing date has been made. Certainly in this particular case there was no agreement of the parties for postponement of the hearing as far as the Intervener is concerned.

It is the position of the Intervener that to reschedule a hearing at this point would jeopardize the interests of the employees who are seeking union representation.

If it became a practise that a Respondent, in order to get an application for certification hearing delayed, simply did not attend a scheduled hearing and later requested a re-hearing, the whole field of labour relations would end up in turmoil.

By signing membership cards, these employees have demonstrated that they wish union representation. All parties in attendance at the hearing on August 6th, 1987 were satisfied that the employees were entitled to be certified and therefore, all of the requirements for certification have been met.

8. On August 27, 1987, the Board received the following letter dated August 27, 1987, from counsel for the applicant. The letter states as follows:

We acknowledge receipt of letters dated August 13th and 19th, 1987 from the Board enclosing various letters from solicitors for the Respondent. It appears that the Respondent essentially seeks, pursuant to Section 106 of the Act, to have the Board reconsider its decision dated August 7, 1987 ("the Decision") certifying both the Labourers and the Carpenters for their respective craft units in the employ of the Respondent in the construction industry and requests the Board to "have the matter reopened and the hearing rescheduled". On behalf of our client, we oppose any such request for reconsideration for the following reasons:

1. As we understand the correspondence from counsel for the Respondent, it is not disputed that both counsel and the Respondent had notice of the hearing scheduled for August 6, 1987. Although the correspondence refers to discussions between counsel for the Respondent and the Registrar of the Board, there is no suggestion that the Respondent requested the adjourning or cancelling of the hearing scheduled for August 6th or that the Registrar in any way conveyed or suggested that the hearing would not proceed. Certainly, neither we nor our clients were ever approached about, let alone consented to, the adjourning of the hearing scheduled for August 6, 1987. Needless to say, our clients attended the hearing on August 6, 1987 at considerable expense and inconvenience as well as summonsing a witness who also attended. In fact, all parties, including both Intervenors, attended with the sole exception of the Respondent. The Board waited its customary half hour before proceeding. In fact, at our request, we understood the Board attempted to contact both the Respondent and counsel but was unable to do so. In accordance with its customary practice, the Board then proceeded to hear and dispose of the Applications for Certification on the basis of the evidence and agreement of the parties before it. The Respondent now seeks reconsideration of the Decision on the basis of its own failure to attend at the hearing.

2. Reconsideration requests due to the failure of a party to either file a reply or attend at a hearing are not novel. To avoid this problem, paragraph 4 of the Notice of Hearing (which is not disputed was received by both counsel and the Respondent) sets forth in bold print and in capital letters:

"4. IF YOU DO NOT AYEEND AT THE HEARING, THE BOARD MAY PROCEED IN YOUR ABSENCE AND YOU WILL NOT BE ENTITLED TO ANY FURTHER NOTICE IN THE PROCEEDINGS."

As a result, it has been the consistent practice of the Board not to reconsider or reopen its decision merely because of the failure of a party to attend the hearing when it has had notice of such hearing. In Johnsons Painting Co. Ltd., [1983] OLRB Rep. June 919, the Board, in refusing a request for reconsideration, stated at para. 32:

"The construction industry provisions of the Labour Relations Act and the regulations under the Act clearly indicate a Legislative intent that construction industry certification applications be processed quickly. This, together with the need for finality in Board proceedings, strongly mitigates against granting requests to re-open a certification proceeding unless there are compelling grounds to do so..."

See also Coldmatic-Refrigeration of Canada Ltd., [1985] OLRB Rep. June 1009 where the Board in refusing to reconsider and re-open its determination of a construction industry grievance, stated at para. 15:

“……the Board cannot encourage a practice whereby one party can, being aware of the scheduling of proceedings, choose to not attend and then, after discovering that the award has been made against him, seek to reopen the proceedings when no compelling reason to do so has been presented."

These cases are by no means unusual or unrepresentative. For other cases where reconsideration has been refused in similar circumstances, see also A.J. Fish & Son Limited, [19821 OLRB Rep. August 1123; Karvon Construction Limited, [1982] OLRB Rep. August 1186; Ferano Construction Ltd., [1985] OLRB Rep. January 73; Brantco Construction [1986] OLRB Rep. January 6; Marble Arch Investments Limited, OLRB File No. 2957-86-R, unreported decision dated May 27, 1987.

In M. Sullivan and Son Limited, [1979] OLRB Rep. January 58, the Board refused to entertain a subsequent complaint under Section 89 of the Act where a previous identical complaint had been dismissed following the non-appearance of the complainant. The Board set forth its policy with respect to reopening cases where one of the parties failed to attend at paras 18. and following:

18. When scheduling hearings for all applications before it, including Section 79 [now Section 89] complaints, the Board is mindful of the fact that in labour relations matters speed is generally of the essence and that delay may cause serious prejudice to one or other of the parties. Because of this, the Board's practice upon receiving an application or complaint is to schedule a hearing in the manner for a fixed time and then to inform the parties of the date set. variations from this date will generally be allowed only on agreement of the parties or if one party cannot attend on that date due to circumstances beyond its control.

19. In a fairly large number of cases the Board has been asked by respondent employers not to proceed with a hearing into a Section 79 [now Section 89] complaint on the date scheduled but rather to adjourn the hearing to some later date. Unless the Respondent could demonstrate that it could not attend on the dates set for reasons beyond its control, the Board has almost invariably refused these requests. If on the date set for hearing the employer failed to appear, or if it appeared it was only to ask without success for an adjournment and then withdrew, the Board has generally proceeded to inquire into the complaint notwithstanding the absence of the employer and, where warranted, issued a decision in favour of the complainant...

20. Doubtless the Board's manner of scheduling hearings and then declining to vary the dates selected except in exceptional circumstances cause some degree of inconvenience to all the parties that appear before it. Nevertheless, this procedure has the effect of keeping delays in the commencement of hearings to a minimum. This, we believe, is of great benefit in the administration of The Labour Relations Act. Not only does it allow the Board to handle all applications in a more orderly and hence in a more expeditious manner, but it also eliminates at least one possible source of delay in Board proceedings. Having regard to the fact that the Board generally deals with situations where delay will cause prejudice, it is our opinion that this manner of proceeding is conducive to the general well-being of sound labour relations in the province.

21. One result of the Board's system of scheduling hearings is that parties must take care both to ensure that the hearing dates are not missed and also that they have properly prepared themselves for the hearing, which includes ensuring the attendance of essential witnesses.

22. Where a complainant has had a Section 79 [now Section 891 complaint dismissed due to its non-attendance at a hearing, or a respondent has had a finding made against it notwithstanding its absence from the hearing, we are of the view that having regard to the considerations set out above the absent party bears the onus of showing grounds where the subject matter of that complaint should later be inquired into. This could be done in just about every case by showing that its failure to attend was occassioned [sic] by factors beyond its control. Where this was not the case, however, then a careful weighing of a number of considerations must be undertaken.

23. One such consideration is the reason for the party's non-attendance at the original hearing. In the instant case we are of the view that the most likely cause of the complainant's non-attendance was inadvertence on the part of its business representative. Inadvertence, however, is not a particularly strong ground for relief Further, alt hough the inadvertence was not the fault of the grievors, by having the complainant act as their agent in bringing the initial complaint the grievors did put themselves in a position where their rights might be affected by the negligent acts of the complainant...

24. In the interest of sound industrial relations policy and the orderly administration of the Act, we are of the view that parties must take care to ensure they attend the scheduled Board hearings. We are also of the view that where a complaint is dismissed because of a failure of a complainant to attend at the hearing, or a complaint is upheld

in the absence of the respondent, as a general principle the Board should not permit the subject matter of the complaint to be reopened unless sufficient grounds for so doing have been advanced by the absent party..."

[emphasis added]

3. What appears to be the reason advanced by counsel for the respondent is the failure of both counsel and the Respondent to carefully read the Notices of Hearing which were received. Even if the error was solely counsel's (and it appears the error was also that of the Respondent), as suggested in M. Sullivan and Son Limited, supra, the Board has consistently refused to allow a party to rely on the error of its counsel or agent to the detriment of the other innocent parties.

The Board policy has been clear since the seminal decision in Addressograph-Multi graph of Canada Limited, [1968] OLRB Rep. March 1183, where the Board stated at the para. 17:

"17. While counsel for the Intervenor argued that his client should not be saddled with his mistake or the mistake of his employee, the Board is of the opinion that a client must assume responsibility for the mistake of his solicitor. It cannot seriously be argued that legal counsel can make mistakes with impunity or that their mistakes do not carry the same weight as similar mistakes made personally by a party. We are of the view that counsel's responsibilities are no less onerous than the responsibilities imposed upon a party in any proceeding and a party cannot evade the results of mistakes made by counsel retained by the party."

See also Soo Dairies Limited, [1968] OLRB Rep. April 115, Canadian Union of General Employees, [1975] OLRB Rep. April 320, Adventure Construction Limited, [1975] OLRB Rep. April 371, Sheller-Globe of Canada Ltd., [1982] OLRB Rep. January 113 at para. 12. In particular in both the Soo Dairies Limited and Canadian Union of General Employees cases, in circumstances similar to these, the Board refused to reconsider or re-open cases where counsel for one of the parties failed to attend the hearing through error.

4. Furthermore, nothing in the Respondent's submissions come within the ambit of the Board's general jurisprudence to exercise its discretion to reconsider a decision. That general jurisprudence was summarized at para. 11 of the Canadian Union of General Employees case, supra:

"11. Generally, the Board will not reconsider a decision unless a party proposes to adduce new evidence which could not previously have been obtained by reasonable diligence and the new evidence is such that, if adduced, it would be practically conclusive or a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously. (International Nickel Co. of Canada Ltd. [1963] OLRB Rep. 234, 64 CLLC para. 15,493 (Ont. H.C.); Detroit River Construction Case (1962) CLLC para. 16,260). Both legs of this principle depend upon the applicant having been diliquent [sic] and therefore having no opportunity to draw the Board's attention to the object of its concern. The applicant in the case at hand and his lawyer were not diligent in that they were given notice of the hearing date in the matter by the Board. Accordingly, they would not appear to come with [sic] the ambit of the principle." (emphasis added)

Both the circumstances and rationale of the Canadian Union of General Employees cases are indistinguishable from the submissions made by the Respondent.

For all of the foregoing reasons, we request that the Board dismiss the Respondent's request for reconsideration and not re-open this case.

9. On September 2, 1987, the Board received the following letter dated September 1, 1987, from counsel for the respondent. The letter states as follows:

Receipt is acknowledged of a copy of the letter to you from Koskie and Minsky, solicitors for the Carpenters, Local 446. [sic]

1. In Paragraph 1, it is stated that there is no suggestion that the Respondent requested the adjourning or cancelling of the hearing or that the Respondent in any way suggested that the hearing would not proceed.

I do not agree with that representation. It was implicit, in obtaining the extension for filing the Reply until August 7th, coupled with the Board's order that the Labourers' and Carpenters' hearings herein be heard together, that the hearings would be scheduled after August 7th.

As I have stated in my earlier correspondence, because of the fact that we received an extension for our Reply and additional objections to the Labourers' application, I did not concern myself with ascertaining the date for the hearing assuming that a date would be arranged subsequent to August 7th.

2. In all of the cases referred to by counsel, the Respondents either chose not to appear or did not appear through internal confusion. In no cases cited by anyone was the Respondent put in the position of believing that the hearing would not be proceeding within the time period allowed for the filing of a reply by the Registrar of the Board.

3. In Paragraph 3, counsel states that the reason for the Respondent failing to appear is the failure to carefully read the Notices of Hearing. This once more is incorrect. Counsel did not read the Notices of Hearing because of the representation of the Registrar of the Board extending the time periods.

4. Counsel for the Carpenters cites the Canadian Union of General Employees case wherein it is stated that the Board would not reconsider a decision unless a party wishes to make representations or objections not already considered by the Board that he had no opportunity to raise previously.

The Board proceeded with the hearing of this matter prior to receiving our Reply to the Carpenters and new objections to the Labourers. Mr. Aynsley was advised of both of these matters by telephone at the same time as he authorized the extension of the filing of our Reply and new objections until August 7th. Because of the arrangement with Mr. Aynsley, the Board did not have our written replies or evidence, or verbal submissions at the time of the hearing.

5. In my respectful submission, there was a denial of natural justice in all of the circumstances which should allow the Board to reopen the hearing.

Thank you for your consideration.

10. The Board has not received further correspondence from either the applicant or the respondent or the interveners.

11. The Board notes that the respondent has not requested any relief with respect to the Board's File No. 0952-87-R. The application therein was withdrawn by leave of the Board. The decision is dated August 7, 1987.

12. The Board notes that the respondent received the notice of hearing on July 29, 1987. There was no suggestion that the Board in fact changed the hearing dates to suit the convenience of counsel for the respondent. The Board's Rules of Procedure set forth the requirements for filing a reply. Reference is made to section 93 of the Board's Rules of Procedure. As counsel for the respondent stated, he erroneously assumed that a hearing would not be held before August 7, 1987. There is nothing in the material before the Board to indicate that this erroneous assumption originated anywhere other than in the mind of counsel for the respondent. The wording of the Notice of Hearing, Construction Industry, Form 79, referred to in paragraph 2 herein, is clear and precisely sets forth the consequences of not attending the hearing. The applicant and the interveners did attend the hearing together with representatives and witnesses from Sault Ste. Marie. No doubt this was accomplished at some expense to these parties. While the respondent may wish to file a reply there is no requirement that a reply be filed. A party which files a document beyond the purview of the Board's Rules of Procedure does so at its peril. The Board did not authorize an extension of the time for filing a reply by the respondent.

13. Counsel for the respondent admits a mistaken assumption and states that simple fairness is required. The concept of simple fairness is more than a subjective assessment of the consequences of a false assumption and the feelings of a client who is "quite upset". The concept of simple fairness must surely be an objective assessment of all the circumstances such as the reasonable and legitimate expectations of the applicant and intervener #2 under the administration of the Labour Relations Act. The applicant and intervener #2 commenced proceedings under the Labour Relations Act and attended a scheduled hearing in order to obtain the remedies they sought. In labour relations, time is of the essence. This is particularly so with respect to applications for certification which are filed under the construction industry provisions of the Labour Relations Act. For example, upon certification employees who are covered by a provincial collective agreement in the industrial, commercial and institutional sector of the construction industry are immediately entitled to benefits under that provincial collective agreement, such as, for example, wages and health, welfare and pension benefits.

14. It appears to the Board that an error based upon an unwarranted and false assumption by counsel for the respondent led to the failure of counsel to attend before the Board on August 6, 1987. As the Board held in Addressograph-Multigraph of Canada Limited, [1968] OLRB Rep. March 1183, counsel's responsibilities are no less onerous than the responsibilities imposed on a party in any proceedings and a party cannot evade the results of mistakes made by counsel retained by a party. The Board has made its decision after a hearing held after sufficient and adequate notice to all parties of such hearing. The Board is not prepared to reconsider its decision in this matter. The absence of counsel through his own false assumptions is not a ground for reconsidering a decision of the Board pursuant to section 106(1) of the Labour Relations Act. The Board notes that the respondent has not alleged that it had new evidence which could not previously have been obtained by reasonable diligence and that such evidence, if adduced, would be practically conclusive as contemplated in Canadian Union of General Employees, [1975] OLRB Rep. April 320.

15. For the foregoing reasons, the requests of counsel for the respondent are denied. The Board affirms its decision in this matter dated August 7, 1987, and the certificates that were issued thereunder.